ISLAMABAD:
The Supreme Court has asked the federal government as well as the provincial governments to review the ‘Nakahnama form’ in order to make it user-friendly, effectively safeguarding the rights of the parties, particularly the women.
A three-member bench of the apex court, led by Justice Syed Mansoor Ali Shah, noted that without reviewing the Nikahnama form as a whole, the positive step taken by the Punjab government might not achieve the intended goal of protecting the rights of women.
The Nikahnama form has been prescribed in the Ordinance of 1961 and notified as part of the schedule of the Rules of 1961. However, the federal government is empowered to make rules in respect of the cantonment areas and the provincial governments in their respective areas of jurisdiction.
According to a 22-page judgment, authored by Justice Athar Minallah in a family dispute case, the expressions used in the current Nikahnama form were ambiguous and, therefore, open to be misconstrued.
The judgment said that the federal and the provincial governments might consider reviewing the Nikahnama form “to make it more user-friendly”, so that “even a literate person of ordinary prudence does not have difficulty in understanding its requirements” and the columns.
The judgment stressed the need for removing the “ambiguities likely to arise from the vague and ambiguous expressions used in the headings of the columns in the form currently prescribed” under the Ordinance of 1961, read with the Rules of 1961.
“This would not only protect the rights of the parties in general and the women in particular but would also reduce litigation since a more user-friendly prescribed form of the Nikahnama will give rise to lesser disputes,” the judgment said.
The court noted that Nikah might also be solemnised by a person other than a Nikah registrar. However, it stated that the integrity, competence, knowledge and understanding of the Nikah registrars were crucial for effectively safeguarding the rights of the parties, particularly the women.
In the province of Punjab, the judgment continued, the Act of 2015 imposed a statutory upon the Nikah registrar to accurately fill all the columns of the Nikahnama with specific answers of the bride and the groom.
The court said that a breach of this statutory duty exposed a Nikah registrar to penal consequences ie imprisonment for up to one month and a Rs25,000 fine. It added the purpose was to protect women from exploitation and provide them with expeditious resolution of family disputes and ancillary matters.
“The legislature [Punjab Assembly] was, therefore, conscious of the challenges faced by women in the context of exercising their rights relating to settling the terms and conditions of marriage,” Justice Minallah wrote.
“The Act of 2015, through which sub-sections (2A) and (4)(i) were inserted in Section 5 of the Ordinance of 1961, was definitely appreciable in securing the rights of the parties, particularly the women, keeping in view the social and cultural norms prevalent in many parts of the country,” he said.
The court also said that it was indeed a step in the right direction in order to reduce the number of disputes and consequently the volume of litigation as well.
“However, we are of the opinion that without reviewing the prescribed form of the Nikahnama as a whole, particularly the expressions used in the headings of the columns, this positive step taken in the province of Punjab may not achieve its intended goal of protecting the rights of women in particular.”
The Nikah registrars, the judgment stated, had the most important role in ensuring that each party exercised her or his rights and that the entries recorded in a Nikahnama correctly reflected their intention.
“It is a statutory duty of each Government to guide the Union Councils in setting out adequate qualifications and criteria for the granting of licences to persons for performing the functions of Nikah registrars,” it stated.
“Moreover, training and evaluation of performance of those who have been licensed would further guarantee that the social or cultural norms and influences do not prevail over the absolute rights bestowed upon women under the law,” it added.
“The Governments may also consider taking steps to ensure that persons of integrity and those who possess the required qualification and knowledge are granted licences and regular audits of the record relating to Nikahnamas maintained by the Union Councils are conducted.”
The court directed the Registrar Office to send copies of this judgment to the cabinet secretary, government of Pakistan, and the chief secretaries of the respective provinces so that they might place it before the competent authorities and forums for considering the observations.
The court expected that effective steps would be taken to ensure safeguarding the rights of the parties to a marriage contract, particularly the bride, who might be more vulnerable on account of multiple factors, including the cultural and social norms and beliefs.
