Dower

Column 13 is titled 'amount of dower', which is generally construed as referring to dower in the form of amount of cash as being distinct from its other forms and does not refer to nor is construed as the value of the total dower agreed upon by the parties in all its forms because the parties may have intended and agreed to giving dower in its different forms i.e. cash as well as immovable property

Urdu version uses the expression 'raqam', which could be construed as cash only

Likewise, the headings of Columns Nos. 14 and 15 may also be understood as having reference to Column 13 and being distinct from Column 16

It is obvious from a plain reading of the expressions used in the heading of Column No.16 that it specifically refers to dower in the form of property

Expression 'in lieu' has been used in the context of the 'whole' or any 'portion' of the dower

Dower may only be agreed in the form of property and, therefore, it would amount to giving such a property in lieu of the whole dower, however, the property may also be agreed as portion of the whole dower and in such an eventuality it has been intended to be given in addition to dower in some other form e.g. cash

Expression 'in lieu' has definitely not been used with reference to the amount of dower recorded in Column 13 as has been erroneously construed by the High Court

Column 16 further requires the recording of 'specification' and 'valuation' of the property agreed between the parties as dower, which further highlights that the column is specifically meant for recording the dower in the form of property, whether agreed upon to be part or whole of the dower.

Validity of a marriage remains unaffected even if the parties have not expressly mentioned it in the marriage contract because, in such eventuality, reasonable dower, 'Mehr-ul-Misel, is presumed

Dower is given by the husband to the wife and its determination would be subject to consent of the wife

Dower is the exclusive right of a bride, which is relatable to a thing which has marketable value

It can either be in the form of cash or property or both

It may be prompt or deferred

If the parties have not specified the nature of the payment of dower, then it is presumed to be prompt as provided under S. 10 of the Ordinance

Dower is an essential condition for giving effect to a valid marriage contract

It becomes the exclusive property of the wife because it has many benefits for both the parties

It is financial security for the wife and its determination must be guided by informed understanding of the bride regarding her rights

An unconditional declaration of dower in the form of immovable property leads to creating the exclusive ownership of the bride upon the execution of the Nikahnama and she cannot be deprived of her rights relating thereto in any manner

Dower in the form of cash is distinct from its other forms.

Rather, it is a right of the wife which may be stipulated at any of three stages: before the marriage, at the time of marriage, or even after the marriage has been solemnized

Jurisprudential authorities as well as judicial precedents consistently recognize that dower may not only be fixed subsequently but may also be increased by mutual consent after the marriage

The rationale underlying this principle is that dower (mehr) is an obligation imposed upon the husband as a mark of respect for the wife and as a token of responsibility undertaken by him, therefore, its fixation or enhancement at a later stage does not offend any principle of law or equity.

Jurisdiction of family court to take cognizance of dower matter arising out of a post-marital agreement between husband and wife

The petitioner/husband and respondent No.2/wife entered into a valid marriage, with a dower of Rs.200,000 fixed at the time of Nikah

Later, an agreement was executed between the parties, wherein the petitioner/husband undertook to provide monthly maintenance, separate accommodation, and other financial commitments

However, their relationship subsequently deteriorated due to alleged maltreatment and non-fulfilment of obligations, following which respondent No.2/wife filed a suit for recovery of dower, gold, and maintenance before the family court, which decreed the suit

The petitioner's appeal before the district court was dismissed as time-barred, leading to the filing of the present Constitutional petitions challenging both judgments

Held: Plea of the petitioner/husband that subsequent fixation of dower was without lawful authority did not hold ground in view of the settled principles of Mohammadan law insofar as dower was not a rigid or unalterable condition confined only at the time of marriage, rather it was the right of wife which could be stipulated at any of three stages of marriage i.e. (i) before the marriage, (ii) at the time of marriage, (iii) or even after the marriage has been solemnized

Whilst dilating upon the maintainability of the petition, High Court observed that the impugned judgment passed by the Trial Court on 11.02.2021, while the same was assailed before the appellate court on 19.07.2021 after lapse of five months

Admittedly, petitioner kept silent for a long-lasting period of more than five months without any justifiable reason and sufficient cause for delay in filing the appeal, which was hopelessly time barred

Even otherwise, the application for condonation of delay filed in the appellate court also did not show any plausible justification, which again showed the conduct and irresponsibility of petitioner

Further, family court had the jurisdiction to take cognizance of the dower claim which had arisen out of the post-marital agreement between the parties

Constitutional petitions were dismissed, in circumstances.

High Court observed that alternate values in family suits are provided only for contingencies where the principal property (e.g., dowry/dower) is unavailable, damaged or lost

Where the property is clearly identifiable and available in the market (i.e., gold ornaments), the petitioner cannot be compelled to accept the nominal alternate value settled at time of nikah and/or decree

By no stretch of imagination, alternate value of Rs.100,000/- could be treated as adequate substitute of the actual dower i.e. 07-tola gold ornament

Executing Court correctly allowed the application of the petitioner as it was for the petitioner to opt as to whether to go for the actual dower i.e. 7-tola gold ornaments, which became her property after the same was settled and delivered to her, or accept its alternate value

Petitioner could not be compelled to accept the alternate value settled in nikahnama

Writ petition was allowed.

Claim of the plaintiff/lady was concurrently decreed to the effect that only 15 Misqal gold, out of fixed 100 Misqal gold, was given to her

Plea taken by the petitioner/husband was that 24 Misqal gold had been paid at the time of Nikkah

Validity

Haq-Meher (dower amount), was admittedly fixed as 100 Misqal gold, as the witnesses of the petitioner/husband before the Trial Court had admitted said fact

Record (evidence) revealed that the petitioner failed to prove his plea, therefore, the decree to the extent of 85 Misqal gold as Haq-Meher, had correctly been passed by both the Courts below by appreciating the evidence produced by the parties

Constitutional petition, filed by husband, was disposed of.

Wife filed suit for recovery of dowered property, gold ornaments, past maintenance for herself and minor daughter and recovery of dowry articles before the Family Court

Husband appeared and filed written statement and also prayed for restitution of conjugal rights

Family Court decreed the suit of wife

Appellate Court partially allowed both appeals filed by wife and husband against decree of Family Court

Validity

Wife's claim was that her marriage with the husband was solemnized and her dower was fixed as 04 tolas gold ornaments, 10 marlas plot and a constructed house by husband

Wife failed to produce original Nikahnama

Wife neither produced Nikah Khawan nor Nikah Registrar nor any witness of the Nikahnama to substantiate her claim

Copy of Nikahnama was never exhibited but was marked, because it was a photocopy

Witnesses produced by the wife after recording their examination-in-chief had absented themselves and were never cross-examined, due to that reason their evidence could not be looked into

Wife never applied to produce secondary evidence in order to prove Nikahnama

Husband in his cross-examination stated that 04 tolas gold ornaments were fixed as dower and the same had been paid to wife and he also admitted that one house was also given to wife for residence

Husband stated that house was meant for residence purposes

Further in cross-examination he had stated that he was ready to take his wife along with him as he loved her very much

Wife had proved the dower in shape of house whereas failed to prove through evidence about dower in shape of 10 marals

Constitutional petition was dismissed.

Prompt dower is paid on demand whereas the deferred dower is paid either on the dissolution of marriage or on the death of husband

If some timeframe is given in the Nikahnama with regard to the demand of deferred dower then wife can claim the same before the dissolution of marriage or death of husband.

Ordinarily, in transfer of immoveable property by a Muslim husband to his wife in lieu of dower, there were two distinct gifts, one by each party to the other

Husband transfers the property by gift, while wife makes the gifts of her, such transaction is essentially "hiba-bil-ewaz"

Such principle is subject to exceptions.

Such is the amount of some monetary value to be paid by the husband to the wife at the time of marriage, part of which can be delayed or deferred according to what has been agreed between them

Specified Mahr is Mahr Musamma and unspecified is (Mahr al-Mithl)

When the dower is unspecified, it will still be an obligation and the law will award it on the demand of the wife and in such case, the amount will be determined keeping in view factors such as dower of the females of her class or of her father's family, the financial position of the groom, the social status of the bride, the prevalent custom of the time and place and the agreement that the bride and the groom can reach over the amount

Dower can also be prompt (Mu'ajjal) or deferred (Ghair Muajjal or Muwajjal)

Prompt dower is to be paid either at the time of marriage or on demand whereas deferred dower is to be paid at such date or time as may be mutually agreed between the parties and in the absence of the same, it is to be paid at the dissolution of marriage

Under Shariah there is no specification as to the nature, scope and extent of dower to be given

Holy Prophet P.B.U.H said to a man, "marry, even with (a Mahr equal to) an iron ring."

No upper limit for the fixation of dower exists in Islam

Inherent idea behind dower is that it is an obligation imposed upon the husband.

Entry in column No. 14 of the Nikahnama, if incorporated, will indicate the true intention of the parties in relation to the extent of amount (only) fixed as prompt and/or deferred dower

For other valuables such as gold or property, mode/time of payment is to be specified in corresponding entries/columns

If no detail about the mode of payment of the dower is specified in the Nikahnama, S. 10 of the Ordinance comes into play.

Husband claimed that although the transfer of house was promised in the Nikahnama but the same was deferred dower and the marriage between the parties was still intact, therefore, the wife was not entitled to receive the same during subsistence of marriage

Validity

Reading of Entry 16 of Nikahnama of the parties revealed that neither mode of transfer was provided for nor the time for transfer of house promised under Column No. 16 was incorporated indicating the same to be part of deferred dower, hence, there was failure to classify the house under Column No. 16 as deferred dower coupled with the omission to specify mode and time of payment thereof

By virtue of S.10, the wife was entitled to claim for the discharge of obligation, which the husband undertook in terms of entry under Column No.16

Courts below had rightly held the wife entitled to the house specified in Column No.16 of her Nikahnama

Constitutional petition was dismissed.

In column No. 13, the word "Raqm" (amount) has been used; column No.14 also uses the word "Raqm" (amount) whereas columns Nos. 15 and 16 use the word "Mahr" (dower) that also reveals the intention of the Legislature with regard to amount of dower, which can be incorporated and settled by the parties, under columns Nos.13 and 14 and other valuables as dower under columns Nos. 15 and 16

Entries in columns Nos. 13 to 16 together become dower overall

Entry in column No. 13 of the Nikahnama is to contain the amount of dower, entry 14 envisages the break-up of such amount of dower spelled out by the parties by virtue of entry under column No. 13 into prompt and deferred whereas entry in column No. 15 may contain anything given or paid out of the amount envisaged under column 13 or in addition thereto forming as part of the dower overall

Entry under column No.16 is to also form part of the dower overall in addition to the amount/cash which may be stipulated by way of entry under column No.13 and also in addition to anything else given by way of entry under column No. 15

Entries under columns Nos. 13 to 16 of the Nikahnama envisage reflection and manifestation of the parties as to amount/Raqm and other articles and/or property given or to be given by husband to wife as the dower overall

Anything other than an amount, forming part of dower overall and incorporated under columns Nos.15 and/or 16 has also to contain the time and mode of payment and giving of the same by husband to wife

Failure to spell out the mode and time of dower contained in entry 15 and/or 16 would entail the attraction and applicability of S.10 of the Ordinance.

Perusal of S.10 of the Ordinance brings forth the legislative fiat that where no details about the mode of payment of dower have been spelled out by the parties to confer certainty to it under the marital contract, the omission or failure of the parties to fill in and/or reflect their intention in a perspicuous manner, the legislature has stepped in to fill in such omission of the parties through S.10 of the Ordinance which clearly states that, in such like situations, the entire amount of the dower shall be presumed to be payable on demand

Statutory presumption embodied under S.10 of the Ordinance is rebuttable; however, the same has to be rebutted through positive evidence.

Where it was not settled at the time of marriage as to whether dower was prompt or deferred, according to Sunni Law part of the same would be prompt and part deferred.

Entire amount of dower should be presumed to be payable on demand if mode of payment was not specified in Nikah Nama or the marriage contract.

Dower or Mehr was the sum of money or other property which the husband was obliged to pay to his wife as a mark of respect

Dower was the consideration of marriage contract and token of respect for wife

No marriage could take place without fixing dower

Dower had to be paid by the husband to the wife to acquire religious merit and to discharge an obligation or duty towards the wife

Dower was a debt and wife was entitled to receive the same as a creditor of her outstanding dues against her husband

Dower would become due soon after the marriage was consummated or the Nikah was solemnized.

Husband had not taken the plea of Ghair Muajjal Haq Mehr in written statement rather he had denied the contents of Nikah Nama

Wife had successfully proved the Nikah Nama by adducing evidence

Dower mentioned in the Nikah Nama was fixed and payable at the time of marriage ceremony

Family Court was a court of ultimate jurisdiction which had power to record evidence and decide the factual controversy

Wife was entitled for the grant of dower in terms of Nikah Nama

Payment of dower was an essential obligation of husband and his failure to pay the same would tantamount to injustice and inequity

Dower should be considered as an effect of marriage contract imposed on the husband as a mark of respect for the subject of contract with wife

Dower could also be considered as an exchange for the usufruct of wife and its payment was necessary as a provision of support to the wife which would depend upon the permanency of matrimonial contract

Classification of dower as prompt and deferred had no sanction behind it except the general practice in muslim society for the convenience of the parties

Concept and wisdom in classification of dower would depend upon the relationship of party and protection of right of woman un-foreseen circumstances without taking away her right of demand of payment of dower till the marriage was not dissolved

Postponement of payment of dower for an indefinite period would not mean that same could not be claimed before the dissolution of marriage

Deferred dower was source of guarantee for a woman against ill-treatment, non-maintenance, desertion or any other abnormality in the family life

Dower whether prompt or deferred was an inalienable right of wife and after consummation same would become her vested right at any time

Pronouncement of Talaq was not a pre-condition for the maintainability of suit for recovery of dower

Constitutional petition was dismissed in limine.

Dower or Mehr is a sum of money or other property which wife is entitled to receive from husband in consideration of marriage

Dower is the consideration agreed between the parties which husband has to pay to wife either promptly or subsequently in accordance with terms of agreement.

Dower fixed with the agreement of the parties to the marriage, could be prompt or deferred or partly prompt and partly deferred

Prompt dower was payable immediately on demand

Deferred dower would be payable on a date or time agreed between the parties and it was more appropriate that date or tine agreed for payment of deferred dower be certain

Parties could agree that deferred dower would be payable on the happening of a certain event like divorce or death.

Where part of dower is described as Mu'wajjal i.e. deferred but no time limit is fixed for its payment, the time of such payment is either death or divorce.

Dower is gift given by bridegroom to bride and the Holy Qur'an is silent on two types of dower i.e. prompt and deferred dower.

Terms/words "Haq Mahr received by the wife in consideration of marriage at the time of marriage", were of considerable importance

Words "received" would mean that the payment of dower had either been established or its payment had been admitted by the wife at the time of granting decree

Only in that case, the Family Court had to simultaneously direct the restoration of dower to the husband

Said condition, no doubt, was mandatory, but was subject to proof

Dower was a consideration for marriage contract, on its dissolution, the contract would stand rescinded and then the consideration paid would remain un­discharged debt liability, but would be subject to proof, the burden of which was undeniably on the husband to discharge by adducing evidence to that effect, unless it was shown to have been paid either in the dower deed or in the `Nikah Nama'

If the Family Court would defer the grant of decree, because the payment of dower was a point of contest, it had to . revert back to the old fashion of trial where both the parties would lead evidence; such process in all probabilities, would consume sufficient time and the purpose intended to be achieved through Proviso to S.10(4) of West Pakistan Family Courts Act, 1964 would be defeated

Keeping in view the entire scheme of the law, the sole object and intent of the legislature was to ensure the expeditious disposal of such disputes

Time frame fixed by legislature for disposal of cases would lend iron clad support to that view

Ambiguity or absurdity in the Proviso to S.10(4) of the West Pakistan Family Courts Act, 1964 as to how to deal with the present eventuality needed to be clarified and efforts had to be made to make the same effective and meaningful so that the object of the legislature was achieved fairly and squarely.

Islamic Law ordained that there should always be a consideration made by the husband in favour of wife; it was a settlement in favour of wife made prior to completion of marriage contract and was a pre-condition and pre-requisite of a valid marriage

Dower was indispensable, so much so that in its absence, relationship between husband and wife could not be legitimized and would be regarded as a sinful union.

No legal question of public importance being involved in the case and petitioner having failed to make out case for grant of leave to appeal against judgment of Shariat Court, petition for leave to appeal was dismissed in circumstances.

Dower is that financial gain which wife is entitled to receive from her husband by virtue of marriage contract itself whether named or not in the contract of marriage in which case proper dower would become due

Dower essentially is the right of wife and not of her parents.

Husband at time of contracting marriage executing agreement that wife was entitled to recover her prompt-dower of Rs. 20,000 by appropriating for 25 years produce of 35 kanals of land belonging to him-Husband subsequently wishing to sell his land-Held, husband could not be restrained from selling land ; he could sell land subject to lien of wife's unpaid dower.

(c) Dower-Marriage of virgin of 20 years with man who was more than twice her age and had married thrice previously Kabinnama mentioning Rs. 50,000 as dower-Balance of evidence produced in proof of Kabinnama-Settlement of dower at Rs. 50,000 gad not wondered at and Kabinnama held genuine.

Dower Dower-Unpaid-Suit for recovery of-Place for instituting. An unpaid dower is a debt and the legal principle is that the debtor must seek his creditor: Where the defendant had no fixed place of abode but wandered from K to L and thence to D where he ultimately settled down; whereas the plaintiff permanently resided in K where the suit was instituted.