خرچہ ناں و نفقہ میں سالانہ اضافہ کب سے لاگو ھو گا

2022 LHC 6063

The legal question involved for determination in this case relates to whether 10% annual increase in maintenance allowance is to be effective from the date of passing of the decree that attained finality or from the date of institution of the suit. Examination of the impugned order/judgment of the Courts below reveals that the learned Courts have not kept the aim, object and scope of the Family Courts Act, 1964 in mind while interpreting the judgment and decree dated 25.11.2010 and have reached to a misconceived conclusion that it will be safe to allow the annual increase from the date of decree instead of the date of institution of the suit. It is pertinent to observe that any ambiguity in the decree as to grant of annual increase from the date of institution or from the date of decree would be so construed as to be not incongruous to the object and purpose of law which is a beneficial legislation and in this manner, the instant case exhibits a fortiori situation inasmuch as when the Act 1964 itself, being beneficial legislation, cannot be construed and interpreted in a manner detrimental to the minor or female, the judgment and decree passed under such law cannot be so interpreted.

Perusal of the pre-amendment provision brings forth that the legislature had not provided the annual increase; however, the Courts used to award and grant annual increase in the maintenance on their own, keeping in view facts of each case. The jurisprudence so developed was given a legislative form by the legislature through the above reproduced amendment. Perusal of Section 17A, as it stands after the amendment, reveals that in a suit for maintenance, the Court can transcend the legal and procedural limitation of civil law of being confined to the relief sought as sub-section (2)(a) thereof provides that the Family Court is vested with the power to fix an amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant circumstances. Such a statutory layout of the said provision is to be put parallel to the beneficial nature of the Act, 1964, which propels to the conclusion that section 17A is also beneficial in nature conferring financial protection to the female and minors. It is further seen from Section 17A that the Court can grant maintenance higher than what has been prayed for in the plaint on the basis of afflux of time or for other circumstances. Similarly, Section 17A(2)(b) of the Act, 1964 obligates upon the Court to prescribe the rate of annual increase and sub-section (3) of Section 17A spells out that where the Court does not prescribe any rate of increase, the annual increase of 10% would be read into the decree. However, on the basis of facts and circumstances of each case, the discretion of the Court to award more than 10% annual increase remains protected. Similarly, it is important to note that the legislature has vested the Family Court with the power to consider the afflux of time and such other circumstances while granting maintenance in the decree of maintenance. Considered from this perspective, the suit for maintenance was filed by petitioner No.1 (mother of the petitioners), in the year 2004 and decree passed attained finality in the year 2010, which show a lapse of almost six years in between the date of institution and the date of decree. Therefore, if the plea of the respondent (father) as to grant of annual increase from the date of decree is allowed, this would not only frustrate the object of the law but would also put premium in the hands of a defendant. The respondent in the instant case was to protract the suit for maintenance being concluded in order to avert the annual increase, which has been now given statutory recognition under Section 17A. Such an interpretation would be contrary and repugnant to the object and purpose of the law. Thus, it would be against the interest and welfare of the minor to grant annual increase from the date of decree particularly in cases like the one at hand where there is a gap of almost 6 years in the date of institution of the suit and date of final decree passed therein.

Petitioners are held entitled to 10% annual increase in the maintenance amount awarded to them under the judgment and decree dated 25.11.2010 till their legal entitlement and the effective date shall be from the date of institution of the suit and not the date of the decree.

Family
23991/17
Mah Noor Azhar Vs Muhammad Sohail Khan etc
Mr. Justice Anwaar Hussain
24-06-2022
2022 LHC 6063

 

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باپ نافرمان بیٹی کو خرچہ دے گا یا نہیں؟

 Divorced Daughter / Disobeint Daughter
Citation Name : 2013 PLD 464 LAHORE-HIGH-COURT-LAHORE
Side Appellant : GAKHAR HUSSAIN
Side Opponent : Mst. SURAYYA BEGUM

S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for maintenance of daughter including educational expenses---Claim of past maintenance ---maintenance ---Definition---Suit was decreed and father (petitioner) was ordered to pay past maintenance including for education of daughter ---Contention of the father (petitioner) was inter alia, that his daughter was disobedient and was therefore, not entitled to recover maintenance and that maintenance did not include education expenses---Validity---Father was bound to maintain his daughter until she was married, and the father was not bound to maintain a child which was capable of being maintained out of his or her own property---Definition of "maintenance " was to be liberally interpreted which included the process of maintenance or being maintained and provisions of means to support life---Father was bound to maintain a daughter and she was entitled to receive maintenance regardless of her age till such time she was married---Even on attaining the age of majority, the father was responsible for daughter 's maintenance ---Father in the present case had been providing maintenance to his other children from his other wives and as such he treated his daughter with discrimination---Contention that the daughter was disobedient had no force, since, firstly, the father was unable to show his love or affection for his daughter , therefore he could not expect her to return, secondly no instance was mentioned showing disobedience, and thirdly, under Islamic law, there was no institution of abandonment ("aaq") for a disgruntled son/daughter depriving him/her from inheritance and therefore a daughter could not be deprived of her right to be maintained by her father during his life time---No interference was called for in the impugned orders---Constitutional petition was dismissed, in circumstances

Contra
1994 C L C 1216
Disobedient children not entitled
Citation Name : 2012 PLD 154 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mian MUHAMMAD SABIR
Side Opponent : Mst. UZMA PARVEEN

S. 5 & Sched.---Suit for maintenance by divorced daughter against her father---Maintainability---Liability of father to maintain his daughter till her marriage.

Even second suit is maintainable
Citation Name : 2012 PLD 154 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mian MUHAMMAD SABIR
Side Opponent : Mst. UZMA PARVEEN

S. 5, Sched. & S.17---Civil Procedure Code (V of 1908), S.11---Second suit for maintenance by divorced daughter against her father---Res judicata, principle of---Applicability---Scope---Rejection of plaint in plaintiff's first suit by Family Court for want of jurisdiction to entertain maintenance claim by a daughter against her father---Father's plea that daughter's second suit for maintenance was barred by res judicata---Validity---Period of past maintenance claimed in first suit was six years, while in second/present suit was five years---Family Court had not decided first suit on merits, rather had rejected plaint on technical or preliminary ground for want of jurisdiction---Res judicata would not apply where first suit was not decided on merits---Family Court had exclusive jurisdiction to entertain all claims of maintenance without any exception and had no jurisdiction to exclude maintenance claim of a daughter against her father---Order of Family Court rejecting plaint in first suit for being void order was liable to be ignored---Such plea of father was overruled in circumstances.

Contra

Citation Name : 2011 YLR 1632 LAHORE-HIGH-COURT-LAHORE

Side Appellant : RASHID AHMED

Side Opponent : ADDITIONAL DISTRICT JUDGE, LAHORE

S. 5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional peti-tion---Suit for maintenance by daughters against father--- Plaintiffs/daughters alleged that their father/defendants intended to deprive them of their share in the property left by their late mother---Defendant contended that all the plaintiffs/daughters had attained majority, left the home and were living in 'Dastak', a charitable institution---Father contended that the daughters being disobedient and major female children were not entitled to maintenance---Trial Court decreed maintenance at Rs.2500 for each daughter---Father's appeal was also dismissed---Validity---If the children had attained majority, the father stood absolved from his obligation to provide necessities of life to the major children---Where the daughter refused to take the assistance of her father in her personal matter like marriage, then the father could not be burdened with the liability to pay the expenses of the marriage of his rude and disobedient daughter---Maintenance allowance was payable to the child who was minor and was unable to earn his/her bread and butter and other expenses of life---Father would not be under any legal or moral obligation to maintain his child who left his house and opted to live away from him especially when the child was major---Major child could earn his/her livelihood himself/herself and such major child male or female would not fall in the definition of "dependant"---Where the father was alleged to be usurping share of children in property of their mother, no such dispute could become the cause to recover the maintenance from father---Children in case of such grievance, could knock the door of the court---Courts below had not considered the case properly---Constitutional petition was accepted.

Citation Name : 2012 PLD 154 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mian MUHAMMAD SABIR
Side Opponent : Mst. UZMA PARVEEN

S. 5 & Sched.---Suit for maintenance by divorced daughter against her father---Maintainability---Liability of father to maintain his daughter till her marriage would pass on after her marriage to her husband---Husband's liability to maintain his wife would continue till subsistence of marriage, but not after dissolution of marriage---Female losing her marital status would revert to her status of a single lady and would need financial support in same manner as she needed before her marriage---Divorced daughter, if not gainfully employed or having means at her disposal to take care of her basic needs, could claim maintenance from her father, whose means would be kept in view while determining her maintenance---Father could not deny maintenance to divorced daughter, if she was living with her mother instead of father---Custody of daughter till her marriage would belong to mother and father as her guardian could not complain if she did not live with him-

Citation Name : 2013 PLD 464 LAHORE-HIGH-COURT-LAHORE

Side Appellant : GAKHAR HUSSAIN

Side Opponent : Mst. SURAYYA BEGUM

S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for maintenance of daughter including educational expenses---Claim of past maintenance ---maintenance ---Definition---Suit was decreed and father (petitioner) was ordered to pay past maintenance including for education of daughter ---Contention of the father (petitioner) was inter alia, that his daughter was disobedient and was therefore, not entitled to recover maintenance and that maintenance did not include education expenses---Validity---Father was bound to maintain his daughter until she was married, and the father was not bound to maintain a child which was capable of being maintained out of his or her own property---Definition of "maintenance " was to be liberally interpreted which included the process of maintenance or being maintained and provisions of means to support life---Father was bound to maintain a daughter and she was entitled to receive maintenance regardless of her age till such time she was married---Even on attaining the age of majority, the father was responsible for daughter 's maintenance ---Father in the present case had been providing maintenance to his other children from his other wives and as such he treated his daughter with discrimination---Contention that the daughter was disobedient had no force, since, firstly, the father was unable to show his love or affection for his daughter , therefore he could not expect her to return, secondly no instance was mentioned showing disobedience, and thirdly, under Islamic law, there was no institution of abandonment ("aaq") for a disgruntled son/daughter depriving him/her from inheritance and therefore a daughter could not be deprived of her right to be maintained by her father during his life time---No interference was called for in the impugned orders---Constitutional petition was dismissed, in circumstances

Citation Name : 2014 MLD 351 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : FARID KHAN

Side Opponent : SAEEDA BIBI

Ss. 17A & 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---maintenance of children by father---Scope---Suit for recovery of dower and maintenance allowance---Application for fixation of interim maintenance for minor---Contention of father was that mother had waived right of maintenance of minor---Application for fixation of interim maintenance for minor was accepted by the Family Court---Validity---Father was responsible to meet expenses of his minor children whether they were in the custody of their mother or in his own custody; he was even bound to maintain divorced daughter if she was living with her mother instead of himself---No illegality, irregularity or jurisdictional defect in the interlocutory order had been pointed out by the defendant---Constitutional petition did not lie against an interlocutory order and same was dismissed.

Maintenance---Divorced daughter, maintenance of---Entitlement---Plaintiff, a divorcee, filed suit against her father claiming maintenance---Trial court, after hearing parties and record evidence, decreed the suit and fixed maintenance of plaintiff till her marriage---Father contended that plaintiff, being disobedient daughter who refused to reside with him, was not entitled for any maintenance---Daughter controverted said contention alleging that she had refused to reside with father due to maltreatment on the part of her step-mother/second wife of father---Validity---Father could not rebut said plea of mal-treatment and admitted to have unpleasant relations with daughter and that being father he was unable to show his love, affection or intimacy for his daughter and for that reason could not expect the same in return---Plea of father to disentitle daughter from maintenance on account of her alleged disobedience had no force---Father admitted to have served in Pakistan Rangers for thirty-five years and thereafter had been pensioner, had ancestral house with agricultural land and that plaintiff-daughter was in need of medical treatment---No illegality was committed by courts below in determining quantum of maintenance---Defendant being real father was legally and morally bound to maintain his divorced daughter---Daughter (as admitted by father) had no source of income and was being maintained by her paternal uncle---Plea of father that he was not bound to maintain daughter had no force---Constitutional petition was dismissed.

2015 PLD 683 LAHORE-HIGH-COURT-LAHORE

Side Appellant : MANZOOR HUSSAIN

Side Opponent : Mst. SAFIYA BIBI

PLD ,,,,2015 lah 683 (a) & (b).........disobedience of daughter has no force ,,,,,when she become divorced laibilty again shits upon father to maintain her

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The question raised in the present petition is perhaps a question of first impression in which a husband has stepped forward to volunteer the return of dowry articles brought home by his wife at the time of marriage.

 The question raised in the present petition is perhaps a question of first impression in which a husband has stepped forward to volunteer the return of dowry articles brought home by his wife at the time of marriage. This unconventional approach has been discarded by a judge family court upon a suit filed by the petitioner and which denial has brought the petitioner before this Court.

Serial No.8 of Part-I of the Schedule to the Act, 1964 makes all matters pertaining to dowry triable exclusively by the family courts. The Impugned Order proceeds upon the sole logic, as provided therein, that suit regarding recovery of dowry articles can only be brought by a wife. Section 7 of the Act, 1964 stipulates no such restriction and perhaps a common occurrence has weighed upon and influenced the learned trial judge.

Family courts, no doubt, have jurisdiction to entertain a suit filed by a wife seeking recovery of her dowry articles but can a husband; an unwilling custodian of such articles abandoned by the wife without any specific instructions; seek help of the family court and refuse to store such items for an indefinite period of time? Such provision and space if not particularly conferred, has not even been particularly excluded. Neither has any distinction about what type of suit can be brought by a husband or a wife has been drawn in the Act, 1964. In other words, if a husband cannot point out a statutorily prescribed express allowance for filing a case for the return of dower to the wife; neither can the wife for the claim of dower. All matters relating to dower have been accumulated and made exclusively triable by a Family Court by virtue of Section 5(1) read with Serial No.8 of Part-I of the Schedule.

POWER OF A FAMILY COURT TO REGULATE ITS PROCEDURE UNLESS EXPRESSLY BARRED

...........

An analysis of precedent cases on the procedure to be adopted by family courts reveals a consistent consensus on the principle that family courts operating under the Act, 1964, are left to decide the course to be taken by them in most cases and are free to govern and adjust the procedure to be adopted but are expected to presume that every course is permissible to take unless the specified course is expressly barred or prohibited.

FREEDOM OF FAMILY COURTS TO ASSUME POWERS NOT EXPRESSLY GIVEN IN THE ACT, 1964.

....................

The guiding principles discernible from the above judgments are that the Family Courts, as special forums are minimally regulated and are flexible in terms of what course of action they adopt during proceedings and such relative freedom is geared to ensure that all family disputes are expeditiously decided. Assumption of powers not expressly conferred, though not excluded either, has been approved as long as the purpose of administration of justice is served.

PURPOSIVE AND INCLUSIVE INTERPRETATION OF PROVISIONS CONFERRING JURISDICTION:

.................

Here, the jurisdiction for entertaining any dispute regarding any matter pertaining to dowry is liberally conferred upon a Family Court by Section 5 of the Act, 1964. Section 7 relating to the institution of suits refers to the terms Plaintiff without specifying the gender of the Plaintiff. Can the words „of wife‟ be read into the statute instead of „of Plaintiff‟ when the matter is that of dowry?

Relief sought may be return by the husband or retrieval by the wife. 26. Such interpretation, as the one pursued by the trial court will limit the scope of jurisdiction of the Family Courts even when no such limitation is either prescribed nor would it sit well with the purpose of enactment of the Act, 1964 as discernible from its preamble i.e. WHEREAS it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith; It would additionally disentitle a husband from brining in a cause which falls in exclusive jurisdiction of Family Courts even when no such person specific distinction is made in the Act.

Refusal of the learned Family Court to assume jurisdiction over the subject matter of dowry when a cause is brought by a husband would not only defeat the purpose of Act, 1964 which provides a unified forum for resolution of all family disputes falling within the jurisdiction conferred through Section 5 but will also amount to restricting the meaning of the term Plaintiff in Section 7 without there being any circumstances justifying such interpretation and when the legislature has not drawn any such distinction.

W rit Petition Uzair Azmat Versus No. 46842 of 20 22 Judge Family Court etc.
05-08-2022

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نکاح نامہ کے کالم نمبر 13 اور 16 کی تشریح کالموں کے عنوانات کی بجائے فریقین کے درمیان نیت کی بنیاد پر کی جائے، خاص طور پر جب مہر کی قیمت اور اشیاء کے درمیان تنازعہ ہو۔

 Columns No.13 and 16 of the Nikkahnama to be interpreted on the basis of the intention between the parties rather than the headings of the columns, in particular when there is a dispute between the value of the dower and items.

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.

Family/Maintenance Allowance
C.P.1289/2020 Haseen Ullah v. Mst. Naheed Begum & others
Mr. Justice Syed Mansoor Ali Shah

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--S. 14--Jurisdiction of appellate court against decree of maintenance allowance--Section 14(2) of Act, appeal against decree of dowry articles not exceeding Rs. 100,000/- is barred--

PLJ 2022 Lahore 558

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

----S. 14--Jurisdiction of appellate court against decree of maintenance allowance--Section 14(2) of Act, appeal against decree of dowry articles not exceeding Rs. 100,000/- is barred--Bar contained in Section 14(2) of Act is applicable to husband only and same cannot be applied to minor or wife--Since maintenance allowance granted to each person was less than Rs. 5000/- per month, therefore, appeal under Section 14(2) of act, was barred--This writ petition is allowed and impugned judgment and decree passed by appellate court below is set aside, appeal of petitioner will deem to be pending before learned appellate court below. [Pp. 560 & 561] A, B, C & D

2018 SCMR 1885; 2017 YLR 1684 ref.

Malik Waqar Haider Awan, Advocate for Petitioner.

Mr. Qadeer Asif Toor & Ms. Raheela Saleem, Advocates for Respondents.

Date of hearing: 22.2.2022.

PLJ 2022 Lahore 558
Present: Anwaar Hussain, J.
Mst. SHAISTA PARVEEN--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, etc.--Respondents
W.P No. 849 of 2020, heard on 22.2.2022.

Judgment

Succinct facts of the case are that on 28.06.2012, petitioner, namely, Mst. Shaista Parveen (“the petitioner”) on her behalf as well as minor, namely, Muhammad Suleman Ajmal (“the minor”) instituted a suit for recovery of maintenance allowance and dowry articles against Respondent No. 3, namely, Muhammad Ajmal (“the respondent”) on the ground that nikah of the parties was solomnized on 29.09.2009 and rukahsati took place 15 days thereafter; that out of this wedlock, the minor was born; that after some time, the respondent became cruel towards the petitioner; that he borrowed a sum of Rs. 200,000/- from step father of the petitioner on different pretexts and 11 months prior to institution of the suit, asked the petitioner to bring a sum of Rs. 50,000/- more from her step father but she refused whereupon the respondent kicked out the petitioner along with the minor from his house; that at the time of the marriage, the respondent was given dowry articles worth Rs. 5,63,200/-, which are lying with the respondent; that despite repeated demands, the respondent neither paid any maintenance allowance to the petitioner and the minor nor returned the dowry articles which constrained the petitioner to institute the suit.

2.  The respondent contested the suit by filing written statement. He also instituted a suit for resultation of conjugal rights. Both the suits were consolidated and consolidated issues were framed. After recording of evidence of the parties, learned trial Court decreed the suit of the petitioner in the terms that the minor is entitled to maintenance allowance at the rate of Rs. 2000/- per month for the last two years and at the same rate in future with 10% increase per annum and dismissed the claim of the petitioner to the extent of maintenance allowance and dowry articles and also decreed the suit of the respondent for restitution of conjugal rights vide consolidated judgment and decree dated 25.11.2013. Both sides preferred appeals, which were dismissed by learned appellate Court below vide judgment and decree dated 27.02.2014. The petitioner assailed both the judgments of learned Courts below by way of filing Writ Petition
No. 3723/2014 wherein the case was remanded to learned trial Court to the extent of dowry articles only vide order dated 25.03.2019. In post-remand proceedings, learned trial Court partially decreed the suit of the petitioner and held her entitled to recover a sum of Rs. 60,000/- as alternate price of dowry articles vide judgment and decree dated 20.05.2019. The petitioner feeling dissatisfied preferred appeal, which was dismissed by learned Additional District Judge, Jampur on the ground that the legislature has not provided any appeal against decree of dowry articles not exceeding Rs. 100,000/- under Section 14(2) of Family Courts Act, 1964 (“the Act”) vide judgment and decree dated 08.11.2019. Hence, this writ petition has been filed.

3. Only controversy involved in the matter, is quantum of alternate value of dowry articles. Learned counsel for the petitioner submits that under Section 14(2) of the Act, the embargo has been placed upon the husband by restraining him not to challenge a decree of dowry article if it is upto Rs 100,000/- but no such restriction has been placed upon the wife by the legislature for enhancement of the. amount granted as alternate value of dowry articles. Submits that the learned lower appellate Court below has erred in dismissing the appeal of the petitioner depriving her from her statutory right of appeal. The said assertion of learned counsel for the petitioner has been controverted by learned counsel for the respondent while submitting that the appeal against grant of dowry articles not exceeding Rs. 100,000/- is explicitly barred by law. He has placed reliance on Sarfraz v. Additional District Judge and 5 others [2017 YLR1684 Lahore (Rawalpindi Bench)].

4. Arguments heard. Record perused.

5. Perusal of impugned judgment and decree of learned appellate Court below reveals that the learned appellate, Court below has dismissed the appeal of the petitioner on the sole ground that under Section 14(2) of the Act, appeal against decree of dowry articles not exceeding Rs. 100,000/- is barred. Suffice to state that the legislature in its wisdom has impuned the said restriction keeping in view the present price hike and strong custom of our society to give dowry articles to the brides while considering that dowry articles of ordinary nature, which are usually given to the brides at the time of marriage, will not be less than the value of Rs. 100,000/-. This restriction has been imposed upon the husband to curtail the litigation so that the wife could, at least, get the said amount, if it is decreed by the Court without further litigation by the husband as a matter of right. By no stretch of imagination, the said embargo is applicable to the wife. In this view of the matter, the learned appellate Court below has misinterpreted and misapplied the law on the subject and wrongly dismissed appeal of the petitioner, therefore, the impugned judgment and decree of learned appellate Court below cannot sustain. In this regard, I am fortified by dicta laid down in Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh (2018 SCMR 1885) and Rahim Bux, Additional District Judge Muzaffargarh (2004 MLD 1749 Lahore). In the latter judgment, it has been held that:

“8. Now applying the said rule to the said Section 14 of the Family Courts Act, 1964, one finds no ambiguity whatsoever in the words of the provide to the said argue that the intention of the legislature was to avoid the challenge by a person to a decree passed in the sum of Rs. 1,000/- or less by way of maintenance to a child or a wife. Applying the very rule being relied upon by the learned counsel for the petitioner we find a bar to an appeal by a child or a wife to seek enhancement of the maintenance allowance where the trial Court grants it in a sum less than Rs. 1000 is not to the read into the said proviso.

(Emphasis supplied)

Bare perusal of above unambiguously reflects that the bar contained in Section 14(2) of the Act is applicable to the husband only and the same cannot be applied to the minor or the wife, if the family Court decrees their suit for maintenance allowance to the extent of Rs. 1000/- or the dowry articles to the tune of Rs. 100,000/-.

6. Learned counsel for the respondent has relied upon Sarfraz supra to contend that no appeal, even to a wife, is available under Section 14(2) of the act against a decree of dowry upto the amount of Rs. 100,000/-. I have gone through the said judgment. The facts of the referred case are distinguishable from that of the instant case inasmuch as in the said case, the husband challenged the decree whereby the wife was granted maintenance allowance at the rate of
Rs. 3,000/- per month for Iddat Period, and the minors at the rate of Rs. 4,500/- month per head. Therefore, it was held in the referred case that since the maintenance allowance granted to each person was less than Rs. 5000/- per month, therefore, the appeal under Section 14(2) of the Act was barred. Whereas, in this case, the appeal was filed against a decree of dowry article less than Rs. 100,000/- by a wife who was not debarred to challenge the same as the restriction imposed under Section 14(2) of the Act is only upon the husband, as discussed hereinabove. The contention of learned counsel for the respondent that the appeal of wife is also barred under the said provision is without any foundation, which is accordingly discarded.

7. For what has been discussed above, this writ petition is allowed and the impugned judgment and decree passed by learned appellate Court below is set aside. Resultantly, the appeal of the petitioner will deem to be pending before learned appellate Court below. Parties are directed to appear on 05.03.2022 before learned District Judge, Rajanpur who will hear the appeal of the petitioner

himself or entrust it to a Court of competent jurisdiction. The Court so seized with the matter will decide the appeal of the petitioner afresh to the extent of claim of dowry only, after affording opportunity of hearing to both sides, expeditiously, preferably within a period of one month commencing from the date of such entrustment, strictly in accordance with law.

(K.Q.B.)          Petition allowed

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ضروری اطلاع برائے نکاح رجسٹرار حضرات،،،،*

  *گورنمنٹ آف پنجاب کی طرف سے آج تمام نکاح خواں رجسٹرار کو بذریعہ* نوٹیفکیشن مطلع کیا جاتا ہے کہ پرانے نکاح رجسٹر ( چاہے اس میں سے چند فارم ہی استعمال ہوئے ہوں اور کافی صفحات خالی کیوں نا ہوں) آئندہ قابلِ استعمال نہیں رہے ، *گورنمنٹ کے آرڈر کے مطابق آئندہ صرف اور صرف نئے٫٫ختم نبوت کے حلفیہ بیان کے کالم والے ،، نکاح فارم ہی قابلِ قبول ہوں گے ختم نبوت کے بغیر نکاح فارم کی اب کوئ حیثیت نہیں رہی،* تمام یونین کونسل کے سیکرٹری صاحبان کو گورنمنٹ آف پنجاب کی طرف سے اس حکم نامے پر سختی سے عملدرآمد کی تاکید کی گئی ہے *پرانے نکاح رجسٹر اپنی مطلقہ یونین کونسل میں فورآ جمع کروا دیجیے.اور نئے رجسٹر حاصل کر لیجئے گا*

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--Ss.5 & 9---Nikahnama, contents of--Column No. 20 of Nikahnama---Entry of Rs.25,000/- as monthly maintenance allowance--

 2022 C L C 24

[Lahore]

Before Safdar Saleem Shahid, J

MUJAHID KAMRAN----Petitioner

Versus

Mst. SAIRA AZIZ and 2 others----Respondents

Writ Petition No.32191 of 2021, heard on 30th June, 2021.

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

----Ss.5 & 9---Nikahnama, contents of---Suit for recovery of maintenance/dower amount---Column No. 20 of Nikahnama---Entry of Rs.25,000/- as monthly maintenance allowance---Allegation of cruelty by husband---Petitioner/defendant claimed for restitution of conjugal rights and also filed a suit for cancellation of conditions/entries of Columns Nos. 14, 16, 17, 19 and 20 of Nikahnama on the ground that the same were illegal and incorporated without his consent in deceitful manner---Family Court partially decreed the respondent's suit to the extent of entitlement of the recovery of maintenance at rate of Rs.25,000/- per month with 10% annual increase from date of marriage till the date of judgment---Petitioner's suit was dismissed---Appeals filed by both parties were also dismissed---Validity---Wife could be justified in living separately if the husband treated her with cruelty or did not pay prompt dower---No disagreement or point of cruelty was quoted/proved by respondent other than the demand of dower---No particular point cited/proved by petitioner as to alleged disobedience except the allegation that respondent remained only one day in his house---Petitioner did not prove his version that columns of Nikahnama were afterwards filled in and were the result of forgery---All witnesses of Nikahnama admitted their signatures over the same---Petitioner had not proved that the copy of Nikahnama was not given to him at that time---Petitioner was bound to pay maintenance allowance according to column No.20---Case of respondent was based on column No.20, which could not be dealt with under the conditions of S.17A of the Family Courts Act, 1964---Neither the Court had to see the financial status of husband nor to fix the maintenance on the conditions mentioned in S.17A---Order as to 10% annual increase was not according to the spirit of Column No. 20 of Nikahnama---Date and Majlis of Nikah and signatures on Nikahnama by respective person were admitted---Execution of Nikahnama was proved by the respondent---Nikahkhwan, appearing as witness, had certified that all the columns were filled at that time with consent of parties---Presumption would be that the Nikah Pert (paper) was handed over to the petitioner on that very day which was requirement of law after the registration of the same in Union Council---Petitioner did not prove that the entries in the columns were not in his knowledge---Entries of column No. 19 limiting the absolute right of Talaq of the petitioner were against the spirit of the instructions of Almighty Allah, hence, declared void ab initio and not binding to the parties---High Court declared entries of Column No.19 as null and void---Constitutional petition was partly allowed.

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

----S.5---Nikahnama, contents of---Scope---Nikahnama is a very important document and it's all columns are legally binding on both the parties---Any right given through Nikahnama to woman is her right strictly protected by law---Woman may sue her husband regarding the past maintenance allowance on the basis of agreement in Nikahnama---All she has to do is to prove the execution of document/Nikahnama where such condition has been agreed between the parties.

Mohammedan Law by D.F. Mulla (S. 278) ref.

(c) West Pakistan Rules under the Muslim Family Laws Ordinance, 1961---

----R.8(1)---Nikah---Proof---Witness, requirement of---Wakeel as witness---Apart from the spouses and their wakeel, if any, at least two witnesses are required to certify the proceedings of "Ijab o Qabool" and that should be conducted in one Majlis---Person who has been appointed as wakeel for the bride, cannot be the witness of Nikah---Wakeel has his specific identity as to accept the proposal on behalf of the bride---Nikahkhawan can also be the witness of the Nikah if he has also heard the "Ijab o Qabool" by himself.

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

----S. 5---Qanun-e-Shahadat (10 of 1984), Art. 79---Nikahnama, proof of---Execution of document---Anything which has been brought in writing, if it is witnessed by two persons and signed over the same, under S.79 of Qanun-e-Shahadat, 1984, that document is proved one and in case of denial from that, the person denying the same has to produce the cogent reasons and solid grounds.

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

----S.5---Nikahnama, contents of---Proof---Entries in columns---If Nikahnama was written at the time and it was signed in the same Majlis, then it will be presumed that the same was stated to the lady and the proposal and acceptance were there regarding dower which has been mentioned in the Columns Nos. 13 & 14 of Nikahnama.

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

----S.7---Talaq, absolute right of---Islamic Law---Husband has an absolute right to divorce his wife---No condition is described in Shariah as well as in the codified law.

Muhammad Bashir Ali Siddiqui v. Muhammad Sarwar Jahan Begum 2008 SCMR 186 ref.

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

----S.5---Nikahnama, contents of---Injunctions of Islam---Anything contained in Nikahnama which is against the spirit of Islam or the orders of Allah and Prophet (peace be upon him) cannot bind the parties even if has been made with the consent of the parties.

Iftikhar Ahmad Mian for Petitioner.

Ghulam Rasool Sial for Respondent No.1.

Date of hearing: 30th June, 2021.

JUDGMENT

SAFDAR SALEEM SHAHID, J.----The instant petition is directed against the consolidated judgments and decrees dated 14.12.2020 and 31.03.2021, passed by the learned Judge Family Court and the learned Additional District Judge, Ahmadpur Sial, District Jhang.

2. Brief facts necessary for disposal of the instant petition are that the petitioner was married with respondent No.1 on 17.12.2017. Respondent No.1 on 23.02.2019, filed a suit for recovery of maintenance allowance and dower amount of Rs.15,00,000/- along with gold ornaments weighing 4-tolas, alleging that at the time of Nikah, Rs.15,05,000/- along with 4-tolas gold ornaments was fixed as dower, out of which only an amount of Rs.5000/-, being prompt, was paid at the time of Rukhsati. Further alleged that as per columns No.20 of the Nikah Nama the petitioner was also bound down to pay Rs.25,000/- per month to respondent No.1 as maintenance allowance. According to respondent No.1, the petitioner being owner of landed property, cattle etc. earns approximately 80/90 thousand rupees and could easily pay the maintenance allowance as claimed in the plaint. Respondent No.1 also alleged that behavior of the petitioner was cruel from the very first day and lastly he ousted her from his house after 14-days of marriage.

3. The petitioner resisted the suit by filing written statement on 20.04.2019, wherein he raised certain preliminary objections, denied the conditions having been fixed in the Nikah Nama and claimed that dower amount was fixed only Rs.5000/-, which was paid at the time of marriage, which fact could be clearly seen in the video recorded at the time of Nikah. The petitioner claimed that respondent No.1 left his house on the very next day of marriage and did not come back in spite of his best efforts, therefore, she is not entitled to any maintenance allowance. In addition to the prayer for dismissal of the suit of respondent No.1, the petitioner also prayed that his written statement be also considered as a suit for restitution of conjugal rights. Thereafter, on 09.11.2019, petitioner also filed a suit for cancellation of conditions mentioned in columns Nos.14, 16, 17, 19 and 20 of the Nikah Nama, on the ground that the same were illegally incorporated without his consent and in deceitful manner. Respondent No.1 resisted the suit filed by the petitioner on the grounds taken in her own suit.

4. After the pretrial reconciliation having failed, the learned Judge Family Court framed the following issues:-

1. Whether the plaintiff is entitled to recover maintenance allowance, if so, at what rate and for which period? OPP

2. Whether plaintiff is entitled to recover Rs.15,00,000/- and gold ornaments weighing 04-tolas in lieu of dower from the defendant as prayed for? OPP

3. Whether the defendant is entitled to obtain a decree for restitution of conjugal rights as per prayer made by him in his written statement? OPD

3-A.Whether defendant Mujahid Kamran obtains a decree for cancellation of conditions mentioned in column No.14, 16, 17, 19 and 20 of Nikahnama dated 17.12.2017 over foil (پرت ) No.1 to 4 between the parties as prayed for? OPD

4. Relief.

The learned Judge Family Court recorded evidence of the parties and having gone through the same, vide consolidated judgment and decree dated 14.12.2020, partially decreed the suit of respondent No.1 in the terms that she was held entitled to recover maintenance allowance at the rate of Rs.25,000/- per month with 10% annual increase from the date of marriage till her legal entitlement, whereas her claim for recovery of dower amount of Rs.15,00,000/- along with gold ornaments weighing 4-tolas was dismissed. The claim of the petitioner for restitution of conjugal rights was, however, decreed but subject to payment of monthly maintenance allowance decreed in favour of respondent No.1, whereas suit of the petitioner for cancellation of conditions mentioned in the Nikah Nama was dismissed. Feeling aggrieved both the parties assailed the said judgment and decree, but the learned Additional District Judge through a consolidated judgment and decree dated 31.03.2021 dismissed both the appeals. The petitioner has assailed both the consolidated judgments and decrees through the instant petition.

5. The learned counsel for the petitioner argued that both the Courts below have erred in law, as on the one hand both of them decreed the suit of the petitioner for restitution of conjugal rights, but on the other hand, decreed the claim of respondent No.1 for recovery of maintenance allowance at the rate of Rs.25,000/- per month with 10% annual increase, as under the law a wife who refuses to perform her marital obligations, is not entitled to receive any maintenance. In this regard referred to Section 277 of the Mohammedan Law. Further submitted that the maintenance allowance has not been fixed by the Courts below on the basis of means of the petitioner, but the amount has been taken from the columns of Nikah Nama and that too with 10% annual increase, which is not justified. Even otherwise, the petitioner challenged the entries of the Nikah Nama, but the Courts below failed to appreciate this aspect.

6. The learned counsel for respondent No.1, on the other hand, resisted the arguments and submitted that the Courts below have passed the impugned judgments and decrees on the basis of the columns of the Nikah Nama, which was duly signed by the petitioner as well as the witnesses, after all the conditions mentioned in its columns were settled between the parties. According to the learned counsel, even from the very first day behavior of the petitioner towards respondent No.1 was cruel and after few days of marriage he himself ousted her from his house; and that, even if a husband and wife are residing separately, the husband is bound to provide maintenance to his wife.

7. Arguments heard. Record perused.

8. Section 17A of the Family Courts Act, 1964 explains:-

(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.

(2) In a decree for maintenance, the Family Court may:

(a) fix an amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant circumstances; and

(b) prescribe the annual increase in the maintenance.

(3) If the Family Court does not prescribe the annual increase in the maintenance, the maintenance fixed by the Court shall automatically stand increased at the rate of ten per cent each year.

(4) For purposes of fixing the maintenance, the Family Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant.

Section 277 of the Mohammedan Law defines that "the husband is bound to maintain his wife (unless she is too young for matrimonial intercourse), so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain his wife who refuses herself to him or is otherwise disobedient, unless the refusal and disobedience is justified by non-payment of prompt dower or she leaves the husband's house on account of his cruelty."

9. In order to understand the proposition in hand Section 278 of the Mohammedan Law is also very relevant which says that "if the husband neglects or refuses to maintain his wife without any lawful cause wife may sue him for maintenance allowance but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement."

10. The moot point in the proposition is whether the lady is entitled for maintenance allowance in view of the definition of Section 278 of the Mohammedan Law. Section 277 defines the rights and obligations of the husband and wife and binds the husband to maintain the wife. Some conditions also have been imposed and some grounds also have been mentioned on the basis of which husband may refuse to maintain the wife. Section 277 also explains that there is a justification for the lady to live separately if the husband treats her with cruelty or does not pay prompt dower. The suit for maintenance by the wife and children is filed under Section 17A of the Family Courts Act, 1964, where the Court determines the financial status of the husband and in view of the evidence of the parties fixes the maintenance allowance but if the maintenance allowance is agreed between the parties through an agreement then it will be payable in view of the said agreement. Nikah Nama is very important document, as its all columns are legally binding on both the parties. Any right given through Nikah Nama to lady is her right strictly protected by law. The wisdom of Section 278 of the Mohammedan Law, already mentioned in the earlier paragraph is that the lady may sue the husband regarding the past maintenance allowance on the basis of agreement. The lady has to prove the execution of the said document or if it is mentioned in the conditions of Nikah Nama, then certainly she has to prove the Nikah Nama where such entry has been agreed in between the parties. In the present proposition all the above mentioned points are questioned by the petitioner. The petitioner has challenged the contents of Nikah Nama, its columns Nos.14, 16, 17, 19 and 20, with specific allegation of fraud and forgery. It was asserted by the petitioner that the above mentioned columns of Nikah Nama were filled in after the completion of Nikah and without knowledge and consent of the petitioner. The version of the respondent was that the Nikah Nama was validly executed in between the parties; all the witnesses were present at the time of Nikah; all the entries were read over to all the persons present in the Majlis and thereafter Nikah Nama Exh.P.1 was signed by all the relevant witnesses. The allegation of the respondent was that she was expelled from his house by the petitioner. The point of cruelty was also raised by the respondent through the suit whereas the version of the petitioner was that the lady was disobedient and she herself left the house of the petitioner without any reason, rather with a planning only after one day of the Rukhsati on the ground of marriage of one of her relatives in the company of her relatives and while leaving the house of the petitioner she also took away 4-tolas gold ornaments. The learned Judge Family Court has not fixed any liability of separation in between the spouses on anybody. Actually no evidence was led on this particular point. It has been noted that there could be no such circumstances which could be quoted by any of the parties because period of settlement of the spouses is one day or maximum fourteen days. During this period no particular stance was referred by any of the parties either on the point of cruelty by the petitioner towards the respondent or matter of disobedience on the part of the respondent towards the petitioner. The respondent has produced PW.4 and PW.5, her maternal uncle and paternal uncle, but their evidence is hearsay and is not based on any logic. The lady in her statement has defined the torture as, when she demanded her dower, she was put under torture. She also has admitted in the evidence that she did not pass on this torture to any of her relatives. The cruelty is defined in Section 281(2) of the Mohammedan Law as, when it is of such a character as to render it unsafe for the wife to return to her husband's dominion, is a valid defence to such a suit. It may be, too, that gross failure by the husband of the performance of the obligation, which the marriage contract imposes on him. So, the point of cruelty to this extent that the lady demanded the dower and it was not paid can be considered. Otherwise, no other disagreement was quoted as proof of the behavior of the husband or cruelty towards the respondent. On the other hand, allegation of disobedience as alleged by the petitioner is not proved. No event or particular point is cited to prove that the respondent was disobedient. Specially keeping in view the version of the petitioner that the lady remained only one day in his house, it cannot be presumed that there was any disobedience on part of the respondent, unless proved and established by the petitioner. From the evidence the petitioner was, however, unable to prove the allegation regarding disobedience of the respondent. Furthermore, there is no other corroboration to the statement of the petitioner in this regard. So, in this case the lady becomes entitled to claim maintenance allowance in view of Section 278 of the Mohammedan Law, as it was the obligation of the husband to pay maintenance allowance as agreed in column No.20 of Exh.P.1, which says:-

So, the version of the petitioner that this column was afterwards filled in and is the result of forgery, was not proved by the petitioner. The lady was under obligation to prove the execution of the document Exh.P.1. The execution of Exh.P.1 has been proved, as all the witnesses admitted that they signed over the Nikah Pert and none of them stated that they had not signed the Nikah Pert. Another important factor is that the petitioner has not proved that the copy of Nikah Nama was not given to him at that time. Neither it is the claim of the petitioner nor has he stated regarding this factor at any stage. He did not assail the entries of Nikah Nama for a long time and when the lady filed suit for maintenance allowance and dower, then the petitioner challenged the entries of Exh.P.1. Hence, it is proved to the extent that the petitioner is bound to pay maintenance allowance of Rs.25,000/- in view of column No.20. So far as 10% annual increase is concerned, it is not according to the spirit of column No.20 of Exh.P.1 because the case of respondent for maintenance allowance will not be dealt with under the conditions of Section 17A of the Family Courts Act, 1964, but in fact it would be seen in view of column No.20 of Exh.P.1, where the parties agreed for payment of Rs.25,000/- per month as maintenance allowance. Neither the Court had to see the financial status of the husband under the situation nor the maintenance allowance has to be fixed on the conditions maintained in Section 17A of the Family Courts Act, 1964. Therefore, 10% annual increase as ordered by the learned Family Judge is not according to the spirit of column No.20 of Exh.P.1 and that is not justified. Hence, the order to the extent of 10% annual increase in the maintenance allowance is set aside and findings on issue No.1 is modified to the extent that the lady is entitled for maintenance allowance of Rs.25,000/- per month as agreed between the parties through Exh.P.1, from the date of marriage till her entitlement.

11. The other moot point is the Majlis of Nikah, ingredients of Nikah and valid conditions of Nikah. The petitioner's grievance was that the conditions mentioned in columns Nos.14, 16, 17, 19 and 20 of Nikah Nama were not read over to him at the time of proposal and acceptance by the Nikah Khawan with a further objection that nobody in the Majlis heard the same. So, in view of the principles of Sharia, these conditions are not part of Nikah and as such are not binding upon the petitioner, but no relevant evidence was produced by the petitioner. All the witnesses including Nikah Khawan stated that Nikah Pert Exh.P.1 was signed at the time of Nikah.

12. Another legal aspect of the proposition is that the petitioner filed an independent suit on 09.11.2019 after the filing of the suit by the respondent on 23.02.2019 with the subject for cancellation of the entries in Nikah Nama Exh.P.1 dated 17.12.2017 regarding the columns 14, 16, 17, 19 and 20. It was the stance of the petitioner that those columns were filled in afterwards and without consent of the petitioner. At the time of the arguments before this court, counsel for the petitioner also brought attention of this court towards the entries of Column No.19 that the entry mentioned against column No.19 is not only fabricated, fictitious and has been filled in without consent and knowledge of the petitioner but also it is against the original text of the Holy Quran/the orders of Allah and the spirit of the instructions of the Almighty Allah and Sunnah. Exh.P.1 is an admitted document where no witness has resiled from his signatures. The date of Nikah is admitted one. The Majlis of Nikah is admitted one. The signatures on the Nikah Nama Exh.P.1 by the respective persons is admitted one. Now the question about the columns mentioned by the petitioner with the allegation that those were filled afterwards, is a very serious allegation and the same were to be proved by the petitioner. Regarding the column No.19 of Exh.P.1, the reservation of the petitioner was that it was not only forged, but also against the principles of Islam. This Court is of the view that Nikah Nama Exh.P.1 and its execution has been proved by the respondent side. All the persons who were present in the Majlis have admitted that this Nikah Nama was executed and was signed by all the persons mentioned in Nikah Nama. Their signatures reflect that all persons were educated and they know the meaning and importance of the paper they were signing and certainly they had gone through the contents of the same. It is noted that all the irrelevant columns were crossed by drawing a line by the Nikah Khawan. The Nikah Khawan PW.2 himself has appeared in the witness box and has certified that all the columns were filled at that time with the consent of the parties.

13. The ingredient for the valid Nikah is that it should be solemnized in one Majlis. There is no definition of Majlis that how many people are required to constitute a Majlis. "Fiqah", says that apart from the spouses, at least two witnesses are required to certify the proceedings of Aijabu Qabool () and that should be conducted in one Majlis. Therefore, this is the requirement that the person, who had been appointed as Wakeel for the lady, cannot be the witness of Nikah. He has his specific identity as to accept the proposal on behalf of the lady. Therefore, he cannot be the witness to the Nikah if some person is appointed as Wakeel of the lady, then there must be two independent witnesses of the Nikah apart from said Wakeel of the lady. The Nikah Khawan, however, can also be the witness of the Nikah if he also hears the Aijabo Qabool by himself, of spouses. The objection of the petitioner was that the condition mentioned in column No.14 was not read by the Nikah Khawan at the time of announcing the Nikah. This column was afterwards filled, also the condition mentioned in column No.19 Ex.PA is against the spirit of Islam. Whereas the Nikah Khawan has clearly stated in his statement before the trial court that he read over all the columns and the parties were agreed to that and thereafter signed over it. In the Holy Quran it has been directed by the Almighty Allah that whenever you enter in some contract or you do some deal (معاملہ ), write it down and the scribe should write what he has been advised to write, correctly, and thereafter two male among you be made witness to that writing or one male and two females may be the witnesses to the such writing. The witnesses must be from the same "Majlis", and they also had heard and understood the spirit of contract, or deal which has been agreed between the parties and has been written in their presence, then they had signed it, as witness. Now the spirit is that anything which has been brought in writing if it is witnessed by two persons and that is proved that witnesses have signed over the same; then under Section 79 of the Qanun-e-Shahadat Order, 1984, that document is proved one and in case of denial from that, the person denying the same has to produce the cogent reasons and solid grounds. In this proposition nobody had resiled from his signatures. The witnesses who had appeared in the witness box including the petitioner had certified the signatures. It was the liability on the part of the petitioner to prove that the Nikah Khawan got Exh.P.1 late registered in the Union Council office and the copy of the Nikah Nama Exh.P.1 was never handed over to him. In the written statement by the petitioner, no such ground has been taken by the petitioner. It cannot be assessed from the written statement that when the petitioner came to know about the entries. Even in the suit filed although this is mentioned by the petitioner that all the Perts (pages) were with the Nikah Khawan but he did not mention and did not produce any evidence regarding the fact that on the day of Nikah the Pert (page) was not handed over to him. The Nikah Khawan appeared as PW.2. No such specific question was put to the witness PW.2, therefore, it will be presumed that the Pert Nikah was handed over to the petitioner on that very day which is requirement of law after the registration of the same in the Union Council. This is also not mentioned through the evidence of the petitioner that when he demanded the Nikah Pert (page) from the Nikah Khawan or he applied to the Union Council for obtaining the Pert of Nikah. Therefore, the version of the petitioner is not proved that the entries in the column were not in the knowledge of the petitioner. The witnesses of Exh.P.1 signed over the same in the same Majlis. So, Exh.P.1 is not a disputed document. Therefore, to the extent of the entries, the petitioner is not succeeded to establish his case.

14. Another point raised by counsel for the petitioner was about the validity of the Nikah that anything not mentioned as Haq Mehr at the time of Nikah, it cannot be added afterwards. It was the contention of the petitioner that at the time of Nikah, no such Haq Mehr was fixed Rs.15,00,000/- (rupees 1.5 million) as has been mentioned in column No.14. Neither this was proposed by the petitioner nor it was put to the lady for having the acceptance of the proposal of Nikah. The entry in Column No.14 was made afterwards. Therefore, the entry of Column No.14 cannot be determined as Haq-ul-Mehr and the same is not binding to the petitioner to pay the same in lieu of Haq Mehr. The lady also cannot claim as Haq Mehr that amount mentioned in Column No.14.

15. This court has given thoughtful consideration to the arguments advanced by counsel for the petitioner. The ingredients of Nikah are proposal and acceptance in one Majlis in presence of the witnesses and with the fixation of Haq-ul-Mehr. مثل Misle Dower may be fixed that is based on custom that in some families the dower is fixed according to the customs of the families and even if it is not fixed in specific words at that time, then at the time of Nikah the word used is that and the proposal and acceptance are made with the same words. Now it was for the petitioner to prove that the proposal of المہر حق mentioned in Column No.14 was neither offered by the petitioner nor it was proposed before the lady for the acceptance of the Nikah. Therefore, this entry was not valid and it cannot be termed as dower. This is custom rather mandatory that dower is always fixed between the parties prior to the solemnization of Nikah and it is to be proposed and accepted in presence of the witnesses in the same Majlis. Oral Nikah is also valid with all these conditions. If the Nikah Nama was written at that time and it was signed in the same Majlis, then it will be presumed that the same was stated to the lady and the proposal and acceptance were there regarding dower, which has been mentioned in Columns Nos.13 and 14 of the نکاح پرت . Since all the witnesses of the Nikah have singed over Exh.P.1 within the same Majlis at the same time immediately after the Nikah and they did not object at any of the entry at that time and even afterwards till the petitioner filed the suit on 9.11.2019 for cancellation of the entries of Exh.P.1, it will be presumed that the said columns were duly filled in at that time in the same Majlis at the time of Nikah and it was a valid المہر حق. The petitioner was unable to prove the allegation that it was neither mentioned at the time of pronouncement of Nikah nor it was written at that time in the same Majlis. No reliable evidence was produced by the petitioner. To this extent, issue No.3-A has been rightly decided by the learned trial court and was rightly upheld by the learned Addl. District Judge, the first Appellate Court.

16. Now, come to column No.19 and its content of Exh.P.1. The right of divorce is given by the Almighty Allah. However, Allah Almighty does not like the act of divorce. I would like to quote the references from the Holy Quran and from some very eminent case laws. In the Holy Quran in Surah Al-Baqra and Surah Talaq the delegation of right of divorce has been described in detail. Similarly, section 7(1) of the Muslim Family Laws Ordinance, 1964 deals with the matter of Talaq. The provision of section 105 of the Code of Muslim Personal Laws also certain this thing that a husband has an absolute right to divorce his wife. In this regard no condition is described in Sharia as well as in the codified law. The same proposition has been discussed in case of "Muhammad Bashir Ali Siddiqui v. Muhammad Sarwar Jahan Begum" (2008 SCMR 186). No condition can be imposed on the husband if he desires to divorce his wife. Because the right of divorce has been given by the Almighty Allah to the husband and this proposition has been discussed in detail. I place reliance on "Mst. Zeenat Bibi v. Muhammad Hayat and 2 others" (2012 CLC 837). Therefore, to this extent, there is no other view that no condition can be imposed on the right of the husband if he desires to divorce his wife. To this extent, the entries of Column No.19 are against the spirit of the instructions of the Almighty Allah. The petitioner has taken a specific plea that the entry against column No.19 is also added afterward without consent of the petitioner; rather it was not in knowledge of the petitioner; furthermore, it is against the injunctions of Islam, hence void, ab initio and liable to be cancelled. The court has decided the issue against the petitioner while observing that regarding those claim for cancellation of entries, no evidence was produced by the petitioner. But to this extent the answer regarding entry No.19 is not correct because to decide the entry of Column No.19, no evidence is required. It pertains to the instructions of the Holy Quran and Sunnah and anything contained in the document which is against the spirit of Islam or the orders of Allah and Muhammad (Peace Be Upon Him) cannot bind the parties even if had been made with the consent of the parties. So to that extent, the judgment on issue No.3-A is modified, there was no need of any evidence but from the bare reading of Column No.19, that is found against the injunctions of Islam, hence, declared void ab initio and not binding to the parties. But since the court had not passed any order regarding the same which could have effect adversely to the petitioner, therefore, this part of the judgment will have no effect on the other parts of the judgment. However, the entries of Column No.19 are declared void ab initio as these are against the injunctions of Islam. So to that extent, the prayer of the petitioner is allowed. Therefore, under the Constitutional Jurisdiction, this court holds that the entries of Column No.19 for imposing any condition on the husband to divorce his wife are null and void.

17. The lady is still the legally wedded wife of the petitioner and she had not been divorced. The lady is entitled for the monthly expenditure of Rs.25,000/- from the date of Rukhsati till the satisfaction of the decision of the Family Court dated 14.12.2020 where the decree of restitution of conjugal rights has been awarded by the court with the condition to pay the monthly maintenance allowance. Since the lady has not filed any appeal against that judgment, therefore, the decree to the extent of restitution of conjugal rights has attained finality and the respondent will not be entitled for any monthly expenditure/pocket money after the satisfying of the decree dated 14.12.2020, if the respondent does not settle down with the petitioner in lieu of the order of the Court for restitution of conjugal rights dated 14.12.2020. The condition of 10 percent per annum increase in the monthly expenditure is against the spirit of the document, which is declared null and void. Therefore, the finding on issue No.1 is modified to the extent that the lady is entitled to receive monthly expenditure @ Rs.25,000/- from the date of her marriage till the satisfaction of the decree passed by the learned Family Court dated 14.12.2020 and there will be no 10 percent increase per annum in the maintenance allowance.

18. The upshot of the above discussion is that the Writ Petition is partly allowed. The findings on issue No.1 are modified to the extent that 10 percent increase is not justified in the order. The lady is entitled for the monthly expenditure till the date of the decision and satisfaction of the judgment and decree, and the entries of Column No.19 are declared against the injunctions of Islam, hence, declared null and void. There is no order as to costs.

ZH/M-172/L Order accordingly.

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