PLJ 2021 SC 124
[Appellate Jurisdiction]
Present:
Qazi Faez Isa and Sardar Tariq Masood, JJ.
FAWAD
ISHAQ and others--Petitioners
versus
Mst.
MEHREEN MANSOOR and others--Respondents
C.Ps.
Nos. 154 and 155 of 2019, decided on 7.2.2020.
(On
appeal against the judgment dated 17-12-2018 passed by Peshawar High Court,
Peshawar in W.P. No. 2037-P of 2017).
Family Courts Act, 1964 (XXXV of 1964)--
----S. 2(d)--Constitution, 1973, Art. 185(2)--Suit for recovery
of dower against father in law and mother in law was decreed--Husband was not
party in recovery suit--Suit was filed after sixteen years of marriage--Mother
in law was neither a party in nikahnama nor signatory--Mother in law was
not authorized her husband to make any commitment on her behalf--Challenge to--Mst.
“K” was not a signatory to nikahnama nor had executed any other document
agreeing to transfer property, either before or after a house was constructed
on it, to her daughter-in-law--Mst. “K” also did not grant a power of
attorney or otherwise authorize her husband to make any
commitment—‘Declaration’ executed by respondent stated that his father had
agreed to construct and deliver possession of property, which is of little
consequence because, firstly, it is self-serving document and, secondly, property
was owned by Mst. “K” who had not agreed to part with it--Mst. “K”
had permitted her husband, expressly or impliedly, to transfer Property in
terms of Section 41 of Transfer of Property Act is not borne out by record--Mst.
“K” neither held out that her husband was ostensible owner of Property nor that
she had authorized him to transfer it--Mehreen also lead no evidence to show
that she had attempted to ascertain that Haji had power to transfer
Property--Therefore, “M” could not avail benefit of Section 41 of Transfer of
Property Act--If spouses of other sons of Mst. “K” were given land it
was inconsequential since every marriage and its terms are independent from
every other and there is no legal concept of parity--Mst. “K” was not a
signatory to nikahnama nor had she, at any stage, agreed to transfer
Property--Mst. “K” husband could not have made a commitment on her
behalf with regard to Property--“M” also did not array her husband as a party
to suit even though he was a necessary party thereto--“M” undoubtedly had a
valid claim against her husband with regard to dower promised by him at time of
marriage, as mentioned in nikahnama, and could claim value of Property
from him however she elected not to do so but instead lay claim to Property--“M”
could still claim from her husband any part of her dower which remains
unpaid--Appeals allowed. [Pp. 129, 130
&135] A, B, C, D, E & F
Mr. M. Munir Piracha, ASC and Mr. Mehmood A. Sheikh, AOR
for Petitioners (In C.P. No. 154 of 2019).
Sardar Muhammad Aslam, ASC and Ch. Akhtar Ali,
AOR (In C.P. No. 155 of 2019).
Mr. Imtiaz Ali, Advocate Supreme Court and Haji M.
Zahir Shah, AOR (absent) for Respondent No. 1 (In both petitions).
Mr. Amir Javed, ASC and Mr. H.M. Zahir Shah, AOR
(absent) for Mansoor Ishaq: (R.No. 3 in C.P.No. 154/19 and R.No. 5 in
C.P. No. 155/2019)
Nemo for other Respondents.
Date of hearing: 7.2.2020.
Order
Qazi Faez Isa, J.--Mehreen and Mansoor married on 15th
May 1995 and the Nikahnama mentioned the terms of their marriage. Form
II of the Muslim Family Laws Ordinance, 1961 prescribes the official form of nikahnama
and lists 25 questions.[1]
In this case question numbers 13 to 16 and the answers thereto in the Nikahnama
are relevant, therefore, the said pre-typed questions and their handwritten
answers are reproduced hereunder:
|
13۔ مہر
کی رقم |
حق
مہر مبلغ 500000/- (پانچ
لاکھ روپیہ)
ضرب
پاکستانی
سکہ رائج الوقت۔ |
|
14۔ مہر کی
کتنی رقم
معجل ہے اور
کتنی موجل۔ |
|
|
15۔ آیا مہر کا
کچھ حصہ شادی
کے موقع پر
ادا کیا گیا
اگر کیا گیا
ہے تو کس قدر |
75
تولے سونا
بصورت طلائی
زیورات سب
حاضر ہیں۔ |
|
16۔ آیا پورے
مہر یا اس کے
کسی حصہ کے
عوض میں کوئی
جائیداد
دیگئی ہے اگر
دیگئی ہے تو
اس جائیداد
کی صراعت اور
اس کی قیمت
فریقین کے
مابین طے پائی
ہے۔ |
ایک
عدد مکان
رقبہ ایک
کنال پر واقع 28
آبدرہ روڈ
یونیورسٹی
ٹاون پشاور
میں بنا کر
دیا جائے گا۔ |
2.
Sixteen years after the marriage, on 30th June 2011, Mehreen filed a suit
claiming a house, measuring 1 kanal situated on plot No. 28 Abdara Road,
University Town, Peshawar ("the Property"), or its prevailing
market value of thirty-three million rupees, which she said constituted part of
her dower (mehr) and as mentioned in clause 16 of the Nikahnama.
The suit was filed in Family Court-II, Peshawar. Mehreen arrayed Haji Muhammad
Ishaq Jan and Mst. Khurshida Ishaq, respectively her father-in-law and mother-in-law,
as the only defendants in the suit. The suit was decreed by the learned Family
Judge on 3rd May 2014. Both the father-in-law and mother-in-law filed separate
appeals but both were dismissed, vide consolidated judgment dated 15th
February 2017 of the learned Additional District Judge-X, Peshawar. Thereafter,
they filed two separate writ petitions before the Peshawar High Court, Peshawar
but these too were dismissed, vide impugned judgment dated
17th December 2018. It is against these three judgments that the
two petitions under consideration have been filed; Mst. Khurshida Ishaq
has filed Civil Petition for Leave to Appeal No. 155 of 2018 and Civil Petition
for Leave to Appeal No. 154 of 2018 is filed by the two sons and one daughter
of Haji Muhammad Ishaq Jan who had passed away.
3. The learned Sardar Muhammad Aslam
represents Mst. Khurshida Ishaq ("Mst. Khurshida")
and the learned Mr. Muhammad Munir Piracha represents the two sons and daughter
of the late Haji Muhammad Ishaq Jan; they have joined cause before us. The
learned counsel state that admittedly Mst. Khurshida owned the Property
which was conveyed to her through a registered document (Exhibit DW-2/1) dated
1st June 1964, however, Mst. Khurshida was not a party to the Nikahnama
and neither gave nor agreed to give the Property to Mehreen. And, Mst.
Khursida's husband (Haji Muhammad Ishaq Jan) was not given a power of attorney
or any other authority to make a commitment on her behalf or in respect of the
Property; reliance was placed on the case of Muhammad Siddiq v Shahab-ud-Din[2]
where a father was held not liable under Muslim law for the dower of his son.
They next submitted that the family suit was filed in a family court but the
plaintiff (Mehreen) did not array her husband (Mansoor) as a party therein nor
demanded her dower from him which defect in the suit was fatal to it. The
learned counsel state that in terms of Section 2(d) of the Family Courts Act,
1964[3]
("Act") the husband was a necessary party because he was
primarily liable to pay the dower but he was not arrayed nor did the learned
Judge of the Family Court order his joinder as a party. Section 2(d) of the Act
stipulates, that, "'party' shall include any persons whose presence as
such is considered necessary for a proper decision of the dispute." By not
arraying her husband (Mansoor) it can be assumed, submit learned counsel, that
Mehreen and Mansoor had collusively filed the suit to try to get the Property
without making Mansoor liable. The suit was filed sixteen years after the
marriage and execution of the Nikahnama, and the spouses (Mehreen and
Mansoor) are still happily married, it is submitted. Concluding their
submission the learned counsel state, that Mst. Khurshida and her
husband, respectively Mehreen's mother and father in law, took care of their
own interests, they filed their separate written statements, they engaged their
own counsel who represented them and independently contested the case.
4. Mr. Imtiaz Ali, the learned counsel representing Mehreen,
states that the matter has been concurrently decided and the learned Judge of
the High Court upheld the decisions of the two Subordinate Courts and there is
no legal reason for this Court to substitute its findings with three
well-reasoned judgments. The learned counsel refers to a document (Exhibit
PW-4/1) executed by Mehreen's father-in-law which confirms what the Nikahnama
records, that Mehreen's dower comprised of five hundred thousand rupees,
seventy-five tolas of gold jewelry and the Property, however, the dispute is
only about the Property. The learned counsel refers to Section 41 of the
Transfer of Property Act, 1882[4]
and the case of Kanwal Nain v Fateh Khan[5]
to contend that Mst. Khurshida had permitted her husband, who was the
ostensible owner of the Property, to transfer the Property to their
daughter-in-law therefore Mst. Khurshida is estopped from preventing the
completion of the transaction. The learned counsel cites the case of Muhammad
Anwar Khan v. Sabia Khanam[6]
in which the father of the bridegroom had committed to transfer his house to
the bride and it was held that the father had to fulfil his commitment, which
principle the learned counsel states is equally applicable herein. Referring to
the case of Parveen Umar v. Sardar Hussain[7]
it is submitted that the different properties (money, gold and the land with
house) mentioned in the Nikahnama were collectively given as dower and
were not alternatives. The learned counsel concludes by referring to the case
of Muhammad Arif v. District and Session Judge, Sialkot[8]
as precedent for the proposition that the father and mother of a plaintiff's
husband can be arrayed as parties in a family suit.
4. Mr. Amir Javed, the learned counsel representing Mansoor
submits that Mansoor got married when he was at University and then settled
abroad with his wife Mehreen. He refers to Section 2 (d) of the Act and states
that Mansoor was not a necessary party because the relief sought in the suit
was in respect of the Property and against Mst. Khurshida and her
husband; the decree was also passed against them, and not against Mansoor,
therefore, it was not necessary to array Mansoor as a defendant, and if the
learned Family Judge felt that he was a necessary party the learned Judge could
have impleaded him but did not do so. Mansoor's parents should abide by the
commitment made with regard to the Property at the time of the marriage, the
learned counsel concludes.
5. Reference has been made to a document titled 'Declaration'
(Exhibit DW-1/1) made before the Consul General of Pakistan Toronto, Canada by
Mansoor wherein he states on oath that, "According to the local
traditions my father, promised my wife Ms. Mehreen Mansoor a dower of 1 kanal
land with a fully constructed house on 28 Abdara Road, University Town
Peshawar, Pakistan … and [I have] advised her to claim the same from my
father…". Reference was also made to the inscription written by Haji
Muhammad Ishaq Jan, on page 2 of the Nikahnama, stating that a house
would be constructed on the said plot and given to Mehreen (Exhibit Pw-4/3-A).
In response to our query we were informed by the learned counsel representing
Mansoor and Mehreen that when the suit was filed they were happily living
together as husband and wife in Canada and continue to do so.
6. We have heard the learned counsel for the parties and with
their able assistance examined the documents on record, the judgments of the
Subordinate Courts, the impugned judgment of the High Court, provisions of the
laws that have been referred to and the cited precedents.
7.
Mst. Khurshida acquired land in the year 1964 on which subsequently a
house was constructed. It is also admitted that Mst. Khurshida was not a
signatory to the Nikahnama nor had executed any other document agreeing
to transfer the Property, either before or after a house was constructed on it,
to her daughter-in-law. Mst. Khurshida also did not grant a power of
attorney or otherwise authorize her husband to make any commitment on her
behalf with regard to the Property, let alone to transfer it. The ‘Declaration’
(Exhibit DW-1/1) executed by Mansoor stated that his father had agreed to
construct and deliver the possession of the Property, which is of little
consequence because, firstly, it is self-serving document and, secondly, the
Property was owned by Mst. Khurshida, who had not agreed to part with
it. Moreover, the referred to "local traditions" if they deprive a
lady of her property without her consent will not prevail over the law and
shariah (as discussed hereinbelow). The other document relied in support of
Mehreen's case is the Nikahnama (Exhibit PW-4/3) and in particular the
said note thereon (Exhibit PW-4/3-A) mentioning the Property, however, this
document too was not executed by Mst. Khurshida. In the referred to case
of Muhammad Anwar Khan v Sabia Khanam[9]
the father-in-law, who was the owner of a house, had agreed to transfer it to
his son's spouse at the time of marriage, however, in the present case Mst.
Khurshida had not agreed to transfer the Property, therefore, it is not
applicable to the facts of this case.
8.
The argument that Mst. Khurshida had permitted her husband, expressly or
impliedly, to transfer the Property in terms of Section 41 of the Transfer of
Property Act[10]
is not borne out by the record. To attract Section 41 it had to be established
that, Mst. Khurshida had expressly or impliedly held out that her
husband was the "ostensible owner" of the Property and had
authorized him to transfer the Property to Mehreen. The other requirements of
Section 41 are that the proposed transferee had taken "reasonable care
to ascertain that the transferor had power to make the transfer" and
had "acted in good faith". Mst. Khurshida neither held out
that her husband was the ostensible owner of the Property nor that she had
authorized him to transfer it. Mehreen also lead no evidence to show that she
had attempted to ascertain that Haji Muhammad Ishaq Jan had the power to
transfer the Property. Therefore, Mehreen could not avail the benefit of
Section 41 of the Transfer of Property Act.
9.
The learned Judge of the High Court was aware that the Property was owned by Mst.
Khurshida but had agreed with the decisions of the Subordinate Court because,
firstly, the wives of Mst. Khurshida's other sons had been given plots
of "2 kanal each", secondly, she did "not question
Nikah Nama" and, thirdly, her husband was "guarantor"
of the Property. With respect to the learned Judge, none of the three reasons
which prevailed with him (and which had persuaded the learned Judges of the
Subordinate Courts to respectively decree and uphold the decree) are
sustainable in law. If the spouses of the other sons of Mst. Khurshida
were given land it was inconsequential since every marriage and its terms are
independent from every other and there is no legal concept of parity. The other
cited reason, that Mst. Khurshida had not questioned (by which we
presume the learned Judge meant challenged in court) the contents of the Nikahnama,
was irrelevant, since the matter did not concern her; Mehreen and Mansoor were
sui juris and had agreed to get married on certain terms, which could not
unilaterally be imposed on Mst. Khurshida who had not executed or signed
the Nikahnama, therefore, Mst. Khurshida was not obliged to
challenge it. Moreover, it was for Mehreen to establish that Mst.
Khurshida had agreed to give the Property as dower to her, however, there was
no evidence that she had agreed to do so. The obligation to pay dower was
incurred by Mansoor and remained his to fulfil. As regards the reason that Mst.
Khurshida's husband was a guarantor of the Property it has no legal basis since
a husband has no right to his wife's property nor can he 'guarantee' or
encumber it without her permission.
10. We however find that the old
European and American concepts at times permeate into the thinking even of
judges in Pakistan. The doctrine of 'coverture' subsumed a married woman's
identity. Sir William Blackstone[11]
described the doctrine of coverture: "By marriage, the husband and wife
are one person in law: that is, the very being or legal existence of the woman
is suspended during the marriage, or at least is incorporated and consolidated
into that of the husband: under whose wing, protection, and cover, she performs
everything; and is therefore called in our law-French a femecovert …".[12]
In her comprehensively researched book[13]
Amy Louise Erickson writes, "Under common law a woman's legal identity
during marriage was eclipsed - literally covered - by her husband. As a 'feme
covert', she could not contract, neither could she sue nor be sued independently
of her husband. … The property a woman brought to marriage - her dowry or
portion - all came under the immediate control of her husband".[14]
It was only on the passing of the Married Women's Property Act, 1882 that in
England a married woman became, "capable of acquiring, holding, and
disposing by will or otherwise, of any real or personal property as her
separate property, in the same manner as if she were a feme sole, without the
intervention of any trustee".[15]
11. The situation in the United States of America of married
women was no better, they had no legal existence apart from their husbands. The
reason for a married woman's servile status was sought to be explained by the
Supreme Court of Illinois,[16]
"It is simply impossible that a married woman should be able to control
and enjoy her property as if she were sole, without practically leaving her at
liberty to annul the marriage".[17]
The unjustness of the laws was severely criticized. Elizabeth Cady Stanton
listed in the Declaration of Sentiments[18]
"the injuries and usurpations on the part of man toward woman"[19]
- "He has made her, if married, in the eye of the law, civilly dead. He
has taken from her all right in property, even to the wages she earns… the law,
in all cases, going upon a false supposition of the supremacy of a man, and
giving all power into his hands".[20]
Harriet Beecher Stowe was another campaigner for women's rights, observing
that, "[T]he position of a married woman… is, in many respects,
precisely similar to that of the negro slave. She can make no contract and hold
no property; whatever she inherits or earns becomes at that moment the property
of her husband. … [I]n English common law a married woman is nothing at all.
She passes out of legal existence."[21]
12.
Discrimination against women pervaded in other areas too. It was only in 1960
that women in America could open bank accounts without their husband's
permission[22]
and this right was acquired by women in the United Kingdom as late as 1975.[23]
The professions were also barred to women. Mrs. Myra Colby Bradwell had passed
the bar examinations but was not allowed to practice law; she asserted her
right to practice but in 1873 the United States Supreme Court[24]
held, that denying Mrs. Bradwell the right to practice law violated no
provision of the federal Constitution and added, "That God designed the
sexes to occupy different spheres of action, and that it belonged to men to
make, apply, and execute the laws, was regarded as an almost axiomatic
truth".[25]
13. The position of women in Islam is different. "Men
shall have the benefit of what they earn and women shall have the benefit of
what they earn".[26]
The Holy Qur'an also prohibits taking another's property - "Do not eat
up (or consume) one another's property".[27]
Women's share in inheritance are also precisely ordained.[28]
What a woman inherits is hers and hers alone; neither her husband, father,
brother or son has any entitlement to it; a woman also does not need permission
to dispose of her property or to acquire property. The bridal gifts given at
the time of marriage are also the wife's property, these can be added to but
not subtracted by the husband.[29]
It is also recommended that husbands make wills to provide for their wives.[30]
14. A husband and wife, who were both Government servants, had
challenged an office memorandum of the Government which did not treat husband
and wife alike. The Federal Shariat Court[31]
comprehensively attended to the question of discrimination and the status of a
married woman in Islam and after referring to a number of verses of the Holy
Qur'an[32]
held:
"These Verses
clearly confirm the right of earning, owning and possessing by male and female
- all in the like manner - and emphasizes again and again that no one can be
deprived of his/her due share for any reason. Both are equally entitled to
their own individual shares on the basis of their services, duties and
functions performed by each one. Each one is at par with the other in this
respect, without any discrimination. The rights of each one accrued thus in no
manner could be infringed, curtailed or diminished."[33]
The Federal Shariat Court held that, "one
of the principles which is the hallmark of Islamic injunctions is the principle
of equality before law and equal protection of law for all people, irrespective
of their gender, colour or creed".[34]
Elaborating further the Court observed, that:
"This
fraternity and equality is all pervading and is not only a matter of form but
is indeed a matter of substance. It emphasizes equality before law and equal
protection of law. In this respect, Sharia does not make any distinction
between the citizens of an Islamic State. Here we find no concept of
discrimination in the administration of justice between one person and another
on any basis. In social and legal perspectives, no human being can be denied or
deprived of any fundamental right, nor any juridical right can be reserved for
any particular group on the external consideration of his wealth, status caste
or colour or any other ground. It clearly shows that equality before law and equal
protection of law is the cardinal principle which runs like a golden chord in
all Injunctions of Islam."[35]
15. A chasm existed between a woman's position in Islam to that
which prevailed till a century ago in Europe and America where upon marriage a
wife stood deprived of her property, which became that of her husband to do
with it as he pleased. However, in the Muslim world the situation was
altogether different and this has been the position since over fourteen hundred
years. Muhammad Mustafa (peace be upon him) was employed by lady Khadijah bint
Khuwaylid (may Allah be pleased with her), the first convert to Islam, who
spent abundantly from her personal wealth in the cause of Islam; she retained
her properties and wealth after her marriage to the Prophet (peace be upon
him). In Islamic societies Muslim ladies not only retained their properties but
also their identities after marriage. The noble lady Ayesha (may Allah be
pleased with her) on becoming a widow on the death of the Prophet (peace be
upon him) was not cloistered but became one the greatest narrators of hadith
and between three to four thousand recorded in the six main hadith
collections[36]
cite her as their source; she was also a teacher, a great scholar and made her
presence felt on the battlefield.
16. British rule and Colonization of
the subcontinent disrupted Muslim society's links with the past but without
completely severing ties with shariah.[37]
To restore the privileges and status of women in Islam a number of laws were
enacted, including the Dissolution of Muslim Marriages Act, 1939.[38]
The importance of a Muslim married woman's right to property can be gauged from
the fact that, if her husband, "disposes of her property or prevents
her from exercising her legal rights over it", she could obtain
dissolution of her marriage because it constituted "cruelty"[39]
The proposition which has been put forward that Mst. Khurshida's husband
could deprive her of the Property is both against shariah and the Dissolution
of Muslim Marriages Act. Shariah, including the rights it grants women, was
made unassailable by the Constitution of the Islamic Republic of Pakistan,[40]
which specifically stipulates that all existing laws are to conform to the
injunctions of Islam as laid down in the Holy Qur'an and sunnah. The
Fundamental Rights in the Constitution include the "right to acquire,
hold and dispose of property"[41]
and "no person shall be compulsorily deprived of his[42]
property save in accordance with law";[43]
these provisions do not distinguish between men and women. Therefore, unless a
married woman elects to gift, sell or otherwise dispose of her property neither
her husband nor any male relative has any right over it.
17.
Mst. Khurshida was not a signatory to the Nikahnama nor had she,
at any stage, agreed to transfer the Property to Mehreen. Mst.
Khurshida's husband could not have made a commitment on her behalf with regard
to the Property. Mehreen also did not array her husband as a party to the suit
even though he was a necessary party thereto. Mehreen undoubtedly had a valid
claim against her husband with regard to the dower promised by him at the time
of marriage, as mentioned in the Nikahnama, and could claim the value of
the Property from him however she elected not to do so but instead lay claim to
the Property. Be that as it may, Mehreen could still claim from her husband any
part of her dower which remains unpaid.
18. Therefore, for the reasons mentioned above, these petitions
are converted into appeals and allowed by setting aside the judgments of the
Courts below and by dismissing the suit filed by Mehreen against Haji Muhammad
Ishaq Jan and Mst. Khurshid Ishaq. There shall however be no order as to
costs.
(Y.A.) Appeals allowed