ISLAMABAD:

The Supreme Court has directed the executive to take steps to add a separate column in the Nikahnama regarding the husband’s title or the title of any other person over the property to be given in dower.

It noted that the husband and any other person who consented to the transfer/settlement of the dower property should affix their signature or thumb impression over the relevant entry before incorporating it in the Nikahnama to avoid unnecessary litigation.

“The concerned authority shall also take steps to add a separate column in the Nikahnama regarding the husband’s title or the title of any other person over the property to be given in dower,” said the 4-page judgement authored by Justice Shakeel Ahmad.

Justice Ahmed was part of a division bench led by Justice Shahid Bilal which heard a dowry dispute.

The order stated that a co-sharer could not transfer a property beyond his inherited share.

“Dower declaration relating to joint property is valid only to the extent of the husband’s share and the signatory of the Nikahnama having a share in the property to the extent of his or their share,” it said.

The court also said that an application under Section 12(2) of the Code of Civil Procedure (CPC) must be filed before the court which passed the final judgment, decree, or order.

Regarding the present case, the order noted that the record reflects that at the time of Nikah, the husband gave a house, whose specifications were not given as dower to his wife.

“The declaration was supported by an affidavit executed by the husband and his mother. However, the suit house originally owned by the father of the husband.

“The father had died much earlier, before the Nikah. Therefore, the suit house claimed by the wife as her dower had already devolved upon all legal heirs, including the husband and his mother.

“Consequently, the husband and his mother could only dispose of their own inherited share, not the entire house,” it added The court said under the Mohammadan Law, dower may consist of any property, but the husband must have the title to transfer the property.

Where the property belongs jointly to several heirs, the husband or any other person cannot legally give the entire property as dower. It said a person cannot transfer more than his own share in joint property and any transfer beyond his share is illegal and ineffective against co-owners.

The order stated that a co-owner cannot dispose of the entire joint property so as to prejudice the rights of other co-sharers. “Thus, even if the dower declaration exists, it can only operate to the extent of the husband’s or his mother’s share in inheritance only.”

The court said that Section 12(2) CPC provides a remedy to the aggrieved person regarding a judgment or decree obtained by fraud, misrepresentation, or want of jurisdiction.

“This provision is an extraordinary remedy. It is intended to nullify judgments obtained by fraud or misrepresentation. However, the application is required to be filed before the court which passed the final judgment, decree or order. In this respect, reference may be made to the case of Sahabzadi Maharunisa.

“Once a superior court decides the matter, the earlier judgment loses independent existence on the touchstone of the doctrine of merger,” it added.

In the given circumstances, the judgment and decree of the trial court were maintained by the appeal court, which was impugned by other legal heirs through an application under Section 12(2) CPC, which was dismissed, thereafter, the Constitution Petition instituted against the judgment of the appeal court before the high court was also dismissed.”

The bench directed the SC registrar to send a copy of the judgment to the chief secretaries of all the provinces for onward transmission to the concerned quarters for strict compliance.