' ROOH-UL-AMIN KHAN, J.---Questioned herein is the judgment and decree of the learned Judge Family Court Lakki Marwat dated 24-1-2011 and that of the learned Additional District Judge, Lakki Marwat dated 22-9-2011.
2. Brief but relevant facts forming the background of instant writ petition are that, plaintiff Mst. Naila along with her minor son Aryan (respondents herein), filed a suit against the defendant Shah Daraz Khan (petitioner herein) for dissolution of her marriage, recovery of 30 tolas gold ornaments in lieu of her dower, dowry articles, fully described in the heading of the plaint and recovery of maintenance allowance for herself as well as for her minor son at the rate of Rs,5000 per month, from 4-6-2009, and future maintenance at the same rate. As per averments in the plaint, marriage of petitioner and respondent No,1 was solemnized in lieu of 30 tolas gold as dower and to this effect an Iqrarnama was also executed. Out of the total dower, 6 tolas gold ornaments were allegedly provided to respondent No,1 at the time of her Rukhsati by the petitioner, but later on, the same were taken back on account of some emergency with a promise of its return by the petitioner, but he did not. Thus, in this way her entire dower is allegedly outstanding against the petitioner- husband. From the very inception, the attitude of the petitioner towards respondent No,1 remained harsh as he used to thrash her without any rhyme and reason and when she demanded her outstanding dower, he shunted her out from his house along with her minor son respondent No,2.
Respondent-wife filed a family suit which was decided on the basis of compromise, but behaviour of the petitioner-husband remained cruel as such she informed her father, who in consequence of warrant under section 100 Cr.P.C. Issued by the Illaqa Judicial Magistrate, got her released from the house of her husband and since then, she is residing in her parents house along with her minor Aryan and during this period the defendant did not pay a single penny as maintenance of the respondent-wife or minor Aryan. Due to cruel attitude of the petitioner-husband, respondent-wife had developed hatred against him and she is not ready to live with him within the limits ordained by Almighty Allah.
3. The petitioner-husband contested the suit by filing written statement specifically denying the factum of non-payment of dower. As per his assertion the entire dower of the respondent-wife was only 6 Tolas gold ornaments which he has already paid to her. The plea of restitution of conjugal rights was also taken by the petitioner-husband. From the divergent pleadings of the parties, issues were framed. The parties led their pro and contra evidence and on conclusion of trial, the suit of the respondent-wife was decreed to the extent of dissolution of her marriage, recovery of dower to the extent of 24 Tolas gold, recovery of dowry articles and her maintenance allowance at the rate of Rs,1000 per month as well as maintenance of respondent No,2 at the same rate with 10% annual increase till his majority. The prayer of the respondent-wife to the extent of dower amounting to 6 tolas gold ornaments was turned down. Both the parties being dissatisfied with the findings of the learned Judge Family Court, preferred separate appeals before the learned Appellate Court. The appeal of the petitioner-husband was dismissed while that of respondents was partially allowed. The findings of the learned Judge Family Court to the extent of dower and dowry articles were upheld however, maintenance allowance of both the respondents was increased to Rs,2,000 per month with same rate of annual increase for respondent No,2. Through instant writ petition, the petitioner-husband, has assailed both the judgments of the two Courts below.
4. We have heard the exhaustive arguments of the learned counsel for the parties and have gone through. The record with their valuable assistance.
5. As per averments in the plaint, 30 tolas gold ornaments had been fixed as dower of the respondent-wife, out of which, 6 Tolas had been paid/provided to her at the time of her Rukhsati, but later on, allegedly taken back by the petitioner-husband and never returned to her. It is further alleged that in respect of dower an Iqrar nama had also been executed between the parties. To substantiate her dower, respondent-wife examined Petition Writer, who produced Iqrarnama dated 12-6-2005 (Exh.P.W.1/1) and extract of his register (Exh.P.W.1/2). The Iqrarnama depicts that 30 tolas gold ornaments has been fixed as dower of the respondent, out of which 10 Tolas gold has been mentioned as prompt dower while remaining 20 Tolas as deferred. One Shafiq-ur-Rehman, marginal witness of the said deed has been examined as P.W.2, who acknowledged the contents of the deed to be true and verified his signature thereon. The other marginal witness of the deed is father of the respondent No,1, who also verified his signature over the deed Exh.P.W.1/1. The petitioner-husband has specifically denied execution of Exh.P.W.1/1 and his signature thereon alleging the same to be a fake and fictitious document. In support of his contention, he himself appeared as DW.1 while Shah Riaz and Dilnawaz Khan were examined as DW.2 and DW.3. All the three DWs have deposed that only 6 tolas gold ornaments had been fixed as dower of the respondent-wife, which has already been paid to her. They also referred to an earlier suit No,99/FC of 2008, between the parties, which has been decided on the basis of compromise, as a consequence whereof, 6 tolas gold ornaments had been returned to respondent-wife. Because of the denial of the petitioner-husband qua his signature over Iqrarnama/dower deed Exh.P.W.1/1, his specimen signature along with original deed Exh.PW 1/1 was sent to FSL Peshawar, report whereof dated 14-122010, reads as under:-- "The questioned Urdu signature on the disputed deed tallies in individual characteristics with the set of his specimen/routine signatures supplied".
' From the evidence led by the respondent-wife coupled with the FSL/Expert report regarding signature of the petitioner-husband, the execution of the deed Exh.P.W.1/1 and fixation of the dower as 30 tolas gold therein, has been proved.
6. Now the moot point for consideration would be as to whether the dower fixed in Exh.P.W.1/1 has been paid to the respondent-wife by the petitioner-husband or not. Respondent-wife is alleging her entire dower to be outstanding against the petitioner-husband because according to her 6 tolas gold ornaments provided to her by the petitioner, at the time of her Rukhsati had been taken back from her by the petitioner. There is no denial of the fact that earlier suit No,99/FC of 2008, had been instituted by the respondent-wife which was decided on 5-12-2008 on the basis of compromise. In the said compromise it was agreed that petitioner-husband would pay 6 tolas gold ornaments to the respondent-wife and in lieu thereof she will reside with him. Defendant has examined Shah Riaz as D.W.2 and Dil Nawaz Khan as DW.3. Both the witnesses in their statements have categorically stated that after compromise of the earlier suit, 6 tolas gold ornaments were delivered to the respondent-wife in Sarai Naurang in her father's house. Both the P.Ws. Are consistent and their statements could not be shattered by the respondent-wife to the extent of payment of 6 tolas gold ornaments after B the compromise in the suit referred above. On the other hand, no shred of evidence has been brought by the respondent-wife to prove that 6 tolas gold ornaments have not been paid to her after the compromise of her earlier suit. In the circumstances, it can be safely concluded that she had received 6 tolas gold ornaments out of her total dower. The petitioner-husband has failed to prove the payment of dower more than that of 6 tolas gold ornaments.
7. As stated earlier that respondent-wife has proved Iqrarnama/dower deed Exh.P.W.1/1, wherein 30 tolas gold ornaments has been fixed as her entire dower. In case of payment of 6 tolas gold ornaments to the respondent-wife by the petitioner-husband, the remaining 24 tolas gold ornaments are proved to be outstanding against the petitioner-husband. According to the deed Exh.P.W.1/1, 10 tolas gold ornaments had been shown as prompt dower while 20 as deferred.
8. Admittedly, the marriage of the parties has been dissolved not by Khula but on the ground of cruelty. It appears from the record that respondent No,1 informed her father about cruel behaviour of the petitioner, as a consequence whereof, he approached the Court of Illaqa Judicial Magistrate and warrant under section 100 Cr.P.C. Was issued for production of the respondent. The local police produced respondent before the Illaqa Judicial Magistrate wherein she stated that she is not ready to reside with her husband due to his cruel behaviour. Resultantly, she was allowed to accompany her father. The respondents have proved through her evidence that the petitioner-husband has not paid her dower nor has paid a single penny during period of her stay in her parents' house as maintenance to her or to her minor son Aryan as such she has developed hatred with the petitioner and not ready to live with him at any cost. Under the Dissolution of Muslim Marriages Act, marriage of a wife can be dissolved on the basis of cruelty on the part of husband and that if she develops extreme hate to live with the husband within the limits ordained by Almighty Allah. In the circumstances, the learned Family Court was justified to dissolve the marriage of the parties.
9. In Muslims marriage, the payment of dower is an essential obligation, which is considered as an inalienable right of the wife as well as an obligation of the husband to pay. According to the principle of Muhammadan Jurisprudence, dower is divisible into two parts, prompt dower and deferred dower. The prompt dower is realizable by the wife at any time before or after consummation while the deferred dower is payable on divorce or death of the husband. However, if the husband contracts second marriage without the previous permission of the wife, he shall pay immediately the entire amount of the dower, whether prompt or deferred, which amount if not so paid, shall be recoverable as arrears of land revenue: The classification of dower as prompt and deferred has no legal sanction behind it except the general practice in the Muslim Society for convenience of the parties. Normally, women do not demand payment of full dower which is fixed at the time of their Nikah 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 wisdom behind the classification of prompt and deferred dower is dependable upon the harmonious relation of the parties and particularly protection of right of women in unforeseen circumstances. The deferred dower is a sort of guarantee of a woman against ill-treatment, non-maintenance, desertion or any other abnormality in the matrimonial life including rash and arbitrary divorce.
10. There is no cavil to the proposition that the deferred dower is payable to the wife at the death of her husband or at the time of dissolution of marriage. The law on the subject is incorporated in Para No,290 of the Muhammadan Law, authored by D.F. Mulla which is clear and needs no interpretation. The same is reproduced as under:- "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 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".
' From bare reading of the above quoted Para, it is clear then crystal that prompt dower is payable on demand while the deferred dower shall be paid, on dissolution of marriage by death or divorce.
In the instant case, as discussed and observed in the preceding Paragraphs the dower of the respondent-wife was fixed as 30 Tolas gold ornaments, out of which 10 Tolas gold ornaments have been shown as prompt while rest of 20 Tolas as deferred dower. Cruelty on the part of the petitioner-husband has also been established on record, thus, at the time of dissolution of marriage of the parties, the learned trial Court has rightly granted decree for payment of prompt as well as deferred dower. In support of the above, reference may be made to the well celebrated judgment of the august Supreme Court of Pakistan in case titled "Mst. Saadia Usman and another v. Muhammad Usman Iqbal Jandoon and another" (2009 SCM R 1458). The question of deferred dower has already been decided by the august Supreme Court of Pakistan in case titled, Dr. M.Sohail Karim Hashmi v. Federation of Pakistan through Secretary Ministry of Health Government of Pakistan Islamabad and another" (2009 SCM R 1472) , wherein after discussing plethora of law and deriving wisdom from Qur'aan, Sunnah and Fiqah on the subject, has been held the following:-- "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 is 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."
11. Admittedly prompt dower is payable during subsistence of marriage tie whereas deferred dower is payable on the time stipulated between the parties but where no time is stipulated, deferred dower did not become "Prompt" merely because the wife had demanded the same, rather the same would be payable in the eventuality of dissolution of marriage either by death or divorce.
Therefore, the respondent No,1 is entitled to the remaining dower of 24 tolas gold ornaments after dissolution of her marriage.
12. Respondent-wife has also sought recovery of her dowry articles, detail of which is mentioned in the plaint. The petitioner has categorically denied the same. The record of the earlier suit decided on the basis of compromise reveals that respondent had mentioned in her plaint the same dowry articles as mentioned in the instant suit. The claim of the respondent in the earlier suit had been conceded by the petitioner which proves the dowry articles to be still lying in the house of the petitioner. Moreover, keeping in view the norms of our society, each and every father whether rich or poor makes dowry articles for their daughters on the eve of marriage according to their financial status.
13. Respondent No,1 along with her minor son is residing in the house of her parents since 4-6-2009.
The petitioner has failed to bring an iota of evidence on record to prove that during this period he had maintained the respondent and her minor son for which he was legally and morally bound being husband of respondent No,1 and real father of minor respondent No,2.
14. The argument of the learned counsel for the petitioner that the annual increase of 10 per cent in monthly amount of maintenance allowance of the minor, is not permissible under the law, is unpersuasive because we are afraid that if such argument prevail that the Statute does not provide the annual increase in maintenance allowance of the minor, then in case of inflation and decrease of the local currency, each time the minor will come for amendment of the decree through a separate application. In case of Tauqeer Ahmad Qureshi v. Additional District Judge Lahore and 2 others (PLD 2009 Supreme Court 760), the apex Court while reducing the annual increase in maintenance allowance of the minor, in the peculiar circumstance of that case had not discarded the annual increase in maintenance allowance. It is settled law that the Courts are bound to decide each case on the basis of its own facts and record without referring to the record of another case. Reliance may be placed on case titled, "Muhammad Shakil v. The State" (PLD 1990 SC 686). In the instant case, the Courts below, after observing all the surrounding circumstances, have rightly fixed the maintenance allowance of the minor with 10 per cent annual increase.
15. For what has been discussed above, both the Courts below have rightly appreciated the entire evidence available on record and have arrived at proper and just conclusion. There is no illegality or irregularity or violation of any law which may warrant interference in the impugned judgments in constitutional jurisdiction. Consequently, this writ petition is dismissed.