ISLAMABAD: The Supreme Court has decided that although it is “accepted as a cultural and social norm” for male family members to decide the terms of the Nikah on behalf of the bride, doing so disadvantages her later in the marriage.
In the instance of deciding the bride’s entitlement to a land specified in Nikahnama, a two-member Supreme Court bench made up of Justices Aminud Din Khan and Athar Minallah issued the ruling, which was made public on Tuesday.
The Lahore High Court (LHC) ruled in favor of Huma Saeed in 2022. Huma Saeed wed Mohammad Yousaf in May of 2014.
After divorcing his wife in October of 2014, Mr. Yousaf filed a petition in the Supreme Court, arguing that the land referenced in Nikahnama column 17 could not be construed as a bequest or part of the dower.
Justice Minallah holds that in the event of any uncertainty in Nikahnama, the wife should receive benefits.
The petitioner argued that column 17’s title, “special conditions,” set it apart from the other columns that had been particularly included to settle the terms of dower.
Mr. Yousaf begged in his written testimony before the SC that the land was intended for the building of a house, and that his wife was to dwell in it for the duration of their marriage.
The 10-page ruling, written by Justice Minallah, stated that “a plain reading of the description of the property, as mentioned in column 17, does not indicate nor support such a stance.”
It further stated that in the event of any uncertainty or ambiguity, the bench’s question would be how to interpret the terms and conditions of a nikahnama.
“An informed knowledge of the bride’s rights must necessarily guide the dower’s determination at the time of the [nikahnama] execution.” Therefore, the bride’s ability to bargain and decide on the terms becomes essential.
bride’s approval
The “dominance of the male members” and “paternal tendencies” in society when it comes to setting terms and conditions on behalf of the bride, Justice Minalllah lamented, have been widely accepted as a cultural and social standard. “It inevitably adversely affects a bride’s capacity to execute the contract with free consent, placing her in a disadvantageous position.”
According to the bench, a Nikahnama is a marriage contract that is entered into by two parties, and its terms must be read “in the light of the parties’ intention.”
Judge Minalllah expressed sadness that the custom of society’s “dominance of the male members” and “paternal tendencies” in determining the terms and conditions on behalf of the bride has become ingrained as a social and cultural norm. “It puts the bride in a bad situation, which will unavoidably negatively impact her ability to carry out the contract voluntarily.”
The panel ruled that a Nikahnama is “the deed of marriage contract” that two people enter into and that its terms should be read “in the light of the parties’ intention.”
The ruling also said that if it could be proven that the wife was not aware of her rights at the time of the Nikah, then “the benefit ought to go in favour of the wife” in the event that there was any ambiguity in the Nikahnama.
The bench rejected the husband’s appeal on the grounds that the LHC correctly interpreted the Nikahnama.
