NIKAH NAMA—A CONTRACT NEEDS IMPROVEMENT

NIKAH NAMA A CONTRACT NEEDS IMPROVEMENT <!--[if gte mso 10]> NIKAH NAMA A CONTRACT NEEDS IMPROVEMENT By Malik Qamar Afzal, Advocate Supreme Court of Paksitan, Islamabad The marriage is the most cherished event solemnized by any individual in his lifetime, it's a union of two individuals belonging to the opposite sex through a civil contract, to tie down the future of two lives till eternity. It is purely a civil contract, the covenants and obligations based on considerations. This civil contract has always remained an important document in the history of mankind, and by the passage of time and due to the complexity of the society and multiplication of issues, arising between the two joining persons, the document has undergone changes depending on the social and contemporary timing of the society, where the said agreement is being executed and is to survive. In its contractual nature, somewhere man is given more rights than the women and similarly at some places woman is given extra protection to safeguard her rights to life. To achieve the balance of relationship it becomes very difficult, as its primary object is to provide protection to woman in consideration to man's right to continue his progeny. After the creation of Pakistan, the Nikahnama has undergone changes and improvements, the number of columns has increased and similarly due to the intervention of the Courts the interpretation of the existing columns has also changed. At present, the Nikah-form, which is used as the basic document to be filled up, to create this agreement is made available to the public through registered Nikah Khawan an authorized public officer, who retain the custody of the Register of the Union Council of the area, where he belongs, and the Nikah solemnized is duly filled-up, in his presence and is stamped by him in presence of spouses and witnesses. Altogether four copies are prepared, two to the parties, one in the Register and one in the Municipal record. The columns mentioned in the Nikahnama in addition to the basic information about two spouses, provide additional covenants and conditions, like (a) maintenance, (b) dower, (c) bridal gifts, (d) any transfer of moveable and immovable property, (e) whether the right of divorce is delegated to the wife (f) any additional condition. As the history has proven, the Nikahanama in spite of being a very important document and may be a sacrosanct to an extent of thinking, but in reality it is a simple civil contract. It has not achieved that importance which is given to the other interest creating documents e.g. sale deed of properties, share-certificates, national identity card, passport and other so many documents. The question is why the Nikahnama document has not gained the due importance? The answer seem to be is may be because it lacks the sanctity of a provincial or federal government, and being a local government matter, its importance is not as much as to the other contract based documents. Secondly, this document is not registered with the Provincial or Federal governments. Thirdly, the document bears no stamp duty to endorse any government's strength behind it, fourthly, the document itself is too much open ended, as it leaves too much openings to the contracting parties, and in the given circumstances when both the parties are tied down in the tug of social and economic interests and hence cannot exercise their rights independently, therefore, the natural result is they sign the document disinterestedly, not only against their free will but and also not according to their needs, consequently no one is willing to preserve it. After having given the main outlines of the document's weaknesses and its problems. I would propose the following immediate legislative enactments to make the Nikahnama more effective, respectable and enforceable: (a) the custody of the Nikahanama register should be with the provincial government at least; (b) the Nikah form should have stamp duty on it; (c) the columns wherein discretion of the parties is to be exercised, the columns should be filled-up by the government, wherein prescribing a minimum consideration, such like, for maintenance, an amount be fixed and also the dower amount be Continue