IN THE COURT OF CH.

MUHAMMAD ASIF,
JUDGE FAMILY COURT, LAYYAH.

Family Suit No. 131/FC of 2012.

Msr. Parveen Bibi. Vs. Mushtaq Hussain

SUIT FOR RECOVERY OF RECOVERY OF

DOWER.

Date of Institution. 31.07.2012

Date of decision. 20.05.2014.

Malik Fazal Hussain advocate counsel for plaintiffs.

EXPARTE JUDGMENT.
The plaintiff Mst. Parveen Bibi has filed the instant suit for recovery of
dower in the shape a house alongwith hand pump, boundary wall consisting of one
kanal valuing Rs. 2,00,000/-.
2. Brief facts of the instant case as per averments of plaint are that the
marriage between the plaintiff and defendant was solemnized about six years prior to
the institution of the suit. During the inhabitation period one daughter was born who
is alive and is in her custody. At the time of marriage it was settled inter-se the parties
that the defendant would give dower in the shape of a house alongwith hand pump,
boundary wall consisting of one kanal valuing Rs. 2,00,000/- and same was entered in
the nikahnama of the parties. Despite demanding dower defendant failed to pay the
same for which he is legally and ethically bound to pay. About three months prior to
the institution of the suit defendants ousted the plaintiff after severe beating in three
wearing apparels. Since then she is living her parent’s home. She also filed a suit for
dissolution of marriage and succeeded to procure decree for dissolution of marriage.
Prior to this suit plaintiff has also filed a suit for recovery of dower which was
dismissed by declaring it as defer dower. Now as the marriage inter-se the parties has
bee dissolved, therefore, she is also entitled to receive dower. The defendant has been
asked time and again to pay dower debt or to pay Rs. 1,00,000/- as price thereof. But
he has flatly refused. Hence, this suit.
3. Defendant appeared in the court and contested the suit in hand by filing
written statement and controverted the contents of the plaint on many preliminary as
well as on factual objections. It is contended that this court has no jurisdiction to
entertain the suit in hand; suit is not maintainable in its present form; plaintiff is
estopped by his words and conduct to file this suit. On facts it is contended that at the
time of execution of nikahnan inter-se the parties no entry regarding dower in the
shape of a house alongwith hand pump, boundary wall consisting of one kanal and
valuing Rs. 2,00,000/- was written. Now as the marriage inter-se the parties has been
dissolved, therefore, plaintiff is not entitled to recover the dower as alleged in the
plaint.
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4. Out of the divergent pleadings of the parties, following issues were

framed on 16.04.2013.
ISSUES:-
1. Whether the plaintiff is entitled to recover dower from the defendant
as asserted in her plaint? OPP
2. Whether the plaintiff has no cause of action to file this suit? OPD
3. Relief.
5. After framing the issues both the parties were directed to produce their
respective evidence in support of their pleas versions.
6. In order to prove her version plaintiff has produced following
witnesses:-
Mst. Parveen Bibi as Pw.1
This Pw is the plaintiff of this suit. She submitted her affidavit Exh.P1
wherein she deposed the same story as narrated in the plaint.
Ghulam Fareed as Pw.2
This Pw is witness of nikahnama. He submitted his affidavit Exh.P2 and
also narrated the same story as narrated by the plaintiff.

7. In documentary evidence plaintiff produced copy of nikahnama as

Exh.P3 and copy of order and decree dated 27.07.2010 Mark A. Copy of the plaint of
dissolution of marriage along-with order dated 07.09.2011 as Mark B.
8. It is pertinent to mention here that on 15.05.2014 plaintiff produced copy
of the plaint of dissolution of marriage along-with order as Mark B but inadvertently
the same was marked as Mark A. Therefore, same should be considered and read as
Mark B. It is also pertinent to mention here that affidavit of Ghulam Murtaza was
submitted before the court but later on he was given up by the plaintiff.
9. Perusal of the record shows that on 28.03.2014 no one turned up on
behalf of the defendant despite calling the suit in hand repeatedly. Hence, he was
proceeded against exparte.
10. It is argued by the learned counsel for the plaintiff that prior to this suit
plaintiff filed a suit for recovery of maintenance allowance, dower and dowry articles
Mark A which was dismissed by the court declaring that dower is defer dower and in
the existence of marriage plaintiff is not entitled to the recover the same. It is further
argued by the learned counsel for the plaintiff that on dissolving the marriage on the
basis of Khula vide order dated 07.09.2011 court has not ordered the plaintiff to return
the dower in consideration of Khula. Plaintiff has got divorce from the defendant.
Dower is her right. She can’t be deprived from her right. Plaintiff has not only got
dissolution of marriage on the basis of Khula she also alleged some other grounds
therefore, she is entitled to receive the dower so her suit for recovery of dower be
decreed. He relied upon the judgments reported as PLD 2012 SC 273, 2008 CLC 1337,
2013 MLD 247 and 2012 YLR 1895.
11. I have heard arguments of learned counsel for the plaintiff at length and
have gone through the record.
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12. My issue wise findings are as under:-

ISSUE NO:01
13. Onus probandi of this issue was placed upon the plaintiff. Plaintiff
claimed dower 1 Kanal land along-with home boundary wall, water pump in order to
prove this issue plaintiff appeared in the witness box, submitted her affidavit Exh.P1
wherein she deposed that she was married with the defendant about six year prior to
the institution of this suit. Plaintiff lived with the defendant, performed her nuptial
obligations and out of this wedlock one daughter was born out who is in her custody.
At the time of her marriage defendant agreed to pay dower 01 Kanal land along-with
boundary wall and water pump valuing Rs.2,00,000/- which were mentioned in the
nikahnama and same has not yet been paid and presently value of the home is
Rs.3,50,000/-. Defendant ousted her in three wearing apparels after severe beating.
Plaintiff settled with her parents, got decree for dissolution of marriage. Prior to this
she filed a suit for recovery of dower which was dismissed with the observations that
the sower was as deferred dower & without dissolving the marriage plaintiff can’t
received it. Now she has got decree for dissolution of marriage, therefore, she has filed
this suit. Plaintiff also produced Ghulam Fareed as Pw.2. who has submitted his
affidavit Exh.P2 respectively wherein he deposed the same facts as narrated by the
plaintiff.
14. I have gone through the evidence produced by the plaintiff with able
assistance of learned counsel for the plaintiff in order to brought true facts on record.
15. Before further discussion with I feel it appropriate to reproduced section
10(4) of the Muslim Family Court Act 1964 for ready reference which is reproduced as
under:-
“If no compromise or reconciliation is possible the court shall frame the
issues in the case and fix a date for recording of evidence.
Provided that notwithstanding any decision or judgment of any Court
or Tribunal, the Family Court in a suit for dissolution of marriage, if
reconciliation fails, shall pass decree for dissolution of marriage
forthwith and shall also restore to the husband the Haq Mehr received
by the wife in consideration of marriage at the time of marriage”.

Plaintiff in her cross examination stated that her suit for dissolution of marriage was
decreed on the basis of Khula vide orders dated 07.09.2011. Her words are reproduced
as under:-

She again stated that she filed a suit for dissolution of marriage with her own consent,
got dissolved marriage & got dissolved her second marriage. Her words are
reproduced as under:-
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16. Above deposition shows that plaintiff herself got dissolution of marriage
and it is provided in section 10(4) of the Muslim Family Court Act 1964 that if
reconciliation failed the court shall pass decree for dissolution of marriage and word
shall is used for return of dower to husband if received by the wife in consideration of
marriage which means return of dower is obligatory. Word shall has significance in
the provision and mere non declaring by the court that marriage of the plaintiff was
decreed and further declaring that in consideration of the same plaintiff shall not
receive her previous maintenance allowance does not mean that she became entitled
to receive dower. Even otherwise dower as claimed is not given to her if she had not
received the same she could not directed to return the same. So the arguments of the
learned counsel for the plaintiff that now marriage has been dissolved and plaintiff is
entitled to receive the deferred dower is not sustainable. In my view plaintiff can
claim dower only if divorce is given by the defendant or marriage has been dissolved
due to the death of the defendant. When she herself got divorce on the basis of Khula
with her free consent and got arranged her second marriage, she can’t claim dower
and arguments of the learned counsel for the plaintiff does not appeal to the prudent
man in the given circumstances.
17. It is also argued by the learned counsel for the plaintiff that plaintiff has
claimed and got dissolved her marriage on some other grounds too. It can’t be said
that marriage was dissolved on the basis of Khula and plaintiff can’t be declared not
entitled to receive the same is not applicable as plaintiff herself admitted that she got
decree of dissolution of marriage on the basis of Khula with her free consent and will.
Learned counsel for the plaintiff relied upon 2013 MLD 247 merely realte to payment
of dower where husband contracts second marriage without permission of first wife
and he was declared to pay immediately entire dower to his first wife irrespective of
the fact whether the same was prompt or deferred. Firstly plaintiff got her divorce
secondly defendant has not got contracted marriage during his marriage time. In the
said judgment husband has divorced wife and wife has not got divorce on the basis of
Khula. Therefore, said judgment is not applicable to the facts and circumstances of the
instant suit. Now coming to the 2008 CLC 1337. In the said judgment it is alleged that
plaintiff has not claimed dissolution of marriage on the basis of Khula but she also
mentioned different instances of cruelty and bad behaviour of the defendant and from
the statement recorded before learned trial court it can’t be presumed that plaintiff has
claimed dissolution of marriage on the basis of Khula and in the said judgment the
word Khula is not used. On the other hand in the instant suit plaintiff claimed
dissolution of marriage on the basis of Khula. She admitted the same during the
course of cross examination with her free consent. Therefore, said judgment is also not
applicable to the facts and circumstances of this suit. As far as the reported judgment
PLD 2002 SC 273 is concerned marriage was dissolved on various grounds including
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Khula and then wife would be entitled to the dower and dowry. But where it was
dissolved solely on the ground of Khula then her offer made for getting marriage
dissolved on the Khula would be examined. Therefore, this judgment is also not
applicable to the facts and circumstances of this case. Now coming to the reported
judgment 2012 YLR 1985 it was held by the Hon’ble Lahore high court Lahore, that
wife in lieu of dissolution of marriage on the basis of Khula in not liable to restore
dower or other benefits received by her, if she claims dissolution of marriage on
account of husband’s fault. In the instant suit plaintiff sought dissolution of marriage
with her free consent. No evidence has been lead on other allegations. In the instant
case plaintiff herself got dissolved her marriage on the basis of Khula with her free
consent and provision 10(4) of Family Court Act would apply over the present
plaintiff. So facts and circumstances of the instant judgment are also not applicable to
the instant suit.
18. Keeping in view the above discussion, plaintiff badly failed to prove this
issue. Same is decided against her.
ISSUE NO:02
19. Onus probandi of this issue was placed upon the defendant. Defendant
was proceeded against exparte on 28.03.2014. Therefore, this issue has become
redundant.
RELIEF:-
20. In view of my findings on above noted issued, the suit in hand is hereby
dismissed. Parties are left to bear their own costs. Decree sheet be prepared
accordingly. File be consigned to the record room after its due completion.
Announced.
20.05.2014. (Ch. Muhammad Asif)
Judge Family Court, Layyah.
Certified that this judgment consists of five (05) pages, which has been
dictated, read, corrected and signed by me.
Dated.20.05.2014.
Judge Family Court, Layyah.