ISLAMABAD: The Supreme Court on Monday observed that a property owned by a third person could not be a part of dower unless there was a clear, unequivocal and proven consent of such owner.
A three-member bench of the apex court, headed by Justice Muhammad Ali Mazhar, issued a detailed judgment on a petition titled Sher Alam Khan verses Mst Fozia Tabusum Afridi. Justice Musarrat Hilali and Justice Naeem Akhtar Afghan were the two other bench members.
The court had heard the case on March 30. The petitioner Sher Alam had filed an appeal against the Peshawar High Court’s judgment passed on March 22, 2024.
The case related to the inclusion of a father-in-law’s property in dower (Haq Mehr). The court set aside the decree granting the plaintiff a one-kanal plot and declared the Peshawar High Court’s decision invalid to that extent. However, the previous rulings regarding five hundred thousand rupees and gold jewelry included in the dower were upheld.
“In the present case, not only is the petitioner not a signatory to the Nikahnama, but the alleged subsequent consent as witness through the Kabeen Nama also remains unproved”, says a five page judgment authored by Justice Musarrat Hilali. In such circumstances, the court ruled that the inclusion of the plot in the dower cannot be sustained.
“We are mindful of the well-settled principle that concurrent findings of fact recorded by the courts below, particularly in family matters, are not to be interfered with lightly. However, this court has consistently held that such findings may be set aside where they are the result of misreading or non-reading of evidence or are otherwise against the law”, says the judgment.
In the present case, the court noted that the courts below failed to properly appreciate the evidence relating to the execution of Kabeen Nama and ignored material aspects concerning ownership of the property adding that the findings, therefore, suffer from patent legal infirmity.
The court partially accepted the appeal filed against the Peshawar High Court’s decision dated 22 March 2024 and annulled the ruling regarding the one-kanal plot included in the dower. However, the earlier decisions concerning the remaining items of dower, including five hundred thousand rupees and gold ornaments, were maintained.
The court observed that the record proved the one-kanal plot mentioned in the dower belonged to the petitioner, Sher Alam Khan, the father-in-law, and was not registered in the name of the woman’s husband. According to the petitioner, he had never consented to giving the plot as part of the dower.
The judgment also noted that the sale agreement prepared after the marriage cannot be legally proven because the witnesses failed during cross-examination to establish their presence at the time the document was prepared and signed.
To avoid unnecessary litigation in the future, the court directed that a separate column regarding ownership of property should be added to the Nikahnama and copies of the judgment be sent to the chief secretaries of all provinces for necessary action and implementation. According to the case record, the dower included a one-kanal plot located on Ring Road, Peshawar.
