JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, CJ. - The instant appeals, by leave of the Court, are directed against the judgment dated 7.11.2008 passed by the Islamabad High Court, Islamabad whereby the cross writ petitions filed by the parties were dismissed with the modification in the judgment of the Additional District Judge to the effect that the deferred dower shall be recoverable subject to law at the time of dissolution of marriage either by death or divorce and the decree to that extent was set aside, In these appeals, leave was granted to consider the following questions:-
(i) What is the correct import of deferred dower and whether it becomes prompt if and when demanded?
(ii) Whether the Family Court cannot grant maintenance which instead can be granted by an Arbitration Council as mentioned in section .9 of Muslim Family Laws Ordinance, 1961?
(iii) Whether the amount of maintenance decree is commensurate with the status and income of the husband?
(iv) Whether the restitution of conjugal rights be allowed subject to condition of separate living of the wife with husband abroad?
(v) Whether the restitution of conjugal rights can be subjected to the payment of maintenance?
It was further directed that till the decision of the appeals, the husband shall pay maintenance-at the rate of Rs'. 7,000/- per month which shall be provisional as well as tentative depending upon the final decision by this Court.
2. The facts of these appeals, in brief, are that Mst. Sadia Usman, appellant in C.A. 109/2009 (hereinafter referred to as "the appellant") filed a suit for recovery of dower, dowry articles and maintenance allowance against her husband( Muhammad Usman Iqbal Jadoon, respondent in C.A. 109/09 (hereinafter referred to as "the, respondent") before the Family Judge, Islamabad. The learned Trial Court vide its judgment and decree dated 24.3.2008 decreed the suit and held, the appellant entitled to the recovery of dower amount of Rs. 500,000/-. Further, the appellant and her minor daughter Minal Usman were allowed maintenance @ Rs. 7,000/- per month each from the date of desertion i.e. February, 2005 till they were legally debarred. As far as the suit of the respondent for restitution of conjugal rights was concerned, the same was conditionally decreed in his favour subject to payment of dower, maintenance and making arrangements for the departure of the appellant alongwith her daughter to Austria, where the respondent was then posted.
3. The appellant preferred Appeal No. 39 of 2008 before the District Judge, Islamabad, for enhancement of maintenance allowance. The learned Additional District Judge, Islamabad on whose file the appeal was transferred, allowed it vide judgment dated 19.6.2008 and enhanced the amount of maintenance to Rs. 10,000/- per month each for both the appellant and her daughter from the date of desertion. The respondent also preferred two appeals bearing Appeals Nos. 46 and 47 of 2008 against the judgment of the Trial Court, which were dismissed through the same judgment dated 19.6.2008.
4. Being aggrieved Of the said judgment, the parties filed three writ petitions Nos. 1059, 1060 and 1063 of 2008, which were dismissed vide impugned judgment with the modification in the judgment of the learned Additional District Judge that the decree for recovery of the dower in the .Sum of Rs. 5,00,000/- shall be recoverable subject to law at the time of dissolution of marriage by death or divorce. Thus, the decree qua recovery of dower was set aside. Hence, the instant appeals with the leave of this Court - the appellant challenging the judgment of the High Court qua recovery of dower and the respondent seeking to set aside the decree for payment of maintenance to the wife and the daughter:
5. In passing the impugned judgment, the learned Single Judge of the High Court placed reliance on passages from the books titled "Kitabul Fiqh" by Abdur Rehman Al- Jaziri, "Fatawa-i-Kazee Khan", and "Darul Mukhtar and reached the following conclusions:-
(i) The amount of dower is fixed with, the agreement of the parties to the majorate;
(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; and
(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.
The learned Single Judge observed that in Pakistan and India, if no date or time was specified for the payment of the deferred dower, it was considered as if it was payable at the time of dissolution of marriage by death or divorce.
5. Though leave was granted to consider different questions of law, as is apparent from the leave granting order reproduced above, but at the hearing the learned counsel for the parties confined their arguments to only one point, namely, the payment of dower, prompt and deferred. The learned counsel for the appellant contended that the learned Single Judge of the High Court, by making payment of deferred dower dependent on the eventuality of death or divorce failed to appreciate the significance of "dower" in a contract of marriage in the Islamic polity, inasmuch as it was obligatory upon the husband, to pay dower to the wife happily According to the learned counsel, the. Question of paying the dower happily in the eventuality of dissolution of marriage by divorce did not arise, inasmuch as the parties were afflicted with bad feelings against each ' other, therefore, no husband would pay it happily at the time of divorce. Hence, according to the learned counsel, the whole of dower was payable on demand.
6. On the other hand, learned counsel for the respondent contended that the verse of the Holy Quran cited by the learned counsel for the appellant had been interpreted by renowned jurists of Islam since long and the proposition that 'the deferred dower was payable on dissolution of marriage by death or divorce was well-settled, therefore, rio case for interference with the impugned judgment was made out.
7. We have given or anxious consideration to the arguments advanced by the learned counsel for the parties and have also perused the impugned judgment of the learned Single Judge of the Islamabad High Court.
8. The command of Allah (SWT) in the Holy Quran (Sura al Nisa, V. 4:4) reads as under: - "At the time of marriage, give the women their dowers willingly as an obligation; but if they, by their own freewill, give up to you a portion of it then you may. Enjoy it with pleasure. '[English Translation of the Meaning of Al-Qur'an by Muhammad Faruq-i-Azam Malik, published by the Institute of Islamic Knowledge, Houston Texas, U.S.A.] The English, rendering of the above verse, given in the "Translation of the meanings of the Noble Quran" by Dr. Muhammad Taqi-ud-Din al-Hilali and Dr. Muhammad Muhsin Khan, published by the King Fahd Complex for the Printing , of the Holy Quran, Madinah, Kingdom of Saudi Arabia reads , as under:- "And give to the women (whom you marry) their Matir (obligatory bridal-money-given by the husband to his wife at the time of marriage) with a good heart; but if they, of their own good pleasure, remit any part of it to you, take it, and enjoy it without fear of any harm (as Allah has made it lawful),"
At another place in the Holy Quran, Allah (SWT) says:- "Made lawful to you this day are At-Tayyibat [all kinds of Halal (lawful) foods; which Allah has made lawful (meat of slaughtered eatable animals, milk products, fats, vegetables and fruits). The food (slaughtered cattle, eatable animals) of the people of the Scripture (Jews and Christians) is lawful to you and yours is lawful to them. (Lawful to you in marriage) are chaste women from the believers and chaste women 'from those who were given the Scripture (Jews and Christians) before your time when you have given their due Mahr (bridal-money given by the husband to his wife at the time of marriage), desiring chastity (i.e. Taking them in legal wedlock) not committing illegal sexual intercourse, nor taking them as girl friends. And whosoever disbelieves in Faith [i.e. In the Oneness of Allah and in all the other Articles of Faith i.e. His (Allah's) Angels, His Holy Books, His Messengers, the Day of Resurrection and Al-Qadar (Divine Preordainments)], then fruitless is his work; and in the Hereafter he will be among the losers [Surah Al-Maidah V.5:5 ["Translation of the meanings of the Noble Quran" by Dr. Muhammad Taqi-ud-Din al-Hilali and Dr. Muhammad Muhsin Khan, published by the King Fahd Complex for the Printing of the Holy Quran, Madinah, Kingdom of Saudi Arabia].
9. The relevant excerpts from various Commentaries of the Holy Quran, e.g., Tafseer Mazhari, VoI. I by Qazi Muhammad Sanaullah Usma ni, Ziaul Quran, VoI. I by Pir Muhammad Karam Shah, Maariful Quran, Vol.II by Mufti Muhammad Shafi, Tafseer Durr-e-Manthur (translation) by Pir Muhammad Karam Shah and Tafseer Namoona Vol. II (translation) by Syed Safdar Hussain Najfi are reproduced below:- {{Urdu Text}}
10. The Quranic word 'Nihla' signifies the giving of something willingly, of one's own accord, without expecting a return for it. Thus, dower is a gift given by the bridegroom to the bride. However, the Holy Quran is silent on the two types of dower, i.e. Prompt and deferred dower.
11. The Urdu Encyclopaedia of Islam, Vol. XXI describes Mehi and its three kinds in the following words: - {{Urdu Text}}
12. We have next perused the relevant excerpts from the book titled "Kitab-al-fiqh al-at- Madhahab-al-arba's" compiled by Abdur Rehman Al-Jaziri, (translation) by Manzoor Ahsan Abbasi, published by the Ulema Academy, Auqaf Department, Government of the Punjab. At pages 190- 193 of the book, there is a full-fledged discussion of the-two types of Mahr (dower), namely, Muajjal, (prompt, i.e. Immediately payable) and Muwajjal (deferred, i.e. Payable later, after a certain time). Relevant excerpts from the book are reproduced below:- {{Urdu Text}}
13. It is clear from the passages just quoted from the book titled "Kitab-al-fiqh al-al-Madhahab-al- arba's" that the Hanafi jurists allow both categories of Mahr Muajjal, (prompt, i.e. Immediately payable) and Muwajjal (deferred, i.e. Payable later, after a certain time), However, where a part of the dower is described as Muwajjal, i.e. Deferred but no time limit is fixed for its payment, according to some jurists, the condition is valid and the time of the deferred payment is either death or divorce. And this is considered to be the correct exposition of the law (the preferred view) [Maulana Abul Aala Moududi, a renowned jurist of Pakistan of the modern times, in his booklet, titled "Haqooq-e-Zaujain (Rights of the Spouses), p. 32 has taken the view that deferred dower is payable on demand. He has dissented with the opinion of the jurists who held that, the deferred dower would be payable after the death of the husband]. Thus, the division of dower into prompt and deferred is based on the consistent opinion expressed from time to time by the Islamic jurists and the superior Courts, including the Supreme Court of India. The same view is incorporated in Para 290 of the Muhammadan Law by D.F. Muila, which reads thus:- "290, "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."
14. In Eidan v. Mazhar Hussain [(1877) 1 All. 483], the Court fixed one-fifth of a dower of Rs. 5,000/- as "prompt", the wife having been a prostitute, In Taufik-un- nissa v. Ghulam Kambar [(1877) 1 All. 560], the Court held that a third .Of dower of Rs. 51,000/- was reasonable as "prompt" and the same proportion was fixed in Fatima Bibi v. Sadruddin [(1865) 2 Bom. HC 291]. In Nasiruddin Shah v. Mst.
Amatul Mughni Begum [(1948) Lah. 135], it was held that in absence of any custom, the presumption is that it is half and half, In all these cases, the parties were Sunnis and. The marriage contract was silent as to whether the dower was to be prompt or deferred. In Sheikh Muhammad v.
Ayesha Beebi [(1938) Mad. 609], the Madras High Court, however, took the view that whether the parties are Shias or Sunnis dower must be presumed to be prompt unless payment of the whole or any part of the dower is expressly postponed].
15. In the book titled "Commentaries on Mahommedan Law" by Syed Ameer Ali, Edition 2007, at page 1382, prompt and deferred dower are discussed as under:- "As there is nothing in the Koran or in the traditions tending to show that the integral payment of the dower prior to consummation is obligatory in law, the later jurisconsults, says M. Sautayra, have held that a portion of the mahr should be considered payable at once or on demand, and the remainder on the dissolution of the contract, whether by divorce or the death of either of the parties. The portion which is payable immediately is called, the mahr-i-muajjal, "prompt" or "exigible", and a wife can refuse to enter the conjugal domicile until the payment. Of the prompt portion of the dower. The other portion is called mahr- i-muwajjal, "deferred dower", which does not become due until the dissolution of the contract, It is customary in India to fix half, the dower as prompt and the remaining moiety as deferred or "postponed, but the parties are entitled to make any other stipulation they choose. For example, they may allow the whole amount to remain unpaid until the death of either the husband or the wife. Generally speaking, among the Musalmans of India, the deferred dower is a penal sum, which is allowed to remain unpaid with the object of compelling the husband to fulfil the terms of the marriage-contract in their entirety."
16. Thus, we are of the opinion that prompt dower is payable on demand during the subsistence of the marriage tie whereas the deferred dower is' payable on the time stipulated between the parties, but where no time is stipulated, it is payable on dissolution of marriage either by death or divorce. But, the deferred dower does not become "prompt" merely because the wife has demanded it. In the instant case, the total amount of dower was fixed at Rs. 10,00,000/-. The prompt dower to the tune of Rs. 5,00,000/- was paid at the time of marriage in the shape of golden ornaments, etc. Since no time was fixed for payment of the deferred dower of Rs. 5,00,000/-. It would be payable in the eventuality of dissolution of marriage either by death or divorce.
17. We are satisfied that the judgment of the learned Single Judge of the High Court is based on proper appreciation of the facts and circumstances of the case as well as the law governing the same. The learned counsel for the appellant was unable to make out a case for interference with the impugned judgment.
18. The learned counsel for the respondent confined his arguments to defending the impugned judgment on the issue of payment of dower and did not raise any other issue before us. We, therefore, find no merit in the appeals filed by the respondent.
19. Resultantly, all the three appeals filed, one by the appellant and two by the respondent against the impugned judgment, and thus dismissed, but the parties left to bear their own costs.