' YAHYA AFIRDI, J.---Mst. Salma Bibi and her minor son Muhammad Azam petitioners seek the Constitutional jurisdiction of this Court praying that:- "It is therefore, most humbly prayed that on acceptance of this Writ Petition the impugned judgment/decree/order of the learned Additional District Judge, Peshawar dated 6-11-2012 may be declared, illegal, against the law unlawful, without lawful authority and of no legal effect and the same be set aside. While the judgment/decree/order dated 23-2-2012 of the learned Judge Family Court may very graciously be restored."
2. In essence, the grievance of the petitioners, as pleaded is that Mst.Salma Bibi (petitioner No,1) was married to Muhammad Iqbal (respondent No,1) on 16-11-2008; that Rukhsati' due to a dispute between the parties was delayed till the matter was settled and culminated in the execution of the '
Kabin Nama/Mahar Nama' on 15-1-2010 and thereafter the Rukhsati' took place on 14-2-2010; that the relations between the spouses became strained and petitioner No,1 was ousted by respondent No,1 from his house; that thereafter, Mst. Salma Bibi filed a suit for recovery of dower, maintenance and dowry articles, but soon after filing of the suit, Muhammad Azan (petitioner No,2) was born, while she was at her parents' house.
3. The suit was opposed by respondent No,1 by submitting written statement. The contested pleadings of the parties were reduced to the following issues:- . (1) Whether the plaintiff has got any cause of action?
(2) Whether plaintiff is estopped to sue by her own conduct?
(3) Whether plaintiff is entitled for recovery of Rs,50,000 dower amount?
(4) Whether plaintiff is entitled to recovery of 20 Tolas Golden Ornaments.
(5) Whether plaintiff is entitled for possession of 05 marlas house?
(6) Whether plaintiff is entitled for recovery of dowry articles.
(7) Whether plaintiffs are entitled for past and future maintenance in tune of Rs,3000/- per month?
(8) Whether defendant is entitled for decree of conjugal right?
(9) Whether the parties are entitled to decree as prayed for?
(10) Relief.
4. After hearing arguments of the learned counsel for the parties and perusal of the record, the learned Civil Judge-II/Judge Family Court, Peshawar, vide judgment and decree dated 23-2-2012, partially decreed the suit by observing:- "In sequel in above discussion plaintiff is entitled to recover her dower as Rs,50,000/- cash, 15 Tom Gold Ornaments and 5 marlas constructed house. Plaintiff is further allowed to recover her dowry articles as per list. Plaintiff No,1 is also allowed to recover maintenance at the rate of Rs,3000/- from June 2010 till her demand of dower is satisfied. Plaintiff No,2 is also allowed to recover maintenance at the rate of Rs,1500/- with 15% annual increase from his birth till date his right ceases by operation of law or any other valid reason. On the other hand, defendant is also allowed decree for restitution of conjugal rights subject to payment of dower. Rest of claim of both parties stands dismissed."
5. Feeling aggrieved from the said order, respondent No,1 filed appeal before Additional District Judge-II, Peshawar, which was accepted in the following words:-- "In the light of the above the appeal in hand is hereby accepted and the suit of the respondent/defendant is hereby dismissed as above. No order as to costs."
' Hence, the writ petition in hand.
6. Valuable arguments of the learned counsel for the parties heard and record perused with their able assistance.
7. On reviewing the record, this Court finds the following relevant events, which are narrated in chronological order:- ' 16-11-2008 "Nikah" was performed between Mst. Salma Bibi (petitioner No,1) and Muhammad Iqbal (respondent No,1). The "Nikahnama" was produced by petitioner No,1 during the testimony as Exh.P.W.3/X-I. The "Nikahnama" stipulated dower to be 15 tolas of gold, out of which 4 tolas was "prompt", while the remaining 11 tolas to be "deferred".
' It would be pertinent to note that 'Rukhsati' did not take place on the said date.
' 15-1-2010 "Kabinama" (Ex.PW3/1) was executed between petitioner No,1 and respondent No,1, which fixed dower as; Rs, 50,000/-; 15 tolas gold, out of which 3 tolas had been acknowledged as received by Mst. Salma Bibi; Residential House measuring 5 marlas on land at Peshawar; ' Whereas, "maintenance" of petitioner No,1 was stipulated in term that; ' Rs,3000 as monthly maintenance during the period, when the petitioner is not maintained by her husband.
' Muhammad Amjad (PW2) and Muhammad Pervez, the scribe (PW1) were produced to prove the execution of the "Kabinama".
' 14-2-2010 "Rukhsati" takes place and the petitioner Mst. Salma Bibi is taken by her husband Muhammad Iqbal and they lived together till June, 2010.
' Minor Muhammad Azan is born out of the wedlock of Mst. Salma Bibi and Muhammad Iqbal, who are still in lawful matrimonial bond.
' However, the dispute arose between the parties, which finally resulted in petitioner No,1 seeking her dower in the Court of law. The same was allowed by the learned trial Court and refused by the appellate Court.
8. The appellate Court, while disturbing the findings rendered by the learned trial Court has based its decision essentially on the ground that the "Nikahnama" had not been produced in evidence; that "Kabinama" was not proved, as the marginal witnesses thereto had not been produced; that the present petitioner No,1 is not entitled to the maintenance, as she is not ready to live with her husband.
9. On careful consideration of the evidence brought on the record, this Court finds that the appellate Court legally erred by misapplication of fundamental principles of law governing resolution of family disputes on the following legal premise:- ' Firstly, as far as, the execution of "Kabinama" is concerned, it is noted that the rigours of proving documents as provided in Qanun-eShahadat Order, 1984 are not applicable to the proceedings before the Family Court, as the same has been expressly excluded from its A application by virtue of section 17 of the Family Courts Act, 1964. In this regard, Hon'ble Mr. Justice Nisar Hussain Khan, while authoring the judgment in Writ Petition No,767/13 has very eloquently dealt with matter in terms that:- "No principle of law can be pressed into service for its enforcement when the same is expressly barrad by the clear section of law. Such procedure can only be followed when there is no barring clause in the Statute and the matter is open for its interpretation for either side. However, in the instant case, the application of Qanun-e-Shahadat Order, 1984 is barred in un-equivocal terms.
Thus, this proposition cannot be followed. Likewise, the production of two witnesses of deed is also requirement of Qanun-e-Shahadat Order which is not applicable to the case in hand."
' Secondly, as far as, "Nikahnama" is concerned, it is noted that petitioner No,1 produced the same during her cross-examination (Exh.P.W.1/X-1), which went un-rebutted by the present respondent and hence the said document could not be ignored by the appellate Court, while deciding the family dispute between the parties.
Thirdly, this Court is not ready to accept the contention that the "Kabinama" was the result of duress upon respondent No,1 for the simple reason that the alleged period of abduction in which the respondent No,1 claims to have been put to undue influence was well after execution of the "Kabinama". The incident of kidnapping was reported to the Police vide criminal case/F.I.R. No,785 registered on 5-10-2010 ("F.I.R."), while prior to the said date and time, the "Kabinama" was admittedly executed on 15-1-2010, the "Rukhsati" of the petitioner on 15-2-2010 and their happy cohabitation is admittedly up to June, 2010. Thus, the apparent admitted facts belies the said stances taken by respondent No,1 regarding the "Kabinama" being the result of duress imposed upon him by the family members of petitioner No,l.
Fourthly, petitioner No,1 present in Court, when asked about her intention of resuming her conjugal rights, willingly admitted in open Court that respondent No,1 was her lawful husband and for the sake of her young son Muhammad Azan, she is ready to live with her husband, as his lawful wedded wife. To said offer, the response of respondent No,1 was rather evasive. Hence, the finding of the appellate Court on the reason for refusing 'maintenance' to the petitioner No,1 is incorrect and requires judicial correction.
' Fifthly, the sequence of events, as narrated hereinabove, reveals that the "Nikahnama" determined the dower to be 15 tolas of gold, out of which 4 tolas was 'prompt', while the remaining was to be 'deferred'; the dower so fixed by the parties as stipulated in the "kabinama", provides for dower to include 15 tolas of gold; Rs,53,000/- cash; and five marlas house in Peshawar and Rs,3000/- cash, as monthly maintenance. The terms of dower as determined in "Kabinama" being proved by petitioner No,1 through preponderance of evidence, was in addition to the stipulation of dower stated in the "Nikahnama". The terms so stated would bind both executing parties.
'In this regard, it is noted that three tolas of gold has been acknowledged as received by petitioner No,1 in the "Kabinama". This Court considers that the said acknowledgement of receipt provided for in the "Kabinama" would also be taken into account. Thus, petitioner No,1 would be entitled only to twelve tolas of gold as dower, as she has acknowledged receipt of three tolas of gold. Accordingly, out of twelve tolas, petitioner No,1 would be entitled to one tola of gold as 'prompt', while eleven tolas as 'deferred' dower.
' It is also noted that there is no stipulation regarding the quantum of 'prompt' or 'deferred' dower expressed in the Kabinama'. Thus, this Court would have to resort to the principles governing the matter as ordained in Muhammadan Law. To resolve this controversy between the parties, it may not be out of place to rely on section 290, subsection (1) of Principles of Muhammadan Law, which reads: "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 be regarded the whole as prompt but according to the Sunni law, the rule is to be regarded 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. (Emphasis provided)
' As we have already held that the terms of ' Kabinnama' were in addition to the same stated in the 'Nikahnama' therefore, the intention of the parties being clear, it would be safe to apply the same proportion to the dower so fixed in the ' Kabinama'. Accordingly, petitioner No,1 is entitled to four portions of the dower as 'prompt', while the remaining eleven portions thereof to be 'deferred' dower.
' As far as the arguments of the learned counsel for the petitioners that as the spouses had consummated their marriage, petitioner No,1 was entitled to the entire dower, without any exception of the stipulation regarding the 'prompt' or 'deferred', this Court is not in consonance with the said line of argument. In this regard, reference was made to section 336 of Muhammadan Law, which reads as follows:-- "Rights and obligations of parties in divorce.
' The following rights and obligations arise on the completion of a divorce, whatever may be the mode of divorce:-
(1) Right to contract another marriage. If the marriage was consummated, the wife may marry another husband after the completion of her iddat; if the marriage was not consummated, she is free to marry immediately.
' If the marriage was consummated, the husband had four wives at the date of divorce including the divorced wife, he may marry another wife after completion of the iddat of the divorced wife.
(2) Dower becomes immediately payable. If the marriage was consummated, the wife is entitled to immediate payment of the whole of the unpaid dower, both prompt and deferred. If the marriage was not consummated, and the amount of dower was specified in the contract, she is entitled to half of that amount. If no amount was specified all that she is entitled to is a present of three articles of dress.
' The aforementioned provision of Muhammadan Law relates to the obligations of husband and wife in cases of divorce, which is not the case in hand. Hence, the said provision of law has been taken out of context and would not be applicable to the facts of the present case. Surely, in case the husband dies or the spouses are unable to resolve their differences and the matter leads to the dissolution of their marriage, only in such a situation, the distinction between 'prompt' and 'deferred' dower would disappear and the wife would be entitled to all remaining dower, whether 'prompt' or 'deferred'. This issue has also been dilated upon by Sir Abdur Rahim, MA in the treatise of Principles of Muhammadan Jurisprudence, in terms that:-- "Having regard to the time when it becomes payable dower may be muajjal that is, intmediately, exigible or prompt, or muwajjal that is deferred. Whether a dower should be entirely or in part exigible or deferred depends on the contract of the parties and in the absence of any contract, on the custom of the country. Even during the subsistence of the marriage the wife is entitled to demand so much of her dower as is exigible, but she is not entitled during the continuance of the marriage to demand the deferred portion of the dower."
Finally, as far as the dowry articles are concerned, it is noted that it includes 5 tolas of gold alleged by petitioner No,1 to have been purchased by her family, as her dowry. The receipt in support thereof does not plead her stance, as the same clearly states to have been purchased after the date of her "Nikah" with her husband. This aspect of the case has not been dealt with by the trial Court and granting a decree for the same to petitioner No,1 is not in accord with the settled principles of law.
10. Accordingly, for the reasons stated hereinabove, this Court partially accepts the present petition and holds;
(i) that Mst. Salma Bibi and Muhammad Iqbal being lawfully married are husband and wife, having a minor son Muhammad Azan;
(ii) that the decision of the appellate Court is illegal and thus set aside;
(iii) that the decision of the trial Court is modified and a decree is passed in favour of the parties, in terms that;
(a) that petitioner No,1 is entitled to dower of Rs,53,000 in cash, twelve tolas of gold, five marlas house in Peshawar;
(b) that 4th portion of the dower is 'prompt', while the 11th portion thereof is 'deferred', except in case of twelve tolas of gold, of which one tola of gold is 'prompt' and the remaining eleven tolas is 'deferred' dower;
(c) that the petitioner No,1 is entitled to dowry articles as per list attached with the plaint, except 5
(five) tolas of gold.
(d) that plaintiff No,1 is allowed to recover maintenance at the rate of Rs,3000/- from June 2010 till her demand of dower is satisfied.
(e) that plaintiff No,2 is also allowed to recover maintenance at the rate of Rs,1500/- with 15% annual increase from his birth till date his right ceases by operation of law or any other valid reason.
(f) that defendant No,1 is also allowed decree for restitution of conjugal rights subject to payment of dower to petitioner No, 1 .