P L D 1998 Lahore 52 (PLP)

(The petitioner and respondent No.3, Mst. Uzma Anees were married in Rawalpindi on 27-9-1989 according to Muslim rites. An amount of Rs.50.000 was fixed as deferred dower/Mater. Differences arose between the spouses. and Mst. Uzma allegedly left the house of 4r husband, alongwith minor daughter- Madeeha and went td her parents' house. Later, Mst. Uzma filed, on 28-4-1991 a civil suit for recovery of dower amount of Rs.50,000 against the petitioner. The petitioner instituted a civil suit for restitution of conjugal rights on 2-5-1991. Mst. Uzma instituted a suit for recovery of maintenance allowance for herself and for the minor daughter--Madeeha. The petitioner applied to the Guardian Judge for grant of custody of his minor daughter to hitfi. Mst.Uzma Anees, then instituted a suit on 2-11-1991 for dissolution of marriage on the basis of Khula'.

2. The suit filed by Mst. Uzma Anees was decreed by the learned Judge, Family Court, Rawalpindi, on 30-7-1992. The judgment/decree dated 30-7-1992 whereby the suit filed by Mst. Uzma Anees for recovery of dower amounting to Rs.50,000 was decreed was appealed against by the petitioner. The appeal was dismissed by judgment/decree dated 17-5-1993 passed by the learned District Judge, Rawalpindi.

3. The present petition was, therefore, fled to assail the legality and propriety of appellate judgment/decree dated 17-5-1993 as well as orders/judgments passed by the Family Court on 30-7-1992. Judgment/decree dated 30-7-1992 passed in civil suit for recovery of dower; judgment and decree dated 30-7-1992 whereby the 'suit filed by Mst. Uzma Anees for dissolution of marriage was decreed whild petitioner's suit for restitution of conjugal rights was dismissed; and order dated 30-7-1992 dismissing petitioner's application under section 25 of the Guardians and Wards Act, 1890, have been clubbed together and assailed through this petition.

4. The learned Family Court had dissolved the marriage on the principle of 'Khula" and had decreed that the wife shall not be entitled to the maintenance allowance which was allowed to her in the other suit instituted by the wife for recovery of maintenance allowance. The petition was admitted to regular hearing on 11-10-1993 with the following words:- "Learned counsel for the petitioner contends that respondent No.1 having claimed decree for dissolution of marriage on the ground of Khula' was not entitled to the grant of decree for payment of dower. Reliance is placed on case of Mst. Bilqees Fatima. v. Najmul Ikram Qureshi (PLD 1959 Lahore 566). Contention raised by the learned counsel requires further consideration.? - 2 Admit. Notice. " Learned counsel for the parties have been heard the matter today

5. Learned counsel for the petitioner submitted that the husband and wife had instituted a number of civil suits against each other and out of these "suit for recovery of dower" and "suit for dissolution of marriage" ought to have been consolidated by the Judge, Family Court as the question, whether the wife was entitled to dower/Mehr? had an important bearing on the other suit as well and that due to non-consolidation of suits, case of the petitioner was seriously prejudiced before the lower Forums. It was next argued that Mehr/dower was a benefit which a husband confers on the wife at the time of marriage and Mehr was not a consideration of marriage and a wife seeking Khula' was required to return the dower received or to forego her claim to the dower and unless the wife complies with these requirements, her marriage cannot be dissolved. Reliance was placed on Verse 229 of Sura Al-Baqra of Holy Qur'an as well as Bilqees Fatima's case (PLD 1959 (W.P.). Lahore 566) to contend that the wife was entitled to dissolution of marriage, on restoration of what she received in consideration of marriage if the Judge apprehended that the parties would not observe the limits of God. It was argued that order of lower Court whereby the petitioner was directed to pay dower to respondent was against the Injunctions of Islam and was unlawful as well being contrary to law declared by the Courts. Learned counsel also referred Mst. Khurshid Bibi. v. Babu Muhammad Amin (PLD 1967 SC 47) to canvass his point of ~ view. Learned counsel further, submitted that the respondent/wife had left the house of her husband and was not entitled to any maintenance allowance and as such marriage could not have been dissolved on the consideration of foregoing the maintenance allowance. It was contended that all the orders/judgments passed by the learned lower Courts were illegal and unsustainable. Learned counsel for the respondent/wife submitted that the present petition was not maintainable as the petitioner had assailed a number of decisions through one petition which was not permissible. It was argued that though decree granted for dissolution of marriage vas not appealable yet the same could have been impugned in appeal to the extent of question of consideration allowed by the Family Court for grant of Khula' but the petitioner did not file any appeal and without having exhausted remedy of appeal, the petitioner could not have come in the Constitutional jurisdiction of this Court. It was submitted that Mehr or dower fixed at the time of marriage was not a benefit but was a consideration and further that without consent of wife, the Mehr could not be forgiven or returned. It was contended that only benefits received by a wife were returnable at the time of Khula' as held in Abdul Majid. v. Razia Bibi etc. (PLD 1975 Lahore 766). It was also argued that it was incumbent upon the husband to have demanded consideration which he never did and as such was not entitled to any consideration. Reliance was placed on PLD 1987 Lahore

673. It was contended that the decree of Khula' was granted on the basis of cruelty and this finding of fact was recorded by a Court of competent jurisdiction and could not be disturbed in writ jurisdiction. Learned counsel also submitted that the petitioner had raised the plea before the lower Forums that he had paid dower amount in the form of cash and ornaments but he miserably failed to prove the same and both the learned lower Courts concurrently found the issue against the petitioner and the pleas being raised now were inconsistent with the case set up by the petitioner in the lower Courts. It was contended that the petition was misconceived, incompetent and not maintainable on facts or the law and deserved dismissal with costs.

6. Mahr, Mehr or dower is denomination of the property, consideration or 'Maul' which is paid, fixed or prescribed or undertaken to be paid to wife by the husband at the time of marriage. Verse 4 of Sura Al-Nisa of Holy Qur'an says:- "Q. 4:4.--And give unto woman their marriage portions in the spirit of a gift; but if they, of their own accord, give up unto you aught thereof, then enjoy it with pleasure and good cheer." Nihlah ( ..~.s) has been used in the holy verse to denote Mehr. Muhammad Asad in the Message of the Qur'an "explains the expression 'Nihlah' used in the holy verse as:- "The expression 'Nihlah' signifies the giving of something willingly, of one's own accord, without expecting a return of it (Zamakhshari). It is to be noted that the amount of the marriage-portion or dower which the bridegroom has to give to the bride has not been circumscribed by the law, it depends entirely on the agreement of the two parties, and may consist of anything, even a mere token. According to several authentic traditions recorded in most of the complications, the Prophet made it clear that 'even an iron ring' may be enough if the bride is willing to accept it, or, short of that, even 'the imparting to the bride of a verse of the Qur' an' . " Verse 24 of Sura Al-Nisa says:- "Q. 4:24.--And those of whom ye seek content (by marrying them) give unto them their portions as a duty." In Verse 4, words ' Sadaqah' and Nihlah' have been used for Mahr and in Verse 24, word Ujur? ) plural of ajar ( ) is used for the purpose. Other terms used to denote 'Mater' are 'atiyah'?? meaning gift and 'faridha' (? )something obligatory or appointed portion., Syed Ameer Ali in Mahammedan Law, Chapter XII discusses the subject as under:- "In order to constitute a valid marriage, the Mahommedan Law requires that there should always be a consideration moving from the husband in favour of the wife for her sole and exclusive use and benefit. This consideration is called Mahr or Sadak in legal treatises, and. in common? parlance Dain-mater; dower-debt? The Mahr of the Islamic system is similar in all its legal incidents to the donatio propter nuptias of the Romans. It is a settlement in favour of the wife made prior to the completion of the marriage-contract in consideration of marriage. There is, however, this' essential difference between the Roman donatio propter nuptias and the Mahr of Musalmans that whereas the former is purely voluntary on the part of the husband, the latter is absolutely obligatory. 'Mater or dower is so necessary' says the Fatawa Kazi Khan to the marriage, that if it were not mentioned at the time of the marriage, or in the contract, the law will presume it by virtue of the contract itself." Dower (Mater) has been defined in A Code of Muslim Personal Law by Dr. Tanzil-ur-Rehman as:- "Dower is that financial gain which wife is entitled to receive from her husband by virtue of the marriage contract itself whether named or not in the contract of marriage." According to Abdul Rahman Al-Jaziri, 'Sadaq' (Mater) is the name of the 'Maul' (property or consideration) to which a woman becomes entitled on marriage against the pleasure to be enjoyed of her, whether the marriage be valid or irregular or cohabitation (between man and wife) be doubtful (Kitab-al-Fiqha Alai Madhab AI-Arba'a, Volume IV). Hanafi Jurists lay dower a minimum equivalent to ten dirhams as the lowest amount of dower and no limit is prescribed on the higher side., If the dower is not mentioned in the contract of marriage customary amount of Mahr is to be payable by the husband. Dower debt takes precedence over all rights acquired under a Will or by inheritance.

7. According to the Dictionary of Islam by Hughes, "Dower is considered by some lawyers to be an effect of the marriage contract, imposed on the husband by the law as a mark of respect for the subject of the contract the wife; whilst others consider that it is in exchange for the usufruct of the wife, and its payment is necessary, as upon a provision of support to the wife depends the permanency of the matrimonial contract. Thus, it is indispensable, a fortiori, so much so, that if it were not mentioned in the marriage contract, it would still be incumbent on the husband, as the law will presume it by virtue of the contract itself, and award it upon demand being made by the wife. In such case, the amount of dower will be to the extent of the dowers of the women of the rank and of the ladies of her father's family. "(P.91).- 8. "Benefit". according to Collins Thesaurus is:- 'advantage, aid, asset, assistance, avail betterment, blessing, boon, favour, gain, good, help, interest, profit'. Gift is :- 'benefaction, bequest, bonus, boon, bounty. contribution, donation, grant, gratuity, largess, legacy, offering, present.,, A gift or benefit is, in essence, a bounty from one person to another person. No one is under any obligation to make a present to anybody else. A husband may give various material benefits to the wife. This may be due to love or respect for the other side. It may be done due to a sense of companionship or could arise out of the need to satisfy certain social norms or etiquette, but the husband is under no obligation in law to confer any benefit on the wife or pass on any gifts to her. But payment of dower is obligatory on the husband and dower, thus, under: no circumstances, can be said to be a benefit which a husband bestows on the bride as a consequence of the marriage; it is wife's entitlement and right as a consideration of marriage. Therefore, the contention of the petitioner that Mahr, Mehr or Dower is not a consideration for the marriage but is a benefit given by the husband to the bride/wife is considered to be bereft of any merit.

9. The case of the petitioner as pleaded here was that dower was a benefit from husband to the wife and hence the respondent-wife was bound to forego her claim to the dower and that the Family Court should not have decreed the suit for recovery of dower filed by the respondent/wife. The argument advanced on behalf of the petitioner essentially was that the claim of dower of wife should have been satisfied by grai-iting the decree of Khula' and the husband should have been burdened no further. Khula' denotes the release secured by the wife from the husband from the marriage-tie, at her instance, on paying or consenting to pay compensation to him. Imam Ibn Humaam in "Fateh Al-Qadeer defined Khula' as "husband's relinquishment, with the word Khula' of his title and rights under the marriage contract in lieu of a consideration". The consideration is an important ingredient of Khula' and anything which can constitute Mahr, can also be offered as consideration while seeking Khula'. The quantum of consideration for Khula' can be equal to or less than the dower. A husband can, in principle, demand a consideration higher than dower amount but this is generally disapproved. The position is summed up in Al-Hidaya as:--"If the cruelty is from the side of the husband his realising a compensation from the wife for her relinquishment (Khula') is disapproved. If insubordination is from the wife, in that case, the husband may take back only what property which he had given to her; his taking back more than that is equally disapproved" While seeking Khula' a wife is required to make an offer regarding compensation. The husband may accept that or may make his demand regarding the amount acceptable to him. In case of disagreement the Court can, keeping in view the facts and circumstances of the case, fix the amount of consideration on the basis of principle contained in "Al-Hedaya" as stated above. The Court can, and ordinarily it should, fix the consideration. for Khula' a al to the amount of dower, paid or unpaid. In case where Khula.' is decreed on the basis of cruelty, the Court may not give any compensation to the husband. But if husband agrees to Khula' due to- insubordination or? transigence of the wife he would be entitled to return of all the property including Mahr given to wife.

10. In the present case, the marriage between the parties was dissolved due to cruelty of the husband. This finding of the learned Judge, Family Court, has not been assailed before this Court. In these circumstances, the Court could have refused to grant any compensation whatsoever. However, the Family Court had E decreed the suit subject to foregoing the right of maintenance allowance which was granted separately to the wife. The husband was, thus, given consideration for Khula' in tangible terms. He could not have been granted higher amount of compensation than he was given. The family Court had observed that the wife could not be forced further to forego her dower money--Rs.50,000 and the I articles of dowry lying in her possession. The observation shows that the learned Court was not oblivious of the inter-connection of dower and Khula'. The Court in its wisdom had found that the petitioner was not entitled to the dower in the present case. The orders passed by the learned Courts are perfectly valid orders seen in the light of Shariah and other law on the subject.

11. For the aforesaid reasons, the writ petition is considered to be without any merit and is dismissed without any order as to costs. A.A./A-179/I Petition dismissed