P L D 1984 Karachi 625 (PLP)

The petitioner and respondent No.l were married on 23‑3‑1986. It is alleged by the petitioner that on false pretext made by the respondent No.l, the marriage did not consummate and she went to her parents' house on 28‑3‑1986 with all the jewellery. On the next day when he went to bring the respondent back she demanded dower amount of Rs.25,000 and stated that she had not allowed him to consummate the marriage as dower had not been paid. The respondent No.l filed suit for recovery of dower of Rs.25,

000. The learned Family Court decreed the suit which has been upheld in appeal also. The petitioner has filed a copy of the letter of the respondent No.l dated 12‑4‑1986 addressed to the Councillor Halqa No.98, Landhi No.l, Karachi, to prove that on her own admission the marriage had not consummated. In the counter‑affidavit the respondent No.l has stated that the marriage was consummated and both the parties were in complete retirement for several days. Pre‑admission notice was issued and I have heard the learned counsel for the petitioner and the respondent No.l. The admitted position is that the respondent .No.l and the petitioner were married on 23‑3‑1986 with a prompt dower of Rs.25,000 and the respondent No.l remained with the petitioner upto 28‑3‑1986 when she went away to her parents. The learned counsel for the petitioner has contended that as the marriage was not consummated, according to Muslim Law only half of the dower amount should have been awarded to the respondent No.l. On the other hand the learned counsel for the respondent No.l has contended that as the marriage had consummated and as there was complete retirement between the parties the A respondent No.l is entitled to full dower. In any event as the dower claimed is prompt, the petitioner is bound to pay the entire amount even before consummation of marriage. Under Muslim Law at the time of marriage dower is fixed which is either prompt or deferred. Prompt dower is payable immediately on demand. It is not necessary that the marriage may have consummated before demand is made. In the case of prompt dower after Nikah the wife becomes entitled to recover the entire amount of prompt dower and she is entitled to refuse consummation of marriage without payment of prompt dower. This being the clear legal position in law the question of consummation of marriage for the purpose of demanding j or recovering the entire prompt dower does not arise. However, if the husband divorces the wife before consummation of marriage then he will be liable to pay only half of the dower amount. The question of consummation is not a relevant factor for demanding the amount of dower payable by a husband where the claim is made in respect of prompt dower during the subsistence of marriage. Mr. Syed Humayun referred to "Kitab‑ul‑Fiqah" Vol. IV (Personal Law) by Abdul Rahman Al‑Jazrairi, translated by Manzoor Ahsan Abbasi, published by Auqaf Department, Punjab (1977) in which at pages 289, 292, and 293 it has been observed that where the dower, in part or whole has been fixed as prompt dower, the wife will be entitled to refuse consummation of marriage in case prompt dower has not been paid., According to Raddul :Auhtar, Vo1.2, pages 358. '365, 379 as referred in Article 81 of the Institutes of Musalman Law by Nawab A . F.M. Abdul Rehman where marriage has been consummated or there has been a valid retirement consequent upon a valid marriage, the husband becomes liable to pay the full amount of dower. The question arises: What is a valid retirement and what is its effect. When a husband and wife are alone together in a place where they are secluded and nobody can enter or overlook without their knowledge and the husband is free to have connection with his wife without any let, hindrance or obstruction it will mean complete retirement. According to Abdul Rahman: "The valid retirement which constitutes a legal presumption of the consummation of marriage, and perfects the wife's right over the whole dower, is that in which the husband and wife are alone together in a secluded place, in which nobody can overlook them without their knowledge, and where the husband is free to have connection with his wife without let or hindrance." In Kitab Fiqah complete retirement means the union or assembly! of husband and wife at one place where no stranger can enter and F there is no mental physical or Sharai disability keeping, them away from consummation. Where such retirement is proved, it constitutes legal presumption of consummation of marriage. Abdul Rehman relying. on Raddul Muhtar, Vol.2, pages 69, 70,366, 370 and 371 observed as follows:‑ "Where a marriage is valid, a valid retirement is equivalent to consummation, and produces the same effect, in that it renders payment of the dower in full binding upon the husband even though he is impotent. It is sufficient to establish the legitimacy of the children born to the wife with whom the retirement took place, and it obliges the husband to maintain her, and provide her with the necessary clothing and lodging. It also entails the prohibition to marry her sister or four other women while she is observing Iddat." According to Hanafi Law where there is a complete retirement the husband is liable to pay the full amount of dower. Reference can be made to, Kitab‑ul‑Fiqah. In the present case the admitted position is that the petitioner and respondent No.l were in complete retirement for five days and nights. The petitioner's contention that the respondent avoided consummation of marriage on the pretext that she was having menses has not been accepted by both the Courts below. I have no reason to accept this allegation in these proceedings. In view of the factual and legal aspects as discussed above the petition is dismissed in limine. H.B.T./M‑568/K Petition dismissed