Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court held that property owned by a third party cannot be included in the dower without the explicit consent of the owner.
The judgment follows a civil application for leave to appeal against a March 22, 2024 decision of the Peshawar High Court (PHC). A three-member bench of the SC upgraded the petition to an appeal and partially allowed it.
The PHC had upheld the competing findings of the family courts and appellate courts in favor of respondent Fozia Tabassum Afridi, in a case arising out of a family dispute over land in Peshawar.
The lower courts had decided her suit for recovery of dowry, comprising Rs 500,000 in cash, gold ornaments and a one-canal land located in Peshawar. The controversy before the SC centered on the question of whether the land could validly be treated as part of the dowry.
Ownership was claimed by the petitioner, Fozai’s father-in-law, who claimed that he was the owner of the land and had neither signed the Nikahnama nor consented to its inclusion in the dowry.
According to the record, the marriage between Fozia and Sahibzada Muhammad Ali was solemnized on January 27, 2009, followed by rukhsati on April 25, 2009.
A document described as a “Kabeen Nama”, allegedly executed on February 24, 2009, mentioned the disputed plot as part of the dowry. The respondent relied on this document to support its claim. However, the petitioner categorically denied performing the Kabeen Nama and his purported signatures as a witness.
The SC, in the verdict written by Justice Musarrat Hilali, observed that once this refusal was made, the burden of proof was on the defendant to establish the authenticity of the document through cogent and legally admissible evidence.
The court concluded that the respondent had not met this burden. He noted that the Kabeen Nama had not been proven by direct evidence and the disputed signatures had not been subjected to forensic examination.
The SC further highlighted a key inconsistency regarding the ownership of the plot. Although the Kabeen Nama suggested that the husband owned the property based on a mutation entry, there was no documentary evidence to support this claim.
In contrast, income records presented through official testimony show that the petitioner is the registered owner. The court reaffirmed the well-established legal principle: property belonging to a third party cannot be included in the dower without the clear, unequivocal and proven consent of the owner.
In this case, the court held that the petitioner was not a signatory to the Nikahnama and the purported subsequent consent through the Kabeen Nama was also not proven.
He also noted legal weaknesses in the lower courts’ judgments, observing that they failed to properly assess material evidence and relied on assumptions rather than legally valid reasoning.
