Form No: H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH Court, BAHAWALPUR
BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT

W.P.No.3582 of 2010
(Syed Koray Shah Vs. Addl.District Judge,etc)
JUDGMENT
Date of Hearing 27.1.2014
Petitioner by M/s Sardar Muhammad Hussain and Syed
Mujahid Ayub Wasti, Advocates with the
petitioner.
Respondent by: Mr. Muhammad Aslam Khan Dhukkur,
Advocate with respondent No.3.

Ch. Muhammad Masood Jahangir,J. Brief facts of

the case are that marriage between the petitioner and respondent No.3

was solemnized on 20.8.2006, but later on a dispute arose between the

spouses and the petitioner ousted respondent No.3 from his house on

28.3.2007, that thereafter the petitioner filed a suit for restitution of

conjugal rights whereas respondent No.3 filed three separate suits

detailed below:-

1. Suit for recovery of maintenance allowance.

2. Suit for recovery of dowry articles
3. Suit for recovery of dower.

The parties filed their written statements denying claims and

objections of each others. The learned trial court conducted pre-trial

reconciliation between the parties which remained failed and the

learned trial court framed the following consolidated issues out of the

divergent pleadings of the parties:-

ISSUES
1. Whether the plaintiff is entitled to recover the
dower as prayed for?OPP
W.P.No.3582 of 2010 2

2. Whether the plaintiff is entitled to recover the

dowry articles according to list?OPP

3. Whether the plaintiff is entitled to recover the

past and future maintenance allowance, as
prayed for?OPP

4. Whether the suits of plaintiff are not

maintainable in its present form?OPD

5. Whether the suit of the plaintiff are based on

wrong facts, hence liable to be dismissed with
costs?OPD

6. Whether the defendant is entitled for restitution

of conjugal rights?OPD

7. Whether the suit of defendant is liable to be

dismissed in view of preliminary objection No.1
and 2 of written statement?OPP

8. Relief.
2. The parties produced their respective evidence and after

appreciating the evidence produced by the parties the learned Judge

Family Court vide consolidated judgment dated 24.3.2008 decreed the

suit filed by the petitioner for restitution of conjugal rights, the suit

filed by the respondent No.3 for recovery of dower was dismissed,

however the suits filed by the respondent No.3 for recovery of dowry

articles was decreed to the extent of dowry articles mentioned at

S.No.4 to 10, 12, 14 to 26, 28, 30, 31, 34, 36, 38, 39, 42 and 43 or in

alternate price thereof was fixed at Rs.20,000/-and the suit filed for

recovery of maintenance allowance was also partially decreed by

allowing monthly allowance of Rs.400/-from the date of institution of

the suit and in future to recover maintenance allowance @ Rs.700/-per

month with condition to join the petitioner/defendant with 10% annual

increase.
W.P.No.3582 of 2010 3

3. The petitioner as well as respondent No.3 filed different

appeal against the consolidated judgment and decree dated 24.4.2008

passed by the learned Judge Family Court before the learned lower

appellate court. The said appeals came up for hearing before learned

Addl. District Judge who vide consolidated judgment and decree

dated 20.11.2008 accepted the appeal filed by respondent No.3, set

aside the impugned judgment and decree dated 24.3.2008 and decreed

the claim of respondent No.3 for recovery of dower amounting to

Rs.50,000/- and a plot measuring five Marlas as mentioned in the

Nikah Nama (Exh.P-1), modified the decree for recovery of dowry

articles while enhancing the decretal amount from Rs.20,000/- to

Rs.50,000/-, the quantum of maintenance allowance was also

enhanced to Rs.2000/- per month from the date of institution of the

suit till the statutory period whereas suit for restitution of conjugal

rights filed by the petitioner was dismissed. However, the appeal filed

by the petitioner against the recovery of dowry articles to the extent of

Rs.20,000/- was dismissed. The petitioner filed Writ Petition No.504

of 2009 before this Court and vide order dated 7.4.2010 the matter

was remanded to the learned lower appellate court with the following

observation:-

“In view of the above, the impugned appellate judgment

and decree dated 20.11.2008 is not sustainable in law as the real
matter in controversy has not been adjudicated upon.
Consequently, the appellate judgment and decree dated
20.11.2008 is hereby set aside, as a consequence whereof the
appeals filed by the parties shall be deemed to be pending before
respondent No.1, who is directed to decide the matter afresh after
hearing the parties. The parties are directed to appear before
respondent No.1 on 26.4.2010. No notice shall be required to be
issued to either of the parties. Respondent No.1 is directed to
decide the appeals finally within 30 days thereof. The petition is
disposed of in the above terms.”
W.P.No.3582 of 2010 4

4. Thereafter, the learned lower appellate vide impugned judgment

and decree dated 13.05.2010 allowed the appeal filed by respondent

No.3 while decreeing her suit for recovery of dower as prayed for, suit

for recovery of dowry articles to the extent of Rs.50,000/- and the

quantum of rate of maintenance allowance was also enhanced at the

rate of Rs.2000/- per month from the date of institution of the suit till

the statutory period whereas the suit for restitution of conjugal rights

filed by the petitioner was dismissed. Moreover, the appeal filed by

the petitioner was also dismissed. Through the instant writ petition the

petitioner has assailed the consolidated judgment and decree dated

13.05.2010 passed by the learned appellate court.

5. It is contended by the learned counsel for the petitioner

that the impugned judgment and decree passed by the learned

appellate court is not based on any legal basis and justification,

against law, without lawful authority, which have rendered the same

without jurisdiction; that in the nikah nama “Ghyr moajal” dower was

mentioned, but the learned appellate court presumed it as prompt

dower, which finding being based on misreading and non-reading of

evidence cannot be sustained in the eye of law; that the learned

appellate court has observed in the impugned judgment that executant

of the Nikah Nama did not appear, but even then the decree for

recovery of dower has been passed in a hasty manner, that the learned

appellate court has ignored the important aspect that the receipts of

dowry article produced by respondent No.3 were not proved through

legal mode or any independent evidence and onus to prove issue No.2

could not be discharged; that the learned appellate court has not
W.P.No.3582 of 2010 5

appreciated the evidence available on record while passing the

impugned judgment and decrees. The learned counsel for the

petitioner has relied upon the judgment reported as SAADIA

USMAN and another Versus MUHAMMAD USMAN IQBAL

JADOON and another (2009 SCMR 1458) in support of his

contentions. He lastly prayed for acceptance of the writ petition and

dismissal of the suits filed by the respondent No.3.

6. Conversely the learned counsel for the respondent No.3

has supported the impugned judgment and decrees passed by the

learned appellate court and prayed for the dismissal of the instant writ

petition. Relies upon Muhammad Azam vs. Additional District Judge

and others (2006 YLR 33) Joodat Kamran Alvi vs. Additional

District Judge and others (2013 MLD 1466) to contends that

deferred dower was payable on demand and wife had Sharai and legal

right to demand deferred dower whenever she wanted.

7. Arguments heard and record perused.

8. Respondent No.3/plaintiff Mst.Sajida Bibi appeared as

PW.1 and stated that at the time of solemnization of Nikah, dower had

been fixed at the rate of Rs.50,000/- and a plot of five Marlas by the

petitioner out of his free will and consent. She further stated in her

testimony that in this respect, entries were also incorporated in the

Nika Nama (Exh.P-1). The stance of respondent No.3 is supported by

the perusal of Nikah Nama (Exh.P-1), which finds mention the said

entries regarding fixation of dower in the relevant column thereof.

Sajjad Hussain Shah (PW.2) has also supported the version of

W.P.No.3582 of 2010 6

respondent No.3/plaintiff as narrated in the plaint. Both the PWs. were

cross-examined at length by the learned counsel for the petitioner, but

they remained consistent.

9. In rebuttal, the petitioner himself appeared as DW.1 and

produced Ghulam Raziq as DW.2. The stance of the petitioner in

written statement submitted before the learned trial court was that

entries regarding the fixation of dower in the Nikah Nama( Exh.P-1)

were fabricated, maneuvered and based on collusiveness whereas he

was an illiterate person, but he has not been able to prove the same by

producing any cogent and independent evidence in the shape of Nikah

Khawan or production of the original record of the Nikah Nama from

the office of the Secretary, Union Council before the learned trial

court. In the absence of the said evidence, no question mark can be

put regarding the authenticity of the entries made in the Nikah Nama

(Ex:P1), which attaches the presumption of truth and it cannot be

ascertained that the same were fabricated subsequently by practicing

fraud. Even otherwise it has been borne out from the perusal of the

file that the petitioner also filed a suit titled “Syed Koray Shah vs.

Sajida Bibi etc.” for cancellation of conditions of Nikah Nama dated

20.8.2006 mentioned in column No.13 regarding payment of

Rs.50,000/- as dower and constructed house measuring 5 marlas

mentioned in column No.16 thereof, which has been dismissed vide

order and decree dated 24.3.2008 by the learned Judge Family Court,

Rahim Yar Khan. The relevant portion is reproduced as under:-

“Perusal of record shows that another suit between the parties

for restitution of conjugal rights has been decreed vide my
separate judgment of even date, in which, the plaintiff has relied
upon the same copy of Nikah Nama. Meaning thereby both the
parties have admitted the said Nikah Nama without any
W.P.No.3582 of 2010 7

modification therein on the basis of which different family suits

have been decided. Moreover, this suit for cancellation of
conditions of Nikah Nama has not come within the scope of
Family Court Ordinance. No such kind of suit has been
mentioned in the schedule. Hence, in these circumstances, I am
of the view that the instant suit is not maintainable, so is hereby
dismissed. File be consigned to the record room after its due
completion.”

10. In view of the above discussion, there is left no ambiguity in

my mind that respondent No.3 has been able to prove that at the time

of performance of her Nikah with the petitioner the dower as

mentioned in columns No.13 and 16 of the Nikah Nama (Ex:P-1) was

duly fixed. There is no denial from the side of respondent No.3 that it

was “Mehr-e-Mu’wajjal”. However, the finding of the learned lower

appellate in para No.17 of the judgment, which is reproduced as

under:-

“***No doubt, as per enties of Nikahnama dower of

appellant/plaintiff is deferred in nature i.e. “Ghyr Moajal” but it is
not denied that marriage of the parties has since been
consummated and it is well settled that dower whether prompt or
deferred is inalienable right of wife and after consummation, same
would become vested right for a wife to claim at any time. Reliance
in this regard is placed on an authoritative judgment of Hon’ble
Lahore High Court, “2006 YLR 33. Since the marriage of the
parties has been consummated, therefore, the appellant/plaintiff is
entitled to claim her above dower at any time and
respondent/defendant is legally bound to pay the same on
demand.***”

to the extent that respondent No.3 is entitled to claim her dower at any

time and the petitioner is bound to pay the same on demand needs

modification as the honourable Supreme Court of Pakistan in Saadia

Usman’s case has held that prompt dower was payable on demand

during subsistence of marriage tie whereas deferred dower was

payable on the time stipulated between parties and where no time

was stipulated, deferred dower did not become “prompt” merely

because wife had demanded the same. The relevant portion is

reproduced as under:-
W.P.No.3582 of 2010 8

“13. It is clear from the passages just quoted from the book
titled “Kitab-al-fiqh al-al:Madhahab-al-arba'a” that the
Hanafi jurists allow both categories of Mahr. Mu'ajjal,
(prompt, i.e. immediately payable) and Mu'wajjal (deferred,
i.e. payable later, after a certain time). However, where a part
of the dower is described as Mu'wajjal, i.e. deferred but no
time limit is fixed for its payment, according to some jurists,
the condition is valid and the time of the deferred payment is
either death or divorce. And this is considered to be the
correct exposition of the law (the preferred view). Thus, the
division of dower into prompt and deferred is based on the
consistent opinion expressed from time to time by the Islamic
jurists and the superior Courts, including the Supreme Court
of India. 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. 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:-
W.P.No.3582 of 2010 9

“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.”

11. Under Article 189 of the Constitution of Islamic Republic of

Pakistan, any decision of the Supreme Court shall, to the extent that it

decides a question of law or is based upon or enunciates a principle of

law, be binding on all other courts in Pakistan. With due respect the

case law rendered in the judgments cited by the learned counsel for

the petitioner cannot be relied upon as the dictum laid down by the

August Supreme Court of Pakistan in the aforesaid judgment has not

been discussed. Resultantly, it is directed that the dower as described

above will be payable to respondent No.3 by the petitioner in

eventuality of dissolution of marriage either by death or divorce by

the petitioner.
W.P.No.3582 of 2010 10

12. The other contention of the learned counsel for the

petitioner that as respondent No.3/plaintiff had failed to produce

receipts regarding the purchase of dowry articles, therefore, she has

not proved the fact that the said articles were handed over to the

petitioner at the time of solemnization of Nikah, is also misconceived.

The stance of the petitioner/defendant that the bride/respondent No.3

while making claim for recovery of dowry articles was required to

substantiate the same by fulfilling the requirements of Qanun-e-

Shahadat Order,1984 is not only misconceived, but also against the

scheme of law as provided in Section 17(1) of the West Pakistan

Family Court Act, 1964, which is a special statute. For ready

reference section 17 of the Act ibid is reproduced hereunder:-

“Provisions of Evidence Act and Code of Civil

Procedure not to apply.-

(1) Save as otherwise expressly provided by or

under this Act, the provisions of the (Qanun-e-
Shahadat, 1984 (P.O.No.10 of 1984) AND the
Code of Civil Procedure, 1908 (except sections
10 and 11) shall not apply to proceedings before
any Family Court, [in respect of Part 1 of
Schedule).

(2) Sections 8 to 11 of the Oaths Act, 1873, shall

apply to all proceedings before the Family
Courts.”

The perusal of the above section makes it clear that provisions of

Qanun-e-Shahadat Order, 1984 are not applicable to the proceedings

of suits involving family matters.

13. In our society, it is not the tradition that bride has to keep

the record of purchase receipts, prepare list of dowry articles and

obtain the signature from the bridegroom side. The norms of our

society are entirely different. It is a common tradition of our society

that the parents start collecting, purchasing and reserving the articles
W.P.No.3582 of 2010 11

for their daughters soon after they start growing. It is also considered

to be a disgraceful tradition to prepare the list of dowry articles and

obtain signatures from the other side at the time of departure of a girl

from her parental house to the house of her in-laws as the marriage is

performed in the discharge of religious obligation. The learned lower

appellate court has given the valid reasons for awarding decree of

recovery of dowry articles by fixing the amount at the rate of

Rs.50,000/-, which does not need any further leniency as respondent

No.3 had claimed recovery of dowry article to the tune of

Rs.1,24,075/-.

14. The quantum of maintenance as fixed by the learned lower

appellate court is also not exorbitant and appears to be a reasonable.

Even the learned counsel for the petitioner has not pressed the appeal

to the extent of quantum of maintenance. The learned lower appellate

court eminently dealt with the matter and fixed quantum of

maintenance appropriately while deciding the relevant issue.

15. So far as the plea of the petitioner that he is also entitled for the

decree of restitution of conjugal rights is concerned, suffice it to say

that during the pendency of this writ petition while taking notice of

the fact the marriage between the parties still subsisted, an effort was

made for reconciliation and for this purpose respondent No.3 was

summoned in person, who appeared in this court on 15.1.2014 and

showed reluctance for reunion with the petitioner only on the

apprehension that he has contracted second marriage, which fact was

denied by the petitioner. Consequently, Sardar Muhammad Hussain

Khan, Advocate, learned counsel for the petitioner was deputed to

 W.P.No.3582 of 2010 12

probe into the matter and ascertain as to whether his client/petitioner

had contracted second marriage or not and the case was fixed for

today(27.1.2014). Today, learned counsel for the petitioner has

admitted at bar before this Court that his client/petitioner has

contracted second marriage and the petitioner told lie before this

Court on 15.1.2014 that he had not contracted second marriage. So,

the conduct of the petitioner is highly questionable. As such he is also

not entitled for a decree in a suit for restitution of conjugal rights

because it has been proved on the record that respondent No.3 has

been deserted due to the conduct of the petitioner and the suit filed by

him has rightly been dismissed by the learned lower appellate court.

16. For the foregoing discussion, this writ petition is

dismissed and impugned judgment and decree passed by the learned

lower appellate court dated 13.05.2010 is maintained with the

modification that dower as described above will be payable to

respondent No.3 by the petitioner in the eventuality of dissolution of

marriage either by death or divorce by the petitioner. However,

keeping in view the conduct of the petitioner, who made a wrong

statement before this court about the performance of second marriage

and respondent No.3 was constrained to attend this court twice with a

hope for reconciliation, the petitioner is burdened with special costs of

Rs.25,000/- payable to respondent No.3.

(Ch. Muhammad Masood Jahangir)

Judge
Syed Zameer
Approved for reporting.

Judge.