PLJ 2001 Lahore 472
Present:
MUHAMMAD NAWAZ ABBASI, J.
Dr. SABIRA SULTANA-Petitioner
versus
MAQSOOD SULARI, ADDITIONAL DISTRICT AND SESSIONS JUDGE,
RAWALPINDI & 2 others-Respondents
Writ Petition No. 2397 of 1999, heard on 4.5.2000.
(i) Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
—S. 6-Without hearing first wife-Permission of Arbitration Council to
contract second marriage-Validity of~Permission of Arbitration council
to a person to contract second marriage without knowledge and hearing
of first wife, even
if
given, is neither binding on her nor valid and legal.
[P. 478] C
(ii) Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
—S. 6(5)-Provisions of Section 6(5) of Ordinance being not in conflict with
Islam, it is mandatory for husband to pay to first wife entire amount of
dower, whether prompt or deferred, in case he contracts second marriage
without dissolution of first marriage or permission of first wife and
Arbitration Council.
[P. 479 & 480] F & H
(iii) Muslim Family Laws Ordinance, 1961 (VIII of 1961)-
—-Ss. 6(5)(b) & 13-Second marriage-Permission of Arbitration Council-
Absence of-Consequence of-Second marriage in existence of first
marriage without permission of first wife and Arbitration Council is not void, but it is an offence punishable with imprisonment or fine or with
both, and further husband is liable to pay immediately entire dower,
whether prompt or deferred, to existing wife or wives-On such ground,
existing wife or wives can seek dissolution of marriage u/Section 13 of
Muslim Family Laws Ordinance, 1961.
[P. 477] A
(iv) Muhammad Law--
—Dower as Prompt & Deferred-Classification of~Concept of & wisdom
behind—Whether this classification would negate concept of dower in
Islam and defeat provisions of Muslim Family Laws Ordinance, 1961-
Question of-In the Holy Qur'an and Sunnah, there is no classification of
dower as prompt & deferred, but deferment of payment of dower for an indefinite period with consent of wife is not prohibited-Classification of
dower as prompt & deferred has no legal sanction behind it except general practice in the Muslim Society for convenience of parties-
Concept and wisdom of this classification depend upon better relations of
parties and protection of right of a woman in un-foreseen circumstances without taking away her right of payment of dower till marriage is not dissolved-A person who contracts 2nd marriage without dissolution of
marriage with first wife or wives and without their permission, then he
cannot withhold payment of dower to first wife or wives on any excuse
nd condition of dissolution of marriage for payment of deferred dower is
not required-Postponement of payment of dower for an indefinite period would not mean that it cannot be claimed before dissolution of marriage
and if it is considered as such, it would negate the concept of dower in
Islam and defeat Muslim Family Laws Ordinance.
[P. 480] G
Holy Qur'an, Verse 124, Sura-Al-Nisa rel. on.
(v) Muhammadan Law--
—Prompt & Deferred dower-Distinction between-In what circumstances,
deferred dower would be treated as prompt-Question of-Difference of Muwajjal and Muajjal i.e. deferred
&
prompt, is that prompt dower is
payable immediately on demand and its payment cannot be postponed
without consent of wife, whereas deferred dower is not payable till arrival
of stipulated period and a woman in such case is not at liberty to refuse
embraces of her husband as she has dropped her right of payment of
dower till a specified time-If no specified time is fixed, dower described as
deferred shall be prompt in nature to be paid on demand.
[P. 479] E
Kitab-al-Fiq Ala Al-Madhahib-Al-Arabaha by Abdul Rehman Al-Jazairi, volume 4, page 153, Chapter of Nikah, published at Dar-al-Fikr; Bidaie-As-
Sanai Fi Tarteeb Ash-Sharaie by Allama Abu Bakr Ala-ud-Din Al-Kasmi Al- Hanifi, Volume-II, page 288 ref.
(vi) Family Courts Act, 1964 (XXXV of 1964)--
—-S. 5 & Sched., read with Family Laws Ordinance, 1961, Section 6--
Constitution of Pakistan (1973), Art. 199-Dower-Suit for-Second
marriage without permission & consent of first wife-Plea & proof of~ Claim for dower was made by petitioner on ground that without her permission & consent, Respondent No. 3 contracted second marriage-
Suit was contested through general attorney, who also appeared as
witness on behalf of Respondent husband-Family Court decreed suit, but
Appellate Court dismissed it-Held : Notwithstanding pleadings of
parties, it was admitted fact that Respondent husband contracted second
marriage without permission of petitioner to that effect, petitioner's
statement made on oath remained un-rebutted as respondent husband
himself did not appear in witness-box-Consent of first wife being a
personal matter would be in exclusive knowledge of respondent and could
not be pleaded through a third person, therefore, attorney of respondent,
while appearing in witness-box on behalf of respondent, would not be in a
position to rebut petitioner's statement on oath-Held
further
: Perusal
ofNikahnama
of second marriage of respondent also did not show that it
was contracted with permission of Arbitration Council or that consent of
petitioner was obtained by him at any stage-Writ petition was accepted
and decree passed by Family Court was restored.
[Pp. 477 & 478, 480] B, D & H
1998 SCMR 336 ref.
Mr. Ghufran Khurshid Imtiazi,
Advocate for Petitioner.
Raja Muhammad Aslam and Raja Muhammad Hamid,
Advocate for
Respondents.
Syed Zakir Hussain Shah: Amicus Curiae.
Date of hearing: 4.5.2000.
judgment
This writ petition has been directed against the dismissal of a suit
for recovery of dower by a learned Additional District Judge, Rawalpindi, through judgment, dated 16.10.1999 in an appeal filed by Respondent No. 3
against the decree passed by a learned Judge, Family Court at Rawalpindi,
in the said suit.
2. The facts of the case in the background are that the petitioner namely Dr. Sabira Sultana was married with Dawood Abdul Khaliq Mehr/
Respondent No. 3 on 16-1-1992 at Karachi. The dower in the
Nikahnama
at
the time of marriage was fixed fifty thousand Sterling Pound as deferred-and
in addition to the cash amount, a house Bungalow Bearing No. D/53, North Karachi of the value of rupees twenty lacs was also given to the petitioner.
The respondent also executed an affidavit in acceptance of his liability to pay
the dower. The
Nikah
of the petitioner with Respondent No. 3 was
performed at Karachi and a child namely Tala Mehar was born out of the
wedlock and later the respondent proceeded abroad and after spending some
period in Saudi Arabia went to U.K. Subsequently, the respondent
contracted a second marriage and the petitioner was deserted who with her
son Tala Mehar shifted to Rawalpindi and filed a suit for recovery of dower in the Family Court at Rawalpindi against the respondent in May, 1995. The
respondent contested the suit through his attorney and in the light of the pleadings of the parties, the learned Family Judge framed the following
issues :--
(1) Whether the plaintiff has got no cause of action to file the
instant suit ? OPD
(2)
Whether the plaintiffs are living separately as they have been neglected by the defendant and they are entitled to
receive their maintenance, if so, at what rate and for what
period? OPP
(2-A) Whether the plaintiff is entitled to get decree for restitution
of coty ugal rights as prayed for? OPP
(2-B) Whether the plaintiff is entitled to get decree for recovery of dower, a House/Bungalow No. D-53, North Karachi, as well
as fifty thousand Sterling Pounds as prayed for? OPP
(2-C) Whether the plaintiff's suit is not maintainable in its present
form ? OPD
(3)
Relief.
3.
Both the parties led their respective evidence. The petitioner herself appeared in the witness-box as P.W. 2 and also produced Fareha
Malik as P.W. 1. She in addition also produced documentary evidence in the
form of her
Nikahnama
with the respondent with an affidavit of the
respondent and his
Nikahnama
with the second wife whereby he contracted
marriage during the existence of marriage with the petitioner without her
permission. In rebuttal, on behalf of defendant Mirza Khan, his general
attorney appeared as D.W. 1 and Muhammad Sadiq as D.W.2, but the
defendant himself did not appear in the witness-box. Learned Family Judge
with a detail discussion of the evidence of the parties on each issue
separately decreed the suit in favour of the petitioner through judgment,
dated 23.12.1998. However, in appeal filed by the respondent, the learned
Additional District Judge, Rawalpindi, while reversing the verdict given by
the learned trial Judge dismissed the suit of the petitioner with the
observations that the dower being deferred, the amount of dower was not
payable on demand during the existence of first marriage and was payable either on death or divorce. Consequently, the appeal of the respondent was
allowed through judgment, dated 16.10.1999. The petitioner being aggrieved
of the judgment given by the learned Additional District having no other
remedy has filed this Constitutional petition before this Court.
4.
The issue under discussion being very sensitive and of public
importance, this petition was admitted to regular hearing through order,
dated 29.11.1999. The point raised was incorporated in the order as under :--
"Learned counsel for the petitioner with reference to Sub-section (5) of Section 6 of the Muslim Family Laws Ordinance, 1961, contends that in case of contract of seocnd marriage by a husband in existence
of first marriage, he is bound to immediately pay the entire amount
of dower whether payable as prompt or deferred to the existing wife.
He submits that the learned Appellate Court was wrong in holding
that deferred amount of dower can only be claimed after dissolution
of marriage or divorce."
5.
Learned counsel with reference to Section 6(5) of Muslim Family
Laws Ordinance, 1961, contends that a person who contracts second m rriage without the permission of the Arbitration Council is bound to
immediately pay the entire amount of the dower, whether prompt or
deferred, due to the existing wife or wives and in case of failure, the amount
shall be recoverable as arrears of land revenue. He submitted that the fact
that respondent contracted a second marriage in existence of the first
marriage with the petitioner without permission is not denied and added
that
Nikahnama
(Exh. P.2) of the marriage of respondent with second wife
available on record also did not show that the second marriage was
contracted with the permission of the petitioner, or the Arbitration Council.
He submitted that the second marriage of the respondent is an admitted
fact, but there is no evidence of the permission of the petitioner or an
Arbitration Council, as the case may be, and concluded that although the bar of second marriage was not specifically taken in the plaint with reference to
Section 6(5) of the Muslim Family Laws Ordinance, 1961, but the second
marriage without permission being prohibited under law, the respondent
was bound to give effect to the said provisions of law and in case of failure,
the presumption would be of violation of mandatory provisions of law and
thus, the learned Appellate Court in illegal exercise of jurisdiction has given
judgment to the contrary.
6.
On the other hand, learned counsel representing the respondent
without disputing the legal position contended that the provision of Section
6(5) of the Muslim Family Laws Ordinance, 1961, is not invokable in the
present case for the following reasons :--
(i) That the deferred dower as fixed in Sterling Pound as a security
to restrain the respondent from giving
Talaq
to the petitioner
which would be only payable in case of
Talaq
and the
terminable point for payment of dower amount was not on the
demand of the petitioner.
(ii) That no evidence was on record to the effect that the
respondent contracted second marriage without the permission
of the Arbitration Council and that this ground having not
taken in the plaint, could not be read in the pleadings of the parties and consequently, no issue was framed and thus, there could be no presumption of the fact that the second marriage
was solemnized by the respondent without the permission of
Arbitration Council.
Learned counsel argued that the issue relating to the controversial
question of fact having not framed, the findings given by the Family Court if
are upheld and that of the Appellate Court are disturbed on the ground that
the second marriage was solemnized without the permission of the petitioner
or an Arbitration Council, it would amount to deprive the respondent from the right of rebuttal and prove that second marriage was solemnized with
permission of the Arbitration Council. Learned counsel in support of the
above contention has placed reliance on
Binyamin and 3 others v. Chaudhry
Hakim and another
(1996 SCMR 336).
7.
For the benefit of disposal of the legal issue involved in this
petition, at the first instance, the examination of the provisions of Section
6(5) of the Muslim Family Laws Ordinance, 1961, is necessary, which is read
as under:-
"Any man who contracts another marriage without the permission of
the Arbitration Council shall—
(a)
pay immediately the entire amount of the dower, whether
prompt or deferred, due to the existing wife or wives which
amount if not so paid, shall be recoverable as arrears of land
revenue; and
(b)
on conviction on complaint be punished with simple
imprisonment which may extend to one year or with fine which may extend to five thousand rupees, or with both."
8.
It is clear from the above-referred provisions of law that the
second marriage in existence of first marriage, without the permission of
first wife and Arbitration Council, is not void, but in case of contract of
second marriage in presence of first wife without permission it'is an offence
which is punishable with simple imprisonment which may extend to one
year, or with fine which may extend to Rs. 5,000 or with both and further if
the marriage is contracted in contravention of this provision of law, the
husband is liable to pay immediately entire dower whether prompt or
deferred to the existing wife or wives and the same is recoverable as arrears
of land revenue. It is also provided under Section 13 of the Muslim Family
Laws Ordinance, 1961, that the existing wife, or waives can seek dissolution
of marriage on such ground. The second and third marriage in Islam is
permissible on the basis of principle of equality and justice in all matters
including love and affection. Therefore, the question either without proper
maintenance and payment of dower, whether prompt or deferred to an
existing wife or wives, on her demand, the second marriage would be
prohibited, is that as per mandate of Islam as well as the enacted law dealing
with the matter, subject to the fulfillment of conditions given therein, there
is no prohibition to go for a second marriage and if some one contracts
second marriage in violation of said condition, he is bound to face the
consequence of the existing law, as not only the permission of an Arbitration
Council but prior consent of existing wife, or wives is essential. The deviation
thereto will not invalidate the second marriage, but it is obligatory on the
husband to make payment of dower to an existing wife or wives, forthwith in
addition to any other penalty provided under the law. In the present case,
notwithstanding pleadings of the parties, it is an admitted fact that the
respondent contracted a second marriage without the permission of the
petitioner. The statement made on oath by the petitioner that the
respondent contracts second marriage without her consent and permission
remained unrebutted as the respondent did not himself appear in the
n witness-box. The consent of the wife being a personal matter, would only be
in the exclusive knowledge of the respondent and could not be pleaded through a third person, therefore, the attorney of the respondent, while
appearing in the witness-box on behalf of the respondent, would not be in a
position to rebut the statement of the petitioner on oath. It is not out of place
to mention that under the Family Laws Ordinance, 1961, the permission of an Arbitration Council to a person to contract seocnd marriage without the
knowledge and hearing of the wife, even if given, is neither binding on the
wife nor valid and legal. Thus, such a permission, if any, by an Arbitration Council on an application of the respondent without the knowledge of the
petitioner and behind her back, was of no legal force and would not be
binding on her. Therefore, the plea that the ground of second marriage
without permission of an Arbitration Council having not been specifically
taken in the plaint, the presumption of the existence of permission would be
raised in favour of the respondent. In a case in which husband seeks
permission for second marriage in presence of first wife from an Arbitration
Council, the said Council, at the conclusion of proceedings, issues a
certificate to the husband, but in the present case, the respondent has not
produced such certificate even before this Court. The perusal of
Nikahnama
of the marriage of respondent with second wife also did not show that
respondent contracted seocnd marriage with permission of an Arbitration
Council or that the consent of the petitioner was obtained by him any stage.
9. In view of the importance of the matter, Syed Zakir Hussain
Shah, an Advocate of this Court, who, is a Law Graduate from Islamic
University, Islamabad, was associated with the proceedings, as
amicits curiae
to assist the Court. Syed Zakir Hussain Shah, Advocate, in addition to his address has also submitted written arguments. He submitted that in general
terms the dower is denned "Muajjal" and "MuwajjaT which is called prompt
and deferred. The prompt dower is payable immediately on demand whereas
deferred dower is payable at a specified time and that on consummation of
marriage, the dower is right of the wife, whether prompt or deferred and
there is no difference of opinion between the Jurists regarding the payment
of prompt dower at the time of marriage or when it is demanded by the wife.
However, the various schools of thoughts have divergent opinion about the
payment of deferred dower. According to
"Hanfi Fiqha"
to which the parties
belong if the deferment or postponement of the dower is not specified and is
generally described as deferred, this dower will be considered prompt and shall be payable accordingly. The learned counsel is support of this view
placed reliance on Kitab-al-Fiq Ala Al-Madhahib-Al-Arbaha by Abdul
Rehman Al-Jazairi, Volume 4, page 153, Chapter
ofNikah,
published at Dar- al-Fikr, and Bidaie-As-Sanaie Fi Tarteeb Ash-Sharaie by Allama Abu Bakr
Ala-ud-Din Al-Kasmi Al-Hanifi, Volume II, page 288. He firmly stated that
the view that deferred dower is not payable unless the marriage is dissolved
is not supported by any recognized principle based on some authority
whereas on the other hand, the deferred dower shall always be treated as
prompt if no specified period for the payment of dower is fixed. He added
that this view being in conformity to the command of Holy Qur'an,
therefore, under the provisions of Section 6(5) (a) of the Muslim Family Laws
Ordinance, 1961, the immediate payment of the entire amount of dower,
whether prompt or deferred is obligatory in such cases.
10. Having heard the learned counsel, I find that notwithstanding
the controversy, whether the dower is prompt or deferred, it is established
that the dower is an exclusive right of the wife. However, there are no
bounds to the quantity or value of the dower, which is left entirely to the will
of the husband and wife. The payment of dower should be specified in such a
manner so as to remove uncertainty and the payment of dower is the
responsibility of the husband. A woman is not obliged to surrender her
person till she receives her dower. However, the position may be changed
after the marriage is consummated but in any case, the dower being the
property of the wife, she can insist for its payment and use as per her right
and a husband cannot justifiably deprive her while withholding the payment
of dower for an indefinite period on the ground that the dower was Muwajjal or deferred. The only difference of Muwajjal and Muajjal i.e. deferred and
prompt is that deferred dower is not payable till the arrival of stipulated
period whereas prompt dower is payable immediately on demand and if for
the payment of deferred dower no stipulated time is fixed, it would be
treated as prompt, payable on demand. Thus, the only distinction between a prompt and deferred dower is that payment of prompt dower cannot be
postponed without the consent of the wife, whereas the payment of deferred
dower cannot be demanded before the stipulated period and a woman in
such case is not at liberty to refuse the embraces of her husband as she has
dropped her right of payment of dower till a specified time and if no specified
time is fixed the dower described as deferred shall be prompt in nature to be
paid on demand. The deferred dower without specification of period or
stipulation, shall be payable at any time and if the same is deferred till a
particular date or time, it shall not be payable before that date. A woman in
case of desertion and neglect of maintenance or in case of contracts of second
marriage by the husband without her permission and consent may, with or
without asking for
Talaq,
can justifiably demand payment of dower. The
provisions of Section 6(5) of the Muslim Family Laws Ordinance, 1961, in case of second marriage by the husband without dissolution of first marriage
or permission of the first wife and an Arbitration Council, protects the right
of first wife for immediate payment of dower, whether it has been described
as prompt or deferred and this provision of law has no conflict with the
Islamic concept of payment of dower. In Islam, the payment of dower is an
essential obligation of the husband and failure thereto tantamount^ to
injustice and inequity. The classification of dower as prompt and deferred has no legal sanction behind it except the general practice in the Muslim
Society for the convenience of the parties. Normally, women do not demand
payment of full dower which is fixed at the time of marriage and only a
portion of the dower is paid before consummation of marriage and the
remaining dower is deferred to be paid later which does not mean that either
it was waived or was treated as deferred till dissolution of marriage. The
concept and wisdom in this classification of dower as prompt and deferred
depend upon the better relations of parties and protection of right of a
woman in unforeseen circumstances without taking away her right of
demand of payment of dower till the marriage is not dissolved. A person who
contracts second marriage without dissolving marriage with first wife or
wives and without their permission, he cannot withhold the payment of
dower to the first wife or wives on any excuse and the condition of
dissolution of marriage for payment of deferred dower is not required. The
postponement of the payment of dower for an indefinite period would not
mean that the same cannot be claimed before the dissolution of marriage
and if it is considered as such, it would negate the concept of dower in Islam as well as defeat the Muslim Family Laws Ordinance, 1961. A person is not
supposed to contract a seocnd marriage without maintaining the first wife and payment of dower and thus, in case of contract of second marriage
without payment of dower to the first wife, the kw does not permit
withholding the payment of dower till the dissolution of marriage. The
deferred dower is sort of guarantee for a woman against ill-treatment, non-
maintanence, desertion or any other abnormality in the family life including rash and arbitrary divorce whereas the prompt dower is payable either at the time of marriage or at any subsequent time when it is demanded by the wife.
Thus, the payment of deferred dower is deemed to be postponed till either
the specified time and if no time is specified, till the wife demands it. It is laid
down in Holy Qur'an in Verse 124, Sura Al-Nisa :--
"Seeing that you derive benefit from them, give them their dowers as
prescribed."
There being no classification of the dower as prompt and deferred in the
Holy Qur'an and Sunnah, the deferment of the payment of dower for an
indefinite period with the consent of the wife is not prohibited, but if a wife
makes demand of its payment, the husband being under an obligation to make payment of the same, cannot further defer it on any excuse. The
provisions of Section 6(5) of the Muslim Family Laws Ordinance, 1961 being
not in conflict with Islam, it is mandatory for a husband to pay entire
amount of dower, whether prompt or deferred, in case of entering into
contract of second marriage in presence of first wife without her permission.
11.
For the foregoing reasons, this petition succeeds and the
judgment of the learned Additional District Judge by virtue of which the suit
of the petitioner for recovery of dower stood dismissed, is declared illegal and
of no consequence. The judgment and decree passed by the Family Court
shall hold the field and the decree shall be executed accordingly. This writ
petition is allowed with no order as to costs.
12.
The assistance rendered by Syed Zakir Hussain Shah, Advocate,
in delivering this judgment is highly appreciated. I, therefore, in lieu of his
assistance direct the petitioner to make payment of Rs. 10,000 to him as
reward within one month through the Additional Registrar of this Court
(S.A.K.)
Petition accepted.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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