' MUHAMMAD MUNIR PERACHA, J.---This judgment shall dispose of Writ Petitions Nos.1059, 1060 and 1063 of 2008. Respondent No,1 Mst. Saadia Usman is wife and respondent No,2 Minal Usman is minor daughter of the petitioner. They filed a suit for recovery of dower, dowry articles and maintenance allowance against the petitioner in the Court of Family Judge, Islamabad. Their case was that the petitioner contracted marriage with Mst. Saadia. The dower was fixed as Rupees one million, out of which Rs,5,00,000 was prompt and Rs,5,00,000 was deferred. It was pleaded in the plaint that prompt dower was paid by the petitioner in the shape of golden ornaments. It was averred that out of the wedlock, Minal Usman was born on 29-2-2004. It was pleaded that on 13-22005, a scuffle took place between husband and wife and that mother of the petitioner made a brutal attempt on life of respondent No, 1 . She was forced to leave the house of husband and to take refuge in her parent's house. It is their case that since February, 2005, they are living with parents of Mst. Saadia Usman and that no maintenance has been paid by the petitioner. It was prayed that a decree for recovery of Rs,8,00,000 qua the wife in respect of past maintenance with effect from February, 2005 to June, 2006 at the rate of Rs,50,000 per month be passed. The future maintenance was claimed at the rate of Rs,50,000 per month with an increase of 20% per annum in favour of the wife.
Similarly, a decree for recovery of Rs,8,00,000 in respect of the minor daughter's past maintenance w.e.f, February, 2005 to June, 2006 at the rate of Rs,50,000 per month was claimed. The future maintenance of the minor daughter was also prayed at the same rate. A decree for dower of Rs,5,00,000 was also prayed in the suit.
2. The petitioner also filed a suit for restitution of conjugal rights. Both the suits were consolidated by the learned Family Judge and consolidated issues were framed, which are reproduced:-- 'ISSUES:
(1) Whether the plaintiff is entitled for recovery of dower. OPP1.
(2) Whether the plaintiff is entitled for recovery of dowry articles? OPP1.
(3) Whether plaintiffs are entitled for recovery of maintenance, if so at what rate and for what period? OPP
(4) Whether the defendant is entitled for decree for restitution of conjugal rights? OPD
(5) Relief.
3. The parties led evidence on the above said issues. The learned trial Judge after recording evidence and hearing arguments of the parties, vide judgment and decree dated 24-3-2008 granted a decree for recovery of dower of Rs,5,00,000 in favour of Mst. Saadia Usman, decree for maintenance at the rate of Rs,7,000 per month each, for the wife and the minor daughter w. e. f.
February, 2005 till they are legally debarred, was also passed. Conditional decree for restitution of conjugal rights was passed in favour of the petitioner subject to the payment of dower, maintenance and making arrangement for the departure of the wife and the minor daughter to Austria.
3-A. The above said judgment of the Family Judge was challenged by Mst. Saadia Usman and her daughter through Civil Appeal No,39 of 2008. The judgment was also assailed by the petitioner through two separate appeals i.e, Civil Appeals Nos.46 of 2008 and No,47 of 2008. Learned Additional District Judge disposed of all the three appeals through a single judgment dated 19-6- 2008. The rate of maintenance was enhanced and was fixed at Rs,10,000 for both, wife and minor B daughter from the date of desertion i.e, 13-2-2005. With this modification, judgment and decree of the trial Judge was maintained. The petitioner has approached this Court through three writ petitions as earlier stated.
4. I have heard the learned counsel for the petitioner and respondents and have gone through the record of the case with their able assistance.
5. Learned counsel for the petitioner Mian Ishtiaq Hussain, Advocate raised the following points:-
(i) In section 2 of the Muslim Personal Law (Shariat) Application Act, 1962, which deals with application of Muslim Personal Law to certain matters, "maintenance" is not mentioned as against section 2 of the Muslim (Shariat) Application Act, 1937, therefore, Muslim Personal Law would not be applicable while deciding the question of maintenance.
(ii) Deferred dower of Rs,5,00,000 could not have been ordered to be paid to the wife before dissolution of marriage by death or by divorce.
(iii) The maintenance of Rs,10,000, each, (for wife and minor daughter) is excessive keeping in view the income of the petitioner.
(iv) Past maintenance could not have been allowed by the Judge Family Court in the absence of any agreement.
6. On the other hand, learned counsel for the respondents supports the judgment and decree passed by the learned Additional District Judge relying on "2006 YLR 33 and the case of Dr. Sabira Sultana v. Maqsood Sulari, Additional District and Sessions Judge, Rawalpindi and 2 others 2000 CLC 1384. Learned counsel submits that the deferred dower becomes payable when demanded.
7. Before promulgation of N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935, which was made applicable to N.-W.F.P. And Muslim Personal Law (Shariat) Application Act, 1937, Section 5 of Punjab Laws Act, 1872 was covering the field. Section 5 of the Punjab Laws Act, 1872 reads as under:- - "5. Decisions in certain cases to be according to native law.--In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be--
(a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority;
(b) the Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu Law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to."
On 5-12-1935, N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 was promulgated.
Section 2 of the Act is reproduced:-- "2. Decision in certain cases to be according to Muslim Personal Law. In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, guardianship, minority, bastardy, family relations, wills, legacies, gifts, or any religious usage or institution including Waqf (trust and trust property), the rule of decision shall be the Muslim Personal Law (Shariat), in cases where the parties are Muslims: Except in so as far as such law has been altered or abolished by legislative enactments or is opposed to the provisions of the North-West Frontier Province Law and Justice Regulation, 1901."
'On 7-10-1937, Muslim Personal Law (Shariat) Application Act, 1937 was enacted. Section 2 of the Act reads as under:-- "Application of Personal Law to Muslims. Notwithstanding any custom or usage to the contrary in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract of gift or any other provisions of Personal Law, marriage, dissolution of marriage, including Talaq, Ila, Zihar, Lian, Khula and Mubarat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in case where the parties are Muslims shall be the Muslim Personal Law (Shariat)."
'On 15-3-1948, the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948 came into a force. Section 2 of 1948 Act is as under:-- "Notwithstanding any rule of custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions including wakfs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims."
'On 31-12-1962, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was enacted.
Section 2 of Act, 1962 provides:-- "Application of the Muslim Personal Law. Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions including Waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims."
8. I have reproduced relevant sections of laws, which were promulgated from time to time on the subject. Except section 2 of Act of 1937, the word "maintenance" has not been used in any other law.
However, in section 2 of 1937 Act, the words "Family Relations" have not been used though these words were mentioned in section 5 of the Punjab Laws Act, 1872 and section 2 of N.-W.F.P. Act, 1935.
The words "Family Relations" have also been used in Act of 1948 and Act of 1962. If section 2 of 1937 Act is examined, the subjects to which Muslim Personal Law would be applicable are given in details. However, in other laws, the words "Family Relations" have been used apart from mentioning other subjects. I am of the opinion that the words "Family Relations" have been used in laws other than Act of 1937 in a wide sense to include residuary subjects not specifically mentioned including maintenance. I am conscious of the fact that a different view was taken by a very celebrated Judge Muhammad Afzal Zullah J, in judgment reported as Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah.930. At any rate, practically speaking, it would not make any difference because in Nizam-udDin's case either, Lahore High Court ruled out that while deciding question of maintenance, rule of decision would be Muslim Personal Law as the Honourable Judge was of the opinion that if there is no law covering the field, Muslim Personal Law would be applicable as a rule of justice, equity and good conscience. It is thus held that while deciding the question of maintenance in respect of a Muslim, rule of decision shall be Muslim.
Personal Law.
9. The question whether past maintenance can be ordered in the absence of any agreement between the parties was examined by Lahore High Court in the case reported as Mst. Hajiran Bibi v.
Abdul Khaliq PLD 1981 Lah. 761). The Lahore High Court dissented from the case reported as Abdool Futteh v. Zabunnessa (1881)6 Ca1.631 and it was held:-- "As discussed above according to Islamic injunctions it is the obligation of a husband to maintain his wife till she disobeys him without any good cause and that being so a husband is obliged to pay even the arrears of maintenance if not paid during the subsistence of the marriage if the wife has not given any cause for their non-payment. If an obligation under the law has not been fulfilled for sometime by paying the maintenance, how a husband can be absolved of his responsibility to fulfil that obligation even at a later stage, as such, the arrears of maintenance would be considered to be a debt upon the husband who is liable to pay the same even in the absence of any agreement or a decree in favour of the wife. According to Islam a wife has only to show the case for payment of maintenance allowance that she has been neglected by her husband for such and such time and has not been paid maintenance without any fault. If it is found that the husband has been negligent in maintaining her in spite of being, obliged under the law to do so then the wife would be entitled not only to future maintenance but even to past maintenance for the period during which she has not been maintained."
10. The learned Family Judge rightly allowed maintenance to the wife and minor daughter w.e.f, 13- 2-2005 as it is found that the past maintenance can be ordered even in the absence of any agreement between the parties.
11. As far the contention of the learned counsel for the petitioner that maintenance of Rs,10,000 each, per month (for wife and minor daughter) is excessive, suffice it to say that learned Appellate Court considered all the relevant facts and came to the conclusion that the respondents are entitled to maintenance at the rate of Rs,10,000 each, per month. No ground for interference regarding quantum of maintenance is made out in the constitutional jurisdiction of this Court.
12. Paragraph 290 of the Muhammadan Law by Mulla provides:-- "Prompt" and deferred "dower".---(1) The amount of dower is usually split into two parts, one called "Prompt" which is payable on demand, and the other called "deferred" which is payable on dissolution of marriage by death or divorce.
(2) Where it is not settled at the time of marriage whether the dower is to be prompt or deferred, then according to the Shia Law, the rule is to regard the whole as prompt but according to the Sunni Law, the rule is to regard part as prompt and part as deferred, the proportion referable to each class being regulated by custom, and, in the absence of custom, by the status of the parties and the amount of the dower settled."
'The learned Trial Judge and the learned Additional District Judge relying on judgment of the Lahore High Court 2006 YLR 33 recorded a finding that after consummation, wife becomes entitled for demanding deferred dower. The learned counsel for the respondent apart from the above said judgment relied on the judgment of Dr. Sabira Sultana v. Maqsood Sulari, Additional District and Sessions Judge, Rawalpindi and 2 others 2000 CLC 1384 to contend that the deferred dower becomes payable when demanded by the wife. I am afraid both the judgments are distinguishable. In both the precedent cases, the husband has contracted second marriage without the permission of the Arbitration Council and deferred dower became immediately payable in view of section 6(5)(a) of the Muslim Family Law Ordinance, 1961. In the case in hand, section 6(5)(a) of the Muslim Family Law, 1961 is not applicable and the case has to be decided in accordance with Muslim Personal Law. However, the learned counsel for the respondent cited a passage from Kitab-ul-Fiqa by Abdur Rehman Al-j aziri: {{URDU TEXT}} 'He also cited a passage from Fatawa-i-Kazee Khan:-- "1339. (439) When a woman is given in marriage for a dower named, she is entitled to withhold her person from her husband (that is, to prevent the husband having access to her), with a view to complete realization of the dower. Therefore, if the husband is at a place where (it is usual that) some portion of the dower is prompt, and the balance is left with the husband up to the time of divorce or death, as is customary in our country, the wife is entitled to withhold her person, with a view to the complete realization of the prompt portion, and the prompt dower is that which is called in Persian (dust pyman or) hand-to-hand contract; and she is not entitled to demand from him the whole of the dower (including the deferred portion thereof).
'Therefore, if persons (belonging to the parties, through whose instrumentality the dower has been fixed) have specified the proportion or prompt dower, then that portion shall be prompt; and if they have made no specification (whether the dower is prompt or deferred, and what portion is prompt), then the circumstances of the woman shall be looked into, together with the dower named, and it shell be determined what proportion is usually prompt for a similar woman out of a like dower, and that proportion shall be considered prompt, and the prompt portion shall not be (arbitrarily) fixed as a certain proportion, such as a fourth or a fifth (without such an enquiry); and the usage shall be considered, because what is established by usage is to be taken as established by contract (and incorporated in the contract). But if in a contract of marriage those persons make it a condition that the whole of the dower shall be prompt, then the whole of the dower shall be held to be prompt, and the usage shall be left out. But if a portion of the dower is fixed as prompt, and the husband has paid the same, he is entitled to have intercourse with his wife; because according to usage, intercourse is conditional upon payment of the prompt dower; and therefore that usage (to have intercourse after payment of prompt portion) must be regarded in the same light as if it had been expressly stipulated for.
'And if the whole of the dower is deferred (as regards the time of payment to a fixed period), and the husband has stipulated for intercourse before payment of any portion thereof, he shall be entitled to have intercourse with he -, as Aboo Haneefa and Mahommed, on whom be peace, have laid down. Therefore, if the husband has not had intercourse with her until the expiry of the period fixed for payment, he shall be entitled to have intercourse with her before payment of dower."
Learned counsel relied on a passage from Dar-ul-Mukhtar, which is reproduced:- {{URDU TEXT}}
13. After going through the above said citations, it can be concluded:--
(i) The amount of dower is fixed with the agreement of the parties to the marriage.
(ii) The dower fixed can be prompt or deferred or partly prompt and partly deferred. Prompt dower is payable immediately on demand.
(iii) The deferred dower shall be payable on a date or time agreed between the parties.
(iv) It is more appropriate that date or time agreed for payment of deferred dower be certain. It may be agreed between the parties that the deferred dower shall be payable on the happening of a certain event like divorce or death.
'Generally in Pakistan and India, if no date or time is specified for the payment of the deferred dower, it is considered as if it is payable at the time of dissolution of marriage by death or divorce.
14. In this case, although, Rs,5,00,000, one half of the dower was agreed to be a deferred dower, no time or date was specified for payment thereof. Since generally, it is understood that deferred dower is payable at the time of dissolution of marriage by death or divorce, the intention of the parties seems to be that it shall be payable at the time of dissolution of marriage by death or divorce.
15. For what has been said above, all the three writ petitions filed by the petitioner are dismissed except one modification that a decree for recovery of Rs,5,00,000 (amount of deferred dower) is set aside. This amount shall be recoverable subject to law at the time of dissolution of E marriage by death or divorce. The condition of payment of Rs,5,00,000 for the decree for restitution of conjugal rights is also set aside retaining the other conditions. The listed writ petitions are disposed of in the above terms.