P L D 2026 Supreme Court 20, Columns-13 and 16 of Nikahnama, Validity, Scope, Registered Nikahnama, Form of Nikahnama, Civil Petitions Nos. 768 and 827 of 2022

P L D 2026 Supreme Court 20

Columns-13 and 16 of Nikahnama

Interpretation

Mentioning of dower amount in Column-13 and immovable property in Column-16

Family court held the wife entitled to dower mentioned in Column No.16 in the form of property; Appellate Court found her entitled to dower amount mentioned in Column-13 and property in Column-16; whereas High Court held that claim of dower mentioned in Column-16 was in lieu of the amount mentioned in Column-13, thus, if the latter obligation was discharged, then the wife was not entitled to recover the dower mention in Column 16-

Validity

If the interpretation of the High Court is accepted then dower agreed to be paid in cash would have the effect of virtually making dower in other forms such as immovable or movable property redundant, which would negate the basic concept of dower i.e. parties out of free will agreeing to dower in any form provided it has a marketable value---Parties may, therefore, agree to dower being paid in cash in addition to and distinct from dower in any other form, such as immovable or movable property---Headings of columns in the Nikahnama are definitely not the determinant factor nor can they prevail over the intention of the parties, which would negate the very concept of dower-

High Court had virtually rendered the right to dower agreed between the parties in the form of immoveable property as redundant by subjecting its effectiveness to fulfilling the obligation recorded under Column-13-

Dower is obligatory and it could be anything which has a marketable value---It can be in the form of cash or property or both---Parties may agree to dower in the form of immovable property in addition to cash---Entry in Column-13 is definitely not a rider to entries in Columns-14, 15 and 16 as was held by High Court---Appellate court had correctly appreciated that the evidence and its interpretation regarding the entries in columns-13, 14 and 16 was in accordance with what the parties had intended at the time of execution of the Nikahnama---Judgment of the High Court was, therefore, set-aside and the judgment and decree of the appellate court was restored---

Columns Nos.13 and 16 of  Nikahnama

Distinction

Expressions used in Column No.16 “in lieu of”, “whole” and “portion”

Scope

Column 13 is titled 'amount of dower', which is generally construed as referring to dower in the form of amount of cash as being distinct from its other forms and does not refer to nor is construed as the value of the total dower agreed upon by the parties in all its forms because the parties may have intended and agreed to giving dower in its different forms i.e. cash as well as immovable property---Urdu version uses the expression 'raqam', which could be construed as cash only---Likewise, the headings of Columns Nos. 14 and 15 may also be understood as having reference to Column 13 and being distinct from Column 16---It is obvious from a plain reading of the expressions used in the heading of Column No.16 that it specifically refers to dower in the form of property---Expression 'in lieu’ has been used in the context of the 'whole' or any 'portion' of the dower---Dower may only be agreed in the form of property and, therefore, it would amount to giving such a property in lieu of the whole dower, however, the property may also be agreed as portion of the whole dower and in such an eventuality it has been intended to be given in addition to dower in some other form e.g. cash---Expression ‘in lieu’ has definitely not been used with reference to the amount of dower recorded in Column 13 as has been erroneously construed by the High Court---Column 16 further requires the recording of 'specification' and 'valuation' of the property agreed between the parties as dower, which further highlights that the column is specifically meant for recording the dower in the form of property, whether agreed upon to be part or whole of the dower.

Registered Nikahnama, nature of---Evidentiary value---Scope---Significance of the Nikahnama is evident from the fact that a presumption of truth is attached to it and, once it is registered, it enjoys the status of a public document---Likewise, there is a presumption of truth regarding the entries recorded in the Nikahnama---Nikahnama is a civil contract and it consists of terms agreed upon by the parties---Foundational principle of Nikah is the free consent of the contracting parties.

Dower (mehr on demand)---Ambiguity qua entries in Columns Nos.13 and 16 of Nikahnama---Determining factor---Headings/ Columns of the form of Nikahnama---Scope---Neither the headings nor the Columns of the form of the Nikahnama, prescribed by the Rules under the Muslim Family Laws Ordinance, 1961, are conclusive or sacrosanct, rather it is the intent of the parties which would be the determining factor---Any ambiguity in a contract is to be resolved by ascertaining the real intention of the parties and in order to interpret the terms of contract, the court has to first ascertain the intention of the parties---Headings of the prescribed form of the Nikahnama are, therefore, guidance of the parties and they do not enjoy the status of conclusively determining the intention of the parties.

Form of Nikahnama

Correctness of entries

Duty of Nikah Registrar

Scope---Failure to perform such duty---Effect---Correctness of the entries also depends on the competence, knowledge and experience of the licensed Nikah Registrar---Nikah or marriage contract may have been performed in the absence of a licensed Nikah Registrar as is contemplated under S.5(3) of the Muslim Family Laws Ordinance, 1961 (Ordinance)---Subsection (2A) was inserted in S. 5 of the Ordinance through the Muslim Family Laws (Amendment) Act, 2015, in the Province of Punjab, which makes it a mandatory duty of the Nikah Registrar or any other person who solemnizes the nikah to 'accurately' fill all the columns of the Nikahnama form with the specific answers of the bride or the bridegroom---Failure to fulfill this onerous obligation attracts penal consequences which have been expressly provided under S.5(4)(i) of the Ordinance ---Headings and expressions used in the prescribed form are, therefore, not free from being misconstrued and grossly misinterpreted, particularly if the Nikah Registrar or any other person solemnizing the Nikah lacks experience, knowledge or proper understanding of the principles governing the marriage contract.

Dower---Meaning, forms and scope---Marriage in absence of dower---Validity---Existence of dower---Presumption---Dower is a mandatory condition for a valid and effective marriage contract---Validity of a marriage remains unaffected even if the parties have not expressly mentioned it in the marriage contract because, in such eventuality, reasonable dower, 'Mehr-ul-Misel, is presumed---Dower is given by the husband to the wife and its determination would be subject to consent of the wife---Dower is the exclusive right of a bride, which is relatable to a thing which has marketable value---It can either be in the form of cash or property or both--It may be prompt or deferred---If the parties have not specified the nature of the payment of dower, then it is presumed to be prompt as provided under S. 10 of the Ordinance---Dower is an essential condition for giving effect to a valid marriage contract---It becomes the exclusive property of the wife because it has many benefits for both the parties---It is financial security for the wife and its determination must be guided by informed understanding of the bride regarding her rights---An unconditional declaration of dower in the form of immovable property leads to creating the exclusive ownership of the bride upon the execution of the Nikahnama and she cannot be deprived of her rights relating thereto in any manner---Dower in the form of cash is distinct from its other forms.

Nikahnama---Terms and conditions---Interpretation---“Whether, in cases of ambiguity, the rights recorded in the relevant columns should be interpreted in favour of the husband on the ground that he bears the financial liabilities?”---Held: Such an understanding is contrary to the concept and the fundamental principles relating to a Nikah i.e. a marriage contract---Law enforced in Pakistan relating to marriage contracts explicitly recognizes the rights of both the parties, the bride and the groom, to give free consent in order to enter into a contractual bond of marriage and the freedom to negotiate and settle the terms and conditions---Both the contracting parties must have informed understanding of their respective rights and the entries which are required to be recorded in the Nikahnama---Court, while deciding a dispute and interpreting the terms and conditions of the parties, has to take into consideration whether the free consent or free will of the parties was compromised on account of the attending circumstances, such as cultural and social influences.

Civil Petitions Nos. 768 and 827 of 2022

Mst. FAKHRA JABEEN and others Versus WASIF ALI