Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court has declared that property owned by a third party cannot be included as part of dowry without the owner’s express consent.
The judgment came in a civil petition for leave to appeal a decision of the Peshawar High Court (PHC) on March 22, 2024. A three-member SC bench converted the petition into an appeal and allowed it in part.
The PHC had upheld concurrent findings of the family and appellate courts in favor of respondent Fozia Tabassum Afridi in a case arising out of a family dispute over a plot of land in Peshawar.
The lower courts had ruled on her case for recovery of dowry, including Rs 500,000 in cash, gold jewelery and a one-kanal plot located in Peshawar. The controversy before the SC centered on whether the land could validly be treated as part of a dowry.
The property 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 27 January 2009, followed by the rukhsati on 25 April 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 in support of its claim. However, the petitioner categorically refused to execute Kabeen Nama and his alleged signatures as a witness.
The SC, in the judgment authored by Justice Musarrat Hilali, noted that once such a denial was made, the burden of proof shifted to the respondent to establish the authenticity of the document through convincing and legally acceptable evidence.
The court found that the respondent had not met this burden. It observed that the Kabeen Nama was neither proved through direct evidence nor the disputed signatures were subjected to forensic examination.
The monitoring committee further highlighted a significant discrepancy regarding the ownership of the land. While the Kabeen Nama suggested that the man owned the property based on a mutation entry, no documentation supported this claim.
In contrast, revenue records presented through official testimony showed the petitioner as the registered owner. The court confirmed the settled legal principle: a property owned by a third party cannot be made part of a dowry unless there is a clear, unequivocal and proven consent of the owner.
In this case, the court found that the petitioner was not a signatory to the Nikahnama and the alleged subsequent consent through the Kabeen Nama also remained unproved.
It also noted legal flaws in the lower courts’ judgments, noting that they did not properly assess material evidence and relied on assumptions rather than legally sound reasoning.
