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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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