P L D 2014 Peshawar 60

Before Mian Fasihul Mulk and Yahya Afridi, JJ

Mst. SALMA BIBI and another---Petitioners

Versus

MUHAMMAD IQBAL and 2 others---Respondents

Writ Petition No.3474-P of 2012, decided on 18th September, 2013.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 17---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for

recovery of dower, dowry articles and maintenance allowance---Kabin Nama, proof of---Rigours
of proving documents were not applicable to the proceedings before the Family Court---
Nikahnama produced by the plaintiff remained un-rebutted by the defendant which could not be
ignored by the Appellate Court---Findings of Appellate Court with regard to refusal of
maintenance were incorrect---Dower was fifteen tolas of gold out of which four tolas was prompt
while remaining was deferred---Plaintiff had acknowledged receipt of three tolas of gold but
she was entitled for twelve tolas of gold as dower---Constitutional petition was partially
accepted.

Writ Petition No.767 of 2013 rel.

(b) Islamic law---

----Dower---"Prompt" and "Deferred",---Distinction---Amount of dower was usually split into

two parts, one was "prompt" which was payable on demand and other was "deferred" which was
payable on dissolution of marriage by death or divorce---Where it was not settled at the time of
marriage whether dower was prompt or deferred, then according to Shia law the whole dower
was prompt but according to Sunni law part was prompt and part was deferred and same would
be regulated by custom and in absence of the same, by the status of the parties and the amount of
dower settled---Distinction between prompt and deferred dower would disappear and wife would
be entitled to the remaining dower whether prompt or deferred in case of dissolution of marriage-
--Muajjal dower was prompt, immediately and exigible whereas muwajjal was deferred---Wife
was entitled to demand so much of her dower as was exigible but she was not entitled during the
continuance of marriage to demand the deferred portion of the dower.
 Principles of Muhammadan Law by Mulla, S.290(1) and Principles of Muhammadan
Jurisprudence by Sir Abdul Rahim quoted.

(c) Islamic law---

----Dower---Rights and obligations of parties in case of divorce---Rights and obligations on

completion of divorce were; right to contract another marriage, if marriage was consummated,
the wife might marry another husband after the completion of her iddat; if the marriage was not
consummated, she was free to marry immediately, if marriage was consummated, the husband
had four wives at the date of divorce including the divorced wife, he might marry another wife
after completion of iddat of the divorced wife; dower would immediately become payable, if
marriage was consummated , the wife was entitled to immediate payment of the whole of unpaid
dower both prompt and deferred, if marriage was not consummated and amount of dower was
specified in the contract, she was entitled to half of such amount, if no amount was specified ,
she was entitled to a present of three articles of dress.

Principles of Muhammadan Law by Mulla S.336 quoted.

Ijaz Ahmad Malik for Petitioners.

Syed Mushtaq Ali Shah for Respondents.

Date of hearing: 18th September, 2013.

JUDGMENT

YAHYA AFIRDI, J.---Mst. Salma Bibi and her minor son Muhammad Azam petitioners
seek the Constitutional jurisdiction of this Court praying that:--

"It is therefore, most humbly prayed that on acceptance of this Writ Petition the
impugned judgment/decree/order of the learned Additional District Judge, Peshawar dated 6-11-
2012 may be declared, illegal, against the law unlawful, without lawful authority and of no legal
effect and the same be set aside. While the judgment/decree/order dated 23-2-2012 of the learned
Judge Family Court may very graciously be restored."

2. In essence, the grievance of the petitioners, as pleaded is that Mst.Salma Bibi (petitioner
No.1) was married to Muhammad Iqbal (respondent No.1) on 16-11-2008; that Rukhsati' due to
a dispute between the parties was delayed till the matter was settled and culminated in the
execution of the `Kabin Nama'/Mahar Nama' on 15-1-2010 and thereafter the Rukhsati' took
place on 14-2-2010; that the relations between the spouses became strained and petitioner No.1
was ousted by respondent No.1 from his house; that thereafter, Mst. Salma Bibi filed a suit for
recovery of dower, maintenance and dowry articles, but soon after filing of the suit, Muhammad
Azan (petitioner No.2) was born, while she was at her parents' house.

3. The suit was opposed by respondent No.1 by submitting written statement. The contested
pleadings of the parties were reduced to the following issues:-

(1) Whether the plaintiff has got any cause of action?

(2) Whether plaintiff is estopped to sue by her own conduct?

(3) Whether plaintiff is entitled for recovery of Rs.50,000 dower amount?

(4) Whether plaintiff is entitled to recovery of 20 Tolas Golden Ornaments.

(5) Whether plaintiff is entitled for possession of 05 marlas house?

(6) Whether plaintiff is entitled for recovery of dowry articles.

(7) Whether plaintiffs are entitled for past and future maintenance in tune of Rs.3000/- per
month?

(8) Whether defendant is entitled for decree of conjugal right?

(9) Whether the parties are entitled to decree as prayed for?

(10) Relief.

4. After hearing arguments of the learned counsel for the parties and perusal of the record,
the learned Civil Judge-II/Judge Family Court, Peshawar, vide judgment and decree dated 23-2-
2012, partially decreed the suit by observing:--
 "In sequel in above discussion plaintiff is entitled to recover her dower as Rs.50,000/-
cash, 15 Tola Gold Ornaments and 5 marlas constructed house. Plaintiff is further allowed to
recover her dowry articles as per list. Plaintiff No.1 is also allowed to recover maintenance at the
rate of Rs.3000/- from June 2010 till her demand of dower is satisfied. Plaintiff No.2 is also
allowed to recover maintenance at the rate of Rs.1500/- with 15% annual increase from his birth
till date his right ceases by operation of law or any other valid reason. On the other hand,
defendant is also allowed decree for restitution of conjugal rights subject to payment of dower.
Rest of claim of both parties stands dismissed."

5. Feeling aggrieved from the said order, respondent No.1 filed appeal before Additional
District Judge-II, Peshawar, which was accepted in the following words:--

"In the light of the above the appeal in hand is hereby accepted and the suit of the
respondent/defendant is hereby dismissed as above. No order as to costs."

Hence, the writ petition in hand.

6. Valuable arguments of the learned counsel for the parties heard and record perused with
their able assistance.

7. On reviewing the record, this Court finds the following relevant events, which are
narrated in chronological order:--

16-11-2008

"Nikah" was performed between Mst. Salma Bibi (petitioner No.1) and Muhammad Iqbal
(respondent No.1). The "Nikahnama" was produced by petitioner No.1 during the testimony as
Exh.P.W.3/X-I. The "Nikahnama" stipulated dower to be 15 tolas of gold, out of which 4 tolas
was "prompt", while the remaining 11 tolas to be "deferred".

It would be pertinent to note that 'Rukhsati' did not take place on the said date.

15-1-2010

"Kabinama" (Ex.PW3/1) was executed between petitioner No.1 and respondent No.1,
which fixed dower as;
• Rs. 50,000/-;

• 15 tolas gold, out of which 3 tolas had been acknowledged as received by Mst. Salma
Bibi;

• Residential House measuring 5 marlas on land at Peshawar;

Whereas, "maintenance" of petitioner No.1 was stipulated in term that;

• Rs.3000 as monthly maintenance during the period, when the petitioner is not maintained
by her husband.

Muhammad Amjad (PW2) and Muhammad Pervez, the scribe (PW1) were produced to
prove the execution of the "Kabinama".

14-2-2010

"Rukhsati" takes place and the petitioner Mst. Salma Bibi is taken by her husband
Muhammad Iqbal and they lived together till June, 2010.

Minor Muhammad Azan is born out of the wedlock of Mst. Salma Bibi and Muhammad
Iqbal, who are still in lawful matrimonial bond.

However, the dispute arose between the parties, which finally resulted in petitioner No.1
seeking her dower in the Court of law. The same was allowed by the learned trial Court and
refused by the appellate Court.

8. The appellate Court, while disturbing the findings rendered by the learned trial Court has
based its decision essentially on the ground that the "Nikahnama" had not been produced in
evidence; that "Kabinama" was not proved, as the marginal witnesses thereto had not been
produced; that the present petitioner No.1 is not entitled to the maintenance, as she is not ready
to live with her husband.

9. On careful consideration of the evidence brought on the record, this Court finds that the
appellate Court legally erred by misapplication of fundamental principles of law governing
resolution of family disputes on the following legal premise:--

Firstly, as far as, the execution of "Kabinama" is concerned, it is noted that the rigours of
proving documents as provided in Qanun-e-Shahadat Order, 1984 are not applicable to the
proceedings before the Family Court, as the same has been expressly excluded from its
application by virtue of section 17 of the Family Courts Act, 1964. In this regard, Hon'ble Mr.
Justice Nisar Hussain Khan, while authoring the judgment in Writ Petition No.767/13 has very
eloquently dealt with matter in terms that:-

"No principle of law can be pressed into service for its enforcement when the same is
expressly barred by the clear section of law. Such procedure can only be followed when there is
no barring clause in the Statute and the matter is open for its interpretation for either side.
However, in the instant case, the application of Qanun-e-Shahadat Order, 1984 is barred in un-
equivocal terms. Thus, this proposition cannot be followed. Likewise, the production of two
witnesses of deed is also requirement of Qanun-e-Shahadat Order which is not applicable to the
case in hand."

Secondly, as far as, "Nikahnama" is concerned, it is noted that petitioner No.1 produced
the same during her cross-examination (Exh.P.W.1/X-1), which went un-rebutted by the present
respondent and hence the said document could not be ignored by the appellate Court, while
deciding the family dispute between the parties.

Thirdly, this Court is not ready to accept the contention that the "Kabinama" was the
result of duress upon respondent No.1 for the simple reason that the alleged period of abduction
in which the respondent No.1 claims to have been put to undue influence was well after
execution of the "Kabinama". The incident of kidnapping was reported to the Police vide
criminal case/F.I.R. No.785 registered on 5-10-2010 ("F.I.R."), while prior to the said date and
time, the "Kabinama" was admittedly executed on 15-1-2010, the "Rukhsati" of the petitioner on
15-2-2010 and their happy cohabitation is admittedly up to June, 2010. Thus, the apparent
admitted facts belies the said stances taken by respondent No.1 regarding the "Kabinama" being
the result of duress imposed upon him by the family members of petitioner No.l.

Fourthly, petitioner No.1 present in Court, when asked about her intention of resuming
her conjugal rights, willingly admitted in open Court that respondent No.1 was her lawful
husband and for the sake of her young son Muhammad Azan, she is ready to live with her
husband, as his lawful wedded wife. To said offer, the response of respondent No.1 was rather
evasive. Hence, the finding of the appellate Court on the reason for refusing `maintenance' to the
petitioner No.1 is incorrect and requires judicial correction.

Fifthly, the sequence of events, as narrated hereinabove, reveals that the "Nikahnama"
determined the dower to be 15 tolas of gold, out of which 4 tolas was 'prompt', while the
remaining was to be 'deferred'; the dower so fixed by the parties as stipulated in the "kabinama",
provides for dower to include 15 tolas of gold; Rs.53,000/- cash; and five marlas house in
Peshawar and Rs.3000/- cash, as monthly maintenance. The terms of dower as determined in
"Kabinama" being proved by petitioner No.1 through preponderance of evidence, was in addition
to the stipulation of dower stated in the "Nikahnama". The terms so stated would bind both
executing parties.
 In this regard, it is noted that three tolas of gold has been acknowledged as received by
petitioner No.1 in the "Kabinama". This Court considers that the said acknowledgement of
receipt provided for in the "Kabinama" would also be taken into account. Thus, petitioner No.1
would be entitled only to twelve tolas of gold as dower, as she has acknowledged receipt of three
tolas of gold. Accordingly, out of twelve tolas, petitioner No.1 would be entitled to one tola of
gold as 'prompt', while eleven tolas as 'deferred' dower.

It is also noted that there is no stipulation regarding the quantum of 'prompt' or 'deferred'
dower expressed in the `Kabinama'. Thus, this Court would have to resort to the principles
governing the matter as ordained in Muhammadan Law. To resolve this controversy between the
parties, it may not be out of place to rely on section 290, subsection (1) of Principles of
Muhammadan Law, which reads:

"Prompt" and "deferred" dower.---(1) The amount of dower is usually split into two parts,
one called "prompt", which is payable on demand, and the other called "deferred" which is
payable on dissolution of marriage by death or divorce."

(2) Where it is not settled at the time of marriage whether the dower is to be prompt or
deferred, then according to the Shia law, the rule is to be regarded the whole as prompt but
according to the Sunni law, the rule is to be regarded part as prompt and part as deferred, the
proportion referable to each class being regulated by custom, and, in the absence of custom, by
the status of the parties and the amount of the dower settled. (Emphasis provided)

As we have already held that the terms of `Kabinnama' were in addition to the same
stated in the 'Nikahnama' therefore, the intention of the parties being clear, it would be safe to
apply the same proportion to the dower so fixed in the `Kabinama'. Accordingly, petitioner No.1
is entitled to four portions of the dower as 'prompt', while the remaining eleven portions thereof
to be 'deferred' dower.

As far as the arguments of the learned counsel for the petitioners that as the spouses had
consummated their marriage, petitioner No.1 was entitled to the entire dower, without any
exception of the stipulation regarding the 'prompt' or 'deferred', this Court is not in consonance
with the said line of argument. In this regard, reference was made to section 336 of
Muhammadan Law, which reads as follows:--

"Rights and obligations of parties in divorce.

The following rights and obligations arise on the completion of a divorce, whatever may
be the mode of divorce:-

(1) Right to contract another marriage. If the marriage was consummated, the wife may
marry another husband after the completion of her iddat; if the marriage was not consummated,
she is free to marry immediately.

If the marriage was consummated, the husband had four wives at the date of divorce
including the divorced wife, he may marry another wife after completion of the iddat of the
divorced wife.

(2) Dower becomes immediately payable. If the marriage was consummated, the wife is
entitled to immediate payment of the whole of the unpaid dower, both prompt and deferred. If
the marriage was not consummated, and the amount of dower was specified in the contract, she
is entitled to half of that amount. If no amount was specified all that she is entitled to is a present
of three articles of dress.

The aforementioned provision of Muhammadan Law relates to the obligations of husband

and wife in cases of divorce, which is not the case in hand. Hence, the said provision of law has
been taken out of context and would not be applicable to the facts of the present case. Surely, in
case the husband dies or the spouses are unable to resolve their differences and the matter leads
to the dissolution of their marriage, only in such a situation, the distinction between 'prompt' and
'deferred' dower would disappear and the wife would be entitled to all remaining dower, whether
'prompt' or 'deferred'. This issue has also been dilated upon by Sir Abdur Rahim, MA in the
treatise of Principles of Muhammadan Jurisprudence, in terms that:--

"Having regard to the time when it becomes payable dower may be mua'jjal that is,
immediately, exigible or prompt, or muwajjal that is deferred. Whether a dower should be
entirely or in part exigible or deferred depends on the contract of the parties and in the absence of
any contract, on the custom of the country. Even during the subsistence of the marriage the wife
is entitled to demand so much of her dower as is exigible, but she is not entitled during the
continuance of the marriage to demand the deferred portion of the dower."

Finally, as far as the dowry articles are concerned, it is noted that it includes 5 tolas of
gold alleged by petitioner No.1 to have been purchased by her family, as her dowry. The receipt
in support thereof does not plead her stance, as the same clearly states to have been purchased
after the date of her "Nikah" with her husband. This aspect of the case has not been dealt with by
the trial Court and granting a decree for the same to petitioner No.1 is not in accord with the
settled principles of law.

10. Accordingly, for the reasons stated hereinabove, this Court partially accepts the present
petition and holds;

(i) that Mst. Salma Bibi and Muhammad Iqbal being lawfully married are husband and wife,
having a minor son Muhammad Azan;

(ii) that the decision of the appellate Court is illegal and thus set aside;
(iii) that the decision of the trial Court is modified and a decree is passed in favour of the
parties, in terms that;

(a) that petitioner No.1 is entitled to dower of Rs.53,000 in cash, twelve tolas of gold, five
marlas house in Peshawar;

(b) that 4th portion of the dower is 'prompt', while the 11th portion thereof is 'deferred',
except in case of twelve tolas of gold, of which one tola of gold is 'prompt' and the remaining
eleven tolas is `deferred' dower;

(c) that the petitioner No.1 is entitled to dowry articles as per list attached with the plaint,
except 5 (five) tolas of gold.

(d) that plaintiff No.1 is allowed to recover maintenance at the rate of Rs.3000/- from June
2010 till her demand of dower is satisfied.

(e) that plaintiff No.2 is also allowed to recover maintenance at the rate of Rs.1500/- with
15% annual increase from his birth till date his right ceases by operation of law or any other
valid reason.

(f) that defendant No.1 is also allowed decree for restitution of conjugal rights subject to
payment of dower to petitioner No.1.

AG/648/P Order accordingly.