2026 PLP 541 (CLC)

SHAUKAT ALI RAKHSHANI, J.

The instant constitutional petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") by the petitioner, which carries the following relief; "It is, therefore, respectfully prayed that in the view of above submission, the impugned judgment and decree dated 26-08-2023 passed by respondent No.2 in Family Appeal No.07/2023 may kindly be set-aside and upheld the judgment and decree dated 06-04-2023 passed by Family Judge-I, Quetta in the interest of justice, equity and fair play."

2. Unfurled facts of the instant petition are that the petitioner filed a suit before the learned Family Judge-I, Quetta ("Trial Court") for restitution of conjugal rights, maintenance for herself and minor, recovery of unpaid dower amount, separate accommodation as well as recovery of delivery charges worth of Rs.150,000/-, averring therein that she got married to respondent No. 1 on 25.09.2021 against Haq Mehr of Rs.25,10,000/- and 7 Tola Gold, whereof Rs. 10,000/- and 7 Tola gold was agreed to be prompt dower, which respondent No. 1 paid at time of marriage, whilst Rs.2,500,000/- was agreed between the parties as deferred dower, which is still payable. According to the petitioner, the relation between the spouse, became strained and even after birth of their child namely Musa, the behavior of respondent No.1 did not change and he left the petitioner to her parents' house and till date he did not contact her. The suit was contested by respondent No.1 by filing written statement, wherein the allegations were strenuously repudiated.

3. The Trial Court, out of divergent pleadings framed seven issues, whereafter the parties led their respective evidences and also recorded their statement. After due appraisal of evidence, the Trial Court vide judgment dated 06.04.2023 partly decreed the suit of the petitioner, against which respondent No.1 filed an appeal to the extent of deferred dower before the learned Additional District Judge-VI, Quetta ("Appellate Court"), which after hearing the adversarial parties vide impugned judgment dated 26.08.2023 set aside the judgment dated 06.04.2023 passed by the Trial Court to the extent of deferred dower of Rs.25,00,000/-, hence this petition.

4. Heard. Record sussed out with the able assistance of learned counsel for the parties.

5. The Trial Court on conclusion of the trial pursuant to the claim of the petitioner rendered the following decree; "The suit of plaintiff is partly decreed in her favour. The plaintiff is entitled for decree of restitution of conjugal rights and the defendant is directed to arrange separate accommodation and perform his matrimonial obligations by taking the plaintiff to his house. The plaintiff is entitled for recovery of her dower amount of Rs.25,00,000/- (twenty five lac) as mentioned in Nikah Nama of the parties. The plaintiff is entitled for recovery of maintenance of herself (if she joins the house of defendant and performs her matrimonial obligations) at the rate of Rs. 15,000/- (Fifteen thousand) since filing of main suit i.e. 17th March, 2022 till her legal entitlement. The plaintiff is entitled for recovery of maintenance for her minor namely; Musa at the rate of Rs. 10,000/- (ten thousand) per month since birth thill his age of puberty with enhancement of 10% increment per annum (increment shall be applicable on principle quantum of maintenance). The plaintiff is also entitled for recovery of delivery expenses of minor namely; Musa at the rate of Rs.1,50,000/- (one lac fifty thousand) The claim of plaintiff to the extent of recovery of treatment and surgery expenses of minors is dismissed".

6. However, in appeal the impugned judgment and decree dated 06.05.2023 passed by the Trial Court was set aside to the extent of paying dower amount of Rs.25,00,000/- , the operative pare whereof reads as under; "The judgment and decree dated 06.04.2023 to the extent of burdening defendant (present appellant) for paying dower amount of Rs.25,00,000/- are set aside but rest of the judgment and decree are not interfered with, hence, upheld. Parties are left to bear their respective costs."

7. The controversy before this Court is only to the extent of payment of dower amount of Rs.25,00,000/- whereas the dower amount of Rs.10,000/- and 7 Tola gold have already been paid and the petitioner has unequivocally acknowledged to have received the same.

8. In order to understand the issue, let us dive into the definition and connotation of prompt dower (Mehr-e-Mu'ajjal) and deferred dower (Mehr-e-Mu'wajjal). Prompt dower is to be paid either at the time of marriage or on demand, whereas deferred dower is to be paid at such date or time as may be mutually agreed between the parties and in the absence of any date; it is to be paid on the happening of a certain event like divorce. Undeniably, the connotations above have nowhere in the Holy Quran has been mentioned and has not distinguished both the aforementioned terms. In Surah Nisa verse No.4 the term dower find mentions in following words; "At the time of marriage, give the women their dowers willingly as an obligation; but if they, by their own free will, give up to you a portion of it then you may enjoy it with pleasure." However, a renowned Islamic scholar Moulana Abdul Aala Moududi in his book "Haqooq-e-Zaujain" expounded that the deferred dower is payable on demand and took a contra view to Para 290 of the Muhammadan Law by D.G Mullah that the deferred dower would be only payable after the death of the husband. In this regard reference can be made to the case of "Saadia Usman v. Muhammad Usman Iqbal Jadoon" (2009 SCMR 1458).

9. The apex Court in the case of "Khalid Pervaiz v. Samina" (2024 SCMR 142) deprecated the conduct of the Husband in delaying the payment of dower amount on one pretext or the other by holding that such type of frivolous litigation is paralyzing the judicial system of Pakistan and made reference to the case of "Syed Muhammad v. Mst. Zeenat" (PLD 2001 SC 128), wherein the Supreme Court held that dower (Mehr) can be demanded anytime during the subsistence of the marriage, and that the husband is under an obligation to pay it. Section 10 of the Muslim Family Laws Ordinance, 1961 stipulates that where no details about the mode of payment of dower are specified in the Nikahnama, or the marriage contract, the entire amount of the dower shall be presumed to be, payable on demand. There is no bar to the parties entering into a mutual agreement to pay the dower amount at the time of marriage, on demand, or at such date or time as mutually agreed upon.

10. In the instant case, the parties in the Nikahnama have agreed to have received 7 Tola Gold and Rs.10,000/- being Mehr-e-Mu'ajjal and Rs. 25,00,000/- to be paid as Mehr-e-Mu'wajjal. The parties have no controversy in respect of consideration of dower amount except that whether Rs.25,00,000/- is to be paid on demand or upon dissolution of marriage. Admittedly, uptill date the parties are tied with the thread of marriage as husband and wife.

11. In view of the above, we find no ambiguity in holding that respondent No.1 (husband) is obliged to pay Rs.25,00,000/- to her wife on demand and she needs not to wait to receive the said amount until dissolution of marriage.

12. We have critically examined the impugned judgment of the Appellate Court, which is contrary to the law and the settled principles of Islamic jurisprudence, having no backing of any enactment, thus, we are persuaded to meddle with the same and set at naught the impugned judgment of the Appellate Court for having no legal effect.

13. For the foregoing reasons, the petition is allowed and the impugned judgment dated and decree dated 26.08.2023, rendered by the Appellate Court is set aside to the extent of payment of Haq mehr of Rs.25,00,000/- for having no legal effect. The parties shall bear the expenses of the lis on their own. UN/105/Bal Petition allowed.