Sunday, 20 May 2012

Haq Mehar can be increased after Nikah

PLJ 2009 Sh.C. (AJ&K) 20

Present: Iftikhar Hussain Butt, J.

MUHAMMAD SHAFAAT--Appellant

versus

Mst. RIFFAT SHAHEEN--Respondent

Civil Appeal No. 36 of 2003, decided on 19.11.2008.

Muhammadan Law--

----S. 286--Dower as compensation--Decree of dower amounting rupees one lac was passed--Assailed--Suit for recovery of dower that at the time of nikah ceremony, the dower was fixed rupees one lac but with mala-fide intention rupees twenty-five were incorporated in nikahnama--Agreement deed was executed that in case of separation, appellant will pay compensation as dower, and maintenance allowance to minor--Validity--An amount of dower can be fixed even after the marriage and can also be increased--Dower is payable to the wife even it has not been specified at the time of `Nikah'--Held: Impugned decision for recovery of dower does not smack of any illegality--Family Court has appreciated and appraised the evidence and no ground for interference in the impugned decision has been made out--Appeal was dismissed.    [Pp. 21, 22, 25 & 26] A, B & E

Custody of Minor--

----Solemnized second marriage of father--Refused to provide alimony to his minor--Welfare of minor--Decree of dower was passed against appellant and an application for restoration of custody of minor was dismissed--Case of custody of minor was not challenged in the appeal--Validity--It was admitted between the parties that at the time of presentation of application of custody, minor was three and half years old living with her mother--Maintenance allowance to the minor was also passed by Family Court which had not been challenged by appellant in the instant appeal--Held: Appellant has solemnized a second marriage, therefore, the welfare of the minor lies with real mother instead of the step-mother--Age of the minor cannot be made sole ground for custody of the minor rather the welfare of the minor is paramount consideration.    [P. 25] C

2004 SCR 561, rel.

Custody of Minor--

----Age of 10 years--Contracted the second marriage--Fresh facts of the case at the time when Court below decided--Minor has attained the age of 10 years and respondent has also solemnized second marriage is not tenable and is rejected--Validity--Shariat Court is oblized to adjudicate upon the matter according to the facts of the case at the time when Court below decided it--Fresh facts and circumstances of the case cannot be taken into consideration at such stage--Held: However, appellant can approach the relevant forum, if feels so advised keeping in view the changing circumstances of the case.

      [P. 26] D

Sardar Khalid Mahmood, Advocate for Appellant.

Sardar Shamshad Hussain Khan, Advocate for Respondent.

Date of hearing: 19.11.2008.

Order

The above captioned appeal has been presented against the decision and decree passed by Additional District Judge Poonch, empowered as Judge Family Court, on 29.9.2003, whereby a decree of dower amounting rupees one lac was passed in favour of the respondent against the appellant and an application filed by the appellant for restoration of custody of minor was also dismissed.

The necessary facts forming the background of instant appeal are that Mst. Riffat Shaheen, respondent herein, filed two suits, one for recovery of dower and other for dowry and also an application for maintenance allowance whereas Muhammad Shafaat, appellant herein, presented an application for restoration of custody of minor Awais Shafaat, his son.

It was averred by Respondent No. 1 in the suit for recovery of dower that at the time of `Nikah' ceremony, the dower was fixed rupees one     lac    but     with   mala-fide   intention   rupees   twenty-five   were  incorporated in the `Nikahnama'. She came to know about aforementioned intrigue at the time of her ouster from the house of appellant. She further contended that during the period of separation, the appellant executed an agreement deed dated 17.8.1999 to the effect that in case of separation of the spouses, he will pay rupees one lac compensation as dower to the respondent but now he has refused to pay the same. She also submitted that a decree of dower amounting rupees one lac may be passed in her favour. The appellant filed his written statement and refuted the claim of the respondent. He further averred that respondent has got no cause of action and at the time of `Nikah' ceremony dower rupees twenty-five was fixed, which was also paid. He also denied the execution of agreement deed.

The respondent presented another suit for recovery of her dowry amounting rupees fourty thousand but according to the appellant, the price of dowry is not more than three thousand, which is present in the house of appellant, and he is prepared to handover the same to the respondent.

The respondent also filed an application for recovery of maintenance allowance for her minor son at the rate of rupees one thousand per month from June 2001 and rupees ten thousand expenses of her `Iddat', whereby according to the appellant, the respondent is prepared to pay rupees nine hundred only, expenses for the period of `Iddat' whereas in case the respondent restores the custody of minor to the appellant, he is prepared to bear all of his expenses.

The appellant presented an application for custody of minor Awais Shafaat on the ground that the respondent is not providing a conducive atmosphere to the minor; therefore, minor be handed over to him. The respondent refuted the claim of the appellant and submitted that the appellant has divorced her and also solemnized second marriage. She further averred that the appellant has filed the present application for custody of the minor to defend the application for maintenance, which may be dismissed.

The learned Judge Family Court firstly on 4.9.2001 proceeded in the petition for custody of minor and also recorded the statement of appellant in support of his claim. Thereafter, on 9.4.2002, the learned Judge Family Court consolidated all the suits and the applications and ordered to proceed in case No. 53, the suit filed for recovery of dower. He framed nine issues on the same day in the following manner:--

1.    Whether the plaintiff has got cause of action? OPP

2.    Whether the dower of plaintiff was fixed as rupees one lac? OPP

3.    Whether during the period of separation defendant executed an agreement dated 18.8.1991 in favour of the plaintiff? OPP

4.    Whether dower rupees twenty-five was fixed at the time of `Nikah' ceremony, which was paid at the time of `Rukhsati' in presence of witnesses? OPD

5.    Whether the plaintiff carried dowry worth rupees more than 40 thousand to the house of defendant at the time of `Rukhsati'? OPP

6.    Whether the plaintiff took away two beds, two mattresses, one table and some crockery worth rupees three thousand at the time of `Rukhsati'? OPD

7.    Whether the petitioner is entitled to the `Iddat' expenses? OPP

8.    Whether the `Iddat' expenses of petitioner is rupees 9 hundred only? OPD

9.    Relief.

In support of her suits and petition, Mst. Riffat Shaheen appeared into the witness box and also produced Muhammad Raheem and Muhammad Usman Khan as her witnesses alongwith the document Exh.PA. On the contrary, the appellant also entered into the witness box and produced Muhammad Bashir and Muhammad Shehraz Khan as his witnesses.

After completion of the proceedings, the learned Judge Family Court passed a decree of dower amounting rupees one lac in favour of the respondent against the appellant and also directed the appellant to pay rupees one thousand as `Iddat' expenses and to pay maintenance allowance to minor at the rate of rupees five hundred per month from 8.10.2001 till his age of attaining majority. However, the suit for recovery of dowry by the respondent and application for custody of the minor by the appellant were dismissed vide its decision and decree dated 29.9.2003. Hence, this appeal.

Sardar Khalid Mahmood, Advocate, the learned Counsel for the appellant vehemently argued that the execution of agreement deed could not be proved by the respondent but the trial Court misconstrued itself while passing the decree of dower as compensation which being contrary to law is not sustainable. The learned Counsel also challenged the dismissal of the petition of custody of minor in the manner that the respondent has solemnized second marriage; therefore, the welfare of the minor whose age is 10 years lies with the appellant and not with the respondent; therefore, the impugned decision and decree may be set-aside.

Sardar Shamshad Hussain Khan, Advocate, the learned Counsel for the respondent controverted the arguments raised by the learned Counsel for the appellant and submitted that the respondent has proved the execution of the agreement deed Exh.PA and both the marginal witnesses have fully supported her claim. The learned Counsel pointed out that under Section 286 of Muhammadan Law, the amount of dower can be fixed even after the marriage and it can also be enhanced. The learned Counsel maintained that the appellant has also solemnized second marriage and nobody else has come forward to claim the custody of the minor; therefore, the mother-respondent is an appropriate person taking care of the minor keeping in view the welfare of the minor. The learned Counsel defended the impugned decision and decree on all counts.

I have carefully attended to the submissions made at Bar in the light of material available on the record.

Let me first deal with the evidence of the parties in support of their respective claims. Mst. Riffat Shaheen, respondent, has categorically deposed in her statement that on demand of the dower in tune of rupees one lac, relations between the spouses were strained beyond repair and after the separation, she filed numerous suits against the appellant whereat the appellant acceded to her demand and executed an agreement deed Exh. PA but thereafter he again ill-treated her physically and also divorced her. She further stated that she is maintaining her son with care but appellant did not provide for him any maintenance allowance for the last one year. She also testified that agreement deed was written in August 1999 in her presence, which was witnessed by Muhammad Raheem and Muhammad Usman Khan.

Muhammad Raheem, a witness for the respondent, stated that agreement deed Exh.PA was executed in his presence and the appellant asked him to sign the agreement deed, which was also signed by other witness Muhammad Usman Khan.

Muhammad Usman Khan, another witness for the respondent, testified that the appellant executed an agreement deed Exh.PA and signed the aforesaid document in his presence.

The perusal of document Exh.PA shows that it has been executed on a stamp paper attested by a notary public. The names of the appellant and the abovementioned marginal witnesses have also been incorporated. Although, the appellant has refuted the execution of the aforementioned deed and Muhammad Bashir a witness and nephew of the respondent and Muhammad Shehraz a brother and another witness for the appellant deposed that the appellant has not executed any agreement but it will be relevant to note that the witnesses for the appellant are not in position to depose whether the document was executed by the appellant or not because it being personal affair of the respondent cannot be definitely known to the other persons. Thus, the execution of the document Exh.PA has been proved by the appellant and her witnesses in a perfect manner.

Now the question arises as to whether after fixing the dower rupees twenty-five, the respondent is entitled to claim the enhanced dower in the light of agreement deed Exh.PA. The recital of document Exh.PA envisages that the appellant bounded himself that in case of ouster of the respondent from his house, he will pay rupees one lac dower as compensation. The law is clear on the point. Section 286 of Muhammadan Law postulates that an amount of dower can be fixed even after the marriage and can also be increased. The dower is payable to the wife even if it has not been specified at the time of `Nikah'. Therefore, the impugned decision for recovery of dower does not smack of any illegality.

It will not be out of place to mention here that the payment of dower is an obligation under the marriage. It becomes due in full amount as soon as the marriage is consummated.

So far as the case of custody of minor is concerned, it has not been specifically challenged in the appeal. The appellant has filed an application for custody whereas in his appeal he seeks his appointment as guardian. Even otherwise, it is admitted between the parties that at the time of presentation of application of custody, the minor was three and half years old living with her mother. It is further admitted position that the appellant refused to provide alimony to his minor son and an order for providing maintenance allowance to the minor has been also passed by the learned Judge Family Court, which has not been challenged by the appellant in the present appeal. The minor is admittedly living with her mother. The appellant has solemnized a second marriage; therefore, the welfare of the minor lies with his real mother instead of the stepmother. It is admitted position of law that the age of the minor cannot be made sole ground for custody of the minor rather the welfare of the minor is the paramount consideration. (2004 SCR 561).

As far as the argument of the learned Counsel that the minor has attained the age of 10 years and the respondent has also solemnized second marriage, is not tenable and is rejected. It will be necessary to mention that no other person has filed an application for his custody and the respondent contracted the second marriage after recording the impugned decision. This Court is obliged to adjudicate upon the matter according to the facts of the case at the time when the Court below decided it. Therefore, the fresh facts and circumstances of the case cannot be taken into consideration at this stage. However, the appellant may approach the relevant forum, if feels so advised, keeping in view the changing circumstances of the case.

The parties have not challenged the impugned decision and decree about other issues decided by the Court below; therefore, it will be an exercise in futility to comment upon these matters. In such state of affairs, the learned Judge Family Court has appreciated and appraised the evidence of the parties in a legal fashion and no ground for interference in the impugned decision has been made out.

The upshot of the above discussion is that finding no force in this appeal it is hereby dismissed. No order as to cost.

(R.A.)      Appeal dismissed

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