Marriage without permission of first wife

PLJ 2000 Lahore 1793 (Rawalpindi Bench Rawalpindi)

Present: MUHAMMAD NAWAZ ABBASI, J.

Dr. SABIRA SULTANA-Petitioner

versus

MAQSOOD SULARI ADDITIONAL DISTRICT SESSION JUDGE RAWALPINDI & 2 others-Respondents

Writ Petition No. 2397 of 1999, heard on 4.5.2000. Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

—-S. 6(5)-Constitution of Pakistan (1973), Art. 199-Second marriage by husband in existance of first marriage without permission of first wife and Arbitration council-Wife's entitlement to claim deferred dower in such case-Where marriage was contracted in contravention of provision of S. 6(5) of Muslim Family Laws Ordinance, 1961, apart from penal offence and punishment prescribed for the same, husband was liable to pay immediately entire dower whether prompt or deferred to existing wife or wives and same was recoverable as arrear of land revenue-Where husband seek, permission for second marriage in presence of first wife from Arbitration Council, such council at the conclusion of proceeding issues certificate to husband but in present case respondent (husband) has not produced such certificate before Court-Perusal ofNikahnama of marriage of respondent with second wife also did not show that respondent contracted second marriage with permission of Arbitration council or with consent of petitioner-Classification of dower as prompt and deferred has no legal sanction behind it except the general practice in Muslim Society for the convenience of parties, therefore, deferment of payment of dower for indefinite period with consent of wife was not

1794 Lah.             DR. SABIRA SULTANA V. MAQSOOD SULARI

(Muhammad Nawaz Abbasi, J.)

PLJ

prohibited-Where however, wife makes demand of its payment, husband being under obligation to make payment of the same cannot further defer the same on any excuse-Provision of S. 6 (5) of Muslim Family Laws Ordinance, 1961 being not in conflict to Islam, it was mandatory for 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 permission-Decree passed by Family Court directing husband to pay dower to wife was restored while that of Appellate Court dismissing plaintiffs suit was declared to be illegal and of no consequence.

[Pp. 1797 to 1800] A, B, C & D

.

Mr. Ghufran Khurshid Imtiazi, Advocate for Petitioner. M/s Raja Mahmood Aslam & Raja Mahmood Hamid, Advocate for Respondents.

Syed Zakir Hussain Shah, Advocate as amicus curiae. Date of hearing; 4.5.2000.

JUDGMENT

This writ petition has been directed against the dismissal of a suit for recoveiy 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 Dauood Abdul Khaliq Mehr/Respondent No. 3 on 16.1.1992 at Karachi. The dower in the Nikah-nama 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 the wedlock 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 recoveiy 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  (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 whatperiod ? OPP. (2-A) Whether the plaintiff is entitled to get decree for restitution of conjugal 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 plaintiffs suit is not maintainable in its present form ? OPD

(3)         Relief.

Both the parties led their respective evidence. The petitioner herself appeared in the witnesses-box as PW-2 and also produced Fereha Malik as PW-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 Nikahnama with 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  DW-1  and Muhammad  Sadiq as  DW-2,  but the defendant 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 bythe 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 Judge having no other remedy has filed this Constitutional Petition before this Court. The issue under discussion being veiy sensitive and public importance, this petition was admitted to regular hearing through orderdated 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 Muslims Family Laws Ordinance, 1961, contends that in case of contract of second 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".

Learned counsel with reference to Section 6(5) of Muslim Family Laws  Ordinance  1961,  contends  that a  person who  contracts  second marriage without the permission of the Arbitration Council is bound to immediately pay the entire amount of the dower, whether prompt ordeferred, 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(Ex. 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 boundto give effect to the said provisions of law and in case of failure, the presumption would be of violation of mandatory provisions of law  thus the learned appellate Court in illegal exercise of jurisdiction has given judgment to the contrary. On the other hand, learned counsel representing the respondentwithout disputing the legal position contended that the provision of Section 6(5) of the Muslim Family Laws Ordinance 1961, is not invokeable in the present case for the following reasons :--

(i) That the deferred dower was fixed in the 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 the 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 the above contention has placed reliance on Binyamin and 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- Pay immediately the entire amount of the dower, whetherprompt or deferred, due to the existing wife or wives which amount if not so paid, shall be recoverable as arrears of land revenue; and 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 it the marriage is contracted in ontravention of this provisions 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 wives can seek dissolution of marriage on such ground. The second and third marriage in Islam ispermissible 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. The answer 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 onecontracts second marriage in violation of said condition, he is bound to face the consequence of the existing law, as not only the permission of anArbitration Council but prior consent of existing wife, or wives is essential. The deviation thereto will not invalidate the second marriage, but it isobligatory 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 thepermission of the petitioner. The statement made on oath by the petitioner that the respondent contracted second marriage without her consent and permission remained un-rebutted as the respondent did not himself appear in the 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 second marriage without the knowledge and hearing of the wife even if is 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 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 proceedingissues a certificate to the husband but in the present case, the respondent has not produced such certificate even before this Court. The perusal of Nikahnama of the marriage of respondent with second wife also did not show that the respondent contracted second marriage with permission of an Arbitration Council or with consent of the petitioner was obtained by him at 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 amicus curiae to assist the Court. Syed Zakir Hussain Shah. Advocate, in addition to his address has also submitted written arguments. He submitted that in general terms the dower is defined "Muajjal" and "Muwajjal" which is called prompt and deferred. The prompt dower is payable immediately on demand whereas deferred dower is payable at 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 in support of this view placed reliance on Kitab-al-Fiq Ala Al-Madhahib-Al-Arbaha by Abdul Rehman Al-Jazairi, Volume 4, page 153, Chapter of Nikah, published at Dar-al-Fikr, and Bidaie-As-Sanaie Fi Tarteeb Ash-Sharaie by Allama Abu Bakr Ala-ud-Din Al-Kasani 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 Quran, 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 clianged 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 a particular date or time, it shall not be payable before that date. A woman in case of desertion and neglect of maintenance or in case of contracts of second marriage by the husband without her permission and consent may with or without asking for Talaq can justifiably demand payment of dower. The provisions of Section 6(5) of the Muslim Family Laws Ordinance 1961, in case of second marriage by the husband without dissolution of first marriage or permission of the first wife and an Arbitration Council protects the right of first wife for immediate payment of dower, whether it has been described as prompt or deferred and this provision of law has no conflict with the Islamic concept of payment of dower. In Islam, the payment of dower is anessential obligation of the husband and failure thereto tantamounts to injustice and inequality. 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 withheld 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 second marriage without maintaining the first wife and payment of dower and thus in case of contract of second marriagewithout payment of dower to the first wife, the law does not permit withholding the payment of dower till the dissolution of marriage. The deferred dower is sort of guarantee for a woman against ill-treatment, non-maintenance, desertion or any other abnormality in the family life including rash and arbitrarily 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 Versa-124, Sura An-nisa,

"Seeing that you derive benefit from them, give them their dowers as prescribed".

There being no classification of the dower as prompt and deferred in the Holy Quran 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 to 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 permission.

9.      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 and of 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.

(A.A.)

Petition accepted.