Section 10

Muslim Family Laws Ordinance, 1961

Dower

Where no details about the mode of payment of dower are specified in the Nikahnama or

the marriage contract, the entire amount of the dower shall be presumed to be payable on

demand.

Court Decisions

Dower :-- If it is proved on record that the husband has refused to pay prompt dower after

demand by wife she is Justified to live separately. 2002 CLC 1838

Dower amount, recovery of- Setting aside ex parte decree against deposit of decretal

amount as security in cash-Suit of the wife was decreed by the Family Court ex parte

against the husband-Husband filed application for setting aside of the decree after two years

of passing of the same-Family Court dismissed the application but the same was allowed by

Lower Appellate Court with a condition to deposit the decretal amount as security in cash

and the decree was set aside-Husband did not deposit the amount and the suit was again

decreed against him-Decree passed against the husband was assailed in Constitutional

petition Which was dismissed by the High Court -Validity.. Husband completely ignored to

challen the order of deposit of decretal amount passed by Lower Appellate Court before the

same Court for review or before High Court to Constitutional petition and thus by implication

the husband had accepted the order of Lower Appellate Court and went to Family Court

without demur-Where the husband had participated in the proceedings but did not file

written statement as directed by Lower Appellate Court, the Family Court rightly struck off

the defence of husband and passed the decree for the recovery of dower amount-Both the

Courts below and the High Court were justified to have passed order for the deposit of

amount of dower before remanding the suit to Family Court for trial-Leave to appeal was

refused by Supreme Court. 2001 S C M R 1323- 1988 CLC 163 1 and 1989 CLC 1630 ref.

Wife's suit for possession of land (given to her as dower vide "Kabinnama" and "Nikahnama"

at the time of marriage) was decreed against her husband-Decree in wife's favour was

maintained up to the High Court-Validity-Plea of want of jurisdiction of Family Court to

decree suit for possession of land given to wife in dower was not warranted for Family Court

was empowered in terms of S.5, West Pakistan Family Courts Act, 1964, to entertain and

decide such suit--Family Court was not restrained to entertain suit for recovery of

immovable property given as dower to wife-Three Courts below had believed oral evidence

as well as Kabinnama and Nikahnama-Petitioner had failed to point out any misreading or

non-reading of evidence by three Courts below-Leave to appeal was refused in

circumstances. 1997 SCMR 1122

Dower and dowry-Distinction-Wife in her suit for maintenance and dower had claimed

gold ornaments and a house as dower-Family Court decreed the suit, but Appellate Court in

appeal dismissed the claim of wife-Claim of wife qua ornaments and house was specifically

mentioned in dower/deed/kabinnama-Wife who admittedly had received gold ornaments at

the time of marriage had contended that gold ornaments which were given at the time of

Nikah were part of dowry but were snatched and kept into possession by the husband-

Contention was devoid of force because dowry were those articles which were given to wife

by parents at the time of "Rukhsati" whereas dower was a right of wife which was. always

paid or to be paid in lieu of marriage by husband-Dower once paid, liability of same would

be satisfied-Taking away of dower by husband after marriage could be considered as

loan/credit, return of which could only be sought through civil suit-Wife was entitled to

payment of dower in shape of house which had been given to her in dower by husband as

per dower deed. -->2000 M L D 1638

-->Dower and maintenance, claim for-When Court had come to the conclusion that wife

had developed such aversion for her husband as to justify dissolution of marriage on basis

of Khula, then wife was not entitled to either past or future maintenance on dissolution of

marriage on basis of Khula. 1991 M L D 1732

Courts below concurrently found that wife was entitled to maintenance for period of Iddat

only and that the was not entitled to any dower amount as same had already been paid to

her-Findings of fact concurrently arrived at by Courts below after proper appraisal of

evidence on record, held, could not be interfered with in Constitutional jurisdiction of High

Court in absence of any illegality or any other error of jurisdiction committed by Courts

below. 1989 M L D 1945 PLD 1974 SC 139 and PLD 1973 S C 24 ref.

Dower-- attestation of mutation --Transaction of dower completed on date of

registration of marriage. Title of land given in dower, held, validly passed in favour of wife

and could not be postponed till attestation of mutation. -->1983 C L C 663

Dower-Defendant female, contended that house sought to be partitioned by plaintiff, had

been gifted to her by her deceased husband in lieu of her dower debt-Defendant lady failed

to produce any documentary evidence in proof of her claim-Matters like dower debt or its

satisfaction through transferring house in favour of lady deserved more pragmatic approach

than mere words of mouth before a witness or two and more substantial evidence like

transfer deed was expected-Existence of such deed was even affirmed by the lady but she

failed to produce it or prove it by secondary evidence-Finding of Courts below that house

was not transferred to lady by way of hiba-bil-ewaz was unexceptionable in circumstances.

1991 C L C 1620

Concurrent finding of fact of Courts below that house in dispute was not gifted in favour of

appellant lady by her deceased husband in lieu of her dower debt, based on evidence on

record and not suffering from any misreading or non-reading of evidence, could not be

interfered with in second appeal. 1991 C L C 1620 P L D .4983 SC 53 ref.

Dismissal of for non-deposit of decretal amount. Held, depositing of decretal amount in

Court was not necessary to maintain appeal in lower appellate Court. Case remanded for

decision on appeal in accordance with law. 1985 M L D 200

Maintenance and dower--Wife, whose marriage was dissolved on ground of Khula', could

claim maintenance for period after filing her suit for dissolution of marriage and there being

nothing on record to show that amount of dower was paid by husband to her, no exception,

held, could be taken to imposition of condition by Trial Court that wife would not claim

dower and maintenance from husband. 1989 M L D 4518

Non-payment of dower - Effect - Incumbent upon the husband to maintain his wife and

he is not absolved of his liability, to maintain her even though she be not residing with him

provided she has a lawful excuse or a legal right to refuse to live with her husband on

account of non-payment of prompt dower. 2002 CLC 1838 PLD 1957 <> 242 ref.

Circumstances, in the present case, showed that dower was left by the wife in lieu of Khula"

Mubaraat - Wife was entitled for the maintenance for the period she was in the wedlock of

her husband - Maintenance was not to be determined without any proof of the income of

the husband - Principles - Where the Chairman, Arbitration Council had determined the

quantum of maintenance to be paid by the husband without any proof of his income, High

Court modified the Judgment and decree passed by the Chairman accordingly. There is a

difference between Khula" and Mubaraat and the main distinction between a Khula" and

Mubaraat is that in the former the aversion is on the side of the wife and she desires a

separation but in the latter the aversion is mutual and both sides desire separation.

Secondly, in a divorce by Khula" some consideration must be given by the wife to the

husband for her release from the marital tie. It is in effect an offer from the wife for her

release on payment of compensation and, therefore, in the circumstances the divorce

ultimately agreed upon by the parties was only a Mubaraat and not Khula", then the wife is

entitled for the half of the benefits and divorce takes place and it is also established that the

wife was not paid the prompt dower. The circumstances show that the dower was left by the

wife in lieu of Khula Mubaraat but she is entitled for maintenance for the period she was in

the wedlock of her husband but the quantum of maintenance was determined without any

proof of the income of the husband, therefore, the Judgment and decree passed by the

Chairman. Arbitration Council was modified by the High Court from Rs.5,000 to Rs.2,000

and it was granted from the period 1-1/2 years prior to the filing of the application till the

divorce had become effective. 2002 CLC 1838 PLD 1994 Lah. 20; PLD 1983 SC 169; 1992

PSC 1034;PLD 1967 SC 97; 1987 CLC 1668; PLD 1993 Lah. 469; PLD 1993 Lah. 706; 1995

MLD 988; 1994 Law Notes (Lah.) 1153; 1991 CLC 1356; 1989 ALD 389 2000 CLC 558; PLD

1957 <> 242; PLD 1960 (W.P.) Kar. 663 and PLD 1964 SC 456 ref.

Principles. It is clear from provision of section 6(5), Muslim Family Laws Ordinance, 1961

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 of first wife, 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 these 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. 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 answer to the question

whether 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

fulfilment 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 therefrom 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 arty other penalty provided

under the law. In the present case, notwithstanding pleadings of the parties, it is an

admitted fact that the husband contracted a second marriage without the permission of the

first wife. The statement made on oath by the first wife that the husband contracted second

marriage without her consent and permission remained un-rebutted as he 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 husband and could not be pleaded through a third person,

therefore, the attorney of the husband, while appearing in the witness box on behalf of the

husband; would not be in a position to rebut the statement of the wife on oath. 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 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 husband, without the knowledge of the wife 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 husband had no force. .In a case in which husband seeks

permission for second marriage in presence of first wife from an Arbitration Council, such

Council, at the conclusion of proceedings, issues a certificate to the husband, but in the

present case, the husband has not produced such certificate before the Court. The perusal

of Nikahnama of the marriage of husband with second wife also did not show that he

contracted second marriage with. permission of an Arbitration Council or that the consent of

his first wife was obtained by him at any stage. 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 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 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 contract A

second marriage by, the husband without her permission and consent may, with or without

asking for Talaq, justifiably demand payment of dower. The )revisions 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 4 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 alamic

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 the 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 marriage without 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 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 me and if no time is

specified, till the wife demands it. It is laid down in Holy Qur'an in Verse 124, Sura 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 snot 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. -->2000 C L C 1384 1996 SCMR 336;

Prompt dower :– Wife could refuse herself to husband and live separate from him Until

prompt dower was paid by husband to her. During such separation, husband, held Was duty

bound to maintain wife. 1985 M L D 310 P L D 1971 Lah. 866 and P L D 1965 <> 274

Appellate Court maintained that prompt dower was admittedly unpaid to wife--Appellate

Court, however, unti1ted to note essential legal implications of non-payment of dower that

wife in such circumstances was under no obligation to live with husband and husband was

duty bound to maintain wife during period of separation anti also failing to consider non-

maintenance of wife for over 2 years. Omission of Court below to consider such facts, held,

constituted non-exercise of its jurisdiction-Judgment of appellate Court declared without

lawful authority in circumstances with result that all three appeals were to be deemed to be

still pending before Appellate Court for fresh decisions. 1985 M L D 310

Where dower claimed by wife was prompt dower, husband, held, was bound to pay entire

amount thereof even before consummation of marriage. In case of prompt dower, wife after

Nikah, becomes entitled to recover entire amount of prompt dower and she is entitled to

refuse consummation of marriage without payment of such dower. Question of

consummation of marriage, held, was not a relevant factor for demanding amount of dower

pays a to wife by husband where claim was made in respect of prompt dower during

subsistence of marriage. Where husband had divorced wife before consummation of

marriage then husband would be liable to pay only half of dower amount. When a husband

and wife were alone together in a place where they were secluded and nobody could enter

or overlook without their knowledge and husband was free to navy connection with his wife

without any let, hindrance or obstruction, it would mean complete retirement constituting

legal presumption, of consummation of marriage. Where there was a complete retirement,

husband was liable to pay full amount of dower. P L D 1984 Kar.625

Recovery of dower—Suit of wife was decreed by Family Court ex parte against husband

but same was allowed by Lower Appellate Court with condition to deposit decretal amount

as security in cash and decree was set aside—Husband did not deposit amount and suit was

again decreed against him—Decree passed against husband was assailed in Constitutional

petition which was dismissed by High Court—Validity—Husband completely ignored to

challenge order of deposit of decretal amount passed by Lower Appellate Court before same

Court for review or before High court in Constitutional petition and thus by implication

husband had accepted order of Lower Appellate Court and went to Family Court without

demur—Where husband had participated in proceedings but did not file written statement as

directed by Lower Appellate Court, Family Court rightly struck off defence of husband and

passed decree for recovery of dower amount—Both Courts below and High Court were

justified to have passed order for deposit of amount of dower before remanding suit to

Family Court for trial—Leave refused. PLJ 2002 SC 399

Suit for recovery of "Mahar"-Appellate Court below had advanced very convincing

reasons while passing the judgment with regard to payment of amount of "Mehr"-Petitioner

had not been able to point out any material irregularity or infirmity in the judgment and

decree passed by Appellate Court. below-Such judgment and decree could riot be interfered

with by High Court in exercise of its revisional jurisdiction. 2001 M L D 834

Suit for recovery of possession of land as Haq Mahar Application for setting aside decree on

allegation of fraud-Suit was finally decreed up to Supreme Court-Defendant/judgment-

debtor filed application under S.12(2N, C.P.C. alleging that after decision of Supreme Court

he came to know that Nikahnama and Kabin Nama on basis of which suit was decreed were

forged and fictitious-Validity-Supreme Court having finally decided matter after taking into

consideration Nikahnama, Kabin Nama and plea of fraud, application filed under S.12(2),

C.P.C. was rightly dismissed and the dismissal order could not be interfered with by the

High Court. -->2002 C L C 484

Suit for recovery of dower-Relevant column of Nikahnama showed that 10 Tolas of gold

ornaments and one lac rupees was fixed as dower-Husband vide a Tamleeqnama also gifted

part of a house to the wife-When parties separated, wife filed suit for recovery of dower

claiming that as neither 10 Tolas of gold had been given nor one lac rupees had been paid

to her as dower, husband be directed to execute sale-deed of house in her favour-Husband

had asserted that he had paid one lac rupees to wife and that alleged Tamleeqnama was not

a genuine document-Validity-Genuineness of gift of house in lieu of dower amount had been

proved by Nikahnama itself which was not disputed by the husband-Evidence on record had

proved that no cash amount was paid to the wife-Had husband paid said amount to wife he

should have proved the same through positive evidence-Solitary statement of the man to

discharge burden of proving cash payment was not sufficient in the eyes of law-Trial Court

having unjustifiably dismissed suit of wife, Appellate Court rightly set aside judgment of

Trial CourtJudgment of Appellate Court based on evidence on record and cogent reasons,

could cot be interfered with in Constitutional jurisdiction of High Court when no misreading

and non-reading of evidence on record had been pointed out. 2000 M L D 1205 PLD 1984

Lah. 401 ref.

Claim of plaintiff/wife was that the whole amount of dower was payable to her on demand, ,

whereas defendant/husband contended that he had paid full amount of dower and nothing

was against him-Burden to prove payment of amount of dower was on defendant, but he

failed to discharge that burden through evidence-In absence of anything to the contrary

regarding nature of dower fixed at time of Nikah, whole dower amount was payable to

plaintiff by defendant as he had failed to prove that he had already paid said amount-Trial

Court was not justified to dismiss suit for recovery of dower amount. 1999 Y L R 2303

1981 CLC 797 and 1991 PLC 396 ref.

Wife, whose marriage was dissolved on ground of Khula, filed suit for recovery of dower

amount-Husband contested suit, by producing document alleged to have been executed by

wife, contending that wife had relinquished her claim in respect of dower amount-Alleged

document having been proved to be spurious and manufactured one, no credence thus

could be attached to same-Suit for recovery of dower amount for payment of which

husband had voluntarily agreed at time of Nikah, was rightly decreed by Court. 1989 M L D

3044

Transaction of dower-Completion of-Suit for recovery of dower-Transaction of dower

would become complete on the day of marriage-Endorsement of dower against column in

Nikahnama was a verification of settlement and arrangement already reached between the

parties-If woman would make a demand through filing a suit for recovery of dower, person

contending that entries in Nikahnama were not correct, was bound to rebut said entries

through a strong evidence otherwise Court was bound to give a solemn affirmation to the

entries in Nikahnama. P L D 2000 Lah. 355

Transfer of land by way of dower-Husband of the petitioner at the time of marriage

transferred land in name of the petitioner by way of dower-Husband submitted declaration

under S. 7 of Land Reforms Act, 1977, excluding land transferred to the petitioner but

Authority included the said land in his holding and after calculating total produce index units

ordered him to surrender excess land in favour of the Government-Validity-Nothing was on

record to prove that Nikahnama whereby land in question was given/transferred to the

petitioner by her husband by way of dower was a fabricated document-Authority considered

Nikahnama as forged and fabricated one on the ground that columns therein dealing with

amount and nature of dower were left blank-Question as to whether leaving blank said

columns could lead to an inference that the Nikahnama was forged and fabricated, needed

consideration but no opportunity was given to the petitioner to prove that in relevant

column of Nikahnama it was clearly mentioned that the bridegroom had given said land to

his wife/petitioner as dower and said Nikahnama was written long prior to the enforcement

of Land Reforms Act, 1977-Nikahnama was admissible to prove factum of alienation of

property in lieu of dower. Authority which had not seen the matter in its true perspective,

had committed material irregularity and illegality while rendering order which had resulted

in grave miscarriage of justice-Order passed by the Authority was set aside and case was

remanded to be decided afresh on merits. 2002 M L D 31