--S. 2(v)(vi)(ix)(c)--Constitution of Pakistan, 1973 Arts. 2-A & 199--Suit for dissolution of marriage--Impotency of petitioner--Application for Medical Examination of petitioner during pendency of suit-

 PLJ 2022 Peshawar 113

Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)--

----S. 2(v)(vi)(ix)(c)--Constitution of Pakistan, 1973 Arts. 2-A & 199--Suit for dissolution of marriage--Impotency of petitioner--Application for Medical Examination of petitioner during pendency of suit--Allowed--Determination of impotency of petitioner--Direction to--Denial of allegations of impotency--Second marriage of petitioner--Mode, manner and methodology adopted by Judge Family Court for determination of issue in hand is neither legal nor lawful nor justified, especially when such a controversy has already been pleaded by parties, issue in this respect has been framed and when they are yet to produce their respective evidence in support of their respective stance--Petitioner has contracted a second marriage with Mst. Aziza Bibi and who have gave birth to a baby boy and thus if impugned direction of appearance before Medical Board is allowed to sustain, then it will cause to cast a doubt over legitimacy of new born baby--Procedure adopted by Judge Family Court for determination of impotency of petitioner is declared as alien to law on subject, we hold that petitioner has not been treated in accordance with law--He has been compelled to do which law does not require him to do and petitioner has been deprived of protection of law of land--Petition allowed.

                                                                      [Pp. 119 & 120] A, B & C

Malak Ahmad Jan, Advocate for Petitioner.

Mr. Tariq Aziz, Advocate for Respondent No. 1.

M/s. Barrister Dr. Adnan Khan and Abdul Nasir, Advocates as amicus curiae.

Dates of hearing: 1 & 9.3.2022.

 PLJ 2022 Peshawar 113
[Mingora Bench, Sawat)]
Present: Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ.
UMAR KHITAB--Petitioner
versus
Mst. SANA SHAH and another--Respondents
W.P. No. 932-M of 2021 With Interim Relief (N), decided on 9.3.2022.

Judgment

Muhammad Ijaz Khan, J.--Through the instant petition, the petitioner has challenged the order of Respondent No. 2 i.e. Judge Family Court-I, Swat dated 28.09.2021, whereby petitioner was directed to appear before Medical Board for his medical examination so as to ascertain the factum or otherwise of his impotency.

2. Precisely the facts of the case are that Respondent No. 1 namely Mst. Sana Shah had filed a suit for dissolution of her marriage on the ground of impotency of the petitioner, non-payment of maintenance as well as cruelty. She has also prayed for payment of maintenance as well as for the return of dowry articles as per list attached with the plaint.

3. Petitioner, then defendant, was summoned who submitted his written statement, whereby all the allegations leveled against him by the plaintiff/Respondent No. 1 were denied, specially with respect to his impotency as he has annexed his medical report from a famous laboratory and he has also stated that in-fact it was Respondent No. 1/plaintiff who is not ready to perform marital obligation and failure of all jirga, he has contracted second marriage and are living a happy life. The controversies between the parties were reduced into as many as seven issues, including the issue of dissolution of marriage on the basis of non-fulfillment of marital obligations.

4. At the stage of recording evidence of the plaintiff/ Respondent No. 1, it was on 29.05.2021, when Respondent No. 1/ plaintiff namely Mst. Sana Shah submitted an application for sending the present petitioner for medical examination regarding the impotency or otherwise before the trial of the suit, which application was strongly resisted by the present petitioner by submitting a detailed reply, however, the learned Judge Family Court vide impugned order dated 28.09.2021 allowed the aforesaid application with the following observations:

“Thus, in the light of the above, application is allowed and the defendant Umar Khitab is directed to appear before the Medical Board for his medical examination. Moreover, the Medical Superintendent D.H.Q. Hospital Saidu Sharif shall be addressed through a separate letter to constitute a Medical Board for the purpose of determining that whether respondent/defendant Umar Khitab is able to perform sexual intercourse/fulfill his conjugal rights or not. The report shall be submitted on or before date fixed. The medical/ examination expenses shall be borne by plaintiff.”

The petitioner has challenged the aforesaid order before this Court through the instant petition.

5. We have heard arguments of learned counsel for the parties as well as learned amicus curiae in detail and perused the record with their able and valuable assistance.

6. In this case, the questions before this Court for determination are that;

i.        As to how and in what manner the impotency of an husband is to be ascertained and determined when such allegations are leveled against him by his wife?

ii.       As to whether the mode and manner adopted by the learned Judge Family Court by directing the petitioner to appear before the Medical Board for his medical examination so to as ascertain his impotency or potency as the case may be, is legally correct as per the law of the land? And

iii.      As to whether the petitioner has been treated/dealt with in accordance with the law of the land?

7. As far as the first and second questions are concerned, to answer these question, Section 2 clauses (v), (ix) and proviso (c) of clause (ix) of The Dissolution of Muslim Marriages Act, 1939 are relevant, which are reproduced hereunder:-

“2. Grounds for decree for dissolution of marriage.--A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:-

(i)                                                                                            

(ii)                                                                                           

(iii)                                                                                          

(iv)                                                                                          

(v)      That the husband was impotent at the time of the marriage and continues to be so;

 (vi)                                                                                         

(vii)                                                                                         

 (viii)                                                                                       

(ix)     on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law:

          Provided that--

(a)----------------------------------------------------------------------------------

(b)----------------------------------------------------------------------------------

(c)      Before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.”

The aforesaid provision makes it unmistakably clear that for passing a decree on the ground of impotency of an husband, the Court is not required to send the husband to appear before a Medical Board for its report but what is required from a Judge Family Court is that it has to pass an order requiring the husband to satisfy it within a period of one year from the date of such order to the effect that the husband has ceased to be impotent and if the husband satisfies the Court, then no decree shall be passed on the said ground.

8.  It would also be relevant for the purpose of the present controversy to quote some extracts from مجموعہ قوانین اسلام authored by Dr. Tanzeel-ur-Rehman:

"تفریق بسبب نامردی:

"122۔ (i) جس عورت کا نکاح شرع اسلام کے بمو جب منعقد ہوا ہو بدیں بناء عدالت سے تنسیخ نکاح کا حکم حاصل کر سکتی ہے کہ اس کا شوہر بوقت نکاح نامرد تھا نیز یہ کہ اس کی وہ حالت برقرار ہے۔

(ii) شوہر کی درخواست پر عدالت پر لازم ہو گا کہ بر بناء نامر دی تنسیخ نکاح کا حکم جاری کرنے سے قبل شوہر کو ایک سال کی مہلت دے تا کہ شوہر اس ایک سال کی مدت میں عدالت کو مطمئن کر سکے کہ وہ نامرد نہیں رہا ۔ اگر شوہر اس مدت میں عدالت کو مطمئن کر سکا تو عدالت نامردی کی بناء پر تنسیخ نکاح کا حکم دینے کی مجاز نہ ہو گی ۔

تشریح

 نامر د کی تعریف:

 فقہی اصطلاح میں نامرد ( عنین ) اس شخص کو کہتے ہیں جو عضو تناسل رکھنے کے باوجود عورت سے جماع کرنے پر قادر نہ ہو ، خواہ یہ حالت پیدائشی ہو یا کسی مرض کے سبب پیدا ہوئی ہو یا کمزوری یا بڑھاپے یا کسی اور وجہ سے پیدا ہوئی ہو ۔ اگر کوئی ایسا شخص جو بعض عورتوں سے جماع کرنے پر قادر ہے مگر بعض عورتوں سے جماع کرنے پر قادر نہیں تو وہ شخص ان بعض عورتوں کے حق میں جن سے جماع کرنے پر قادر نہیں ہے نامرد سمجھا جاۓ گا یا جس مرد کو عورت کی مخالطت سے قبل ہی انزال ہوجا تا ہو ، نامرد سمجھا جائے گا ۔

 ایسے مرد کی زوجہ کو جو اس سے جماع کرنے پر قادر نہ ہوا ہو شرع نے بذریعہ عدالت طلب تفریق کا اختیار دیا ہے اور یہ اختیار زوجہ کے مطالبہ کی تاخیر سے خواہ کتنا عرصہ گزر جائے باطل نہیں ہوتا ۔

جب زوجہ اپنا معاملہ عدالت کے روبرو پیش کرے تو قاضی کے لئے لازم ہے کہ وہ شوہر سے حقیقت حال معلوم کرے ۔ اگر شوہر اس بات کا اقرار کرے کہ وہ اس عورت سے جماع کرنے پر قادر نہیں ہواتو حاکم عدالت علاج کرنے کے لئے اسکو ایک سال کی مہلت دے گا ۔ لیکن اگر شوہر عورت سے جماع کرنے کا ادعا کرے اور عورت کنواری ہونے کی مدعی نہ ہو تو شوہر سے حلف لیا جاۓ گا اگر اس نے قسم کھالی کہ اس نے اس عورت سے جماع کیا ہے تو عدالت زوجہ کی درخواست مسترد کر دے گی لیکن اگر شوہر حلف لینے سے انکاری ہو تو عدالت اس کو علاج کرنے کے لئے ایک سال کی مہلت دے گی ۔ لیکن اگر عورت اس بات کی مدعی کی ہے کہ وہ کنواری ہے تو عدالت اس عورت کے طبی معائنہ کا حکم دے گی اگر طبی معائنہ کی رو سے عورت کا باکرہ ہونا ثابت نہ ہو تو شوہر سے حلف لیا جائے گا اگر اس نے قسم کھائی کہ اس نے اپنی ز وجہ سے جماع کیا ہے تو عدالت تفریق کا حکم جاری نہ کرے گی لیکن اگر شوہر حلف لینے سے انکار کرے تو عدالت ایک سال کی مہلت دے گی ۔ لیکن اگر طبی معائنہ سے یہ ثابت ہو کہ عورت اس وقت تک کنواری ہے تو عدالت شوہر سے حلف لئے بغیر اس کو علاج کی غرض سے ایک سال کی مہلت دے گی ۔ اسی طرح اگر عورت اپنے ثیبہ ہونے ( کنوارے پن کے ازالہ ) کے متعلق یہ کہے کہ شوہر نے اسکا ازالہ انگلی سے یا کسی دوسرے طریقے سے کیا ہے وطی سے نہیں اور شوہر وطی کرنے کا مدعی ہو تب بھی یہی حکم ہو گا ۔ حنیفہ کے نزدیک ڈاکٹری معائنہ کا نتیجہ کہ اسکی بکارت کس طرح زائل ہوئی معتبر ہو گا لیکن افضل یہ ہے کہ ڈاکٹر نیوں کی تعداد 2 ہو ۔

 ایک سال کی مدت حاکم عدالت کے مہلت دینے کی تاریخ سے شمار ہو گی اس سے پہلے خواہ کتنی ہی مدت گزر چکی ہو اس کا اعتبار نہ کیا جائے گا ۔

اگر ایک سال کی مدت میں شوہر کسی طرح علاج کر کے تندرست ہو گیا اور ایک مرتبہ بھی عورت سے جماع کرنے پر قادر ہو گیا تو عورت کا اس بناء پر فسخ نکاح کا حق باطل ہو جائے گا ۔

لیکن اگر اس ایک سال کی مدت میں شوہر ایک بار بھی عورت سے جماع پر قادر نہ ہو سکا تو عدالت عورت کی خواہش پر ، شوہر کو طلاق دینے کا حکم دے گی ۔ اگر شوہر طلاق دینے سے منکر ہو تو عدالت خود تفریق کر دے گی ۔ "

A comparison of the abovementioned extracts from مجموعہ قوانین اسلام and provisions of The Family Courts Act would show that Section 2 (v), (ix) and proviso (c) of clause (ix) of The Act of 1939 is in line and conformity of Sharia, therefore no deviation could be allowed to sustain in the form of the impugned order of the Judge Family Court.

9. In the case in hand, petitioner being an husband and who in his written statement has taken a specific plea that when the aforesaid allegations of impotency were made by the Respondent No. 1, then plaintiff, in presence of his father-in-law, thereafter her parents required the present petitioner to undergo necessary medical test which he has accordingly conducted from a laboratory and as per the report of the laboratory dated 04.06.2020, petitioner has been declared as a healthy and potent man. Therefore, the legal worth of the aforesaid report and plea of the petitioner of being a healthy and potent man was yet to be determined by the learned Judge Family Court after recording of pro & contra evidence, however in the middle of the way, the Judge Family Court by allowing the application of the Respondent No. 1/plaintiff has directed the present petitioner to appear before the Medical Board for ascertainment of the impotency or otherwise of the petitioner, and thus the mode, manner and methodology adopted by the Judge Family Court for the determination of the issue in hand is neither legal nor lawful nor justified, especially when such a controversy has already been pleaded by the parties, issue in this respect has been framed and when they are yet to produce their respective evidence in support of their respective stance, therefore we believe that the Judge Family Court has erred in law by allowing application of the Respondent No. 1, then plaintiff, and by restoring to a procedure, which is alien to law on the subject.

10. It is also a matter of record and as stated in Paras-v, vi & vii of the instant petition that petitioner has contracted a second marriage with one Mst. Aziza Bibi and who have gave birth to a baby boy and thus if the impugned direction of appearance before the Medical Board is allowed to sustain, then it will cause to cast a doubt over the legitimacy of the new born baby, so on this score too, petitioner would face an unending social humiliation and as such would amount to deprive him of an opportunity of social justice as guaranteed to him by the preamble and Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973.

11. To answer the Question No. 3, it may be noted that it is the inalienable right of every citizen to be treated in accordance with the law of the land, so it would be relevant to trace the aforesaid right of the petitioner being a citizen of Pakistan in the Constitution of Islamic Republic of Pakistan, 1973, the following provisions would be relevant:

“Preamble.--Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him in a sacred trust;

Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;

Wherein the Muslim shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;

Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;”

Under Article 2-A of The Constitution of lslamic Republic of Pakistan, 1973, the objective resolution has been declared as substantive part of The Constitution, where the following provisions are relevant for the fact in issue:-

“Wherein the principles of democracy, freedom, equality, tolerance and social justice as annunciated by Islam shall be fully observed;

Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah;

Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

Article 4. Right of individuals to be dealt with in accordance with law, etc.--(1) to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular--

(a)    No action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b)    No person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c)    No person shall be compelled to do that which the law does not require him to do.”

Article 25. Equality of citizens.--(1) All citizens are equal before law and are entitled to equal protection of law.”

12. So keeping in view the aforesaid mandate of the Constitution of Islamic Republic of Pakistan, 1973, the procedure adopted by the learned Judge Family Court for determination of the impotency of the petitioner-husband is declared as alien to law on the subject, we hold that petitioner has not been treated in accordance with law. We also hold that he has been compelled to do which the law does not require him to do and as such we further hold that petitioner has been deprived of the protection of law of the land.

13. In view of the aforesaid discussion, the instant writ petition is allowed, the impugned order of Respondent No. 2 i.e. Judge Family Court-I, Swat dated 28.09.2021 is set aside and consequently the learned Judge Family Court-I, Swat is directed to proceed in the case in accordance with law and as per the aforesaid mode and manner for determination of the impotency of the petitioner-husband, if any, essential for a just and fair decision between the parties.

(Y.A.)  Petition allowed

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فیملی اجرا میں مدیون کو حاضری یا مقدمہ فوجداری میں ملزم کو گرفتاری دینے پر مجبور کرنے کیلئے اسکا قومی شناختی کارڈ بلاک نہ کیا جا سکتا ھے

 P L D 2022 Lahore 756

National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 18---Constitution of Pakistan, Arts. 199 & 175---Power to cancel, impound or confiscate cards---Jurisdiction of Courts---Scope---Petitioner assails order passed by Executing Court whereby National Database and Registration Authority (NADRA) was directed to block his Computerized National Identity Card (CNIC)---Validity---Section 18(1) of the National Database and Registration Authority Ordinance, 2000 stipulates that all the cards issued by NADRA, including CNIC, shall be the property of the Federal Government and it may cancel, impound or confiscate it by an order after giving a show cause notice to the holder---Section 18(2) enumerates the circumstances in which it may take such an action---Provisions of S. 18 must be strictly construed and scrupulously followed as cancellation, impounding or confiscation of CNIC impacts the fundamental rights of a person---Executing Court had passed the impugned order without taking action under S. 18 into consideration---Section 18 does not allow blocking/digital impounding of the CNIC of a person to compel him to appear before the court---Constitutional petition was accepted, the impugned order was declared to be without legal authority and set aside.

National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 18---Constitution of Pakistan, Art. 175---Power to cancel, impound or confiscate cards---Jurisdiction of courts---Scope---Digital impounding/blocking of CNIC by courts cannot be permitted because it does not have the sanction of law---Such orders are contrary to Art. 175(2) of the Constitution and concept of rule of law.

National Database and Registration Authority Ordinance (VIII of 2000)---

----Ss. 18 & 19---Constitution of Pakistan, Arts. 9, 14 & 10-A---Power to cancel, impound or confiscate---Cards necessary for certain purposes---Security of person---Inviolability of dignity of man---Right to fair trial---Scope---Subsections (1) and (2) of S. 19 of the National Database and Registration Authority Ordinance, 2000, specify a few circumstances when the National Identity Card is compulsorily required---Such include grant of passport, permit or other travel documents for going out of Pakistan and identification of a voter at various elections---Section 19(3) empowers the Federal Government specify any other purpose for which the production of any card issued as aforesaid shall be necessary---However, the need for the CNIC has increased manifold during recent years---Now almost every government and private organization requires CNIC from a person before they attend him---Not possible to get higher education, apply for a job, open a Bank account, get a driving license or arms license, get utility connections, purchase railway and air tickets, execute any instrument, stay in a hotel or lodge, appear in a court proceedings and enter in certain buildings and premises without production of CNIC---CNIC is essential for enjoyment of a number of fundamental rights, hence, a person cannot be deprived of it without due process.

Constitution of Pakistan---

----Arts. 9 & 14---Security of person---Inviolability of dignity of man---Right to identity---Scope---Courts have expanded the right to life over time and held that it includes the right to legal aid; the right to speedy trial; the right to bare necessities of life; protection against adverse effects of electro-magnetic fields; the right to pure and unpolluted water; the right to access to justice; the right to livelihood; the right to travel; the right to food, water, decent environment, education and medical care---Right to identity as concomitant to the right to lifeis protected under Arts. 9 & 14 of the Constitution.

Constitution of Pakistan---

----Arts. 9 & 14---Security of person---Inviolability of dignity of man---Right to identity---Scope---Personal identity of a person comprises all those aspects of his profile which are significant to him---Personal identity begins from the moment of conception and going beyond the information such as date of birth, encompasses his personal attributes like biographical data, physical traits and significant social relations, such as ties to family members, cultural or religion---Right to identity is associated with several other rights, e.g., the rights to a name, nationality, juridical personality, family and culture---Some legal experts consider it a part of the right of life while others posit that it is rooted in human dignity and thus fundamental and non-derogable.

Constitution of Pakistan---

----Art. 9---Security of person---Scope---Article 9 of the Constitution guarantees the right to life and liberty and enjoins that no person shall be deprived of it save in accordance with law.

Constitution of Pakistan---

----Chap. 1 [Arts. 8 to 28]---Fundamental rights---Scope---Fundamental rights are the heart and soul of a living Constitution and must at all times be ready to embrace and protect the sensibilities and sensitivities of the people, they must be progressively and purposively interpreted to advance the frontiers of freedom, individual autonomy and free choice---Such vibrance and vitality is the hall mark of a living Constitution in a democracy.

Constitution of Pakistan---

----Chap. 1 [Arts. 8 to 28]---Fundamental rights---Scope---Fundamental rights in a living Constitution are to be liberally interpreted so that they can continue to embolden freedom, equality, tolerance and social justice.

Constitution of Pakistan---

----Chap. 1 [Arts. 8 to 28]---Fundamental rights---Scope---Not imperative that every right should be enumerated as a fundamental right in the Constitution---Such can be claimed that even if it forms an integral part of a named fundamental right or is of the same nature or character or if its recognition is necessary to make the exercise of the named fundamental right meaningful and effective.

Constitution of Pakistan---

----Chap. 1 [Arts. 8 to 28]---Fundamental rights---Scope---Fundamental rights call for a generous interpretation avoiding what has been called the austerity of tabulated legalism, suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.

JUDGMENT

TARIQ SALEEM SHEIKH, J.---Respondent No.2 instituted a suit for recovery of dower against the Petitioner in the Family Court at Lahore which was decided in her favour vide judgment and decree dated 13.08.2020. The Petitioner did not satisfy that decree so she filed execution petition for its enforcement. The Executing Court issued him notice but he did not appear and subsequently even avoided coercive process. Eventually, on the application of Respondent No.2, the Court directed the National Database and Registration Authority (NADRA) to block his Computerized National Identity Card (CNIC) vide order dated 04.06.2021. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner lays challenge to that order (the "Impugned Order").

The submissions

2. The counsel for the Petitioner contends that the right to identity is a part of right to life and it cannot be syncopated without due sanction of law. A person's CNIC can be cancelled, impounded or confiscated only by the Federal Government and that too on the grounds enumerated in section 18(2) of the National Database Registration Authority Ordinance, 2000 (the "Ordinance"), which do not exist in the instant case. Hence, the Executing Court had no jurisdiction to pass the Impugned Order.

3. The Assistant Attorney General submits that the Civil Procedure Code, 1908, does not apply to the Family Court in terms of section 17 of the Family Courts Act, 1964, so it is competent to regulate its own proceedings. It can adopt any procedure unless it is specifically prohibited by law. In the instant case, the Executing Court took all possible steps - even issued coercive process - to procure the Petitioner's attendance but failed. The Impugned Order was passed as a last resort.

4. The counsel for Respondent No.2 has adopted the Law Officer's arguments. He argues that the Impugned Order was necessary to maintain rule of law and prevent the frustration of decree dated 13.8.2020.

Opinion

5. The personal identity of a person comprises all those aspects of his profile which are significant to him.1 His personal identity begins from the moment of conception and, going beyond the information such as date of birth, encompasses his personal attributes like biographical data, physical traits and significant social relations, such as ties to family members, culture or religion.2 In this view of the matter, the right to identity is associated with several other rights, e.g. the rights to a name, nationality, juridical personality, family and culture.3 Some legal experts consider it a part of the right of life while others posit that it is rooted in human dignity and thus fundamental and non-derogable.

6. The international law focuses more on what may be described as "legal identity". Article 6 of the Universal Declaration of Human Rights (1948) proclaims that everyone has the right to be recognized as a person before the law. Articles 7 and 8 of the UN Convention on the Rights of the Child explicitly protect the child's right to identity. These are reproduced below for ready reference:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

Article 8

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

7. The other treaties which seek protection of identity rights inter alia include the Hague Adoption Convention4 and the anti-human trafficking conventions.

8. The 2030 Agenda for Sustainable Development contemplates that legal identity is catalytic for achieving at least ten Sustainable Development Goals. Therefore, it has established it as a specific target - Target 16.9 (legal identity for all).5 The concept note of the United Nations Legal Identity Expert Group says:

"For the purpose of the operational United Nations definition, legal identity is defined as the basic characteristics of an individual's identity. e.g. name, sex, place and date of birth conferred through registration and the issuance of a certificate by an authorized civil registration authority following the occurrence of birth. In the absence of birth registration, legal identity may be conferred by a legally-recognized identification authority; this system should be linked to the civil registration system to ensure a holistic approach to legal identity from birth to death. Legal identity is retired by the issuance of a death certificate by the civil registration authority upon registration of death."6

9. The Constitution of Pakistan (1973) does not expressly guarantee the right to identity but can it still be claimed? In The Minister of Home Affairs and the Minister of Education v. Collins MacDonald Fisher and Eunice Carmeta Fisher, (1979) 3 All ER 21, Lord Wilberforce held that fundamental rights "call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism', suitable to give to individuals the full measure of the fundamental rights and freedoms referred to." The courts in India and Pakistan are essentially of the same view. In Maneka Gandhi v. Union of India (AIR 1978 SC 597) the Supreme Court of India held that it is not imperative that every right should be enumerated as a fundamental right in the Constitution. It can be claimed even if it forms an integral part of a named fundamental right or is of the same nature or character or if its recognition is necessary to make the exercise of the named fundamental right meaningful and effective. In Jurist Foundation v. Federal Government through the Secretary Ministry of Defence and others (PLD 2020 SC 1) the Supreme Court of Pakistan held that "fundamental rights in a living Constitution are to be liberally interpreted so that they continue to embolden freedom, equality, tolerance and social justice." In Hafiz Junaid Mahmood v. Government of Punjab and others (PLD 2017 Lahore 1) this Court held that "fundamental rights are the heart and soul of a living Constitution and must at all times be ready to embrace and protect the sensibilities and sensitivities of the people. They must be progressively and purposively interpreted to advance the frontiers of freedom, individual autonomy and free choice. Such vibrance and vitality is the hallmark of a living constitution in a democracy."

10. Article 9 of the Constitution of Pakistan (1973) guarantees the right to life and liberty and enjoins that no person shall be deprived of it save in accordance with law. In Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) the Hon'ble Supreme Court of Pakistan held that the term "life" in the said Article means more than mere animal existence. It ruled:

The word "life" is very significant as it covers all facets of human existence. The word "life" has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity legally and constitutionally."

The Court added:

"The Constitutional Law in America provides an extensive and wide meaning to the word 'life' which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal rights and to be protected from encroachments on such personal rights, freedoms and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law."

11. Our courts have expanded the right to life over time and held that it includes "the right to legal aid; the right to speedy trial; the right to bare necessities of life; protection against adverse effects of electro-magnetic fields; the right to pure and unpolluted water; the right of access to justice;"7 the right to livelihood,8 the right to travel,9 the right to food, water, decent environment, education and medical care.10 Keeping in view the international human rights jurisprudence discussed in the earlier part of this judgment which considers the right to identity as concomitant to the right to life, I hold that the said right is protected under Article 9 of our Constitution. I would also read it into Article 14 which guarantees dignity of man.

12. Let's now come to the National Identity Card. The National Database and Registration Authority Ordinance, 2000, provides for registration of all persons. Section 10 entitles every citizen to have the National Identity Card who has attained the age of 18 years and is registered under section 9. The Ordinance also makes provision for issuance of Pakistan Origin Cards (section 11), Overseas Identity Cards (section 12) and Alien Registration Cards (section 13). Section 19(4) stipulates that the cards issued under the Ordinance, including the National Identity Card, shall be the proof of his identity as could be established from the contents of such card.

13. Subsections (1) and (2) of section 19 of the Ordinance specify a few circumstances when the National Identity Card is compulsorily required. These include grant of passport, permit or other travel document for going out of Pakistan and identification of a voter at various elections. Section 19(3) empowers the Federal Government to specify any other purpose for which the production of any card issued as aforesaid shall be necessary. However, the need for the CNIC has increased manifold during recent years. In Muhammad Umar v. Federation of Pakistan, through Secretary, Ministry of Interior, Islamabad and 2 others (PLD 2017 Sindh 585) the Sindh High Court observed that now almost every government and private organization requires CNIC from a person before they attend him. "It is not possible to get higher education, apply for a job, open a bank account, get a driving licence or arms licence, get utility connections, purchase railway and air tickets, execute any instrument, stay in a hotel or lodge, appear in a court proceedings and enter in certain building and premises without production of CNIC." In this backdrop it can be legitimately argued that the CNIC is essential for enjoyment of a number of fundamental rights guaranteed by the Constitution. Hence, a person cannot be deprived of it without due process.

14. Section 18(1) of the Ordinance stipulates that all the cards issued by NADRA, including the CNIC, shall be the property of the Federal Government and it may cancel, impound or confiscate it by an order after giving a show cause notice to the holder. Section 18(2) enumerates the circumstances in which it may take such an action. It reads:

(2) An order under subsection (1) cancelling, impounding or confiscating a card may be made only if there is reason to believe that-

(a) the card has been obtained by a person who is not eligible to hold such card, by posting himself as eligible;

(b) more than one cards have been obtained by the same person on the same eligibility criteria;

(c) the particulars shown on the card have been obliterated or tampered with; or

(d) the card is forged.

15. Inasmuch as cancellation, impounding or confiscation of CNIC impacts the fundamental rights of a person, the provisions of section 18 of the Ordinance must be strictly construed and scrupulously followed. Any order passed or action taken on a consideration other than those stipulated therein cannot sustain.

16. In the present case, the Executing Court has passed the Impugned Order dated 04.06.2021 without taking section 18 of the Ordinance into consideration. The said section does not allow blocking/ digital impounding of the CNIC of a person to compel him to appear before the court.

17. I am fully aware of the fact that the courts frequently direct digital impounding of the CNIC because it is an effective means to secure presence of a person. Sometimes it even impels a fugitive from law to surrender. Notwithstanding the benefits, this cannot be permitted because it does not have the sanction of law. Such orders are contrary to Article 175(2) of the Constitution11 and the concept of rule of law. The Federal Government may, therefore, propose the Parliament to amend the Ordinance.

Disposition

18. In view of what has been discussed above, this petition is accepted. The Impugned Order dated 04.06.2021 is declared to be without legal authority and set aside.

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محض دوسری شادی کرلینے کی بنا پر ماں کو بچوں کی حضانت سے محروم نہ کیا جاسکتا ھے

 2022 SCMR 2123

Time and again, Supreme Court has held that the paramount consideration where custody is concerned is the welfare of the minor, that is to consider what is in the best interest of the child. The court’s jurisdiction in custody cases is in the form of parental jurisdiction which means that the court must consider all factors from the parents’ ability to provide for the child including physical and emotional needs, medical care but also relevant is the parents’ ability to provide a safe and secure home where the quality of the relationship between the child and each parent is comforting for the child. Hence, there is no mathematical formula to calculate the welfare of the minor, as the factors range from financial and economic considerations to the household environment, the care, comfort and attention that a child gets. Accordingly, the concept of welfare of the child is an all encompassing concept which will cover not only the manner in which the child has to be cared for but will also include the physical, mental and emotional wellbeing of the child. The United Nations Convention on the Rights of the Child, 1989 (UNCRC) is an international treaty which sets out the rights of children, be it economic, social, health or family. The UNCRC was ratified by Pakistan in 1990 with reservations that it will adopt the Convention, subject to the requirements of the Islamic Law. However, in 1997, the ratification became absolute as the reservation was withdrawn. The UNCRC recognizes that the child should grow up in an environment of love, happiness and understanding. Article 3 provides that in all actions concerning children whether by courts of law or public, or private welfare institution amongst others, the best interest of the child shall be a primary consideration. Article 7 provides that every child has right to be cared for by their parents and Article 9 requires that in the event of separation between the parents, the child should be in contact with both parents unless either one can cause any harm. Article 12 provides that a child.

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Needless to say that Nikahnama is a deed of marriage-contract entered into between the parties, husband and wife, and the contents of its clauses/columns, like clauses of other contracts, are........

 PLD 2022 Supreme Court 686

Needless to say that Nikahnama is a deed of marriage-contract entered into between the parties, husband and wife, and the contents of its clauses/columns, like clauses of other contracts, are to be construed and interpreted in the light of intention of parties. The High Court has rightly ascertained the intent of the parties for mentioning four Kanal agriculture land in column No.16 of the Nikahnama, irrespective of its placement in a particular column. It is a matter of common knowledge that the persons who solemnize Nikah or the Nikah Registrars are mostly laymen, not well-versed of legal complications that may arise from mentioning certain terms agreed to between the parties in any particular column of the Nikahnama. Therefore, it becomes the foremost duty of courts dealing with disputes arising out of the terms entered in the Nikahnama, to ascertain the true intent of the parties and give effect thereto accordingly, and not be limited and restricted by the form of the heading of the particular columns wherein those terms are mentioned.

We, on our own independent appraisal of the facts and circumstances of the case, agree with the finding of the High Court,

which is not only supported by the contents of the compromise deed dated 18.12.2012 executed by both the petitioner and the respondent, but also by the contents of the entries of columns No. 13 and 16 of the Nikahnama. The figures (1) and (2) mentioned in columns No.13 and 16 respectively leave little room to guess what the true intention of the parties was; they clearly show that both (1) seven tola gold ornaments mentioned as dower in column No.13 and (2) four Kanal agriculture land mentioned in column No.16 were the dower. The figures (1) and (2) need not be mentioned if only one of them was to be payable as dower. Further, seven tola gold ornaments and four Kanal agriculture land have no parity of value to be agreed as an alternate of each other. Therefore, the finding of the High Court on the issue of dower is perfectly correct and is in consonance with the principles of law enunciated by this Court in the cases of Asma Ali and Yasmeen Bibi. As for the claim of the respondent for her maintenance, the Family Court and the District Court held that since the respondent is not residing with the petitioner she is not entitled to maintenance. The High Court has overturned these findings and held the respondent entitled to receive maintenance from the petitioner, while observing that the respondent showed her willingness to go with the petitioner during hearing the petition, but the petitioner, who had contracted second marriage, flatly refused to take her to his house. We find nothing wrong in the decision of the High Court. A wife who is willing to, but cannot, discharge her marital obligations for no fault of her own, rather is prevented to do so by any act or omission of her husband is legally entitled to receive her due maintenance from her husband, and the latter cannot benefit from his own wrong.

As per Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act 1962, the questions regarding dower are to be decided, subject to the provisions of any enactment for the time being in force, in accordance with Muslim Personal Law (Shariat) in cases where the parties are Muslims. It hardly needs reiterating that the Holy Quran and the Sunnah of the Prophet of Islam (pbuh) are the primary sources of Muslim Personal Law (Shariat) in Islam. The payment of dower (mahr) at the time of marriage was a customary practice in Arabia before the advent of Islam, but it was paid to the guardians of the bride, such as, her father or other male relative, as bride-price and the bride herself did not receive a penny of it. This practice of paying dower as bride-price to the male guardians of the bride was reformed by the Islam through the Quranic commands6 of paying dower as the bride-wealth to the bride herself, who becomes the sole owner of it. The Holy Quran also forbids the Believers to take back anything from their wives out of the paid dower even it be a great sum. In Islam, the payment of dower to bride at marriage is an obligation that is imposed by the God Almighty, and is thus an intrinsic and integral part of a Muslim marriage. It is considered an obligatory bridal gift offered by the bridegroom to the bride graciously as a manifestation of his love and respect for her. Some Muslim men compliment the obligatory bridal gift, dower, with other gifts and presents as per their financial capacity. Under the Islamic law a wife’s right to be maintained by her husband is absolute so long as she remains faithful to him and discharges, or is willing to discharge, her own matrimonial obligations. A Muslim husband is bound to maintain his wife even if no term in this regard is agreed to between them at the time of marriage or she can maintain herself out of her own resources. The Holy Quran enunciates that men are the protectors and maintainers of women because the God Almighty has given the one more strength than the other and because they support them from their money. And the Holy Prophet of Islam (pbuh) has instructed Muslim men to provide their wives with maintenance in a fitting manner and declared it to be the right of the women.

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-S. 17A(1)---Suit for maintenance---Interim monthly maintenance---Striking off defence of defendant---Interpretation and connotation of the word 'shall' used in S. 17A(1) of the Family Courts Act, 1964 stated.

 P L D 2022 Lahore 715

Family Courts Act (XXXV of 1964)---

----S. 17A(1)---Suit for maintenance---Interim monthly maintenance---Striking off defence of defendant---Interpretation and connotation of the word 'shall' used in S. 17A(1) of the Family Courts Act, 1964 stated.

On perusal of section 17A(1) of the Family Courts Act, 1964 ('the Act'), it is manifest that in a suit for maintenance, the Family Court is required to pass an order fixing interim monthly maintenance for wife or a child. The use of word "shall", on the face of it, indicates that the said requirement is imperative in character. Such an order is required to be passed on the date of the first appearance of the defendant. The purpose or object of such a mandatory requirement apparently is to ensure subsistence of wife or child till final determination of his or her entitlement qua the maintenance. The interim monthly maintenance so fixed by the Court is payable by fourteenth day of each month. A sanction has been created by the legislature in the form of striking off defence of the defendant followed by a decree to be passed to guard against failure of the defendant to pay interim monthly maintenance in compliance of the order of the Court. The striking off of the defence in the case of default in the payment of interim maintenance is mandatory and no discretion in this regard is conferred upon the Court. Likewise, the striking off of the defence in such cases is automatic (i.e. not dependent upon any order of the Court in this regard), which is reflected from the use of legislative expression "the defence of the defendant shall stand struck off". The expression "defence struck off" means the defendant would not be entitled to rely on any defence set up by him in his written statement and the Court would not give any weight to the same, however, the Court has been required by the legislature to decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case. Being a clause contemplating penal consequences for failure to pay the maintenance, it has to be strictly construed , therefore, the decree passed in terms of section 17A(1) of the Act is confined to the claim for maintenance and shall not cover any other claim of the plaintiff before the Family Court.

Administration of justice ---

----Relief---Effective date---Generally speaking, in civil litigation, the entitlement to any relief covers the period commencing accrual of the cause of action---Such entitlement may, however, be controlled, curtailed or restricted by an appropriate legislature by express words or necessary implications---Additionally, in cases where claimants succeed in establishing a cause of action but without proof of the exact date of accrual thereof, relief is usually granted from the date of institution of the suit---If a cause of action is recurring or continuous one, the relief is granted for the future period covering entitlement of the claimant.

Family Courts Act (XXXV of 1964)---

----S. 17A(1)---Decree for maintenance of minor---Whether such decree would take effect from date of institution of suit or from date of decree---Held, that there is nothing in the language of S. 17A(1) of the Family Courts Act, 1964 that suggests expressly or by necessary implication that after striking off defence of a defendant the decree passed by the Family Court for the recovery of maintenance allowance shall be restricted or limited to the period commencing the date of decree and not before that---In the absence of any such restriction or limitation in S. 17A(1) of the Act, a claimant/wife is entitled to the maintenance when the husband/defendant fails to maintain his wife or minor child even for the period prior to the date of institution of the suit.

ORDER

RAHEEL KAMRAN, J.---Through this writ petition, the petitioner has challenged the order and decree dated 08.11.2021 passed by the learned Judge Family Court, Bahawalpur under section 17A of the Family Courts Act, 1964 whereby suit filed by respondent No.3 for the maintenance of respondent No.4 (minor son of the petitioner) has been partially decreed at the rate of Rs.15000/- per month with 10% annual increase payable with effect from institution of the suit i.e. 22.06.2019 till the age of majority, as well as the consolidated judgment and decree dated 18.02.2022 passed by the learned Additional District Judge, Bahawalpur in appeals preferred by the parties whereby the aforementioned order and decree passed by the learned trial court was upheld.

2. The sole ground pressed by the learned counsel for the petitioner in challenging the impugned decisions is that the learned courts below have not correctly interpreted Section 17A of the Family Courts Act, 1964 ("Act") inasmuch as the learned Family Court had no jurisdiction to pass a decree for the recovery of maintenance with effect from the date of institution of the suit. According to him, the authority possessed by the Family Court while invoking Section 17A(1) ibid is limited to pass a decree for the recovery of maintenance from the date of such decree.

3. Heard. Available record perused.

4. In Pakistan, the maintenance with regard to Muslim children is governed by the Injunctions of Islam and in other cases as per applicable personal law and the provisions of the Family Courts Act, 1964 in this regard essentially govern jurisdiction and procedure1. The position has been well enunciated by the august Supreme Court of Pakistan in the case of Humayun Hassan v. Arslan Humayun and another2 in the following terms:

4. There can be no cavil with the proposition that the maintenance issue(s), in relation to Muslim relatives shall be governed and regulated by the principles/injunctions of Islam i.e. as per the personal law of the parties. In this context, according to section 369 of the Muhammadan Law by D.F. Mullah, maintenance means and includes food, raiment and lodging. However, it may be observed that from the very language of the above section, such definition is neither conclusive nor exhaustive, and in our view it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well-being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance; but obviously corresponding to and commensurating with the means and the capacity of the father to pay. Anyhow, the same jurist in section 370 of the book has elucidated the liability of the father to pay the maintenance to his children as follows:--

"370. Maintenance of children and grandchildren.---(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (section 352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.

(2) If the father is poor, and in capable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.

(3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances."

From the above it emerges, that subject to the conditionalities mentioned therein, a father in the normal course is bound to maintain his son(s) only till the time he attains the age of puberty, however there is an exception to this rule, and that is the disability of the son by infirmity or disease in which case the obligation of the father is extended for his adult son as well….

Again in interpreting the word "maintenance" some reasonable standard must be adopted. Whilst it is not confined merely to food, clothing and lodging, it cannot, by any stretch of imagination, be extended to incorporate within it education at higher levels ad infinitum. What is necessary to decide in this connection is to find out as to what amount of education has to be attained by the child concerned, having regard to the status and other circumstances of his family, to enable it to earn a complete livelihood by honest and decent means. Thus, it may not be sufficient to say that the child of a tradesman can maintain itself by working as coolly or by thieving. What is required is that that child must be maintained until it is in a position to earn its own livelihood, in an honest and decent manner in keeping with its family status (emphasis supplied)"

5. The jurisdiction and procedure of Family Courts in Pakistan is, inter alia, governed by Section 17A of the Family Courts Act, 1964. For proper analysis of the argument of learned counsel for the petitioner, it would be advantageous to reproduce the relevant provision i.e. Section 17A(1) of the Act as substituted by the Punjab Family Courts (Amendment) Act, 2015 (XI of 2015):

S. 17A Suit for maintenance.---(1) In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fix interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteen day of each month, the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case.

On perusal of section 17A(1) of the Act, it is manifest that in a suit for maintenance, the Family Court is required to pass an order fixing interim monthly maintenance for wife or a child. The use of word "shall", on the face of it, indicates that the said requirement is imperative in character. Such an order is required to be passed on the date of the first appearance of the defendant. The purpose or object of such a mandatory requirement apparently is to ensure subsistence of wife or child till final determination of his or her entitlement qua the maintenance. The interim monthly maintenance so fixed by the Court is payable by fourteenth day of each month. A sanction has been created by the legislature in the form of striking off defence of the defendant followed by a decree to be passed to guard against failure of the defendant to pay interim monthly maintenance in compliance of the order of the Court. The striking off of the defence in the case of default in the payment of interim maintenance is mandatory and no discretion in this regard is conferred upon the Court. Likewise, the striking off of the defence in such cases is automatic (i.e. not dependent upon any order of the Court in this regard), which is reflected from the use of legislative expression "the defence of the defendant shall stand struck off". The expression "defence struck off" means the defendant would not be entitled to rely on any defence set up by him in his Written Statement and the Court would not give any weight to the same, however, the Court has been required by the legislature to decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case3. Being a clause contemplating penal consequences for failure to pay the maintenance, it has to be strictly construed4, therefore, the decree passed in terms of section 17A(1) ibid is confined to the claim for maintenance and shall not cover any other claim of the plaintiff before the Family Court5.

6. The primary question involved in this case is whether the decree passed by the Family Court for the recovery of maintenance under section 17A(1) of the Act can only be for the period commencing the date of decree and not prior to that? To answer that question, it is imperative to refer to certain fundamental principles governing the grant of relief in suits. For it to succeed, the claim of a party against another must be based on a cause of action i.e. infringement of a right, title or interest recognized by law of the land. Generally speaking, in civil litigation, the entitlement to any relief covers the period commencing accrual of the cause of action6. Such entitlement may, however, be controlled, curtailed or restricted by an appropriate legislature7 by express words or necessary implications. Additionally, in cases where claimants succeed in establishing a cause of action but without proof of the exact date of accrual thereof, relief is usually granted from the date of institution of the suit. If a cause of action is recurring or continuous one, the relief is granted for the future period covering entitlement of the claimant8.

7. There is nothing in the language of Section 17A(1) of the Act that suggests expressly or by necessary implication that after striking off defence of a defendant the decree passed by the Family Court for the recovery of maintenance allowance shall be restricted or limited to the period commencing the date of decree and not before that. In the

absence of any such restriction or limitation in Section 17A(1) ibid, a claimant is entitled to the maintenance when the respondent failed to maintain his wife or son even for the period prior to the date of institution of the suit9. The respondent No.3 was, therefore, clearly entitled to the decree for recovery of the maintenance of respondent

No.4 (minor son of the petitioner) from the date of institution of the

suit.

8. Learned counsel for the petitioner has failed to point out any other illegality or jurisdictional error in the impugned judgments and decree warranting interference of this Court in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

9. For the foregoing reasons, the instant Writ Petition is dismissed in limine being devoid of any merit.

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

 2022 M L D 1982

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

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

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