2004 Y L R 482
Column No.19 of Nikahnama, relating to any restriction imposed on husband's right of divorce, with a view to safeguard interest of wife cannot be deemed as unlawful.
whether condition/restriction has been mentioned in Column No.18 instead of Column No. 19 of Nikahnama has, no significance.
Escaping the liability of damages as mentioned in Column No.l9 of Nikahnama.
Onus to prove---Right of divorce was exercised by husband.
Wife asserted that she was divorced without just and reasonable cause, therefore, she had claimed damages as were mentioned in Column No.18 of Nikahnama.
Family Court dismissed the suit but Appellate Court allowed the appeal and the suit was decreed in favour of the wife--Validity.
Right of divorce was exercised by the husband, it was therefore, in order to escape the liability of damages, husband was obliged to show reasonable and just cause for exercising that right.
Nothing was produced on record by husband to prove that he had divorced his wife on account of some just and reasonable cause.
Appellate Court had rightly held the husband liable under the condition contained in Column No. 18 of Nikahnama.
Revisional jurisdiction was directed against irregular exercise, non exercise or illegal assumption of jurisdiction and not against conclusion of fact or law, not involving question of jurisdiction.
Judgment passed by Appellate Court was reasonable, conclusions drawn were based on evidence and were supported by plausible reasoning and did not suffer from any jurisdictional infirmity.
High Court in exercise of revisional jurisdiction declined to interfere with the judgment passed by Appellate Court in favour of the wife.
Revision was dismissed in limine.
2004 Y L R 482
[Lahore]
Before Farrukh Latif, J
MUHAMMAD MASOOD ABBASI---Appellant
Versus
Mst. MAMONA ABBASI---Respondent
(a) Muslim Family Laws Ordinance (VIII of 1961)-----------
---Form 11, Columns 18 & 19---Form of Nikahnama ---Restriction imposed on husband's right of divorce ---Relevant column---Form of Nikahnama is prescribed under Muslim Family Laws Ordinance, 1961, and is therefore, indicative of the fact that the relevant law treats those columns as lawful.
Column No.19 of Nikahnama, relating to any restriction imposed on husband's right of. divorce, with a view to safeguard interest of wife cannot be deemed as unlawful---Whether condition/restriction has been mentioned in Column No.18 instead of Column No. 19 of Nikahnama has, no significance.
(b) Muslim Family Laws Ordinance (VIII of 1961)---
----S. 7 & Form II, Column 19---Divorce---. Restriction on ,the right .of husband to divorce wife---Import, object and scope---Such restriction is not provided under Muslim Family Laws Ordinance, 1961, or Rules framed thereunder but there is also no provision in the law or rules that such restriction is void---To preserve marriage contract and to safeguard interest of wife against its unjustified termination by husband, if any stipulation is made in Nikahnama whereby husband agrees to pay some damages in the event of divorcing wife without just cause, such stipulation is neither against Injunctions of Islam nor against public policy---Islam allows husband to divorce his wife without assigning any cause but it also approves preservation and protection of marriage and does not approve unjustified exercise of the right of divorce by husband as the same leads to innumerable social problems for the divorcee and the children who consequently have an adverse impact on the society as well---By imposing such condition, right, of divorce of husband is neither taken away nor is restricted; as husband can still divorce his wife in spite of the condition but in case he divorces her without any reasonable cause or justification he would be liable to pay the agreed amount as damages so that the destitute divorcee and children may make some arrangement for their food and shelter for the time being.
------Divorce---Assigning of any cause--Validity---Marriage under Islamic Law is a civil contract and husband has a right to divorce his wife whenever he desires without assigning any cause.
(d) Muslim Family Laws Ordinance (VIII of 1961)-----
----S. 7 & Form II, Columns 18, 19---Contract Act (IX of 1872), S.23--Restriction on the right of husband to divorce wife---Such restriction whether against public policy---Condition for payment of damages to wife in the event of divorcing her without any cause or justification is not against public policy--Such restriction is rather in conformity with the same as it discourages unjustified divorces which result in broken homes and endless social and economic problems for the divorcee, children and the society as well---Condition contained in Column No.18 of Nikahnama is not void under the provisions of S.23 of Contract Act, 1872, as the provisions of Contract Act, 1872, speak about the object and consideration of the agreement and not condition contained therein---Every agreement of which the object or consideration is unlawful is void under S.23 of Contract Act, 1872.
(e) Muslim Family Laws Ordinance (VIII of 1961)-----
----S. 5 & Form II, Column 18---Contract Act (IX of 1872), Ss.23, 26, 28 & 29--Contract of marriage (Nikah)---Registration of such contract---Restriction on the right of husband to divorce wife---Object and scope---Object of contract of marriage .(Nikah) is the procreation and legalizing of children which is lawful object--Agreements in restraint of marriage, legal proceedings or meaning whereof is not certain, are void under Ss.26, 28 & 29 of Contract Act, 1872---Provisions of Contract Act, 1872, relate to agreements and do not apply to a condition or stipulation which the agreements may. contain---Condition contained in Column No.18 of Nikahnama is not the object of marriage contract and is not void.
(f) Qanun-e-Shahadat (10 of 1984)---
----Art. 113---Admitted fact---Such facts are not required to be proved.
(g) Muslim Family Laws Ordinance (VIII of 1961)---
S. 7 & Form 11, Column 18---Divorce--Restriction on the right of husband to divorce wife.
Escaping the liability of damages as mentioned in Column No.l9'of Nikahnama.
Onus to prove---Right of divorce was exercised by husband.
Wife asserted that she was divorced without just and reasonable cause, therefore, she had claimed damages as were mentioned in Column No.18 of Nikahnama.
Family Court dismissed the suit but Appellate Court allowed the appeal and the suit was decreed in favour of the wife--Validity.
Right of divorce was exercised by the husband, it was therefore, in order to escape the liability of damages, husband was obliged to show reasonable and just cause for exercising that right.
Nothing was produced on record by husband to prove that he had divorced his wife on account of some just and reasonable cause.
Appellate Court had rightly held the husband liable under the condition contained in Column No. 18 of Nikahnama.
Revisional jurisdiction was directed against irregular exercise, non exercise or illegal assumption of jurisdiction and not against conclusion of fact or law, not involving question of jurisdiction.
Judgment passed by Appellate Court was reasonable, conclusions drawn were based on evidence and were supported by plausible reasoning and did not suffer from any jurisdictional infirmity.
High Court in exercise of revisional jurisdiction declined to interfere with the judgment passed by Appellate Court in favour of the wife.
Revision was dismissed in limine.
(h) Civil Procedure Code (V of 1908)-----
S. 115(1)(c)---Words 'illegally or with material irregularity'---Connotation--Words in S.115.(1) (c), C. P. C. have reference to material defects of procedure and not to errors of law or fact that the formalities having complied with prescribed by law.
(i) Civil Procedure Code (V of 1908)---
S.115--Revisional jurisdiction --Findings on question of fact or law recorded by Court of competent jurisdiction---Effect.
Such findings however erroneous. they may be cannot be interfered with by. High Court in exercise of its revisional jurisdiction, unless such findings are based on no evidence or they are perverse or fanciful.
Syed Muhammad Ali Gillani for Appellant.
ORDER
The respondent had filed a suit against the petitioner (her ex-husband) for recovery of Rs.1;00,000. Her case was that she was married to the petitioner on 15-4-1994, they lived together till September, 1995 when the petitioner turned her out of his, house while she .was pregnant; she came to her parents' house where their daughter was born. After the desertion, the petitioner not only neglected and failed to. maintain her and the minor but also he without any justification divorced her , and thereafter married one Tahira Yasmeen on 16-11-1997.
2. Nikahnama of the petitioner with the respondent (Exhibit P.1) contained a stipulation that if the husband divorces the wife without any justification or contracts another marriage he would be liable to pay a sum of Rs.1,00,000.
3. It was asserted that the petitioner had divorced her without any justification and had thereafter also contracted another marriage therefore, he is liable to pay the aforesaid amount.
4. The suit was opposed by the petitioner. After framing issues and recording evidence it was dismissed by the trial Court on 13-11-2001.
5. Respondent's appeal against that decree was accepted by the learned District Judge, Pakpattan Sharif on 23-4-2003 whereby judgment/decree 'of the trial Court was set' aside, resultantly, respondent's suit was decreed.
6. The aforesaid judgment of the Appellate Court is assailed in this civil revision by the petitioner on the following grounds:
Well reasoned judgment of the trial Court was reversed without assigning any cogent and plausible reason;
Appellate Court had misread and misinterpreted the Nikahnama inasmuch. as the factum of divorce alone was formed basis for accepting the respondent's claim without determining if the petitioner was liable to pay the damages; restriction on the husband's right to divorce is not provided under the Family Laws or the rules framed thereunder and is also against the Injunctions of Islam, against public policy and is. void, under the provisions of sections 23, 26, 28 and 29 of the Contract Act. For the Said' reason Nikahnama containing such condition/restriction was void; condition contained in Column No. 18 of Nikahnama was not proved in accordance with law;
Nikahnama was inadmissible in evidence because factum of Nikah was not proved by producing witnesses of Nikah; for availing benefit of the penal provision contained in Column No. 18 of .the Nikahnama, condition precedent viz. having been divorced without justification or reasonable cause, was to be proved by the respondent; no evidence in that regard was produced by the respondent hence she was not entitled to damages; and the learned Appellate Court had acted in the exercise of its jurisdiction illegally arid with material irregularity.
7. Learned counsel for the petitioner has been heard. Civil revision and the annexures appended therewith perused.
8. A perusal of the impugned, judgment shows that detailed reasons are given by the Appellate. Court in paras. Nos. 8 to 12 of its judgment for reversing the judgment of the trial Court. After judicial appreciation of the evidence and after applying conscious mind it was held that petitioner was liable to pay the amount in question to the respondent. Contentions of the petitioner's counsel that judgment of the trial Court was reversed without any plausible reasons, factum of divorce alone was made basis for accepting respondent's claim without determining liability of the petitioner and that ,condition contained in Column No,18 of the Nikahnama was not proved in accordance with law are therefore, repelled as the aforesaid aspects were adverted to and considered by the learned Appellate Court and were adjudicated upon after examining and appraising the evidence on record. Findings given by the Appellate Court are not only based on evidence but are also supported by sound -arid plausible reasoning.
9. Form of Nikahnama is prescribed under the Family Laws Ordinance and is therefore, indicative of the, fact that the relevant law treats those columns as lawful. Column Np.19 of Nikahnama, relating to any restriction imposed on the husband's right of divorce, with a view to safeguard the interest o f the wife, cannot be therefore deemed as unlawful. It is of two legal significance or consequence if the said condition/restriction was mentioned in Column No. 18 instead of Column No .19 of the Nikahnatna Exh.P.A.
10. It is true that restriction on I husband's right to divorce the wile is not provided under the Family Laws or rules framed thereunder but it is also true that there is no provision in the aforesaid laws or rules that such restriction is void.
11. Udder Islamic Law marriage is a civil contract and the husband has a right to divorce his wife whenever he desires without assigning any cause.
12. To preserve the marriage contract and to safeguard the interest of the wife against its unjustified termination by the husband, if any, stipulation is male in the Nikahnama whereby the husband agrees to pay some damages in the event of divorcing the wife without any just cause, such stipulation is neither against injunction of Islam nor against public policy. It is true that Islam allows husband to divorce his wife without assigning any cause but it is equally true that Islam also approves preservation and protection of marriage and does not approve unjustified exercise of this right by the husband which certainly leads to innumerable social problems for the divorcee and the children which consequently has an adverse impact on the society as well. By imposition of such condition, right of divorce of the husband is neither taken away nor is restricted in the sense that he can still divorce the wife in spite of the condition but in case he divorces her without any reasonable cause or justification he would be liable to pay the agreed amount as damages so that the destitute divorcee and children may make some arrangement for their food and shelter for the time being.
13. Condition for payment of damages to the wife in the event of divorcing her without any cause or justification is not against public policy but is rather in conformity with the same as it discourages unjustified divorces which result in broken homes and endless social and economic problems for the divorcee, children and the society as well.
14. Contention of petitioner's counsel that under the provisions of section 23 or the Contract Act, the contract of marriage (Nikahnama) is void in view of the condition contained in its Column No. 18, is misconceived inasmuch, as the aforesaid section speaks about the object anti consideration of the agreement and not conditions contained therein. It provides that every agreement of which the object or consideration is unlawful is void.
15. The object of a contract of marriage (Nikah) is the procreation or legalizing of children which is lawful object. Condition contained in Column No. 18 of Nikahnama is not the object of marriage contract.
16. According to sections 26, 28 and 29 respectively, agreement in restraint of marriage, legal proceedings or meaning whereof is not certain, are void.
17. The aforesaid sections also relate to agreements and do not apply to a condition or stipulation which the said agreements may contain. It has already been held hereinbefore that condition contained in Column No. 18 of the marriage contract is not void.
18. By the stipulation in the contract of marriage, , the petitioner was neither restrained from contracting another marriage (which was admittedly contracted by him after divorcing the respondent) nor any embargo was placed on him in connection with any legal proceeding. The condition was also not uncertain. Hence contention of petitioner's counsel that under provisions of sections 23, 26, 28 and 29 of the Contract Act, the contract of marriage was void, is repelled as being misconceived.
19. Argument of petitioner's counsel that Nikahnama Exh.P.A. was inadmissible. in evidence because factum of Nikah was not proved by producing Witnesses of Nikah, is repelled outright as in his written statement the petitioner had admitted para. No. 1 of the plaint as correct. In the said paragraph respondent (plaintiff) had alleged that she was married to the petitioner on 15-12-1994 and after marriage she lived with the petitioner and had been performing her marital obligations. Admitted facts were not required to be proved.
20. Right of divorce was exercised by the petitioner, it was therefore, for him to show reasonable and just cause for exercising that right, in order to escape the liability of damages. Nothing was produce on record by the petitioner to prove that he' had divorced the respondent on account of some just and reasonable cause. He was therefore, rightly held liable under the condition contained in Column No. 18 of the Nikahnama.
21. The words "illegally or with material irregularity" used in section 115. C.P.C., have reference to material defects of procedure and not to errors of law or fact after the formalities which the law prescribes have been complied with.
22. Learned counsel for the petitioner could not draw my attention to the breach of any provision of law or commission of any error of procedure by the learned Appellate Court.
23. Revisional jurisdiction is directed against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusions of fact or law, no, involving question of jurisdiction.
24. Findings on questions of fact or law recorded by Court of competent jurisdiction, however erroneous they may be cannot be interfered with by High Court in the exercise of its revisional jurisdiction. unless such findings are based on no evidence or they are perverse or fanciful.
25. A perusal of the impugned judgment shows that it is entirely reasonable, conclusions drawn are based on evidence, are supported by plausible reasoning and the judgment does not suffer from any jurisdictional infirmity. It is therefore, not open to interference in revisional jurisdiction.
26. Resultantly finding no merit in this Civil Revision, it is accordingly dismissed in limine.
M.H./M-2084/L Revision dismissed.
