Nikah Form--Interpretation of Column No. 17 of Nikah Form--

 PLJ 2022 Lahore 573

Family Courts Act, 1964 (XXXV of 1964)--

----Preamble--West Pakistan Family Courts Act, 1964 has been enforced to make provisions for establishment of Family Courts for expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith.                                                        [P. 576] A

Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 15 & 16--Provision of C.P.C. and Q.S.O.--Applicability--Powers of Family courts--Under Section 15 Family Courts are provided with power to summon witnesses whereas Section 16 enable them to proceed with contempt matters--Similarly, Family Court has power to adopt any procedure under law for summoning of witnesses or exhibiting documents--Procedures, provided in CPC and Qanun-e-Shahadat Order, are not applicable in stricto sensu--Wisdom behind scheme is to avoid technicalities so that matters could be resolved expeditiously and justice could be provided within very short span of time.                                         [P. 576] B

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 5--Jurisdiction--Family affairs--Proceedings of Family Courts--Procedure before1 Civil Court is very lengthy and painful, all matters relating to family affairs were made subject to Family Courts--Judges of Family Courts have been given vast power to regulate proceedings of family cases with wisdom that Family Courts can initiate to bring about compromise between spouses for their reunion and for their living together, during proceedings of case twice provision of reconciliation have been inducted in Court proceedings--Purpose behind whole exercise is to make efforts for reunion of spouses so to have a peaceful and good family future.

                                                                                             [P. 576] C

Nikah Form--

----Vital importance regarding resolution of disputes--Most of Nikah Khawn Nikah Registrars have no understanding  with spirit of columns of Nikah Form especially in rural areas where literacy rate is very low and people do not understand meaning of some special terms--Nikah Khawn/Nikah Registrars while filling Nikah Form do not keep in mind purpose of columns thereof that ultimately creates problems for spouses in case any dispute arises between them.                                                                               [P. 577] D

Interpretation of Column No. 17 of Nikah Form--

----Nikah Form was written in petitioner’s presence and signed over same but conditions were not written--Neither petitioner has filed an application before concerned union council for correction of entries if were wrongly filled in column 17 nor brought a suit before competent Court to get entries corrected, meaning thereby that Nikah Nama is an admitted document.                                                     [P. 577] E

Family Courts Act, 1964 (XXXV of 1964)--

----S. 5--Nikah form--Column No--17--Presumption of truth--Personal property and belonging of wife can be claimed by her at any time and matter is triable by Family Court--Since this property has not been fixed with any condition by husband, this will be taken as personal property and belonging of wife, which has been rightly decreed by Additional District Judge.                                                                  [P. 579] F

Mr. Muhammad Iftikhar Ullah Dhilon, Advocate, for Petitioner.

Mr. Shan Saeed Ghumman, Advocate, for Respondents.

Date of hearing: 25.1.2022.

 PLJ 2022 Lahore 573
Present: Safdar Saleem Shahid, J.
RASHEED AHMED--Petitioner
versus
ADDITIONAL DISTRICT JUDGE etc.--Respondents
W.P. No. 27152 of 2013, heard on 25.1.2022.

Judgment

This petition calls into question the legality of the consolidated judgment and decree dated 18.02.2013, whereby the learned Additional District Judge, Sialkot, while dismissing the appeal filed by the petitioner, partly accepted the appeal filed by Respondent No. 3 and modified the judgment and decree dated 21.06.2012 passed by the learned Judge Family Court Sialkot, in the terms that the decree for recovery of Rs. 100.000/- as alternate value of dowry articles and pocket money/maintenance at the rate of Rs. 5000/- per month w.e.f.. 01.01.2010 till copletion of her period of Iddat passed in favour of Respondent No. 3 was maintained and her suit tor recovery of gold ornaments weighing eleven tolas or the current market price thereof was also decreed.

2. Brief facts giving rise to this petition are to the effect that Respondent No. 3 filed two suits one for recovery of dowry articles. gold ornaments and maintenance allowance and the other for recovery of dower in shape of gold ornaments weighing 14 tolas and pocket money at the rate of Rs. 5000/- per month as mentioned in the Nikah Nama, alleging that she was married with the petitioner on 20.11.2009, however, there was no issue out of the wedlock; she was given gold ornaments and dowry articles by her parents as per list attached with the plaint but in July 2010 she was ousted by the petitioner from his house, as Such she prayed for a decree for recovery of dowry articles, gold ornaments, maintenance allowance, dower in the shape of gold ornaments weighing 14-lolas and Rs. 5000/- per month as pocket money as per condition of Nikah Nama. The petitioner contested the suit by filing written statement with certain preliminary objections.

3. The learned trial Court out of divergent pleadings of the parties, framed issues, recorded evidence of the parties, and after having gone through the same while dismissing the suit of Respondent No. 3 for recovery of dower in the shape of gold ornaments weighing 14-tolas and pocket money, partially decreed the suit for recovery of dowry articles to the extent of Rs. 100,000/- as alternate price thereof and maintenance allowance at the rate of Rs. 5000/- per month from January, 2010 till the period of her Iddat. Feeling aggrieved, both the parties preferred appeals, which were decided through a consolidated judgment and decree by the learned Additional District Judge in the terms recorded in para-1 above.

4. Arguments heard. Record perused.

5. Prior to the discussion on the legal aspects of the proposition regarding the interpretation of column 17 of the Nikah Nama, I would like to discuss the wisdom maintained in the scheme in object of the Family Court. The West Pakistan Family Courts Act, 1964 has been enforced to make provisions for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith. That is why the application of the provisions of CPC and Qanun-e-Shahadat Order, 1984, have not been strictly made applicable to the family cases, rather the powers have been vested to the Family Courts to perform their functions. Under Section 15 the Family Courts are provided with the power to summon witnesses whereas Section 16 enable them to proceed with contempt matters. Similarly, the Family Court has the power to adopt any procedure under law for summoning of the witnesses or exhibiting the documents. The procedures, however, provided in CPC and Qanun-e-Shahadat Order, are not applicable in stricto sensu. Meaning thereby the wisdom behind the scheme is to avoid the technicalities so that the matters could be resolved expeditiously and justice could be provided within the very short span of time. That is why Section 5 of the Act provides "Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts .shall have exclusive jurisdiction to entertain, hear and adjudicate upon matter specified in the Schedule". Prior to introduction of this Act, some of the matters relating to the family affairs were subject to the Civil Courts and the Civil Court being the ultimate Court of jurisdiction was having the power to entertain those matters, but keeping in view the fact that the procedure before the Civil Court is very lengthy and painful, all the matters relating to the family affairs were made subject to the Family Courts. The Judges of the Family Courts have been given vast power to regulate the proceedings of the family cases with the wisdom that the Family Courts can initiate to bring about compromise/settlement between the spouses for their reunion and for their living together, therefore, during the proceedings of the case twice the provision of reconciliation have been inducted in the Court proceedings. The purpose behind the whole exercise is to make efforts for the reunion of the spouses so to have a peaceful and good family future. This is not only beneficiary for the families but this will also help to build a healthy and beautiful society.

6. With the introduction of the Act, the Nikah Form has attained a very vital importance regarding the resolution of the disputes, if arise between the spouses. Nikah Form otherwise is very important document. It has been observed that unfortunately most of the Nikah Khawn/Nikah Registrars have no understanding  with the spirit of the columns of the Nikah Form especially in the rural areas where the literacy rate is otherwise very low and people do not understand the meaning of some special terms. Nikah Khawn/Nikah Registrars while filling Nikah Form do not keep in mind the purpose of the columns thereof that ultimately creates problems for the spouses in case any dispute arises between them. Furthermore, in some matters it is very difficult for the Court to see the exact intention of the spouses regarding those columns at the time of Nikah. If Nikah Form is perused, its columns have very systematic sequence. From columns 1 to 6. it relates to the place of Nikah with the details of the spouses regarding their names, parentage, age and their matrimonial status i.e. bachelor or married, whereas columns 7 to 11 are regarding the requirements of a valid Nikah, wherein names of the witnesses and the name of Wakeel on behalf of the spouses, if any appointed, are mentioned. Column 12 is regarding the date of Nikah. Columns 13 to 17 relate to the fixation of dower. Now this head has been detailed in four different columns and every column has its own significance. While filling up these columns normally the person filling up does not care for the wisdom behind the said columns, which are very clear in their meanings. Column 17 is regarding "خاص شرائط اگر کوئی ہوں". According to the scheme of the form it reflects that this is a part of the dower and the conditions if having been imposed regarding the dower. It cannot be interpreted anywhere that this column is regarding the conditions after the divorce or in case of divorce, because Nikah Form clearly shows that column 18 starts from the subject of divorce and all the conditions regarding the divorce have been separately mentioned in two different columns.

7. The proposition in hand revolves around the interpretation of column 17 of the Nikah Form. Admittedly, the Nikah was performed between the parties on 20.1 1.2009, the document (photocopy of Nikah Nama) Mark-A is admitted by both the sides and there is no objection from any side regarding its execution. The petitioner has admitted that this Nikah Form was written in his presence and he signed over the same but he has further stated that these conditions were not written. He, however, has not challenged these conditions independently before any forum. Neither the petitioner has filed an application before the concerned union council for correction of the entries if were wrongly filled in column 17 nor brought a suit before the competent Court to get the entries corrected, meaning thereby that Nikah Nama is an admitted document. The learned Judge Family Court while interpreting column 17 of the Nikah Mama observed as under:

"In support of her version plaintiff lady has also produced a copy of her Nikah Nama as mark-A, perusal of which clearly reveals that in Column No. 17 of the same, following words are mentioned:

"17: خاص شرائط اگر کوئی ہوں:- چودہ تولے زیور طلائی کی صورت میں۔ پانچ ہزار روپے جیب خرچ"

Above mentioned words are so ambiguous that no clear picture of these words can be drawn. Plaintiff has stated that golden ornments mentioned in this column were agreed to be paid as her dower but perusal of Column No. 13 and 14 of Nikah Nama of the parties clearly shows that dower in the shape of 11-tolas golden ornaments was paid to the plaintiff at the time of her marriage. In these circumstances when dower has already been paid to the plaintiff, golden ornaments mentioned in Column No. 17 cannot be termed as dower of the plaintiff. It is also note worthy here that Column No. 17 of the Nikah Nama on the basis of which plaintiff lady has claimed the above mentioned 14-tolas golden ornaments etc, is completely silent about the status of these ornaments etc, mode of their payment/delivery so, in these circumstances this Court is of the view that on the basis of such an ambiguous column plaintiff lady cannot be held entitled to get these gold ornaments alongwilh Rs. 5000/- as per month pocket money in the shape of her Haq Mehr."

Whereas the learned Additional District Judge while dealing with the issue interpreted the said column otherwise and mentioned that it could be treated as deferred dower which the lady could claim under law. The wisdom of the judgment of Additional District Judge is backed by the case of jehangir Khan through Attorney vs. Mst. Saeeda Begum and 2 others (2020 YLR 2350), wherein column 17 was interpreted as under:

"As far as petitioner's claim qua house is concerned, I have examined Column No. 17 of the Nikahnama dated 20.11.2009 Ex.PW-1/1, though it was not specifically mentioned that it was given to her either in lieu of dower or as gift, however, it was also not mentioned that it was given to her for residential purpose only. In the absence of such stipulation in the Nikahnama, the suit house given to the wife is conclusive in nature and may be construed as a part of dower or gift in consideration of marriage, therefore, it would be falling with the exclusive jurisdiction of the Family Court as envisaged in Section 5 read with Part-1 of the schedule of the Family Courts Act, 1964 and it has become personal property of the Respondent No. 1."

Similarly, in the case of Mst. Shehnaz Mai vs Ghulam Abbas and 2 others (2018 CLC Note 104) column 17 of the Nikah Nama was also interpreted in the same way and the property mentioned therein was decreed in favour of wife and the said property was declared as deferred dower. There is no other view that presumption of truth is attached to the Nikah Nama. but at the same time, if the entries thereof are denied the same can be challenged and the party challenging the entries is under obligation to prove that those entries were not settled between the parties at the time of Nikah, but in this proposition there is no evidence regarding this aspect. Admittedly, the Nikah was performed in the Majlis and all the persons whose names are appearing on the Nikah Nama (Mark-A) including the petitioner signed over the same. Keeping in view the sequence of the scheme of Nikah Form, its column 17 is condition of dower which in other way can be interpreted as the property belonging to the wife after marriage and under Section 5 of the West Pakistan Family Courts Act, 1964, personal property and belonging of the wife can be claimed by her at any time and the matter is triable by the Family Court. Since this property/amount has not been fixed with any condition by the husband, therefore, this will be taken as the personal property and belonging of the wife, which has been rightly decreed by the learned Additional District Judge. The citations referred by the learned counsel for the petitioner are not as such applicable to the present proposition.

7. For what has been discussed above, the learned counsel for the petitioner has been unable to point out any exercise of excess of jurisdiction by the learned appellate Court. The learned counsel for the petitioner has similarly been unable to point out any illegality or material irregularity having been committed by the learned appellate Court. Under the circumstances this petition, having no merit, is dismissed and the judgment and decree passed by the learned appellate Court is upheld. There shall be no order as to costs.

(R.A.)  Petition dismissed