Written Undertaking of Dower to Wife in Nikahnama

Written Undertaking of Dower to Wife in Nikahnama Case Laws Civil Law Concurrent Findings Constitutional Law Dower Dowry Family Knowledge - Civil Law Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Maintenance Solutions - Civil Law Solutions - Constitutional Law Mr. Justice Abdul Rahman Aurangzeb in his judgment has decided the issue regarding written undertaking of dower to wife in Nikahnama for consideration of marriage in Writ Petition No. 11306 of 2015.

1. Present petitioner has questioned validity of the judgment and decree passed by learned Additional District Judge, Multan dated 13.05.2015 whereby the judgment and decree passed by the learned Judge Family Court, Multan dated 17.09.2013 was upheld and the claim of dower and dowry articles of respondent No. 3 was concurrently decreed.

2. Precise and foremost facts of the case are that respondent No.3 filed a suit for recovery of maintenance allowance, recovery of dower, mentioned in the Nikah Nama, and dowry articles valuing Rs. 1180,256/-. The suit was resisted by the petitioner/defendant by filing written statement. The petitioner also filed a separate suit for restitution of conjugal rights.

3. The learned trial Court consolidated both these suits, framed consolidated issues and recorded pro and contra evidence led by the parties in order to prove their respective contentions. Thereafter the learned trial Court decreed the suit of respondents on 17.09.2013 with the following relief:-

“In the light of above discussion, suit of the plaintiffs for maintenance allowance is decreed to the extent of Rs.2000/- per month each from the date of institution of the suit till the intact of marriage of plaintiff No.1, while to the extent of plaintiff No. 2 till his legal entitlement with 10% annual increase, while the suit of plaintiff for return of dowry articles to the extent of Rs.4,00,000/- is decreed. The suit of the plaintiff lady for dower is also decreed in her favour. The connected suit of petitioner/defendant for restitution of conjugal rights is dismissed. No order as to costs.”

Both the parties being aggrieved preferred their separate appeals against the impugned judgment & decree of learned trial Court but the learned appellate Court while upholding the findings of the learned trial Court vide his judgment & decree dated 13.05.2015, dismissed both the appeals. Hence, this writ petition.

4. Learned counsel for the petitioner at the very outset states that he do not challenge the validity of impugned judgment and decree to the extent of maintenance allowance as already expressed by him before this Court on 04.08.2017. However, he challenges the validity of impugned judgments and decrees passed by the Courts below to the extent of alternate value of dowry articles as well as dower in favour of respondent No.3. It is argued that the Courts below have not adverted to the actual facts relating to dower while awarding the decree. He has specifically mentioned that the contents of Purt Nikah have a pivotal role in case of dower and as such entry in Column No. 16 cannot be treated as the part of dower, therefore, the learned trial Court as well as the learned appellate Court have not considered this fact and wrongly decreed the suit. Similarly the value of dowry articles was also awarded in favour of the respondent No. 3 without considering the evidence of the parties as the respondent No.3 has failed to prove the dowry articles of such value; therefore, her claim is also liable to be dismissed. He relied upon “Mst. Ishrat Bano versus Noor Hussain and 2 others” (PLJ 2010 Peshawar 139 (DB), “Syed Nadeem Raza through Attorney General versus Mst. Amna-Taz-Zahra and 2 others” (2011 CLC 726), “Umar Farooq versus Mehnaz Iftikhar and 2 others” (2006 MLD 555) and “Lal Muhammad versus Mst. Gul Bibi and another” (PLD 1986 Quetta 185).

5. Refuting to the arguments of the learned counsel for the petitioner, the learned counsel for the respondents argued that both the Courts below have validly examined the evidence of the parties and the constitutional jurisdiction is not meant for to re-evaluate or re-assess the evidence, hence, the petition is liable to be dismissed.

6. Arguments heard and record perused. At the first instance with regard to issue of dower, it has to be examined that “Whether the entry of column No.16 of Purt Nikah can be entertain-able by the Judge Family Court?”

The columns No. 13 to 16 of Nikah Nama, which relates to dower, shows that in these specific columns, anything mentioned therein is the dower or the part of dower. The specific question whether the entry of column No. 16 can be treated as dower has already been examined by the apex Court in the case titled “Mst. Yasmeen Bibi versus Muhammad Ghazanfar Khan and others” (PLD 2016 SC 613), whereby it is held that an undertaking given in the Nikah Nama that certain property/land shall be transferred in the name of wife and she would be exclusive owner of the same, then such an undertaking can be construed as a part of dower or a gift to wife in consideration of marriage, therefore, it would fall within the exclusive domain of the Family Court to pass a decree in relation to such property/land.

7. Reverting to the columns of Purt Nikah where the wording of column No. 16 is as under. The contention of the petitioner that as in column No. 13 no such plot with constructed house is mentioned, therefore, the entry mentioned in column No. 16 is not applicable on the petitioner and cannot be termed as dower. Although the specification of property/plot with constructed house is not mentioned in column No. 13, wherein only amount of Rs.200,000/- is mentioned in shape of gold ornament (prompt) but even then at the time of marriage the condition of 05-marlas plot with constructed house was accepted by the petitioner and, hence, the same is mentioned in column No.16 as dower.

8. Besides the fact of fixation of dower specifically, it can more or less be treated as a valid undertaking for dower mentioned in the Purt Nikah when a bridegroom agreed to pay the dower then irrespective to the fact of mentioning the dower fixed in the specific column became redundant. Hence, the petitioner is not permitted to resile from his undertaking and he is under obligation to provide the plot with constructed house to the respondent (wife) in lieu of dower.

The elaboration of word undertaking according to Black Law Dictionary Seventh Edition is “A promise, pledge, or engagement. A bail bond.”

In chambers Law Dictionary 12th Edition, it is defined as “that which is undertaken, any business or project engaged, in a task one sets oneself.”

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