2009 PLP 671 (MLD)

ALI AKBAR QURESHI, J.

The petitioner through this constitutional petition has questioned the validity of an order, dated 31-3-2003 passed by the learned appellate Court whereby the claim of the petitioner to recover an amount of Rs.1 Lac mentioned in column No.17 of the Nikah Nama was disallowed.

2. The learned counsel for petitioner contended that the petitioner has only challenged the order, impugned herein, to the extent whereby the petitioner has been disentitled to recover an amount of Rs.1 Lac, mentioned in column No.17 of the Nikah Nama which has to be paid to the petitioner by the respondent at the time of giving `Talaq'. Learned counsel further contended that the learned appellate Court committed serious irregularity and jurisdictional defect by disentitling the petitioner to recover the said amount as the same is the part of the Nikah Nama and can be recover like dower amount. Further contended that the Nikah Nama which is the only document to prove the relationship of the parties fully established on record and till today, the said condition mentioned in column No.17 of Nikah Narna has neither been challenged nor denied, therefore, the learned appellate Court had no jurisdiction or authority to disallow the same. The learned counsel in support of his contention placed reliance on Muhammad Ishaque and another v. Mst. Manzooran Bibi alias Shahida Parveen and another (PLD 2003 SC 128). Learned counsel also contended that because of the amendment in section 7 of the Family Courts Act, all the entries or amount mentioned in the Nikah Nama are belonging and property of the petitioner which can be recovered by filing the suit under the family laws and the findings of the learned appellate Court to this effect is also contrary to the law.

3. Conversely, the learned counsel for respondent did not deny the factum of entering in column No.17 of the Nikah Nama but contended that the same can only be claimed or recovered by filing a civil suit and not suit under the family laws. Further contended that such type of condition cannot be imposed and if the same is written in the Nikah Nama being opposed to the law is not sustainable and learned appellate Court has rightly disentitled the petitioner to recover the same. The learned counsel has conceded all other claims of the petitioner except the recovery of Rs. 1 Lac, mentioned in column No.17.

4. I have heard the learned counsel for the parties and perused the record.

5. To resolve the controversy between the parties, I am guided by the principle laid down by Hon'ble Supreme Court of Pakistan in the judgment supra that if there is any future agreement between the wife and husband, the performance of the same can be asked or claimed by any of the spouse by filing a civil suit. In the aforesaid esteemed judgment, there was an agreement between the wife and husband wherein the wife had granted permission to the husband to contract second marriage on the condition that husband will continue to pay Rs.500 per month as maintenance and also transfer one residential room and one shop, part of the house belonging to the husband and his father. The husband on this condition obtained a certificate from the wife and entered into the "second marriage". The husband after conducting the second marriage refused to fulfil the agreement executed between the parties. The wife filed a suit for the specific performance of the agreement, which was, decreed upto the Hon'ble Supreme Court of Pakistan. On the same analogy and incidentally this judgment has been referred by the learned counsel for the petitioner, the petitioner, if so advised, may file suit before the civil Court and not under the family laws for recovery of the amount mentioned in column No.17 of the Nikah Nama. The findings recorded by the learned appellate Court do not call for any interference at this stage.

6. With these observations, this petition is disposed of with no order as to costs. H.B.T./S-138/L Petition dismissed.