Such restriction is not provided under Muslim Family Laws Ordinance, 1961, or Rules framed there under but there is also no provision in the law or rules that such restriction is void—
To preserve marriage contract and to safeguard interest of wife against its unjustified termination by husband, if any stipulation is made in Nikahnama whereby husband agrees to pay some damages in the event of divorcing wife without just cause, such stipulation is neither against Injunctions of Islam nor against public policy—
Islam allows husband to divorce his wife without assigning any cause but it also approves preservation and protection of marriage and does not approve unjustified exercise of the right of divorce by husband as the same leads to innumerable social problems for the divorcee and the children who consequently have an adverse impact on the society as well—
By imposing such condition, right, of divorce of husband is neither taken away nor is restricted; as husband can still divorce his wife in spite of the condition but in case he divorces her without any reasonable cause or justification he would be liable to pay the agreed amount as damages so that the destitute divorcee and children may make some arrangement for their food and shelter for the time being.
Restriction on the right of husband to divorce wife—Such restriction whether against public policy—Condition for payment of damages to wife in the event of divorcing her without any cause or justification is not against public policy–Such restriction is rather in conformity with the same as it discourages unjustified divorces which result in broken homes and endless social and economic problems for the divorcee, children and the society as well—
Condition contained in Column No.18 of Nikahnama is not void under the provisions of S.23 of Contract Act, 1872, as the provisions of Contract Act, 1872, speak about the object and consideration of the agreement and not condition contained therein—Every agreement of which the object or consideration is unlawful is void under S.23 of Contract Act, 1872
Restriction on the right of husband to divorce wife—Escaping the liability of damages as mentioned in Column No.l9’of Nikahnama— Right of divorce was exercised by husband—Wife asserted that she was divorced without just and reasonable cause, therefore, she had claimed damages as were mentioned in Column No.18 of Nikahnama–
Family Court dismissed the suit but Appellate Court allowed the appeal and the suit was decreed in favour of the wife–Validity-.Right of divorce was exercised by the husband, it was therefore, in order to escape the liability of damages, husband was obliged to show reasonable and just cause for exercising that right—
Nothing was produced on record by husband to prove that he had divorced his wife on account of some just and reasonable cause—Appellate Court had rightly held the husband liable under the condition contained in Column No. 18 of Nikahnama—Revisional jurisdiction was directed against irregular exercise, non exercise or illegal assumption of jurisdiction and not against conclusion of fact or law, not involving question of jurisdiction—
Judgment passed by Appellate Court was reasonable, conclusions drawn were based on evidence and were supported by plausible reasoning and did not suffer from any jurisdictional infirmity—
High Court in exercise of revisional jurisdiction declined to interfere with the judgment passed by Appellate Court in favour of the wife—Revision was dismissed in limine.
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