2015 C L C 1374
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Kamran Khan Mulakhail, JJ
SOHAIL ----Petitioner
versus
Mst. NAZIA AMIN and 3 others ----Respondents
C.P. No.695 of 2013, decided on 24th July, 2014.
(a) West Pakistan Family Courts Act (XXXV of 1964) ---
----S. 5, Sched. ---Constitution of Pakistan, Art. 199---Constitutional petition ---Suit for recovery
of dower ---Satisfaction of decree in instalments ---Scope ---Husband had not assailed the
judgment and decree passed by the Trial Court and the same had attained finality ---Judgment and
decree which had attained finality could not be reopened in execution proceedings ---Sufficient
and reasonable leniency had already been advanced in favour of husband by both the courts
below ---Constitutional petition was dismissed in circumstances.
(b) Islamic Law ---
----Dower ---Scope---Dower or Mehr was the sum of money or other property which the husband
was obliged to pay to his wife as a mark of respect ---Dower was the consideration of marriage
contract and token of respect for wife ---No marriage could take place without fixing dower ---
Dower had to be paid by the husband to the wife to acquire religious merit and to discharge an
obligation or duty towards the wife ---Dower was a debt and wife was entitled to receive the same
as a creditor of her outstanding dues against her husband---Dower would become due soon after
the marriage was consummated or the Nikah was solemnized.
Muhammadan Law rel.
Jamil Ahmed Kakar for Petitioner.
Shakeel Ahmed Zamrani for Respondents.
Date of hearing: 25th June, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --- This constitution petition
assails the order dated 13 -3-2013 passed by the learned Family Judge, Turbat ("trial court") in an
execution application filed by the respondent/decree holder in pursuance of the judgment and
decree dated 15 -11-2012 and against the order dated 22- 7-2013 passed by the learned District
Judge, Makran at Turbat, whereby, the order dated 13- 3-2013 passed in exec ution application
was modified and the petitioner still being aggrieved preferred instant constitutional petition.
2. The brief facts of the case are that the respondent/decree holder filed a suit for recovery
of dower amounting to Rs.300,000 and 70 misc al gold, mainly on the averments that the parties
were entered into a marriage tie in the year, 2008. In solemnization of `Nikah' the aforesaid
amount and gold was fixed as prompt dower of the respondent/decree holder. Whereas, out of 70
miscal gold, 27 miscal gold, were delivered at the time of Nikah and remaining 43 miscal gold
and Rs.300,000 was promised to be paid on demand. Subsequently, the relationship between the
parties became strained and the petitioner divorced the respondent but refused to pay t he dower
amount and gold as agreed between the parties. Therefore, family suit bearing No.41 of 2011
was filed by the respondent, wherein, she contended that despite the fact that petitioner had not
paid the dower amount and remaining 43 miscal gold were not delivered, while, 27 miscal gold
delivered at the time of `Nikah' were also retained, when the Talaq was pronounced and she was
expelled from the matrimonial home in wearing apparels.
3. The suit was contested by the petitioner and finally decreed in the following terms:---
"Therefore, the suit of plaintiff is partly decreed in favour of plaintiff against the
defendant, it is declared that the plaintiff is entitled to receive remaining Haq e Mehr 43 miscal
of gold and Rs.300000 (three lac) from the defendant. The defendant is directed to pay remaining
Haq e Mehr of plaintiff i.e. 43 miscal of gold and Rs.300000 to the plaintiff. No order as to cost."
4. The petitioner did not assail the judgment and decree, therefore, the execution application
was filed by the respondent. The petitioner entered appearance, submitted an application, and
sought permission for payment of decretal amount and delivery of gold in easy instalment to
satisfy the decree. The learned executing court vide order dated 13 -3-2013, accepted the
application and the permission was granted to the effect that he shall pay first instalment of 10
miscal gold and Rs.10,000 and thereafter for succeeding months, one miscal gold and Rs.3000
per month, till satisfaction of the decree in lette r and spirit. The order was assailed in appeal,
before the learned District Judge, Mekran at Turbat, whereby, the order was further modified and
first instalment stipulated by the learned trial court was allowed to be paid in two instalments i.e.
five misc al gold and Rs.5,000 (Rupees five thousand) per month, for initial two months and the
remaining will be paid as already directed by the trial court i.e. 1 miscal gold and Rs.3000 per
month. The petitioner still being aggrieved of the orders passed by the c ourts below, filed instant
Constitution Petition on the strength that he is a student and does not have any earning source,
and he solely depends upon his parents. It was further contended that due to his poor financial
status, he is unable to satisfy the decree and to pay the decretal amount in lump sum.
5. Mr. Shakeel Ahmed Zamrani, Advocate appearing on behalf of the respondent/decree
holder, contended that the petitioner did not assail the judgment and decree passed by the learned
Family Judge, theref ore, cannot raise any objections on execution of the decree. He stated that
learned appellate court as well as learned executing court have altogether failed to follow the
mandate of law that the executing court was bound by the terms of the decree and ins talment
thereof could not be allowed without consent of the respondent/decree holder. He finally
requested for dismissal of the petition.
6. We have heard the learned counsel and have gone through the record, but before
attending the prayer made in this petition, it appears helpful to go through the importance and
concept of `dower/Haq- e-Mehr' in the light of Islamic Law. The dower is paid by the husband to
the wife, firstly to acquire this religious merit and secondly to discharge an obligation or duty
towards the wife. It is why in common parlance, we call it "Haq -e-Mehr" the origin of dower
dates back to the pre -Islamic era much before the pre- Islamic days, the husbands used to
despoil/deflower their wives and then to turn them out helpless and without any means to survive
honourably. With evaluation of tribal system and when a little wisdom prevailed then it became
customary condition to fix some dower of the validity of marriage but for the enforcement of
such right, the wife was having no efficacious remedy as there was no binding custom/sanction
of any rule behind it thus, this customary obligation was oftenly disregarded without heck as the
tribal system by then was unorganized being bereft of codified rules. On the advent and
promulgation of Islam this repulsive behaviour was forbidden and was declared repugnant being
unjust towards the fair sex as is evident from the different verses of the Holy Qur'an in "Sura
Nisa"
Dower or Mehr under Muhammadan Law is the sum of money or other property which
the husband is obliged to pay to his wife as mark of respect to the wife. Quranic commandant
shows that no marriage can take place without fixing dower, therefore, dower is the
consideration of marriage contract and it is also a token of respect for wife, t herefore, the dower
range is a debt and the wife is entitled to receive the same as a creditor of her outstanding dues
against her husband, thus, it becomes an obligation of the wife's consent to Nikah in such view
under the domain of Almighty Allah the do wer becomes due soon after the marriage is
consummated or the Nikkah is solemnized. It is undisputed that under Muslim law dower is a
debt which is owned by the husband to the wife. Accordingly the ordinary principle of payment
of debt should also govern t he case relating to realization of dower debt. The Article 285 of the
Muhammadan Law is relevant in this behalf which provides as under: ---
"Dower or Mehr under the Muslim Law is the sum of money or other property which the
wife is entitled to receive f rom the husband in consideration of the marriage. Under
Muhammadan Law dower is an obligation imposed upon the husband as a mark of respect to the
wife. The consideration had been compared to the price in a contract of sale because marriage is
a civil cont ract and sale is a typical contract to which Muhammadan jurists are accustomed to
refer by way of analogy. Thus, the wife is entitled to receive the dower as incident of the contract
of marriage and as a token of respect, even the injunction of Islam makes it mandatory of such an
incident where the husband has been died without payment of dower/Haq- e-Mehr to his
wife/wives, his estate cannot devolve upon his legal heirs before recovery of Haq- e-Mehr from
the deceased's property and in all intents a widow is entitled to recover her debts of dower like
other creditors of her deceased husband."
In view of above discussion, the perusal of the record reveals that the trial court being an
executing court and subsequently, the appellate court have already shown enough leniency in
favour of the petitioner, though, the petitioner did not assail the judgment and decree passed by
the learned trial court and same on having been attained finality cannot be reopened in execution
proceeding. But the petitioner started pursuing his lis and he had filed a civil appeal while the
respondent/decree holder did not challenge the order of executing court as well as of the
appellate court and as no counter affidavit was filed to controvert the petitioner's stance, that
either he o wns enough resources to satisfy the decree or he with ill -will and malice is delaying
the same, therefore, we are of the considered opinion that sufficient and reasonable leniency has
already been advanced in favour of the petitioner and both the courts be low have dealt with lis
and exercised their discretion, therefore, no interference under the constitutional jurisdiction of
this court is required, thus, the petition is dismissed, but with no order as to costs.
AG/35/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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