Ghulam Shabbir vs Mst. Abbas Bibi and others

ORDER

ASIM HAFEEZ, J. The sole ground under challenge is the decree passed on the basis of clause-19 of Nikah Nama, wherein parties mutually agreed that in case of an unreasoned divorce; declared by the petitioner to his wife, petitioner shall provide gold ornaments/finances as specified therein.

2. Learned counsel for petitioner contends that condition imposed in the Nikah Nama, by way of imposing, payment of compensation to the wife in case of divorce, is contrary to the law and Islamic Injunction. He referred to the decisions in the cases of Muhammad Sajjad v. ADJ and others (PLJ 2021 Lahore 485), Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another (2008 SCMR 186), Rukhsana Ambreen v. District and Sessions Judge, Khushab and 2 others (2021 CLC 1512) and Muhammad Ahmad v. Additional District, Judge and others (2019 CLC 89).

3. The submissions are misconceived. The vires and constitutionality of the Muslim Family Law, Ordinance, 1961 and schedule thereto, which included to Nikah Nama, were variously subjected to challenge successfully. Clause 19 forms part of Nikah Nama - Form-II, added in terms of Rules 8, 10, 11 and 12 of the W.P. Rules under the Muslims Family Law Ordinance, 1961.

4. Clause 19 of Nikah Nama in this case is grossly misconstrued. The financial benefits agreed mutually are in the nature of reasonable financial support for setting her free. There is no cavil that terms of Nikah Nama constitute a civil contract between the parties, both of which are at liberty to agree to the terms of arrangement. Clause-19, as available in Nikah Nama, is not in the nature of absolute bar qua right to divorce. It is not disputed that petitioner had divorced the wife -- which manifest that no bar to divorce was imposed.

5. As far as contractual obligation in column 19 is concerned, it was agreed and factum of Nikah Nama is not disputed. The amount agreed in terms of clause-19 of Nikah Nama is spousal support -- having all the attributes of alimony -- wherein reasonable benefits were offered to enable ex- wife to have dignified and comfortable life. There is no restriction that husband cannot agree to arrange for maintenance or agree to extend fiscal advantage to the wife, even after the divorce.

This nature of the benefit / advantage, which is not in any manner is restricting right of divorce, is in fact an act of bestowing benefit or gift upon wife to support her, hence, cannot be termed as illegal or contrary to the spirit of ISLAM and teachings of Quran. The concept of alimony is not alien to the Islam. Financial support agreed to clause 19 cannot be construed as encumbrance or clog on the right to divorce but manifests sense of continuing responsibility and affection, which cannot be construed as continuing maintenance allowance beyond the period of Iddat. Judgments cited and ratio settled constitute authorities considering their facts, which are distinguishable and not attracted to the facts of this case. Both the courts below have not committed any illegality while allowing claim of the wife in terms of clause 19 of Nikah Nama. No interference is warranted in exercise of constitutional jurisdiction.

6. This petition being devoid of merit, is hereby dismissed. No order as to the costs.