P L D 2006 Peshawar 189 (PLP)

DOST MUHAMMAD KHAN, J.

This single judgment shall also decide W.P. No.422 of 2005 because question of law in both are identical.

2. Suit for recovery of dower, dowry, maintenance allowance till expiry of "Iddat" period and for dissolution of marriage filed by the respondent/plaintiff was decreed by Family Court, Mardan vide judgment dated 11-3-2004.

3. The petitioner questioned the said judgment and decree in appeal before the learned Additional District Judge I, Mardan on 19-4-2004 which was heard and decided on 8-1-2005.

4. The learned Court of appeal confirmed the judgment and decree of the Family Court vide impugned judgment dated 8-1-2005 with regard to the maintenance allowance and dowry articles but on account of the admission of the plaintiff that although the dower was paid to her but was snatched/taken back by the petitioner, it was held that the liability to pay the dower was discharged and now dower snatched is civil liability of the petitioner, the respondent-plaintiff has to file a civil suit and that Family Court has no jurisdiction in this regard. Such conclusion was drawn on the view taken by the learned High Court, Lahore in Allauddin Arshad's case 1984 CLC 3369 as was stated at the bar. Learned counsel for the petitioner relied on the said view once again to defend the impugned judgment.

5. In the case of Allaudin Arshad (supra), his lordship Mr. Justice Gul Zarin Kiyani, J. who then was, held that once a dower is paid to the wife, the liability of the husband is discharged and its subsequent snatching by the husband did not fall within the jurisdiction of the Family Court under section 5 read with the schedule of the Family Court Act, 1964 and that being a civil liability, the wife has to file a regular suit for, recovery of the same before the Civil Court.

6. The Hon'ble Judge while holding so has not given solid reasons supported either by the principles of Muslim Law or the provisions of the Family Court Act and Rules. With profound respect we differ with the view because it does not advance the cause of justice being based on technicality of unessential nature.

7. The preamble to the Family Court Act (Act No.XXXV of 1964) is to the following effect:-- "Preamble.

Whereas it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters concerned therewith; It is hereby enacted as follows:"

8. The applicability of the Act has been excluded only with respect to pending petitions under the Guardian and Wards Act by the provisions of subsections (4) and (5) of section 1 thereof. However, subsection (5) further provides that on the coming into force of the Act, suits pending for trial or hearing in any Court shall be tried on a petition to be made to the Family Court.

9. The provisions of section 5 of the Act has conferred upon the Family Courts excusive jurisdiction in all matters arising out of matrimonial disputes subject to the provisions of the Muslim Family Law Ordinance, 1961 and the Conciliation Court Ordinance, 1961. The cases/disputes exclusively triable by Family Courts are shown in the schedule appended thereto which are as under:-- (1) Dissolution of Marriage. (2) Dower. (3) Maintenance. (4) Restitution of conjugal rights. (5) Custody of children. (6) Guardianship. (7) Jactitation of marriage. Through Amendment Ordinance (LV of 2002) dated 1-10-2002, cases of dowry, personal property and belongings of a wife and offences under sections 337(A),(F), 341 to 346, 352 and 509 of the P.P.C. and its abetment have also been included in the schedule besides the regulating of custody of children including the visitation rights of parents to meet them. Further through Family. Court Amendment Act (VII of 1997) suit for recovery of dowry has been made exclusively triable by the Family Court. These amendments made in the Act are a clear manifestation of the intention of the legislature to bring all matrimonial disputes within the jurisdiction of one and the same forum (Family Court).

10. In view of the growing tendency of gender prejudice in the society, the dominant role the husband enjoys and play without pause and check in his domestic affairs like a free loader and because of the phenomena of quick rise in the incidents of committing violence on house-wives by their husbands behind the closed doors rarely exposed to public eyes, the legislature has deemed it expedient to step in and suppress this grave mischief, the offences and its abetment 'etc. punishable under sections 337-A(i), 337-F(i), 341 to 346, 352 and 509 of the Pakistan Penal Code have, therefore, been made triable by Family Court in its summary jurisdiction with the view to provide quick relief to the victim.

11. Several other amendments have been introduced in section 10 by adding a proviso which allows the dissolution of marriage, on the basis of "Khula" at pre trial stage when reconciliation fails and has also fixed the outer limit of time for Family Court to decide family cases including suits for dissolution of marriage within a period of six months and to report to the High Court in case of delay. By inserting clauses (b) and (c) to section 14 of the Act through the Ordinance ibid the right of appeal has been taken away in cases where decree for dower or dowry not exceeding Rs.30,000 and in case the maintenance allowance of Rs.1,000 or less is granted.

12. These glaring amendments made in the Act in quick succession were with the object to prevent/avoid cruelty to wives which has become a routine phenomena and because in the past, final decision in cases of family disputes were to take years like regular civil suits. This mischief has thus, been considerably suppressed.

13. The combined study of the preamble, that of section 1 and section 5 of the Act including the above amendments, would show the legislature clear intent that matrimonial disputes of all kinds specified/listed in the schedule by now are to be exclusively dealt with and tried by the Tribunal (Family Court) established and constituted under section 3 of the Act while jurisdiction of all other Courts, Tribunals including Civil Courts has been expressly ousted.

14. What is dower has not been appropriately defined by the provision of section 10 of the Muslim Family Laws Ordinance, 1961. It speaks only about the kinds of dower i.e. prompt and deferred, however, the same has been interpreted by the Jurists and Courts as a consideration for marriage. The origin of dower dates back to the pre-Islamic era. Much before the pre-Islamic days, the husbands used to despoil/deflower their wives and then to turn them out a drift, absolutely helpless and without any means to survive honourably. With the evaluation of tribal system and when a little wisdom prevailed then it became customary condition to fix some dower for the validity of a marriage but for the enforcement of such right, the wife was having no efficacious remedy as there was no binding custom/sanction of any rule behind it thus, this customary obligation was oftenly disregarded without check as the tribal system by then was unorganized being bereft of codified rules. On the advent and promulgation of Islam, this detestable practice was forbidden and was declared unjust towards the fair sex as is evident from the different Verses of the Holy Qur'an. In "Sura Nisa" it has been ordained that:--

15. The right of the wife- to recover her dower in ordinary circumstances is indefeasible one. She has a right to recover the same from the property of her deceased husband under the Islamic Law which has been adapted by the existing Statutory Law. This right is extinguished only in cases where the wife convert herself to another religion or when the marriage was solemnized between two non-muslims and after the marriage the husband convert to Islam while the wife remains non-muslim or when a wife exercises the right of option of puberty for dissolution of marriage. Similarly, half of dower would be payable if marriage is dissolved before consummation or if the wife seeks dissolution of marriage on the basis of "Khula" then her right of dower is extinguished. Except the instances mentioned above right of wife to recover dower cannot be taken away or defeated through other means.

16. In a State every family constitute a primary unit and combination of such units constitutes the State. The Muslim Law has given considerable importance to it and has provided many safeguards so that the spouses may live in happy union and their relationship remains stable till death. Reference in this regard may be made to the verse of "Sura Rome" which is as under:--

17. The creation of welfare State is the basic and fundamental principle of the religion of Islam and this object can be achieved if spouses live a happy life in harmony and reasonable restraints as provided by the Islamic Law are imposed on them not allowing them to transgress the limits ordained by Allah, The Almighty. The fixation of dower and its payment to the wife by the husband is one of the limitation/consideration laid down so that the husband has no free hand or super-imposing status over the wife in matrimonial life. The Qur'anic verses and the Sayings of the Holy Prophet (p.b.u.h.) would show that the religion of Islam has placed the marriage on a very high and sacred pedestal and not as a mere social union for the sake of pleasure alone.

18. Now adverting to the point under discussion, in our humble view, dower remains as dower, neither it undergoes any change nor it is transformed to a civil liability in case it is snatched or taken back forcibly from wife by the husband. Neither Muslim Family Laws Ordinance, 1961 nor the provisions of the Family Court Act, 1964 has provided either impliedly or expressly that when the dower paid is snatched by the husband then for its retrieval, the wife shall have to make recourse to the civil Court. The view held in the cited case amounts to taking away the absolute and exclusive jurisdiction of the Family Court which has never been the intention of the Law Makers, otherwise it would have provided for such course either expressly or by necessary implication.

19. The fundamental principle for construing a statute is that Court shall strive in search of that construction which would advance the cause of justice by providing relief to a party entitled to it and to suppress the mischief of denying such right on the ground of unessential technicality. Once a Tribunal of exclusive jurisdiction is established/constituted for the trial of particular cases/disputes then in the absence of express provision, its jurisdiction cannot be taken away on the ground that the matter triable by it has undergone a trivial change due to the act or omission of the party at fault. Looked at from this angle too, dower paid to the wife and snatched by the husband would automatically restore his liability to repay the same and it shall remain as a dower due to the wife, triable by the Family Court alone.

20. Due to the amendment introduced in the schedule to the Act, 1964 by now the disposal or in other words misappropriation of the wife property has been made triable by the Family Court. Judged from this aspect, once dower is paid then it becomes the property of the wife as her complete domain is established over it, therefore, the act of its snatching would amount to the disposal of her property and the Family Court alone would have jurisdiction to take cognizance for the recovery of the same.

21. Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 in a strict commanding language has prohibited the depriving of a person of his property except in accordance with law, therefore, in our view the snatching of paid dower by a husband from his wife would constitute and amounts to a felonious act punishable under the relevant provisions of the Pakistan Penal Code. Such detestable act committed by the husband shall not receive premium whatsoever from the Courts because that would encourage unscrupulous and greedy husband to indulge in this practice and to push the wife to un-ended litigation in the civil Court for the recovery of her dower as the cases in civil Court ordinarily consume years to conclude, therefore, it would be unfair to the wife to place her underfoot by compelling to go for legal battle of unending nature.

22. Under the provisions of section 9 of the C.P.C. civil Courts have jurisdiction to decide all matters of civil nature unless its jurisdiction is either impliedly or expressly excluded. The provision of section 5 of the Family Court Act has conferred exclusive jurisdiction upon the Family Court in the matter of recovery of dower whether unpaid or paid but snatched/taken back by the husband. When Statutory Law itself has not drawn any distinction in this regard then Court is not supposed to introduce any change of drastic nature by taking away the jurisdiction of the Family Court vested in it which in no manner is dependent on happening of such event, therefore, in our humble opinion the view taken in Allauddin Arshad's case (supra) is not based on correct construction of the Statutory Law on the subject as the same may create inexplicable complication in the trial of matrimonial matters due to unforeseen eventualities and may result into multiplicity of litigation before two different forums. For instance if the paid dower is snatched by the husband, the wife in that case would be entitled not to perform her conjugal obligations and may opt for separate living. In that case she would be entitled to maintenance allowance and if she bring a suit in the Family Court for its recovery the husband may competently raise a dispute/issue regarding the jurisdiction because granting of maintenance would be subject to the decision of the civil Court on the issue of snatched dower. The law does not provide protection or premium to the usurper or pirate but always favour the victim/the aggrieved party thus, the husband at fault cannot be treated with favour either on point of law in such case.

23. Learned counsel for the petitioner after extensive deliberation on the law point ultimately conceded in a fair and frank manner that the District Appeal Court has committed legal error by refusing to exercise jurisdiction vested in it with regard to the dower and for this reason the impugned judgment is not sustainable being based on incorrect view of law.

24. In the case of Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382 the Hon'ble Supreme Court has laid down a golden principle which is fully attracted to the instant case. The operative part laying down the principle is as under: "The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy

Any system which by giving effect to the form and not the substance defeats substantive rights (and) is defective to that extent. ". For what has been discussed above, it is held that the learned District Appeal Court has failed to exercise jurisdiction vested in it, therefore, the impugned judgment and decree reversing the judgment and decree of the Family Court with regard to the recovery of dower and directing the plaintiff to have recourse to the civil Court for its recovery is held as without lawful authority. This petition is accordingly allowed, the impugned judgment and decree of the District Appeal Court are, therefore, set aside and it is directed to decide the entire case/appeal on merits. Being an old case on the original side, the appeal shall be decided positively within two months Petition allowed with no orders as to costs. H.B.T./144/P Petition allowe