P L D 2014 Supreme Court 693 (PLP)

ANWAR ZAHEER JAMALI, J.--These two civil appeals arise out of the common judgment dated 26-11-2013, passed by learned Single Judge in Chambers of the Lahore High Court, Multan Bench, Multan, in Civil Revision No.686-D of 2011 and Writ Petition No.12396 of 2011. In these cases, leave was granted by the Court, vide its order dated 9-1-2014, which reads as under:-- "Learned Advocate Supreme Court for the petitioner, inter-alia, contends that while passing the impugned judgment the learned Single Judge in the High Court failed to take notice of the fact that even if the claim of the respondent as regards her dower was deemed to be correct, still due to non-consummation of marriage as Rukhsati had not taken place, she was not entitled for the full dower. Contention raised, inter alia, needs consideration. Accordingly, leave to appeal is granted in these petitions with direction to the office that the two appeals arising out of these petitions may be fixed for hearing within three months. Till then the operation of impugned judgment shall remain suspended.".

2. At the outset, learned Advocate Supreme Court for the appellant has reiterated that it is an admitted position in the present proceedings that marriage between the appellant and the respondent (Shazia Bibi) had never consummated, therefore, in such circumstances, as per settled principles of Muhammadan Law, she was only entitled for half of the agreed/settled dower, but this important legal aspect of the case escaped the sight of all the three Courts below, while passing their respective judgments against the appellant.

3. When confronted with the above submission made on behalf of the appellant, learned Advocate Supreme Court for respondent (Shazia Bibi) candidly conceded that marriage between the spouses had not consummated. He further did not dispute the legal position that in case Rukhsati had not taken place and marriage has not been consummated, as per primary source of Muhammadan law (the Quran), wife was only entitled to half of the fixed dower.

4. The perusal of case record reveals that in the present case Nikah between the appellant and respondent Shazia Bibi was solemnized on 13-2-2004. However, Rukhsati never took place. In this background, on 28-1-2006 the appellant filed a suit for declaration that he is owner in possession of the land measuring 99 kanals, bearing Khewat No.168, Mouza Kamalpur Jatial, Tehsil and District, Lodhran, regarding which the respondent (Shazia Bibi) fraudulently got sanctioned mutation No.1987 dated 31-1-2004 in her favour as her dower, which was thus liable to be cancelled.

5. Conversely, the respondents in their written statement submitted that the said transfer of suit land in favour of respondent (Shazia Bibi) was made by the appellant in lieu of her dower and, thus, it was not open to challenge in the civil proceedings. The suit of the appellant was initially decreed by the Court of Civil Judge, Lodhran, vide judgment and decree dated 30-7-2010. However, in appeal, preferred by the respondent Shazia Bibi, learned Additional District Judge, Lodhran, vide his judgment and decree dated 30-5-2011, reversed such findings and dismissed the suit of the appellant.

6. On the other hand, on 29-10-2009, respondent Shazia Bibi also instituted a suit for recovery of her dower before the Court of Senior Civil Judge/Judge Family Court, Lodhran, on the basis of mutation No.1987 dated 31-1-2004, which, after due contest between the parties, was decreed by the Family Court, vide its judgment dated 20-7-2010. Against this judgment passed by the Family Court, Family Appeal No.10/13 of 2011 was preferred by the appellant before the Court of Additional District Judge, Lodhran, which was dismissed, vide judgment dated 30-5-2011. As a result of these two judgments passed by the Court of Additional District Judge, Lodhran on the same date, eventually respondent Shazia Bibi was found entitled for the suit land conveyed in her favour in lieu of her dower, vide mutation No.1987 dated 31-1-2004.

7. These two judgments of the appellate Court were thereafter challenged by the appellant before the Lahore High Court, Multan Bench, Multan through Civil Revision No.686-D of 2011 along with Writ Petition No.12396 of 2011, which were decided through the common impugned judgment dated 26-11-2013, whereby both these cases were dismissed.

8. As noted above, the short legal controversy involved before us is only to the extent of quantum of payable dower in case of non-consummation of marriage between the spouses, which is an admitted position in the present case.

9. In this regard we are guided by Verse No.237 of Sura Al-Baqra from the Holy Quran which, for ease of reference, is reproduced as under:-- 'And if you divorce them before you have touched them, and you have already settled a dowry on them, then (pay them) one-half of what you have settled, unless they (women) remit it, or he remits it in whose hand is the marriage tie; and that you (yourselves voluntarily) remit (the whole) is nearer to piety. And, do not forget generosity among yourselves. Surely Allah sees what you do." Somewhat similar controversy as regards quantum of payable dower in case where the marriage between spouses was not consummated was examined in the case of Ali Ahmad v. Mst. Gulshan and another (1998 SCMR 2347) and leave was refused with the observation that where the marriage has not been consummated the wife will be entitled to half of the land given to her by her husband in lieu of her dower. Thus, according to Islamic law it is well settled principle that where the marriage has not been consummated, the wife is entitled to only half of the fixed dower and, the remaining half is to be returned/restored to the husband, unless such right is waived by him voluntarily.

10. The learned Advocate Supreme Court for respondents has already conceded to this legal position, which even otherwise, on the basis of admitted facts of the present case needs no further deliberation. This being the position, the appeal arising out of the proceedings in the declaratory suit instituted by the appellant Muhammad Akbar is dismissed while the other appeal arising out of the proceedings in the family Suit filed by respondent Shazia Bibi is partly allowed to the extent that dower of respondent Shazia Bibi, is reduced to half of what was agreed/settled between the spouses at the time of solemnization of marriage. Thus, respondent Shazia Bibi will be entitled to retain 49 kanals and 10 marlas of land from the total land admeasuring 99 kanals given to her by the appellant in lieu of her dower, vide Mutation No. 1987 dated 31-1-2004. In case parties face any difficulty in the division of this land in two equal pieces in an equitable manner, they may approach the Executing Court to resolve this issue. MWA/M-20/S Order accordingly.