PLJ 2001 Lahore 472
Present: MUHAMMAD NAWAZ ABBASI, J.
Dr. SABIRA SULTANA-Petitioner
versus
MAQSOOD SULARI, ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAWALPINDI & 2 others-Respondents
Writ Petition No. 2397 of 1999, heard on 4.5.2000. (i) Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
—S. 6-Without hearing first wife-Permission of Arbitration Council to contract second marriage-Validity of~Permission of Arbitration council to a person to contract second marriage without knowledge and hearing of first wife, even if given, is neither binding on her nor valid and legal.
[P. 478] C
(ii) Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
—S. 6(5)-Provisions of Section 6(5) of Ordinance being not in conflict with Islam, it is mandatory for husband to pay to first wife entire amount of dower, whether prompt or deferred, in case he contracts second marriage without dissolution of first marriage or permission of first wife and Arbitration Council. [P. 479 & 480] F & H
(iii) Muslim Family Laws Ordinance, 1961 (VIII of 1961)-
—-Ss. 6(5)(b) & 13-Second marriage-Permission of Arbitration Council- Absence of-Consequence of-Second marriage in existence of first marriage without permission of first wife and Arbitration Council is not void, but it is an offence punishable with imprisonment or fine or with both, and further husband is liable to pay immediately entire dower,whether prompt or deferred, to existing wife or wives-On such ground, existing wife or wives can seek dissolution of marriage u/Section 13 of Muslim Family Laws Ordinance, 1961. [P. 477] A (iv) Muhammad Law--
—Dower as Prompt & Deferred-Classification of~Concept of & wisdom behind—Whether this classification would negate concept of dower in Islam and defeat provisions of Muslim Family Laws Ordinance, 1961-Question of-In the Holy Qur'an and Sunnah, there is no classification of dower as prompt & deferred, but deferment of payment of dower for an indefinite period with consent of wife is not prohibited-Classification of dower as prompt & deferred has no legal sanction behind it except general practice in the Muslim Society for convenience of parties- Concept and wisdom of this classification depend upon better relations of parties and protection of right of a woman in un-foreseen circumstances without taking away her right of payment of dower till marriage is not dissolved-A person who contracts 2nd marriage without dissolution of marriage with first wife or wives and without their permission, then he cannot withhold payment of dower to first wife or wives on any excuse nd condition of dissolution of marriage for payment of deferred dower is not required-Postponement of payment of dower for an indefinite period would not mean that it cannot be claimed before dissolution of marriageand if it is considered as such, it would negate the concept of dower in Islam and defeat Muslim Family Laws Ordinance. [P. 480] G
Holy Qur'an, Verse 124, Sura-Al-Nisa rel. on. (v) Muhammadan Law--
—Prompt & Deferred dower-Distinction between-In what circumstances, deferred dower would be treated as prompt-Question of-Difference of Muwajjal and Muajjal i.e. deferred & prompt, is that prompt dower is payable immediately on demand and its payment cannot be postponed without consent of wife, whereas deferred dower is not payable till arrival of stipulated period and a woman in such case is not at liberty to refuse embraces of her husband as she has dropped her right of payment of dower till a specified time-If no specified time is fixed, dower described as deferred shall be prompt in nature to be paid on demand. [P. 479] E
Kitab-al-Fiq Ala Al-Madhahib-Al-Arabaha by Abdul Rehman Al-Jazairi, volume 4, page 153, Chapter of Nikah, published at Dar-al-Fikr; Bidaie-As- Sanai Fi Tarteeb Ash-Sharaie by Allama Abu Bakr Ala-ud-Din Al-Kasmi Al- Hanifi, Volume-II, page 288 ref.
(vi) Family Courts Act, 1964 (XXXV of 1964)--
—-S. 5 & Sched., read with Family Laws Ordinance, 1961, Section 6--Constitution of Pakistan (1973), Art. 199-Dower-Suit for-Second marriage without permission & consent of first wife-Plea & proof of~ Claim for dower was made by petitioner on ground that without her permission & consent, Respondent No. 3 contracted second marriage-Suit was contested through general attorney, who also appeared as witness on behalf of Respondent husband-Family Court decreed suit, but Appellate Court dismissed it-Held : Notwithstanding pleadings of parties, it was admitted fact that Respondent husband contracted second marriage without permission of petitioner to that effect, petitioner'sstatement made on oath remained un-rebutted as respondent husband himself did not appear in witness-box-Consent of first wife being a personal matter would be in exclusive knowledge of respondent and could not be pleaded through a third person, therefore, attorney of respondent, while appearing in witness-box on behalf of respondent, would not be in a position to rebut petitioner's statement on oath-Held further : Perusal ofNikahnama of second marriage of respondent also did not show that it was contracted with permission of Arbitration Council or that consent of petitioner was obtained by him at any stage-Writ petition was accepted and decree passed by Family Court was restored.
[Pp. 477 & 478, 480] B, D & H
1998 SCMR 336 ref.
Mr. Ghufran Khurshid Imtiazi, Advocate for Petitioner.
Raja Muhammad Aslam and Raja Muhammad Hamid, Advocate for Respondents.
Syed Zakir Hussain Shah: Amicus Curiae. Date of hearing: 4.5.2000.
judgment
This writ petition has been directed against the dismissal of a suit for recovery of dower by a learned Additional District Judge, Rawalpindi, through judgment, dated 16.10.1999 in an appeal filed by Respondent No. 3 against the decree passed by a learned Judge, Family Court at Rawalpindi, in the said suit.
2. The facts of the case in the background are that the petitioner namely Dr. Sabira Sultana was married with Dawood Abdul Khaliq Mehr/ Respondent No. 3 on 16-1-1992 at Karachi. The dower in the Nikahnama at the time of marriage was fixed fifty thousand Sterling Pound as deferred-and in addition to the cash amount, a house Bungalow Bearing No. D/53, North Karachi of the value of rupees twenty lacs was also given to the petitioner. The respondent also executed an affidavit in acceptance of his liability to pay the dower. The Nikah of the petitioner with Respondent No. 3 was performed at Karachi and a child namely Tala Mehar was born out of thewedlock and later the respondent proceeded abroad and after spending some period in Saudi Arabia went to U.K. Subsequently, the respondent contracted a second marriage and the petitioner was deserted who with her son Tala Mehar shifted to Rawalpindi and filed a suit for recovery of dower in the Family Court at Rawalpindi against the respondent in May, 1995. The respondent contested the suit through his attorney and in the light of the pleadings of the parties, the learned Family Judge framed the following issues :--
(1) Whether the plaintiff has got no cause of action to file the instant suit ? OPD
(2) Whether the plaintiffs are living separately as they have been neglected by the defendant and they are entitled to receive their maintenance, if so, at what rate and for what period? OPP
(2-A) Whether the plaintiff is entitled to get decree for restitution of coty ugal rights as prayed for? OPP
(2-B) Whether the plaintiff is entitled to get decree for recovery of dower, a House/Bungalow No. D-53, North Karachi, as well as fifty thousand Sterling Pounds as prayed for? OPP
(2-C) Whether the plaintiff's suit is not maintainable in its present
form ? OPD
(3) Relief.
3. Both the parties led their respective evidence. The petitioner herself appeared in the witness-box as P.W. 2 and also produced Fareha Malik as P.W. 1. She in addition also produced documentary evidence in the form of her Nikahnama with the respondent with an affidavit of the respondent and his Nikahnamawith the second wife whereby he contracted marriage during the existence of marriage with the petitioner without her permission. In rebuttal, on behalf of defendant Mirza Khan, his general attorney appeared as D.W. 1 and Muhammad Sadiq as D.W.2, but thedefendant himself did not appear in the witness-box. Learned Family Judge with a detail discussion of the evidence of the parties on each issue separately decreed the suit in favour of the petitioner through judgment, dated 23.12.1998. However, in appeal filed by the respondent, the learned Additional District Judge, Rawalpindi, while reversing the verdict given by the learned trial Judge dismissed the suit of the petitioner with the observations that the dower being deferred, the amount of dower was not payable on demand during the existence of first marriage and was payable either on death or divorce. Consequently, the appeal of the respondent was allowed through judgment, dated 16.10.1999. The petitioner being aggrieved of the judgment given by the learned Additional District having no other remedy has filed this Constitutional petition before this Court.
4. The issue under discussion being very sensitive and of public
importance, this petition was admitted to regular hearing through order, dated 29.11.1999. The point raised was incorporated in the order as under :--
"Learned counsel for the petitioner with reference to Sub-section (5) of Section 6 of the Muslim Family Laws Ordinance, 1961, contends that in case of contract of seocnd marriage by a husband in existence of first marriage, he is bound to immediately pay the entire amount of dower whether payable as prompt or deferred to the existing wife.He submits that the learned Appellate Court was wrong in holding that deferred amount of dower can only be claimed after dissolution of marriage or divorce."
5. Learned counsel with reference to Section 6(5) of Muslim Family Laws Ordinance, 1961, contends that a person who contracts second m rriage without the permission of the Arbitration Council is bound to immediately pay the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives and in case of failure, the amount
shall be recoverable as arrears of land revenue. He submitted that the fact that respondent contracted a second marriage in existence of the first marriage with the petitioner without permission is not denied and added that Nikahnama (Exh. P.2) of the marriage of respondent with second wife available on record also did not show that the second marriage was contracted with the permission of the petitioner, or the Arbitration Council. He submitted that the second marriage of the respondent is an admitted fact, but there is no evidence of the permission of the petitioner or an Arbitration Council, as the case may be, and concluded that although the bar of second marriage was not specifically taken in the plaint with reference to Section 6(5) of the Muslim Family Laws Ordinance, 1961, but the second marriage without permission being prohibited under law, the respondent was bound to give effect to the said provisions of law and in case of failure, the presumption would be of violation of mandatory provisions of law andthus, the learned Appellate Court in illegal exercise of jurisdiction has given judgment to the contrary.
shall be recoverable as arrears of land revenue. He submitted that the fact that respondent contracted a second marriage in existence of the first marriage with the petitioner without permission is not denied and added that Nikahnama (Exh. P.2) of the marriage of respondent with second wife available on record also did not show that the second marriage was contracted with the permission of the petitioner, or the Arbitration Council. He submitted that the second marriage of the respondent is an admitted fact, but there is no evidence of the permission of the petitioner or an Arbitration Council, as the case may be, and concluded that although the bar of second marriage was not specifically taken in the plaint with reference to Section 6(5) of the Muslim Family Laws Ordinance, 1961, but the second marriage without permission being prohibited under law, the respondent was bound to give effect to the said provisions of law and in case of failure, the presumption would be of violation of mandatory provisions of law andthus, the learned Appellate Court in illegal exercise of jurisdiction has given judgment to the contrary.
6. On the other hand, learned counsel representing the respondent without disputing the legal position contended that the provision of Section 6(5) of the Muslim Family Laws Ordinance, 1961, is not invokable in the present case for the following reasons :--
(i) That the deferred dower as fixed in Sterling Pound as a security to restrain the respondent from giving Talaq to the petitioner which would be only payable in case of Talaq and the terminable point for payment of dower amount was not on the demand of the petitioner.
(ii) That no evidence was on record to the effect that the respondent contracted second marriage without the permission of the Arbitration Council and that this ground having not taken in the plaint, could not be read in the pleadings of the parties and consequently, no issue was framed and thus, there could be no presumption of the fact that the second marriage was solemnized by the respondent without the permission of Arbitration Council.
Learned counsel argued that the issue relating to the controversial question of fact having not framed, the findings given by the Family Court if are upheld and that of the Appellate Court are disturbed on the ground that the second marriage was solemnized without the permission of the petitioner or an Arbitration Council, it would amount to deprive the respondent from the right of rebuttal and prove that second marriage was solemnized with permission of the Arbitration Council. Learned counsel in support of theabove contention has placed reliance on Binyamin and 3 others v. Chaudhry Hakim and another (1996 SCMR 336).
7. For the benefit of disposal of the legal issue involved in this petition, at the first instance, the examination of the provisions of Section 6(5) of the Muslim Family Laws Ordinance, 1961, is necessary, which is read as under:-
"Any man who contracts another marriage without the permission of the Arbitration Council shall—
(a) pay immediately the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives whichamount if not so paid, shall be recoverable as arrears of land revenue; and
(b) on conviction on complaint be punished with simple imprisonment which may extend to one year or with fine which may extend to five thousand rupees, or with both."
8. It is clear from the above-referred provisions of law that the second marriage in existence of first marriage, without the permission of first wife and Arbitration Council, is not void, but in case of contract of second marriage in presence of first wife without permission it'is an offence which is punishable with simple imprisonment which may extend to one year, or with fine which may extend to Rs. 5,000 or with both and further if the marriage is contracted in contravention of this provision of law, the husband is liable to pay immediately entire dower whether prompt or deferred to the existing wife or wives and the same is recoverable as arrears of land revenue. It is also provided under Section 13 of the Muslim Family Laws Ordinance, 1961, that the existing wife, or waives can seek dissolution of marriage on such ground. The second and third marriage in Islam is permissible on the basis of principle of equality and justice in all matters including love and affection. Therefore, the question either without proper maintenance and payment of dower, whether prompt or deferred to an existing wife or wives, on her demand, the second marriage would be prohibited, is that as per mandate of Islam as well as the enacted law dealing with the matter, subject to the fulfillment of conditions given therein, there is no prohibition to go for a second marriage and if some one contracts second marriage in violation of said condition, he is bound to face the consequence of the existing law, as not only the permission of an Arbitration Council but prior consent of existing wife, or wives is essential. The deviation thereto will not invalidate the second marriage, but it is obligatory on the husband to make payment of dower to an existing wife or wives, forthwith in addition to any other penalty provided under the law. In the present case, notwithstanding pleadings of the parties, it is an admitted fact that the respondent contracted a second marriage without the permission of thepetitioner. The statement made on oath by the petitioner that the respondent contracts second marriage without her consent and permission remained unrebutted as the respondent did not himself appear in the
n witness-box. The consent of the wife being a personal matter, would only be in the exclusive knowledge of the respondent and could not be pleaded through a third person, therefore, the attorney of the respondent, while appearing in the witness-box on behalf of the respondent, would not be in a position to rebut the statement of the petitioner on oath. It is not out of place to mention that under the Family Laws Ordinance, 1961, the permission of an Arbitration Council to a person to contract seocnd marriage without the knowledge and hearing of the wife, even if given, is neither binding on the wife nor valid and legal. Thus, such a permission, if any, by an Arbitration Council on an application of the respondent without the knowledge of the petitioner and behind her back, was of no legal force and would not be binding on her. Therefore, the plea that the ground of second marriage without permission of an Arbitration Council having not been specifically taken in the plaint, the presumption of the existence of permission would be raised in favour of the respondent. In a case in which husband seeks permission for second marriage in presence of first wife from an Arbitration Council, the said Council, at the conclusion of proceedings, issues a certificate to the husband, but in the present case, the respondent has notproduced such certificate even before this Court. The perusal of Nikahnama of the marriage of respondent with second wife also did not show that
respondent contracted seocnd marriage with permission of an Arbitration Council or that the consent of the petitioner was obtained by him any stage.
9. In view of the importance of the matter, Syed Zakir Hussain Shah, an Advocate of this Court, who, is a Law Graduate from Islamic University, Islamabad, was associated with the proceedings, as amicits curiae to assist the Court. Syed Zakir Hussain Shah, Advocate, in addition to his address has also submitted written arguments. He submitted that in general terms the dower is denned "Muajjal" and "MuwajjaT which is called prompt and deferred. The prompt dower is payable immediately on demand whereas deferred dower is payable at a specified time and that on consummation of marriage, the dower is right of the wife, whether prompt or deferred and there is no difference of opinion between the Jurists regarding the payment of prompt dower at the time of marriage or when it is demanded by the wife.However, the various schools of thoughts have divergent opinion about the payment of deferred dower. According to "Hanfi Fiqha" to which the parties belong if the deferment or postponement of the dower is not specified and is generally described as deferred, this dower will be considered prompt and shall be payable accordingly. The learned counsel is support of this view placed reliance on Kitab-al-Fiq Ala Al-Madhahib-Al-Arbaha by Abdul Rehman Al-Jazairi, Volume 4, page 153, ChapterofNikah, published at Dar- al-Fikr, and Bidaie-As-Sanaie Fi Tarteeb Ash-Sharaie by Allama Abu Bakr Ala-ud-Din Al-Kasmi Al-Hanifi, Volume II, page 288. He firmly stated that the view that deferred dower is not payable unless the marriage is dissolved is not supported by any recognized principle based on some authority whereas on the other hand, the deferred dower shall always be treated as prompt if no specified period for the payment of dower is fixed. He added that this view being in conformity to the command of Holy Qur'an, therefore, under the provisions of Section 6(5) (a) of the Muslim Family Laws Ordinance, 1961, the immediate payment of the entire amount of dower, whether prompt or deferred is obligatory in such cases.
10. Having heard the learned counsel, I find that notwithstanding the controversy, whether the dower is prompt or deferred, it is established that the dower is an exclusive right of the wife. However, there are no bounds to the quantity or value of the dower, which is left entirely to the will of the husband and wife. The payment of dower should be specified in such a manner so as to remove uncertainty and the payment of dower is the responsibility of the husband. A woman is not obliged to surrender her person till she receives her dower. However, the position may be changed after the marriage is consummated but in any case, the dower being the property of the wife, she can insist for its payment and use as per her right and a husband cannot justifiably deprive her while withholding the payment of dower for an indefinite period on the ground that the dower was Muwajjal or deferred. The only difference of Muwajjal and Muajjal i.e. deferred and prompt is that deferred dower is not payable till the arrival of stipulated period whereas prompt dower is payable immediately on demand and if for the payment of deferred dower no stipulated time is fixed, it would be treated as prompt, payable on demand. Thus, the only distinction between a prompt and deferred dower is that payment of prompt dower cannot be postponed without the consent of the wife, whereas the payment of deferred dower cannot be demanded before the stipulated period and a woman in such case is not at liberty to refuse the embraces of her husband as she has dropped her right of payment of dower till a specified time and if no specified time is fixed the dower described as deferred shall be prompt in nature to be paid on demand. The deferred dower without specification of period or stipulation, shall be payable at any time and if the same is deferred till aparticular date or time, it shall not be payable before that date. A woman in case of desertion and neglect of maintenance or in case of contracts of second marriage by the husband without her permission and consent may, with or without asking for Talaq, can justifiably demand payment of dower. The provisions of Section 6(5) of the Muslim Family Laws Ordinance, 1961, in case of second marriage by the husband without dissolution of first marriage or permission of the first wife and an Arbitration Council, protects the right of first wife for immediate payment of dower, whether it has been described as prompt or deferred and this provision of law has no conflict with theIslamic concept of payment of dower. In Islam, the payment of dower is an essential obligation of the husband and failure thereto tantamount^ to injustice and inequity. The classification of dower as prompt and deferred has no legal sanction behind it except the general practice in the Muslim Society for the convenience of the parties. Normally, women do not demand payment of full dower which is fixed at the time of marriage and only a portion of the dower is paid before consummation of marriage and the remaining dower is deferred to be paid later which does not mean that either it was waived or was treated as deferred till dissolution of marriage. The concept and wisdom in this classification of dower as prompt and deferred depend upon the better relations of parties and protection of right of a woman in unforeseen circumstances without taking away her right of demand of payment of dower till the marriage is not dissolved. A person who contracts second marriage without dissolving marriage with first wife or wives and without their permission, he cannot withhold the payment of dower to the first wife or wives on any excuse and the condition of dissolution of marriage for payment of deferred dower is not required. The postponement of the payment of dower for an indefinite period would not mean that the same cannot be claimed before the dissolution of marriage and if it is considered as such, it would negate the concept of dower in Islam as well as defeat the Muslim Family Laws Ordinance, 1961. A person is not supposed to contract a seocnd marriage without maintaining the first wife and payment of dower and thus, in case of contract of second marriage without payment of dower to the first wife, the kw does not permit withholding the payment of dower till the dissolution of marriage. The deferred dower is sort of guarantee for a woman against ill-treatment, non-maintanence, desertion or any other abnormality in the family life including rash and arbitrary divorce whereas the prompt dower is payable either at the time of marriage or at any subsequent time when it is demanded by the wife. Thus, the payment of deferred dower is deemed to be postponed till either the specified time and if no time is specified, till the wife demands it. It is laid down in Holy Qur'an in Verse 124, Sura Al-Nisa :--
"Seeing that you derive benefit from them, give them their dowers as prescribed."
There being no classification of the dower as prompt and deferred in the Holy Qur'an and Sunnah, the deferment of the payment of dower for an indefinite period with the consent of the wife is not prohibited, but if a wife makes demand of its payment, the husband being under an obligation to make payment of the same, cannot further defer it on any excuse. The provisions of Section 6(5) of the Muslim Family Laws Ordinance, 1961 being not in conflict with Islam, it is mandatory for a husband to pay entire amount of dower, whether prompt or deferred, in case of entering into contract of second marriage in presence of first wife without her permission.
11. For the foregoing reasons, this petition succeeds and the judgment of the learned Additional District Judge by virtue of which the suit of the petitioner for recovery of dower stood dismissed, is declared illegal andof no consequence. The judgment and decree passed by the Family Court shall hold the field and the decree shall be executed accordingly. This writ petition is allowed with no order as to costs.
12. The assistance rendered by Syed Zakir Hussain Shah, Advocate, in delivering this judgment is highly appreciated. I, therefore, in lieu of his assistance direct the petitioner to make payment of Rs. 10,000 to him as reward within one month through the Additional Registrar of this Court
(S.A.K.) Petition accepted.
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