PLJ 2016 Sh.C. (AJ&K) 14
Present: Sardar Abdul Hameed Khan, J.
Family Appeal No. 28 of 2014, decided on 15.10.2015.
----Receipt--Dower amount was paid at time of rukhsati--Version--Validity--No author of receipt was produced before trial Court to substantiate his version--Appellant could not succeed to prove his version regarding cost of gold ornaments given to plaintiff/respondent--At time of rukhsati, it was agreed/committed by appellant that dower amount will be paid within one year. Whereas in written statement appellant had not specifically denied that fact--No misreading or non-reading of evidence has been committed--Amount of dower was to be paid within period of one year.
[Pp. 18 & 19] A, B, C & D
----Scope--Question of law--Column of document of nikkahnama--Wherein neither date of payment was fixed nor any condition like payable on demand was imposed, even if whole amount of dower was admitted even then that was payable only on eve of dissolution of marriage by death or divorce. [P. 19] E
----Scope of--Deferred dower--Mode of payment--It is settled that in case where a period is fixed for payment of `Muw’ajjal’ dower, it will become payable on completion of stipulated period. [P. 22] F
----Columns--Muajjal and ghair muajjal--Nikkah form (impugned document) term (معجل) “Mu’ajjal” and (غیر معجل) “Ghair-e-Mu’ajjal” has been incorporated and in column of mehr term (موجل) (Mehr-e-Mu’waj jal) has not been used. [P. 27] G
----Notification No. 2034-41/88--Columns--Omission of word muwajjal--Ambiguity--In Form of Nikkahnama terms “mu’ajjal (معجل) and “ghair-muajjal” (غیر معجل) have been used whereby deferred/delayed dower means payable on demand--Prior to introduction of present, Nikkah Form words prompt/deferred were not introduced--Prior to 1985 in that territory, nikkah khawani was being performed by some religious institution and after perusal of such a nikkah form, Court noted that in nikah Form, there was no column in terms specifying--After promulgation of Nikah Registration Act, 1986 that new nikah form has been introduced in 1988, wherein, words “Muajjal” and “Ghair-e-Muajjal” have been incorporated in columns of dower/Mehr--Term/word “Mu’Wajjal”/Deferred has been omitted with use of proper wisdom of law makers to remove ambiguity of (مہر موجل) deferred dower is payable only on eve of dissolution of marriage by talaqor death, if there being no condition is specifically stipulated in instruments of nikkah.
[Pp. 27] H, I, J & O
Nikah Registration Act, 1986--
----Preamble--This new Nikah Form has been introduced in 1988 vide Government Notification No. 2034-41/88, wherein, words “Muajjal” and “Ghair-e-Muajjal” have been incorporated in columns of dower/mehr. [P. 28] K
----Muslim society--Terms have been in practice regarding payment of dower for convenience of parties as general practice in Muslim society. [P. 28] L
----Scope of--Wisdom behind such legislation or introducing such specific term of “ghair-e-mu’-ajjal” is to advance cause of promulgation of family laws, and family ‘Courts for expeditious settlement and disposal of disputes relating to marriage and family affairs including disputes of mehr/dower in line with injunctions of shariah. [P. 28] M
----Deferred dower--Demand of wife--Mehr “Ghair-e-Mu-ajjal” means deferred dower which becomes “prompt on demand of wife at any time after consummation of marriage, and husband is bound to pay balance amount of dower to wife immediately. [P. 28] N
----Kinds of--Classification of dower as prompt--Classification of dower as prompt or deferred has no legal sanction behind it, except general practice in muslim society for convenience of parties--In Islam, payment of dower is an essential obligation of husband and failure, thereto, tantamounts to injustice and inequity--Normally, women do not demand payment of full dower which is fixed at time of marriage and only a portion of dower is paid before consummation of marriage and remaining dower is deferred to be paid later, which does not mean that either it was waived or was treated as deferred till dissolution of marriage in all cases as a general rule. [P. 28] P
Sardar Imtiaz Akbar, Advocate for Appellant.
Sardar Manshad Sarwar, Advocate for Respondent.
Date of hearing: 15.10.2015.
The captioned appeal has been directed against the judgment and decrees passed by the learned Senior Civil Judge/ Judge Family Court Rawalakot dated 31.03.2014, whereby the trial Court decreed the suits for dower and maintenance filed by the respondent/ plaintiff.
2. Precise facts of the case are that the respondent/plaintiff filed two family suits for dower and maintenance, respectively against the appellant/ defendant on 28.09.2012. In the suit for recovery of dower, the plaintiff/ respondent claimed that she has contracted marriage with Tahir Hanif, defendant/appellant, herein, in lieu of dower Rs. 5,00,000/-(rupees five lac). The plaintiff prayed for recovery of dower amounting to Rs. 5,00,000/-. In the other suit, filed for maintenance, the plaintiff claimed Rs. 5,000/- as monthly maintenance on the ground that her husband has deserted her without any justification. The defendant/appellant filed written statement in both the suits, wherein he refuted the claim of the plaintiff. The parties led evidence in support of their respective claims. The trial Court after hearing the parties, decreed both the suits in the terms that the plaintiff is entitled for payment of remaining amount of dower Rs. 4,50,000/-(rupees four lac and fifty thousands) and monthly maintenance at the rate of Rs. 3,000/- (rupees three thousands) per month from the institution of suit, hence, this appeal.
3. The defendant/appellant filed the instant appeal on the ground that the learned trial Court has miss-read and non-read the evidence led on his behalf. It has been alleged that the Court below has not considered the documentary evidence adduced on behalf of the defendant. The appellant has prayed that the judgment and decrees passed by the trial Court may be declared as null and void and the case may be remanded back to the trial Court to decide it on merit, by considering the receipt of the gold ornaments and also to decide the matter keeping in view the financial position of the defendant/ appellant.
4. Sardar Imtiaz Akbar Advocate, the learned counsel for the appellant argued that a certified copy of Nikkhanama has not been placed on record on behalf of the plaintiff/respondent,however, the document of Nikkahnama is an admitted document. It has further been contended that according to the contents of the Nikkahnama, the whole amount of dower is deferred and that deferred dower is payable in case of dissolution of marriage on death of husband or on divorce. The learned counsel vehemently contended that the whole amount of dower was fixed as Rs. 5,00,000/- (rupees five lacs), which was deferred dower. However, later on at the time of Rukhsati, a sum of Rs. 3,00,000/- (three lacs) was paid to the respondent/plaintiff in shape of gold ornaments, hence the balance amount of deferred dower worth Rs. 2,00,000/- lac is payable only on dissolution of marriage by divorce or death. The learned counsel concluded that the impugned decrees and consolidated judgment is the result of misreading and non-reading of evidence and total misconstruction of the law regarding prompt and deferred dower. While praying for acceptance of the appeal, referred 2009 SCMR 1458, a full bench case decided by the Hon’ble Supreme Court of Pakistan.
5. On the other hand, Sardar Manshad Sarwar, Advocate, the learned counsel for the respondent is of the view that neither the dower nor the maintenance has been paid to the plaintiff/respondent, so the trial Court has rightly decreed the suits of the plaintiff. It has further been argued that no Court is empowered to reduce the amount of dower once it has been fixed nor it can be reduced by husband or any other body except the wife herself. The learned counsel further contended that the whole amount of dower was payable on demand being (غیر معجل) “Ghair Muajjal” and only gold ornaments worth Rs. 50,000/- (fifty thousand) were given to the plaintiff/respondent on the eve of Nikkah ceremony and no gold ornaments were given or amount of Mehr was paid at the time of Rukhsati or thereafter, hence, the total amount of dower of five lac is outstanding and it was agreed between the parties that whole amount of dower will be paid within a period of one year which has become prompt dower on the completion of agreed period of one year. The learned counsel further argued that the trial Court has appreciated the evidence led by the parties in a legal fashion and rightly decreed the suits. The learned counsel defended the judgment and decrees of the trial Court and prayed for dismissal of the appeal and placed reliance on 2007 SCR 187.
6. After hearing the learned counsel for the parties, I have gone through the record of the case. It is the claim of the appellant that he has paid dower amounting to Rs. 3,00,000/- at the time of Rukhsati. It transpires from the statement of the respondent that Rukhsati took place after one year whereas the appellant in his statement categorically stated that Rukhsati took place after 6/7 months of Nikkah. The appellant has attached a receipt of gold ornaments bearing No. 322 dated 05.09.2010, which reveals the price of 82 gms and 450 milligrams gold ornaments as Rs. 3,01,128/-. The date of Nikkah is admitted as 25.11.2009, which means Rukhsati has taken place in March/April 2010, as stated by the appellant after 6/7 months of Nikkah. So, receipt of gold ornaments dated 05.09.2010 is not helpful to the appellant which has neither been annexed with the written statement nor produced, tendered or exhibited in evidence before the trial Court. Even no author of the receipt has been produced by the appellant before the trial Court to substantiate his version. Whereas, the perusal of the statements of the witnesses of the appellant/defendant namely Khurshid, Danish and that of the appellant but the appellant could not succeed to prove his version regarding the cost of gold ornaments given to the plaintiff/respondent to the tune of Rs. 3,00,000/-. Whereas from the perusal of the statement of PWs Bashir, Mushtaq Khan, Muhammad Shafiq and the respondent/plaintiff Saira Kausar it is found that it has rightly been concluded by the trial Court that out of total amount of dower only ornaments of Rs. 50,000/- (rupees fifty thousands) were given to the respondent. It is also pertinent to add that it has been alleged by the plaintiff/respondent in contents of the plaint that at the time of Rukhsati, it was agreed/committed by the appellant that the dower amount will be paid within one year. Whereas in the written statement the appellant has not specifically denied this fact. It was also stated by the respondent/plaintiff in her statement that dower was payable after one year but this has not been questioned in cross-examination by the appellant, wherefrom, it can safely be concluded that no misreading or non-reading of evidence has been committed. However, it is obvious that the amount of dower was to be paid within the period of one year.
7. In the light of above discussion, it is found that the appeal of the appellant on the merits and facts of the case could not make any room for acceptance.
8. Now, I would like to consider the case of the appellant on the question of law as agitated seriously by the learned counsel for the appellant. The arguments of the learned counsel that “the whole amount of dower is deferred dower as is mentioned in the relevant column of the document of Nikkah-nama, wherein neither the date of payment is fixed nor any condition like payable on demand etc. is imposed therein and in this way, even if the whole amount of dower is admitted even then that is payable only on the eve of dissolution of marriage by death or divorce.” The learned counsel in support of his arguments placed reliance on 2009 SCMR 1458, a full bench case of Supreme Court of Pakistan consisted of Hon’ble Mr. Justice Iftikhar Muhammad Chaudhary (CJ), Mian Shakirullah Jan and Raja Fayyaz Ahmed (JJ) (as their lordships then were) in the case titled Saadia Usman & another vs. Muhammad Usman Iqbal Jadoon & another decided on 01.04.2009. It looks appropriate to reproduce the relevant excerpts from this case law, which read as under:--
2009 SCMR 1458
“Iftikhar Muhammad Chaudhry, C.J.--The instant appeals, by leave of the Court, are directed against the judgment, dated 07.11.2008 passed by the Islamabad High Court, Islamabad whereby the cross-writ petitions filed by the parties were dismissed with the modification in the judgment of the Additional District Judge to the effect that the deferred dower shall be recoverable subject to law at the time of dissolution of marriage either by death or divorce and the decree to that extent was set aside. In these appeals, leave was granted to consider the following questions:---
(i) What is the correct import of deferred dower and whether it becomes prompt if and when demanded?
10. The Qur’anic word “Nihla” signifies the giving of something willingly, of one’s own accord, without expecting a return for it. Thus, dower is a gift given by the bridegroom of the bride. However, the Holy Qur’an is silent on the two types of dower, i.e. prompt and dower.
11. The Urdu Encyclopaedia of Islam, Vol. XXI describes Mehr and its three kinds in the following words:--
چونکہ مہر نکاح کے موقع پر عورت کو مرد کی طرف سے لازمی طور پر دیا جانے والا عطیہ ہے۔ اسی بنا پر شواقع نے حق مہر کی تعریف کرتے ہوئے کہا کہ یہ وہ مال ہے جو مرد کے حق زوجیت کو جائز قرار دیتا ہے۔ لیکن دوسرے فقہا نے مہر کی تعریف یوں کی ہے کہ یہ وہ مال ہے جو عورت سے باالفعل یا بالقوہ نفع اٹھانے کے بدلے کے طور پر دیا جاتا ہے۔ یہ تعریف محض عقد صحیح کی صورت میں واجب ہونے والے مال پر صادق آئی ہے ﴿الفقہ علی المذہب، ٤:٩٦﴾
آخر میں یہ ذکر کر دینا بھی ضروری ہے کہ مہر کی تین قسمیں ہیں 1۔ مہر معجل یعنی وہ مہر جو عورت کو پیشگی دیا جائے یا پیشگی دیا جانا طے پائے۔ اس صورت میں عورت کو اختیار ہوتا ہے کہ جب تک اسے مکمل مہر وصول نہ ہو وہ خود کو مرد سے جدا رکھ سکتی ہے۔ اس دوران میں نان نفقہ بھی مرد کے ذمے ہوگا۔ 2۔ مئوجل جس کی ادائیگی کی ایک معیاد مقرر کی جائے، مثلا سال یا دو سال وغیرہ۔ یہ مہر اسی طرح واجب الادا ہوتا ہے۔ 3۔ مہر مئوخر: جو بوقت طلب لازمی ہوتا ہے۔
12. We have next perused the relevant excerpts from the book titled “Kitab-al-Fiqh al-al-Madhahab-al-Arba’a” compiled by Abdur Rehman Al-Jaziri, (translation) by Manzoor Ahsan Abbasi, published by the
Ulema Academy, Auqaf, Department, Government of the Punjab. At pages 190-193 of the book, there is a full-fledged discussion of the two types of Mahr (dower), namely, Mu’ajjal, (prompt, i.e. immediately payable) and Mu-wajjal (deferred i.e. payable later, after a certain time). Relevant excerpts from the book are reproduced below:--
مہر مئوجل اور مہر معجل کا بیان
واضح ہو کہ مہر کاپورا یا کچھ حصہ فوری طور ادا کر دیا جائے ﴿جسے مہر معجل کہتے ہیں﴾ یا بعد میں ادائیگی کی شرط ہو ﴿جسے مہر مئوجل کہتے ہیں﴾ دونوں صورتیں بمو جب تفصیل مسالک محلفہ جائز ہیں۔
اگر کل مہر یا اس کے کچھ حصے کی ادائیگی کے لئے موت یا طلاق کی شرط رکھی یا باالاقساط ادا کرنے کو کہا جسے مہر منجم کہتے ہیں مثلا یوں کہا کہ ایک سو روپیہ پر شادی کرتا ہوں جو مرنے پر یا طلاق ہونے پر پنج سالہ مقررہ اقساط میں ادا کروں گا تو درست ہے۔ اس کو بھی معیاد مقرر سے تعبیر کیا جائے۔
اگر ایک مہر قرار پا گیا جس میں سے نصف تو معجل ہے اور نصف مئوجل ﴿یا غیر معجل﴾ ہے جس کے لیے کوئی وقت مقرر نہیں کیا گیا۔ مثلا ایک سو مہر ٹھہرا جس میں پچاس معجل اور پچاس مئوجل جس کی کوئی مدت نہیں بتائی تو اس ﴿کی صحت﴾ کے بارے میں اختلاف ہے۔ بعض اصحاب کہتے ہیں کہ اس میں مدت باطل متصور ہو گی اور پورا مہر معجل ﴿فوری واجب الادا﴾ ہو گا۔ بعض اصحاب کہتے ہیں کہ بعد میں ادا کرنا جائز ہے۔ اور ﴿بعد میں ادائیگی سے﴾ مراد موت یا طلاق سے علیحدگی کا وقت سمجھا جائے گا اور یہی صحیح ہے۔
13. It is clear from the passages just quoted from the book titled “Kitab-al-fiqh al-al-Madhahab-al-arba’a”that the Hanafi jurists allow both categories of Mahr. Mu’ajjal,(prompt, i.e. immediately payable) and Mu’wajjal (deferred, i.e. payable later, after a certain time). However, where a part of the dower is described as Mu’wajjal, i.e. deferred but no time limit is fixed for its payment, according to some jurists, the condition is valid and the time of the deferred payment is either death or divorce. And this is considered to be the correct exposition of the law (the preferred view). Thus, the division of dower into prompt and deferred is based on the consistent opinion expressed from time to time by the Islamic Jurists and the superior Courts, including the Supreme Court of India”.
9. It is pertinent to note that in the above cited case “Mehr-e-Mu’ajjal” (prompt dower) and “Mehr-e-Mu’wajjal” (deferred dower) has been discussed. It is also apparent from the above reports that the mode of payment of Mehr-e-Mu’wajjal (deferred dower) is not the unanimous view of eminent Muslim Scholars/Jurists. However, it is settled that in case where a period is fixed for payment of `Muw’ajjal’ dower, it will become payable on the completion of the stipulated period. In the case in hand it is evident from the record that a period of one year was fixed for payment of dower. Hence the above referred case law is not helpful to the case of appellant.
10. The contention of the learned counsel for appellant regarding payment of dower money in installments and reduction in the dower money keeping in view the means of living and source of income of appellant has also been looked in. It may be added that question of payment of outstanding amount of dower has been discussed by the apex Court of AJ&K, in a case reported as 2007 SCR 187 titled Zeeshan Butt vs. Jamila Shafi. Wherein Hon’ble Mr. Justice Khawaja Shahad Ahmed (Judge Supreme Court of AJ&K as his lordship then was) by referring 2000 CLC 1384 has discussed the question of reduction of dower amount and means of the husband by the Court in Paras 8 and 10 of the report, relevant portion/quotation is reproduced as under:
“8. It was held that there is no classification recognized by the Quran and the Sunnah. In the same judgment, it was rightly held that when the dower is demanded by the wife, the husband is under an obligation to make payment of the same and cannot further defer it on any excuse and that the provisions of Section 6(5) of the Family Laws Ordinance, 1961 being not in conflict with Islam. It is mandatory for the husband to pay entire amount of the dower. Thus, we have no doubt in our mind that Mahr or dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage and if not and remains outstanding as debt and is to be paid as specified, the husband can settle any amount may be the same is beyond his means but once it has been fixed the same can neither be reduced by the husband or by anybody else except the wife herself.
10. From the above discussion it is held that the Family Court Act or rules do not authorize the Court to reduce the amount of dower on the ground that the husband is not possessed of the means to fulfill the obligation and that under Muslim Law the entire amount of dower has to be paid by the husband to his wife. The husband is bound to pay the Mahr or dower specified and fixed at the time of marriage. The appellant has not categorically taken this plea in the lower Court and there being no evidence on record that he cannot pay the outstanding dower. The point raised by the learned counsel for the appellant being factual in nature cannot be considered by this Court at this belated stage.”
11. As said above that various school of thoughts have divergent opinion about the payment of deferred dower. The kinds of dower have also been discussed in D.F Mulla’s “Principles of Muhammadan Law (by M. Mahmood) in paras/Sections 289-A, 290 and 336(2) which is based on most of the material from the Book ‘Hedaya’ and ‘Bailies Digest of Muhammadan Laws’. For convenience’ sake the above paras /Sections are reproduced, hereunder:--
289-A. Fonfirmation of Dower.--The dower becomes confirmed:--
(a) By consummation of the marriage; or
(b) By a valid retirement (Khilwat-e-Sahiha), or
(c) By the death of either the husband or the wife.
290. “Prompt” and “deferred” dower--
(1) The amount of dower is usually split into two parts, one called “prompt” which is payable on demand and the other called “deferred” which is payable on dissolution of marriage by death or divorce.
336. (2) Dower becomes immediately payable. If the marriage was consummated, the wife is entitled to immediate payment of the whole of the unpaid dower, both prompt and deferred.
If the marriage was not consummated, and the amount of dower was specified in the contract, she is entitled to half of that amount. If no amount was specified all that she is entitled to is a present of three articles of dress.
12. The controversy has also been discussed by Hon’ble Mr. Justice Muhammad Nawaz Abbasi (the then Hon’ble Judge of
Lahore High Court) in a case titled as Dr. Sabira Sultana vs. Maqsood Sulari and others, reported in 2000 CLC Lah. 1384, which has been reported in PLJ 2001 Lah. 472 too. Relevant excerpts from this case are usefully reproduced as under:--
“9. In view of the importance of the matter, Syed Zakir Hussain Shah, an Advocate of this Court, who, is a Law Graduate from Islamic University,
Islamabad, was associated with the proceedings, as amicus curiae to assist the Court. Syed Zakir Hussain Shah, Advocate, in addition to his address has also submitted written arguments. He submitted that in general terms the dower is defined “Muajjal” and “Muwajjal” which is called prompt and deferred. The prompt dower is payable immediately on demand whereas deferred dower is payable at the specified time and that on consummation of marriage, the dower is right of the wife, whether prompt or deferred and there is no differences of opinion between the Jurists regarding the payment of prompt dower at the time of marriage or when it is demanded by the wife. However, the various schools of thoughts have divergent opinion about the payment of deferred dower. According to “Hanfi Fiqa” to which the parties belong if the deferment or postponement of the dower is not specified and is generally described as deferred, this dower will be considered prompt and shall be payable accordingly. The learned counsel in support of this view placed reliance on Kitab-al-Fiq Ala Al-Madhahib-Al-Arbaha by Abdul Rehman Al-Jazairi, Volume 4, page 153, Chapter of Nikah, published at Dar-al-Fikr, and Bidaie-As-Sanaie Fl Tarteeb Ash-Sharaie by Allama Abu Bakr Ala-ud-Din Al-Kasmi Al-Hanifi, Volume II, page 288. He firmly stated that the view that deferred dower is not payable unless the marriage is dissolved is not supported by any recognized principle based on some authority whereas on the other hand, the deferred dower shall always be treated as prompt if no specified period for the payment of dower is fixed. He added that this view being in conformity to the command of Holy Qur’an, therefore, under the provisions of Section 6(5) (a) of the Muslim Family Laws Ordinance, 1961, the immediate payment of the entire amount of dower, whether prompt or deferred is obligatory in such cases.
10. Having heard the learned counsel, I find that notwithstanding the controversy, whether the dower is prompt or deferred, it is established that the dower is an exclusive right of the wife. However, there are no bounds to the quantity or value of the dower, which is left entirely to the will of the husband and wife. The payment of dower should be specified in such a manner so as to remove uncertainty and the payment of dower is the responsibility of the husband. A woman is not obliged to surrender her person till she receives her dower. However, the position may be changed after the marriage is consummated but in any case, the dower being the property of the wife, she can insist for its payment and use as per her right and a husband cannot justifiably deprive her while withholding the payment of dower for an indefinite period on the ground that the dower was Muwajjal or deferred. The only difference of Muwajjal and Muajjal i.e. deferred and prompt is that deferred dower is not payable till the arrival of stipulated period whereas prompt dower is payable immediately on demand and if for the payment of deferred dower no stipulated time is fixed, it would be treated as prompt, payable on demand. Thus, the only distinction between a prompt and deferred downer is that payment of prompt dower cannot be postponed without the consent of the wife, whereas the payment of deferred dower cannot be demanded before the stipulated period and a woman in such case is not at liberty to refuse the embraces of her husband as she has dropped her right of payment of dower till a specified time and if no specified time is fixed the dower described as deferred shall be prompt in nature to be paid on demand. The deferred dower without specification of period or stipulation, shall be payable at any time and if the same is deferred till a particular date or time, it shall not be payable before that date. A woman in case of desertion and neglect of maintenance or in case of contracts of second marriage by the husband without her permission and consent may, with or without asking for Talaq, can justifiably demand payment of dower. The provisions of Section 6(5) of the Muslim Family Laws Ordinance, 1961, in case of second marriage by the husband without dissolution of first marriage or permission of the first wife and an Arbitration Council, protects the right of first wife for immediate payment of dower, whether it has been described as prompt or deferred and this provision of law has no conflict with the Islamic concept of payment of dower. In Islam, the payment of dower is an essential obligation of the husband and failure thereto tantamounts to injustice and inequity. The classification of dower as prompt and deferred has no legal sanction behind it except the general practice in the Muslim Society for the convenience of the parties. Normally, women do not demand payment of full dower which is fixed at the time of marriage and only a portion of the dower is paid before consummation of marriage and the remaining dower is deferred to be paid later which does not mean that either it was waived or was treated as deferred till dissolution of marriage. The concept and wisdom in this classification of dower as prompt and deferred depend upon the better relations of parties and protection of right of a woman in unforeseen circumstances without taking away her right of demand of payment of dower to the first wife or wives on any excuse and the condition of dissolution of marriage for payment of deferred for an indefinite period would postponement of the payment of dower for an indefinite period would not mean that the same cannot be claimed before the dissolution of marriage and if it is considered as such, it would negate the concept of dower in Islam as well as defeat the Muslim Family Laws Ordinance, 1961. A person is not supposed to contract a second marriage without maintaining the first wife and payment of dower and thus, in case of contract of second marriage without payment of dower to the first wife, the law does not permit withholding the payment of dower till the dissolution of marriage. The deferred dower is sort of guarantee for a woman against ill-treatment, non-maintenance, desertion or any other abnormality in the family life including rash and arbitrary divorce whereas the prompt dower is payable either at the time of marriage or at any subsequent time when it is demanded by the wife. Thus, the payment of deferred dower is deemed to be postponed till either the specified time and if no time is specified, till the wife demands it. It is laid down in Holy Qur’an in Verse 124, Sura An-Nisa:
“Seeing that you derive benefit from them, give them their dowers as prescribed.”
There being no classification of the dower as prompt and deferred in the Holy Qur’an and Sunnah, the deferment of the payment of dower for an indefinite period with the consent
of the wife is not prohibited, but if a wife makes demand of
its payment, the husband being under an obligation to
make payment of the same, cannot further defer it on any excuse”.
of the wife is not prohibited, but if a wife makes demand of
its payment, the husband being under an obligation to
make payment of the same, cannot further defer it on any excuse”.
13. The above view of the Lahore High Court has also been followed by an order/judgment of this Court passed by my learned brother Mr. Justice Iftikhar Hussain Butt, Judge Shariat Court AJ&K (as he then was) in Civil Appeal No. 17/2001 dated 27.08.2001 titled “Mohammad Fiaz Khan vs. Mst. Rashida Begum along-with five other family appeals relating to subject proposition in a common judgment dated 20.06.2003 announced at circuit Rawalakot. The relevant portions are reproduced herein below:
ہر چھ متذکرہ بالا اپیل ہا میں ایک ہی نکتہ زیر بحث ہے کہ زر مہر غیر معجل بدوں طلاق یا بدوں موت زوجہ کو نہیں دلایا جا سکتا اسی بنا پر انہیں یکجا کرتے ہوئے حکم ہذا کے ذریعہ یکسو کیا جا سکتا ہے۔
عبارات متذکرہ بالا کی روشنی میں جو معتبر کتب فقہ حنفی سے لی گئی ہیں یہ ثابت ہوتا ہے کہ اگر مہر موجل میں کوئی مدت متعینہ ذکر نہ کی گئی ہو تو ایسی صورت میں کسی بھی وقت عورت مہر کا مطالبہ کر سکتی ہے اور مرد پر اس کی ادائیگی واجب ہو جاتی ہے اور اگر بوقت نکاح مہر موجل میں سے یہ صراحت یعنی وضاحت کر دی جائے کہ مہر بعد از طلاق یا بعد از موت احدالزوجین ادا کیا جائے گا اور عورت اسے تسلیم کر لے ایسی صورت میں عورت کو حق مطالبہ مہر بعد از طلاق یا بعد از موت زوج حاصل ہوگا۔
صورت اول میں یعنی جب مہر موجل میں اگر کوئی مقررہ مدت ذکر نہ کی گئ ہو اور عورت تنسیخ نکاح کی ڈگری حاصل کر لے تو ایسی حالت میں یعنی عورت فوری طور پر مہر کی مستحق ہو گی اور مطالبہ کرنے کی مجاز ہوگی ۔ ۔ ۔ بلکہ یہی منشائ قانون اور تقاضا شریعت ہے جس پر عمل پیرا ہونا عامتہ المسلمین پر لازم ۔ ۔ ۔
14. Keeping in view the above discussion, the relevant columns of impugned Nikah Form have been perused, wherefrom, it transpires that in the Nikkah Form (impugned document) term (معجل) “Mu’ajjal” and (غیر معجل) “Ghair-e-Mu ‘ ajjal” has been incorporated and in the column of Mehr term (موجل) (Mehr-e-Mu’waj jal) has not been used. Whereas, the apex Court of Pakistan in above said “Saadia Usman case” only discussed “Mu’wajjal” and “Mu’ajjal” dower. Therefore, it is pertinent to note that in relevant columns of the Nikkha Form omission of word/term “Mu’wajjal and only use of the term of Mu’ajjal for prompt and Ghari-e-Mu’ajjal for deferred dower seems to have been introduced by the legislature to remove the ambiguity.
15. In continuation of above para, it may further be added that in the Form of Nikkahnamaissued vide Notification No. 2034-41/88 dated 25.05.1988 the terms “Mu’ajjal (معجل) and “Ghair-Muajjal” (غیر معجل) have been used whereby deferred/delayed dower means payable on demand.It will also not be out of place to note that prior to the introduction of the present , Nikkah Form (as is in the impugned Nikkahnama) the words prompt/deferred were not introduced. It is also pertinent to mention that prior to 1985 in this territory, the Nikkah Khawani was being performed by some Religious institution and after the perusal of such a Nikkah Form, the Court noted that in the Nikah Form, there was no column in the terms specifying the kind of dower as prompt or deferred etc, the only column of Mehr/Dower consisting of two sub columns (مہر وصول شدہ) (Received dower) (بقایا مہر) (remaining /balance dower) and this practice remained in field till 1988. It may also be added that in 1985 a Nikkah Form was introduced by Secretariat of Religious Affairs of AJ&K vide Notification No. 85/1024-110/ س اد dated 28.04.85, wherein, the column of dower/Mehr was divided in two categories; (1) (مہر وصول شدہ) (dower received) and (بقایا مہر) (remaining dower). It may further be added that after promulgation of Nikah Registration Act, 1986 this new Nikah Form has been introduced in 1988 vide supra mentioned Government notification dated 25.05.1988, wherein, words “Muajjal” and “Ghair-e-Muajjal” have been incorporated in columns of dower/Mehr. In some of Nikah Forms, the word, عندالطلب (on demand), with the kind of Mehr موجل has also been used, wherefrom, it may be concluded that these, terms have been in practice regarding payment of dower for convenience of the parties as general practice in Muslim society. Hence, it may be stated that the wisdom behind this legislation or introducing this specific term of “Ghair-e-Mu’-ajjal” is to advance the cause of promulgation of family laws, and family ‘Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs including the disputes of Mehr/dower in line with the injunctions of Shariah. It is useful to add that the legislature is wiser than anybody else, hence in this view of the matter it is correct exposition of the term that Mehr “Ghair-e-Mu-ajjal” means deferred dower which becomes “prompt on demand of the wife at any time after consummation of marriage, and the husband is bound to pay the balance amount of the dower to the wife immediately. It may also be stated that term/word “Mu’Wajjal”/Deferred has been omitted with the use of proper wisdom of law makers to remove the ambiguity of (مہرموجل) deferred dower is payable only on the eve of dissolution of marriage by Talaq or death, if there being no condition is specifically stipulated in the instruments of Nikkah.
16. Before concluding the controversy, it is felt expedient to observe that classification of dower as prompt or deferred has no legal sanction behind it, except the general practice in Muslim society for convenience of the parties. In Islam, the payment of dower is an essential obligation of the husband and failure, thereto, tantamounts to injustice and inequity. Normally, women do not demand payment of full dower which is fixed at the time of marriage and only a portion of the dower is paid before consummation of marriage and remaining dower is deferred/to be paid later, which does not mean that either it was waived or was treated as deferred till dissolution of marriage in all cases as a general rule.
17. In the light of above discussion, it can safely be concluded that in view of above rules and view points and principles laid down in above referred judge made law, as well the entries of Nikah Form regarding Mu’ajjal (معجل) and Ghair-e-Mu ‘ajjal (غیر معجل) the dower may by divided in following categories:--
(a) PROMPT DOWER. This term is used for Arabic term, Mehr-e-Mu’ajjal (غیر معجل), where the wife is empowered to receive the dower amount before consummation of marriage and husband is bound to pay it immediately and wife is not obliged to surrender her person till she receives her prompt dower.
(b) DEFERRED DOWER. This term is used for Arabic term/word, “Mehr-e-Muwajjal, (مہر موجل) Mehr-e-Ghair-e-Mu’ajjal’ (مہر غیر معجل) and Mehr-e-Muaakhar (مہر مئوخر).
(i) In case of Mehr-e-Mu’wajjal, (مہر مئوجل), the wife is entitled to recover and husband is bound to pay the dower amount on the date /period fixed for payment of deferred dower and if neither any period is fixed nor any condition is imposed, it will be payable on the eve of dissolution of marriage by death or divorce.
(ii) whereas in case of Mehr-e-Ghair-e-Muajjal (مہر غیر معجل) or Mehr-e-Mu’akhar’(مہر مئوخر) which is also deferred dower but it becomes prompt as and when demanded by the wife after consummation of marriage and on the demand of the wife, the husband is bound to pay the balance dower amount, immediately such as prompt dower.
18. In view of above, in the instant case as spelt out from the record, the dower was demanded by the respondent/wife at the time of Rukhsati and was agreed to be paid within one year. In the circumstances of the case, the trial Court has rightly passed both the judgment and decrees, which warrant no interference by this Court.
19. Resultantly, the instant appeal against the impugned judgment and decrees passed by the learned Senior Civil Judge/ Judge, Family Court Rawalakot dated 31.03.2014 is hereby dismissed, however, the parties are left to bear their own costs.
Order announced. The file shall be consigned to record after due completion, by sending back the record of the Court below.
(R.A.) Appeal dismissed
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