Case Law ( Claim of amount in case of divorce mentioned colum of nikahnama is not maintainable)

 Claim of amount in case of divorce mentioned colum of nikahnama is not maintainable

2015 CLC 138

نکاح کے کالم نمبر 19 میں لکھی جانے والی شرائط غیر اسلامی ہیں

نکاح کے کالم نمبر میں شرائط لکھی جاتی ہیں کہ اگر شوہر طلاق دے گا یا دوسری شادی کرے گا تو پہلی بیوی کو جرمانہ یا ہرجانہ ادا کے گا تاہم اس بار اعلی عدلیہ کے بیشتر فیصلہ جات موجود ہیں جس میں کہا گیا ہے کہ ایسی شرائط غیر اسلامی ہیں اور ناقابل عملداری ہیں.ملاہذا ہو

Condition of compensation mentioned in column no 19 of nikahnama in case of divorce by husband is declared againt the injunctions of islam as no embargo can be made on the right given by the islam husband to divorce his wife.PLD 2011 SC 260, 2008 SCMR 186, 2012 CLC lah 837, PLD 2007 lah 515.

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

----Ss. 7 & 9---Constitution of Pakistan, Art.199---Constitutional petition---Notice of divorce---Certificate for payment of maintenance by the husband to the wife---Condition of payment of compensation for divorce by husband imposed by the Arbitration Council---Legality---Petitioner-husband divorced respondent-wife and sent a notice to the Chairman Arbitration Council but did not join proceedings of reconciliation before the Arbitration Council---Claim of the wife for past maintenance, medical charges, maintenance for the period of Iddat and compensation for divorce was accepted by the Arbitration Council---Husband filed revision petition before the Deputy District Officer (Revenue)/Collector which was dismissed---Validity---No restriction existed on the powers of the Arbitration Council to issue certificate for past maintenance, however, such restriction was imposed on the powers of the Magistrate under S.488, Cr.P.C.---Expenditures borne on delivery of the child were to be paid by the husband as he was bound to maintain the wife adequately, which included the medical charges---Award of compensation due to divorce pronounced was not within the jurisdiction of the Arbitration Council---Condition that in case of pronouncement of divorce, the petitioner-husband would pay compensation was stringent, harsh and against the public policy---Husband and wife were supposed to live within the limits of God and they must pay respect to each other and must lead a harmonious life and if same became impossible then they might separate from each other in a respectful way---Said condition might force husband and wife to live with hatred, ill-will and grouse nourished in their hearts against each other, which finally led to many social complications---Impugned order to the extent of compensation was not sustainable in the eyes of law---Factual controversy could not be resolved in exercise of Constitutional jurisdiction by High Court---Constitutional petition was partly accepted.

Muhammad Nawaz, v. Mst. Khurshid Begum and 3 others PLD 1972 SC 302 rel.

Malik Sajjad Haider Awan for Petitioner.

Respondent No.1 in Person.

AMJAD HUSSAIN VS Mst. JAMILA YASMEEN

2015 C L C 138

[Lahore]

Before Rauf Ahmad Sheikh, J

AMJAD HUSSAIN----Petitioner

Versus

Mst. JAMILA YASMEEN and 2 others----Respondents

Writ Petition No.36 of 2010, decided on 13/03/2013.

ORDER

RAUF AHMAD SHEIKH, J.--- The petitioner has assailed the vires of order dated 8-10-2009 passed by the DOR/Collector, Rawalpindi, whereby a revision petition filed by him against the order of the Arbitration Council Jarmote Kalan, Tehsil Gujar Khan, District Rawalpindi, was dismissed.

2.The facts in brief as emerge on perusal of the record are that the petitioner divorced Mst. Jamila Yasmeen respondent No.1 and sent a notice to the Chairman Arbitration Council for further proceedings under section 7 of the Muslim Family Laws Ordinance, 1961. The petitioner did not join the proceedings before the arbitration council so finally after expiry of the prescribed period, it was declared that the reconciliation could not be effected and the divorce was effective. The claim of the respondent No.1 for the past maintenance from 5-1-2005 to 29-6-2007 @ Rs.1500, medical charges amounting to Rs.20,000, maintenance for the period of Iddat amounting to Rs.10,000 and compensation for divorce amounting to Rs.50,000 was accepted and the petitioner was directed to pay the same. He filed a revision petition before the DDO(R)/Collector, District Rawalpindi, which was dismissed.

3.The learned counsel for the parties appeared before me at 10:30 a.m. and made a request for adjournment on the ground that they were required to appear before the learned Additional Sessions Judge, Gujar Khan. They were told that they should inform the learned Additional Sessions Judge about the fixation of this writ petition and to wait for them and that the file would be taken up after hearing of the cases in the DB. The father of the respondent No.1 has informed that his counsel left the court with the request that an adjournment may be granted. In view of the above facts, the request is turned down.

4.The learned counsel for the petitioner has contended that the Arbitration Council could have not awarded the past maintenance or the medical charges borne by the respondent No.1 at the time of delivery of the child; that a sum of Rs.50,000 as compensation for divorce is against the public policy and that the wife is only entitled to dower; that the rate of maintenance for the period of Iddat is excessive; that no notice was served upon him by the Arbitration Council and as such the petitioner is not under obligation to pay the money under the impugned orders, which are not sustainable under the law.In support of the contentions raised reliance is placed on 2008 SCMR 186 and 2003 YLR 2445 (Lahore).

5.The contention that no notice was served is against the record because the copies of the notices show that the petitioner refused to accept the service. The notices were sent through registered cover envelopes also and the postal receipts were available on the record. In these circumstances, the contention that the notices were not served cannot be accepted. The other contention that the Arbitration Council could have not awarded the past maintenance and was competent to award maintenance for the future or Iddat only is also devoid of force. Section 9 of the Muslim Family Laws Ordinance, 1961 only provides that if the husband fails to maintain the wife adequately the Arbitration Council may issue a certificate specifying the amount, which shall be paid as maintenance by the husband. It is obvious from the text of the above provisions that there is no restriction on the powers of the Arbitration Council to issue certificate for the past maintenance. This restriction of course was imposed on the powers of the Magistrate under section 488, Cr.P.C. In this respect reliance is placed on Muhammad Nawaz v. Mst. Khurshid Begum and 3 others (PLD 1972 SC 302). The expenditures borne on delivery of the child are to be paid by the husband as he is bound to maintain the wife adequately, which of course includes the medical charges etc. The contention that the rate of maintenance is excessive cannot be accepted as the factual controversy cannot be resolved in exercise of the constitutional jurisdiction. However, award of compensation in the sum of Rs.50,000 due to divorce pronounced was not within the jurisdiction of the Arbitration Council. Even otherwise, the condition that in case of pronouncement of divorce, the petitioner would pay a sum of Rs.50,000 is very stringent, harsh and against the public policy. The husband and wife are supposed to live within the limits of God. They must pay respect to each other and must lead a harmonious life and if the same becomes impossible then they may separate from each other in a respectful way. Such condition may force them to live with hatred, ill-will and grouse nourished in their hearts against each other, which finally lead to many social complications. The impugned orders to this extent are without jurisdiction so are not sustainable in the eyes of law. For the reasons supra, the petition is partly accepted. The impugned orders are declared to be without jurisdiction and void to the extent of payment of Rs.50,000 as compensation for divorce. However, the petitioner remains under obligation to pay the remaining amount of Rs.75,000.

AG/A-66/LOrder accordingly.

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Case Law and Judgment (ناچاقی پر خرچے کی شرط جو کہ نکاح نامے ,Husband filed suit for restitution of conjugal rights whereas wife filed suit for recovery of maintenance allowance and for implementation of conditions imposed in Nikahnama-)

نکاح نامے میں شرط درج تھی کہ ناچاقی کیا صورت میں ماہانہ 50000 ہزار خرچ دے گا۔ شوہر کا زن آشوئی کا دعوی ڈگری ہو گیا۔ عدالت عالیہ لاہور نے قرار دیا کہ زن آشوئی کی ڈگری کی موجودگی میں ناچاقی پر خرچے کی شرط جو کہ نکاح نامے میں مندرج تھی۔ وہ اطلاق نہیں پاتی۔

PLD 2014 LAHORE 154

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

----S. 5, Sched---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and jewellery---Conditions of Nikahnama---Scope---Husband filed suit for restitution of conjugal rights whereas wife filed suit for recovery of maintenance allowance and for implementation of conditions imposed in Nikahnama---Trial Court decreed suit of wife which was maintained by the Appellate Court with certain modifications---Validity---Plaintiff-wife could not prove that she had any other gold ornaments except 7-tolas gold bangles which allegedly were already taken by husband with the promise that he would purchase gold ornaments of equal weight for her---Plea of wife that 10-tolas gold ornaments were the same which were given to her on the eve of marriage vide clause 17 of Nikahnama and was to be retained by her but same were not purchased by him as promised---Maintenance fixed and conditions for payment of amount under clause 20 of Nikahnama were to be made applicable only on the desertion of plaintiff-wife---Condition for payment of amount on desertion did not become operative in presence for decree of restitution of conjugal rights---Clause 17 of Nikahnama imposing condition did not come within the ambit of actionable claim---Constitutional petition, in circumstances, was partly allowed to the extent of imposition of clause 17 and claim under clause 20 of Nikahnama and was dismissed to the extent of maintenance.

Sakina Bibi v. Muhammad Latif and others 2003 YLR 1006 rel.

Arshad Ali v. Additional District Judge Vehari and others 2002 CLC 1450 and Muhammad Akram v. Mst. Hajra Bibi and 2 others PLD 2007 Lah. 515 distinguished

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

----S. 5,Sched.---TransferofPropertyAct (IV of 1882), 130---Transfer of actionable claim---Scope---Clause 17 of Nikahnama imposing condition did not come within the ambit of "actionable claim".

Sakina Bibi v. Muhammad Latif and others 2003 YLR 1006 rel.

Raja Saghir-ur-Rehman for Petitioner.

S. Mansoor Hussain Bukhari for Respondents Nos. 3 and 4.

Date of hearing: 24th May, 2013.

 

MUHAMMAD SHIRAZ VS ADDITIONAL DISTRICT JUDGE, GUJJAR KHAN

P L D 2014 Lahore 154

Before Ali Baqar Najafi, J

MUHAMMAD SHIRAZ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GUJJAR KHAN and others---Respondents

Writ Petition No.4734 of 2010, decided on 24/05/2013.

JUDGMENT

ALI BAQAR NAJAFI, J.---Through this constitutional petition, the petitioner seeks setting aside of the judgment and decree passed by the learned Additional District Judge, Gujjar Khan, whereby respondent No.3 was granted past maintenance allowance at the rate of Rs.2000/- per month and 10-Tolas of gold ornaments on the basis of clause (17) of Nikahnama.

2.The brief facts giving rise to filing of the present petition are that the petitioner filed a suit for restitution of conjugal rights against respondent No. 3 who, in turn, also filed a suit for recovery of maintenance allowance and for implementation of clauses-17 and 20 of the Nikahnama, besides the maintenance of respondent No. 4. Both the suits were consolidated and issues were framed out of the divergent pleadings of the parties. The documentary as well as oral evidence was led by both the parties, where after the learned Judge Family Court passed the judgment and decree dated 30-1-2010, whereby respondent No.3 was granted past maintenance allowance at the rate of Rs.2000/- per month from October, 2009 till decision of the suit whereas respondent No.4 was granted maintenance allowance at the rate of Rs.2000/- per month with 10% annually increase from December, 2009 till she married or custody is shifted. However, the suit for restitution of conjugal rights was also decreed in favour of the petitioner subject to the condition that petitioner would pay past maintenance for the purpose of marital obligations in' future. However, the gold ornaments and Rs.50,000/- were not granted to the said respondent. Respondent No, 3 and petitioner challenged the said judgment and decree to the extent of gold ornaments and recovery of Rs.50,000/- which was granted by the learned Additional District Judge, Gujjar Khan. Hence, this writ petition.

3.The learned counsel for the petitioner submits that the grant of past and future maintenance to respondent No.3 is against law and facts; that respondent No.3 is leading a deserted life of her own and without any justification and, therefore, is not entitled to any maintenance, especially in the presence of decree for restitution of conjugal rights; that respondent No. 3 herself admitted in the plaint that on the next day of marriage 7-tolas as of gold ornaments in the form of bangles were taken back by the petitioner and thereafter there is no evidence of snatching away the other gold ornaments; that the learned Additional District Judge passed his judgment on surmises and conjectures and has also committed illegality; that the judgment of the learned Additional District Judge is arbitrary, capricious and in variation of the judgment and decree passed by the learned Judge Family Court; that an exaggerated quantum of maintenance was granted by the appellate court and prays for setting aside of the said judgment. Places reliance upon the cases of Sakina Bibi v. Muhammad Latif, etc. 2003 YLR 1006, Arshad Ali v. Additional District Judge,Vehari and others [2002 CLC 1450], Muhammad Akram v. Mst. Hajra Bibi and 2 others [PLD 20 7 Lahore 515] and Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others [PLD 2011 SC 260].

4.Conversely, the learned counsel for the respondents submits that the petitioner has admitted in paragraph No. 3 of the written statement that although respondent No.3 brought 10-Tolas of gold ornaments but had taken it back at the time when she accompanied her father; that in paragraph No. 5 of the plaint of the suit for restitution of conjugal rights, the petitioner admitted that on 7-10-2009, respondent No.3 went to her parents by taking the said gold ornaments, leaving ten months old daughter, which is not appealing to reason; that respondent No.3 had to file a habeas corpus petition to get the minor suckling baby; that in her statement, respondent No. 3 categorically stated that the said gold ornaments were snatched by the petitioner; that conduct of the petitioner ledrespondentNo.3tofileasuitformaintenanceandrecoveryof 10-Tolas of gold ornaments and prays for dismissal of this writ petition.

5.I have heard the learned counsel for the parties and perused the available record.

6.In paragraph No. 6 of the plaint of the suit for recovery of maintenance and for implementation of clause-17 of the Nikahnama, respondent No. 3 has admitted that on the next date of the marriage, the petitioner has a1ready taken 7-Tolas of gold bangles with a promise that he would purchase gold articles of equal weight for respondent No. 3 in future but he could not do so. In the written statement to the suit for restitution of conjugal rights respondent No. 3 in paragraph No. 4 stated that she was beaten and expelled by the petitioner on 5-10-2009 without the gold ornaments. She could not prove either through her pleadings or in her statement that apart from the said bangles, she had any other gold ornaments. On the other hand, her plea that vide clause-17 of the Nikahnama she was to retain 10-Tolas of gold ornaments were the same which, according to her, were given to her on the eve of marriage by the petitioner and were taken on the following morning. Admittedly, they were not purchased by the respondent. Meaning thereby that they were not in her use since the wedding night. Under clause-20 of the Nikahnama, the maintenance at the rate of Rs.2000/- per month and Rs.50,000/- were the conditions imposed which were made applicable only on the desertion by respondent No.3. Any such condition does not come within the category of item No. 9 of the schedule under section 5 of the Muslim Family Courts Act, 1964. Moreover this condition was also required to be mentioned on a document before writing under the clause (20).

7.Admittedly, the stand of the petitioner is that he is willing to take the respondent back and will abide by all reasonable conditions imposed by respondent No. 3 were not reciprocated by her. In the presence of decree for restitution of conjugal rights, the condition of payment of Rs.50,000/- on desertion does not become operative. Moreover, clause (17) of the Nikahnama imposing such condition does not come within the ambit of section 130 of Transfer of Property Act as actionable claim. Reliance is placed upon the case of Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz PLD 2011 SC 260.

7A.As far as payment of maintenance to the wife is concerned, suffice it to say that as long as wife carries the name of husband, she is entitled to at least some acknowledgement in the form of maintenance by the husband. After all, in this case, respondent No. 3 is bringing up respondent No. 4, the minor who is his daughter. I, therefore, respectfully disagree with the judgments of Single Judge of this Court reported as Sakina Bibi v. Muhammad Latif etc. 2003 YLR 1006, Arshad Ali v. Additional District Judge, Vehari and others 2002 CLC 1450.

8.For the foregoing reasons, this writ petition is partly allowed to theextentofimpositionofconditionofclause-17 and claim under clause (20) of the Nikahnama and dismissed to the extent of maintenance granted to respondent No.3 for carrying the marriage bond intact, since the decree for restitution of conjugal rights has already become final.

AG/M-222/LPetition partly allowed.

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Case Law and Judgment (S. 5‑‑Nikahnama‑‑Entries relating to alienation of property)

(a) Muslim Family Laws Ordinance (VIII of 1961)‑

‑‑‑S. 5‑‑Nikahnama‑‑Entries relating to alienation of property‑‑Evidentiary value of‑‑Such Nikahnama, entries wherein mentioned alienation of property in lieu of dower, did not make it an instrument or document of transfer of property but it was to be taken merely as a record of it‑‑Columns contained in Nikahnama clearly indicated that they referred to arrangement that had already been subscribed to, by the parties‑‑Such record is prepared only to verify those events which had already happened‑‑Contemporaneous preparation of a record of events before the controversy had arisen, would be good evidence for proving the state of facts in controversy‑‑Document of Nikahnama coupled with the evidence of the person who solemnized such Nikah and witnessed all the recitals contained therein, would be sufficient in the ordinary course, to prove factum of alienation of property in lieu of dower, unless there was strong rebuttal of it.

Jesa Ram and others v. Ghulaman and another A I R 1936 Lah.816: Muhammad Din and another v. Mst. Sardar Bibi and others A I R 1927 Lah. 666 and Arif Hussain and Azra Parveen v. The State P L D 1982 F S C 42 ref.

(b) Transfer of Property Act (IV of 1882)‑‑

‑‑‑S. 41‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Leave to appeal was granted to examine whether Nikahnama was admissible as an instrument of transfer of property and even if it was so admissible, whether appellant was not entitled to protection under S.41 of Transfer of Property Act being its bona fide purchaser for valuable consideration from an ostensible owner.

(c) Civil Procedure Code (V of 1908)‑‑

‑‑‑O.VIII, R.2‑‑Failure to raise plea at lower forum‑‑Effect‑‑Appellant's plea that Nikahnama produced before Trial Court and admitted in evidence, was not correct copy of contents of Nikahnama, had been raised for the first time before Supreme Court‑‑Failure of appellant to raise such plea at an earlier stage and his submission to its being brought on record without objection, would not entitle him to attack genuineness of that document.

(d) Muslim Family Laws Ordinance (VIII of 19141)‑‑

‑‑‑S. 5‑‑Transfer of Property Act (IV of 1882), S.41‑‑Bona fide purchaser for valuable consideration from an ostensible owner‑‑Entitlement to protection under S.41, Transfer of Property Act, when not to be available‑‑Alienation of a part of disputed land in favour of contesting respondent in lieu of dower having taken place earlier fromthe same Khata by the same owner, sale transaction in appellant's favour was subjected to a claim for a declaration that she was owner to the extent of land having been alienated in her favour in lieu of dower, and being a co‑sharer had a superior right of pre‑emption over the rest of land‑‑In denyingto appellant protection under S.41, Transfer of Property Act, Courts below had rightly taken note of the fact that two transactions were very recent having taken place within a period of two years and that failure of appellant to take note of entries of Nikahnama which being a public document copy thereof was available to him to ascertain factum of alienation in favour of contesting respondent, would disentitle him to claim protection under S.41, Transfer of Property Act, 1882 because being a transferee he was bound to make enquiry as to extent of entitlement of transferor to transfer same to him.

Muhammad Shah Badshah, Advocate Supreme Court and Shakir Ullah Jan, Advocate‑on‑Record for Appellant.

S. Safdar Hussain, Advocate‑on‑Record for Respondent No.1.

Imtiaz Muhammad Khan, Advocate‑on‑Record (absent) for Respondent No.1

Date of hearing: 29thNovember, 1988.

 FORBES FORBES CAMPBELL & CO. LTD., KARACHI VS HABIBUR REHMAN

1989SCMR651

Present: Shafiur Rahman, Usman Ali Shah and Naimuddin, JJ

FAZAL‑UR‑REHMAN‑‑Appellant

versus

Mst. SOSAN JAN and others‑‑Respondents

Civil Appeal No.15‑P of 1979, decided on 29/11/1988.

(From the Judgment of Peshawar High Court, Circuit Bench, Abbottabad, dated 22‑5‑1979 passed in Civil Revision No.197 of 1975).

JUDGEMENT

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the 1` ,‑defendant‑vendee in a pre‑emption suit to examine whether the Nikahnama was admissible as an instrument of transfer of property and even if it was so A admissible, whether the appellant was not entitled to protection under section 41 of the Transfer of Property Act being its bona fide purchaser for valuable consideration from an ostensible owner.

Muhammad Zaman defendant‑respondent No.2 was admittedly the owner of 16 kanals 12 marlas of land in Mansehra. On the occasion of the Nikah of contesting pre‑emptor respondent No.1 Mst. Sosan Jan with his son, he alienated five kanals out of it in lieu of her dower which was fixed at Rs.1,000. This happened on 22‑9‑1969. On 28‑9‑1971 he sold this land measuring 16 kanals 12 marlas m favour of the appellant. This sale was subjected to a clam by Mst. Sosan Jan for a declaration that she was owner to the extent of 5 kanals out of it and being the co‑sharer had a superior right of pre‑emption over the rival pre emptors and the vendee. The suit was contested and as many as 12 issues were framed, but the two important issues on which contest has taken place upto this Court are Issues No.6 and 7 which are reproduced hereunder:‑‑

"6.Whether the rights of defendant No.1 Fazalur Rehman are protected under section 41 of the T.P. Act, as he is bona fide purchaser for valuable consideration?

7.Whether the Nikahnama regarding the five kanals of land transferred in lieu of dower is not admissible in evidence if so, what is its effect?"

On the question of admissibility of the Nikahnama the trial Court held as under:‑

"There is no evidence on the file to show that the Nikahnama is not admissible in evidence. This issue also fails for want of proof and is decided against the defendants."

The District Judge as the first appellate authority affirmed this finding as hereunder:‑

"Ex.P.W.2/1 is the Nikahnama on which she based her claim in regard to dower and transfer of 5 kanals of land in lieu thereof. A perusal of it shows that her Nikah was read with Muhammad Suleman on 22‑9‑1969. but he was not present and on his behalf his father Muhammad Zaman had consented to the marriage. Rs.1,000 were fixed as dower and in lieu thereof he gave 5 kanals out of 16 kanals 12 marlas of. land bearing khasra No.4635."

The High Court too affirmed this finding by holding as follows:‑‑

"Herein past agreement as to gift is clearly reflected by Nikahnama. Consequently no registration was necessary.".

As regards the protection under section 41 of the Transfer of Property Act, the same was denied to the appellant by all the three courts which dealt with the matter. The High Court denied the protection on the following reasoning:‑

"It can be summarily disposed of. Inquiry has to be made by a person diligently to find out title to the property. Mere visit to Registration Office or questioning of Patwari willnot attract provisions of section 41 The vendee in good faith has to prove that all possible avenues were explored to confirm title of the vendor.If he had done so in the present case he would have known that son of the plaintiff was married recent and that certain Nikahnama would have been scribed. He should have made an effort to find out what was given in dower. Want of thorough inquiry into this aspect clearly denies, hinj help of section 41 of the Transfer of Property Act,"

Mr. Muhammad Shah Badshah, Advocate, tile learned counsel for the appellant contended before us that the Nikahnama itself did not contain any such entry with regard to the transfer of land as was shown in the copy produced by the respondent. Even if it did according to the learned counsel for the appellant.as the transfer of the property had taken place fry that instrument itself its registration was compulsory and in the absence of it the document could not be admitted in evidence nor could the title to the property claimed or derived there under. Similarly, it was contended that the appellant was entitled to protection because, neither the Registration Office nor the Revenue record reflected the transaction in question. He relied an the decisions in Jesa Ram and others v. Ghulaman and another (A I R 1936 Lah. 816) and Muhammad Din and another v. Mt. Sardar Bibi and others (R I R 1927 Lah. 666)

Mr. S. Sardar Hussain, Advocate, the learned counsel for the respondent defended the concurrent finding of all the three Courts and submitted that all the questions raised by the appellant stand answered.

The question of law and indeed of general public importance is whether a Nikahnama prepared under section 5 of the Muslim Family Laws Ordinance. 1961 (hereinafter referred to as the Ordinance) is compulsorily register able where it mentions the alienation of property in lien ofdower. As pointed out, the Courts have taken the view that the entries in the Nikahnama do not make it an instrument of transfer of property but that it is record of solemnization of marriage which has to be prepared and kept in a particular manner and on a prescribed form. This view appears to be correct because the very opening words of section 5 of the Ordinance distinguish the fact of solemnization of marriage and its registration in proper form andby appropriate authority. Section 5 of the Ordinance reads as hereunder:‑

"5.Registration of marriages.‑‑(1) Every marriage solemnized under Muslim Law shall he registered in accordance with the provisions of this Ordinance.

(2)For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licenses to one or more persons, to be called Nikah Registrars, but in no case shall more than one Nikah Registrar be licensed for any one Ward.

(3)Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance be reported to him by the person who has solemnized such marriage.

(4)Whoever contravenes the provisions of subsection (3) shall be punishable with simple imprisonment for a term which may extend to three months or with fine which may extend to one thousand rupees, or with both.

(5)The form of Nikahnama, the registers to be maintained by Nikah Registrars,the records to be preserved by Union Councils, the manner in which marriages shall be registered and copies of Nikahnama shall be supplied to the parties, and the fees to be charged thereof, shall be such as may be prescribed.

(6)Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the record preserved under subsection (5) or obtain a copy of any entry therein."

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 Azra Parveen v. The State (P L D 1982,F.S.C.42). In the context of section 5 of ordinance is clear that solemnization 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 teen subscribed to by the parties. The record is prepared only to verify the events which have already happened. 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.

The other contention was that as independent of the Nikahnama none of the witnesses has appeared to depose about the alienation, it should be taken as not proved. The contemporaneous preparation of a record of events before the controversy has arisen is good evidence for proving the state of facts in controversy. From that point of view, the Nikahnama would be a valuable piece of evidence. Besides, the person who solemnized the marriage appeared as a witness of marriage and of all the recitals contained in the Nikahnama. This evidence would be sufficient in the ordinary course, unless there be strong rebuttal of it, to prove the transaction.

The suggestion of the learned counsel for the appellant "that the Nikahnama produced before the trial Court and admitted in evidence is not correct copy of the contents of the Nikahnama has been advanced before us for the first time and never earlier in writing or orally when the witness was being examined. In view of not having raised any such question at any earlier stage and to have submitted to it being brought on record without objection, the learned counsel cannot now attack its genuineness.

In denying to the appellant protection under section 41 of the Transfer of Property Act, the Courts have taken note of the fact that the two transactions were very recent, taken place within a matter of two years. In such a background and the normal prevailing practice that on the occasion of marriage some land is transferred in favour of the bride, the enquiry cannot be said to be complete without examination of Nikahnama. Not only was the Nikahnama required to be registeredbut a copy of Nikkahnama could be maintained even by the appellant as it was a public document. In the circumstances, the view taken by the High Court that the enquiry cannotbe considered as sufficient on the part of the appellant where he failed to verify from Nikah Registrar's office appears to be correct. This fact that there was another document to be looked into and also that the transaction was a recent one, distinguishes the two cases of the Lahore High Court referred to by the learned counsel for the appellant for claiming protection.

We find that there is no merit in any of the grounds taken up by the learned counsel. The appeal is dismissed with no order as to costs.

AA./F‑89/SAppeal dismissed.

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Case Law and Judgment (Two "Nikahnamas " were registered, Wife filed suit for jactitation of marriage )

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

----S. 5---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Constitution of Pakistan (1973), Art.199---Constitutional petition-- Marriage---Proof---Contradictions in statements---Evidence which could be produced but not produced ---Effect-- Jactitation of marriage---Onus to prove that respondent was married with the petitioner before marriage of the petitioner with respondent/other man was on the respondent---Contradictory statements of the witnesses were not sufficient to prove genuineness of the `Nikah' claimed by respondent with the petitioner ---Thumb impression on the "Nikahnama" was not got compared with the admitted thumb impression---Nikahnama was registered with delay of one month---Both the Courts below had failed to appreciate the contradictions and other material aspects appearing in the case---Constitutional petition was accepted; judgments and decrees of the Courts below were set aside---Suit of the respondent/husband was dismissed---Suit filed by the petitioner for jactitation of marriage with the respondent was decreed in the circumstances.

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

----Ss. 5 & 23---Muslim Family Laws Ordi nance (VIII of 1961), S.5---Suit for jactita tion of marriage by wife---Registration of marriage---Two "Nikahnamas " were registered. Wife filed suit for jactitation of marriage shown under one "Nikahnama " Challenge was thrown to a Nikahnama which was owned by the man and woman who claimed to be husband and wife ---Pre sumption of truth is attached to Nikahnama acknowledged by both spouses.

PLD 1999 Lah. 494 quoted.

Syed Muhammad Ali Gillani for Petitioner.

Ch. Sarfraz Ahmad Zia for Respondent No.3.

 RAZIA BIBI VS ADDITIONAL DISTRICT JUDGE, BUREWALA

2005 Y L R 156

[Lahore]

Before Ijaz Ahmad Chaudhry, J

RAZIA BIBI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BUREWALA and 2 others---Respondents

Writ Petition No.5339 of 2000, decided on /01/.

th June, 2004.

ORDER

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the judgments and decrees dated 17-4-2000 and 22-5-2000 passed by learned Judge Family Court, Burewala District Vehari and learned Additional District Judge, Burewala District Vehari respectively.

2. The brief facts leading to the filing of this writ petition are that the petitioner was marred with Nausher Ali and Nikah was duly registered on 30-4-1997. After marriage the petitioner started living with Nausher Ali as his wife. According to the petitioner she was abducted by respondent No.3 Muhammad Razzaq and he wrongly claimed that she was his wife. When Nausher Ali her husband came to know about illegal detention of the petitioner, he filed an application under section 100, Cr.P.C. whereupon warrant was issued and she was produced in the Court of learned Magistrate on 17-7-1997. There she made statement in favour of Nausher Ali to the effect that she was married with said Nausher Ali on 30-4-1997. However, she was sent to Darul Aman. Then the petitioner filed W.P. No.6096 of 1997 for her release and vide order dated 18-8-1997, the writ petition was dismissed by this Court with direction to the parties for determination of genuineness of Nikah by the Civil Court. Then respondent No.3 filed a suit for jactitation of marriage duly performed between the petitioner and Nausher Ali. The petitioner also filed a suit for jactitation of marriage against respondent No.3 Muhammad Razzaq. Both the suits were consolidated vide order dated 27-1-1998 and the controversial pleadings of the parties necessitated the framing of the following issues:--

(1)Whether the plaintiff Abdul Razzaq has no cause of action? OPD

(2)Whether Mst. Razia Bibi and Nausher Ali defendants are entitled to special costs? OPD

(3)Whether Razia Bibi has no cause of action and locus standi to file the suit?

(4)Whether Razia Bibi is estopped by her words and conduct to institute the suit?

(5)Whether the suit of Razia Bibi is liable to be dismissed in view of P.O. No.4?

(6)Whether Mst. Razia Bibi duly wedded wife of Muhammad Razzaq and Nikahnama between her and Nausher Ali is result of fraud etc.?

(7)Whether Razia Bibi is duly wedded wife of the Nausher Ali and Nikahnama dated 2-4-1997 in favour of Muhammad Razzaq is based on fraud etc.?

(8)Relief.

3. Muhammad Razzaq respondent No.3 in support of his claim appeared as P.W.3 and produced Ghulam Hussain Nikah Khawan (P.W.1), Anwar-ul-Haq Nikah Registrar (P.W.2), Nazir Ahmad (P.W.4) and closed the evidence by placing on record Nikahnama as Exh.P.1 and other documents.

4. The petitioner appeared as D.W.4 and produced Sufi Muhammad Ramzan Nikah Registrar (D.W.1), Muhammad Yaqoob (D.W.2), Muhammad Abbas (D.W.3), Nausher Ali (D.W.5), Khalid Nawaz, Junior Clerk (D.W.6), Barkat Ali Mian (D.W.7) and closed her evidence.

5. Learned Judge Family Court after hearing the arguments of both the learned counsel for the parties decreed the suit of respondent No.3 and dismissed the suit filed by the petitioner vide judgment and decree dated 17-4-2000 and against the same an appeal filed by the petitioner was also dismissed by the learned Additional District Judge, Burewala on 22-5-2000. Hence, this writ petition.

6. Learned counsel for the petitioner contends that onus was on respondent No.3 to prove his Nikah with the petitioner before 30-4-1997, but he failed to discharge his liability by producing sufficient evidence. It is next contended that Nikah with Nausher was registered on 30-4-1997 while the alleged Nikah of the, petitioner with Muhammad Razzaq was claimed to be registered on 4-5-1997. Further contends that there were contradictions in the statements of P.Ws.I, 2 and 3 regarding registration of Nikah as P.W.1 Ghulam Hussain who is residing at Karachi stated that when the Nikah was performed, Nikah Registrar Anwarul Haq was not present, but on the other hand P.W.2 claimed that Nikah was performed on 4-5-1997 and it was also registered on the same day in the presence of the Nikah Khawan. Respondent No.3 stated that Nikah Registrar was present at the time of performance of Nikah while P.W.1 Ghulam Hussain stated that Nikah was not registered on the said day and the Nikah Registrar was not present on the said day. According to the learned counsel this contradiction in the statement of the witnesses alone was sufficient to hold that respondent No.3 had failed to prove that Nikah was performed with the petitioner and his suit was wrongly decreed by the learned Courts below. Relies upon PLD 1999 Lah. 494, that if a Nikah is verified by a woman, presumption of truth is attached to such Nikah. It is further contended that it was wrongly claimed by respondent No.3 that Nikah was performed on 3-4-1997 as it was not registered in the office of Nikah Registrar till 5-4-1997 and the evidence produced by respondent No.3 was not sufficient to substantiate his claim.

7. Learned counsel for respondent No.3 on the other hand contended that consistent stand was taken by respondent No.3 that Nikah was performed on 2-4-1997 and it was registered on 4-5-1997 which fact has been proved through the statement of the witnesses. It is further contended that real maternal aunt of the petitioner was married with Nausher, which fact was supported by P.W.4 and he was not cross-examined on this point, hence, it became admitted fact and petitioner also could not contract Nikah with Nausher due to this reason. It is next contended that Nikahnama Exh.P.1 itself shows its date of registration as 4-5-1997 while the Nikah was performed on 2-4-1997. Further contended that P.W.2 has admitted that at the time of performance of Nikah, Nikah Register was not in his possession. Learned counsel contends that both the Courts have passed well reasoned judgments, which are maintainable.

8. I have heard the arguments of learned counsel for the parties and also perused both the impugned judgments and decrees as well as the evidence on the record. Respondent No.3 filed suit for jactitation of marriage and onus to prove that he was married with the petitioner before marriage of the petitioner with A Nausher Ali was upon respondent No.3 and in order to prove that his Nikah was performed with the petitioner on 2-4-1997, he produced Ghulam Hussain (P.W.1), according to whom he performed the Nikah but during cross-examination he claimed to be working at Karachi while running a Hikmat shop, but again stated that he was labourer there and he came from Karachi only on the asking of Muhammad Razzaq respondent No.3 but the Court had not summoned him. According to him at the time of Nikah other persons including Lumberdar were present and columns of Nikahnama were not filled by him but these were filled by the Nikah Registrar. He also stated that at the time of performance of Nikah, the Registrar was not available. He gave definite date of performance of Nikah but failed to give the date of last Eid-ul-Fitr and other important events. He also showed ignorance as to when Anwar-ul-Haq, Nikah Registrar had come back.

9. On the other hand, P. W .2 Anwar ul-Haq stated that Nikahnama Exh.P.1 was written in his hand writing and his signatures were affixed on the Nikahnama. According to him he had obtained their thumb-impressions and signatures before the witnesses and it was entered on 4-5-1997. He stated that he had made statement to the police that Nikah was performed by Ghulam Hussain before him and he entered the same. However, he (P.W.2) admitted that when Nikah was performed register of Nikahnama was not in his possession as it was deposited with the Union Council. It was also admitted by him that after one month of the performance of Nikah it was entered into the register. He failed to reply whether in between 2-4-1997 to 4-5-1997 he had entered any other Nikah in the Nikah Register.

10. Muhammad Razzaq respondent No.3 while appearing as P.W.3 claimed that Anwar-ul-Haq was present at the time of performance of Nikah and he filled the columns of the Nikahnama while P.W.4 who is uncle of respondent No.3 stated that Ghulam Hussain (P.W.1) had performed the Nikah and he was present at the time of performance of Nikah. According to P.W.1 thumb-impressions of the petitioner were obtained on it. Nikah Khawan Ghulam Hussain, P.W.1 himself denied presence of Nikah Registrar at the time of Nikah and entering of the contents of the columns of Nikahnama at that time. On the other hand, other witnesses claimed that entries were made on the same day and the thumb impressions and the signatures were also obtained from them.

11. The contradictory statements of the witnesses were not sufficient to prove the genuineness of the Nikah claimed by respondent No.3 with the petitioner. It is also worth mentioning that though there were alleged thumb-impressions of the petitioner on the said Nikahnama but no effort was made by respondent No.3 for comparison thereof with the admitted thumb-impressions of the petitioner Even otherwise, the performance of the Nikah of the petitioner with respondent No.3 was doubtful as admittedly, Nikah of Nausher Ali with the petitioner was held and registered on 30-4-1997 whereas alleged Nikahnama of respondent No.3 with the petitioner-was got registered with the delay of more than one month in the registration of Nikahnama which casts serious doubt about genuineness of the same. Both the Courts below have failed to appreciate the contradictions in the statements of the witnesses and other material aspects, which were sufficient to negate the version of the petitioner.

12. On the other hand, petitioner claims that she is legally wedded wife of Nausher Ali and their Nikah was duly entered on 30-4-1997 before registration of her alleged Nikah with respondent No.3. Moreover, the petitioner consistently claimed that she was legally wedded wife of Nausher Ali and in this respect when she appeared before the Judicial Magistrate on the application moved by Nausher Ali under section 100, Cr.P.C. she claimed her to be legally wedded wife of Nausher Ali and intended to go with him. She is consistently making such statements since 1997 that she was married with Nausher All and this Court in PLD 1999 Lah. 494, has held that where consent to a marriage is in dispute and a challenge is thrown to a Nikahnama which is being owned by a man and a woman who claim to be husband D and a wife then presumption of truth attaches to Nikahnama which is being acknowledged by both spouses and not by intervener.

12-A. As far as contention of learned counsel for respondent No.3 that Nausher being husband of real maternal aunt of the petitioner could not contract marriage with the petitioner is concerned, I have noticed that no documentary evidence was produced on the record to substantiate this factum, whereas Nausher husband of the petitioner when appeared as P.W.5 categorically denied his marriage with Mst. Kaneez, aunt of the petitioner. Hence, no question arises that he could not contract Nikah with the petitioner due to her falling within the prohibited degree.

13. For the foregoing reasons the impugned judgments and decrees passed by both the learned Courts below are not sustainable in the eye of law as the same have been passed against the evidence on record and while ignoring the law laid down by the superior Courts of this country regarding the issue in hand. Hence, this writ petition is accepted, the impugned judgments and decrees passed by the learned trial Court are set aside, the suit filed by respondent No.3 for jactitation of marriage is dismissed and that of filed by petitioner against the respondent No.3 is decreed. No order as to costs.

M.I./R-87/LPetition accepted.

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Case Law and judgment (Column No. 17 of Nikahnama, Suit for recovery of maintenance allowance and dower by wife.....)

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Suit for recovery of maintenance allowance and dower by wife---Quantum of maintenance allowance---Scope---Entry in Nikahnama---Presumption of truth---Scope---Stipulation in Column No. 17 of Nikahnama; undertaking by husband to give residential house to the wife---Effect---Deferred dower---Scope---Petitioner/wife contended that Appellate Court had wrongly awarded her maintenance allowance lesser than the amount already incorporated in Column No.20 of the Nikahnama---Wife also claimed 5-marlas house as per stipulation in Column No. 17 of Nikahnama ---Husband contended that Appellate Court had rightly set aside decree in favour of wife regarding the house as only civil suit could be filed regarding such stipulation in the Nikahnama---Validity---Record revealed that both the parties with their consent, even prior to the accrual of dispute regarding quantum of maintenance, had settled maintenance allowance @ Rs. 5000/- per month---Courts below had not, while fixing maintenance allowance for the wife, taken into consideration said vital condition---Husband was bound by self-imposed condition---Neither any valid reason had been pleaded nor existed to depart from such condition---Observation of the Appellate Court regarding stipulation of house in the Nikahnama, was not in consonance with law as per entries against Column No. 17 of exhibited Nikahnama, husband had agreed to give 5-marla residential house to the wife and under the law, presumption of truth was attached to the entries of Nikahnama---Wife was entitled to recover said house from the husband as dower/gift, however, admittedly, the marriage between the parties still existed whereas said stipulation of Nikahnama was to be treated as deferred dower so the wife would be entitled to recover said house on dissolution of marriage either in case of death or divorce by the respondent/husband---High Court modified the impugned decrees and judgments and wife was held entitled to recover maintenance allowance @ Rs.5,000/- per month with 10% annual increase and she would also be entitled to recover 5-marla residential house as deferred dower in case of dissolution of marriage, on death or divorce---Constitutional petition was allowed accordingly. [Paras. 8, 10 & 11 of the judgment]

Mst. Shamim Akhtar v. Additional District Judge, Sialkot and another 1991 CLC 1142; Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613; Mst. Nabeela Shaheen and others v. Zia Wazeer Bhatti and others PLD 2015 Lah. 88; Liaqat Khan v. Bakht Bibi 2018 CLC 708 and Muhammad Aslam v. Mst. Suraya PLD 2000 Lah. 355 ref.

Shahida Parveen v. Nijabat Ali and 2 others 2009 MLD 671 distinguished.

Malik Muhammad Aslam Channar for Petitioner.

Mrs. Nusrat Jabeen for Respondent No.1.

 Mst. SHEHNAZ MAI VS GHULAM ABBAS

2018 C L C Note 104

[Lahore (Bahawalpur Bench)]

Before Mujahid Mustaqeem Ahmad, J

Mst. SHEHNAZ MAI---Petitioner

Versus

GHULAM ABBAS and 2 others---Respondents

W.P. No. 363 of 2013/BWP, decided on 06/04/2018.

ORDER

MUJAHID MUSTAQEEM AHMAD, J.---This constitutional petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question legality and propriety of the judgment and decree dated 13.12.2012 passed by learned Additional District Judge, Hasilpur, District Bahawalpur and judgment and decree dated 19.12.2011 (to the extent of awarding lesser maintenance) of the learned Judge Family Court, Hasilpur, District Bahawalpur.

2.Background of the family litigation culminating into present writ petition necessary for just and fair decision of it, is that the petitioner and Ghulam Abbas, respondent were married on 09.07.2009 vide Nikahnama (Exh.PA) against Haq-ul-Mehr Rs.1200/- and 05-marlas house specified against Colum No.17 of Nikahnama. There appeared some differences between the spouses and in May-2010, petitioner filed a family suit for composite relief i.e. past maintenance for six months as well as future maintenance @ Rs.5000/- per month, suit for recovery of dowry articles as per list (Mark-A) or in alternate its price Rs.2,46,732/- and recovery of dower i.e. house.

3.The respondent contested the suit maintaining that the petitioner was leading deserted life on her own. The dowry articles were not given to the petitioner as per list (Mark-A) rather the same, as mentioned in list Mark-B, were in his possession which he was ready to return even on special oath. He further pleaded that neither he was owner of the house nor he agreed to give it to the petitioner in her Haq-ul-Mehr.

4.To resolve the controversy between the parties, learned trial Court framed the following issues:--

i.Whether the plaintiff is entitled to recover the maintenance allowance to the tune of Rs.5000/- per month, previously for the last 06 months and also in future as prayed for from the defendant? OPP.

ii.Whether the plaintiff is entitled to recover the dowry articles according to list Mark-A or value Rs.246732/-? OPP.

iii.Whether the plaintiff is entitled to restore the house mentioned in column No.17 of the Nikahnama from the defendant? OPP.

iv.Whether the plaintiff is Ghayr abad without any cause and justification and is not performing the marital obligations, hence, she is not entitled to recover the maintenance allowance? OPD.

v.Relief.

In order to prove her case, present petitioner appeared as PW.1 and also produced Noor Muhammad PW.2 to substantiate her claim whereas the respondent entered the witness box as DW.1 and produced Ijaz Hussain Shah as DW.2 in support of his version. After recording evidence of the parties, suit of the petitioner was decreed vide judgment and decree dated 19.12.2011 by learned Judge Family Court in the following terms:--

"Suit of the plaintiff is partially decreed to the extent that plaintiff is entitled to receive maintenance at the rate of Rs.1500/- per month from the institution of the suit till legal limitations with annual increase of 10 percent after every year and she is also entitled to recover her dowry articles as per list Mark-A or its price Rs.2,00,000/- (two lac) as, alternate one and plaintiff is also entitled to restore 5 Marla house agreed upon in column No.17 of the Nikahnama."

5.Both the parties dis-satisfied with the impugned judgment and decree assailed the same before the learned Additional District Judge, Hasilpur, District Bahawalpur, who vide judgment and decree dated 13.12.2012 partly allowed the appeal of the respondent and petitioner was held entitled to recover dowry articles as per list Mark-A excluding items mentioned at Serial Nos.15 and 16 (gold ornaments) or in alternate price of dowry articles mentioned in the list and it was further held that petitioner was not entitled to recover 5-marlas house in family suit, however, she was allowed to file suit for recovery of house before the competent forum. To the extent of remaining claims, appeals of both the parties were dismissed.

6.The petitioner still not feeling satisfied with the aforementioned judgments of the learned Courts below has approached this Court with instant constitutional petition mainly on the grounds that the same are against facts and law and as such petitioner has prayed for increase of her maintenance allowance @ Rs.5000/- as per term No.20 of Nikahnama and decree of her claim for recovery of house and dowry articles Rs.2,46,732/-.

7.Arguments heard. Record perused.

8.So far as claim of the petitioner for recovery of maintenance allowance is concerned, both the learned Courts below have found her entitled for maintenance. Respondent has also not challenged the said claim of the petitioner. However, petitioner has only challenged the quantum of maintenance allowance awarded by the Courts below. According to the petitioner's version, as per Stipulation No.20 of Nikahnama Ex.PA, respondent has agreed to pay her Rs.5000/- per month as maintenance allowance in case of desertion. This condition has not been disputed by the respondent. Both the parties with their consent even prior to accruing dispute regarding quantum of maintenance have settled maintenance allowance @ Rs.5000/- per month but while fixing maintenance allowance for the petitioner, learned Courts below have not taken into consideration this vital condition. The respondent is bound by said self-imposed condition. Neither any valid reason has been pleaded nor existed to depart from such special condition/stipulation. In case "Mst. Shamim Akhtar v. Additional District Judge, Sialkot and another" (1991 CLC 1142), maintenance allowance was awarded on the basis of such stipulation. As such findings of the Courts below on the issue of maintenance allowance only to the extent of quantum of maintenance are not based on proper appreciation of evidence on record and thus, petitioner is entitled to recover maintenance allowance from the respondent @ Rs.5000/- per month with increase formula from the date specified by learned Judge Family Court.

9.Both the learned Courts below have believed the evidence of petitioner in respect of her claim for recovery of dowry articles. However, learned Additional District Judge, Hasilpur, District Bahawalpur, vide impugned judgment has excluded gold ornaments mentioned at Serial Nos. 15 and 16 of the list (Mark-A) from the decree observing that these ornaments were in the custody of present petitioner and she has failed to produce any evidence that these (ornaments) were snatched by respondent when she left his house. Learned Additional District Judge has assigned cogent and valid reasons for excluding these ornaments from the list of dowry articles and learned counsel for the petitioner has failed to substantiate his plea that findings of learned Additional District Judge on this issue are based on misreading or non-reading of evidence. The superior Courts have taken consistent view that womenfolk, as per custom and usage, always keep gold ornaments with them and are not ready to depart from them. Thus, to my view the conclusion drawn by learned Additional District Judge in this regard is based on fair and proper appreciation of evidence on record whereas the learned Judge Family Court has misread the evidence on this issue. As such, findings of learned Additional District Judge on issue of recovery of dowry articles based on proper appreciation of evidence do not warrant any modification or alteration by this Court.

10.The petitioner has claimed 5-marlas house as per stipulation in Column No.17 of Nikahnama (Exh.PA) and learned Judge Family Court on the basis of the same, has decreed the claim of present petitioner whereas in appeal, learned Additional District Judge has concluded that in view of case "Shahida Parveen v. Nijabat Ali and 2 others" (2009 MLD 671), only civil suit can be filed regarding such stipulation but this observation of learned Additional District Judge is not in consonance with law. In case "Yasmeen Bibi v. Muhammad Ghazanfar Khan and others" (PLD 2016 Supreme Court 613), it was held as under:-

"Undertaking given in the "Nikah Nama" that certain property/land shall be transferred in the name of the wife and she would be exclusive owner of the same. Such an undertaking could be construed as a part of dower or a gift to wife in consideration of marriage, therefore, it would fall within the exclusive domain of the Family Court to pass a decree in relation to such property/land."

No doubt, respondent has tried to wriggle out from bonds of such undertaking by claiming that neither he agreed to give the house nor he was owner of any such house and as such, petitioner was entitled to recover 05-marlas house from him but this contention of respondent is devoid of any legal force. As per entries against Column No.17 of Nikahnama (Ex.PA), respondent has agreed to give 05-marlas residential house and under the law, presumption of truth is attached to the entries of Nikahnama. Reliance is placed on the case of Mst. Nabeela Shaheen and others v. Zia Wazeer Bhatti and others (PLD 2015 Lahore 88), Liaqat Khan v. Bakht Bibi (2018 CLC 708) and Muhammad Aslam v. Mst. Suraya (PLD 2000 Lahore 355). As such, petitioner is entitled to recover this house from the respondent as dower/gift. However, it is admitted fact that still marital tie exists inter se the parties whereas said stipulation of Nikahnama in view of case Sadia Usman v. Muhammad Usman Iqbal Jadoon (PLD 2009 Supreme Court 1458) is to be treated as "deferred" dower, so the petitioner would be entitled to recover this house on dissolution of marriage either in case of death or divorce by respondent.

11.As sequel to the above discussion, instant writ petition is partly allowed, while modifying the judgments and decrees assailed herein, the petitioner is held entitled to recover maintenance allowance @ Rs.5,000/- per month with 10% formula of annual increase for the period specified in the impugned judgments. Petitioner would be also entitled to recovery of residential house measuring 05-marlas as deferred dower in case of dissolution of marriage, on death or divorce, as the case may be. Consequently, the suit of the petitioner for maintenance and recovery of dower also stands decreed in the above terms.

12.The writ petition to the extent of remaining prayers stands dismissed.

MQ/S-32/L Order accordingly.

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