Case Laws, Marriage

1. Damages in marriage contract: (PLJ 2006 LAHORE 1215)

 This case law discusses the issues of remedies for breach of marriage
contract.
 According to facts of the case, wife departed from the house of husband
immediately after marriage without consummation of marriage. She did this
on the pretext that her father was ill.
 Subsequently she filed a suit for dissolution of marriage, alleging that her
husband was a professional dancer.
 Family court passed a decree of dissolution on the basis of Khula.
 The Husband filed a suit for damages against the wife and her father. He
also claimed recovery of dower and other expenses incurred by him on the
marriage ceremony.
 He argued that in suit for dissolution of marriage , his wife leveled false,
frivolous and malicious allegations against him which were defamatory in
nature.
 He sought damages of 24000000 for defamation and further damages arising
out of wedding expenses.
 Case Laws, Marriage
1. Damages in marriage contract: (PLJ 2006 LAHORE 1215)
 The trial court decided the suit in his favor and awarded him Rs. 1000’000 as
damages for defamation and other expenses. It included Rs. 800’000 for
defamation and Rs. 200’000 for other expenses.
 The matter went up to the High Court and it was observed that allegations
were indeed defamatory in nature and he deserves compensation. However,
Rs. 800’000 as compensation for compensation was punitive in nature and it
was reduced to Rs. 100’000.
 Regarding damages for breach of marriage contract it was held that although
marriage in Islam is a civil contract but it cannot be equated ordinary
contracts of sale/purchase, property transactions or personal services contract.
 Therefore a suit for breach of marriage contract does not attract the remedies
that are available for breach of contracts under sections 73 or 74 of Contract
Act 1872 or the General Law.
 Case Laws, Marriage
2. Restrictions on Husband’s right to divorce: (2004 YLR 482)
 This case deals with object and scope of restrictions on a husband’s right to
divorce.
 The wife filed a suit for the recovery of 100’000 against her former husband for
unjustifiably divorcing her.
 The parties were married in April 1994 and they lived together till September
1995, when the wife was expelled by husband from his house.
 The Husband subsequently divorced her without any justification or any
reasonable cause.
 The Nikahnama of the parties included a stipulation that in case of Husband
divorces his wife without any cause or contracts another marriage, he would be
liable to pay a sum of Rs. 100’000.
 The trial court dismissed the suit and wife challenged the decision in the
appellate that allowed the appeal.
 Husband challenged the decision of appellate court in the High Court.
 Case Laws, Marriage
2. Restrictions on Husband’s right to divorce: (2004 YLR 482)
 The council for the petitioner contended that a restriction on husband right to divorce his wife
against the injunctions of Islam and it is the right provided to the Husband by the lawgiver. He
also raised the point that it is against the public policy.
 High Court opined in the following terms “to preserve the marriage contract and to safeguard the
interest of wife against its unjustified termination by the husband , if any stipulation is made in
the Nikahnama whereby the husband agrees to pay some damages in the event of divorcing the
wife without any just cause, such stipulation is neither against the injunctions of Islam nor
against the public policy. It is true that Islam allows Husband to divorce his wife without
assigning any cause but it is equally true that Islam also approves preservation and protection of
marriage and does not approve unjustified exercise of this right by the Husband which certainly
leads to many social problems for the divorcee and the children which consequently has an
adverse effect on the society as well. By imposition of such condition, the right of Husband is
neither taken away nor is restricted in the sense that he can still divorce the wife in spite of the
condition but in case he divorces her without any reasonable cause or justification he would be
liable to pay the agreed amount as damages so that the divorcee and children may make some
arrangements for their food and shelter for the time being.”
 Therefore the court dismissed the petition in limine, upholding the condition restricting
Husband’s right to Divorce.
 Case Laws, Marriage
3. Agreement of engagement (Mangni) among elders: (1991 SCMR 2454)
 This case deals with scope and effect of betrothal agreement between
elders to unite their children in wedlock in future.
 In this case the plaintiff claimed that father of bride was under obligation
to fulfill his agreement.
 He was rejected by the High Court as betrothal had no legal value and no
right could be claimed on the basis of mere betrothal.
 After feeling aggrieved from the decision of the High Court, petitioner
sought leave to appeal in the Supreme Court.
 He further claimed that as the agreement has become mature so he claimed
restitution of conjugal rights.
 Case Laws, Marriage
3. Agreement of engagement (Mangni) among elders: (1991 SCMR 2454)
 The judge of the High Court observed while dismissing the claim “it is well
settled that mere engagement (Mangni) does not constitute any valid contract.
This is generally customary arrangement arrived at between relations of the
parties with a view to entering into contract of marriage. it being pre-nuptial
negotiations does not create any civil right.”
 The Supreme Court while refusing the leave to appeal, noted that in most
betrothal arrangements in our society, the parents or other elders decide to bind
two persons in wedlock of marriage in future and regarding the validity of such
arrangement the court held that “to bind a girl with such an agreement in the
nature of betrothal in such a manner that she should be compelled to give her
consent at the time of marriage or for that matter a decree for conjugal rights or
a direction for marriage be passed against a female in the above circumstances is
unimaginable. The whole fabric of Islamic Law and jurisprudence on the subject
is against such a notion. The lady remains free to give or to withhold consent for
marriage till the moment when marriage contract takes place.”
 Case Laws, Marriage
4. Consent obtained through fear. (2012 PCRLJ 11 FSC)
 Facts of the case are that a girl namely Parveen Akhtar was abducted by
Muhammad Tanveer and he abducted her.
 During abduction he got signatures of Parveen on a white paper and allegedly
claimed that paper to be Nikahnama.
 During the period of abduction she was made subject to be a victim of sexual
offences by two persons who were made accused in a criminal case.
 The alleged abductee was summoned and her statement was recorded.
 She stated that two accused persons kept committing zina with her and took her
thumb impression on white paper.
 Accused persons were sentenced by the trial court.
 Accused person took the plea of his Nikah with the victim which was not
believed by the court.
 It also came on record by one of the witnesses that her age was 16 years.
 Case Laws, Marriage
4. Consent obtained through fear. (2012 PCRLJ 11 FSC)
 The court further observed that there were many things which could have
possibly done if the Nikah was genuine. E.g. none of the parents or
relatives was invited to alleged Nikah ceremony. Age of victim was almost
16 years while age of accused person was 44 years. In these circumstance
it seemed unlikely that Parveen Akhtar would freely consent to Nikah. It
led the court to believe that sexual intercourse with the abductee fell within
the definition of Zina Bil Jabr.
 The court further observed that in order to analyse the quality, value and
features of free consent, the following factors need to be considered:
I. Ability to exercise free choice.
II. Legal capacity
III. Not only sane but mature mind
IV. Availability of assistance in case of tender age.
 Case Laws, Marriage
4. Consent obtained through fear. (2012 PCRLJ 11 FSC)
 In the circumstances of the case, the court held that if the alleged consent
of abductee was obtained through fear, then it was not a free consent.
Bearing in mind the age difference, the court held that Parveen Akhtar
was too young and needed the opportunity to seek assistance from
parents or a wakil which evidently she did not have. The Nikah was,
therefore, performed under duress and any sexual offense committed
against the abductee would be forceful and qualified as being Zina Bil Jabr.
In the light of these reasons, the court upheld the conviction of appellant
for the offence of kidnapping and Zina Bil Jabr.
 Case Laws, Marriage
5. Marriage by minor female: (PLD 2009 LAHORE 223)
 In this case a girl namely Rabia Khizar married with Inam Ullah with her
free consent. An FIR was lodged by Rabia’s father against her husband that
he has abducted his minor daughter.
 Rabia sought quashing of Fir through writ petition in the High Court.
 She denied the allegation of abduction and stated that she has concluded a
lawful and valid marriage with her free consent.
 While on the other hand counsel for the respondent presented a school
leaving certificate of Mst. Rabia showing her age to be of 12 years.
 Respondent argued that she has not yet attained age of majority so she was
not in a position to make a free consent.
 However, medical examination of Rabia showed that she is like 18/19
years and she has attained puberty.
 Case Laws, Marriage
5. Marriage by minor female: (PLD 2009 LAHORE 223)
 The court held that even if the contention of respondent regarding age of
Rabia is not disputed the marriage concluded by her would not be void or
invalid. The female who has not reached age of majority but has attained
puberty could not be compelled to severe her Nikah entered by her free
will.
 If there is a doubt as to majority and there is certainty about puberty that is
sufficient for her to use the discretion and make a free choice.
 Based on the medical report, the Court treated her marriage as valid
marriage and quashed the FIR.
 Case Laws, Marriage
6. Consent of Wali: (PLD 2004 SC 219)
 This case is commonly known as Saima Waheed case.
 Saima’s Father was allegedly forcing her to marry a much older man.
Therefore she eloped with the tutor of her younger brothers.
 There was a question of Law before the Lahore High Court that whether
marriage of a Sui Juris with her free consent is valid if there is no consent
of Wali.
 Full Bench of Lahore High Court with a ratio of two to one, held that her
marriage without the consent of Wali was valid.
 Her father appealed before the Supreme Court.
 The Supreme Court observed that there are several judicial authorities of
Federal Shariat Court in which it has been held that a Sui Juris Muslim Girl
can contract her marriage of her own accord without the consent of Her
Wali.
 Case Laws, Marriage
6. Consent of Wali: (PLD 2004 SC 219)
 The Supreme Court held that the judges of Lahore High Court were bound
to follow the authorities of Federal Shariat Court and it was improper for
them to question the validity of marriage in a writ of habeas corpus
because the family court could decide this issue.
 Finally the Court held that in the light of judgments of Federal Shariat
Court, the consent of Wali is not required and a Sui Juris Muslim female
can enter into a valid marriage of her own free will. The Court emphasized
that these judgments of Federal Shariat Court are binding on High Courts
and Subordinate Courts.
 Case Laws, Marriage
7.Proof of Marriage: (2005 YLR 1859 LAHORE)
 Through a writ petition the petitioner, Azra Bibi, sought quashing of an FIR that
was registered under section 16 of offence of zina Ordinance 1979 by her
brother, Muhammad Azeem.
 Azra’s brother accused her of having illicit relations with the accused,
Muhammad Akram.
 The brother claimed that she was already married and produced a nikahnama to
this effect.
 He further alleged that accused Muhammad Akram demanded her hand but upon
being refused he, along with others abducted her.
 Counsel for Azra Bibi argued that she was not already married and she
contracted marriage with Muhammad Akram with her own free consent.
Therefore, she did not commit any offence.
 Azra Bibi’s previous Nikahnama with Ghulam Fareed had many discrepancies
and was therefore declared forged.
 Case Laws, Marriage
7. Proof of Marriage: (2005 YLR 1859 LAHORE)
 The court relied upon the principle that if the spouses claim themselves to
be Husband and wife, other formalities can be ignored and their statement
is sufficient to prove the validity of marriage.
 The court therefore accepted the writ petition and quashed the FIR.
 Case Laws, Marriage
8. Presumption of Truth to Nikahnama: (PLD 1994 LAHORE 494)
 The petitioner, Humaira, contracted marriage with Mehmood as per her
own free will but against her father’s wish.
 An FIR was registered against her under Hudood Ordinance.
 Complainant of the FIR, Moazzam Ghayas, alleged that petitioner was
married with him and she was abducted by the Mehmood and others.
 Humaira denied the allegation and stated that she has married with her free
consent with Mehmood.
 Furthermore she maintained that the alleged Nikahnama was fabricated
and specially prepared for this criminal case.
 The petitioner also disclosed the fact that the alleged Nikahnama was
having her thumb impression and she was forced to put thumb impression
over the Nikahnama and she did not give free consent to the alleged
Nikahnama.
 Case Laws, Marriage
8.Presumption of Truth to Nikahnama: (PLD 1994 LAHORE 494)
 The court observed “it is settled proposition of law that in Islam a Sui Juris
women can contract Nikah with her own free will and a Nikah performed under
coercion is no Nikah in Law. Instances are not lacking from Hadith and Islamic
History that consent of Sui Juris women was held to be sine qua non for a valid
marriage in absence of which marriage was declared void. The term consent
means conscious expression of one’s desire without any external intimidation
or coercion. In situations where consent to a marriage is in dispute and a
challenge is thrown to a nikahnama which is being owned by a man and a
woman who claim to be a husband and a wife then a presumption of a truth
attaches to the Nikahnama which is being acknowledged by both the spouses
and not the intervener.”
 The Court observed that a presumption of truth was attached to the Nikahnama
between the petitioner and Mehmood as it has been acknowledged by the both
the spouses. Consequently the court quashed the FIR.
 Case Laws, Marriage
9. Testimony of witnesses: (1992 SCMR 1520)
 This case demonstrates how a Nikah can be proved in a court of Law.
 The appellant Rasool Bibi claim to be Barkat’s widow who died in 1972.
 She claimed her entitlement in the estate of her late husband.
 She filed a suit for declaration in this regard which was dismissed by lower
courts and civil revision was also dismissed by the High Court.
 She approached Supreme Court.
 Key question before Supreme Court was whether or not the appellant was
widow of deceased.
 She produced her nikahnama to establish that she was legally wedded widow
of deceased.
 The Supreme Court observed that the courts below wrongly assumed that all
the persons mentioned in the nikahnama were to be examined in the court.
 Case Laws, Marriage
9. Testimony of witnesses: (1992 SCMR 1520)
 it was also observed that “this is now well settled principle that for
establishing the Nikah, the registrar or other witnesses need not to appear.
One or more witnesses can appear to prove the same.”
 It was concluded that the appellant was the legally wedded wife of Barkat
deceased and she was entitled to her share in the inheritance.
 Case Laws, Marriage
10.Registartion of Marriage: (2004 YLR 239)
 This case discusses standard of proof for a marriage.
 Wali Muhammad was owner of a house and a shop.
 Amina Bibi was wife of Wali Muhammad and her claim was that Wali Muhammad gave
her the House in lieu of dower at the time of marriage.
 Another person claimed possession of the said house through a sale deed.
 Third party also contended that Nikah between Wali Muhammad and Amina Bibi was never
registered hence Amina Bibi is not entitled to get benefit of that marriage.
 Amina Bibi produced a witness who gave testimony about verbal Nikah arrangement.
 Statements of both spouses were also recorded who acknowledged the Nikah.
 Main question before the court was that whether such Nikah can be acknowledged and a
transaction on the basis of verbal Nikah can be validly considered.
 It was held that there is no such restriction by the law to conclude such marriage and the
law does not declare such marriage as void marriage.
 The court held that presumption of truth is also attached to Nikah hence the relationship
and transaction cannot be denied.
 Case Laws, Marriage
11. Presumption of marriage on the basis of prolonged and continous
cohabitation. (2002 CLC 1307 KARACHI)
 This case was filed by more then one plaintiffs for declaration and permanent
injunction against the defendants relating to the estate of DITTU who died
leaving several children from two wives.
 The claim of plaintiff was opposed by defendants and they contended that there
was no proof of second marriage hence they were not entitled to any declaration
or injunction.
 Suit was dismissed by trial Court and first appellate court.
 Matter was considered before the High Court.
 High Court held that presumption is always in favor of a lawful marriage. In our
society when a couple lives together or they have children it is presumed that
they are lawfully married.
 It was held that continuous cohabitation amounts to presume the validity of
relationship as valid marriage.
 Case Laws, Marriage
12. Application of principle of cohabitation to prostitutes: (PLD 1989 SC 362)
 This case was taken up before the Supreme Court to consider the issue whether this
principle applies to prostitutes if they are in relationship with a person for a
considerable period.
 Background of the case was that a precious gift was made to a prostitute and then that
gift was challenged by the legal heirs of donor.
 Lady claimed that she married with the donor and they have lived together since a
considerable period.
 Question before the Supreme Court was that whether the principle of cohabitation
can be applied to prostitutes.
 It was held that it is against the constitutional spirit that a lady can be deprived of
valid rights because of her previous fame or bad repute. If we don’t give them chance
to live an honorable life how the evils can be eradicated from the society. No
discrimination can be made on such grounds and she will be entitled to be presumed
lawfully married wife of the donor on the basis of principle of cohabitation.