Yes, conditions written in a Nikah Nama are legally valid and enforceable in Pakistan. The legal standing and enforceability of these conditions are supported by statutes and court judgments.
Legal Position
- Muslim Family Laws Ordinance, 1961: This ordinance provides the basic legal framework for governing family matters, including marriage.
- The Punjab Family Courts Act, 1964: Section 5 and the Schedule of this act define the jurisdiction of Family Courts, which include matters arising out of the Nikahnama.
Enforceability of Conditions in Nikahnama
- Conditions Regarding Dower and Property:
- The THE PUNJAB FAMILY COURTS (AMENDMENT) ACT 2015, Section 15 states that any matter arising out of the Nikahnama falls within the jurisdiction of the Family Court.
- Earlier, the Family Court had jurisdiction only over specifically mentioned personal property.
- Mst. MITHAN Versus ADDITIONAL DISTRICT JUDGE, JATOI and 7 others, 2017 MLD 1101, the court decided that the Family Court has the jurisdiction to entertain and decide matters arising out of the Nikah Nama, especially after the addition of Entry No. 10 in Schedule (Part I) of the Family Courts Act, 1964. This related to a case where property was promised in the Nikahnama in lieu of dower.
- Wasif Ali and another Versus Mrs. Fakhra Jabeen and others, 2023 CLC 1021, emphasizes the need to read clauses 13 and 16 of the Nikahnama conjunctively to understand dower agreements fully. It also clarifies that Nikahnama terms are not binding on non-signatories.
- In Ghulam Muhammad Versus Parveen Akhtar and others, 2012 CLC 321, the court clarified that Family Courts have jurisdiction primarily concerning disputes over personal property or belongings of the bride already acquired.
- Conditions Regarding Divorce:
- MANNAN FEROZ—Petitioner versus SHOMAILA—Respondent, 2015 YLR 1235, held that a condition in the Nikahnama for payment upon divorce is an actionable claim and can be pursued through a civil court. The court distinguished this case from cases arising from family suits, affirming that civil courts have exclusive jurisdiction over conditions imposed upon a right of Talaq.
- In MANNAN FEROZ—Petitioner versus SHOMAILA—Respondent court clarified that a Muslim wife can stipulate for her divorce under a contract and also raise any claim based on the said contract apart from the dower fixed at the time of contract of Nikah
- Evidentiary Value of Nikahnama:
- Nasir Shah v. Mst. Nasira Bibi and another, 2018 YLR 2505, reinforces the evidentiary value and legal sanctity of the Nikah Nama in determining the terms and conditions of marriage, particularly regarding dower. It affirms that a husband cannot later deny or refuse dower to his wife unless she waives it or a competent court declares otherwise. Nikahnama is a registered document under Section 5 of the Muslim Family Laws Ordinance, 1961, giving it legal sanctity and status as primary evidence in matrimonial matters.
- Shaukat Hussain v. Civil Judge, Multan and others, 2006 YLR 349, clarified that even if there was an irregularity in the registration of the Nikah, it did not invalidate the marriage itself. The court noted that the Nikahnama is a public document, and a copy is admissible as evidence under Qanun-e-Shahadat. A copy of the Nikahnama is admissible as evidence.
- Validity of Marriage:
- Mst. GHULAM FATIMA AND 5 others versus Mst, ANWAR alias ANWARI BEGUM AND ANOTHER, 1981 CLC 1651, clarifies that a Kabeennama drafted before the Nikah ceremony does not automatically lead to the conclusion that it is not a genuine document.
- Aamara Azam v. Mohammad Nawaz Khan, 2019 MLD 724, emphasizes the importance of due diligence in proving the validity of a Nikahnama in family law cases. It underscores that a Nikah should be proclaimed openly and that the absence of key witnesses and discrepancies in the Nikahnama can be fatal to its validity.
- Mazhar Hussain v. Nazim Union Council, Bhalwal and others, 2003 YLR 1441, affirms that once a marriage is duly registered under the Muslim Family Laws Ordinance, it cannot be cancelled by the Union Council in the absence of specific legal provisions allowing such cancellation. It reinforces the legal sanctity of marriage certificates and clarifies the jurisdiction of Union Councils in matters of marriage registration and cancellation.
- In Arid Rashid v. S.H.O., Police Station City Pakpattan and others, 1992 P Cr. L J 1376, the court directed the Investigating Officer to verify the Nikahnama, and if found genuine, the criminal proceedings were to be dropped.
Conclusion In conclusion, conditions written in a Nikah Nama are generally considered legally valid and enforceable in Pakistan. The enforceability is subject to the condition that these terms do not contravene Islamic law or public policy. The Family Courts have jurisdiction to adjudicate matters arising from the Nikah Nama, including dower, maintenance, and other specified conditions. Civil courts may also have jurisdiction over certain conditions, particularly those related to payments in case of divorce.