TARIQ SALEEM SHEIKH, J.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, assails the vires of judgment and decree dated 23-7-2019 passed by the Additional District Judge, Multan, whereby he set aside the judgment and decree of the learned Family Court, Multan, dated 14-5-2019.
2. Brief facts giving rise to this petition are that on 1-1-1992 the Petitioner contracted marriage with Respondent No.2 for which 50 tolas gold was fixed as dower. Although the nuptial tie still subsists there are serious differences between them. On 2-2-2017 Respondent No.2 filed a suit against the Petitioner in the Family Court for recovery of dower. The Petitioner contested the suit on facts as well as on legal grounds. However, his main plea was that her claim was premature because the Nikahnama specifically mentioned it as deferred dower which was payable on dissolution of marriage by death or divorce. The learned Family Court framed issues on the basis of divergent pleadings of the parties, recorded evidence and while upholding the Petitioner's contention dismissed the suit. Respondent No.2 preferred an appeal which was accepted by the learned Additional District Judge vide impugned judgment and decree dated 23-7-2019.. It is, however, important to point out that the learned Appellate Court did not give any detailed reasons for overturning the decision of the learned Family Court except holding that it was contrary to the dictates of the Holy Quran and the law enunciated by the Hon'ble Supreme Court of Pakistan which is binding on all courts under Article 189 of the Constitution.
3. The learned counsel for the Petitioner contends that prompt dower is payable on demand during subsistence of the marital tie whereas deferred dower is payable at the time specified by the parties. However, when no time is stipulated it is payable on determination of marriage by death or divorce. Deferred dower does not become "prompt" merely because the wife has demanded it. He has argued that the impugned judgment and decree dated 23-7-2019 proceeds on a wrong premise and the learned Additional District Judge has erred in reversing the judgment and decree passed by the learned Family Court. The learned counsel has relied on Saadiq Usman and another v. Muhammad Usman Iqbal Jadoon and another (2009 SCMR 1458), Shah Daraz Khan v. Mst. Naila and 3 others (2015 MLD 73), and Mst. Mehnaz Mai v. Ghulam Abbas and 2 others (2018 CLC Note 104).
4. On the other hand, the learned counsel for Respondent No.2 has controverted the above contentions and supported the impugned judgment and decree. He contends that the dower fixed can be prompt or deferred or partly prompt and partly deferred. Prompt dower is payable immediately on demand while the deferred dower is payable on a date or time agreed by the parties. However, it is incorrect to suggest that deferred dower is payable only on death or divorce.
He has placed reliance on Muhammad Azam v. Additional District Judge and the, (2006 YLR Lah.
33) Muhammad Shabbir v. Rehana Kausar and others (PLD 2013 Lah. 102), Joodat Kamran Alvi v.
Additional District Judge and others (2012 MLD 1466) and Muhammad Sajjad v. Additional District and Sessions Judge and 2 others (PLD 2015 Lah. 405).
5. Arguments heard. Record perused.
6. Nikah is central to the concept of marriage in Islam. It is through marriage that the paternity of children is established and relationship and affinity of children are traced. Mahr or dower is generally considered to be an integral part of the marital union under Islamic law. Abdul Rahim defines Mahr as "a sum of money or other form of property to which the wife becomes entitled by marriage". He points out that it is not a consideration proceeding from the husband for the marriage but. is an obligation imposed by law on the husband as a mark of respect for the wife. It is for her sole benefit and exclusive use and benefit.
7. Syed Ameer Ali writes that even before Islam there existed concept of ante-nuptial settlements.
In the ancient times it was customary for the husbands to make payments to their wives as a means of support and protection against arbitrary exercise of power of divorce. The Jewish law insisted upon specification of the total amount of debt prior to the contract of marriage and considered all marriages without consideration as invalid. Among Hebrews the dower settled on the wife was not made over to her immediately. She acquired right thereto only when the marriage was dissolved either by the death of the husband or by divorce in which eventuality it was made over to her and she could enjoy or dispose it of as she desired.
8. "The mahr of the Islamic system is similar in all its legal incidents to the donatio propter nuptias of the Romans", writes Syed Ameer Ali. "It is a settlement in favour of the wife made prior to the completion of the marriage-contract in consideration of marriage. There is, however, this essential difference between the Roman donatio propter nuptias and the Mahr of the Musulmans, that whereas the former is purely voluntary on the part of the husband, the latter is absolutely obligatory. 'Mahr or dower is so necessary', says the Fatawai Kazi Khan, 'to the marriage, that if it were not mentioned at the time of the marriage, or in the contract, the law will presume it by virtue of the contract itself' "
9. The wife or her guardian may stipulate any sum however large as dower at the. time of marriage.
If no sum is specified the wife is entitled to the dower which is customarily fixed for the females of her family (Mahr-ul-Misal).
10. There is nothing in the Holy Quran or the Ahadith which may show that the payment of entire dower in mandatory before consummation of marriage. The Islamic jurists have, therefore, held that the parties may contract that only a portion of the dower would be payable at once while the remainder would be deferred. The portion that is payable immediately is called "Mahr-i-Mu'ajjal"1 2 or "prompt" or "exigible" while the other is described as "Mahr-i-Muwajjal" or "deferred dower".
The former can be realized by the wife at any time before or after consummation and she can refuse conjugal union until that is paid. There is difference of opinion among Hanafi and Shia schools of thought as how the matter should be dealt with where no time is specified for the payment of dower or where its nature is described only in general terms in the contract of marriage and it is not stated how much thereof is prompt and what portion is deferred. Para-290 of the Mahomedan Law by D.F. Mulla elucidated the law on this issue as follows:
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 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.
11. Section 10 of the Muslim Family Laws Ordinance, 1961, resolved a part of the aforementioned controversy by enacting that where marriage contract does not specify whether the dower is prompt or deferred then the whole of it would be payable on demand. The said section is reproduced hereunder for ready reference:
10. Dower --- Where no details about the mode of payment of the dower are specified in the nikahnama or the marriage contrast, the entire amount of the dower shall be presumed to be payable on demand.
12. The situation where a part of the dower is Mu'wajjal but the time of its payment has not been specified is quite contentious. The Hon'ble Supreme Court of Pakistan was called upon to resolve the controversy in Saadia Usman and another v. Muhammad Usman iqbal Jadoon and another (2009 SCMR 1458). Endorsing D.F. Mulla's view expressed in para 290, supra, it ruled as under: "It is clear from the passages just quoted from the book titled "Kitab-al-fiqh al-Madhahab-al- atba'a" that the Hanafi jurists allow both categories of Mahr. Mu'ajjal, (prompt, i.e. immediately payable) and Mu'wajjal (deferred), i.e. payable latter, after a certain time. However, where a part of the dower is described as mu'wajjal, 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).
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 Court further held: "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".
13. In the instant case, in order to prove the claim that she was entitled to recover dower from the Petitioner, Respondent No.2 herself appeared as PW-1, tendered her affidavit in evidence as Exh.P-1, Nikahnama Exh.P-3 and a copy of the salary slip of the Petitioner as Mark-A. On the other hand, the Petitioner himself appeared as DW-1 and submitted his affidavit in evidence as Exh.D-1.
14. The parties do not dispute the contents of Nikahnama Exh.P-2. They only differ on the interpretation and legal import of Column No.13 thereof which states that 50 tolas gold has been fixed as Mahr Ghair Mu'ajjal. In our country the said term is interchangeably used with Mahr-i- Mu'wajjal and connotes deferred dower. Admittedly, the marriage between the parties is still subsisting. In view of the law laid down by the Hon'ble Supreme Court in Saadia Usman's case, supra, I am inclined to agree with the learned counsel for the Petitioner that Respondent No.2 is not entitled to recover her dower at this stage and that her suit is premature.
15. A few words about the case-law cited by the learned counsel for Respondent No.2. The first is Muhammad Shabbir v. Rehana Kausar and others (PLD 2013 Lah. 102). In that case the man had contracted second marriage without the permission of his first wife or the Arbitration Council. The Court decreed the first wife's claim for recovery of deferred dower on the ground that section 6(5) of the Muslim Family Laws Ordinance, 1961, stipulates that in such circumstances the husband would be liable to pay to the first wife the entire amount of dower, whether prompt or deferred, and if not so paid the same shall be recoverable as arrears of land revenue. It is pertinent to point out that while deciding the said case the learned Judge referred to. Dr. Anees Ahmad v. Mst. Usma (PLD 1998 Lah. 52), and Muhammad Azam v. Additional District Judge and others (2006 YLR 33) to observe that Islamic law does not recognize distinction between prompt and deferred dower. I am afraid, reliance on these cases was misplaced in view of the fact that Saadia Usman's case of the Supreme Court ruled to the contrary. Similarly, the cases reported as Joodat Kamran Alvi v.
Additional District Judge and others (2013 MLD 1466), and Muhammad Sajjad v. Additional District and Sessions Judge and 2 others (PLD 2015 Lah 405) are in nonflict with the dictum, laid down in Saadia Usman's case, supra. As a matter of fact, they do not consider it at all.
16. For the reasons explicated above, this constitutional petition is allowed. Judgment and decree dated 23-7-2019 passed by the learned Additional District Judge is set aside and that of the learned Family Court is restored. No order as to costs. Muhammadan Jurisprudence, 1978 Edition, p.378. Muhammadan Law, 1976 Edition, p.391