Lahore high latest judgement about dower July 2021

Stereo. H C J D A 38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT
W.P. No.12103/2014
Muhammad Qayyum Anjum Versus Additional District Judge etc.
J U D G M E N T
Date of Hearing: 14.06.2021
Petitioner by: Syed Azhar Abbas Haider, Advocate.
Respondent No.3 by: Mr. Muhammad Shafi Murali,
Advocate.
“At the time of marriage, give the women their
dowers willingly as an obligation, but if they, by
their own free will, give up to you a portion of it
then you may enjoy it with pleasure”1
Anwaar Hussain, J. The petitioner, namely, Muhammad
Qayyum Anjum (hereinafter “the petitioner”) was married to
respondent No.3 namely, Mst. Rehana Shamas (hereinafter called
“the respondent”) and their nikahnama envisages terms and
conditions of their marriage. The respondent instituted suit for
recovery of dower, maintenance allowance, dowry articles and
dissolution of marriage which, except to the extent of dissolution of
marriage, was decreed by the learned Family Court, Muzaffargarh in
favour of the respondent vide judgment and decree dated 16.07.2011.
The appeal was preferred by the petitioner, against the judgment and
decree dated 16.07.2011, which was also dismissed by the learned
Additional District Judge, Muzaffargarh vide judgment and decree
dated 11.02.2012. The concurrent findings of learned courts below
have been assailed through the instant constitutional petition.
2. Learned counsel for the petitioner submits that he is aggrieved
of the Impugned Judgments only to the extent of grant of dower, i.e,
1
Sura Nisa, Verse No. 4
Writ Petition No.12103/2014 2
05 Marla House consisting of two rooms, situated in Mohallah
Sheikhupura, Muzaffargarh and does not challenge the validity of
Impugned Judgments to the extent of maintenance allowance as
already expressed by him before this Court on 14.03.2018. The
learned counsel for the petitioner contends that since the term and
condition, of their marriage, related to transfer of house referred
above is envisaged in column No. 16, the same is in the nature of
deferred dower and the marriage of the parties is still intact,
therefore, the respondent is not entitled to receive the same during
subsistence of the marriage. He has placed reliance on the law laid
down by the Honourable Apex court in Saadia Usman v. Muhammad
Usman Iqbal Jadoon.
2
3. Conversely, learned counsel for respondent has referred to
Section 10 of Muslim Family Laws Ordinance, 1961 (hereinafter
referred to as “the Ordinance”) to contend that the dower was on
demand and not deferred. Therefore, the petitioner is obligated to
handover the house or alternate value thereof as per concurrent
findings of the courts below.
4. Arguments heard, record perused.
5. The moot point in the instant case is to examine how various
columns of the nikahnama deal with the dower and its kinds, keeping
in view the scope of Section 10 of the Ordinance, and in the light of
the examination thereof, whether in the instant case, house referred
against column No. 16 of the nikahnama constituted part of prompt
or deferred dower of the respondent.
6. In the context of Muslim marriage, dower is an obligation
under Holy Quran and Hadith. It is the amount of some monetary
value to be paid by the husband to the wife at the time of marriage,
part of which can be delayed or deferred according to what has been
2
2009 S C M R 1458
Writ Petition No.12103/2014 3
agreed between them.
3
It may be specified (Mahr Musamma) or
unspecified (Mahr al-Mithl)4
. When the dower is unspecified, it
would still be an obligation and the law will award it on the demand
of the wife. In such case, the amount would be determined keeping in
view factors such as dower of the females of her class or of her
father’s family, the financial position of the groom, the social status
of the bride, the prevalent custom of the time and place, and the
agreement that the bride and the groom can reach over the amount.5
Similarly, the dower can be Prompt (Mu’ajjal) or Deferred (Ghair
Muajjal or Muwajjal). Prompt dower is to be paid either at the time
of marriage or on demand whereas Deferred dower is to be paid at
such date or time as may be mutually agreed between the parties and
in the absence of the same, it is to be paid at the dissolution of
marriage. It is pertinent to point out that under Shariah there is no
specification as to the nature, scope and extent of dower to be given.
The Prophet, P.B.U.H said to a man, “Marry, even with (a Mahr
equal to) an iron ring.”6
Similarly, there is no upper limit for the
fixation of dower in Islam.
7
The inherent idea behind dower is that it
is an obligation imposed upon the husband.
8
7. Under the Ordinance, marriage is regarded as a civil contract
and Section 5 thereof makes it necessary that the marriage shall be
registered and the parties can settle their terms and conditions of
marriage including dower, through said contract, for which Form II,
used as nikahnama, is prescribed in terms of Rule 10 of the West
Pakistan Rules made under the Ordinance. The relevant entries in
this regard can be incorporated by the parties in columns No. 13 to
16, which relate to dower. Any entry, by way of an amount or an
3
Syed Sahid Ahammad, “A critical Analysis of Dower (Mahr) in Islam, ‘Journal of Humanities
and Social Science, Vol.21/7 (2016): 86
4 Asaf A Fayezzee, Outline of Muhammadan Law, 3
rd Ed. London Oxford University Press
5
Jamal J. Nasir, “The Islamic Law of Personal Status”, Chapter 4, Kluwer Law International
New York, 3rd Edition 2002 (hereinafter ‘Jamal J. Nasir).
6 Narrated by Sahl bin Sa`d: Sahih al-Bukhari 5150 Book 67, Hadith 85
7
Jamal J. Nasir Supra
8
Sura Nisa, Verse No. 24; Sura al Baqarah, Verse No.237
Writ Petition No.12103/2014 4
undertaking related to transfer of any property or other valuable such
as ornaments etc., is the dower or part thereof.
Columns No.13 to 16 of the nikahnama read as under:
31 .مہر کی رقم
31 .مہر کی کتنی معجل ہے اور کتنی غیر معجل
31.آیا مہر کا کچھ حصہ شادی کے موقع پر ادا کیا گیا اگر کیا گیا ہے تو کس قدر۔
31 .آیا پورے مہر یا اس کے کسی حصہ کے عوض میں کوئی جائیداد دی گئی ہے اگر دی گئی
ہے تو اس جائیداد کی صراحت اور اس کی قیمت فریقین کے مابین طے پائی ہے۔
8. The honourable Supreme Court in Mst. Yasmeen Bibi v
Muhammad Ghazanfar Khan and others” 9
held that the entries in
various columns of the nikahnama are part of an undertakings related
to the dower. Here it is relevant for the present purposes to traverse
through the wording of columns No. 13 to 16 of the nikahnama. In
column No. 13, the word “Raqm (رقم) “(amount) has been used;
column No.14 also uses the word “Raqm (رقم) “(amount) whereas
columns No. 15 and 16 use the word “Mahr” (dower) that also
reveals the intention of the legislature with regard to amount of
dower, which can be incorporated and settled by the parties, under
columns No.13 and 14 and other valuables as dower under columns
No. 15 and 16. Entries in columns No.13 to 16 together become
‘dower overall’. Thus, entry in column No. 13 of the nikahnama is to
contain the amount of dower, entry 14 envisages the break-up of
such amount of dower spelled out by the parties by virtue of entry
under column No. 13 into prompt and deferred whereas entry in
column No. 15 may contain anything given or paid out of the amount
envisaged under entry 13 or in addition thereto forming as part of
the dower overall. In the same strain, entry under column No.16 is to
also form part of the dower overall in addition to the amount/cash
which may be stipulated by way of entry under column No.13 and
also in addition to anything else given by way of entry under column
No. 15. Therefore, entries under columns No. 13 to 16 of the
nikahnama envisage reflection and manifestation of the parties as
9
PLD 2016 SC 613
Writ Petition No.12103/2014 5
to amount/Raqm (رقم (and other articles and/or property given or to
be given by husband to wife as the dower overall. Therefore,
anything other than an amount, forming part of dower overall and
incorporated under columns No. 15 and/or 16 has also to contain the
time and mode of payment and giving of the same by husband to
wife. Failure to spell out the mode and time of dower contained in
entry 15 and/or 16 would entail the attraction and applicability of
Section 10 of the Ordinance.
9. The reliance by the learned counsel for the petitioner, on the
dicta laid down in Saadia Supra, is misplaced inasmuch as that in the
said case the honourable Supreme Court dealt with a matter where
some part of the dower amount was described as prompt and the
other was recorded as deferred. The honourable Supreme Court in
Saadia Supra held that, in such an eventuality where some amount is
mentioned as deferred, the same cannot be claimed during the
subsistence of marriage if no date or time has been specified for
payment of the deferred dower. Moreover, it is also important to
examine as to under or against which column of the nikahnama, such
amount or property is mentioned. It is entry in column No. 14 of the
nikahnama, if incorporated, will indicate the true intention of the
parties in relation to the extent of amount (only) fixed as prompt
and/or deferred dower. For other valuables such as gold or property,
mode/time of payment is to be specified in corresponding
entries/columns. If no detail about the mode of payment of the dower
is specified in the nikahnama, Section 10 of the Ordinance comes
into play, which states as under:
“10. Dower: Where no details about the mode of
payment of dower are specified in the nikahnama or the
marriage contract, the entire amount of the dower shall be
presumed to be payable on demand”
(Emphasis provided)
10. Perusal of Section 10 of the Ordinance, brings forth the
legislative fiat that where no details about the mode of payment of
Writ Petition No.12103/2014 6
dower has been spelled out by the parties to confer certainty to it
under the marital contract, the omission or failure of the parties to
fill in and/or reflect their intention in a perspicuous manner, the
legislature has stepped in to fill in such omission of the parties
through Section 10 of the Ordinance which clearly states that, in such
like situations, the entire amount of the dower shall be presumed to
be payable on demand. The statutory presumption embodied under
Section 10 of the Ordinance is rebuttable; however, the same has to
be rebutted through positive evidence. In Syed Sajjad Hussain v.
Judge Family Court etc.10, this Court has held that even the condition
as to entitlement to deferred dower at the time of dissolution of
marriage or death of husband may not remain absolute and invariable
condition and may be waived by the parties through consent or
conduct, which is not the situation in the instant case.
11. Having examined the law on the subject of prompt and
deferred dower as enunciated by the august Supreme Court, the facts
of the instant case can be analysed in the light thereof. The relevant
columns in the nikahnama dated 05.07.2008 duly registered read as
under:
31 .مہر کی رقم شریعت محمدی 3111 روپیہ
31 .مہر کی کتنی رقم معجل ہے اور کتنی غیر
معجل
تین تولہ زیورات طالئی
31.آیا مہر کا کچھ حصہ شادی کے موقع پر ادا کیا
گیا اگر کیا گیا ہے تو کس قدر۔
1 مرلہ پالٹ بمعہ مکان مشتمل دو کمرہ جات
حویلی پختہ واقع محلہ شیخوپورہ اوکاں والہ
مظفر گڑھ
31 .آیا پورے مہر یا اس کے کسی حصہ کے عوض
میں کوئی جائیداد دی گئی ہے اگر دی گئی ہے تو اس
جائیداد کی صراحت اور اس کی قیمت فریقین کے
مابین طے پائی ہے۔
Reading of entry 16 of nikahnama of the parties in the instant case
reveals that neither mode of transfer has been provided for nor
the time for transfer of house promised under column No. 16 has
been incorporated indicating the same to be part of deferred dower.
Hence, there is failure to classify the house under column No. 16 as
10 2019 CLC 1462 (Lahore)
Writ Petition No.12103/2014 7
deferred dower coupled with the omission to specify mode and time
of payment thereof. In such an eventuality, by virtue of Section 10,
the respondent is entitled to claim for the discharge of obligation,
which the petitioner undertook in terms of entry under column
No.16. Hence, the learned Courts below have rightly held the
respondent entitled to the house specified in column No.16 of her
nikahnama.
12. There is yet another aspect of the matter which revolves
around the conduct of the petitioner in relation to his obligation
related to payment of dower. The petitioner in his written statement
stated as under:
‘‘ نمبر3۔ یہ کہ فقرہ نمبر 3 عرضیدعوی شادی کی حد تک درست ہے باقی فقرہ غلط ہے۔ اندراجات
نکاح نامہ بعد میں جعلسازی سے کئے گئے ہیں۔ـ’’
Whereas while appearing as DW-1, the petitioner during crossexamination asserted that:
‘‘نکاح میری مرضی سے ہوا تھا۔ بوقت نکاح حق المہر میں تین تولے زیورات طالئی، پانچ مرلہ
پالٹ طے ہوا تھا۔ پالٹ میں نے محلہ شیخوپورہ اوکانوالہ پر دینا طے کیا تھا۔’’
The pleas taken by the petitioner qua entry contained in column No.
16 of his nikanamma are undoubtedly contradictory in nature. This
Court while exercising equitable jurisdiction is certainly not inclined
to extend any relief to such a litigant, on the basis of principle of
“alleqans centraria non est audiendus”.
11 Therefore, on this ground,
the concurrent findings of the Courts below cannot be interfered.
Moreover, the present petition is also not maintainable on the basis
of doctrine of laches inasmuch as the Impugned Judgments were
passed on 16.07.2011 and 11.02.2012 by the learned trial court as
well as the learned appellate court below respectively whereas the
present petition has been filed on 06.09.2014 and hence, the same is
badly hit by doctrine of laches. Reliance is placed on State Bank of
Pakistan through Governor & another v. Imtiaz Ali Khan & others;
12
Messrs Blue Star Spinning Mills Ltd., v. Collector of Sales Tax &
11 A person alleging contradictory facts should not be heard.
12 2012 SCMR 280
Writ Petition No.12103/2014 8
others;
13and Ghulam Hussain Ramzan Ali v. Collector of Customs
(Preventive), Karachi.14
13. For the foregoing reasons, the instant petition is devoid of any
merit and hence, dismissed with no order as to costs.
(ANWAAR HUSSAIN)
Judge
Approved for reporting.
Judge
Akram
13 2013 SCMR 587
14 2014 SCMR 1594