' M. SOHAIL IQBAL BHATTI, J.---This writ petition is directed against the judgment and decree dated 27-6-2014 passed by learned Additional District Judge, Jalalpur Pirwala and judgment and decree dated 7-4-2014 passed by learned Judge Family Court, Jalalpur Pirwala.
2. Brief facts of the case are that Mst. Asiya Bibi plaintiff/respondent No,3 filed a suit for recovery of maintenance allowance, recovery of dower and recovery of dowry articles against the petitioner/defendant which was contested by the petitioner/defendant through filing of contesting written statement. On the basis of divergent pleadings of the parties following issues were framed:-
(1) Whether the plaintiff is entitled to decree for maintenance allowance from the defendant? If so, at what rate and for what period? OPP (2)Whether plaintiff is entitled to recover dower from the defendant as prayed for, if so on what grounds? OPP (3)Whether the plaintiff No,1 is entitled to recover dowry articles as per list annexed with the plaint?
OPP (4)Whether the suit of the plaintiff is false, frivolous, and concocted, the same is liable to be dismissed? OPP (5)Whether the plaintiff has not come in the court with clean hands and estopped by her words and conduct, if so, on what grounds? OPD (6)Whether the plaintiff has filed the instant suit just to blackmail and harass the defendant, the suit is false, frivolous and concocted and same is liable to be dismissed, if so, on what grounds?
OPD (7)Relief.
3.After adducing the evidence from both sides, learned Judge Family Court decreed the suit @ Rs:2,000 per month as future maintenance allowance; decreed the suit to the extent of Rs:100,000 for recovery of dowry articles and also decreed the suit to the extent of 5 Marla plot along with four walls and 1/2 Tola Gold Ornaments for recovery of dower.
4.The petitioner/defendant being aggrieved from the judgment and decree passed by learned trial court, preferred an appeal which was partially allowed by the learned Additional District Judge, Jalalpur Pirwala vide judgment and decree dated 27-6-2014 by setting aside the decree to the extent of future maintenance allowance, however, to the extent of remaining reliefs upheld the judgment and decree of learned trial court. Hence, this writ petition.
5.The learned counsel for the petitioner/defendant argued that the impugned judgments and decrees passed by both the courts below are unwarranted by law and have been passed in a summary manner. He further argued that the judgments and decrees passed by both the courts below to the extent of dower and dowry articles are not sustainable in the eyes of law. The learned counsel for the petitioner/defendant further argued that although the learned appellate court upheld the decision of trial court but the same is a result of misreading and non-reading of documentary and oral evidence. The learned counsel further referred to 'columns Nos.14 and 15 of Nikah Nama' where against these columns, it is written that one house plot 5 Marla complete four walls Haq Mehar Ghair Mu'ajjal and argued that this dower could only be claimed by respondent No,3/plaintiff it case of divorce or death of the petitioner/defendant.
6.I have considered the arguments advanced by the learned counsel for the petitioner/defendant and perused the record carefully.
7. As far as the decree to the extent of Rs,1,00,000 in lieu of dowry articles upon the solitary statement of respondent No,3; it is a settled principle of law that purpose of enacting the special law regarding the family disputes is to advance justice and to avoid technicalities which are hindrance in providing ultimate justice to the parties. It is pertinent to mention here that West Pakistan Family Courts Act, 1964 was promulgated for the expeditious settlement and disposal of disputes relating to marriages and other family affairs and special procedure was provided to achieve this object and therefore, the legislature, in its wisdom, excluded the application of Qanun- e-Shahadat Order, 1984.
' Section 17 of the Family Courts Act, 1964 is reproduced below:-- "17. Provisions of Evidence Act and Code of Civil Procedure not to apply.---(1) Save as otherwise expressly provided by or under this Act, the provisions of the [Qanun-e-Shahadat, 1984 (P.O.
No,10 of 1984)] and the Code of Civil Procedure, 1908 [except sections 10 and 11] shall not apply to proceedings before any Family Court, [in respect of part I of Schedule].
(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts."
8. The purpose of enacting Family Courts Act, 1964 is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner. All that the Family Courts Act, 1964 has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better reliefs. The provisions of Civil Procedure Code, 1908 as well as Qanun-e-Shahadat Order, 1984 are not applicable in stricto sensu to proceedings before the Family Court by virtue of Section 17 of the Act, 1964. Family Court has to regulate its own proceedings in accordance with the provisions of the Act, 1964; and in doing so it has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law. Therefore, a mere fact that a party did not formally prove a document is of no legal consequence.
'It is observed that the evidence adduced before the Family Court cannot be evaluated and appraised in a manner as it is appreciated in the cases presented under Civil Procedure Code.
9.It has been held in Mst. Shakeela Bibi v. Muhammad Israr and others (2012 M LD 756) that the solitary statement of wife is sufficient to prove the claim of dowry articles. It was further held that this notion is misconceived that the wife while making the claim for dowry articles was required to prove the case in terms of requirements of Qanun-eShahadat Order, 1984. West Pakistan Family Courts Act, 1964 is a special law and provisions of Qanun-e-Shahadat Order, 1984 have been excluded through section 17 of the Act, 1964.
10. Since both the courts below have given concurrent findings of fact against the petitioner/defendant, therefore, this Court, in its constitutional jurisdiction, cannot interfere with the findings of fact recorded by both the Courts below.
11.It is worth mentioning that in preliminary objection No,8 of the written statement, petitioner/defendant himself admitted that petitioner/ defendant has paid the settled Haq Mehar worth Rs:1,000 and no other Haq Mehar was settled at the time of Nikah and the remaining Haq Mehar mentioned in the Nikah Nama is a result of forgery and fabrication.
12. The perusal of written statement makes it abundantly clear that the petitioner/defendant has not taken the plea of Ghair Mu'ajjal Haq Mehar in written statement; rather he denied the contents of the Nikah Nama. Moreover, when the plaintiff/respondent No,3 successfully proved the Nikah Nama by way of adducing her evidence, then petitioner/defendant took a diametrically opposite stance in the present writ petition. The plea raised in this writ petition was also not raised in the memo of appeal.
13. I have given my anxious considerations to the contents of Nikah Nama where the column No,14 which relates to the payment of the dower amount in Mu'ajjal and Mowajjal (prompt and deferred) was left blank while against the column No,15 which relates to the condition as to whether how much of the dower amount was paid at the time of Marriage; it is specifically mentioned that one house plot measuring 5 Marla which leads to the fact that all of the dower mentioned in the G Nikah Nama was fixed and payable at the time of Marriage ceremony.
14. I am afraid that the defendant /petitioner cannot raise this plea for the first time before this Court in its extra ordinary constitutional jurisdiction. The family court is a court of ultimate jurisdiction which has power to record the evidence and to decide the factual controversies. Both the courts below have concurrently found the plaintiff/respondent No,3 entitled for the grant of dower in terms of Nikah Nama (Exh.P/1).
15. In general terms, dower is defined as "Muajjal" and "Muwajjal" which is called prompt and deferred respectively. The prompt dower is payable immediately on demand whereas deferred dower is payable at a specified time and on consummation of marriage, the dower is right of the wife, whether prompt or deferred and there is no difference of opinion between Islamic jurists regarding payment of prompt dower at the time of marriage or when it is demanded by the wife.
However, various schools of thoughts have divergent opinion about the payment of deferred dower. According to "Hanfi Fiqah" to which the most of the society belong in our Country, if the deferment or postponement is not specified and is generally described as deferred, this dower will be considered prompt and shall be payable accordingly.
16. This Court would refer to Kitab-al-Fiq Ala-Madhahib-Al-Arbaha by Abdul Rehman Al-Jazairi, Volume 4, Page 153, Chapter of Nikah, Published at Darul Fiq, and Bidaie-As-Sanaie Fi Tarteeb Ash- Sharai by Allama Abu Bakar Alla-ud-Din Al-Qasmi Al-Hanfi, Volume 2, Page 288, to hold 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. This view is in conformity to the command of Holy Quran, therefore, in terms of section 6(5)(a) of the Muslim Family Laws Ordinance, 1961 the immediate payment of entire amount of dower, whether prompt or deferred is obligatory in such cases.
17. The only difference of Mu'wajjal and Mu'ajjal i,e, prompt and deferred is that deferred dower is not payable till the arrival of stipulated period whereas prompt dower is payable immediately on demand and if K for the payment of deferred dower no stipulated time is fixed, it would be treated as prompt i,e, payable on demand. This leads this Court to the conclusion that deferred dower without specification of period or stipulation, shall be payable at any time upon demand.
18. Under the Islamic principle, the payment of dower is an essential obligation of the husband and his failure to pay the dower tent amounts to injustice and inequity. According to the Dictionary of Islam by Hughes, "Dower" is considered by some lawyers to be an effect of the marriage contract, imposed on the husband by the law as a mark of respect for the subject of the contract with the wife; whilst others consider that it is in exchange for the usufruct of the wife, and its payment is necessary, as upon a provision of support to the wife depends the permanency of the matrimonial contract. Thus, it is indispensable, a fortiori, so much so, that if it were not mentioned in the marriage contract, it would still be incumbent on the husband, as the law will presume it by virtue' of the contract itself, and award it upon demand being made by the wife. Payment of dower is obligatory on the husband and dower, thus, under no circumstances, can be said to be a benefit which a husband bestows on the bride as a consequence of the marriage; it is wife's entitlement and right as a consideration of marriage.
19. The classification of dower as prompt and deferred has no legal sanction behind it, except the general practice in Muslim society for the M convenience of the parties.
'The concept and wisdom in classification of dower as prompt and deferred depends upon the relationship of party and protection of right of women in un-foreseen circumstances without taking away her right of demand of payment of dower till the marriage is not dissolved. 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. The deferred dower is source of guarantee for a woman against ill-treatment, non-maintenance, desertion or any other abnormality in the family life. 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 Quran in verse 124, Sura An Nisa as under:-- "Seeing that you derive benefit from them, give them their dower as prescribed"
20.The commands of Allah (SWT) given in the Holy Quran (Sura An-Nisa, V.R. 4) reads as under: --- - "At the time of marriage, give the women their dowers willingly as an obligatioh, but if they, by their own free will, give up to you a portion of it then you may enjoy it with pleasure."
21.The English rendering of the above Verse, given in the "Translation of the meanings of the Holy Quran by Dr. Muhammad Taqi-ud-Din Al-Hilali and Dr. Muhammad Muhsin Khan, published by the King Fahd Complex for the Printing of Holy Quran, Madniah, Kingdom of Saudi Arabia reads as under: ---- "And give to the women (whom you marry) their Mahr (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)."
22. I am also fortified in my opinion from the view taken by the honourable High Court in its authoritative judgments cited as 2006 YLR 33 (Lahore) (Muhammad Azam v. Additional District Judge and others) and 2000 CLC 1384 (Lahore) (Dr. Sabira Sultana v. Maqsood Sulqari, Additional District and Sessions Judge, Rawalpindi and 2 others} where it is held that the dower whether prompt or deferred is an inalienable right of wife and after consummation, same would become vested right 0 of a wife at any time. Pronouncement of Talaq is not a pre-condition for the maintainability of the suit for recovery of dower.
23. For what has been discussed above, this writ petition is Dismissed in limine.