Sunday, 20 May 2012

Dower can be demanded even during pendency of khula suit

PLJ 2007 Lahore 198

Present: Mian Saqib Nisar, J.

Mst. SHAISTA--Petitioner

versus

SH. LIAQUAT ALI SATHI and 2 others--Respondents

W.P. No. 18028 of 2005, decided on 2.11.2005.



West Pakistan Family Courts Act, 1964 (XXXV of 1964)—



----S. 10(4)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Dissolution of marriage on the basis of "Khula"--Return of dower--The wife who yet has not received the dower from the husband has right to recover it while seeking Khula--Question of--A wife can seek the dissolution of marriage only through the decree of the Court and on the payment of such consideration fixed by the Court, which she has to pay to the husband in the form of the return of the benefits attained by her under the marriage--In the situation, when she has not received the prompt dower, whereas the deferred dower has not become due, and there is nothing which could be restored to the husband as the consideration of Khula, it is the relinquishment by her, of her right to receive the dower, which shall serve as the consideration for obtaining Khula.           [P. 200] A & B

Words & Phrases--

----Expression/word "restore" shall be interpreted to mean the "relinquishment", which in the situation shall be a synonymous term.

            [P. 200] C



West Pakistan Family Courts Act, 1964 (XXXV of 1964)—



----S. 10(4)--Provisions of S. 10(4) are confiscatory in nature--Contention of--Held: Provisions are not in the nature of confiscatory, rather are in accordance with the Islamic principles which require the wife to return or the relinquishment of the benefits received by the wife from the husband under the marriage, while asking the dissolution on the basis of Khula.

            [Pp. 200 & 201] D

Muhammadan Law--

----True spirit of law is embedded in injunction of Islam, which require the return or relinquishment of benefits received by wife from husband under marriage.   [P. 201] E

Mr. Jehangir A. Jhoja, Advocate for Petitioner.

Date of hearing: 2.11.2005.

Order

The parties to the litigation were married. The petitioner brought a composite suit against Respondent No. 1 claiming in the same the divorce, the maintenance allowance, the recovery of the dowry articles as also the dower. In terms of the proviso to sub-section (4) of Section 10 of the Family Courts Act, 1964, her suit for the dissolution of marriage was allowed by the learned Judge Family Court on the basis of Khula, but subject to the extinguishment of her right to recover the dower from the respondent to the extent of 50-Tolas gold ornaments valuing Rs. 3,50,000/-, as is mentioned in Column Nos. 13 & 14 of the Nikahnama. The petitioner is not aggrieved of the dissolution of her marriage, rather her grievance is only confined with regard to the extinction of her right to recover the dower.

2.  It is argued by the learned counsel for the petitioner, that according to the aforementioned provisions, if the marriage is being dissolved on the basis of Khula, a wife is required to return/restore the dower which she has received from the husband, but the law does not debar a wife who yet has not received the dower, from its recovery and there is no law, which empowers the Court to preclude a wife from exercising her such right of recovery. It is further submitted that the said provisions are confiscatory in nature and, therefore, should be construed and applied strictly; furthermore, that where the law requires an act to be done in a particular manner, it has to be done in accordance therewith and not otherwise.

3.  I have heard the learned counsel for the petitioner and in order to appreciate the above, find it expedient to reproduce the relevant provisions, which reads as follows:-

"If no compromise or reconciliation is possible the  Court shall frame the issues in the case and fix date for (the recording of the) evidence;

"Provided that notwithstanding any decision or judgment of any Court or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage".

3.  According to the Injunctions of Islam, a Muhammadan of a sound mind, who has attained puberty, without assigning any cause, may ever arbitrarily divorce his wife whenever he desires. Such absolute right in Islam, has not been so conferred upon the wife, however, in order to secure her right as well, to wriggle out of an unhappy union, a wife under the law of the land, which is based upon the Islamic rule of "Khula" can seek the dissolution of the marriage, but unlike a husband only through the decree of the Court and on the payment of such consideration fixed by the Court, which she has to pay to the husband in the form of the return of the benefits attained by her under the marriage; this may include the return of the dower or any other articles already received by her. It may be pertinent to mention here that under the Muhammadan Law, primarily the dower is in the nature of "Prompt" i.e. payable immediately on demand and "Deferred" which becomes due to the wife on the dissolution of marriage by death or divorce etc.

The legislature, while promulgating the aforesaid law and in order to facilitate a wife to obtain divorce on the basis of Khula, has kept in view the injunctions of Islam and has provided an expeditious and summary remedy to seek the dissolution straightaway from her husband without going into the hassle of lengthy trial of the case, but on the return of the dower already received by her. However, there may be a possibility that Nikah between the wedding parties took place sometime earlier and the Rukhsati is postponed and to the time of Nikah, neither the prompt dower is demanded, nor has been paid. And before the Rukhsati, the wife seeks the dissolution of marriage on the basis of "Khula". In this situation, when she has not received the prompt dower, whereas the deferred dower has not become due, and there is nothing which could be resorted to the husband as the consideration of "Khula", it is the "relinquishment" by her, of her right to receive the dower, which shall serve as the consideration for obtaining "Khula". According to the real intent of the above proviso in such an eventuality, the expression/word "restore" shall be interpreted to mean the "relinquishment", which in the situation shall be a synonymous term. Because, it shall be ludicrous to conceive and comprehend that though in a situation where the wife has already received the dower, she is bound to restore the same while seeking the Khula, but where it is yet payable to her, her right to recover the same remains intact, and cannot be extinguished by the  Court, so as to serve as the consideration of dissolution in the basis of Khula, the Islamic right, founded on which a wife is asking for the termination of the marriage.

4.  In the light of above, I do not find any merit in this petition. However before parting, in order to meet the other arguments of the petitioner's counsel, it is held that the provisions of Section 10 (4) are not in the   nature   of   confiscatory,   rather   are  in  accordance  with  the  Islamic principles, which requires the wife to return the consideration or the benefits which she has received from the husband on account of marriage, while asking the dissolution on the basis of "Khula". As regards the submission about the act to be performed in a particular manner when it is so required by the law, suffice it to say that the true spirit of the above mentioned law is embedded in the injunctions of Islam, which requires the return or the relinquishment of the benefits received by the wife from the husband under the marriage and this is how the above provisions has to be interpreted. The writ petition is accordingly dismissed.

(Saeed Anwar)          Petition dismissed.


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