RAJA SAEED AKRAM KHAN, C.J. The defendant-appellant married with the plaintiff-respondent on 23.4.2017 against the consideration of dower amounting to Rs. 5,08,000/- out of which Rs.2,08,000/- was paid in shape of gold ornaments, whereas, the remaining amount was deferred. Subsequently, the appellant divorced the respondent, whereafter, the plaintiff-appellant filed a suit before the Judge Family Court, Hajira for recovery of amount deferred dower. She also filed a suit for recovery of maintenance allowance for the period of Iddat. The suits were contested by the appellant on the ground that the respondent never allowed him to consummate the marriage, hence, she is not entitled to the amount of dower. The learned trial Court vide judgment and decree dated 12.04.2019, passed the decree for recovery of dower amounting to Rs.300,000/-. A decree for recovery of maintenance allowance of Rs.5,000/- per month for the period of Iddat was also granted. The appeal filed by the appellant before the High Court failed, hence, this appeal by leave of the Court.
3. Raja Muhammad Hafeez Tahir, Advocate, the learned counsel appearing on behalf of the appellant argued with vehemence, that the judgments passed by the Courts below are against the law and facts and based upon misreading and non-reading of the evidence. He laid great stress on the point that in the statement the appellant specifically alleged that the marriage was not consummated as on the wedding night the respondent never allowed the appellant to fulfil his marital obligations on the ground that she is interested with someone else and wants to marry him. In this state of affairs, the respondent is entitled only to the half amount of the dower, whereas, the Courts below fell in error of law while declaring her entitled to full amount of dower. He added that this version of the appellant has not been denied by the respondent through filing replication.
Furthermore, the relevant portion of the statement of the appellant has also not been challenged in the cross-examination, therefore, both the Courts below have fell in error while passing the impugned judgments.
4. On the other hand, Sardar Muhammad Latif Khan, Advocate, the learned counsel for the respondents submitted that the Courts below rightly appreciated the evidence brought on record, hence, no question of misreading or non-reading of evidence arises., It is admitted by the appellant that Rukhsati took place and the appellant and the respondent lived together in the same house for 7/8 months which is sufficient to prove Khalwat-e-Sahiha according to the injunctions of Islam. The judgment passed by the High Court is based on solid reasons, hence, not open for any interference by this Court.
5. We have heard the learned counsel for the parties and gone through the record. In verse No.237 of the Sura Al Baqrah, it has been commanded that:- "And if ye divorce them before consummation, but after the fixation of a dower for them, then the half of the dower (Is due to them), unless they remit it or (the man 's half) is remitted by him in whose hands is the marriage tie; and the remission (of the man 's halt) is the nearest to righteousness. And do not forget Liberality between yourselves. For Allah sees well all that ye do."
The command of the Holy Qur'an is that in case of consummation of marriage the wife becomes entitled for full amount of dower, whereas, in case of non-consummation of marriage the wife is entitled to receive half dower. In Islam, consummation of marriage (al-khalwah al-sahihah) occurs when the couple spends some time after the marriage in seclusion and or privacy. Intercourse is not necessary for consummation of marriage, from an islamic point of view. This is the agreed position of the jamhur (majority jurists), including the Hanafi, Maliki and Hanbali schools. This was also the opinion of the four Caliphs after the Prophet Muhammad (PBUH).[1] The Prophet Muhammad (Peace and Blessings Upon Him) stated:-- "The husband who lifts the veil of his wife [following nikah], looks at her [privately], the mahr (bridal gift) becomes mandatory, whether he had intercourse with her or not." (Al-Dar Al-Qutniy)
Ibn-e-Omar (may God be pleased with him) said, "When the doors are closed, the curtains are drawn and nudity is seen, she is entitled to mahr, inheritance and must complete the 'iddah (waiting period)." (Tafsir Al-Hawi)
If both partners have agreed not to engage in sexual intercourse, then there is no issue. The marriage is intact. If, however, either the husband or the wife is demanding sexual intimacy, and the spouse is not making him/herself available for it, then the deprived partner has a right to initiate a divorce.
6. In the case in hand, the plaintiff filed a suit for recovery of amount of deferred dower, whereas, the stance of the appellant taken in paragraph 2 of the written statement is that:- The claim of the appellant is that the marriage has never been consummated. As stated hereinabove, the consummation of marriage occurs when the married couple spend some time after the marriage in seclusion and or privacy. Intercourse is not necessary for consummation of marriage, hence, the stance of the appellant is, devoid of any force.
7. The perusal of the evidence brought on record reveals that after marriage Rukhsati took place and the respondent resided in the house of appellant for 7/8 months. The plaintiff-respondent in her statement deposed that:- Amazingly, in cross-examination not a single question was put to her regarding non-performance of marital obligations during the period of population. It is also admitted in the statement of the appellant that the spouses returned after 3/4 days of the Rukhsati to the house of respondents' parent. In the given circumstances, Khalwat-i-Sahiha is sufficiently proved from the record, hence, the respondent is entitled for recovery of full amount of dower. Both the Courts have concurrently recorded findings in this regard, whereas, the learned counsel for the appellant failed to point out anything contrary.
8. The decree of the trial Court to the extent of maintenance allowance for the period of Iddat is not disputed, hence, no observations in this regard are required to be recorded.
For the above stated reasons, finding no force, this appeal is dismissed with no order as to costs.
[1](See Fiqh wa Adillatuh, Sharh Zarakhshiy, AI-Bada'i AI-Sana'i, Al-Bahjah, Tafsir AI-Hawi).