ISLAMABAD: The Supreme Court (SC) on Tuesday ruled that dower (Haq Mahr) was a mandatory legal incident of marriage imposed by Islamic law and should be given by the husband to the wife in good faith, at the agreed time, without conditions that demean the wife.

“If not given, the courts must step in, not with hesitation, not with apology, but with full authority of the law,” ruled a five-judge Supreme Court bench headed by Justice Shahid Waheed and comprising Justice Irfan Saadat Khan, Justice Aqeel Ahmed Abbasi and Justice Shahid Bilal Hassan.

The unanimous verdict came on a batch of civil and criminal petitions concerning the legal effect of stipulations recorded in the nikahnama regarding dower.

“It is neither the price of the wife nor consideration in the technical common-law sense,” the judgment said, adding that dower constitutes an exclusive proprietary right of the wife.

The institution reflects and reinforces the constitutional values of human dignity, equality before the law, protection of the family and fidelity to the injunctions of Islam, observed Justice Shahid Waheed in the 26-page judgment he authored.

Though the SC deliberately refrained from expressing any opinion on the merits of individual cases, it directed that each case be placed before the appropriate bench for decision on its own merits.

The courts must interpret laws affecting dower, the judgment said, in a manner that gives practical and effective protection to the wife’s lawful entitlement while remaining faithful to the actual agreement proved by the evidence.

“The courts must not allow the institution of marriage to be reduced to a transaction where the wife’s rights are an afterthought. We must not allow the husband to treat dower as a weapon to be used in later disputes,” the judgment emphasised.

“I will pay you if you behave; I will pay you if you do not ask for divorce. That is not dower,” Justice Waheed observed, adding that it was, rather, coercion.

For courts, the judgment suggested that in every case involving dower, the courts must begin with the premise that the wife’s dignity was at stake.

“Her right is not a favour. It is a command of the Sharia, a command of the statute, and a command of justice. The court’s task is to determine, on the basis of the evidence, what that right is, and then to ensure that it is fulfilled. Let no husband think that he can escape this liability by silence. Let no court think that it can dispose of this matter lightly,” the judgment emphasised.

“For in protecting dower, we are protecting the home. By protecting the home, we protect society. And in protecting society, we are fulfilling the promise of a nation that claims to be founded on the principles of Islam, justice and human dignity,” the ruling affirmed.

The judgment also cited the Sunnah of the Holy Prophet (PBUH), stating that it illuminates the philosophy of dower. The Prophet (PBUH) never treated dower as a ceremonial formality, but rather insisted that every marriage include dower according to the means of the husband.

The Holy Prophet (PBUH) encouraged moderation in its amount and condemned unnecessary extravagance. At the same time, he consistently recognised the wife’s proprietary entitlement, the judgment observed.

Meanwhile, Justice Shahid Bilal Hassan, in his additional note, issued directions to ensure compliance with the Muslim Family Laws Ordinance, 1961, and the Rules, and to ensure that the terms of nikah were accurately and unambiguously recorded.

The directions required nikah registrars to ensure that all relevant columns in the nikahnama were properly and carefully completed, and that no column should be left blank or treated as unnecessary without a lawful basis, as each column has been provided for a specific purpose.

Moreover, particular care should be taken while recording the terms of dower in Columns 13 to 16. The registrar should ensure that these columns are completed in a manner that clearly reflects the agreement actually reached between the parties.

Likewise, Column 13 should clearly state the total dower agreed between the parties, whether the dower consists of money, movable property or immovable property.

Where any property is agreed to be given as dower, Column 16 should contain sufficient particulars to identify the property, including its description, measurements, location and value, if agreed between the parties.

The registrar will read out or explain the relevant entries to the parties before obtaining their signatures or thumbmarks, particularly where the nikahnama contains entries relating to dower, special conditions, delegated right of talaq or any property given as dower.

The directions further stated that the objective should be to ensure that the document reflects the parties’ actual agreement. Any special condition recorded in Column 17 should be expressed clearly. The registrar will record the condition as agreed by the parties and will not introduce terms of his own.

The registrar will not make any entry on the basis of assumption or personal understanding, the directions said, adding that where the parties’ agreement was unclear, he should seek clarification from the parties before completing the relevant column.

After completion and execution of the nikahnama, the registrar should properly authenticate and preserve the record, provide copies to the spouses and forward the requisite copy to the concerned Union Council in accordance with the law.

The competent authorities, particularly the chairman or secretary of the concerned Union Councils, will ensure that all licensed nikah registrars are adequately familiar with the statutory purpose and proper manner of completing each column of the prescribed nikahnama, with particular attention to Columns 13 to 16, the directions said.

“Periodic training or orientation of nikah registrars will be arranged so that the prescribed form is not filled mechanically and the terms agreed between the parties are accurately reflected,” the directions said.

The competent authorities, particularly the secretary, will periodically inspect the registers maintained by nikah registrars to ensure compliance with the Ordinance, the Rules and the conditions of their licences, it added.

Where a nikah registrar fails to perform his statutory duties or violates the conditions of his licence, the competent authority should take action in accordance with the law, the directions affirmed.