-S.5, Sched---Badl-e-Kulha----Special condition/Undertaking in column No.16 of nikahnama to transfer house to wife---Enforcement of such special condition---

 2022 M L D 1982

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

----S.5, Sched---Badl-e-Kulha----Special condition/Undertaking in column No.16 of nikahnama to transfer house to wife---Enforcement of such special condition---Scope---Nikahnama was produced by wife and from the perusal of column No .16 of the nikahnama, it was clear that it had been undertaken by husband as special condition that a house (details of which had been mentioned in the said column) should be given to wife---Husband's case was that he had delivered possession of one room to wife which was sufficient compliance of the said column of nikahnama---Validity---Stance taken by husband when read in juxtaposition with column No.16 of the nikahnama, it was clear and obvious that it was undertaken by husband that a house should be delivered to wife (and not a room) ,thus the special condition as contemplated in column No.16 in nikahnama had not been fulfilled ---Husband claimed that possession of house could not be ordered to be delivered to wife as the house mentioned in column No.16 was given to wife in lieu of dower and since wife had sought dissolution of marriage through suit on the basis of Khula, which was decreed, thus as Badl-e-Khula, since wife had to forego the dower therefore no decree for possession of the house could be passed in favour of wife---Validity--Said claim of husband was misconceived for the reason that nikhanama showed that column Nos. 13 to 15 pertained to Dower, whereas column No.16 referred to a Special Condition set up while executing the Nikahnama which was a contract between spouses----Column Nos. 13 to 15 and column No.16 were independent and not interdependent as they catered for two different undertakings between the spouses while executing the Nikahnama, the same could not be read in conjunction---In column Nos. 13 to 15 of nikanama reference was made to dower, what would be the dower, whether it was prompt or deferred and whether some of the dower had been paid at the time of marriage, and whereas, Column No.16 was an independent condition setup at the time of marriage as it referred to a special condition undertaken by the spouses while entering in the marital bound through nikanama---For the enforcement of the special condition as setup in column No.16, either of the spouses could approach the Family Court keeping in view the Schedule attached to the Family Courts Act, 1964, which in the present case wife had done----Stance of husband was also falsified from the fact that suit for dissolution on the basis of Khula was filed by wife against husband which was decreed by Trial Court and as Badl-e-Khula ,respondent had already been asked to surrender 2 tolas gold ornaments and since the decree had not been assailed by husband thus even if column No.16 was construed to be with regard to dower (which it was not), even then husband was bound to fulfill his undertaking as Badl-e-Khula had already been given to husband----In the previous round of litigation, in which parties entered into compromise, the entry made in column No.16 of the nikahnama had been acknowledged by the father of husband who also made a statement before the Trial Court that house mentioned in column No.16 belonged to him and he would transfer the same to respondent