P L D 1997 Lahore 417 (PLP)

Brief facts of the instant petition are that the petitioner filed a suit for recovery of Rs.20,000 as dower money including gold ornaments weighing 3 tolas and 1 masha valuing Rs.10,800 payable on demand. The marriage was solemnised through registered Nikahnama on 3-4-1987 and in the column of "dower" Rs.20,000 (~?3~) dower money finds mentioned and gold ornaments weighing three tolas and 1 masha are stated to be paid.

2. The divorce took place between the petitioner and the respondent on 19-3-1990. The petitioner filed a suit on 20-5-1990. The suit was resisted by the respondent. On the pleadings of the parties the learned trial Court framed the following issues:-- (1) Whether the plaintiff has remitted the dower to the defendant? OPD (2) Whether the plaintiff has got no cause of action as well as locus standi to bring this suit? OPD (3) Whether the suit is incompetent to proceed in its present form? OPD (4) Whether the plaintiff is estopped to sue due to her word and conduct? OPD (5) Whether the defendant is entitled for special costs? OPD (6) Relief.

3. Both the parties produced their evidence in respect of their pleadings. The learned Judge, Family Court vide judgment and decree dated 30-1-1993 partly decreed the suit and held the petitioner entitled to the recovery of Rs.20,000 as deferred dower and for the rest of the claim she was directed to file a separate suit. This judgment and decree was assailed in appeal. The appeal was accepted and the judgment and decree of the learned Family Court was reversed vide judgment and decree- dated 15-5-1993 passed by the learned Additional District Judge, Depalpur. Against this judgment the instant writ petition has been filed.

4. Learned counsel for the petitioner submitted that Exh.D/1 which is a document for relinquishment of dower was executed under coercion as prior to the execution of this document father of the petitioner was in police custody on a complaint filed by the adverse party and under this threat and duress document was prepared, therefore, the learned appellate Court has not applied its mind to this fact and. has illegally and unlawfully reversed the judgment and decree passed by the learned trial Court.

5. Learned counsel for the respondent vehemently argued that in fact two deeds were executed, one of them was a divorce deed which was not on the record and the other one was agreement (Exh. D/ 1) which was duly proved by the marginal witnesses and is rightly relied by the appellate Court. From the execution of Exh.D/1 it is proved that the petitioner got divorce and she relinquished her claim of dower under the condition that she has received her gold ornaments weighing 3 tolas and 1 masha and dowry and she also gave custody of her son to the father. 6. 1 have heard learned counsel for the parties and have also perused the record. The suit for recovery of ks.20,000 as dower mony alongwith 3 colas and 1 mash. gold ornaments valuing Rs.10,800 as Haq-ul-Mehr was filed She averred in her plaint that after some time of her marriage it transpired that the defendant was of immoral character and she was subjected to torture and expelled from he, matrimonial home after the respondent took hold dowry and the matter came to litigation but then a compromise took place and she again went to the house of the respondent/defendant and a son was born. Six months prior to the institution of the said suit the respondent/defendant gave an application to the police and got a deed executed from her and took back her son and on 19-3-1990 the respondent divorced her. Written statement was filed by the respondent and in para.6 thereof he contradicted the plaint and averred that vide agreement dated 19-3-1990 the petitioner has relinquished her Haq-ul-Mehr and has received the ornaments and articles of dowry.

7. Petitioner appeared as P. W .1 in support of her contention. She submitted that her father was arrested by the police and under the garb of a compromise her thumb-mark was obtained on the condition that after thumb marking the same her father will be released from the police custody and when his minor son was snatched from her then she came to know about the contents of. Exh.D/1 and the execution of Exh.D/1 was fraudulently got thumb-marked by her. In cross-examination the petitioner also narrated that her signatures were obtained on a plain paper and the gold ornaments are in possession of the respondent/defendant and she contradicted the fact that she came with her father to the stamp vendor and relinquished her dower. She again reiterated that at the time of execution of Exh.D/1 when she thumb-marked the same she was alone and father of Mian Khan defendant and Naseer were also present. P.W.2 (Mumtai Ali) supported the contention of the petitioner. He was also cross-examined. In cross-examination he stated that divorce was given to the petitioner through fraudulent means by telling her that a compromise deed is being executed. - , Nikahnama (Exh.P/1) shows that in column of Haq Mahar Rs.200 as Rs.20,000 ( J.rY ) as dower money and in lieu of Haq Mahar 3 tolas and 1 masha gold ornaments is written as . D.W.1 is Mian Sajjad. He is an advocate of the petitioner's husband. Learned Appellate. Court has relied on his evidence being a marginal witness. This witness has deposed that he is the marginal witness of document Exh.D/1 which was executed between the parties and the petitioner has relinquished her dower. In cross-examination he stated that Exh.D/1 is not written by him. It was written by a stamp vendor and on that day divorce deed was also executed and it is in his knowledge that at the time of execution of the document, petitioner's father was in custody of the police and the other marginal witness signed in his presence. He denied the suggestion that under the garb of divorce deed Exh.D/1 was thumb-marked by the petitioner. D.W.2 is the defendant himself. He has stated that he divorced the petitioner and the petitioner relinquished the dower money. In cross-examination he admitted that at the time of execution of Exh.D/1, P.W.1 and Neseer Ahmad D.W. were present and none else was present. He admitted that it is correct that Exh.D/1 and divorce deed were executed on the same day and two days prior to the execution of Exh.D/1 the father of the petitioner was arrested by the police and was in police custody but at the time of execution of Exh.D/1 the father of the petitioner was got released from the police because the petitioner got abhorted the child and about this abhortion a complaint was lodged at the police station by someone else and he does not know the name of that person. He contradicted the suggestion that under the garb of arrest of the father of the petitioner he got executed Exh.D/1 and thumb-marked by the petitioner. He also reiterated that he does not remember that he got it written on the document that the mother of the petitioner was given Rs.10,000 by him and it was written on that document that she had taken Rs.1,

000. D.W.3 Naseer Ahmad a marginal ,vitirebs of Exh.D/1 disclosed that this document was executed through the free-will of the petitioner and she relinquished her dower- He admitted that father of the defendant is his relative and he is also going to create further relationship with them. He, however, contradicted suggestion that petitioner's father was arrested before tilt execution of EXn.L?/1. He admitted that Exh.D!1 and divorce deed were executed on the same day and lm is the marginal witness of both these documents which were written by the same petition writer. He further submitted that Had-ul-Mehr Rs.20,000 and gold ornaments weighing .It colas and 1 masha were give,, to the petitioner at the time of execution of the divorce deed 8. 1 have heard learned counsel for the parties and gone through the issue-, wise findings of the Courts below. The learned lower Appellate Court has poi reliance on Exh.D/1 where the marginal witness is defendant's Advocate. Dower being a charge on the immovable property in possession of the plaintiff cannot be extinguished on conjectures. The moment a dower is settled and incorporated in the registered Nikahnama which is a sacred document it becomes the property of the wife and it is enforceable as a debt. The relinquishment of dower under the Muhammadan Law is not a relinquishment as under section 63 of the Contract Act the moment any execution of document for relinquishment of dower is placed before the Court, the Court is under legal duty to determine the fact whether independent circumstances existed where a woman has exercised her free consent and free-will has relinquished her dower and whether there were any existing circumstances which coerced and compelled her to relinquish her dower.

9. Mehr or dower is a sum that becomes payable by the husband to the wife on marriage being contracted. It becomes payable either by agreement 'between tile Parties or by operation of law. Under Sunni law the wife is entitle to claim Mehr from her husband, even though she has expressly contracted not to do so. Under Shiah law, a woman who is adult, "and not of a weak or facile, disposition" may validly agree not to receive any "Mehr".

10. Under section 100 of Muhammadan Law, the wife may validly agree to a reduction of her Mehr or make a gift (or remission) of the whole of it to her husband, or after his death to his heirs. Such a gift may be made conditionally and if purported to be made by a widow to a deceased husband or his heirs, it operates as a release of the claim, which is operative without being accepted by the heirs of the husband. Therefore, a wife can relinquish her dower but the condition precedent to such a relinquishment is that it should be the outcome of free-will and not the result of undue influence, coercion, misunderstanding or fraud. Therefore, even the law on the subject has leaned to this extent in favour of a woman feeling that the possible way to win or retain the affection of her husband is to remit the dower end foregoes her claim by executing a writing, it was held that she was not a free agent and it would be inequitous to hold that a woman who remits dower in such circumstances is bound by it. Reliance in this behalf is placed tin. Shah Bano Begum v. iftikhar Muhammad Khan PLIa 1956 (w.P.) Karachi

363. The unpaid dower was further elaborated in this judgment and it was held that an unpaid dower is a debt and the legal principle is that the debtor must seek his creditor. The relief of dower to a wife is sanctioned by Qur'an. and law of land, therefore, when no document is placed before the Court which discloses the relinquishment of the dower by woman the Court must safeguard consciously and vigilantly the rights of the party by keeping in view existing circumstances under which the document was executed and determine finally that his document of relinquishment of dower debt is executed through independent mind, freely and without undue threats, coercion and fraud.

11. In the present case there was a clear admission by the defendant that the. father of the petitioner stood arrested by the police two days prior to the execution of the document Exh.D/1 under a complaint filed by someone else that his daughter has abhorted a child. How a reliance can be placed on such a document where the marginal witness is an Advocate of petitioner's husband and the veracity .of that document is challenged before the Family Court by way of instant suit. Moreover, if the relinquishment of dower was in lieu of divorce why a separate divorce deed was reduced in writing and was -not placed before the Family Court by adverse party. The fact that on the day of execution of Exh.D/1 the divorce deed was also executed was in the knowledge of the Family Court who could direct the party to produce the said document or any evidence at any stage if it was material to decide a question of fact.

12. Therefore, I allow this petition, set aside the judgment and decree dated 15-5-1993 passed by the learned Appellate Court and hereby affirm the judgment of the learned Judge, Family Court, Depalpur dated 30-1-1993.

13. There shall be no order as to costs. A.A./J-14/L Petition accepted.