Dower Amount can be enhanced by Husband during subsistence of Marriage

 PLJ 2006 Lahore 1260

Present: Muhammad Muzammal Khan, J.

ABDULLAH--Petitioner

versus

NAILA ASLAM and 3 others--Respondents

W.P. No. 1468 of 2006, decided on 22.6.2006.

Family Courts Act, 1964 (XXX of 1964)--

----Ss. 5 & 7--Muslim Family Law Ordinance, (VIII of 1961), S. 9--Constitution of Pakistan, 1973, Art. 199--Suit for granting of maintenance allowance and recovery of dower amount as per agreement--Suit decreed and appeal was dismissed--Assailed--Enhancement of dower amount--Husband did not refuse his liability to pay maintenance allowance awarded to wife and minor son--Wife could not prove enhancement of dower amount and agreement by her was forged--Wife claimed in plaint, not only produced agreement executed by husband enhancing the dower amount but also examined its marginal witnesses--Denial of execution by the petitioner appeared to be after thought and was put forth just to avoid liability to pay enhanced dower amount--No effort on his behalf was ever made for comparison of signature from handwriting expert by moving application before Courts below which negatively reflects on his stance in written statement--Held: Dower amount was fixed in nikahnama but same under Islamic Law could have been enhanced by husband at any time during subsistence of marriage--Lawful decision within jurisdiction could not be substituted on petition and dismissed.     [P. 1262] A & B

Rana Muhammad Saleem Akhtar, Advocate for Petitioner.

Date of hearing: 22.6.2006.

Order

Instant Constitutional petition prayed judgments/decrees dated 5.4.2005 and 23.1.2006 passed by the learned Judge Family Court and the learned Additional District Judge, Faisalabad (Respondents Nos. 3 and 4) to be declared illegal, void and of no legal consequence, whereby suit filed by Respondent No. 1 for grant of maintenance allowance and dower amount was decreed and the petitioner's appeal was dismissed, respectively.

2.  Succinctly, relevant facts are that petitioner entered into a tie of marriage with Mst. Naila Aslam (Respondent No. 1) on 11.3.2001 through a registered Nikahnama according to Muslim rites. This marriage led to birth of a male child Muhammad Hassan (Respondent No. 2) but relations between the spouses did not remain cordial and after separation, ended into a divorce on 29.6.2002. Respondent No. 1 on her own behalf and on behalf of Respondent No. 2 filed a suit for recovery of her outstanding dower amount of Rs. 100,000/- alongwith maintenance allowance for both of them at the rate of Rs. 5000/- per month. She pleaded in her plaint that divorce dated 29.6.2002 was revoked on 2.8.2002 with the condition of enhancement of dower amount from Rs. 500/- to Rs. 100,000/- besides payment of maintenance allowance at the rate of Rs. 5000/- per month and these conditions were reduced to writing in form of an agreement dated 15.8.2002. She further averred that petitioner left for Saudi Arabai and did not pay the dower amount or maintenance allowance, as per agreement inter parties.

3.  Petitioner being defendant in the suit, contested the same by filing his written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Judge Family Court, seized of the matter, after doing the needful, decreed the suit of Respondents Nos. 1 and 2 and awarded maintenance allowance to Respondent No. 1 at the rate of Rs. 2000/- per month till her Iddat period whereas to Respondent No. 2 at the rate of Rs. 1500/- per month till his majority. Respondent No. 1 was also awarded decree for her outstanding dower amount of Rs. 100,000/-, through the judgment/decree dated 5.4.2005.

4.  Petitioner aggrieved of decision of the trial Court filed an appeal before the learned Additional District Judge, Faisalabad, but remained unsuccessful as the same was dismissed on 23.1.2006. He has now filed instant petition with the prayer noted above.

5.  I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Petitioner did not refuse his liability to pay maintenance allowance awarded to either of Respondents Nos. 1 and 2 but his main stress was against the decree awarded to Respondent No. 1 for dower amount of Rs. 100,000/-. It was contended that Respondent No. 1 could not prove enhancement of dower amount and the agreement relied by her was forged/fictitious. Respondent No. 1 in support of her claim in the plaint, not only produced an agreement executed by the petitioner enhancing the dower amount as Ex.P.1 but also examined its marginal witnesses. Both the Respondents Nos. 3 and 4 have compared signatures of the petitioners on Ex.P.1 with his admitted signatures on Exh.D.1 and have returned specific findings that both the signatures tally to each other. Petitioner himself is living in Saudi Arabia and in his absence, his special attorney appeared in the witness box a DW.1, who alongwith other witness DW.3, deliberately avoided to admit signatures of the petitioner on Exh.D.1 though this document was sent by him through Embassy of Pakistan at Riyadh, Saudi Arabia. Denial of execution of Exh.P.1 by the petitioner, appears to be afterthought and was put forth just to avoid liability to pay enhanced dower amount, as no effort on his behalf was ever made for comparison of signatures from some handwriting expert by moving any application before the trial or appellate Court or even by making such request during the course of hearing of instant petition, which negatively reflects on his stance in the written statement. No doubt, initially the dower amount was fixed as Rs. 500/- in the Nikahnama but the same under Islamic Law could have been enhanced by the husband at any time during the subsistence of marriage. File is absolutely thirsty of the proof that petitioner ever since his compromise with Respondent No. 1 reverted back to his married life or discharged his obligations under the agreement, voluntarily executed by him. Respondent No. 1 since her desertion is leading an isolated life and has devoted herself for bringing up of Respondent No. 2, which should have been shared by the petitioner. Keeping in view sacrifices of Respondent No. 1 and her contribution towards the brought up of offshoot of the parties, I refrain to exercise my Constitutional jurisdiction in aid of the petitioner. Scan of record and impugned judgments revealed that lis was correctly concluded without committing any error of law.

6.  For the reasons noted above, no case for interference in Constitutional  jurisdiction  was  made out. Even otherwise, a lawful decision within the ambit of conferred jurisdiction cannot be substituted on this petition, which being devoid of any merit, is dismissed in limine.

(Waseem Iqbal Butt)           Petition dismissed