Suit for Jactitation of Marriage Judgment

PLJ 2010 Sh.C. (AJ&K) 1

Present: Iftikhar Hussain Butt, J.

PARVEEN NAZ & another--Appellants

versus

CH. MAQBOOL AHMAD and 4 others--Respondents

Civil Appeal No. 116 of 2005, decided on 10.4.2009.

Nikahnama--

----Suit for jactitation of marriage was dismissed for want of proof--Suit for restitution of conjugal right was decreed--Challenge to--Controversy between the parties--Question of--Whether appellant was married or not--Burden to prove--Non-production of attesting witnesses--Non-availability of nikahnama or attesting witnesses of `nikahnama' will not adversely affect the case of respondent in peculiar facts and circumstances of the case, which is otherwise abundantly proved.  [P. 7] A

PLD 1973 Baghdad-ul-Jadid 48, rel.

Nikah Ceremony--

----The absence of witnesses of "Nikah" ceremony would not make the marriage void but only irregular whereas void but only irregular whereas a marriage duly performed in presence of two persons cannot be described as invalid in any case.     [P. 8] B

PLD 1950 Lah 504, rel.

Mr. Azad Khan Tareen, Advocate for Appellants.

Syed Arshad Gillani, Advocate for Respondents.

Date of hearing: 10.4.2009.

Judgment

This appeal has been directed against the decision and decrees of learned Judge Family Court, Muzaffarabad dated 30.07.2005, whereby the suit filed by Appellant No. 1 was dismissed for want of proof and a decree for restitution of conjugal right was passed in favour of Respondent No. 1.

The necessary facts forming the background of instant appeal are that Mst. Parveen Naz, Appellant No. 1 filed a suit for jactitation of marriage against Respondent No. 1, herein. She averred that she was married to Muhammad Munir in her child-hood but after attaining puberty she dissolved the marriage at her own and obtained divorce from him on 8.8.2002. She further contended that other respondents after killing her father planned to sell her to some different people but she liked Imran Jadoon, Appellant No. 2 and wanted to marry him. For the purpose she appeared before Magistrate 1st class Muzaffarabad on 27.1.2005 and stated that she wanted to marry to Appellant No. 2 but Respondents Nos. 2 to 5 wanted to sell her to some other persons. She has married to Appellant No. 2 on 5.12.2004 but on account of a fictitious case initiated by Respondent No. 1, city police Muzaffarabad arrested her and Appellant No. 2 on 4.02.2005 but they were released on bail by Shariat Courton 30.03.2005. The Appellant No. 1 also stated that she was never married to Respondent No. 1 and did not admit the fake `Nikahnama'. She further prayed that a decree for jactitation of marriage against Respondent No. 1 may be passed and Respondents Nos. 2 to 5 be ordered not to intervene in lives of the appellants. The respondents, who filed their written statements, refuted the allegations leveled in the plaint. The respondents submitted that Appellant No. 1 after obtaining divorce from Muhammad Munir contracted `Nikah' with Respondent No. 1 on 11.2.2003 in lieu of dower Rs. 50,525/- at Karachi in presence of her mother and brother. The respondent further stated that on 24.3.2003, Appellant No. 1 filed a suit for dissolution of her marriage, which was dismissed on 13.8.2003 as withdrawn, which proves that Appellant No. 1 was married to Respondent No. 1. The respondents also submitted that after `Nikah' the Appellant No. 1 remained populated with Respondent No. 1 and has been performing marital obligations but on 24.7.2004, she left her house in his absence and after searching her, he lodged an F.I.R on 26.07.2004 whereby Appellant No. 1 was recovered from the house of the Appellant No. 2 on 4.2.2005. The respondents further stated that Appellant No. 1 has contracted second marriage without obtaining divorce from him; therefore, she has got no cause of action and her suit entails dismissal.

In the light of pleadings of the parties the learned Judge Family Court framed the following issues:--

1.    Whether the plaintiff is entitled to a decree for jactitation of marriage? OPP.

2.    In case Issue No. 1 is not proved whether Defendant No. 1 is husband of the plaintiff? OPD.

3.    Relief.

Ch. Maqbool Ahmed, Respondent No. 1 also filed a suit for restitution of conjugal rights before Judge Family Court on 30.6.2006 whereby he repeated the story narrated in his written statement mentioned above, whereas the appellants and others also refuted his suit and repeated the submission averred in the suit for jactitation of marriage filed by Appellant No. 1.

In the light of above stated suit for restitution of conjugal rights, an additional issue was framed on 6.7.2005 in the following manner:--

Whether Respondent No. 1 is entitled to a decree for restitution of conjugal rights? OPD.

The learned Judge Family Court consolidated both the suits and proceeded in the suit filed for jactitation of marriage.

In support of her suit, Mst. Parveen Naz entered into the witness-box and produced Abdul Jalil Qureshi `Nikahkhawan', Ghulam Khan the maternal uncle of Appellant No. 2 and Khani Zaman father of Appellant No. 2 as her witnesses. She also produced `Nikahnama' Exh.PA and copy of the judgment of Family Court dated 17.2.2004 Exh.PB.

On the other hand, Respondent No. 1 also appeared in the witness-box and produced Muhammad Siddique, his father, Mst. Khanum Noor, mother of Appellant No. 1 and Muhammad Shafique brother of Appellant No. 1 as his witnesses. The respondents also produced documents `Nikahnama' Exh.PA, a certified copy of the suit for dissolution of marriage filed by Appellant No. 1 in Karachi Family Court Exh.DB, a copy of compromise deed Exh. DC, a copy of the private complaint Exh.DD, a copy of the challan report Exh.DE, the statement of Appellant No. 1 and her witness, who identified her Exh.DF, a copy of divorce deed Exh.DH and, copy of an agreement deed Exh.DH in support of his claim.

After completion of the proceedings, the learned Judge Family Court dismissed the suit filed by Mst. Parveen Naz Appellant No. 1 for want of proof and passed a decree for restitution of conjugal rights in favour of Ch. Maqbool Ahmed Respondent No. 1, against Appellant No. 1 vide its decision dated 30.07.2005. Hence this appeal.

Azad Khan Tareen, the learned Counsel for the appellant argued with vehemence that the respondents have produced a Photo-stat copy of `Nikahnama' which cannot be relied upon because fake thumb impressions have been affixed upon it. The learned Counsel pointed out that the Appellant No. 1 after obtaining divorce from Munir Ahmed contracted second marriage with Appellant No. 2 but a fake case was registered against appellants and they were arrested by the police. The learned Counsel further contended that during earthquake the challan file has perished; therefore, original Nikahnama could not be produced before the court below. The learned Counsel pressed into service the submission that the appellants have produced Nikahkhawan and the witnesses present at the time of `Nikah' ceremony who have fully supported the version of the appellants but the learned Judge Family Court ignored the cogent and trustworthy evidence while relying upon the evidence of related and interested witnesses produced by respondents. The learned Counsel also submitted that Respondent No. 1 neither produced Nikahkhawan nor any of the witnesses present at the time of `Nikah' ceremony. The learned counsel laid great stress upon the point that respondents have produced a copy of the judgment of Judge Family Court Karachi about another Parveen Bibi his ex-wife whereby the Appellant No. 1 has clearly stated in her deposition that she has contracted second marriage with Appellant No. 2 with her freewill; therefore, the court below fell in grave error while dismissing the suit filed by Appellant No. 1. In support of the arguments, the learned counsel referred to me the following case law:--

1.    1995 CLC 531.

2.    PLJ 2004 AJK 58.

On the other hand, Syed Arshad Gillani, the learned counsel for the respondents vigorously argued that Respondent No. 1 has produced original Nikahnama Exh. DA to prove the factum of his Nikah. The learned Counsel further contended that respondent has also produced a copy of private complaint Exh.DD filed by Appellant No. 1 whereby she admitted to be wife of Respondent No. 1. The learned Counsel also referred to the statement of appellant Exh.DF dated 25.6.2004, whereby she admitted the fact that she is residing with her husband, Respondent No. 1. The learned Counsel pointed out that Appellant No. 1 in her statement recorded on 27.1.2005 submitted before the court that she wanted to marry Imran Jadoon, Appellant No. 2; therefore, the story of Nikah ceremony dated 5.12.2004 has been refuted by herself; thus, Nikahnama Exh.PA is vague and not trustworthy. The learned Counsel laid great stress upon the point that Appellant No. 1 has admitted the Para (6) of the suit for restitution of conjugal rights filed by Respondent No. 1, thus, she has admitted that she is wife of Respondent No. 1 and now she is debarred from taking a different stance. The learned Counsel submitted that it has been amply proved on the record by oral as well as documentary evidence that Appellant No. 1 was married to Respondent No. 1 therefore, till the first marriage exists, Appellant No. 1 was not legally allowed to contract a second marriage; therefore, the Court below did not commit any error or illegality while dismissing her suit. The learned counsel defended the impugned decision and decrees on all counts.

I have given my due consideration to the arguments addressed at Bar and perused the case-law cited by the learned Counsel for the appellants. The controversy between the parties is as to whether Appellant No. 1 was married to Respondent No. 1 or not. In this regard, the burden to prove the fact that Appellant No. 1 was never married to Respondent No. 1 was laid upon the shoulders of Appellant No. 1. To prove her claim, the appellant not only herself entered into the witness box but she also produced Abdul Jalil Qureshi Nikahkhawan, Gnulam Khan and Khanizaman as her witnesses. All the above-mentioned witnesses are closely related to Imran Jadoon, Appellant No. 2. Khanizaman is his father, Ghulam Khan is his maternal uncle whereas daughter-in-law of Abdul Jalil is sister of Appellant No. 2 but according to the perusal of aforesaid evidence, the appellants have tried to prove that Appellant No. 1 was married to Appellant No. 2 on 5.12.2004. In this context, a certified copy of `Nikahnama' Exh.PA and a certified copy of the suit for restitution of conjugal rights filed by Respondent No. 1 against her ex-wife were produced. During the course of cross-examination, it was admitted by Abdul Jalil Qureshi Nikahkhawan that at the time of `Nikah' ceremony, he was not informed that Appellant No. 1 was married to Respondent No. 1; however, after 3/4 months of `Nikah' when a case was registered against the appellants and others, he came to know that there was a lot of confusion and chaos about the aforementioned marriage. On the contrary, the respondents refuted the claim of Appellant No. 1 and categorically proved the fact that Appellant No. 1 was married to Respondent No. 1 on 11.2.2003. In this regard, an original `Nikahnama' Exh.DA was produced by Respondent No. 1 and he deposed his version in detail. He also produced a copy of the suit for dissolution of marriage filed by Appellant No. 1 before Judge Family Court Karachi dated 24.3.2003 and document Exh.DC a copy of the withdrawal of aforementioned suit dated 13.8.2003, which proves the fact that Appellant No. 1 was married to Respondent No. 1 on 11.2.2003. The respondent also produced a copy of private complaint under Section 107, Cr.P.C presented before a Criminal Court at Muzaffarabad dated 25.6.2004 Exh.DD, which shows that Mst. Parveen Naz was wife of Respondent No. 1 at that time. The statements of Mst. Parveen Naz dated 25.6.2004 and of Respondent No. 1 as a witness of the complaint Exh.DF have also been produced to prove the factum of marriage. Thereafter, a copy of challan report under Section 173, Cr.P.C Exh.DE was also produced whereby after investigation of the case, I.O. reached the conclusion that Mst. Parveen Naz was wife of Respondent No. 1, who was abducted by the accused-persons including Appellant No. 2 and `Zina' has been committed with her. The Respondent No. 1 has further produced a divorce deed Exh.DG and an agreement deed Exh.DH executed by Appellant No. 1 whereby she obtained divorce from Muhammad Munir her ex-husband and thereafter she solemnized second marriage with Appellant No. 2. Besides the above mentioned documentary evidence, Respondent No. 1 has produced Muhammad Siddique, his father, Mst. Khanum Noor, the mother and Muhammad Shafique brother of Appellant No. 1 as his witnesses, who have fully supported the version of Respondent No. 1 and deposed that they participated in the marriage ceremony of Appellant No. 1 with Respondent No. 1 at Karachi. They also supported the contents of `Nikahnama' Exh.DA. The other party has also admitted the presence of Mst. Khanum Noor and Muhammad Shafique, the witnesses for the respondents, during the cross-examination upon Respondent No. 1 whereby it was suggested to him whether it is correct that Mst. Khanum Noor and Muhammad Shafique were present in `Nikah' ceremony. In this manner, the appellants have admitted the presence of both the above mentioned witnesses for Respondent No. 1 at the time of marriage.

It will not be out of place to mention here that in para (6) of the suit for restitution of conjugal rights filed by Respondent No. 1, it was averred that Appellant No. 1 in connivance with other defendants contracted second marriage without obtaining divorce from him and she also filed a private complaint under Section 107, Cr.P.C before a Criminal Court Muzaffarabad, whereby she admitted to be the wife of Respondent No. 1 on 25.6.2004 but the filing of private complaint whereby Appellant No. 1 stated to be the wife of Respondent No. 1 was admitted as correct by the appellants and other defendants of the suit whereas other part of the aforesaid para was also not specifically denied. In this manner, the appellants have admitted the fact that before contracting marriage with Appellant No. 2, the relation of Appellant No. 1 with Respondent No. 1 was in existence till 25.6.2004.

In the light of above stated oral and documentary evidence, the appellants have miserably failed to prove the fact that Appellant No. 1 was never married to Respondent No. 1 rather it has been proved on the record that on 11.2.2003 Appellant No. 1 was married to Respondent No. 1 at Karachi in presence of her mother, brother, father of Respondent No. 1 and other family members and the above relation still survives.

It will be relevant to note here that according to appellants they married on 5.12.2004 but in Para (4) of her plaint, she averred that on 27.1.2005, she appeared before Magistrate 1st Class Muzaffarabad and stated that she wanted to marry to Appellant No. 2. If she would have already married to Appellant No. 2 on 5.12.2004 then she should have mentioned and deposed in her statement that she is wife of Appellant No. 2. In support of aforesaid version, Appellant No. 1 has annexed with her suit a Photostat copy of her statement recorded by Magistrate 1st Class Muzaffarabad dated 27.1.2005.

I cannot subscribe to this view of the learned Counsel for the appellants that due to non-production of attesting witnesses of `Nikahnama' Exh.DA, the factum of `Nikah' could not be proved. Suffice to note that the presence of witnesses for the respondents has been admitted by the appellants at the time of `Nikah' ceremony, who have clearly proved the factum of `Nikah' between Appellant No. 1 and Respondent No. 1; therefore, the non-availability of Nikahkhawan or attesting witnesses of `Nikahnama' will not adversely affect the case of Respondent No. 1 in peculiar facts and circumstances of the case, which is otherwise abundantly proved.

In this regard, I am fortified by a case reported as Mst. Qadul & 7 others V. Allah Bachaya & 2 others (PLD 1973 Baghdad-ul-Jadid 48), wherein the following principle was enunciated at page 60 of the report:

"It becomes abundantly clear that claims to marriage must not fail merely on account of the absence or the non-availability of witnesses of marriage but circumstantial evidence would also be very much relevant and at times conclusive. It is equally well settled as mentioned in that evidence of repute has been unanimously held to be admissible in four matters, namely: marriage, paternity; death and judicial decisions. Some jurists are of the view that evidence of repute is admissible in six cases."

Even otherwise, the absence of witnesses of `Nikah' ceremony would not make the marriage void but only irregular whereas a marriage duly performed in presence of two persons cannot be described as invalid in any case. My aforesaid view finds support from a (case titled as Shahzada Begum V. Abdul Hamid (PLD 1950 Lahore 504), wherein it has been opined at page 506 of the report in the following manner:

"According to the various text books on Muslim Law, even the absence of witnesses at the nikah would merely make the marriage irregular and not void. Reference in this connection may be made to Para 197 of Mulia's Muhammadan Law, 11th Edition, and Pages 101 and 114 of Wilson's Anglo Muhammadan Law, 6th Edition. There is also a Single Bench authority of the Allahabad High Court in Mst. Bashirunnisa and another V. Bunvad Ali and another (50 IC 677 (1919)) in support of the view that a marriage contracted without witnesses is not illegal, but merely irregular and irregularity would be curable by consummation of the marriage. The late Syed Amir Ali adopted a similar view in Volume 11 of Muhammadan Law, 5th Edition, Page 312, and it would seem to follow that a marriage duly performed in the presence of two persons could not be described as invalid in any sense. I, therefore, repel the contention raised by learned counsel for the appellant on the first ground."

This argument of the learned Counsel for the appellants is also not tenable that the copy of judgment Exh.PB produced by Respondent No. 1 relates to another Parveen Bibi ex-wife of Respondent No. 1 because the plain reading of the aforesaid suit shows that the suit was filed by Mst. Parveen Bibi d/o Din Muhammad Appellant No. 1 and not by Mst. Parveen Bibi d/o Abdul Hameed, the ex-wife of Respondent No. 1.

As discussed above, the appellants miserably failed to prove their case whereas the Respondent No. 1 has abundantly proved that Appellant No. 1 was married to him atKarachi in presence of her mother, brother, father of Respondent No. 1 and other notables of the tribe. In this manner, Appellant No. 1 was not at all justified to contract a second marriage without obtaining divorce from Respondent No. 1. On this account, the findings of the Court below have been recorded in a legal and proper manner after careful appraisal of the evidence of the parties; thus, does not call for any interference by this Court.

As far as the case law cited by the learned Counsel for the appellants is concerned, is quite distinguishable from the facts of instant case; therefore, does not require any detailed analytical survey.

The upshot of above discussion is that finding no force in this appeal, it is hereby dismissed.

(M.S.A.)    Appeal dismissed.

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.