Case Law (Validity---List of articles revealed that those were ordinarily given to a bride at the time of her marriage)

رسيدات کے بغیر ہی سامان جہیز کی واپسی کا مقدمہ ڈگری ہو سکتا ہے ۔ صرف سامان جہیزکی لسٹ کافی ہے ۔

2008 SCMR 1584

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

----S. 5 & Schd.---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of dowry articles by divorced wife was decreed by Family Court and amount of decree was modified and enhanced by the Appellate Court---Contention of the husband was that no such list of dowry articles was prepared at the time of marriage, same was fabricated subsequently and in absence of valid receipts of purchase of said articles, suit could not have been decreed and that Appellate Court was not legally justified to modify the decree passed by Family Court and enhance the amount---Validity---List of articles revealed that those were ordinarily given to a bride at the time of her marriage---No illegality or irregularity had been pointed out in the concurrent findings of fact recorded by the two courts below and upheld by the High Court assigning cogent and sound reasons calling for interference by Supreme Court---Impugned order did not suffer from any legal discrepancy nor any substantial question of public importance was involved in the petition against such order---Leave to appeal was declined by the Supreme Court.

Javed Bashir, Advocate Supreme Court for Petitioner.

Muzammal Akhtar Shabbir, Advocate Supreme Court for Respondent No.1.

Date of hearing: 16th July, 2008.

 MUHAMMAD HABIB VS Mst. SAFIA BIBI

2008 SCMR 1584

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD HABIB----Petitioner

Versus

Mst. SAFIA BIBI and others----Respondents

Civil Petition for Leave to Appeal No.1480-L of 2007, decided on 16/07/2008.

(On appeal from the order, dated 6-8-2007 of the Lahore High Court, Lahore passed in Writ Petition No.7387 of 2007).

JUDGMENT

IJAZ-UL-HASSAN KHAN, J.--- Through instant petition, Muhammad Habib, petitioner, seeks leave against the order, dated 6-8-2007 of learned Single Judge of Lahore High Court, Lahore, whereby petitioner's Writ Petition. No.7387 of 2007 was dismissed and judgment and decree dated 13-6-2007 rendered by learned Additional District Judge, Gujranwala, was maintained.

2. The facts which we have been able to gather from the record of the case are that petitioner married Mst. Safia Bibi, respondent, on 13-6-1993. Unfortunately after a few days of the marriage, relations between the couple became strained and the marital tie ended in a divorce. The respondent filed a suit for recovery of dowry articles valuing Rs.200,500 which was contested by the petitioner. After framing necessary issues and considering the evidence on record, learned Judge Family Court, Gujranwala, seized of the matter, vide judgment and decree dated 25-7-2006 partially allowed suit to the extent of Rs.80,000. Feeling aggrieved, both the parties, filed appeals. Vide consolidated judgment dated 13-6-2007, learned Additional District Judge, Gujranwala, dismissed appeal of the petitioner and accepted appeal of the respondent with modification in the decretal amount. The petitioner challenged said judgment and decree by filing writ petition before learned Lahore High Court, Lahore, which has been dismissed vide order impugned herein.

3. Mr. Javed Bashir, Advocate, representing the petitioner, after taking us through the evidence recorded during the trial, contended with vehemence that no such list of dowry articles was prepared at the time of marriage, same were fabricated subsequently and in absence of valid receipts of purchase of said articles, suit could not have been decreed. He also contended that in the peculiar facts and circumstances of the case, learned appellate Court was not legally justified to modify the decree passed by learned Family court and enhance the amount. He reiterated that learned Single Judge of the High Court, while dismissing the writ petition has also not appreciated the evidence in true perspective, resulting in complete failure of justice.

4. Having heard learned counsel for the petitioner in the light of the material on file, we find that learned High Court has rightly observed that "the evidence of the petitioner is insufficient to rebut the version of the plaintiff/respondent, Mst. Safia Bibi,....The learned appellate Court after proper appreciation of the evidence on record modified the decree of learned Judge Family Court and accepted the appeal of the plaintiff/ respondent regarding her whole claim of Rs.1,80,7000. The perusal of list Exh.P.1 reveals that these are the articles which are ordinarily given to a bride at the time of her marriage. Both the Courts below have given concurrent findings which are based upon substantial evidence and the petitioner has not been able to controvert the same during the trial, as such the petitioner has failed to show any illegality of irregularity committed by the Courts below in the impugned judgments so as to warrant interference by this Court in exercise of its constitutional jurisdiction".

5. Having examined the impugned order in the above perspective, we find that no illegality or irregularity has been pointed out in the concurrent findings of fact recorded by the two Courts below and upheld by learned High Court assigning cogent and sound reasoning calling for interference by this Court. We are persuaded to hold that impugned order does not suffer from any legal discrepancy nor any substantial question of public importance is involved in this petition, therefore, no case for grant of leave is made out.

6. The petition, having been found devoid of force, is dismissed and leave refused accordingly.

M.B.A./M-55/SC??????????????????????????????????????????????????????????????????????????????? Petition dismissed.

x

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Case Laws and Judgment related Section 5 & Sched., Nikahnama ,Nikah-- Validity---Dower

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Fixation and payment of dower---Wife's entitlement to dower property as per its entry in Nikahnama---Husband denied fixation of dower and its incorporation in the deed----Effect---Courts below concurrently found wife to be entitled to dower which had been entered in Nikahnama at the time of Nikah-- Validity---Dower claimed by wife was incorporated in relevant column of Nikahnama---Husband's denial of fixation of dower in toto was negatived by concurrent findings of Courts below, who found Nikahnama to have been duly executed---Husband could not advance any reason to dislodge presumption attached to such document ---Nikahnama being public document, execution thereof, was verified by Nikah Registrar who is public officer and even certified copy can be produced in proof of its contents and in absence of any rebuttal it would hold the ground---Genuineness and execution of Nikahnama was, thus, not questionable and wife would be entitled to the property incorporated in Nikahnama.

Mst. Zubaida Bibi and others v. Mst. Majidan and another 1994 SCMR 1978 rel.

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

----S. 5---West Pakistan Family Courts Act (XXXV of 1964), S. 5-- Registration Act (XVI of 1908), Ss. 17 & 49---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Transfer of immovable property by husband to wife through Nikahnama which had not been registered under Registration Act, 1908---Validity---Nikah of parties was in the form prescribed under Muslim Family Laws Ordinance, 1961 and the rules framed thereunder and same was registered with the Nikah Registrar in accordance with prescribed mode and thus, Nikahnama had a different status than any other unregistered document through which some immovable property had purportedly been transferred-- Nikahnama was a public document executed by a Public Officer, certified copy whereof, was sufficient for proof of its contents unless its rebuttal was effected through cogent evidence---Dower deed by which immovable property was purported to be transferred was, thus, not considered to be compulsorily registerable under Registration Act, 1908, and wife was entitled to claim immovable property on basis of Nikahnama wherein same was incorporated in lieu of dower.

Mst. Zubaida Bibi and others v. Mst. Majidan and another 1994 SCMR '1978; Umar Bakhsh.v. Mst. Zamrut Jan and 9 others PLD 1973 Pesh. 63; Mst. Allah Jawai v. Allah Ditta PLD 1975 Lah. 1399; Inayat Ullah v. Perveen Akhtar 1985 CLC 1454; 1989 SCMR 1871; 1989 CLC 1327; Khawaja and another v Nur Alam and others PLD 1953 LA. 277; Fazal-ur-Rehman v. Mst. Sosan Jan and others 1989 SCMR 651 and Arif Hussain and another v. The State PLD 1982 FSC 42 rel.

Haji Muhammad Zahir Shah for Petitioner.

Rasool Khan Khattak for Respondents.

Date of hearing: 29th August, 1995.

 AMJAD HUSSAIN VS SHAGUFTA
Re-edited
P L D 1996 Peshawar 64
Before Mian Muhammad Ajmal and Mian Shakirullah Jan, JJ
AMJAD HUSSAIN and another---Petitioners
versus
Mst. SHAGUFTA and 2 others---Respondents
Writ Petition No. 697 of 1994, decided on /01/.
th August, 1995.

JUDGMENT

MIAN SHAKIRULLAH JAN, J.--The controversy between the parties i.e. the husband (petitioner) and wife (responde4t), which is the subject-matter of the present litigation, is fixation and payment of the dower about which the petitioner is having the concurrent judgments and decisions against him of the two forums of the exclusive jurisdiction which have been questioned through the instant writ petition.

2. The admitted facts of the case are that (i) the existence of relationship of the parties as a husband and wife for the last about 16/17 years as the marriage has taken place in the year, 1978 and which (relationship as a husband and wife) still exists; (ii) the birth of the three children as a result of wedlock who are alive and residing with the wife; (iii) the contract of a second marriage by the petitioner after which the respondent began to reside with her parents with the only disputed fact as alleged by the petitioner that the second marriage was contracted with the consent of the respondent; and (iv) that the fixation of dower weighing 8 tolas of gold out of which according to the petitioner, 6 tolas were entrusted to the respondent while according to the respondent only 5 tolas were given to her. The main dispute between the parties is with regard to the fixation of dower of immovable property consisting of 1/2 share in the land measuring 6 Kanals 2 Marlas and 1/3 share in the house. The trial Court granted the decree of the dower claimed by the respondent i.e. with respect of the immovable property' consisting of 1/2 share in the land and 1/3 share in the house and 3 tolas golden ornaments with a further relief of preliminary decree to the extent of 1/3 share in the house. The appellate forum concurred with the findings and conclusions of the trial Court except with a modification that the Family Court has got no jurisdiction to grant a decree for possession through partition. It is these findings which have now been challenged by the petitioner through the instant Constitutional petition.

3. The respondent, in addition to the oral evidence, relied on the Nikahnama' Exh. PW 1/ 1 and the execution and contents of which were testified by the Nikah Registrar who appeared as P.W.1. The dower claimed by the respondent finds its incorporation in the relevant column of the Nikahnama. Though the petitioner denied the fixation of the dower in toto and also his thumb-impression on the Nikahnama but the two Courts below held otherwise i.e. found the Nikahnama to have been duly executed. Apart from the concurrent findings of the two forums of exclusive jurisdiction the petitioner could not advance any reason to dislodge the presumption attached to the document i.e. Nikahnama as being a public document and the execution of which was verified by the Nikah Registrar who is a public officer and even a certified copy may be produced in proof of its contents and in the absence of any rebuttal the same holds the ground. In this respect reliance can be placed on Mst. Zubaida Bibi and others v. Mst. Majidan and another 1994 SCMR 1978. This judgment after analysing and interpreting section 5 of the Muslim Family Laws Ordinance, 1961, the definition of the public officer as given in section 2 at Serial No. 17 of the Civil Procedure Code and also sections 74 and 77 of the Evidence Act the corresponding Articles of which are 85 and 88 of Qanun-e-Shahadat, 1984 it was held:--

"This duty and system of remuneration to the Nikah Registrar makes the Nikah Registrar a 'Public officer' and the Nikahnama a public document. Section 77 of the Evidence Act provides that 'such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies'."

4. In this view of the matter, both with regard to the factual and legal position the genuineness and execution of the Nikahnama is not questionable.

5. However, the learned counsel for the petitioner took another objection with regard to the transfer of immovable property through the Nikahnama which had not been registered under the Registration Act and relied on the judgment reported in Umar Bakhsh. v. Zamrut Jan and 9 others PLD 1973 Pesh. 63, but this objection was also untenable and the judgment referred to on behalf of the petitioner relates to a dower deed dated 1918 and not having the backing of any statutory law but in the instant case the Nikahnama is in the form prescribed under the Muslim Family Laws Ordinance, 1961 and the rules framed thereunder and which is registered with the Nikah Registrar in accordance with the rules prescribed therefore and having a different status than any other unregistered document through which some immovable property had purportedly been transferred and the legal status of such document was evident from the judgment of the Supreme Court referred to above to be a public document executed by a public officer and the certified copy of which was sufficient for the proof of its contents unless having some appropriate rebuttal. Even otherwise in the subsequent judgments of the High Courts and of the Supreme Court the dower deed by which the immovable property is purported to be transferred was not considered to be compulsorily registerable under the Registration Act: In a judgment reported in Mst. Allah Jawai. v. Allah Ditta PLD 1975 Lahore 1399 wherein it was held:--

"Ordinarily in a transfer of immovable property by a Muslim husband to his wife in lieu of dower, there are two distinct gifts, one by each party to the other. The husband transfers by gift the property while the wife makes the gifts of her right to recover dower--in other words she makes a gift of the dower debt. The transaction is essentially Hiba-bil -Ewaz.

As already considered such a transfer by a Muslim husband in favour of his wife in lieu of her dower being essentially a gift was not required to be effected through a registered instrument.

The document in the form of entry in the Nikahnama EXh.P/1 relating to the transfer was not compulsorily registerable."

6. This view was re-affirmed in another case reported in Inayat Ullah. v. Perveen Akhtar 1985 CLC 1454 where in it was held:------

"The objection raised by the appellant that Exh.P.1. being an unregistered document does not create any interest or right in the disputed house in favour of the respondent in view of provisions of section 49 of the Registration Act is not tenable in view of the fact that the disputed house was given by the appellant to the respondent in lieu of her dower and the transaction under the circumstances must be considered as one of the Hibba-bil-Ewaz. The provisions of sections 17 and 49 of the Registration Act are not attracted to the facts of the case and as held in Mst. Allah Jawai's case the transfer of property by the husband to his wife in lieu of her dower can be effected even without a registered instrument."

7. The judgment referred to above was upheld by the Hon'ble Supreme Court as reported in 1989 SCMR 1871. In another case reported in Anwar Khan and 16 other. v. Mst. Sahibzada and 3 others 1989 CLC 1327 the Hon'ble Judge while dealing with the case held that the dower deed was a document which not creating or extinguishing right in immovable property--Execution of such document thereto only acknowledged the factum of transfer of immovable property in favour of his wife in lieu of dower. The relevant part of which is reproduced for the sake of convenience:------

"As regards the plea of the non-registration of the deed in question, the careful perusal thereof would show that the same was not a document creating or extinguishing right in immovable property worth more than Rs.100 but the executant thereof only acknowledged the factum of transfer of immovable property in favour of his wives in lieu of dower having already taken place 3/4 years prior thereto. Under section 17 of the Registration Act only those instruments which create or extinguish rights in immovable property worth more than Rs.99 require compulsory registration. The instant document does not offend against the said provision of law inasmuch as it neither creates nor extinguishes rights but is an acknowledgment deed, whereby the executant simply admits an existing ownership in property through a valid transfer, having been completed much earlier than the time of execution. In this view of the matter, I am fortified by the judgment of the Peshawar High Court in case Mst. Zarin Qaisha v. Arbab Wali Muhammad Khan and 5 others reported as PLD 1976 Pesh. 128 and those of the Lahore High Court in case Fateh Muhammad v. Muhammad Shafi and another reported as PLD 1953 Lah. 251 and Khawaja and another v. Nur Alam and others PLD 1953 Lah. 277. The deed copy Exh.P.W.2/1, therefore, did not require registration and was rightly relied upon by the Courts below in arriving at their conclusions."

8. In another case reported in Fazal-ur-Rehman. v. Mst. Sown Jan and others 1989 SCMR 651, the Hon'ble Supreme Court answered the objection with regard to the non-registration or non-entry of the dower deed in the revenue record by holding that the column in the Nikahnama indicate that they refer to arrangement that had already been subscribed to by the parties and the record was prepared only to verify the events which had already happened. The relevant part of the judgment is reproduced as follows:--

"This distinction between the solemnization of the marriage and its being recorded and got registered has been recognized in the case of Arif Hussain and another v. The State PLD 1982 FSC 42. In the context of section 5 of the Ordinance it is clear that solemnization of marriage and maintaining a record of it are two different acts. Solemnization of the marriage precedes the completion of the formalities with regard to the preparation of record, of it and getting it registered. Even the columns contained in the Nikahnama clearly indicate that they refer to arrangement that has already been subscribed to by the parties. In such a situation it cannot be taken to be an instrument or document of transfer of property but it has to be taken merely as a record of it."

9. In this view of the matter this objection is also untenable.

10. Consequently, this writ petition is dismissed with no order as to costs.

A.A./1927/PPetition dismissed.

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Right of appeal from the interim order

The contention of the learned counsel for the appellant that where appeal lies only against the final order a Constitution petition challenging the interim orders can yet be maintained is erroneous. In the Lahore case PLD 1990 Lah. 352 relied upon by the learned counsel for the appellant itself where a final order was passed pending proceedings in the Constitutional jurisdiction it was held that jurisdiction stood barred final order having come in the field.

It was further held:- The statute excluding a right of appeal from the interim order cannot be passed by bringing under attack such interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders

1996 SCMR 1165

Used in Judgment of
Lahore High court
Case Law no.

2018 LHC 1173

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List of Dowry Articles

Qanoon-e-Shahadat section 17, suit for the recovery of dowry articles- non production of receipts for dowry article – effect – provision of the qanun-e-shahadat 1984 were not applicable in the proceedings before family court act 1964 – intent of the legislature was clearly to simplify the proceddure and the law makers were aware of the fact that in cases relating to dower the lists were seldom prepared and receipts were very rarely kept intact as everyone made arrangements for marriage of one's daughter with the hope and prayer that she would lead a happily married life.

2013 CLC 698 Lahore

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Recovery of dowry Articles

Section 17, Dowry and Bridal Gifts (Restriction) Act 1976

Section 2(b) 10, Dowry and Bridal Gift (Restriction) Rule 1976

Suit for Recovery of dowry articles- list of dowry articles produced in evidence by both parties in support of their respective claim – decree passed by Family Court on basis of such list produced by husband upheld by Appellant Court. Wife plea that rule of thumb would apply to proceedings before Family court and not provisions of Qanoon-e-Shahadat 1984 or its principles, thus receipts in respect of purchase of dowry articles produced by her were liable to be relied upon by courts below –

Validity – wife in her statement had admitted that such list was not prepared at time of her nikah, while her father had deposed otherwise – rule of thumb would not be solve a party from establishing his/her claim – party denying liability, on basis of such rule, could not be burdened to shoulder claim of opposite party without its proof- Dowry list produced by wife was not prepared in shape of Form D-1 as prescribed in Rule 4(1) of Dowry and Bridal Gift (Restriction ) Rules 1976, therefore same was not to be considered in support of her claim – receipts in respect of purchase of household articles on basis of rule of thumb would not quality and met essential requirement of proof of purchase of said articles by parents of wife and its giving to her before or after marriage – High Court dismissed constitutional Petition in circumstances

PLD 2013 Islamabad 11

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