Fourth copy of Nikahnama kept by union council is most reliable and hold presumption of truth .
The unique point in this case is determining which copy of a nikahnama holds the presumption of truth. The court concluded that the fourth copy, kept by the Union Council, is most reliable because it is less likely to be tampered with.
The case involves a suit filed by Mst. Saima Mai against her husband, Ejaz Iqbal, for recovery of maintenance allowance, dower, and return of dowry articles after being ousted from her marital home. The trial court ruled in her favor, granting maintenance, the dower (a 5-marla house), and a sum for dowry articles. Ejaz Iqbal challenged the decision regarding the house, arguing discrepancies in different copies of the nikahnama. The Lahore High Court upheld the lower court's decision, emphasizing the reliability of the fourth copy of the nikahnama, kept by the Union Council, and dismissed the petition.
مقدمے میں محترمہ کی طرف سے دائر مقدمہ شامل ہے۔ صائمہ مائی نے اپنے شوہر اعجاز اقبال کے خلاف اپنے ازدواجی گھر سے نکالے جانے کے بعد دیکھ بھال کے الاؤنس، مہر، اور جہیز کے سامان کی واپسی کے لیے درخواست دائر کی۔ ٹرائل کورٹ نے اس کے حق میں فیصلہ سنایا، دیکھ بھال، مہر (5 مرلہ کا مکان) اور جہیز کے لیے ایک رقم دی گئی۔ اعجاز اقبال نے نکاح نامہ کی مختلف کاپیوں میں تضاد پر دلائل دیتے ہوئے گھر سے متعلق فیصلے کو چیلنج کیا۔ لاہور ہائی کورٹ نے یونین کونسل کی طرف سے رکھے گئے نکاح نامہ کی چوتھی کاپی کے قابل اعتبار ہونے پر زور دیتے ہوئے نچلی عدالت کے فیصلے کو برقرار رکھا اور درخواست خارج کر دی۔
Stereo. H C J D A 38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT
Writ Petition No.3075/2021
Ejaz Iqbal Versus Additional District Judge etc.
J U D G M E N T
Date of Hearing:
22.09.2021
Petitioner by:
Syed Haider Ali Bokhari, Advocate.
Respondent No.3 by: Mr. Ghulam Qadir Khan, Chandia,
Advocate.
Anwaar Hussain, J.
Brief facts of the case are that on
07.11.2019, respondent No.3; namely, Mst. Saima Mai (hereinafter
“the respondent”) instituted a suit for recovery of maintenance
allowance, dower and return of dowry articles against Ejaz Iqbal
(hereinafter “the petitioner”). The respondent averred in the plaint
that the marriage of the parties was solemnized on 03.12.2017
against dower of Rs.1500/- and 05 marla constructed house with all
facilities valuing Rs.2,000,000/- (hereinafter “the house”); and that
the petitioner ousted the respondent two months prior to institution of
the suit when she did not consent for his second marriage. The
respondent claimed for maintenance allowance at the rate of
Rs.10,000/- per month; dowry articles worth Rs.658,900/- and the
dower in the form of the house or alternate value thereof. The
petitioner appeared before the court and filed controverting written
statement. Out of divergent pleadings of the parties, the issues were
framed and evidence adduced by the parties was recorded. Vide
judgment and decree dated 22.10.2020, learned Senior Civil Judge
(Family Division), Muzaffargarh decreed the suit of the respondent
in the terms that she is entitled to recover maintenance allowance for
five months @ Rs.6,000/- per month including her Iddat period;
Writ Petition No.3075/2021 2
Rs.1500/- and the house as dower; and a sum of Rs.1,00,000/- as
alternate price of the dowry articles. Feeling aggrieved, both sides
preferred appeals, which were dismissed by learned lower appellate
court, vide consolidated judgment and decree dated 30.01.2021.
Hence, this writ petition has been filed by the petitioner.
2.
Learned counsel for the petitioner confined his challenge to the
decree qua the house only and has not laid challenge to the
remaining findings of the courts below pertaining to maintenance and
alternate value of dowry articles. Submits that the impugned
judgments and decrees are result of misreading and
non-reading of evidence because there were two counter leaves/pert
(رپت) of nikahnama (hereinafter “pert”) between the parties, which
are contradictory to each other to the extent of the dower and hence,
no presumption of truth is attached thereto. Adds that even
otherwise, the contents mentioned in Column No.16 of the
nikahnama have no value in the eye of law and cannot be regarded as
dower. Places reliance on Mst. Tanzeela Butt v. Additional District
Judge etc. (2018 MLD 320) in this regard to conclude that the
learned courts below erred in law while decreeing, 05-marla house
mentioned in Column No.16 of the nikahnama, in favour of
respondent.
3.
Conversely, learned counsel for the respondent has supported
the judgments and decrees of learned courts below by stating that the
nikahnama is a public document and presumption of truth is attached
thereto. Adds that the Nikah Khawan concerned, appeared before the
trail court as CW.1 and unambiguously admitted that the nikahnama
is genuine and non-mentioning of the house in Column No.16 thereof
in the fourth pert (Ex.D.1) forwarded to the Union Council
concerned is an inadvertent mistake on his part. Asserts that this writ
petition has no merit and hence, is liable to be dismissed.
4.
Arguments heard. Record perused
Writ Petition No.3075/2021 3
5.
The matter requires opinion of this Court as to which pert of a
nikahnama has presumption of truth attached therewith, being a
public document, in a case, where contradictory pert of the same
nikahnama are adduced before the court in evidence. In the instant
case, the respondent in support of her claim before the trial court,
appeared as PW.1 and placed on record her copy of nikahnama i.e.,
the second pert (Ex.P.3). Attested copy of original pert (Ex.P.5) of
her nikahnama was also brought on record. Both Ex.P.3 as well as
Ex.P.5, contain the following entry against Column No.16:
“پ چنرمہلزنیماکمنہکلناچردویاریلمکم”
On the other hand, the petitioner produced fourth pert (Ex.D.1),
which is attested copy of the pert available in the record of the Union
Council concerned and in the said pert there is no entry recorded in
Column No. 16.
6.
In order to better appreciate the controversy, it is imperative to
examine the procedure of solemnization of Nikah and the registration
of nikahnama under the law. The nikahnama is the document that
records the contents of a Nikah. It records the personal details of the
parties to the marriage, amount of dower, conditions of the Nikah
settled between the parties, and the names and addresses of the
witnesses to the marriage. The nikahnama records those facts and
conditions of the Nikah, which have been settled between the parties
as is evident from the language of its columns, distinguished by
numerical numbers and is regulated by Muslim Family Laws
Ordinance, 1961 (hereinafter “the Ordinance”) read with Muslim
Family Law Rules, 1961 (hereinafter “the Rules”). It involves three
people i.e., a Nikah Khawan, Nikah Registrar and Union Council
concerned. Under Rule 8, a Union Council gives a register with 50
leaves to the Nikah-Registrar. Each register contains nikahnama as
specified in Form II. Nikahnama is in quadruplicate (having four
pert). Under Rule 10, original pert is kept intact in the register
whereas the second pert, filled and signed is given to bride, the third
Writ Petition No.3075/2021 4
pert is given to the bridegroom and the fourth pert is forwarded to
the Union Council concerned. There is no cavil to the proposition as
it has become a stone-etched legal position that nikahnama, being a
public document carries with it presumption of truth as has been held
by the superior courts in catena of judgments. I am fortified by the
judgments reported as “Abdul Malik and others v. Mst. Subbha Mai
alias Sabbah Mai” (2016 MLD 925) and “Mst. Nabeela Shaheen
and others v. Zia Wazeer Bhatti and others” (PLD 2015 LAH 88).
Since second and third pert of the nikahanama are with the parties,
hence, possibility that they may tamper the same by addition or
deletion of an entry cannot be ruled out; however, the fourth pert
duly forwarded to the Union Council concerned or one that is kept in
the original register is the document, which carries the presumption
of truth as these two pert are kept in the official custody. However, it
is pertinent to note that there is a very fine and delicate interplay of
law of presumption and burden of proof. Presumption of a specific
fact shifts the burden on the other party. Presumption implies that a
certain fact is deemed to be true or proved on the basis of some other
relevant fact which is proved to be true. In other words, the existence
of a fact or set of facts is considered as proof of the existence of
some other fact. Such presumptions may be presumptions of fact or
presumptions of law. Similarly, presumption can be conclusive or
rebuttable. Rebuttable presumptions are such presumptions which
involve the use of words “shall presume”. Such rebuttable
presumptions have been embodied in Article 90, 95 and 99 of the
Qanoon-e-Shahadat Order, 1984 (hereinafter ‘the QSO’) whereas
irrebuttable presumptions involve the use of words such as
“conclusive proof” or “conclusive evidence”. Article 90 of QSO,
states as under:
“90. Presumption as to genuineness of certified
copies:
(1) The court shall presume every document purporting
to be a certificate, certified copy or other document,
which is by law declared to be admissible as evidence of
Writ Petition No.3075/2021 5
any particular fact and which purports to be duly certified
by any officer of the Federal Government or a Provincial
Government to be genuine;
Provided that such document is substantially in the form
and purports to be executed in the manner directed by
law in that behalf.
(2) The court shall also presume that any officer by
whom any such document purports to be signed or
certified, held, when he signed it, the official character
which he claims in such document.”
(Emphasis supplied)
Perusal of the above provision in general and proviso attached to
Article 90(1) in particular reveals that in order to carry presumption
of truth attached to a public document, it is imperative that such
document is substantially in the form and purports to be executed in
the manner directed by law in that behalf. Inference of presumption
of truth to any document involves an in-built declaration that such
document has been substantially in the form and manner as directed
by the law in that behalf. The statement of the Nikah Registrar, who
appeared as CW-1 is important in the instant case. He stated in his
examination-in-chief that he forgot to incorporate the terms of Nikah
in fourth pert (Ex.D.1) of the nikahnama and submitted the same in
the Union Council, without incorporating the terms and conditions of
Nikah between the parties. This fact itself implies that the nikahnama
was not filled in the form and manner as directed by law, hence, the
presumption of truth was never attached to the said nikahnama
between the parties. It is also evident that Column Nos. 14 to 16 in
fourth pert (Ex.D.1), have been crossed with the line in order to
reflect that nothing was incorporated in the said columns at the time
of Nikah as far as fourth Pert is concerned. Had the same been done
in the other pert of nikahnama at the same time, similar line should
have been drawn in Ex.P.5 (copy of original pert produced by the
respondent), which is not the case as no such line crossing the said
columns is visible in Ex.P.5. Be that it may, since
presumption of truth attached to nikahnama is rebuttable
Writ Petition No.3075/2021 6
presumption, therefore, even if such presumption of truth attached to
nikahnama (Ex.P.5) is presumed, the same being rebuttable, is taken
away in the instant case when Ex.P.5 is put in juxtaposition with the
Ex.D.1 as there is contradiction in both the pert of the same
nikahnama kept by public officials and produced before the court by
the parties. Hence, no presumption of truth was available in the
instant case even to Ex.P.5 (copy of original pert) or Ex.D.1 (copy of
fourth pert forwarded to the Union Council).
7.
This takes me to the nub of the matter and that is to opine as to
whether the respondent was able to prove the contents of her pert and
the courts below were justified in decreeing her suit. Under the
peculiar circumstances of the present case, nikahnama is to be
examined as a simple contract between the parties without any
presumption of truth attached to it. It has been held in “Mst. Shaista
Shahzad and another v. Additional District Judge and others” (PLD
2012 LAH 245) that “according to Mohammedan Law Nikah is not
a Sacrament but a civil contract between a Muslim man and woman
which is entered into for procreation and legalization of children and
the spouses after consenting it are bound to respect it and to live
within the limits of Allah.”
8.
The parties were obligated to prove the genuineness of the entries
of nikahnama particularly entry recorded against Column No.16. The
respondent herself entered in the witness box as PW.1 and produced
Muhamad Akram as PW.2 who also happens to be uncle of the
respondent and a witness of the nikahnama. His signatures as witness are
available on the three pert of the nikahnama produced i.e., Ex.P.3,
Ex.P.5 as well as Ex.D.1. On the other hand, the petitioner himself
appeared as DW.1 and relied upon fourth pert of the nikahnama, which
is Ex.D.1. Astonishingly enough, he did not produce any other witness of
Nikah in his support not even his own “wali/wakeel”, i.e., Wazeer son of
Bahadur Khan whose name is duly incorporated in the nikahnama
and who has affixed his thumb impression on all pert produced by
the parties in support of their respective contentions. The
Writ Petition No.3075/2021 7
petitioner did not produce his copy of nikahnama i.e., third pert,
which was given to him at the time of Nikah in term of Rule 10 of
the Rules. It is imperative to note that it is not the case of the
petitioner that he was not given copy of his pert of the nikahnama as
no such plea has been taken by the petitioner either in his pleading or
even in the evidence. The petitioner’s copy of pert was his best
evidence. By production of his pert of nikahnama, the petitioner
could have dispelled the statement of the CW-1 that he forgot to fill
the conditions of Nikah only in the “fourth pert” (Ex.P.5) prior to
submitting the same in the Union Council concerned under the law
and in the absence of the same, there seems to be no reason in
disbelieving the unshaken testimony of the respondent, her witness
as well as the scribe of the nikahnama. Therefore, non-production of
his own copy of pert of the nikahnama leads to adverse inference
against the petitioner as the best evidence in this regard has been
withheld by him and same brings the case of the petitioner within the
purview of illustration (g) to Article 129 of QSO, which
contemplates that an adverse presumption is to be drawn against the
party, who withholds the best evidence. The dicta laid down by the
Hon’ble Supreme Court in Dilshad Begum v. Nisar Akhtar (2012
SCMR 1106) is referred in this regard. So far as Mst. Tanzeela But
supra is concerned, the reliance by learned counsel for the petitioner
is misplaced, inasmuch as in case reported as Mst. Yasmeen Bibi v
Muhammad Ghazanfar Khan and others” (PLD 2016 SC 613),
Hon’ble Supreme Court of Pakistan held that the entries in various
columns of the nikahnama are part of undertakings related to the
dower.
9.
The nutshell of the above discussion is that there are
concurrent findings of two courts below against the petitioner and
there is no illegality or irregularity therein which could be pointed
out by learned counsel for the petitioner. Moreover, learned lower
courts have passed the impugned judgments and decrees after
thrashing evidence of the parties, which cannot be interfered with by
Writ Petition No.3075/2021 8
this Court in ordinary circumstances just to substitute the findings of
learned lower courts with that of its own. In fact the Hon’ble
Supreme Court has discouraged such practice in exercise of
constitutional jurisdiction by the High Court. I am fortified by the
law laid down by the Hon’ble Supreme Court of Pakistan in case
reported as Mst. Farah Naz Vs. Judge Family Court, Sahiwal (PLD
2006 SC 457) in this regard.
10. For what has been discussed above, this writ petition being
devoid of any force is hereby dismissed. No order as to cost.
(ANWAAR HUSSAIN)
JUDGE
Announced in Open Court on 23.11.2021
JUDGE
Approved for reporting
JUDGE
Comments
Post a Comment