Haq Mehar has to be paid before second marriage
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This case involved a wife and her two children who sued her husband for unpaid maintenance, dower (haq mehar), and dowry articles. The family court awarded maintenance and partial dowry articles but refused the dower claim, reasoning it was deferred dower, payable only when the marriage ended through death or divorce. On appeal, the Additional District Judge upheld the maintenance and dowry awards but granted the wife Rs. 50,000 as dower, though it left unresolved her claim to ten bighas of agricultural land that was also part of the dower.
The wife then challenged both decisions before the Lahore High Court, seeking a higher amount. The High Court upheld the maintenance and dowry article awards as fair and well-reasoned. On the dower issue, it agreed with the wife's lawyer that under Section 6(5)(a) of the Muslim Family Laws Ordinance, 1961, a husband who remarries without permission from the Arbitration Council becomes immediately liable to pay the entire dower, whether prompt or deferred, to his existing wife. Since the husband had remarried without such permission, he owed the full dower immediately, not just upon divorce or death. The Rs. 50,000 award was confirmed, but since the lower appellate court hadn't ruled on the land portion of the dower, the case was sent back to that court to decide that specific issue. This case clarifies that unauthorized second marriages trigger immediate full dower payment obligations.
یہ مقدمہ ایک بیوی اور اس کے دو بچوں سے متعلق تھا جنہوں نے اپنے شوہر کے خلاف غیر ادا شدہ نان و نفقہ، حق مہر اور جہیز کے سامان کی وصولی کے لیے دعویٰ دائر کیا تھا۔ فیملی کورٹ نے نان و نفقہ اور جہیز کے سامان کا کچھ حصہ دینے کا حکم دیا مگر حق مہر کا دعویٰ یہ کہتے ہوئے مسترد کر دیا کہ یہ مؤخر حق مہر تھا جو صرف شوہر کی وفات یا طلاق کی صورت میں نکاح کے خاتمے پر ہی قابل ادائیگی ہوتا ہے۔
اپیل پر ایڈیشنل ڈسٹرکٹ جج نے نان و نفقہ اور جہیز کے سامان کے فیصلے کو برقرار رکھا، البتہ بیوی کو حق مہر کی مد میں پچاس ہزار روپے دینے کا حکم دیا، تاہم دس بیگھہ زرعی اراضی کے حوالے سے اس کا دعویٰ، جو حق مہر کا ہی حصہ تھا، غیر فیصلہ شدہ چھوڑ دیا۔
اس کے بعد بیوی نے دونوں فیصلوں کو لاہور ہائی کورٹ میں چیلنج کیا اور زیادہ رقم کا مطالبہ کیا۔ ہائی کور
Generated from the full judgment text below — not a substitute for reading the actual opinion.
PLJ 2009 Lahore 870 [Multan Bench Multan] Present: Malik Saeed Ejaz, J. MUNAZZA NOOR and 2 others--Petitioners versus ADDITIONAL DISTRICT JUDGE, KHANEWAL and 2 others--Respondents W.P. No. 1209 of 2008, decided on 6.11.2008. Muslim Family Laws Ordinance, 1961 (VIII of 1961)-- ----S. 6(5)(a)--As proved by Section 6(5)(a) of the Muslim Family Laws Ordinance 1961, any man who contracts another marriage without the permission of the Arbitration Council is immediately liable to pay the entire amount of dower, either prompt or deferred, due to the existing wife or wives--Order accordingly. [P. 872] A Mr. Javed Iqbal Hashmi, Advocate, for Petitioner. Mehar Zauq Muhammad Sipra, Advocate, for Respondent No. 3. Date of hearing: 6.11.2008. Order Facts necessary for the decision of this writ petition are that Petitioner No. 1 herself and on behalf of minor Petitioners No. 2 and 3 filed a suit against Respondent No. 3 for recovery of past maintenance of Petitioners No. 2 and 3 for the last one year at the rate of Rs.4000/- per month per minor and for herself for the same period at the rate of Rs. 6000/- per month; for recovery of dower amounting to Rs. 50,000/- as well as ten Bighas of agricultural land; and for recovery of dowry articles valuing Rs. 7,98,000/-. Respondent No. 3 contested the suit by filing his written statement. The learned trial Court after framing of appropriate issues and recording evidence of both the parties, vide its judgment and decree dated 4.4.2007, decreed the suit for recovery of maintenance allowance at the rate of Rs.1500/- per month per petitioner from 13.5.2003 till the subsistence of marriage of Petitioner No. 1 with Respondent No. 3 and till the marriage of Petitioner No. 2 and upto attaining the age of majority of Petitioner No. 3, whereas the suit of Petitioner No. 1 to the extent of recovery of dowry articles was decreed to the extent of Rs.2,00,000/-, while her suit to the extent of recovery of dower was dismissed. As regards the recovery of dower, the learned trial Court held that the same could not be recovered from the respondent prior to termination of marriage between the parties, as it was `Ghair Muajjal' (deferred). Aggrieved by the aforesaid judgment and decree, both the parties filed separate appeals, which came up for hearing before Mr. Shahid Rafiq Sheikh, learned Addl Distt Judge, Khanewal, who, vide judgment and decree dated 23.2.2008, while dismissing the appeal filed by Respondent No. 3 and partly allowing the appeal filed by the petitioners, held Petitioner No. 1 entitled to recover an amount of Rs.50,000/- from Respondent No. 3 as dower and Rs. 3000/- per month as maintenance from 13.6.2003, while the decree for grant of maintenance allowance to the minors/Petitioners No. 2 and 3 at the rate of Rs.1500/- per month per minor was upheld, of course, with ten per cent annual enhancement and the decree to the extent of recovery of dowry articles was also maintained. Now, the petitioners have challenged the judgments and decrees of both the learned Courts below through the instant petition.
2. After considering arguments and having gone through the record, I find that the maintenance allowance and the amount of dowry articles as awarded by the learned First Appellate Court to the petitioner is based on sound reasons and proper appreciation of evidence; hence, the impugned judgments and decrees of the learned Courts below to this extent are quite legal and just. As such, this writ petition for enhancement of maintenance allowance and amount of dowry articles is dismissed and the impugned judgment and decree of the learned Additional District Judge to this extent is maintained.
3. As far as the payment of dower is concerned, the learned Additional District Judge has awarded Rs.50,000/- to the petitioner, without saying anything about the other part of dower, i.e. ten Bighas of land. It is an admitted fact that both the learned Courts below have given finding that the dower amount along with ten Bighas of land has not been paid by the respondent and the respondent has admitted in his statement for its fixation. It is noted that Issue No. 3-A as framed by the learned Judge, Family Court, was decided against the petitioner by observing that the dower as fixed by the respondent is `Ghair Muajjal' (deferred dower), which, as per Article 290 of Muhammadan Law, is payable at the time of termination of marriage either through death or divorce. Learned counsel for the petitioner attacks upon this observation of the learned Judge, Family Court, contending that under section 6 of the Muslim Family Laws Ordinance, 1961, when a husband contracts second marriage without the consent of first wife, he shall be liable to pay the entire amount of dower to his first wife(s). I am in agreement with the learned counsel for the petitioner that as provided by Section 6(5)(a) of the Muslim Family Laws Ordinance, 1961, any man who contracts another marriage without the permission of the Arbitration Council is immediately liable to pay the entire amount of dower, either prompt or deferred, due to the existing wife or wives. In the instant case, admittedly, the respondent has contracted second marriage and has not obtained any permission therefor as enjoined by the provisions of the Ordinance. Hence, he is liable to pay the entire dower, either prompt or deferred, to the petitioner. As such, learned Additional District Judge has rightly awarded Rs.50,000/- as dower amount to the petitioner but the impugned order is silent about the other part of dower, i.e. ten Bighas of land, which seems to be left undecided. It is admitted by the learned counsel for the respondent that the order of the learned appellate Court is silent to that extent, which has not been challenged by the respondent/husband. Hence, the dower of Rs. 50,000/- awarded in appeal by the learned appellate Court has attained finality. As the learned appellate Court has not given any finding on second part of the dower, i.e. ten Bighas of land; therefore, issue No. 3-A to this extent has been left undecided. Hence, the remand of the case to this extent to the learned appellate Court appears to be sine qua non. Accordingly, the matter is remitted to the learned appellate Court to decide it to the extent of second part of the dower, i.e. ten Bighas of land, which, admittedly has been sold by the respondent/husband to other persons. The parties are directed to appear before the learned appellate Court on 27.11.2008. The learned appellate Court shall decide the matter to the above extent afresh after hearing both the parties and recording evidence, if necessary, within two months of the receipt of this order. (R.A.) Case remanded.