2006 PLP 33 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

Through this petition Muhammad Azam petitioner/defendant has challenged the vires of judgment/order passed by learned Additional District Judge, Bahawalpur whereby the learned A.D.J. while allowing the appeal of respondent No.3 set aside the judgment of learned Judge Family Court whereby suit filed by respondent No.3 for the recovery of her dower was dismissed. The learned Judge Family Court had dismissed the said suit on the ground that as the downer in question was mentioned as deferred in the Nikah Nama Exh.P.1 and as marriage between the parties still subsists therefore, the respondent No.3 was not entitled to claim the same until the marriage is dissolved by divorce or her death. The learned Additional District Judge however disagreed with the said view taken by the trial Court, by holding that as the petitioner/husband/defendant contracted second marriage in contravention with provision of section 6 of Muslim Family Law Ordinance, 1961 hence the respondent No.3 became entitled to recover even the deferred dower. It was further held that in view of the law laid down in (2000 CLC 1384) it was mandatory for the husband/ defendant to pay the entire amount of dower whether prompt or deferred in case of contracting second marriage in presence of her first wife, without her permission.

2. Learned counsel for the petitioner has argued that findings of the learned Additional District Judge were contrary to the provisions of Muslim Law as contained in para.290 of Mohemdan Law by Mulla. His argument is that since the disputed payment of dower was admittedly deferred, hence in terms of above mentioned para. the same was only payable either of dissolution of marriage or death or divorce, since neither of the three eventualities happened, hence the respondent No.3 was not entitled to claim the disputed dower.

3. On the other hand learned counsel for the respondent No.3 has supported the findings of learned Appellate Court and by placing reliance on para.336(2) of Mohemdan Law by Mulla argued that since the marriage between the parties stood consummated hence the respondent No.3 was in her right to claim payment of whole of the unpaid dower both prompt or deferred, therefore, the learned Additional District Judge rightly reversed the findings of the learned trial Court on Issue No.2 and passed decree in her favour.

4. I have considered the arguments of learned counsel for the parties and gone through the record.

5. There is no force in the contention of learned counsel for the petitioner that deferred dower cannot be claimed unless the marriage is dissolved by death of either party or till dissolution. It is now established principle of law that dower whether prompt or deferred is inalienable right of the wife and after consummation the same becomes vested right for a wife to claim at any time. Reliance is placed on "Dr. Anees Ahmad v. Mst. Uzma" (PLD 1998 Lahore 52). Hence, the learned Additional District Judge while reversing the findings of the learned Judge Family Court on Issue No.2 neither committed any illegality or irregularity nor the same suffer from any jurisdictional defect, hence the same are maintained. This writ petition being without substance is hereby dismissed. H.B.T./M-1225/L??????????????????????????????????????????????????????????????????????????????? Petition dismissed.