Saturday 19 May 2012

Father's property cannot be given in Haq Mehr

PLJ 2010 Lahore 122

[Rawalpindi Bench Rawalpindi]

Present: Asad Munir, J.

MUHAMMAD ANWAR KHAN--Petitioner

versus

SABIA KHANAM--Respondent

W.P. No. 2531 of 2009, decided on 28.10.2009.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Suit for recovery of dower comprising a house and gold ornaments, dowry articles--Dower belongs to the father of deceased husband--Entitlement of--In Column Nos. 15 & 16 of the nikahnama gold ornaments and house were settled as dower--House described in nikahnama as dower was owned by father of deceased husband--Question of--Whether wife was entitled to the house as dower, even if it did not belong to her husband--Held: Husband as a rule, cannot give as dower property that does not belong to him but belongs to some one else including his father--An exception of such rule can be found if it is shown that the father of the husband agreed to do so. [P. 125] A

Nikahnama--

----Vicarious liability of father to pay debts of his son--Column Nos. 15 & 16 of nikahnama--Father-in-law can be said to have agreed or consented to give his property as dower to his daughter-in-law--No rule--Validity--A father has vicarious liability to pay the debts of his son in the absence of an agreement to contrary as appears to have been held in case of Muhammad Siddique vs. Shahad-ud-Din--Held: A father assumes direct liability which is different from being liable for debts of his son--Such a consent can be implied and is visible even when the father has not signed or affixed his thumb impression on the nikahnama or document for giving his property to his daughter in law as dower.    [P. 125] B & C

Nikahnama--

----Column Nos. 15 & 16--Passive role of bridegroom--House described in nikahnama as dower belong to father-in-law--Nikahnama was not signed by the petitioner/father-in-law--Presence at the time of nikah was admitted--Validity--At the time of nikah in our society the bridgegroom has a passive role--Nikahnama is filled out with consent and instructions of the respective father's of bridgegroom and the bride or in their absence the respective elders of two families--Having knowledge of his house being given as dower--Validity--Inspite of having knowledge that his house had been given as dower in nikahnama, the petitioner never took any steps to take any legal action for exclusion of the house from the nikahnama--Held: Petitioner did not object to his house being given as dower either at the time of nikah or later till the suit by daughter-in-law filed--Further held: The house mentioned in nikahnama as dower for daughter-in-law, even though, it did not belong to the husband of respondent is liable to be transferred to the daughter-in-law as the father-in-law had given his consent for the same.     [P. 126] D, E, F & G

Maintenance of minor--

----Liability of grandfather--In absence of father or on the inability of father--Question of--Petitioner as the grandfather of the minor is liable to maintain the minor--Liability of the grandfather to pay the maintenance for the minor would include past maintenance as well as future maintenance as the grand father is responsible to maintain his grand children in absence of the father or on the inability of the father to maintain his children.   [P. 126] H

Qazi Muhammad Naeem Qureshi, Advocate for Petitioner.

Ms. Farhana Qamar Rana, Advocate for Respondents No. 1

and 2.

Date of hearing: 28.10.2009.

Order

The brief facts relevant for the disposal of this writ petition are that the marriage between Farrukh Hameed Khan and Respondent

No. 1 was solemnized on 6.8.2000 by means of nikahnama dated 6.8.2000. In column Nos.15 and 16 of the said nikahnama, gold ornaments of 10 tolas and a house were settled as dower to Respondent No. 1. Out of wedlock, Respondent No. 2, Hamza Ali Khan, was born to the couple on 4.6.2003. The marriage between Respondent No. 1 and Farrukh Hameed Khan came to an end on 16.3.2005 when the latter pronounced Talaq. On 27.5.2005, Respondents No. 1 and 2 filed a family suit against Farrukh Hameed Khan for recovery of dower comprising a house and gold ornaments, dowry articles or Rs. 1,59,500/- in lieu thereof, as well as maintenance for Respondents No. 1 and 2. Written statement was filed by the said Farrukh Hameed Khan on 21.9.2005, wherein, he took the stand that he did not own the house, described in the nikahnama dated 6.8.2000, which was being claimed by the Respondent No. 1 as dower.

2.  During the pendency of the suit, the said Farrukh Hameed Khan died on 23.3.2008 and the Petitioners No. 1 to 5, who are the parents, brothers and sister of late Farrukh Hameed Khan, were impleaded as defendants on the application of the Respondent No. 1. After production of the evidence and hearing the parties, the Judge Family Court, Taxila, vide judgment and decree dated 2.4.2009, decreed Respondent No. 1's claim to the extent of the house but her claim for recovery of gold ornaments was dismissed.

3.  By the same judgment and decree the claim of the Respondent No. 1 as to dowry articles was allowed as per the list produced or Rs. 1,00,000/- in lieu thereof and maintenance was also awarded to the Respondent No. 1 for her Iddat period as well as Rs.700/- per month as past maintenance and Rs.1500/- per month as maintenance from the date of judgment and 10 % increase till the age of majority was awarded to the Respondent No. 2. Against the said judgment and decree, appeals filed by the Respondent No. 1 and the petitioner were dismissed by the Addl. District Judge, Taxila, vide judgment and decree dated 4.2.2009. As a result, the findings of the Judge Family Court were up held on all the issues except the recovery of dowry which was settled between the parties on oath of the Holy "Quran".

4.  The instant writ petition calls in question the concurrent findings of the Courts below mainly on the ground that the subject matter of the present lis i.e the house mentioned in the nikahnama, cannot be awarded to Respondent No. 1 on account of dower as it never belonged to the deceased husband of the Respondent No. 1.

5.  It has been contended that the house described in the nakah nama as dower belongs to the petitioner, who is the father of the deceased husband of the Respondent No. 1 and is no way liable to transfer the said house to the Respondent No. 1 as he never agreed to give the house to the Respondent No. 1 as a surety or otherwise. To support the stand point, learned counsel for the petitioner has drawn may attention to the nikahnama dated 6.8.2000 to show that the nikahnama does not bear the signatures or thumb impression of the Petitioner No. 1. It is further contended that even otherwise, there was no agreement verbally or in writing as would indicate that the Petitioner No. 1 agreed to give the house in connection to his daughter-in-law on account of dower. In support of his contention, learned counsel has referred the case of "Muhammad Siddique etc Vs. Shahab-ud-Din etc" reported in "1927 Allahabad Series page 557, Volume (XLIX)" in which it was laid down that a muslim father does not by simply giving his consent to the marriage of his minor son, without making himself a surety, become liable for payment of dower to his daughter-in-law. Learned counsel on the same reasoning has contended that the petitioner cannot be held liable for the debts of their deceased son so far as the maintenance to the minor Respondent No. 2 is concerned.

6.  In response, learned counsel for the respondent contends that the Petitioner No. 1 was present on the occasion of nikah of his son, Respondent No. 1, and the nikah nama was filled out and signed in his presence and with his consent. As such, the Petitioner No. 1 is liable to transfer the house described in the nikah nama to the Respondent No. 1. In support of her contention, learned counsel has referred to (2008 C.L.J. 589) titled "Maj. Rifat Nawaz etc Vs. Mst. Tahira etc" where the Peshawar High Court has decided that a house, described in the nikah nama, which was not owned by the husband but by his father, was liable to be transferred to his wife on account of dower. Learned counsel has also referred to the judgment of the Hon'ble Supreme Court of Pakistan in Civil Petitions No. 126 and 127 of 2009, 2007 C.L.C. 1517 as well as order in Writ Petition No. 398/2009 passed by this Court.

7.  After going through the record and the case law submitted by the counsel for the parties, what needs to be determined is as to whether the Petitioner No. 1 in any manner assumed liability to transfer the house as dower which has been properly described with boundaries in Column Nos.15 and 16 of the nikah nama dated 6.8.2000.

8.  The question that needs to be addressed is whether the Respondent No. 1 is entitled to the house as dower, even if it did not belong to her husband. Of-course, a husband as a rule, cannot give as dower property that does not belong to him but belongs to some one else including his father. An exception of this rule can be found if it is shown that the father of the husband agreed to do so/In the case of "Maj. Rifat Nawaz etc Vs. Mst. Tahira etc" referred to above, the father was held liable to transfer the house described in the nikah nama because he had thumb impressed the nikah nama which was construed as his agreement to give the house as dower.

9.  Besides the nikah nama, there can be some other mode, whereby, a father-in-law can be said to have agreed or consented to give his property as dower to his daughter-in-law. There is no rule that a father has vicarious liability to pay the debts of his son in the absence of an agreement to the contrary as appears to have been held in case of "Muhammad Siddique etc Vs. Shahab-ud-Din etc" (Supra). However, it is altogether a different situation when a father consents to give to his daughter-in-law his property in consideration of her marriage to his son. In such case, a father assumes direct liability which is different from being liable for the debts of his son. Such a consent can be implied and is visible even when the father has not signed or affixed his thumb impression on the nikah nama or any other document for giving his property to his daughter-in-law as dower.

10.  In the present case, the nikah nama has been signed by the Petitioner No. 1, but admittedly he was present at the time of nikah and there is no evidence that the nikah took place without his consent. It is common knowledge that at the time of nikah in our society, the bridegroom has a passive role, in so far as the answers to the questions in the nikah nama are concerned. Rather, the nikah nama is filled out with the consent and instructions of the respective fathers of the bridegroom and the bride or in their absence the respective elders of the two families.

11.  In his cross examination, the Petitioner No. 1 has not only admitted his presence at the time of his son's nikah on 6.8.2000 but has also admitted having knowledge of his house being written in the nikah nama as dower to Respondent No. 1. While admitting having knowledge of his house being given as dower, the Petitioner No. 1 quite unconvincingly stated that he did object to the mention of his house as dower. It sounds inconceivable that the Petitioner No. 1 could not ensure the exclusion of his house as dower when it was being entered in Column Nos.15 and 16 of the nikah nama. As such, the only inference one can draw is that the Petitioner No. 1 agreed to give his house as dower to Respondent No. 1.

12.  It is also to be noted that inspite of having knowledge that his house had been given as dower in the nikah nama dated 6.8.2000 the petitioner never took any steps to take any legal action for exclusion of the house from the nikah nama. In the circumstances, the petitioner did not object to his house being given as dower either at the time of nikah or later till the suit by Respondent No. 1 was filed.

13.  In view of the foregoing, I am of the view that the house mentioned in the nikah nama as dower for Respondent No. 2, even though, it did not belong to the husband of Respondent No. 1 is liable to be transferred to the Respondent No. 1 as the Petitioner No. 1 had given his consent for the same.

14.  As regards the question of the maintenance of the minor, the Courts below have rightly concluded that the Petitioner No. 1 as the grand father of the minor is liable to maintain the minor. The liability, of the Petitioner No. 1 to pay the maintenance for the minor would include past maintenance as well as future maintenance as the grand father is responsible to maintain his grand children in the absence of the father or on the inability of the father to maintain his children.

15.  For what has been discussed above, the writ petition is dismissed with no order as to costs.

(R.A.)      Petition dismissed.


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