1988 PLP 1546 (CLC)

The restrictive provisions of law contained in Act XLIII of 1976 are un‑Islamic. It is keeping in view these Islamic provisions that the framer of the law and the legislature hesitated from making it absolutely prohibitive law. While interpreting the provisions of law contained in the said Act one has to keep in view the interpretation which is in accordance with the Injunctions of Islam. According to the said interpretation it is crystal clear that Act XLIII of 1976 is not of prohibitory nature and, therefore, the dowry or the Wari articles even in excess of Rs.5,0(0 are rightful gifts conferred on her by her parents or by her husband (or his parents) respectively. This also means that a wife can recover her dowry or Wari articles or the value thereof even in excess of Rs.5,000 each. It may be mentioned that one of the reasons (and not the sole reason) for giving a right of inheritance to a daughter to the extent of the son is that she usually gets enough as dowry at the time of her marriage. If her right to get the dowry is restricted this purpose of Islamic Law of Inheritance will be defeated and there is no doubt that we cannot do so in defiance or non‑compliance of the Qur'anic Injunctions. For this reason also the law laid down in Act XLIII of 1976 is wholly un‑Islamic and is wholly detrimental to the interests of the women as a whole and the wives in particular. Court has to look into and enforce the provisions thereof keeping in view all these aspects. Therefore, even the restrictive provisions contained therein cannot be implemented either in letter or spirit. Mst. Balqis Fatima v. Najam‑il‑Ikram Qureshi P L D 1959 (W.P.) Lah. 566 and Mussarat Zaman Begum v. Ali Hassan 1986 C L C 2265 ref. Bashir Ahmad Ansari for Petitioner. The parties were married to each other on 12‑10‑1981. Some time afterwards there were differences between them and they siarted living separately. The respondent filed a suit for recovery of her dowry articles or in the alternative for recovery of Rs.87,792.50 as the value thereof. The suit was resisted by the appellant. The learned trial Court framed the following issues:‑ (1) Whether the plaintiff has no cause of action? O.P.D. (2) Whether the suit is not maintainable in the light of Dower Restriction Act, 1976? O.P.D. (3)What is the effect of preliminary objection No.5? O.P.D. (4) Whether the plaintiff is entitled to recover the articles of dowry from the defendant or in the alternative Rs.87,792.50 in lieu thereof? O.P.P. (5) Whether the defendant is entitled to special costs? O.P.D. (6) Relief. The issues were decided in favour of the respondent and the learned Senior Civil Judge, Jhelum, passed a decree for recovery of Rs.87,792.50 in favour of the respondent with costs, through judgment and decree, dated 28‑9‑1985. The appellant filed an appeal which was partly accepted by the learned Additional District Judge, Jhelum, vide judgment and decree, dated 30‑3‑1988. Modifying the decree he decreed the suit for recovery of Rs.57,592.50 through the said judgment. The said judgments and decrees have been assailed by the appellant through this regular second appeal. I have perused the record and have heard arguments.

2. The learned appellate Court has not differed with the learned trial Court in the finding of fact relating to issue No.4. As narrated above, the learned trial Court held the respondent entitled to recovery of Rs.8? 792.50, holding that the articles of dowry of the value of Rs.67,592.50 were given to her by her parents and bridal gifts of the value of Rs.20,200 were given to her as Wari by the appellant or his parents. The learned appellate Court concurred with these findings but he that the respondent was not entitled to get back the articles of Wari or the value thereof amounting to Rs.20,

200. A deduction of an other sum of Rs.10,000 on account of use (wear and tear) of the dowry articles was also allowed The respondent has not come up in appeal or revision to challenge the said deductions and 1 , therefore, need not go into that aspect. The result is that so far as the findings of fact are concerned the learned Courts below have given concurrent finding thereon. It is to be seen as to whether the said concurrent findings should be interfered with by this Court in second appeal. A perusal of the judgement of the learned Courts below will' show that the same are based on the correct appreciation of the evidence produced by the parties. The learned Courts below have believed the evidence of the 11 P.Ws. produced by the respondent, and I have no reason to disbelieve them. The most important factor, in this case is that the appellant did not himself appear in the witness‑box either to deny the receipt of dowry and Wari articles or to state that these as a whole or in part were ever taken away by the respondent. His brother and special attorney, Sajjad Sarwar, appeared as D.‑W.1 as his solitary witness. He stated that he did not know as to where the appellant was and that he did not know as to why he ‑ had disappeared. He did not deny the suggestion that h was involved in some case relating to narcotics. This means that the appellant avoided to appear as his own witness deliberately and not due to any unavoidable circumstances. In other words the appellants had no courage to come and deny the allegations of the respondent and to refute or to rebut the evidence of the P.Ws. As such the evidence of the P.Ws. goes unrebutted is of little significance. T ~h learned counsel for the appellant hay argued that even the respondent did not appear to support her claim. Her non‑appearance has n bearing on the case because as a bride, at the time of marriage, she could not know as to what articles of dowry and of Wari were being given to her. The articles of dowry were given to her by her parents and they had the first hand knowledge of the same. Her father, Haji Khan Muhammad has appeared as P.W. 11 and her brother, Khawarl Mahmood, has appeared as P.W.10. to support the claim of the respondent and that is sufficient to prove her claim because the same is supported by P.Ws. 1 to 9 Therefore, the findings of the learned Courts below in regard to the giving of dowry and Wari to the respondent are correct and are confirmed.

3. The learned counsel for the appellant has argued that under the provisions of law contained in has Dowry and Bridal Gifts (Restriction) Act, 1976 (XLIII of 1976) no dowry or Wari in excess of the value of Rs.5,000 could be given to the respondent either by her parents or by the parents of the appellant. It is correct that under section 3 of the said act, there is a restriction that dowry or Wari exceeding Rs.5,000 could not be given to a bride by her parents or by the parents of the bridegroom. However, there is no complete bar to give a dowry or Wari in excess of the said amount. The title of the law in itself shows that it is a restrictive law and not a prohibitory law. Similarly in the preamble of the said law it has been provided that a law is necessary 'for restrictions on dowry and bridal gifts'. This so shows that there was no intention of the framer of the law or the legislature to impose a complete ban on the giving of dowry and Wari in excess of the said amount. Therefore, if dowry or Wari or Moth exceed the value of Rs.5,000 each that will not mean that it is such an illegal act that it should entail the confiscation of such property of the bride. Section 5 of the said And provides that all property given as dowry 'or' bridal gift to a brie shall vest absolutely in her and that her interest in the said property, however derived, shall not be restrictive, conditional or limited. I am the said section there is no limitation of Rs.5,000 either for dowry or for Wari. On the other hand, it has been provided therein the such property shall be owned by her absolutely and to the exclusion of the bridegroom without caring for the source through which it has come and without limitation of any amount. Therefore, it is quite clear that even in spite of the restriction imposed in section 3 ibid bride is the owner of the dowry and Wari articles irrespective their value and she is entitled to retain it for ever and to claim it return or the value thereof if the same is kept back by her husband or any other person. In the nut shell the said law does not give a right to the husband to usurp the property in excess of Rs.5,

000. Similarly the law does not mean that the property in excess of Rs.5,000 shall escheat either to the Government or to the husband. Therefore, in spite of the restrictive provisions contained in the said Act a bride is entitled to retain and get all the dowry and Wari articles irrespective of their value.

4. Act XLIII of 19766, was enacted for the benefit of the women to be married and their parents so that they may not remain unmarried for lack of dowry of heavy value. It was not enacted to deprive the wives of the ownership of their dowry and Wari. As a matter of fact, the said Act is a paper law and has seldom been acted upon. The said law has been used only against the women and wives and efforts have been made by the husbands to deprive the wives of their such property on the basis of the said law. In other words, the said law instead of being beneficial to women and wives is detrimental to their rights and interests.

5. It may be added that there is no Islamic sanction behind the said law. In a way the said law offends against the Injunctions of Islam as set out in the Holy Qur'an and Sunnah. In Aya No.20 of Sura A1‑Nisa of the Holy Qur'an, it has been ordained that in case a husband marries another woman he should not take back any of the Property given to her. In Aya No.21 thereof it has been further ordained that a husband cannot take back the same after the marriage has been consummated. The said Ayas have been interpreted by all the translators and Mufassareen to mean and include the property of any value, however, great it may be. Some of them have given it the meaning of a treasure. This means that there is no limit on the value of bridal gifts which may be given to her by her parents or by the husband or his parents.

6. This conclusion is also supported by the case of Jamila and Sabit‑Ibn‑i‑Qais referred to in Mst. Balqis Fatima v. Najam‑i‑ Qureshi, P L D 1959 )(W.P) Lah.

566. I am not referring to this case oil any question of law. I am referring to the same to show that the value of such gifts even in the times of the Holy Prophet Muhammad (Sailalla_ho‑alaihe Wasallam) could be of any value. In that case Sabit had given a garden to his wife Jamila (which was ordered to be return when divorce by Khula' took place), which means that a bridal gift could be of any value. This would show that the restrictive provision of law contained in Act XLIII of 1976 are un‑Islamic. It is keep an view these Islamic provisions that the framer of the law and the legislature hesitated from making it absolutely prohibitive

7. While interpreting the provisions of law contained in the said Act we have to keep in view the interpretation which is in accordance with the Injunctions of Islam. According to the said interpretation it is crystal clear that Act XLIII of 1976 is not of prohibitory nature and, therefore, the dowry or the Wari articles even in excess of Rs.5,000 are rightful gifts conferred on her by her parents or by her husband (or his parents) respectively. This also means that a wife can recover her dowry or Wari articles or the value thereof even in excess of Rs.5,000 each.

8. It may be mentioned that one of the reasons (and not the sol reason) for giving a right of inheritance to a daughter to the extent of I of the son is that she usually gets enough as dowry at the time of her marriage. If her right to get the dowry is restricted this purpose of Islamic Law of Inheritance will be defeated and there is no doubt that we cannot do so in defiance or non‑compliance of the Qur'anic Injunctions. For this reason also the law laid down in Act XLIII of 1976 is wholly un‑Islamic and is wholly detrimental to the interests of the women as a whole and the wives in particular. We have to look into and enforce the provisions thereof keeping in view all these aspects. Therefore, even the restrictive provisions contained therein cannot be implemented either in letter or spirit.

9. This question was also examined by my learned brother Amjad Khan, J. in Mussarat Zaman Begum v. Ali Hassan 1986 C L C 2265. 1 fully concur with his findings on the question of law on the point. However, I have discussed the point a bit in detail in view of the arguments advanced by the learned counsel for the appellant and in view of his able assistance in the matter.

10. As a result, the appeal is dismissed in limine. M.B.A./M‑764/L Appeal dismissed.