2023 Y L R 193

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J
MUKHTAR AHMAD---Appellant
Versus
DISTRICT JUDGE and others---Respondents
Writ Petition No. 7446 of 2020, heard on 14th October, 2021.
Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Prompt or deferred dower--- Meaning--- Presumption of correctness
attached to Nikahnama---Wife filed suit for recovery of dowry articles and dower through
different suits---Both the suits were contested by the petitioner (husband)---Petitioner also
filed separate suit for restitution of conjugal rights---Trial Court partially decreed the suit
of wife and also decreed the suit for conjugal rights subject to the payment of dower---
Husband filed appeal before Appellant Court, which was dismissed---Held, that there was
no denial regarding the existence of Nikah---However, husband had shown his
reservations regarding column No.16 of the Nikah Nama that land mentioned in that
column was not settled as dower but it was written in the Nikah Nama just to show off---
Amount of prompt dower was Rs.1000 which was mentioned in column No.13 of Nikah
Nama which was payable on demand, whereas, in column No.16 of the Nikah Nama
the property mentioned as 16 kanal was a deferred dower which could only be
payable either in case of separation between the husband and wife or in case of death
of the husband---Ten tolas gold ornaments were mentioned in Nikah Nama but nothing
was mentioned whether the same was prompt or deferred, thus according to law it would
be considered that 10 tola gold ornaments were to be paid on demand, because if the same
had been paid by the petitioner as per his claim ,there must be mentioning of the same in
the Nikahnama---Husband had admitted that Nikahnama was executed and all mentioned
on Nikahnama in the column of witnesses had signed over the same---Witnesses who
appeared in support of the husband's contentions had not shown any reservation about the
genuineness of Nikahnama----However, husband had not produced any independent
reliable confidence inspiring evidence regarding the property mentioned in column No.16
as just a show-off---Two witnesses produced for such purpose were closely related to the
husband---Petitioner could have produced the Nikahkhwan who had solemnized the
Nikah and had filled all the columns of Nikhanama to prove his version, if it was so
settled---Version of the husband that it was for the lady to prove that the same was
written as dower, was not a correct approach because Pert Nikah had the authenticity of
correctness---If the petitioner had any reservation then it was for him to prove the same---
Nikahnama was exhibited in evidence without objection, meaning thereby, all it's contents
were correct and admissible to the husband---Trial Court although had not correctly
interpreted the statement of the petitioner regarding handing over of gold ornaments ,yet
the meaning of the sentence was that the husband had not proved with the evidence that
gold ornaments were paid at the time of Ruksati to the wife---No receipt for the purchase
of gold ornaments was produced, neither any independent evidence was produced in this
regard that at the time of Ruksati gold ornaments was given to the lady as owner, as
mentioned in column No. 16 of the Nikahnama---Word " " was not used in Islamic or
Arabic dictionary for dower, so such word in Nikahnama might then be interpreted as
deferred---Right interpretation of said entry was that such dower was payable but as
deferred, which was a premature demand of the lady at present stage---So to that
extent the prayer of the wife was not correctly decreed by Trial Court and
Appellant Court---Constitutional petition was partly allowed to the extent that the
dower of 10 tola gold ornaments had been correctly decreed in favour of wife and
the dower of 16 kanal land would be treated as deferred dower and
to that extent the claim of the wife was pre-mature and findings of
Trial Court and Appellant Court were reversed, in circumstances.
Shabir Ahmad Malik for Petitioner.
Khurshid Ahmad Bhatti for Respondent No.3.
Date of hearing: 14th October, 2021.
JUDGMENT
SAFDAR SALEEM SHAHID, J.---The petitioner has assailed the concurrent
findings of both the courts below recorded in the judgment and decree dated 28.11.2019,
passed by the Family Court, Bahawalpur and judgment and decree dated 11.09.2020,
passed by the learned Additional District Judge, Bahawalpur.
2. Brief facts necessary for disposal of the writ petition are that respondent No.3 filed
the suit for recovery of dowry articles and dower through two different suits. Both the
suits were contested by the petitioner by raising preliminary legal and factual objections.
The petitioner also filed separate suit for restitution of conjugal rights. After failure of
pre-trial reconciliation efforts between the parties, both the suits were consolidated and
following consolidated issues were framed;-
1. Whether the plaintiff is entitled to get the decree for recovery of agricultural land
measuring 16-Kanal situated in Chak No.8/BC and golden ornaments weighing
10-tolas or alternate its price? OPP
2. Whether plaintiff Tehmina Bibi is entitled to get a decree for recovery of dowry
articles Rs.8,61,500/-? OPP
3. Whether the suit of the plaintiff is not maintainable in its present form and same are
liable to be dismissed? OPD
4. Relief.
Whereafter, the parties produced their evidence. Respondent No.3 herself appeared as
PW-1, whereas, no other witness was produced by respondent No.3. From the petitioner
side, the petitioner himself appeared as DW-1 and got examined two witnesses
Muhammad Zulfiqar as DW-2 and Muhammad Siddique as DW-3. Whereas, Ex.P-2 was
submitted in the statement of learned counsel for respondent No.3, while respondent No.3
in her statement had not submitted any document. The affidavits from both sides were
tendered in the affirmative evidence. Finding the evidence of Respondent No.3 more
convincing the learned Civil Judge decided the issue No.1 in favour of respondent No.3
and decreed 16 Kanal land mentioned in Ex.P-2 against column No.16 and also decreed
10 tolas gold ornaments or alternate market value of the same. Whereas, issue No.2 was
decreed to the extent of dowry articles amounting to Rs.4,50,000/-. The suit for restitution
of conjugal rights of the petitioner was decreed subject to payment of dower. This
judgment and decree was assailed before the court of learned Additional District Judge
and the learned Additional District Judge maintained the judgment and decree passed by
the learned Family Judge and finding that all the issues have been decided according to its
merits, dismissed the appeal of the petitioner. Against both the judgments and decrees, the
present constitutional writ petition has been filed.
3. It was argued by counsel for the petitioner that both the courts have not properly
read the evidence of the parties. The stance of the petitioner has not been properly
appreciated. In support of the fact that the petitioner's stance was very clear in the written
statement, no issue regarding the same was framed by the court. The evidence tendered by
the petitioner was not properly read and discussed by the court. The court has also not
kept in view the point that respondent No.3 was to prove her demand but respondent No.3
had failed to prove anything regarding her demand. There is no corroboration to the
statement of respondent No.3. Ex.P-2 i.e. has not been correctly interpreted by both the
courts below. It was argued that in column No.16, it has been mentioned that the said
property is to be given in dower as deferred dower, but the court below has wrongly
interpreted the wording of the said column, specifically there is mentioning of word
dower but the court has interpreted that since word has been written along with therefore,
it will be read as prompt/on demand dower. It was argued that the petitioner has produced
all the relevant witnesses. Both the courts below have not taken the notice of the evidence
produced by the petitioner. The stance of the petitioner from the very beginning was that
the land was mentioned in column No.16 just on the asking of the father of respondent
No.3, factually, that land was not fixed as dower of the lady. The witnesses have proved
this fact but the court below has not properly appreciated the evidence of the petitioner. It
was argued that it was deferred dower which cannot be interpreted in any way as prompt
dower and the lady is not entitled at this stage to claim the same as marriage is intact
between the parties. It is premature claim/demand of the respondent. It was further argued
that the court has misread the evidence. The learned Civil Judge in his judgment has
mentioned that DW-1/petitioner has stated that he had paid cash to respondent
No.3/plaintiff. It was argued that no such statement was made by the petitioner. The court
itself has assumed regarding the same and the same is the position with the judgment of
the learned Additional District Judge. Neither this statement was made by the petitioner
nor any of his witness has made such a statement regarding the payment of anything,
therefore, the findings of both the courts below on issue No.1 are contrary to the
evidence, therefore, the impugned judgment and decree to this extent be set-aside.
4. Counsel for respondent No.3, on the other hand, resisted the arguments and argued
that (Ex.P-2) is an admitted document. The petitioner has not challenged the contents of
the same before any forum. The statement made by the petitioner is in a way of admission
on his part that the same property mentioned in column No.16 was written in . The other
version taken by the petitioner is not proved as no such evidence is produced by the
petitioner. Regarding the payment of the ornaments, no proof has been given by the
petitioner, court has correctly observed that neither any receipt nor any witness for giving
the said ornaments has been produced by the petitioner. It was argued that in Ex.P-2
against column No.16, it is not mentioned that said gold ornaments have been paid at the
time of or marriage. Therefore, the contention of respondent No.3 is correct and has been
correctly observed by both the courts below that respondent No.3 was entitled for the
gold ornaments mentioned in Ex. P-2. There is no such misreading or non-reading of
evidence. The issues have been settled on its merits. Respondent No.3 herself has
appeared in the witness box and she has stated her claim, whereas, in cross-examination,
the petitioner was unable to bring on record that any of the claim of respondent No.3 was
false.
5. I have heard counsel for the parties, record has been perused.
6. There is no denial regarding the existence of Ex.P-2. However, the petitioner had
shown his reservations regarding column No.16 of Ex.P-2 that this land i.e. 16 Kanal was
not settled as dower but it was written in the just to show-off. There are two questions
before this court;
(i)- Whether the learned Judge Family Court has properly appreciated the evidence and
whether there is any element of non-reading or misreading of the evidence as
pointed out by the petitioner.
(ii)- Whether that interpretation of the court that no amount was paid as against the
ornaments can be considered as the ornaments were not paid by the petitioner.
Secondly, the status of mentioning dower in column No.16 and beside that the
word can it be interpreted as prompt or it is a premature demand of respondent
No.3.
Muhammadan Law confirms in paragraph No.290 that defines prompt and deferred
dower as;-
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.
In "Saadia Usman and another v. Muhammad Usman Iqbal Jadoon and another" (2009
SCMR 1458) it is hold that;
"----S. 5---Muslim Family Laws Ordinance (VIII of 1961), S.9---Constitution of
Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to
consider the correct import of 'deferred dower' and whether it could become
prompt if and when demanded; whether Family Court could not grant maintenance
which instead could be granted by Arbitration Council as mentioned in S.9 of
Muslim Family Laws Ordinance, 1961; whether amount of maintenance decree
commensurated with status and income of husband; whether restitution of conjugal
rights could be allowed subject to condition of separate living of wife with
husband abroad; and whether restitution of conjugal rights could be subjected to
payment of maintenance."
The amount of of Rs.1,000/- dower is mentioned in column No.13 of Ex.P-2 which is
payable on demand, whereas, in column No.16 the property mentioned 16 kanal is a
deferred dower which can only be payable either in case of separation between the
spouses or death of either the husband or wife. So far as 10 tola gold ornaments is
mentioned, there is nothing mentioned in Ex.P-2 whether the same is prompt or deferred,
then according to law, it will be considered that this 10 tola gold ornaments are to be paid
on demand, because if the same had been paid by the petitioner as per his claim, there
must be the mentioning of the same in Ex.P-2. The petitioner has admitted that Ex.P-2
was executed and all the mentioned persons on Ex.P-2 in the column of witnesses had
signed over the same. Even the witnesses appeared in support of the petitioner's
contentions, had not shown any reservation about the genuineness of the document Ex.P-
2. So far as the contention of the petitioner that the property in column No.16 was just
mentioned as show-off is concerned, the petitioner has not produced any independent
reliable confidence inspiring evidence on the same. The two witnesses produced are
closely related to the petitioner. The petitioner could have produced the who has
solemnized the and has filled in the columns of Ex.P-2 to prove his version, if, it was so
settled. The version of the petitioner that it was for the lady to prove that the same was
written as dower, is not a correct approach because has the authenticity of correctness.
And if the petitioner had any reservation then it was for him to prove the same. Ex.P-2
was exhibited in the evidence without objection. Meaning thereby, its all contents are
correct and admissible to the petitioner. The learned Judge Family Court although has not
correctly interpreted the statement of the petitioner regarding handing over of gold
ornaments, yet the meaning of the sentence was that the petitioner had not proved with
the evidence that the gold ornaments were paid at the time of to respondent No.3, as no
receipt for the purchase of the same was produced nor any independent evidence was
produced in this regard that at the time of , the same was given to the lady as dower, as
mentioned in column No.16 of the Ex.P-2. Had it be given to the lady, it would have been
mentioned in Ex.P-2, therefore, the finding on issue No.1 to the extent of gold ornaments
is correctly recorded by both the courts below, in view of evidence of the parties.
7. So far as the interpretation regarding the remaining part of the dower mentioned in
column No.16 of Ex.P-2 is concerned, the citation referred by counsel for respondent
No.3 is not as such applicable to the present proposition, because there is no word " " in
Islamic or Arabic dictionary used for dower. It may be then interpreted as deferred, as the
same has been written in the column against the said condition of Ex.P-2. Therefore,
the right interpretation of this entry is that such dower is payable but as
deferred, which is a pre-mature demand of the lady at this stage. So to
that extent, the prayer of respondent No.3 is not correctly decreed by the
courts below. The finding on issue No.1 to the extent of decreeing 16 kanal land as
prompt dower is hereby set-aside. However, the version of the petitioner is not proved
and has been correctly answered by the courts below that it was just a show-off in Ex.P-2,
but factually, this was a dower fixed between the parties, but it cannot be treated as
prompt, at this stage.
8. Since, the petitioner has not pressed the findings on issues Nos.2 and 3, therefore,
there is no need to discuss and answer the findings on both these issues and findings on
these issues are upheld.
9. Upshot of the discussion is that the petition is partly allowed to the extent that the
dower i.e. 10 tola gold ornaments has been correctly decreed in favour of respondent No.3
and to that extent, the findings of both the courts below are upheld. And the dower of 16
kanal land, will be treated as deferred dower and to that extent, the claim of respondent
No.3 is pre-mature and the findings to that extent of both the courts below are reversed.
This petition is partly allowed.
MHS/M-69/L Petition allowed.

2009 S C M R 1458

[Supreme Court of Pakistan]

Present; Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan

and Raja Fayyaz Ahmad, JJ

SAADIA USMAN and another----Appellants

Versus

MUHAMMAD USMAN IQBAL JADOON and another----

Respondents

Civil Appeals Nos.109, 110, 111 of 2008, decided on 1st April, 2009.

(On appeal from the judgment/order, dated 7-11-2008 passed by the Islamabad High
Court, Islamabad in Writ Petitions Nos.1059, 1060 and 1063 of 2008).

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5---Muslim Family Laws Ordinance (VIII of 1961), S.9---Constitution of Pakistan

(1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider the
correct import of `deferred dower' and whether it could become prompt if and when
demanded; whether Family Court could not grant maintenance which instead could be
granted by Arbitration Council as mentioned in S.9 of Muslim Family Laws Ordinance,
1961; whether amount of maintenance decree commensurated with status and income of
husband; whether restitution of conjugal rights could be allowed subject to condition of
separate living of wife with husband abroad; and whether restitution of conjugal rights
could be subjected to payment.of maintenance.

(b) Islamic Law---

----Dower---Meaning---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.

(c) Islamic Law---

----Dower---Mehr-e-Mu'wajjal---Payment---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.

(d) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5---Deferred dower (Mehr-e-Mu'wajjal)---Recovery---Demand of deferred

dower---Wife filed suit for recovery of deferred dower which suit was decreed in her
favour by Family Court--Judgment and decree passed by Family Court was maintained
by Lower Appellate Court but High Court in exercise of Constitutional
jurisdiction modified judgment and decree in the terms that deferred
dower (would be recoverable at the time of dissolution of marriage
either by death or divorce ---Validity--- Prompt dower was payable on
demand during subsistence of marriage tie whereas deferred dower was
payable on the time stipulated between parties---Where no time was
stipulated, deferred dower did not become "prompt" merely because wife
had demanded the same ---Total amount of dower, in the present case, was fixed at
Rs.10,00,000, prompt dower to the tune of Rs.5,00,000 which was paid at the time of
marriage in shape of gold ornaments etc.---As no time was fixed for payment of
deferred dower of Rs.5,00,000 it would be payable in eventuality of dissolution of
marriage either by death or divorce---Judgment of High Court was based on proper
appreciation of facts and circumstances of case as well as law governing the same---
Supreme Court declined to interfere in' the judgment passed by High Court---Appeal
was dismissed.
Kitabul Fiqh by Abdur Rehman Al-Jaziri; Fatawa-i-Kazee Khan; Darul Mukhtar; Sura
Al-Nisa V.4:4; Translation of the meanings of the Noble Qur'an by Dr. Muhammad
Tagi-ud-Din Al-Hilali and Dr. Muhammad Muhsin Khan; Tafseer Mazhari Vol.1 by
Qazi Muhammad Sanaullah Usmani; Ziaul Qur'an Vol. 1 by Pir Muhammad Karam
Shah; Ma'aariful Qur'an Vol. II by Mufti Muhammad Shafi; Tafseer Durr-e-Manthur
(translation), by Pir Muhammad Karam Shah; Tafseer Namoona Vo1.II (translation) by
Syed Safdar Hussain Najfi; Urdu Encyclopaedia of Islam, Vol. XXI; Kitab-al-Fiqh al-
al-Madhahab-al-arba'a; Mahomedan Law by D.F. Mulla; Haqooq-e-Zaujain (Rights 'of
the Spouses), p.32, by Maulana Abut Aala Moududi; Eidan v. Mazhar Hussain (1877) 1
All. 483; Taufik-un-Nissa v. Ghulam Kambar (1877) 1 All. 560; Fatima Bibi v.
Sadruddin (1865) 2 Bom. HC 291; Nasiruddin Shah v. Mst. Amatul Mughani Begum (1948)
Lab. 135 and Commentaries on Mahommedan Law by Syed Ameer Ali, Edition 2007 p.1382
rel.

Abdul Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-
Record for Appellants (in Civil Appeal No.109 of 2009) and for Respondent (in Civil
Appeals Nos.110 and 111 of 2009).

Abdul Rashid Awan, Advocate Supreme Court for Respondent (in Appeal No.109 of 2009)
and for Appellants (in Appeals Nos.110 and 111 of 2009).
Date of hearing: 1st April, 2009.

JUDGMENT

IFTIKHAR MUHAMMD CHAUDHRY, C.J.--- The instant appeals, by leave of the

Court, are directed against the judgment, dated 7-11-2008 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?

(ii) Whether the Family Court cannot, grant maintenance which instead can be
granted by any Arbitration Council as mentioned in section 9 of Muslim Family Laws
Ordinance, 1961?

(iii) Whether the amount of maintenance decree is commensurate with the status and
income of the husband?

(iv) Whether the restitution of conjugal rights be allowed subject to condition of

separate living of the wife with husband abroad?

(v) Whether the restitution of conjugal rights can be subjected to the payment of
maintenance?

It was further directed that till the decision of the appeals, the husband
shall pay maintenance at the rate of Rs.7,000 per month which shall be provisional as
well as the tentative depending upon the final decision by this Court.

2. The facts of these appeals, in brief, are that Mst. Saadia Usman, appellant in Civil Appeal
No.109 of 2009 (hereinafter referred to as "the appellant") filed a suit for recovery of dower,
dowry articles and maintenance allowance against her husband Usman Iqbal Jadoon,
respondent in Civil Appeal No.109 of 2009 (hereinafter referred to as "the respondent")
before the Family Judge, Islamabad. The learned trial Court vide its judgment and decree,
dated 24-3-2008 decreed the suit and held the appellant entitled to the recovery of dower
amount of Rs.5,00,000. Further, the appellant and her minor daughter Minal Usman were
allowed maintenance @ Rs.7,000 per month each from the date of desertion i.e. February,
2005 till they were legally debarred. As far as the suit of the respondent for restitution of
conjugal rights was concerned, the same was conditionally decreed in his favour subject to
payment of dower, maintenance and making arrangements for the departure of the appellant
along with her daughter to Australia where the respondent was then posted.

3. The appellant preferred Appeal No.39 of 2008 before the District Judge, Islamabad, for
enhancement of maintenance allowance. The learned Additional District Judge, Islamabad on
whose file the appeal was transferred, allowed it vide judgment, dated 19-6-2008 and
enhanced the amount of maintenance to Rs.10,000 per month each .for both the appellant and
her daughter from the date of decision. The respondent also preferred two appeals bearing
Appeals Nos.46 and 47 of 2008 against the judgment of the trial Court, which were dismissed
through the same judgment, dated 19-6-2008.

4. Being aggrieved of the said. judgment, the parties filed three Writ Petitions Nos.1059 and
1060 and 1063 of 2008, which were dismissed vide impugned judgment with the
modification in the judgment of the learned Additional District Judge that the decree for
recovery of the dower in the sum of Rs.5,00,000 shall be recoverable subject to law at the
time of dissolution of marriage by death or divorce. Thus, the decree qua recovery of dower
was set aside. Hence the instant appeals with the leave of this Court the appellant
challenging. the judgment of the High Court qua recovery of dower and the respondent
seeking to set aside the decree for payment of maintenance to the wife and the daughter.

5. In passing the impugned judgment, the learned Single Judge of the High Court placed
reliance on passages from the books titled "Kitabul Fiqh" by Abdur Rehman Al-Jaziri,
"Fatawa-i-Kazee Khan" and "Darul Mukhtar" and reached the following conclusions:---

(i) the amount of dower is fixed with the agreement of the parties to the marriage;

(ii) the dower fixed can be prompt or deferred or partly prompt and partly deferred.
Prompt dower is payable immediately on demand;

(iii) the deferred dower shall be payable on a date or time agreed between the parties;
and

(iv) it is more appropriate that date or time agreed for payment of deferred dower be
certain. It may be agreed between the parties that the deferred dower shall be payable
on the happening of a certain event like divorce or death.

The learned Single Judge observed that in Pakistan and India, if no date or time was specified
for the payment of the deferred dower, it was considered as if it was payable at the time of
dissolution of marriage by death or divorce.

5-A. Though leave was granted to consider different questions of law, as is apparent from the
leave granting order reproduced above, but at the hearing the learned counsel for the. parties
confined their arguments to only one point, namely, the payment of dower, prompt and
deferred. The learned counsel for the appellant contended that the learned Single Judge of the
High Court, by making payment of deferred dower dependent on the eventuality of death or
divorce, failed to appreciate the significance of "dower" in a contract of marriage in the
Islamic polity, inasmuch as it was obligatory upon the husband to pay dower to the wife
happily (Sura Al-Nisa V.4:4). According to the learned counsel, the question of paying the
dower happily in the eventuality of dissolution of marriage by divorce did not arise, inasmuch
as the parties were afflicted with bad feelings against each other, therefore, no husband would
pay it happily at the time of divorce. Hence, according to the learned counsel, the whole of
dower was payable on demand.

6. On the other hand, learned counsel for the respondent contended that, the Verse of the
Holy Qur'an cited by the learned counsel for the appellant had been interpreted by renowned
jurists of Islam since long and the proposition that the deferred dower was payable on
dissolution of marriage by death or divorce was well-settled, therefore, no case for
interference with the impugned judgment was made out.

7. We have given our anxious consideration to the arguments advanced by the learned
counsel for the parties and have also perused the impugned judgment of the learned Single
Judge of the Islamabad High Court.

8. The command of Allah (SWT) given in the Holy Qur'an (Sura An-Nisa, V. R:4) reads as
under:--

"At the time of marriage, give the women their dowers willingly as an obligation; but
if they, by their own free will, give up to you a portion of it then you may enjoy it
with pleasure."1

1. English Translation of the Meaning of Al-Qur'an by Muhammad Farooq-i-Azam Malik,

published by the Institute of Islamic Knowledge, Houston Texas, U.S.A.

The English rendering of the above Verse, given in the "Translation of the meanings of the
Noble Qur'an" by Dr. Muhammad Taqi-ud-Din Al-Hilali and Dr. Muhammad Muhsin Khan,
published by the King Fand Complex for the Printing of Holy Qur'an, Madniah, Kingdom of
Saudi Arabia reads as under:---

"And give to the women (whom you marry) their Mahr (obligatory bridal-money
given by the husband to his wife at the time of marriage) with a good heart; but if
they, of their own good pleasure, remit any part of it to you, take it, and enjoy it
without fear of any harm (as Allah has made it lawful)."

At another place in the Holy Qur'an, Allah (SWT) says:---

"Made lawful to you this day are At-Tayyibat (all kinds of Halal (lawful) foods,
which Allah has made lawful (meat of slaughtered eatable animals, milk products,
fats, vegetables and fruits). The food (slaughtered cattle, eatable animals) of the
 people of the Scripture (Jews and Christians) is lawful to you and yours is lawful to
them. (Lawful to you in marriage) are chaste women from the believers and chaste
women from those who were given the Scripture (Jews and Christians) before your
time when you have given their due Mahr (bridal-money given by the husband to his
wife at the time of marriage), desiring chastity (i.e. taking them in legal wedlock) not
committing illegal sexual intercourse, nor taking them as girl friends. And whosoever
disbelieves in Faith [i.e. in the Oneness of Allah and in all the other Articles of Faith
i.e. His (Allah's) Angels, His Holy Books, His Messengers, the Day of Resurrection
and Al-Qadar (Divine Preordainments)], then fruitless is his work; and in the
Hereafter he will be among the losers." 2

2. Surah Al-Ma'idah V.G:5 ["Translation of the meanings of the Noble Qur'an" by Dr.
Muhammad Taqi-ud-Din Al-Hilali and Dr. Muhammad Muhsin Khan, published by the King
Fand Complex for the Printing of the Holy Qur'an, Madinah, Kingdom of Saudi Arabia].

9. The relevant excerpts from various Commentaries of the Holy Qur'an e.g. Tafseer Mazhari,
Vol.I by Qazi Muhammad Sanaullah Usmani, Ziaul Qur'an, Vol.I by Pit. Muhammad Karam
Shah, Ma'aariful Qur'an, Vol.II by Mufti Muhammad Shafi, Tafseer Durr-e-Manthur
(translation) by Pir Muhammad Karam Shah and Tafseer Namoona Vol.II (translation)' by
Syed Safdar Hussain Najfi are reproduced below:---

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:---

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:---

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). 3 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. The same view is incorporated in para.290 of the Mahomedan Law by
D.F. Mulla, which reads thus:---

3. Maulana Abul Aala Moududi, a renowned jurist of Pakistan of the modern times, in his
booklet, titled "Haqooq-e-Zaujain" (Rights of the Spouses), p.32 has taken the view that
deferred dower is payable on demand. He has dissented with the opinion of the jurists
who held that the deferred dower would be payable after the death of the husband.

"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.

(2) Where it is not settled at the time of marriage whether the dower is to be
prompt or deferred then according to the Shia Law, the rule is to regard the
whole as prompt but according to the Sunni Law, the rule is to regard part as
prompt and part as deferred, the proportion referable to each class being
regulated by custom, and, in the absence of custom, by the status of the parties
and the amount of the dower settled."

14. In Eidan v. Mazhar Hussain (1877) 1 All. 483, the Court fixed one-fifth of the
dower of Rs.5,000 as "prompt", the wife having been a prostitute. In Taufik-un-Nissa v.
Ghulam Kambar (1877) 1 All. 560, the Court held that a third of dower of Rs.51,000
was reasonable as "prompt" and the same proportion was fixed in Fatima Bibi v.
Sadruddin (1865) 2 Bom. HC 291. In Nasiruddin Shah v. Mst. Amatul Mughni Begum
(1948) Lah. 135, it was held that in absence of any custom, the presumption is that it is
half and half. In all these cases, the parties were Sunnis and the marriage contract was
silent as to whether the dower was to be prompt or deferred. 4

4. In Sheikh Muhammad v. Ayesha Beebi (1938) Mad. 609, the Madras High Court,
however, took the view that whether the parties are Shias or Sunnis dower must be
presumed to be prompt unless payment of the whole or any part of the dower is
expressly postponed.

15. In the book titled "Commentaries on Mahommedan Law" by Syed Ameer Ali, Edition
2007, at page 1382, prompt and deferred dower are discussed as under:--

"As there is nothing in the Koran or in the traditions tending to show that the
integral payment of the dower prior to consummation is obligatory in law, the
later jurisconsults, says M. Sautayra, have held that a portion of the Mahr should
be considered payable at once or on demand, and the remainder on the
dissolution of the contract, whether by divorce or the death of either of the
parties. The portion which is payable immediately is called the Mahr-i-Muajjal,
 "prompt" or "exigible", and a wife can refuse to enter the conjugal domicile until
the payment of the prompt portion of the dower. The other portion is called
Mahr-i-Muwajjal, "deferred dower", which does not become due until the
dissolution of the contract. It is customary in India to fix half the dower as
prompt and the remaining moiety as deferred or "postponed, but the parties are
entitled to make any other stipulation they choose. For example, they may allow
the whole amount to remain unpaid until the death of either the husband or the
wife. Generally speaking, among the Musalmans of India, the deferred dower is a
penal sum, which is allowed to remain unpaid with the object of compelling the
husband to fulfil the terms of the marriage-contract in their entirety."

16. Thus, we are of the opinion that prompt dower is payable on demand during the
subsistence of the marriage tie whereas the deferred dower is payable on the
time stipulated between the parties, but where no time is stipulated, it is
payable on dissolution of marriage either by death or divorce. But, the
deferred dower does not become "prompt" merely because the wife has
demanded it . In the instant case, the total amount of dower was fixed at
Rs.10,00,000. The prompt dower is to the tune of Rs.5,00,000 was paid at the time of
marriage in the shape of golden ornaments, etc. Since no time was fixed for payment of
the deferred dower of Rs.5,00,000, it would be payable in the eventuality of dissolution
of marriage either by death or divorce.

17. We are satisfied that the judgment of the learned Single Judge of the High Court is
based on proper appreciation of the facts and circumstances of the case as well as the law
governing the same. The learned counsel for the appellant was unable to make out a case for
interference with the impugned judgment.

18. The learned counsel for the respondent confined his arguments to defending the
impugned judgment on the issue of payment of dower and did not raise any other issue before
us. We, therefore, find no merit in the appeals filed by the respondent.

19. Resultantly, all the three appeals, filed, one by the appellant and two by the respondent
against the impugned judgment, are thus, dismissed but the parties left to bear their own
costs.

M.H./S-40/SC Appeal dismissed.

2022 Y L R 2067
[Lahore]
Before Faisal Zaman Khan, J
MUHAMMAD RAFIQUE---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE SIALKOT and others---Respondents
Writ Petition No.250881 of 2018, heard on 1st December, 2021.
(a) Family Courts Act (XXXV of 1964)---
----S. 5, Sched.---Muslim Family Laws Ordinance (VIII of 1961), S. 10---Suit for
recovery of dower---Deferred dower---Scope---Petitioner (husband) assailed judgments
and decrees passed by courts below whereby respondent's (wife's) claim for recovery of
dower amount was decreed---Contention of petitioner was that the marriage between the
parties was still intact, therefore, the dower which was deferred in nature could not
have been granted to the respondent---Validity---Prompt dower of the respondent was paid
and deferred dower was also fixed regarding which no timeframe was given as to when it
could be claimed by respondent---Deferred dower could only be paid to respondent either
at the culmination of marriage or at the death of petitioner---Petitioner himself had
admitted that he had divorced the respondent, as such, she was entitled to claim and
recover the deferred dower---Constitutional petition was dismissed.
Saadia Usman and another v. Muhammad Usman Iqbal Jadoon 2009 SCMR 1458 ref.
(b) Muslim Family Laws Ordinance (VIII of 1961)---
----S. 10--- Dower--- Scope--- 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. [p. 2069]
B
Saadia Usman and another v. Muhammad Usman Iqbal Jadoon (2009 SCMR 1458 ref.
(c) Muslim Family Laws Ordinance (VIII of 1961)---
----S. 7--- Talaq (Divorce)--- Scope---Where husband had pronounced divorce during
pregnancy of wife and the period of 90 days as contemplated in Muslim Family Laws
Ordinance, 1961, had expired during the period of pregnancy, High Court observed that
the divorce between the parties became effective immediately on the birth of the child.
 Malick Shahbaz Ahmad for Petitioner.
Naeem Shahzad for Respondents Nos. 3 and 4.
Date of hearing: 1st December, 2021.
JUDGMENT
FAISAL ZAMAN KHAN, J.---Through this petition, judgments and decrees dated
03.07.2018 and 07.11.2018 passed by respondents Nos. 2 and 1, respectively have been
assailed. By virtue of the former judgment, a suit for recovery of maintenance allowance
and dower filed by respondents Nos. 3 and 4 against petitioner has been decreed only to
the extent of recovery of maintenance allowance and through the latter, the appeal filed
by said respondents has been accepted and a decree for recovery of dower has also been
passed.
2. Facts giving rise to the present petition are that marriage was solemnized between
petitioner and respondent No.3 on 07.09.2016 and out of this wedlock, respondent No.4
was born. Due to altercation between the spouses, a suit for recovery of maintenance
allowance and dower was instituted by respondents Nos. 3 and 4 against petitioner in
which the latter filed his written statement. Out of divergent pleadings of the parties, as
many as 04 issues were framed; evidence pro and contra was led, whereafter, through
judgment and decree dated 03.07.2018, the suit was decreed to the extent of recovery of
maintenance allowance, however, the relief of recovery of dower was refused. Feeling
aggrieved, both the parties preferred their respective appeals which were decided through
consolidated judgments and decrees dated 07.11.2018. The appeal filed by respondents
Nos. 3 and 4 was accepted whereby respondent No.3 was held entitled for recovery of
dower whereas the appeal filed by petitioner was dismissed, therefore, this petition.
3. Learned counsel for the petitioner submits that the bone of contention between the
parties is with regard to decree passed in favour of respondent No. 3 qua recovery of
dower. He further submits that marital bond between the parties is still intact therefore the
dower which was deferred in nature could not have been granted to respondent No.3.
4. Replying to the above, learned counsel for respondents Nos. 3 and 4 submits that in
his written statement, petitioner has acknowledged that he has divorced respondent No.3.
He has also drawn the attention of this Court towards Exh.P-2 which is copy of an FIR
registered at the behest of petitioner in which he has also acknowledged that he has
divorced respondent No.3. In the above backdrop, he asserts that respondent No.1 keeping
in view the above stipulation rightly decreed the suit qua recovery of dower.
5. Arguments heard. Record perused.
6. The moot question which requires determination by this Court is as to whether
respondent No.3 was entitled to recover the dower.
7. According to Exh.P-4 (which is copy of Nikahnama), in columns Nos. 13 and 14, it
has been mentioned that total dower was fixed as Rs.500,000/- out of which Rs.5000/-
was prompt which was paid at the time of marriage and the remaining amount
(Rs.495,000/-) was deferred.
7(sic). While drawing a distinction between prompt and deferred dower, the Hon'ble
Supreme Court of Pakistan in the judgment reported as Saadia Usman and another v.
Muhammad Usman Iqbal Jadoon (2009 SCMR 1458) has held that prompt dower is paid
on demand whereas the deferred dower is paid either on the dissolution of marriage or the
death of husband. In the said judgment, the Honourable Apex Court has created an
exception in cases of payment of deferred dower and it has been held that if some time
frame 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 the death of husband.
8. Placing the afore-noted distinction in juxtaposition with the facts of present case, a
perusal of Exh.P-4 would show that Rs.495,000/- was fixed as deferred dower and since
there was no time frame given as to when the said dower can be claimed by respondent
No.3, therefore, keeping in view the case of Sadia Usman (supra), the said dower could
only be paid to respondent No.3 either at the culmination of marriage or the death of
petitioner thus the reason given by respondent No.1 for granting decree is incorrect.
9. In the above circumstances, a perusal of the plaint would show that it was alleged
that respondent No.3 has been divorced by the petitioner and in paragraph No.3 of his
written statement, it was acknowledged by petitioner that he divorced respondent No.3.
The said fact is further fortified from Exh.P-7 which is copy of FIR No.104/2018 dated
21.04.2018 registered under section 379, P.P.C. at Police Station Airport Sialkot wherein
it has also been acknowledged by petitioner that he has sent notice of divorce to
respondent No.3.
10. In view of the afore-referred admission made by petitioner, since he himself has
acknowledged that he has divorced respondent No.3, therefore, keeping in view
Article/Section/Para 290 of the Mohammedan Law, respondent No.3 is entitled to claim
the deferred dower, hence, a decree has rightly been passed by respondent No.1 in favour
of respondent No.3.
11. Great emphasis has been laid by learned counsel for the petitioner on the fact that
marriage between the parties is still intact for the reason that a suit for restitution of
conjugal rights was filed by petitioner which was decreed on the statement made by
respondent No.3 and thereafter respondent No.3 gave birth to another daughter. The said
assertion of the petitioner will be of no help for the reason that suit for restitution of
conjugal rights was decreed on 19.02.2018 whereas the FIR (Exh.P-7) was registered on
21.04.2018 i.e. after passing of the decree for restitution of conjugal rights wherein it has
been acknowledged by the petitioner that he has divorced respondent No.3 and since there
is nothing on record wherefrom this could be established that notice of divorce sent by
petitioner to respondent No. 3 was ever withdrawn. Moreover, when petitioner
pronounced divorce and at that point in time respondent No. 3 was pregnant and the
period of 90-days as contemplated in the Muslim Family Laws Ordinance, 1961 expired
during the period of pregnancy, the divorce between the parties became effective
immediately on the birth of the child.
12. For what has been discussed above, since the learned counsel for the petitioner has
not been able to highlight any jurisdictional defect or procedural impropriety in the
impugned judgments and decrees passed by respondent No.1, therefore, no ground for
interference is made out, as a sequel to which, this petition fails and the same is
dismissed.
SA/M-90/L Petition dismissed.
2020 M L D 1008
[Lahore (Multan Bench)]
Before Tariq Saleem Sheikh, J
Dr. NOOR MUHAMMAD SALEEMI SAGGU---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE and another---Respondents
Writ Petition No. 14480 of 2019, decided on 6th December, 2019.
Muslim Family Laws Ordinance (VIII of 1961)---
----S. 10---Dower---Deferred dower---Scope--- Wife sought recovery of deferred
dower during subsistence of marriage---Validity ---Prompt dower was payable on
demand during subsistence of the marriage tie whereas the deferred dower was
payable on the time stipulated between the parties, but where no time was
stipulated, it was payable on dissolution of marriage either by death or
divorce---Deferred dower did not become "prompt" merely because the wife
had demanded it ---High Court observed that the wife was not entitled to recover her
dower at this stage and her suit was premature---Constitutional petition was allowed, in
circumstances.
Saadiq Usman and another v. Muhammad Usman Iqbal Jadoon and another 2009
SCMR 1458 fol.
Muhammad Azam v. Additional District Judge and others 2006 YLR 33; Muhammad
Shabbir v. Rehana Kausar and others PLD 2013 Lah. 102; Joodat Kamran Alvi v.
Additional District Judge and others 2012 MLD 1466 and Muhammad Sajjad v.
Additional District and Sessions Judge and 2 others PLD 2015 Lah. 405 distinguished.
Shah Daraz Khan v. Mst. Naila and 3 others 2015 MLD 73 and Mst. Mehnaz Mai v.
Ghulam Abbas and 2 others 2018 CLC Note 104 ref.
Malik Ashiq Muhammad Jamal for Petitioner.
Muhammad Saqib Naeem Chaudhry for Respondent.
Date of hearing: 6th December, 2019.
JUDGMENT
 TARIQ SALEEM SHEIKH, J.---This petition under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973, assails the vires of judgment and
decree dated 23-7-2019 passed by the Additional District Judge, Multan, whereby he set
aside the judgment and decree of the learned Family Court, Multan, dated 14-5-2019.
2. Brief facts giving rise to this petition are that on 1-1-1992 the Petitioner contracted
marriage with Respondent No.2 for which 50 tolas gold was fixed as dower. Although the
nuptial tie still subsists there are serious differences between them. On 2-2-2017
Respondent No.2 filed a suit against the Petitioner in the Family Court for recovery of
dower. The Petitioner contested the suit on facts as well as on legal grounds. However,
his main plea was that her claim was premature because the Nikahnama specifically
mentioned it as deferred dower which was payable on dissolution of marriage by death or
divorce. The learned Family Court framed issues on the basis of divergent pleadings of
the parties, recorded evidence and while upholding the Petitioner's contention dismissed
the suit. Respondent No.2 preferred an appeal which was accepted by the learned
Additional District Judge vide impugned judgment and decree dated 23-7-2019. It is,
however, important to point out that the learned Appellate Court did not give any detailed
reasons for overturning the decision of the learned Family Court except holding that it
was contrary to the dictates of the Holy Quran and the law enunciated by the Hon'ble
Supreme Court of Pakistan which is binding on all courts under Article 189 of the
Constitution.
3. The learned counsel for the Petitioner contends that prompt dower is payable on
demand during subsistence of the marital tie whereas deferred dower is payable at the
time specified by the parties. However, when no time is stipulated it is payable on
determination of marriage by death or divorce. Deferred dower does not become "prompt"
merely because the wife has demanded it. He has argued that the impugned judgment and
decree dated 23-7-2019 proceeds on a wrong premise and the learned Additional District
Judge has erred in reversing the judgment and decree passed by the learned Family Court.
The learned counsel has relied on Saadiq Usman and another v. Muhammad Usman Iqbal
Jadoon and another (2009 SCMR 1458), Shah Daraz Khan v. Mst. Naila and 3 others
(2015 MLD 73), and Mst. Mehnaz Mai v. Ghulam Abbas and 2 others (2018 CLC Note
104).
4. On the other hand, the learned counsel for Respondent No.2 has controverted the
above contentions and supported the impugned judgment and decree. He contends that the
dower fixed can be prompt or deferred or partly prompt and partly deferred. Prompt
dower is payable immediately on demand while the deferred dower is payable on a date
or time agreed by the parties. However, it is incorrect to suggest that deferred dower is
payable only on death or divorce. He has placed reliance on Muhammad Azam v.
Additional District Judge and others (2006 YLR Lah. 33) Muhammad Shabbir v. Rehana
Kausar and others (PLD 2013 Lah. 102), Joodat Kamran Alvi v. Additional District Judge
and others (20121 MLD 1466) and Muhammad Sajjad v. Additional District and Sessions
Judge and 2 others (PLD 2015 Lah. 405).
5. Arguments heard. Record perused.
6. Nikah is central to the concept of marriage in Islam. It is through marriage that the
paternity of children is established and relationship and affinity of children are traced.
Mahr or dower is generally considered to be an integral part of the marital union under
Islamic law. Abdul Rahim 1 defines Mahr as "a sum of money or other form of property to
which the wife becomes entitled by marriage". He points out that it is not a consideration
proceeding from the husband for the marriage but is an obligation imposed by law on the
husband as a mark of respect for the wife. It is for her sole benefit and exclusive use and
benefit.
7. Syed Ameer Ali 2 writes that even before Islam there existed concept of ante-nuptial
settlements. In the ancient times it was customary for the husbands to make payments to
their wives as a means of support and protection against arbitrary exercise of power of
divorce. The Jewish law insisted upon specification of the total amount of debt prior to
the contract of marriage and considered all marriages without consideration as invalid.
Among Hebrews the dower settled on the wife was not made over to her immediately.
She acquired right thereto only when the marriage was dissolved either by the death of
the husband or by divorce in which eventuality it was made over to her and she could
enjoy or dispose it of as she desired.
8. "The mahr of the Islamic system is similar in all its legal incidents to the donatio
propter nuptias of the Romans", writes Syed Ameer Ali. "It is a settlement in favour of
the wife made prior to the completion of the marriage-contract in consideration of
marriage. There is, however, this essential difference between the Roman donatio propter
nupties and the Mahr of the Musulmans, that whereas the former is purely voluntary on
the part of the husband, the latter is absolutely obligatory. 'Mahr or dower is so
necessary', says the Fatawai Kazi Khan, 'to the marriage, that if it were not mentioned at
the time of the marriage, or in the contract, the law will presume it by virtue of the
contract itself'."
9. The wife or her guardian may stipulate any sum however large as dower at the time
of marriage. If no sum is specified the wife is entitled to the dower which is customarily
fixed for the females of her family (Mahr-ul-Misal).
10. There is nothing in the Holy Quran or the Ahadith which may show that the
payment of entire dower in mandatory before consummation of marriage. The Islamic
jurists have, therefore, held that the parties may contract that only a portion of the dower
would be payable at once while the remainder would be deferred. The portion that is
payable immediately is called "Mahr-i-Mu'ajjal" or "prompt" or "exigible" while the other
is described as "Mahr-i-Muwajjal" or "deferred dower". The former can be realized by the
wife at any time before or after consummation and she can refuse conjugal union until that
is paid. There is difference of opinion among Hanafi and Shia schools of thought as how
the matter should be dealt with where no time is specified for the payment of dower or
where its nature is described only in general terms in the contract of marriage and it is not
stated how much thereof is prompt and what portion is deferred. Para-290 of the
Mahomedan Law by D.F. Mulla elucidated the law on this issue as follows:
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.
(2) Where it is not settled at the time of marriage whether the dower is to be prompt or
deferred, then according to Shia law the rule is to regard the whole as "prompt"
 but according to the Sunni law, the rule is to regard part as prompt and part as
deferred, the proportion referable to each class being regulated by custom, and, in
the absence of custom, by the status of the parties and the amount of the dower
settled.
11. Section 10 of the Muslim Family Laws Ordinance, 1961, resolved a part of the
aforementioned controversy by enacting that where marriage contract does not specify
whether the dower is prompt or deferred then the whole of it would be payable on
demand. The said section is reproduced hereunder for ready reference:
10. Dower --- Where no details about the mode of payment of the dower are specified
in the nikahnama or the marriage contrast, the entire amount of the dower shall be
presumed to be payable on demand.
12. The situation where a part of the dower is Mu'wajjal but the time of its payment
has not been specified is quite contentious. The Hon'ble Supreme Court of Pakistan was
called upon to resolve the controversy in Saadia Usman and another v. Muhammad
Usman Iqbal Jadoon and another (2009 SCMR 1458). Endorsing D.F. Mulla's view
expressed in para 290, supra, it ruled as under:
"It is clear from the passages just quoted from the book titled "Kitab-al-fiqh al-
Madhahab-al-atba'a" that the Hanafi jurists allow both categories of Mahr.
Mu'ajjal, (prompt, i.e. immediately payable) and Mu'wajjal (deferred), i.e. payable
latter, 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".
The Court further held:
"Thus, we are of the opinion that prompt dower is payable on demand during the
subsistence of the marriage tie whereas the deferred dower is payable on the time
stipulated between the parties, but where no time is stipulated, it is payable on
dissolution of marriage either by death or divorce. But the deferred dower does not
become "prompt" merely because the wife has demanded it".
13. In the instant case, in order to prove the claim that she was entitled to recover
dower from the Petitioner, Respondent No.2 herself appeared as PW-1, tendered her
affidavit in evidence as Exh.P-1, Nikahnama Exh.P-3 and a copy of the salary slip of the
Petitioner as Mark-A. On the other hand, the Petitioner himself appeared as DW-1 and
submitted his affidavit in evidence as Exh.D-1.
14. The parties do not dispute the contents of Nikahnama Exh.P-2. They only differ on
the interpretation and legal impott of Column No.13 thereof which states that 50 tolas
gold has been fixed as Mahr Ghair Mu'ajjal. In our country the said term is
interchangeably used with Mahr-i-Mu'wajjal and connotes deferred dower. Admittedly,
the marriage between the parties is still subsisting. In view of the law laid down by the
Hon'ble Supreme Court in Saadia Usman's case, supra, I am inclined to agree with the
learned counsel for the Petitioner that Respondent No.2 is not entitled to recover her
dower at this stage and that her suit is premature.
15. A few words. about the case-law cited by the learned counsel for Respondent No.2.
The first is Muhammad Shabbir v. Rehana Kausar and others (PLD 2013 Lah. 102). In
that case the man had contracted second marriage without the permission of his first wife
or the Arbitration Council. It is pertinent to point out that while deciding the said case the
learned Judge referred to Dr. Anees Ahmad v. Mst. Usma (PLD 1998 Lah. 52), and
Muhammad Azam v. Additional District Judge and others (2006 YLR 33) to observe that
Islamic law does not recognize distinction between prompt and deferred dower. I am
afraid, reliance on these cases was misplaced in view of the fact that Saadia Usman's case
of tte Supreme Court ruled to the contrary. Similarly, the cases reported as Joodat Kamran
Alvi v. Additional District Judge and others (2013 MLD 1466), and Muhammad Sajjad v.
Additional District and Sessions Judge and 2 others (PLD 2015 Lah 405) are in nonflict
with the dictum, laid down in Saadia Usman's case, supra. As a matter of fact, they do not
consider it at all.16. For the reasons explicated above, this constitutional petition is
allowed. Judgment and decree dated 23-7-2019 passed by the learned Additional District
Judge is set aside and that of the learned Family Court is restored. No order as to costs.
SA/N-1/L Petition allowed.

2018 C L C Note 104

[Lahore (Bahawalpur Bench)]
Before Mujahid Mustaqeem Ahmad, J
Mst. SHEHNAZ MAI---Petitioner
Versus
GHULAM ABBAS and 2 others---Respondents
W.P. No. 363 of 2013/BWP, decided on 6th April, 2018.
Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Suit for recovery of maintenance allowance and dower by wife---
Quantum of maintenance allowance---Scope---Entry in Nikahnama---Presumption of
truth---Scope---Stipulation in Column No. 17 of Nikahnama; undertaking by husband to
give residential house to the wife---Effect---Deferred dower---Scope---Petitioner/wife
contended that Appellate Court had wrongly awarded her maintenance allowance lesser
than the amount already incorporated in Column No.20 of the Nikahnama---Wife also
claimed 5-marlas house as per stipulation in Column No. 17 of Nikahnama ---Husband
contended that Appellate Court had rightly set aside decree in favour of wife regarding
the house as only civil suit could be filed regarding such stipulation in the Nikahnama---
Validity---Record revealed that both the parties with their consent, even prior to the
accrual of dispute regarding quantum of maintenance, had settled maintenance allowance
@ Rs. 5000/- per month---Courts below had not, while fixing maintenance allowance for
the wife, taken into consideration said vital condition---Husband was bound by self-
imposed condition---Neither any valid reason had been pleaded nor existed to depart from
such condition---Observation of the Appellate Court regarding stipulation of house in the
Nikahnama, was not in consonance with law as per entries against Column No. 17 of
exhibited Nikahnama, husband had agreed to give 5-marla residential house to the wife
and under the law, presumption of truth was attached to the entries of Nikahnama---Wife
was entitled to recover said house from the husband as dower/gift, however, admittedly,
the marriage between the parties still existed whereas said stipulation of Nikahnama was
to be treated as deferred dower so the wife would be entitled to recover said house on
dissolution of marriage either in case of death or divorce by the respondent/husband---
High Court modified the impugned decrees and judgments and wife was held entitled to
recover maintenance allowance @ Rs.5,000/- per month with 10% annual increase and
she would also be entitled to recover 5-marla residential house as deferred dower in case
of dissolution of marriage, on death or divorce---Constitutional petition was allowed
accordingly. [Paras. 8, 10 & 11 of the judgment]
Mst. Shamim Akhtar v. Additional District Judge, Sialkot and another 1991 CLC 1142;
Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613; Mst.
Nabeela Shaheen and others v. Zia Wazeer Bhatti and others PLD 2015 Lah. 88; Liaqat
Khan v. Bakht Bibi 2018 CLC 708 and Muhammad Aslam v. Mst. Suraya PLD 2000 Lah.
355 ref.
Shahida Parveen v. Nijabat Ali and 2 others 2009 MLD 671 distinguished.
Malik Muhammad Aslam Channar for Petitioner.
Mrs. Nusrat Jabeen for Respondent No.1.
ORDER
MUJAHID MUSTAQEEM AHMAD, J.---This constitutional petition filed in
terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in
question legality and propriety of the judgment and decree dated 13.12.2012 passed by
learned Additional District Judge, Hasilpur, District Bahawalpur and judgment and decree
dated 19.12.2011 (to the extent of awarding lesser maintenance) of the learned Judge
Family Court, Hasilpur, District Bahawalpur.
2. Background of the family litigation culminating into present writ petition necessary
for just and fair decision of it, is that the petitioner and Ghulam Abbas, respondent were
married on 09.07.2009 vide Nikahnama (Exh.PA) against Haq-ul-Mehr Rs.1200/- and 05-
marlas house specified against Colum No.17 of Nikahnama. There appeared some
differences between the spouses and in May-2010, petitioner filed a family suit for
composite relief i.e. past maintenance for six months as well as future maintenance @
Rs.5000/- per month, suit for recovery of dowry articles as per list (Mark-A) or in
alternate its price Rs.2,46,732/- and recovery of dower i.e. house.
3. The respondent contested the suit maintaining that the petitioner was leading
deserted life on her own. The dowry articles were not given to the petitioner as per list
(Mark-A) rather the same, as mentioned in list Mark-B, were in his possession which he
was ready to return even on special oath. He further pleaded that neither he was owner of
the house nor he agreed to give it to the petitioner in her Haq-ul-Mehr.
4. To resolve the controversy between the parties, learned trial Court framed the
following issues:--
i. Whether the plaintiff is entitled to recover the maintenance allowance to the tune
of Rs.5000/- per month, previously for the last 06 months and also in future as
prayed for from the defendant? OPP.
ii. Whether the plaintiff is entitled to recover the dowry articles according to list
Mark-A or value Rs.246732/-? OPP.
iii. Whether the plaintiff is entitled to restore the house mentioned in column
No.17 of the Nikahnama from the defendant? OPP.
iv. Whether the plaintiff is Ghayr abad without any cause and justification and is
not performing the marital obligations, hence, she is not entitled to recover the
maintenance allowance? OPD.
v. Relief.
 In order to prove her case, present petitioner appeared as PW.1 and also produced Noor
Muhammad PW.2 to substantiate her claim whereas the respondent entered the witness
box as DW.1 and produced Ijaz Hussain Shah as DW.2 in support of his version. After
recording evidence of the parties, suit of the petitioner was decreed vide judgment and
decree dated 19.12.2011 by learned Judge Family Court in the following terms:--
"Suit of the plaintiff is partially decreed to the extent that plaintiff is entitled to receive
maintenance at the rate of Rs.1500/- per month from the institution of the suit till
legal limitations with annual increase of 10 percent after every year and she is also
entitled to recover her dowry articles as per list Mark-A or its price Rs.2,00,000/-
(two lac) as, alternate one and plaintiff is also entitled to restore 5 Marla house
agreed upon in column No.17 of the Nikahnama."
5. Both the parties dis-satisfied with the impugned judgment and decree assailed the
same before the learned Additional District Judge, Hasilpur, District Bahawalpur, who
vide judgment and decree dated 13.12.2012 partly allowed the appeal of the respondent
and petitioner was held entitled to recover dowry articles as per list Mark-A excluding
items mentioned at Serial Nos.15 and 16 (gold ornaments) or in alternate price of dowry
articles mentioned in the list and it was further held that petitioner was not entitled to
recover 5-marlas house in family suit, however, she was allowed to file suit for recovery
of house before the competent forum. To the extent of remaining claims, appeals of both
the parties were dismissed.
6. The petitioner still not feeling satisfied with the aforementioned judgments of the
learned Courts below has approached this Court with instant constitutional petition
mainly on the grounds that the same are against facts and law and as such petitioner has
prayed for increase of her maintenance allowance @ Rs.5000/- as per term No.20 of
Nikahnama and decree of her claim for recovery of house and dowry articles
Rs.2,46,732/-.
7. Arguments heard. Record perused.
8. So far as claim of the petitioner for recovery of maintenance allowance is
concerned, both the learned Courts below have found her entitled for maintenance.
Respondent has also not challenged the said claim of the petitioner. However, petitioner
has only challenged the quantum of maintenance allowance awarded by the Courts below.
According to the petitioner's version, as per Stipulation No.20 of Nikahnama Ex.PA,
respondent has agreed to pay her Rs.5000/- per month as maintenance allowance in case
of desertion. This condition has not been disputed by the respondent. Both the parties
with their consent even prior to accruing dispute regarding quantum of maintenance have
settled maintenance allowance @ Rs.5000/- per month but while fixing maintenance
allowance for the petitioner, learned Courts below have not taken into consideration this
vital condition. The respondent is bound by said self-imposed condition. Neither any
valid reason has been pleaded nor existed to depart from such special
condition/stipulation. In case "Mst. Shamim Akhtar v. Additional District Judge, Sialkot
and another" (1991 CLC 1142), maintenance allowance was awarded on the basis of such
stipulation. As such findings of the Courts below on the issue of maintenance allowance
only to the extent of quantum of maintenance are not based on proper appreciation of
evidence on record and thus, petitioner is entitled to recover maintenance allowance from
the respondent @ Rs.5000/- per month with increase formula from the date specified by
learned Judge Family Court.
9. Both the learned Courts below have believed the evidence of petitioner in respect of
her claim for recovery of dowry articles. However, learned Additional District Judge,
Hasilpur, District Bahawalpur, vide impugned judgment has excluded gold ornaments
mentioned at Serial Nos. 15 and 16 of the list (Mark-A) from the decree observing that
these ornaments were in the custody of present petitioner and she has failed to produce
any evidence that these (ornaments) were snatched by respondent when she left his house.
Learned Additional District Judge has assigned cogent and valid reasons for excluding
these ornaments from the list of dowry articles and learned counsel for the petitioner has
failed to substantiate his plea that findings of learned Additional District Judge on this
issue are based on misreading or non-reading of evidence. The superior Courts have taken
consistent view that womenfolk, as per custom and usage, always keep gold ornaments
with them and are not ready to depart from them. Thus, to my view the conclusion drawn
by learned Additional District Judge in this regard is based on fair and proper
appreciation of evidence on record whereas the learned Judge Family Court has misread
the evidence on this issue. As such, findings of learned Additional District Judge on issue
of recovery of dowry articles based on proper appreciation of evidence do not warrant any
modification or alteration by this Court.
10. The petitioner has claimed 5-marlas house as per stipulation in Column No.17 of
Nikahnama (Exh.PA) and learned Judge Family Court on the basis of the same, has
decreed the claim of present petitioner whereas in appeal, learned Additional District
Judge has concluded that in view of case "Shahida Parveen v. Nijabat Ali and 2 others "
(2009 MLD 671), only civil suit can be filed regarding such stipulation but this
observation of learned Additional District Judge is not in consonance with law.
No doubt, respondent has tried to wriggle out from bonds of such undertaking by
claiming that neither he agreed to give the house nor he was owner of any such house and
as such, petitioner was entitled to recover 05-marlas house from him but this contention
of respondent is devoid of any legal force. As per entries against Column No.17 of
Nikahnama (Ex.PA), respondent has agreed to give 05-marlas residential house and under
the law, presumption of truth is attached to the entries of Nikahnama. Reliance is
placed on the case of Mst. Nabeela Shaheen and others v. Zia Wazeer
Bhatti and others (PLD 2015 Lahore 88), Liaqat Khan v. Bakht
Bibi (2018 CLC 708) and Muhammad Aslam v. Mst. Suraya (PLD 2000
Lahore 355). As such, petitioner is entitled to recover this house from the
respondent as dower/gift. However, it is admitted fact that still marital
tie exists inter se the parties whereas said stipulation of Nikahnama in
view of case Sadia Usman v. Muhammad Usman Iqbal Jadoon (PLD
2009 Supreme Court 1458) is to be treated as "deferred" dower, so the
petitioner would be entitled to recover this house on dissolution of
marriage either in case of death or divorce by respondent.
11. As sequel to the above discussion, instant writ petition is partly allowed, while
modifying the judgments and decrees assailed herein, the petitioner is held entitled to
recover maintenance allowance @ Rs.5,000/- per month with 10% formula of annual
increase for the period specified in the impugned judgments. Petitioner would be also
entitled to recovery of residential house measuring 05-marlas as deferred dower in
case of dissolution of marriage, on death or divorce, as the case may be.
Consequently, the suit of the petitioner for maintenance and recovery of dower also
stands decreed in the above terms.
12. The writ petition to the extent of remaining prayers stands dismissed.
MQ/S-32/L Order accordingly.
2009 S C M R 1458

[Supreme Court of Pakistan]

Present; Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan

and Raja Fayyaz Ahmad, JJ

SAADIA USMAN and another----Appellants

Versus

MUHAMMAD USMAN IQBAL JADOON and another----

Respondents

Civil Appeals Nos.109, 110, 111 of 2008, decided on 1st April, 2009.

(On appeal from the judgment/order, dated 7-11-2008 passed by the Islamabad High
Court, Islamabad in Writ Petitions Nos.1059, 1060 and 1063 of 2008).

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5---Muslim Family Laws Ordinance (VIII of 1961), S.9---Constitution of Pakistan
(1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider the
correct import of `deferred dower' and whether it could become prompt if and when
demanded; whether Family Court could not grant maintenance which instead could be
granted by Arbitration Council as mentioned in S.9 of Muslim Family Laws Ordinance,
1961; whether amount of maintenance decree commensurated with status and income of
husband; whether restitution of conjugal rights could be allowed subject to condition of
separate living of wife with husband abroad; and whether restitution of conjugal rights
could be subjected to payment.of maintenance.

(b) Islamic Law---

----Dower---Meaning---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.

(c) Islamic Law---

----Dower---Mehr-e-Mu'wajjal---Payment---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.

(d) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5---Deferred dower (Mehr-e-Mu'wajjal)---Recovery---Demand of deferred

dower---Wife filed suit for recovery of deferred dower (Mehr-e-Mu'wajjal), which suit
was decreed in her favour by Family Court--Judgment and decree passed by Family
Court was maintained by Lower Appellate Court but High Court in exercise of
Constitutional jurisdiction modified judgment and decree in the terms that deferred
dower (Mehr-e-Mu'wajjal) would be recoverable at the time of dissolution of marriage
either by death or divorce---Validity---Prompt dower was payable on demand during
subsistence of marriage tie whereas deferred dower was payable on the time stipulated
between parties---Where no time was stipulated, deferred dower did not become
"prompt" merely because wife had demanded the same---Total amount of dower, in the
present case, was fixed at Rs.10,00,000, prompt dower to the tune of Rs.5,00,000 which
was paid at the time of marriage in shape of gold ornaments etc.---As no time was fixed
for payment of deferred dower of Rs.5,00,000 it would be payable in eventuality of
dissolution of marriage either by death or divorce---Judgment of High Court was based
on proper appreciation of facts and circumstances of case as well as law governing the
same---Supreme Court declined to interfere in' the judgment passed by High Court---
Appeal was dismissed.
Kitabul Fiqh by Abdur Rehman Al-Jaziri; Fatawa-i-Kazee Khan; Darul Mukhtar; Sura
Al-Nisa V.4:4; Translation of the meanings of the Noble Qur'an by Dr. Muhammad
Tagi-ud-Din Al-Hilali and Dr. Muhammad Muhsin Khan; Tafseer Mazhari Vol.1 by
Qazi Muhammad Sanaullah Usmani; Ziaul Qur'an Vol. 1 by Pir Muhammad Karam
Shah; Ma'aariful Qur'an Vol. II by Mufti Muhammad Shafi; Tafseer Durr-e-Manthur
(translation), by Pir Muhammad Karam Shah; Tafseer Namoona Vo1.II (translation) by
Syed Safdar Hussain Najfi; Urdu Encyclopaedia of Islam, Vol. XXI; Kitab-al-Fiqh al-
al-Madhahab-al-arba'a; Mahomedan Law by D.F. Mulla; Haqooq-e-Zaujain (Rights 'of
the Spouses), p.32, by Maulana Abut Aala Moududi; Eidan v. Mazhar Hussain (1877) 1
All. 483; Taufik-un-Nissa v. Ghulam Kambar (1877) 1 All. 560; Fatima Bibi v.
Sadruddin (1865) 2 Bom. HC 291; Nasiruddin Shah v. Mst. Amatul Mughani Begum (1948)
Lab. 135 and Commentaries on Mahommedan Law by Syed Ameer Ali, Edition 2007 p.1382
rel.

Abdul Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-
Record for Appellants (in Civil Appeal No.109 of 2009) and for Respondent (in Civil
Appeals Nos.110 and 111 of 2009).

Abdul Rashid Awan, Advocate Supreme Court for Respondent (in Appeal No.109 of 2009)
and for Appellants (in Appeals Nos.110 and 111 of 2009).

Date of hearing: 1st April, 2009.

JUDGMENT

IFTIKHAR MUHAMMD CHAUDHRY, C.J.--- The instant appeals, by leave of the

Court, are directed against the judgment, dated 7-11-2008 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?

(ii) Whether the Family Court cannot, grant maintenance which instead can be
granted by any Arbitration Council as mentioned in section 9 of Muslim Family Laws
Ordinance, 1961?

(iii) Whether the amount of maintenance decree is commensurate with the status and
income of the husband?

(iv) Whether the restitution of conjugal rights be allowed subject to condition of

separate living of the wife with husband abroad?
 (v) Whether the restitution of conjugal rights can be subjected to the payment of
maintenance?

It was further directed that till the decision of the appeals, the husband
shall pay maintenance at the rate of Rs.7,000 per month which shall be provisional as
well as the tentative depending upon the final decision by this Court.

2. The facts of these appeals, in brief, are that Mst. Saadia Usman, appellant in Civil Appeal
No.109 of 2009 (hereinafter referred to as "the appellant") filed a suit for recovery of dower,
dowry articles and maintenance allowance against her husband Usman Iqbal Jadoon,
respondent in Civil Appeal No.109 of 2009 (hereinafter referred to as "the respondent")
before the Family Judge, Islamabad. The learned trial Court vide its judgment and decree,
dated 24-3-2008 decreed the suit and held the appellant entitled to the recovery of dower
amount of Rs.5,00,000. Further, the appellant and her minor daughter Minal Usman were
allowed maintenance @ Rs.7,000 per month each from the date of desertion i.e. February,
2005 till they were legally debarred. As far as the suit of the respondent for restitution of
conjugal rights was concerned, the same was conditionally decreed in his favour subject to
payment of dower, maintenance and making arrangements for the departure of the appellant
along with her daughter to Australia where the respondent was then posted.

3. The appellant preferred Appeal No.39 of 2008 before the District Judge, Islamabad, for
enhancement of maintenance allowance. The learned Additional District Judge, Islamabad on
whose file the appeal was transferred, allowed it vide judgment, dated 19-6-2008 and
enhanced the amount of maintenance to Rs.10,000 per month each .for both the appellant and
her daughter from the date of decision. The respondent also preferred two appeals bearing
Appeals Nos.46 and 47 of 2008 against the judgment of the trial Court, which were dismissed
through the same judgment, dated 19-6-2008.

4. Being aggrieved of the said. judgment, the parties filed three Writ Petitions Nos.1059 and
1060 and 1063 of 2008, which were dismissed vide impugned judgment with the
modification in the judgment of the learned Additional District Judge that the decree for
recovery of the dower in the sum of Rs.5,00,000 shall be recoverable subject to law at the
time of dissolution of marriage by death or divorce. Thus, the decree qua recovery of dower
was set aside. Hence the instant appeals with the leave of this Court the appellant
challenging. the judgment of the High Court qua recovery of dower and the respondent
seeking to set aside the decree for payment of maintenance to the wife and the daughter.

5. In passing the impugned judgment, the learned Single Judge of the High Court placed
reliance on passages from the books titled "Kitabul Fiqh" by Abdur Rehman Al-Jaziri,
"Fatawa-i-Kazee Khan" and "Darul Mukhtar" and reached the following conclusions:---

(i) the amount of dower is fixed with the agreement of the parties to the marriage;
 (ii) the dower fixed can be prompt or deferred or partly prompt and partly deferred.
Prompt dower is payable immediately on demand;

(iii) the deferred dower shall be payable on a date or time agreed between the parties;
and

(iv) it is more appropriate that date or time agreed for payment of deferred dower be
certain. It may be agreed between the parties that the deferred dower shall be payable
on the happening of a certain event like divorce or death.

The learned Single Judge observed that in Pakistan and India, if no date or time was specified
for the payment of the deferred dower, it was considered as if it was payable at the time of
dissolution of marriage by death or divorce.

5-A. Though leave was granted to consider different questions of law, as is apparent from the
leave granting order reproduced above, but at the hearing the learned counsel for the. parties
confined their arguments to only one point, namely, the payment of dower, prompt and
deferred. The learned counsel for the appellant contended that the learned Single Judge of the
High Court, by making payment of deferred dower dependent on the eventuality of death or
divorce, failed to appreciate the significance of "dower" in a contract of marriage in the
Islamic polity, inasmuch as it was obligatory upon the husband to pay dower to the wife
happily (Sura Al-Nisa V.4:4). According to the learned counsel, the question of paying the
dower happily in the eventuality of dissolution of marriage by divorce did not arise, inasmuch
as the parties were afflicted with bad feelings against each other, therefore, no husband would
pay it happily at the time of divorce. Hence, according to the learned counsel, the whole of
dower was payable on demand.

6. On the other hand, learned counsel for the respondent contended that, the Verse of the
Holy Qur'an cited by the learned counsel for the appellant had been interpreted by renowned
jurists of Islam since long and the proposition that the deferred dower was payable on
dissolution of marriage by death or divorce was well-settled, therefore, no case for
interference with the impugned judgment was made out.

7. We have given our anxious consideration to the arguments advanced by the learned
counsel for the parties and have also perused the impugned judgment of the learned Single
Judge of the Islamabad High Court.

8. The command of Allah (SWT) given in the Holy Qur'an (Sura An-Nisa, V. R:4) reads as
under:--

"At the time of marriage, give the women their dowers willingly as an obligation; but
if they, by their own free will, give up to you a portion of it then you may enjoy it
with pleasure."1
1. English Translation of the Meaning of Al-Qur'an by Muhammad Farooq-i-Azam Malik,
published by the Institute of Islamic Knowledge, Houston Texas, U.S.A.

The English rendering of the above Verse, given in the "Translation of the meanings of the
Noble Qur'an" by Dr. Muhammad Taqi-ud-Din Al-Hilali and Dr. Muhammad Muhsin Khan,
published by the King Fand Complex for the Printing of Holy Qur'an, Madniah, Kingdom of
Saudi Arabia reads as under:---

"And give to the women (whom you marry) their Mahr (obligatory bridal-money
given by the husband to his wife at the time of marriage) with a good heart; but if
they, of their own good pleasure, remit any part of it to you, take it, and enjoy it
without fear of any harm (as Allah has made it lawful)."

At another place in the Holy Qur'an, Allah (SWT) says:---

"Made lawful to you this day are At-Tayyibat (all kinds of Halal (lawful) foods,
which Allah has made lawful (meat of slaughtered eatable animals, milk products,
fats, vegetables and fruits). The food (slaughtered cattle, eatable animals) of the
people of the Scripture (Jews and Christians) is lawful to you and yours is lawful to
them. (Lawful to you in marriage) are chaste women from the believers and chaste
women from those who were given the Scripture (Jews and Christians) before your
time when you have given their due Mahr (bridal-money given by the husband to his
wife at the time of marriage), desiring chastity (i.e. taking them in legal wedlock) not
committing illegal sexual intercourse, nor taking them as girl friends. And whosoever
disbelieves in Faith [i.e. in the Oneness of Allah and in all the other Articles of Faith
i.e. His (Allah's) Angels, His Holy Books, His Messengers, the Day of Resurrection
and Al-Qadar (Divine Preordainments)], then fruitless is his work; and in the
Hereafter he will be among the losers." 2

2. Surah Al-Ma'idah V.G:5 ["Translation of the meanings of the Noble Qur'an" by Dr.
Muhammad Taqi-ud-Din Al-Hilali and Dr. Muhammad Muhsin Khan, published by the King
Fand Complex for the Printing of the Holy Qur'an, Madinah, Kingdom of Saudi Arabia].

9. The relevant excerpts from various Commentaries of the Holy Qur'an e.g. Tafseer Mazhari,
Vol.I by Qazi Muhammad Sanaullah Usmani, Ziaul Qur'an, Vol.I by Pit. Muhammad Karam
Shah, Ma'aariful Qur'an, Vol.II by Mufti Muhammad Shafi, Tafseer Durr-e-Manthur
(translation) by Pir Muhammad Karam Shah and Tafseer Namoona Vol.II (translation)' by
Syed Safdar Hussain Najfi are reproduced below:---

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:---

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:---

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). 3 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. The same view is incorporated in para.290 of the Mahomedan Law by
D.F. Mulla, which reads thus:---

3. Maulana Abul Aala Moududi, a renowned jurist of Pakistan of the modern times, in his
booklet, titled "Haqooq-e-Zaujain" (Rights of the Spouses), p.32 has taken the view that
deferred dower is payable on demand. He has dissented with the opinion of the jurists
who held that the deferred dower would be payable after the death of the husband.

"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.

(2) Where it is not settled at the time of marriage whether the dower is to be
prompt or deferred then according to the Shia Law, the rule is to regard the
whole as prompt but according to the Sunni Law, the rule is to regard part as
prompt and part as deferred, the proportion referable to each class being
regulated by custom, and, in the absence of custom, by the status of the parties
and the amount of the dower settled."

14. In Eidan v. Mazhar Hussain (1877) 1 All. 483, the Court fixed one-fifth of the
dower of Rs.5,000 as "prompt", the wife having been a prostitute. In Taufik-un-Nissa v.
Ghulam Kambar (1877) 1 All. 560, the Court held that a third of dower of Rs.51,000
was reasonable as "prompt" and the same proportion was fixed in Fatima Bibi v.
Sadruddin (1865) 2 Bom. HC 291. In Nasiruddin Shah v. Mst. Amatul Mughni Begum
(1948) Lah. 135, it was held that in absence of any custom, the presumption is that it is
half and half. In all these cases, the parties were Sunnis and the marriage contract was
silent as to whether the dower was to be prompt or deferred. 4

4. In Sheikh Muhammad v. Ayesha Beebi (1938) Mad. 609, the Madras High Court,
however, took the view that whether the parties are Shias or Sunnis dower must be
presumed to be prompt unless payment of the whole or any part of the dower is
expressly postponed.

15. In the book titled "Commentaries on Mahommedan Law" by Syed Ameer Ali, Edition
2007, at page 1382, prompt and deferred dower are discussed as under:--

"As there is nothing in the Koran or in the traditions tending to show that the
integral payment of the dower prior to consummation is obligatory in law, the
later jurisconsults, says M. Sautayra, have held that a portion of the Mahr should
be considered payable at once or on demand, and the remainder on the
dissolution of the contract, whether by divorce or the death of either of the
parties. The portion which is payable immediately is called the Mahr-i-Muajjal,
"prompt" or "exigible", and a wife can refuse to enter the conjugal domicile until
the payment of the prompt portion of the dower. The other portion is called
Mahr-i-Muwajjal, "deferred dower", which does not become due until the
dissolution of the contract. It is customary in India to fix half the dower as
prompt and the remaining moiety as deferred or "postponed, but the parties are
entitled to make any other stipulation they choose. For example, they may allow
the whole amount to remain unpaid until the death of either the husband or the
wife. Generally speaking, among the Musalmans of India, the deferred dower is a
penal sum, which is allowed to remain unpaid with the object of compelling the
husband to fulfil the terms of the marriage-contract in their entirety."

16. Thus, we are of the opinion that prompt dower is payable on demand during the
subsistence of the marriage tie whereas the deferred dower is payable on the time
stipulated between the parties, but where no time is stipulated, it is payable on
dissolution of marriage either by death or divorce. But, the deferred dower does not
become "prompt" merely because the wife has demanded it. In the instant case, the total
amount of dower was fixed at Rs.10,00,000. The prompt dower is to the tune of
Rs.5,00,000 was paid at the time of marriage in the shape of golden ornaments, etc.
Since no time was fixed for payment of the deferred dower of Rs.5,00,000, it would be
payable in the eventuality of dissolution of marriage either by death or divorce.

17. We are satisfied that the judgment of the learned Single Judge of the High Court is
based on proper appreciation of the facts and circumstances of the case as well as the law
governing the same. The learned counsel for the appellant was unable to make out a case for
interference with the impugned judgment.
18. The learned counsel for the respondent confined his arguments to defending the
impugned judgment on the issue of payment of dower and did not raise any other issue before
us. We, therefore, find no merit in the appeals filed by the respondent.

19. Resultantly, all the three appeals, filed, one by the appellant and two by the respondent
against the impugned judgment, are thus, dismissed but the parties left to bear their own
costs.

M.H./S-40/SC Appeal dismissed.