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6 LUMS L.J. 1 (2019)

handle is hein.journals/lumslj6 and id is 1 raw text is: Multiplying Zeroes: (In)Validity of Promises in Marriage Contracts under Pakistani Case Law Multiplying Zeroes: (In)Validity of Promises in Marriage Contracts under Pakistani Case Law Muhammad Munir* Abstract This article explains how the superior courts in Pakistan have interpreted stipulations in marriage contracts (Nikahnama) in selected cases mostly from 2009 to 2017. The main findings in this article are that in most of the cases, courts have refused to award the stipulated amount in marriage contracts, as compensation or damages or penalty to be paid to the wife, if she is divorced by her husband or she has asked for khul'. In some cases, however, courts have declared such stipulations as valid and binding resulting into conflicting decisions on similar issues. In most cases, courts have ruled that the issue of stipulated amount to be paid in case of breach of the contract does not fall within the jurisdiction of the Family Courts. Judges have not delved into the Qur'an, the Sunnah, and the opinions of Muslim jurists on this issue that fortify the rights of women. In this way, courts have often denied the payment of damages to divorced women as stipulated in marriage contracts. Key words: stipulations, marriage contract, compensation, Family Courts, jurisdiction, Muslim personal law Introduction The main benefit of the doctrine of 'precedent' in our legal system is that similar cases are decided similarly, and the decisions of higher courts are considered binding on lower courts.' Therefore, higher courts should give the best possible decisions to establish binding precedents in similar cases for lower courts. Conflicting decisions on the similar legal issues by higher courts create confusion for legal practitioners as well as the judges of lower courts. The conflicting, and sometimes vague, decisions of our superior courts regarding stipulations in marriage contract illustrate this legal dilemma. This article unpacks this puzzle in light of the judgments of the superior courts (from 2009 to 2017) on these specific legal questions: whether a stipulated amount in Nikahnama (described as damages or penalty or compensation to be returned to a woman in case she is divorce by her husband) is treated as valid and enforceable by courts?; can courts determine a sum of money to be given to a wife in the event of unjust repudiation by her husband, especially when she is not at fault and does not want a divorce?; can courts order damages to be paid to the wife in case of an unjust divorce even when these damages are not stipulated?; what does Islamic law state on such stipulations?; and, are decisions that deny women stipulations by their ex-husbands in conformity with Article 35 of the Constitution of Pakistan? Although the case-law under consideration in this article is reported from a short period of time, that is, from 2009 to 2017, only those cases are evaluated which are worth critical analysis for interpretative reasons, uniqueness of the findings, and the quality and sophistication of legal * Prof. Dr Muhammad Munir is Vice President Administration, Finance, & Planning as well as Professor of Law at the Department of Law, International Islamic University, Islamabad. 1 Article 189 (Decisions of Supreme Court binding on other Courts); Article 201 (Decisions of High Court binding on subordinate Courts). For details of the operation of precedent under these two articles, see Muhammad Munir, Precedent in Pakistani Law (Oxford University Press 2014) 96-173.

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