Understanding the Columns of Your Nikahnama in PakistanUnderstanding the Columns of Your Nikahnama in Pakistan

At Josh and Mak International, we provide an array of legal services designed to support our clients through the complexities of marital contracts and the implications thereof. Our approach to drafting and reviewing nikahnamas is thorough and detail-oriented, ensuring that each clause reflects the intentions of the parties and stands up to legal scrutiny.

Our services include:

  • Pre-Marital Consultation: We advise clients prior to marriage to ensure their nikahnama accurately reflects their agreement regarding dower, property rights, and any other matrimonial obligations or entitlements.
  • Clause Scrutiny: We meticulously review proposed clauses in the nikahnama, ensuring they are legally sound and protect our clients’ interests.
  • Divorce and Dissolution Advisement: In the unfortunate event of a pending divorce, we assist clients by evaluating the enforceability of the nikahnama’s conditions, guiding them through evidence presentation and helping them understand their legal standing.
  • Jurisdiction Guidance: We provide advice on the appropriate jurisdiction for filing claims related to the nikahnama, whether they concern dower, maintenance, or the enforcement of pre-agreed penalties.
  • Drafting Services: Our legal drafting services ensure that the stipulations in the nikahnama are clear, unambiguous, and in accordance with the legal statutes in place, thus reducing the potential for future disputes.
  • Legal Representation: Should disputes arise, we represent our clients in court, defending their rights as stipulated in the nikahnama and ensuring that the terms agreed upon are honored.
  • Post-Marital Agreement Support: We also offer services for the drafting and review of post-marital agreements, which may include changes to the nikahnama or additional stipulations agreed upon after marriage.

We encourage our clients to engage with our legal experts at Josh and Mak International to navigate the intricacies of marital contracts with confidence, backed by the knowledge and expertise of our dedicated legal team.You can contact us at aemen@joshandmak.com 

Nikah and the 26 Columns Involved

Nikah is a social contract that is completed through the process of offer and acceptance between two parties. A Nikah Nama is a legal document that outlines the rights and responsibilities of the parties involved.

Many people are unaware of the importance of the Nikah Nama, which is why it’s essential to emphasise its necessity. It ensures the protections granted to women by religion and law regarding their future. These protections are possible only through correctly filling out the columns of the Nikah Nama, so utmost care is needed in this process.

General Information (Columns 1 to 12)
These columns include details such as the names and parentage of the bride and groom, district, age, union council, representatives from both parties, witnesses, date of marriage, and the marital status of the bride (whether she is single, widowed, or divorced).

Haq Mehr (Dower) (Columns 13 to 16)
The registration of Haq Mehr in the Nikah Nama is mandatory, as it is a religious and legal right of the woman. The Prophet’s teachings suggest that the Haq Mehr should be an amount that the husband can easily pay and that the wife agrees to.

Column 14: Specifies whether the Mehr is prompt (Muajjal) or deferred (Muwajjal).
Column 15: If part of the Mehr is paid at the time of marriage, its amount is noted here.
Column 16: If any property or other assets are given in lieu of Mehr, complete details including its current value are recorded here to prevent any future deception.
Types of Haq Mehr

Muwajjal (Deferred) Mehr: If the payment of Mehr or part of it is set for a future date.
Muajjal (Prompt) Mehr: The part of Mehr that needs to be paid immediately, either at the time of marriage or when demanded by the wife.

Special Conditions (Column 17)
Column 17 is related to special conditions, which are crucial. This includes details on how maintenance (nafqah) will be provided in case of discord, and may also include stipulations regarding the wife’s residence post-marriage, whether she can continue education or employment, etc. Details of dowry can also be included in this clause.

Delegated Divorce (Column 18)
This clause allows the woman to seek the right to divorce from the husband. If the husband grants this right, any conditions set by him are recorded here. The woman can exercise this right under the specified conditions to free herself from the marital bond. She must notify the Chairman Arbitration Council of the use of this right.

Restrictions on Husband’s Right to Divorce (Column 19)
This column stipulates conditions on the husband’s right to divorce, such as immediate payment of Haq Mehr and custody of children. It is important to remember that courts may find terms in this column contrary to Islamic injunctions.

Documentation of Haq Mehr and Maintenance (Column 20)
If any documents related to Haq Mehr and maintenance are prepared at the time of marriage, they are recorded in Column 20.

Permission for Second Marriage (Columns 21 & 22)
Under family laws, obtaining permission from the first wife and the Chairman Arbitration Council is necessary for a second marriage. For a second marriage at the time of Nikah, filling out Column 21 is necessary, where the date of permission for the second marriage is recorded.

The Nikah Registrar completes the Nikah Nama and registers it with the Union Council.

Technical Details (Columns 23, 24, 25)
These columns include technical information such as the Nikah officiant and registration fees.

Declaration of Finality of Prophethood (Column 26)
This declaration, recently added to the Nikah Nama, is made in Column 26.

A review of case law on columns of nikahnama and their legal implications

In Pakistani law, the Nikahnama is a critical legal document in Muslim marriages, serving as a marriage contract that details the rights and obligations of the spouses. Various columns in the Nikahnama specify terms related to mahr (dower), gifts, and other conditions agreed upon by the parties. The interpretations by the courts in the cited cases underscore the legal sanctity of the entries made in different columns of the Nikahnama and the consequences of the parties’ actions or inactions concerning those entries.

In the following legal note, the treatment of gold and houses or property as entered in the Nikahnama is examined based on the judgments from the Lahore and Peshawar High Courts. The focus is on how these items, when mentioned in various columns of the Nikahnama, are treated by the courts upon dissolution of marriage or claims for dower.These judgments collectively affirm the sanctity of the Nikahnama as a contractual document where entries related to dower and other gifts or undertakings are to be fulfilled as stipulated. The High Court has made it clear that gifts or property mentioned in specific columns are not interchangeable and must be delivered according to the exact terms laid out at the time of marriage. Each column serves a different purpose, and entries therein are to be respected as separate obligations, not to be conflated or substituted with one another. The treatment of gold and houses or property in the Nikahnama is therefore contingent upon the specific columns in which they are entered and the nature of the stipulation

These cases underscore the criticality of the Nikahnama in Pakistani matrimonial law. The entries or omissions in the columns of the Nikahnama can significantly impact the legal rights and obligations of the parties involved. The judgements collectively affirm that the Nikahnama is a legally binding document, and its contents are presumed to be accurate unless convincingly challenged. Each case reinforces the necessity for clear, complete, and precise entries in every column to reflect the true intent and agreement of the marriage parties, safeguarding their legal rights and fulfilling their legal obligations.

In the cited judgments, the courts have consistently delineated the treatment of gold and property given to the wife in the Nikahnama, based on which column the entries are made. Each case reveals a different facet of how the courts interpret the stipulations of the Nikahnama, especially in the context of dower (Haq Mehr) and special conditions or undertakings by the husband.

These principles underscore the significance of the Nikahnama in matrimonial disputes and the legal status of the undertakings given by the bridegroom to the bride under Pakistani law. The courts take a nuanced approach to these cases, looking at the intention behind the stipulations, the wording of the Nikahnama, and the broader legal context within which these disputes arise.

2015 PLD 88 Lahore-High-Court-Lahore (Mst. Nabeela Shaheen vs Zia Wazeer Bhatti):

The judgment here emphasizes the completion of the transaction of dower upon marriage, as documented in the Nikahnama. This case highlights the legal standing of the entries against the dower column (typically column 16) in the Nikahnama. The court established that unless strong evidence is presented to the contrary, the entries regarding dower in the Nikahnama are to be affirmed solemnly. The legal principle arising from this case is the presumption of correctness of the dower amount entered in the Nikahnama, and the burden of proof lies with the party contesting these entries.

2022 MLD 1982
“Column Nos.13 to 15 and column No.16 are independent and not interdependent as they cater for two different undertakings between the spouses while executing the Nikahnama, thus the same cannot be read in conjunction. Through column Nos.13 to 15 reference is made to dower i.e. what will be the dower, whether it is prompt or deferred and whether some of the dower has been paid at the time of marriage, whereas column No.16 is an independent condition setup at the time of marriage as it refers to a special condition undertaken by the spouses while entering in the marital bond through a Nikahnama. In the above background for enforcement of the special condition as set up in column No.16, either of the spouses can approach the family court keeping in view the Schedule attached to the West Pakistan Family Courts Act 1964.”

2014 YLR 105 Karachi-High-Court-Sindh (Saeed Alam vs Family Judge, Rohri):

This judgment pertains to the scope of restitution of dower in cases of khula (judicial divorce at the instance of the wife). The legal principle concerns column 15 (related to dower) of the Nikahnama, which notes that dower payable at the time of marriage cannot be restored if paid at any other time. The court’s interpretation is that the dower mentioned in the Nikahnama is the benchmark for any consideration during khula, and any subsequent financial settlements not documented in the Nikahnama are not recognized in the context of khula.

2013 CLC 276 Lahore-High-Court-Lahore (Mst. Mussarat Iqbal Niazi vs Judge Family Court):

The case deals with the consideration for khula as mentioned in the Nikahnama (likely column 13), and bridal gifts, which may be mentioned in other relevant columns. The court held that the amount specified in the Nikahnama is the consideration for khula, and gifts given to the bride at the time of marriage, such as gold and land, are her property and cannot be returned without her consent. The principle here is that the specific mention of khula consideration in the Nikahnama is binding, and gifts recorded are not subject to return upon dissolution of marriage.

2012 PLD 108 Peshawar-High-Court (Mst. Rozeena Khattak vs Raja Abdul Rasheed):

This case centers on the recovery of dowry articles and property rights emanating from the entries in the Nikahnama (often columns related to dower and gifts). The principle established is that entries in the Nikahnama are presumed correct, and the burden of disproving them lies with the party challenging the entries. The court also indicated that the documents or agreements referred to in the Nikahnama hold legal weight and are considered part of the contract.

2012 PCrLJ 996 Lahore-High-Court-Lahore (Mst. Nasreen Bibi vs State):

The case discusses the sanctity of the Nikahnama entries when allegations of forgery and interpolations are levied against them. The judgment implies that the entries in the Nikahnama are presumed to be made in good faith and any challenge to their genuineness must be substantiated with strong evidence. The legal principle is that the Family Court has exclusive jurisdiction to determine the genuineness of the entries in the Nikahnama.

2011 MLD 176 Lahore-High-Court-Lahore (Mst. Maryam Haseena vs Syed Ejaz Hussain Shah):

The focus here is on the legal obligation arising from an agreement that finds mention in the Nikahnama (possibly in column 16 related to dower and gifts). The court held that such agreements are binding and can be enforced through legal action if not complied with. The principle arising is that agreements related to dower and gifts made contemporaneously with the Nikahnama form part of the marriage contract and are enforceable.

2011 CLC 726 Lahore-High-Court-Lahore (Syed Nadeem Raza vs Mst. Amna-tuz-Zahra):

The case emphasizes that the dower mentioned in the Nikahnama is the total payable dower and entries in different columns should not be construed to add to the dower amount unless specifically agreed upon.

2023 MLD 168 Peshawar High Court

The court addressed the issue concerning column No. 16 of the Nikahnama, which typically details any additional conditions or agreements beyond the standard clauses. In this case, the petitioner claimed ownership of property based on an ex parte decree of the Family Court, which related to entries in column No. 16. The court highlighted the importance of proper party array, challenge to the power of attorney, and the need for evidence/proof in cases where ownership is claimed based on entries in the Nikahnama. The judgment indicates that entries in column No. 16 can have significant legal implications, including property rights, but must be supported by evidence and proper legal procedure.

2023 PLD 446 Lahore High Court

This judgment underscores the legal binding nature of the entries in the Nikahnama, especially column No. 9, which pertains to the ‘wakeel of the bridegroom’. The court held that if a wakeel signs the Nikahnama, they may be legally bound to ensure the fulfilment of the obligations therein, such as the payment of dower, even if the primary obligor (the husband) is deceased. This case establishes the principle that signing as a wakeel can entail legal liability for the obligations of the Nikahnama.

2023 YLR 193 Lahore High Court

The court’s decision in this case focuses on the interpretation of columns No. 13 and No. 16 of the Nikahnama, which pertain to the prompt and deferred dower, respectively. The judgment clarifies that the prompt dower (column No. 13) is payable upon demand by the wife, whereas the deferred dower (column No. 16) is payable upon dissolution of the marriage or the death of the husband. The legal principle here is that the Nikahnama is presumed correct and binding regarding the stipulations of dower, and any claim to the contrary must be substantiated with evidence.

2023 CLC 1021 Lahore High Court

This ruling discusses the interplay between columns No. 13 to No. 16, which deal with dower and any special conditions agreed upon in the Nikahnama. It is important for the Nikah Registrar to ensure that entries are made correctly and that special conditions (column No. 16) are not confused with the dower (columns No. 13 to No. 15). The judgment highlights the need for clarity in the Nikahnama entries and that special conditions are distinct from the dower and must be independently executed and not mixed.

2022 PLD 686 Supreme Court

The Supreme Court’s decision reflects on the interpretation of entries in columns No. 13 and No. 16, emphasizing the intention behind the entries rather than the mere headings of the columns. The court suggests that the parties’ intention is crucial in determining the obligations arising from the Nikahnama.

2022 YLR 147 Lahore High Court

This case deals with the verification of arrangements already agreed upon by the parties, presumably recorded in the relevant columns of the Nikahnama. It underscores the importance of the Nikahnama as a record of pre-agreed arrangements.

2022 MLD 1982 Lahore High Court

The judgment relates to the enforcement of a special condition mentioned in column No. 16, separate from the dower specified in columns No. 13 to No. 15. The court made a distinction between dower and other conditions or undertakings set out in the Nikahnama, asserting that these are separate obligations and must be treated independently.

2022 MLD 416 Lahore High Court (Multiple References)

These references from the Lahore High Court revolve around the scope of dower as detailed in columns No. 14 and No. 16. They highlight the importance of specifying the mode and timing of payment for obligations other than the dower amount, which is typically recorded in column No. 13. The judgments also clarify that if no specific time for the payment of dower is mentioned, Section 10 of the Muslim Family Laws Ordinance comes into effect, entitling the wife to claim fulfilment of the obligation.

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2022 MLD 416 LAHORE-HIGH-COURT-LAHORE

Concerned Columns: Nos. 13 to 16

Legal Principle: This case establishes that under the Muslim Family Laws Ordinance, 1961, the Nikahnama serves as a civil contract where parties can stipulate their terms, including the dower, which is to be entered into columns 13 to 16. The court emphasized that any entry, whether it is an amount or an undertaking related to the transfer of property or other valuables, constitutes the dower or part of it. This underscores the binding nature of the terms entered in these columns (Muhammad Qayyum Anjum v. Additional District Judge, Muzaffargarh).

2022 CLC 729 LAHORE-HIGH-COURT-LAHORE

Concerned Column: No. 16

Legal Principle: The case involved a discrepancy in the particulars of a stipulated house in two copies of the Nikahnama, specifically in column No. 16, which pertains to additional conditions. The court found that the cutting in column No. 16 was satisfactorily explained and not effectively challenged, thus upholding the decree for the house. This demonstrates the critical nature of accuracy and completeness in the entries of the Nikahnama and that alterations must be properly accounted for and verified (Muhammad Sajjad v. Additional District Judge, Jalalpur Pirwala, District Multan).

2022 CLC 24 LAHORE-HIGH-COURT-LAHORE

Concerned Columns: General mention, but could pertain to columns Nos. 13 & 14 based on context

Legal Principle: This case reinforces the presumption that the contents of the Nikahnama, including the stipulations of dower mentioned in columns 13 & 14, are correct if the document is written and signed at the time of marriage in the same Majlis (gathering). Additionally, it is established that all columns of the Nikahnama are legally binding, and a woman can enforce her rights, including past maintenance allowances, as stipulated in the Nikahnama (Mujahid Kamran v. Mst. Saira Aziz).

2021 YLR 287 LAHORE-HIGH-COURT-LAHORE

Concerned Columns: Nos. 13 and 16

Legal Principle: In this judgment, the courts affirmed the binding nature of the dower and conditions specified in columns 13 and 16. The court decreed that the husband had to fulfil the conditions mentioned in these columns to uphold his part of the contract, highlighting the enforceability of the undertakings related to the dower and additional stipulations (Muhammad Masood-ul-Haq v. Additional District Judge, Bhakar).

2021 YLR 108 LAHORE-HIGH-COURT-LAHORE

Concerned Column: No. 17

Legal Principle: The dispute centered on the recovery of gold ornaments as mentioned in column No. 17. The court held that if a matter is not specifically cross-examined, the testimony relating to that column remains un-rebutted and is presumed to be correct. This implies the importance of detailed cross-examination regarding entries in the Nikahnama to challenge them effectively (Muhammad Naeem v. Additional District Judge).

2021 CLC 1512 LAHORE-HIGH-COURT-LAHORE

Concerned Column: No. 19

Legal Principle: The court found that stipulations in column No. 19, which can sometimes include conditions on the husband’s right to divorce, may be contrary to Islamic law and, therefore, void. This signifies that while the Nikahnama is a binding contract, certain terms that go against the core principles of Sharia may not be enforceable (Rukhsana Ambreen v. District and Sessions Judge, Khushab).

2021 MLD 880 LAHORE-HIGH-COURT-LAHORE

Concerned Columns: General mention, potential relevance to columns concerning the bride’s consent

Legal Principle: This case highlighted the importance of the Nikah Registrar accurately filling out all columns of the Nikahnama. Failure to do so can lead to legal complications and even penalties for the Registrar. It also indicates the necessity for the Nikah Registrar to ensure that all columns are filled with the specific responses of the bride and groom, reflecting their true and informed consent (Zeeshan Ali Zafar v. S.H.O.).

In the case of Mst. Saba Akhtar v. Imran Ashraf [2021 CLC 1165 HIGH-COURT-AZAD-KASHMIR], the court considered the provisions related to deferred dower. It was held that the Nikahnama is a public document presumed to be correct. If the deferred dower column does not specify a payment period, the wife is entitled to demand it at any time, and upon divorce, it is payable immediately. This affects the column related to deferred dower, emphasizing the husband’s obligation to fulfill dower payments when demanded.

The judgment in Jehangir Khan v. Mst. Saeeda Begum [2020 YLR 2350 PESHAWAR-HIGH-COURT] revolved around the entitlement of the wife to a residential house and maintenance allowance as stated in the Nikahnama’s columns 17 and 20. The court held that the silence in column 17 regarding the house being given in lieu of dower or as a gift still entitled the wife to the house, and confirmed her entitlement to maintenance as stipulated in column 20. The legal principle is that the husband’s obligations under these columns, even if not explicitly stated, are enforceable.

In Usman Khan v. Mst. Shehla Gul [2020 CLC 910 PESHAWAR-HIGH-COURT], the authenticity of the Nikahnama’s contents was in question. The court dismissed the husband’s claim of forgery and held that the husband cannot selectively accept parts of the Nikahnama. This case reinforces the integrity of the Nikahnama and the binding nature of all its columns.

The case of Mst. Hajira Bibi v. Abidullah [2019 CLCN 61 PESHAWAR-HIGH-COURT] dealt with the enforceability of promises made in column 17. It was determined that such entries represent enforceable promises, highlighting the contractual nature of marriage agreements within the Nikahnama.

In Saima Ashraf v. Additional District Judge [2019 YLR 640 LAHORE-HIGH-COURT-LAHORE], the court discussed the scope of maintenance allowance and dower. It was clarified that maintenance must be proportionate to the husband’s financial status and that dower, as stated in column 17, is due upon divorce. This case delineates the financial obligations of the husband as per the Nikahnama’s entries.

Shazia Parveen v. Additional District Judge [2019 CLC 1475 LAHORE-HIGH-COURT-LAHORE] highlighted the issues surrounding admission of dower payment. The court found that an admission must be considered in its entirety, affecting the entries in column 16. This case underscores the need for clarity and consistency in acknowledging the fulfilment of Nikahnama obligations.

In Mst. Iram Shahzadi v. Muhammad Imran-ul-Haq [2019 MLD 112 LAHORE-HIGH-COURT-LAHORE], the court addressed the distinction between dower and bridal gifts as recorded in columns 13 to 16. It held that gifts listed in addition to the dower are not to be returned in case of Khula, asserting the wife’s ownership of such gifts as per the Nikahnama.

Muhammad Aslam v. Ishrat Bibi [2019 CLC 947 LAHORE-HIGH-COURT-LAHORE] distinguished between the civil courts’ jurisdiction and matters pertaining to the Nikahnama. It was clarified that properties listed in column 16 as ‘Atiya’ (gifts) do not fall within the jurisdiction of the Family Courts, thereby emphasizing the civil court’s role in resolving such disputes.

The case of Muhammad Ahmad v. Additional District Judge [2019 CLC 89 LAHORE-HIGH-COURT-LAHORE] concerned the entry in column 17 regarding compensation in the event of divorce. The court held that the Family Court’s decision based on the Nikahnama’s entries was valid, reinforcing the enforceability of such conditions agreed upon during marriage.

Lastly, Aamara Azam v. Mohammad Nawaz Khan [2019 MLD 724 HIGH-COURT-AZAD-KASHMIR] focused on the implications of non-production of witnesses mentioned in column 8. The judgment highlighted the importance of transparency and due process during the Nikah and upheld the principle that marriage must be openly proclaimed, affecting the validity of entries made without proper witnessing.

 Sumaia Bibi v. Additional District Judge [2018 YLR 2562 LAHORE-HIGH-COURT-LAHORE]

Column Concerned: Column No. 16 (Property in lieu of dower)

Legal Principle: The judgment in this case underscores the presumption of truth attached to entries in the Nikahnama. It establishes that entries indicating property as dower, when uncontested in the Nikahnama, bind the husband to transfer said property to the wife as Haq-ul-Mehr. This reinforces the principle that the husband cannot later deny such entries, especially if he has not challenged them at the time of the Nikah.

 Muhammad Imran v. Additional District Judge [2018 PLD 429 LAHORE-HIGH-COURT-LAHORE]

Column Concerned: Columns No. 13 & 16 (Prompt dower and dower/undertaking for dower)

Legal Principle: This case clarifies that a husband’s undertaking for dower is enforceable even if it is not mentioned in the specific column designated for prompt dower but is recorded in another column of the Nikahnama. The judgment indicates that the husband is bound by his agreement and cannot resile from his undertaking, making any such entry enforceable as dower.

Muhammad Asif v. Mst. Nazia Riasat [2018 CLC 1844 LAHORE-HIGH-COURT-LAHORE]

Column Concerned: Column No. 19 (Conditions attached to divorce)

Legal Principle: The decision in this case states that no condition can be attached to the right of a husband to divorce his wife that could override the injunctions of Islam. It signifies that the entries in the Nikahnama cannot impose financial conditions on the right to divorce, indicating the need for such entries to be consistent with Islamic principles.

Muhammad Azam v. State [2018 PCrLJN 175 LAHORE-HIGH-COURT-LAHORE]

Column Concerned: Relevant column indicating age in the Nikahnama

Legal Principle: This judgment addresses the issue of child marriages and the validity of such a union under the Child Marriage Restraint Act. It implies that even if the Nikahnama indicates an age that would suggest the legality of the marriage, the actual age of the individuals, especially in cases of minors, is crucial and a marriage involving a minor may still be an offence under the Act.

Mst. Shehnaz Mai v. Ghulam Abbas [2018 CLCN 104 LAHORE-HIGH-COURT-LAHORE]

Column Concerned: Column No. 17 (Residential house undertaking) and Column No. 20 (Maintenance allowance)

Legal Principle: The case establishes that the husband is bound by the undertakings given in the Nikahnama, such as the provision of a residential house. Moreover, it asserts that the agreed maintenance allowance cannot be unilaterally altered or reduced, and any self-imposed condition by the husband is binding.

Muhammad Afzal Khan v. Chairman Arbitration Council [2018 CLC 1125 ISLAMABAD]

Column Concerned: Column No. 18 (Delegated right of divorce)

Legal Principle: The judgment highlights that the exercise of a delegated right of divorce by the wife is valid and enforceable, and the Arbitration Council must issue a ‘Divorce Effective Certificate’ even if the wife has passed away during the proceedings, provided the application is not withdrawn.

Mst. Mithan v. Additional District Judge, Jatoi [2017 MLD 1101 LAHORE-HIGH-COURT-LAHORE]

Column Concerned: Column No. 16 (Agricultural land promised as dower)

Legal Principle: This case reaffirms the Family Court’s jurisdiction to decide matters arising out of the Nikahnama. It confirms that promises made in the Nikahnama, such as the mutation of agricultural land as dower, are enforceable, and the wife is entitled to such property as per the undertaking.

2002 MLD 31 (Lahore-High-Court-Lahore): The case revolves around the entries related to dower (Column unspecified, likely relating to the columns recording details of dower). It was established that a Nikahnama is admissible to prove the factum of alienation of property in lieu of dower. The judgement emphasised that an entry in the Nikahnama pertaining to dower must be considered genuine unless strong evidence is provided to the contrary.

2001 YLR 2843 (Karachi-High-Court-Sindh): This case concerned the columns recording the bride’s consent and presence of witnesses (Column unspecified). The judgement articulated that a registered Nikahnama serves as proof of marriage and the bride’s consent, impacting the consideration of bail in criminal proceedings.

2000 PLD 355 (Lahore-High-Court-Lahore): Pertaining to the column recording the transaction of dower (Column unspecified). The legal principle arising is that the transaction of dower is completed on the day of marriage and that the Nikahnama serves to verify the settlement of dower between the parties.

2000 YLR 2882 (Lahore-High-Court-Lahore): This case involved the column indicating compensation in lieu of someone (Column No.16). The judgement found that such an entry is against the Constitution of Pakistan, which prohibits slavery and degrades the basic status of an individual.

2000 YLR 1324 (Lahore-High-Court-Lahore): Concerned columns relating to the bridegroom’s previous marriage(s) and permission for subsequent marriage(s) from the Arbitration Council (Columns Nos.21 & 22). The legal principle is that omission in these columns does not necessarily invalidate the Nikah if the required permissions were obtained.

1999 PCRLJ 279 (Lahore-High-Court-Lahore): The case related to additional payments beyond dower (Column No.19). The legal principle expounded here is the requirement of providing the best evidence to support claims about the contents of a Nikahnama.

1997 PCRLJ 880 (Lahore-High-Court-Lahore): This case also involved columns relating to witnesses and the bride’s wakil (Column unspecified), highlighting the importance of complete and accurate entries for legal verification of marriage.

1996 PLD 64 (Peshawar-High-Court): Relates to the column recording the dower (Column unspecified). The judgement held that the Nikahnama is a public document and its contents, including the dower amount, are presumed to be genuine unless strongly rebutted.

1993 CLC 1482 (Lahore-High-Court-Lahore): Pertains to the column stating the dower in terms of land (Column unspecified). The case established that subsequent specification of land given as dower is permissible and enforceable if done with mutual consent.

1989 MLD 985 (Lahore-High-Court-Lahore): Concerns the column indicating restrictions on the husband’s right to divorce (Column No.19). The legal principle is that a blank entry against this column indicates no restrictions were agreed upon at the time of marriage, but this does not preclude the parties from entering into a separate agreement later.

2022 MLD 1982 Lahore-High-Court-Lahore: The judgment clarifies that the special condition/undertaking listed in column No.16 of the Nikahnama is distinct and enforceable independently of the dower mentioned in columns 13 to 15. The court observed that a house promised in column No.16 must be delivered to the wife as stated and cannot be substituted with a room or linked to the dower that is subject to adjustment in the event of Khula (divorce at the instance of the wife). Even if the wife seeks dissolution of marriage through Khula and forgoes her dower, the special condition in column No.16 must be fulfilled as it is a separate contractual undertaking between the spouses.

2022 MLD 416 Lahore-High-Court-Lahore: This judgment underscores that column No.14 of the Nikahnama specifies the dower amount, and any other valuables such as gold or property must be detailed in their corresponding entries/columns. The court emphasizes that if the mode of payment of dower is not specified, then Section 10 of the Muslim Family Laws Ordinance, 1961 comes into play.

2021 YLR 287 Lahore-High-Court-Lahore: The court held that the conditions mentioned in columns 13 and 16 of the Nikahnama were binding. The judgment indicates that the wife’s suit for recovery of dowry articles, dower amount, and a house was decreed because the husband had not fulfilled the conditions stipulated in these columns.

2021 YLR 108 Lahore-High-Court-Lahore: This case focused on column No.17, where the dispute was about gold ornaments given to the wife. The court concluded that the wife’s claim that the gold was forcibly taken by the husband stood as there was no effective rebuttal or cross-examination on this point by the husband.

2019 MLD 112 Lahore-High-Court-Lahore: The court differentiated between dower (column 13) and bridal gifts (column 16), holding that gold ornaments mentioned as bridal gifts are not to be returned in case of dissolution of marriage through Khula, as they are separate from the dower.

2018 PLD 429 Lahore-High-Court-Lahore: The judgment enforced an undertaking made in column No.16 regarding property given as dower, indicating that such an undertaking is binding and enforceable, irrespective of whether the specific dower is mentioned in another column.

2016 MLD 473 Islamabad: This judgment addressed the presumption of truth attached to the Nikahnama entries, particularly where column No.15 mentioned four Tolas of gold as part of the dower. The husband’s liability was established based on the Nikahnama entries, subject to adjustments for gold already given.

2013 CLC 276 Lahore-High-Court-Lahore: The court determined that gold and land received by the wife were not part of the dower but were bridal gifts, and thus, retained by the wife after Khula. The entries in the Nikahnama, particularly in column 13, were considered the consideration for Khula, separate from the bridal gifts.

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2011 PLD 579 Lahore-High-Court-Lahore: The court held that bridal gifts mentioned in the Nikahnama (column 17) are the personal property of the wife and recoverable by her, even if she initially withdrew her claim for them.

2010 YLR 2452 Peshawar-High-Court: The court affirmed the presumption of truth to the entries of the Nikahnama, particularly where it mentioned gold ornaments in addition to the dower amount. The plaintiff was entitled to both the dower amount and the gold ornaments as stipulated in the Nikahnama.

2010 YLR 349 Lahore-High-Court-Lahore:

In this case, the court addressed the issue of gold ornaments mentioned in column No.16 of the Nikahnama. The judgment clarified that such ornaments, which are listed as gifts in the Nikahnama, become the property of the wife upon receipt and are not returnable to the husband in the event of a dissolution of marriage on the ground of Khula. This establishes the principle that gifts once given and recorded as such in the Nikahnama are the absolute property of the wife.

2003 YLR 3097 Peshawar-High-Court:

The judgment from this case dealt with multiple forms of dower mentioned in the Nikahnama without any stipulation that these were alternative arrangements. The court held that the entries in the Nikahnama were to be taken at face value, and the wife was entitled to all forms of dower stipulated therein, which included cash, gold ornaments, and property. The appellate court had erred in interpreting these as alternative and not cumulative entitlements. This judgment underscores that the terms of the Nikahnama are to be strictly adhered to, and unless specifically stated, different forms of dower are not to be considered mutually exclusive.

2003 CLC 1609 Lahore-High-Court-Lahore:

In this particular case, the court was confronted with the issue of gold ornaments alleged to be given at the time of marriage. The wife denied receipt of such ornaments, and the court noted that there was no mention of any ornaments against the columns provided in the Nikahnama for such purposes. The court’s judgment highlighted the importance of the Nikahnama as evidence of what was given at the time of marriage. In the absence of any entry in the Nikahnama or independent evidence to corroborate the husband’s claim, the court found that the marriage could not be dissolved on the basis of Khula in lieu of the return of these alleged gold ornaments. The judgment signifies that the entries in the Nikahnama carry substantial weight in claims relating to marriage benefits, and without proper evidence or documentation within the Nikahnama, claims for return of gifts or dower may not be sustained.

What are the key takeaways for brides claiming return of Gold and claiming transfer of houses when getting Khula or getting Marriage Dissolved by court ?

The key takeaways for brides in Pakistan regarding the return of gold and the transfer of houses upon seeking Khula or dissolution of marriage by court are as follows:

Documentation in Nikahnama: The details recorded in the Nikahnama are crucial. Gold and property listed in specific columns as part of the dower (Haq Mehr) or as gifts have distinct legal implications. Brides should ensure that all items given or promised at the time of marriage are accurately documented in the Nikahnama.

Gifts vs. Dower: Items listed as gifts in the Nikahnama, particularly in columns not designated for dower, are generally considered the bride’s property and are not subject to return upon dissolution of marriage, as seen in the 2010 YLR 349 Lahore-High-Court-Lahore case.

Enforcement of Special Conditions: Special conditions, such as the transfer of property listed in columns other than those for dower, can be enforced separately from dower obligations. This was observed in the 2022 MLD 1982 Lahore-High-Court-Lahore case where the court differentiated between dower (columns 13 to 15) and special conditions (column 16).

Claims for Property as Dower: When property is explicitly mentioned as part of the dower in the Nikahnama, brides have the right to claim transfer of that property upon dissolution of marriage. This claim can be upheld even if the dissolution is through Khula, where typically, the wife foregoes her dower rights, as long as the property is distinctly mentioned as part of the dower.

Not Alternative Unless Specified: Multiple forms of dower (cash, gold, property) listed in the Nikahnama are to be considered cumulative and not alternative unless explicitly stated otherwise, as demonstrated in the 2003 YLR 3097 Peshawar-High-Court case.

Burden of Proof: In cases of dispute, the burden of proof lies with the party making the claim. If the husband claims the return of gold or property, he must provide evidence of such conditions, or else the items remain with the wife, as seen in the 2003 CLC 1609 Lahore-High-Court-Lahore case.

Jurisdiction of Family Courts: Family Courts have jurisdiction to entertain and decide matters arising out of the Nikahnama, whether these are mentioned as dower or as an undertaking for the satisfaction of dower.

Separation of Khula and Dower: The dissolution of marriage on the basis of Khula typically involves the wife forfeiting her dower rights. However, if the Nikahnama specifies property or gold as bridal gifts or separate from the dower, these may not need to be returned or used as a bargaining tool in the Khula process.

Legal note regarding the treatment of gold and houses or property given to the wife in the nikahnama which does not belong to the husband 

In the case of Muhammad Anwar Khan v. Sabia Khanam and another (PLD 2010 Lahore 119), the Lahore High Court addressed the issue of a house listed in the nikahnama as dower property. The court held that normally, a husband cannot give as dower property that he does not own, but an exception can be made if it is shown that the owner of the property, such as the husband’s father, consented to its being given as dower. In this case, even though the house was not in the husband’s name, the court found that the husband’s father had tacitly consented to the house being given as dower because he did not object to the inclusion of his house in the nikahnama at the time of the marriage or afterward.

The court’s judgment implies that if property is mentioned as dower in the nikahnama (Column Nos.15 and 16 in this case), and there is consent from the owner, then the wife is entitled to the transfer of that property upon dissolution of marriage. It is not necessary for the owner to have signed the nikahnama, as their consent can be implied from their actions or inactions.

In relation to gold ornaments, the Family Court dismissed the claim for recovery of gold ornaments as dower, suggesting that either the evidence was not sufficient to prove that they were part of the dower or that their inclusion in the nikahnama did not meet the legal requirements to be enforceable as such.

This case indicates the following key points regarding how gold and property listed in the nikahnama are treated by the courts:

  • Property as Dower: Property listed in the nikahnama as dower is legally binding and must be transferred to the wife as part of the dower if there is consent from the owner, even if not directly stated in the document.
  • Implied Consent: Consent for the inclusion of property in the nikahnama can be implied by the owner’s actions or lack of action to contest its inclusion.
  • Burden of Proof for Gold Ornaments: The wife must provide evidence to support her claim if gold ornaments are to be considered part of the dower.

Conclusions and Analysis 

(1) The judgments reiterate the significance of the columns of the nikahnama in determining the enforceability of dower claims. Properties or items listed as dower in specific columns are treated with legal sanctity, and the consent of the parties involved, especially in the case of property not owned by the husband, is central to the court’s determination.

(2) Understanding these points can help brides to effectively claim their entitled assets and navigate the legal process of marriage dissolution with a clearer perspective on their rights as per the Nikahnama and Pakistani law.

(3) Legal Representation and Advice: Given the nuances in the interpretation of the Nikahnama and the legal rights pertaining to dower and gifts, it is advisable for brides to seek legal counsel to ensure their rights are protected when entering into a marriage contract and in the event of its dissolution. Our team is available for consultation at aemen@joshandmak.com 

(4) Each of these judgments reinforces the contractual nature of the Nikahnama, with its entries serving as critical evidence of the terms agreed upon by the spouses at the time of marriage. The court decisions demonstrate a consistent approach whereby the specific columns in the Nikahnama where gold and property are entered play a significant role in determining the wife’s rights to these items upon dissolution of marriage. Gifts listed in the Nikahnama, once given, are regarded as the wife’s property and are not subject to return, while dower obligations must be fulfilled as stipulated, without presumption of them being alternative unless explicitly stated.

(5) In analyzing the legal principles arising from the cases provided, it’s clear that the columns of the Nikahnama, which is a legal document stipulating conditions at the time of a Muslim marriage in Pakistan, hold significant weight in matrimonial disputes. Each column has a specific implication for the rights and obligations of the spouses, and the judgements of the High Courts and Supreme Court have provided interpretative guidance on these implications.

(5) For instance, the conditions written in various columns of the Nikahnama such as columns 17, 18, and 19 typically relate to additional stipulations agreed upon between the parties, such as penalties for ousting the wife without reason, restrictions on the husband’s right to divorce, or additional sums payable upon the occurrence of specific events like a second marriage or divorce.

(6) The current case law collectively illustrates the paramountcy of the Nikahnama as a binding document in Pakistani matrimonial law. They emphasize the need for accuracy, completeness, and integrity in recording the terms of marriage and the enforceable nature of the undertakings given by the bridegroom to the bride, as entered into various columns of the Nikahnama. Each judgment further solidifies the legal framework that protects matrimonial rights and clarifies the jurisdictional scope of the Family and Civil Courts in matters arising from the Nikahnama. 

In summary, the judgments elucidate several key legal principles:

  • Entries in the Nikahnama, particularly in columns No. 9, No. 13, No. 14, and No. 16, are legally binding.
  • The role of the ‘wakeel’ may carry legal obligations concerning the fulfilment of the dower.
  • The distinction between prompt and deferred dower must be clearly stated.
  • Special conditions or undertakings in the Nikahnama are separate from the dower and need to be independently established.
  • The intention of the parties at the time of the Nikahnama’s execution is central to the interpretation of its columns.
  • Proper procedural legal steps must be followed when claims are made based on the Nikahnama entries.

Additionally; 

  • Conditions in the Nikahnama: The courts have consistently held that conditions agreed upon in the Nikahnama, such as the payment of a specific sum in case of divorce or second marriage, are legally binding and enforceable. However, such conditions must be clearly stipulated, and the recovery of any such amount is subject to the proof of the condition being met.
  • Jurisdiction of Family Courts: There is a delineation between the jurisdiction of the Family Courts and civil courts. Certain matters, particularly those related to the personal property of the wife or conditions that do not fall within the ambit of matrimonial matters, may not be adjudicated by Family Courts and must be pursued before civil courts of general jurisdiction.
  • Dower and Personal Belongings: The judgments distinguish between dower, which is a mandatory financial consideration given to the wife at the time of marriage, and personal belongings or conditional amounts mentioned in the Nikahnama. The recovery of dower is within the domain of Family Courts, but the recovery of conditional amounts, which are not part of the dower, may not be.
  • Delegation of the Right to Divorce: The courts recognize the validity of the delegation of the right to divorce (Talaq-e-Tafweez) if it is specifically endorsed in the Nikahnama. The exercise of such delegated right must comply with the legal formalities prescribed under the Muslim Family Laws Ordinance.
  • Non-Returnable Gifts: Gifts given to the wife, unless explicitly stated as returnable in the Nikahnama, become her property and are not returnable to the husband upon dissolution of marriage.
  • Property as Dower Protection: Property mentioned in the nikahnama as dower cannot be subjected to attachment or sale in execution, ensuring protection for the wife’s dower rights (2016 SCMR 2170).
  • Enforceability of Dower Amounts: In cases where multiple dower amounts are listed in the nikahnama, such as an amount in Column No. 13 and a different condition or amount in Column No. 14, the defendant is liable to pay the amount listed in the relevant column in the event of a divorce without cause or if a second marriage is contracted (2010 SCMR 930).
  • Inclusion of Additional Assets with Dower: Gold ornaments, land, and shares in property listed in the nikahnama through an Iqrarnama (a declaration or agreement) are considered in addition to the dower amount and are enforceable by the High Court (2008 MLD 1973).
  • Gifts in Nikahnama: Jewellery given to the wife as a gift by the husband and mentioned in the nikahnama are legally binding, and the High Court can direct the husband to return these gifts or their value (2008 MLD 1692).
  • Conditions of Khula in Nikahnama: Any conditions in the nikahnama that require payment from the wife upon obtaining Khula are declared against basic principles of law and are not enforceable (2008 SCMR 186; PLD 2008 Lah 398).
  • Transfer of Property without Registration: The nikahnama itself is sufficient proof of transfer of property listed therein for dower, without the need for registration or any other document (2005 MLD 376).
  • Evidence to Rebut Entries in Nikahnama: When a suit is filed for recovery of dower, any contention against the entries in the nikahnama must be strongly evidenced, otherwise, the courts will affirm the entries (LJ 2000 Lah 872).
  • Nikahnama as Public Document: The nikahnama is a public document and is admissible in evidence as proof of the transfer of property in lieu of dower (PLD 2000 Lah 236).
  • Admissibility Without Witnesses: If both husband and wife admit to the nikah, the production of two witnesses regarding the marriage is not essential (2016 YLR 793).
  • Penalty or Compensation Stipulations: Conditions in the nikahnama that stipulate penalties or compensation for actions like unjustified divorce or second marriage are against basic principles of law and are not actionable in court (2012 CLC 837; PLD2011 SC 260; 2008 SCMR 186).
  • Civil Claims for Stipulated Amounts: If an amount is specified in the nikahnama for the husband to pay in the event of divorce without cause or contracting a second marriage, the wife may file a suit in civil court to recover this amount (2010 MLD 930).
  • Claims as Property in Unjustified Divorce: A claim accruing to a wife upon an unjustified divorce is considered property and falls within the schedule read with Section 5 of the West Pakistan Family Courts Act, 1964 (PLD 2004 Lah 588).
  • Presumption of Truth in Nikahnama: The document is presumed to be truthful, and the burden to rebut this presumption lies with the party challenging its contents.
  • Relinquishment of Rights: If a wife voluntarily relinquishes her right to recover a stipulated amount in the Nikahnama and there is ample, cogent proof of this, a subsequent suit for its recovery may not be maintainable.

The Columns and the legal Operation of Khula on their enforceability

The legal landscape of marital dissolution through Khula, enforcement of special conditions in the Nikahnama, and the intricacies of the Dowry Restriction Act are dynamic and case-specific within Pakistani law. Through the exploration of case law, a comprehensive understanding of these legal principles can be gleaned.

The Enforcement of Special Conditions in the Nikahnama In the case of Sohail Liaqat v. Mst. Salma Shaheen (2022 MLD 1982 Lahore-High-Court-Lahore), the court emphasized the enforceability of special conditions set out in the Nikahnama. The husband’s undertaking to transfer a house to the wife as stipulated in the marriage contract was deemed an independent condition from the dower. Despite the wife seeking Khula, which was granted, and the wife being directed to surrender 2 tolas of gold ornaments as Badl-e-Khula, the court distinguished between the dower and the special condition. It held that the wife’s right to the property in question, as specified in column No. 16 of the Nikahnama, was not invalidated by the dissolution of marriage through Khula. The court’s dismissal of the constitutional petition reiterates that special conditions in the Nikahnama are contractual obligations that remain enforceable, separate from the dower arrangements.

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Concept of Badl-e-Khula and Transfer of Dower Property In the matter of Syed Shoukat Gillani v. Mst. Ansar Gillani (2017 MLD 1677 Shariat-Court-Azad-Kashmir), the Shariat Court of Azad Kashmir dealt with the dissolution of marriage on the basis of Khula. It underscored the Islamic principle that when mutual trust and understanding between spouses deteriorate to a point of irretrievable breakdown, dissolution through Khula is permissible. In this instance, the court determined that the wife was entitled to the dissolution of marriage on the basis of Khula in lieu of a house that was fixed as prompt dower but never transferred to her name. This reflects the legal principle that the entitlement to dower can serve as consideration for Khula if not fulfilled.

Dowry and Bridal Gifts in the Context of Khula The Peshawar High Court, in Shah Nawaz v. Mst. Suriya Bibi (2009 CLC 1196 Peshawar-High-Court), examined the intersection of Khula, dowry articles, and the Dowry and Bridal Gifts (Restriction) Act of 1976. The court maintained a decree for the recovery of 10 tolas of gold ornaments as a bridal gift instead of dower. Furthermore, the appellate court directed the wife to forego certain dower entitlements, such as 5 Kanals of landed property, in consideration of Khula but upheld her right to the remaining dower, now characterized as a bridal gift. The contention that the award of 10 tolas of gold ornaments violated the Dowry and Bridal Gifts (Restriction) Act was dismissed on the basis that the husband, having entered into the marriage and having accepted the wife into his home, was bound to fulfill the commitment irrespective of the Act’s restrictions.

These cases collectively highlight that in Pakistani law, the provisions of the Nikahnama, including special conditions and the matter of dower, are critical and enforceable elements in the dissolution of marriage through Khula. The legal system provides a nuanced approach, balancing the contractual aspects of the Nikahnama with the principles of Islamic law and the statutory provisions of the Dowry and Bridal Gifts (Restriction) Act. The courts take into consideration the individual circumstances of each case, ensuring that the decisions are in line with the tenets of fairness, justice, and the parties’ intentions at the time of marriage.

Khula and the Nikahnama: Legal Principles and Enforceability

In reading the cases below please remember that as per PLD-2022 FSC-25 (Shariat Petition No.4-I of 2016, 7-I of 2017, 4-I, of 2019 & 3-I of 2020) Section 10 (5) and 10 (6)  of the Punjab Family Court (Amendment) Act, 2015 were struck down with effect from 2022 for being against the injunctions of Islam.

PLD 2022 FSC 25 (Imran Anwar Khan v. Government of Punjab, etc.), wherein this Court specifically mentioned the date of 01.05.2022 for becoming Section 10(5) of the Family Courts (Amendment) Act, 2015 as null and void under Article 203D(2)(b) of the Constitution of Islamic Republic of Pakistan, 1973 as under: .28 ذٰہلا رشتعی رعدیضات ربمنی: رشتعی رعدیضات ربمن: /4آیئ آف 2016رمعام اونر اخم انبل وکحِتم اجنپب، رعدیضات ربمن: /7آیئ آف 2017رمعام اخم دجوم انبل وکحِتم اجنپب، رعدیضات ربمن: /4 آیئ آف 2019دمحم Shariat Petition No.16/I of 2022 Page-3 اربک دیعس وریغہ انبل ڈیفرنشی آف اپاتسکم وریغہ اور رشتعی رعدیضات ربمن/3: آیئ آف2020خیش ومحمد اابقك انبل وکحِتم اجنپب وظنمر رکےک یلمیف وکرٹ اٹکی، 1964یک دہعف 10ںیم اعتمرف رکایئ یئگ ذیلی رتامیم )5( اور )6( وک ریغ رشیع رقار دای اجات ےہ۔ ذموکرہ ذیلی رتامیم )5( اور )6( مکی یئم 2022 ءےس وسنمخ اور ریغ ومرث وصتر وہیگن۔ ذٰہلا وساك ربمن )۳( اک وجاب اابثت ںیم ےہ۔

The position right now has been elaborated recently by the Federal Shariat Court in SHARIAT PETITION NO. 16/I OF 2022 to prevent misconceptions as follows: 

“In …PLD 2022 FSC 25 (Imran Anwar Khan v. Government of Punjab, etc.). We have already declared in our above-mentioned judgment that under the Islamic law, as laid down in the Holy Quran and Sunnah, no Badl-e-Khula (عٍخ ثذي (can be fixed by a statute as a mandatory amount for claiming Khula from the husband through a Court. In case a woman voluntarily surrenders the entire amount of dower (مہز (she received at the time of her marriage in lieu of claiming Khula or Badl-e-Khula through a Court, then the Court has no option but to grant the decree of dissolution of marriage in her favour, after providing a chance to the spouses for reconciliation before passing of any decree of Khula. However, if a lady claims that she wants to seek Khula from her husband through a Court due to any maltreatment, mistreatment or ill-treatment, then the Court will decide the quantum of amount to be returned by the lady to the husband for seeking Khula based on the evidence and circumstances of the case after determining who is responsible for breakdown of the marriage.”

In the context of Pakistani family law, the legal principles surrounding Khula and the provisions of the Nikahnama (marriage contract) are critical for understanding the rights and obligations of spouses upon the dissolution of marriage. The cited cases provide a rich tapestry of judicial interpretation on these matters, particularly focusing on the enforcement of special conditions in the Nikahnama and the intricacies of dower (Mahr) return upon the granting of Khula.

2022 MLD 1982 Lahore-High-Court-Lahore This case illustrates the enforcement of special conditions within the Nikahnama. The court held that the condition stipulated in column No.16 of the Nikahnama, which was a contract to transfer a house to the wife, was independent of the dower mentioned in columns 13 to 15. Despite the husband’s claim that providing a room fulfilled the condition, the court concluded that the entire house, not just a portion, was meant to be delivered to the wife. The court distinguished between the dower and the special condition, emphasizing that a decree for possession of the house should be granted in favor of the wife, irrespective of the Khula proceedings, where the wife had to forgo the dower.

2022 CLC 634 Lahore-High-Court-Lahore The court clarified that the surrender of dower in a dissolution of marriage via Khula is not automatic or mandatory. The Family Court has discretion under Section 10(5) of the Family Courts Act, 1964, regarding whether to direct the surrender and to what extent, with the maximum being fifty percent of the deferred dower or twenty-five percent of the admitted prompt dower. The decision underlines that any direction for surrender should be part of the decree, and in case of outstanding dower, the husband is mandated to pay it to the wife.

2021 YLR 1453 Lahore-High-Court-Lahore This judgment further expounds on the surrender of dower, stating that if the dower is prompt, the wife should surrender 25% upon dissolution of marriage through Khula. The court disposed of the constitutional petitions accordingly, directing the wife to surrender the specified portion of the dower.

2018 MLD 870 Peshawar-High-Court In a suit involving dissolution of marriage, dower recovery, and custody, the court examined multiple facets of family law. The wife’s claim of cruelty was not directly proven, but her clear unwillingness to live with her husband led to the marriage’s dissolution. The court found that the wife was obligated to surrender half of the gold ornaments received as dower due to seeking Khula. The husband was also directed to pay past maintenance, highlighting his duty to maintain his wife till the end of the marriage.

2017 YLR 2481 Shariat-Court-Azad-Kashmir This case from Azad Kashmir’s Shariat Court stresses that when a wife claims Khula, she must return what was received as dower or offer something to her husband as ‘badl-e-khula’. The court found no illegality in the Family Court’s decision that the wife’s right to recover deferred dower was the consideration for Khula.

2017 CLCN 105 Shariat-Court-Azad-Kashmir Here, the wife’s entitlement to the remaining unpaid dower and maintenance in the context of an oral divorce was examined. The court found that the wife was not entitled to maintenance as she left the husband’s house of her own volition, and since she sought dissolution through Khula, she could not claim the outstanding dower.

2014 CLC 1270 Lahore-High-Court-Lahore The Lahore High Court dealt with the nuances of Khula when the aversion or hatred towards the husband results from the husband’s conduct. The court determined that the wife need not return the dower if the dissolution on the basis of Khula was due to the husband’s fault.

2012 PLD 164 Peshawar-High-Court The Peshawar High Court clarified that the direction of the Trial Court in a Khula case to fix the amount of ‘badl-e-khula’ must consider the specifics of the case. The High Court modified the ‘badl-e-khula’ from 9 to 5 tolas of gold, recognizing the wife’s entitlement to the remaining dower.

2011 YLR 2625 Karachi-High-Court-Sindh The Karachi High Court highlighted that gifts made out of natural love and affection, which are not part of the dowry articles, are not returnable upon the grant of Khula.

2005 CLC 1881 Peshawar-High-Court This case reiterates the principle that if a wife opts for Khula due to an aversion to her husband, she must forgo the benefits received from him, such as the dower.

2023 CLC 1285 The term “decree” in the context of the Family Courts Act, 1964, is to be understood as defined in section 2(2) of the Code of Civil Procedure. A decree for dissolution of marriage on the basis of Khula, which makes the dissolution subject to the return of dower, is executable and is considered a formal adjudication of the parties’ rights.

These cases collectively affirm that the stipulations in the Nikahnama carry significant weight and are enforceable independent of dower provisions. The judgments underscore the discretionary power of Family Courts in determining the return of dower upon the grant of Khula, with a consistent theme being the nuanced approach depending on the circumstances leading to the dissolution of marriage. The rulings show a progressive interpretation that aligns with the principles of fairness and the specifics of each case, reflecting the dynamism of family law in Pakistan.

Extracts from judgement(s) :

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.”

By The Josh and Mak Team

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