Pakistan Case Law
2008 SCMR 186

MUHAMMAD BASHIR ALI SIDDIQUI vs Mst. SARWAR JAHAN BEGUM and another

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Citation2008 SCMR 186
CourtSupreme Court of Pakistan
Case No.Civil Petition No,413-K of 2006
Date2006-10-02
Judge(s)Saiyed Saeed Ashhad and Ghulam Rabbani
Authored bySaiyed Saeed Ashhad
ResultPetition dismissed
AI Summary — generated from this judgment; read the full text below and verify before relying on it.

This petition for leave to appeal challenged a Sindh High Court judgment that upheld a decree for dissolution of marriage on the ground of Khula. The petitioner argued that the Family Court failed to enforce a clause in the Nikahnama requiring the respondent to pay Rs. 2,50,000 upon obtaining Khula. The core legal question was whether parties to a marriage contract can impose financial restrictions or conditions in a Nikahnama that fetter the right to seek dissolution of marriage under Shariat Law. The Supreme Court dismissed the petition, holding that such conditions are contrary to the principles of law, which aim to foster peaceful and tranquil marital relations rather than binding parties through stringent financial penalties. The Court rejected the argument that such clauses serve as a deterrent to divorce, labeling it frivolous. The ratio establishes that contractual conditions in a Nikahnama cannot override or restrict the inherent rights of spouses under Shariat Law regarding the dissolution of marriage, and courts are not bound to enforce clauses that impose unreasonable financial barriers to the exercise of such rights.

Questions settled in this judgment
  • Can parties to a marriage contract impose financial conditions in a Nikahnama that restrict the right to seek dissolution of marriage via Khula?
  • Is a clause in a Nikahnama requiring payment upon obtaining Khula legally enforceable against the spouse seeking dissolution?
  • Does the imposition of financial penalties for divorce in a Nikahnama violate the principles of Shariat Law regarding marital ties?
KhulaDissolution of marriageNikahnamaFamily CourtShariat LawMarital rights

ORDER

' SAIYED SAEED ASHHAD, J. This petition for leave to appeal has been filed against the judgment of Sindh High Court. Hyderabad Circuit, Hyderabad dated 19-5-2005 in C.P.No,S-179 of 2005.

2. The parties were married sometimes in the year 1970. Paragraph 17 of Nikahnama provided that in case the respondent wanted to obtain Khula she would have to pay a sum of Rs,2,50,000 to the petitioner and if the petitioner would divorce the respondent, he would pay a sum of Rs,2,50,000 to the respondent. The respondent filed a suit for obtaining dissolution of marriage on the ground of Khula on 4th December, 2004. This suit was decreed on 17-9-2005. Against the said decree the petitioner filed above constitutional petition before High Court of Sindh. Hyderabad Circuit which.

Was dismissed by the impugned judgment. Hence this petition.

3. Contention raised on behalf of the petitioner is that learned Family Judge as well as the learned Judge of Sindh High Court failed to take into account paragraph 17 of the Nikahnama, the provisions of which have already been mentioned above. According to him it was incumbent upon the family Court to award Rs,2,50,000 while granting decree by way of Khula in favour of petitioner.

When confronted with the question as to whether parties could place restriction on their respective rights given to them by Shariat Law, Mr. Akhlaq Ahmed Siddiqui was unable to advance any plausible ground. His only contention was that such condition was embodied in the Nikahnama by way of safety and for prolongation of marriage contract, as it would deter both the parties from bringing an end to the marriage contract. This contention to say the least is absolutely frivolous as it is against the basic principle of law which require the parties to remain in marital ties in a peaceful and tranquil atmosphere and are not required to be bound by stringent conditions to remain in marriage bond.

4. This petition is absolutely without any substance and is dismissed. Leave refused.

Cited by 18 cases

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