RAHEEL KAMRAN, J.: This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question concurrent findings of the courts below whereby the suit instituted by Mst. Iqra Saeed respondent No.3 (hereinafter to be referred as 'respondent') against the petitioner for recovery of Rs.2,00,000/- as deferred dower, dowry articles and maintenance was decreed.
2. Facts of the case relevant for decision of the instant case are that on 24.12.2021 the respondent instituted a suit against the petitioner for dissolution of marriage, recovery of maintenance allowance, dower Rs.2,00,000/- and dowry articles valuing Rs.3,71,200/-. The suit was resisted by the petitioner by filing written statement. On failure of efforts for pre-trial reconciliation, the suit to the extent of dissolution of marriage was decreed by the trial court on the basis of khula under section 10(5) of the Family Courts Act, 1964 on 25.05.2022 and issues were framed. After recording of evidence of the parties, the suit was partly decreed by the Judge Family Court, Sahiwal by way of judgment and decree dated 26.10.2023, whereby the respondent was held entitled to recovery of maintenance @ Rs.5000/-per month only for iddat period and to Rs.1,00,000/- as alternate price of the dowry articles. However, the issue of dower was not adjudicated in the said judgment. The appellate court remanded the case back to the Family Court for decision of all the issues.
Thereupon, the case was again decided by the Family Court through judgment and decree dated 08.03.2024, whereby apart from the relief earlier granted vide judgment and decree dated 26.10.2023, the respondent was held entitled to the recovery of deferred dower to the tune of Rs.2,00,000/-. Feeling aggrieved, the petitioner preferred an appeal, which was dismissed by the Additional District Judge, Sahiwal by way of judgment and decree dated 02.09.2024, hence this petition.
3. Learned counsel for the petitioner submits that in the event of dissolution of marriage on the basis of khula, the respondent could not have claimed for recovery of dower. In order to supplement his contention, learned counsel has placed reliance on the case of Muhammad Arif v.
Saima Noreen and another (2015 SCMR 804). Learned counsel for the petitioner further contends that it stood proved from the evidence that financial status of the parents of the respondent was not such that they could afford providing her dowry articles as detailed in the list.
4. None has entered appearance on behalf of the respondent as she was proceeded against ex parte vide order dated 09.04.2025.
5. Heard. Available record has been perused.
6. Taking up the case qua decree for recovery of dowry articles at first, the respondent in her plaint sought recovery of her dowry articles valuing a total of Rs.3,71,200/-. She provided a detailed list of the dowry articles (Ex.P-3). The petitioner in his written statement admitted that some dowry articles were given to the respondent. The courts below partly decreed the respondent's claim for the dowry articles by declaring her entitled to alternate value to the tune of Rs.1,00,000/-. Giving of dowry articles to daughters is a deep routed practice in our society followed by the parents of all classes irrespective of their financial status. The alternate value of the dowry articles as fixed by the courts below, even if is seen in conjunction with the admission of the petitioner that some dowry articles were given to the respondent, the same appears to be reasonable. Therefore, findings of the courts below regarding dowry articles are unexceptionable.
7. Adverting now to the crucial aspect of the case qua decree of dower, it is undisputed that an amount of Rs.2,00,000/- was fixed as deferred dower at the time of nikah of the petitioner with the respondent. The petitioner initially took the plea that he has paid the deferred dower. Such plea, however, was repelled by the courts below in view of the evidence adduced by the parties. Findings recorded by the courts below in this respect have been seen, which seem to be flawless. Now petitioner has raised legal question that as the marriage was dissolved on the basis of khula, the respondent was barred from claiming recovery of dower.
8. Marriage between the petitioner and the respondent was dissolved by the Judge Family Court on 25.05.2022 on the basis of khula under section 10(5) of the Family Courts Act, 1964 (The Act). It is important to note that Sub-section (5) and (6) were added to Section 10 of the Act through the Punjab Family Courts (Amendment) Act 2015 (Punjab amendment), which became effective on 18.03.2015. To facilitate a comprehensive understanding, section 10 of the Act as after the Punjab amendment, which dealt with dissolution of marriage through court, is reproduced below.
"10. Pre-trial proceedings.- (1) When the written statement is filed, the Court shall fix an early date for a pre-trial hearing of the case.
(2) On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the precis of evidence and documents filed by the parties and shall also, if it so deems fit, hear the parties and their counsel.
(3) The Family Court may, at the pre-trial stage, ascertain the precise points of controversy between the parties and attempt to effect compromise between the parties.
(4) Subject to subsection (5), if compromise is not possible between the parties, the Family Court may, if necessary, frame precise points of controversy and record evidence of the parties.
(5) In a suit for dissolution of marriage, if reconciliation fails, the Family Court shall immediately pass a decree for dissolution of marriage and, in case of dissolution of marriage through khula, may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty-five percent of her admitted prompt dower to the husband.
(6) Subject to subsection (5), in the decree for dissolution of marriage, the Family Court shall direct the husband to pay whole or part of the outstanding deferred dower to the wife."
However, sub-section (5) and (6) of section 10 of the Act have been declared as repugnant to the injunctions of Islam by the Federal Shariat Court in the case of Imran Anwar Khan and others v.
Government of Punjab through Secretary, Ministry of Law and others (PLD 2022 Federal Shariat Court 25). In the said judgment, date of its taking effect has been specified as 01.05.2022. So, sections 10(5) and 10(6) of the Act indeed were not in force at the time of passing of order in the instant case qua dissolution of marriage on the basis of khula on 25.05.2022. The courts below by way of impugned judgments and decrees concurrently held the respondent entitled to the recovery of entire amount of deferred dower, which findings are under challenge by the petitioner on the ground that as the respondent herself sought khula, she could not be held entitled to the recovery of deferred dower.
9. In view of the above backdrop, the impact of khula on wife's entitlement to dower is required to be determined. Islamic law recognizes khula as a method for the dissolution of marriage, analogous to talaq, but they differ significantly in their initiation, procedures, and consequences.
Talaq is primarily the right of the husband to unilaterally dissolve the marriage. In case of talaq, the husband is precluded from claiming the dower, gifts, or other benefits which he had already given to the wife. The origin of this rule is the command ordained in verse No.229 of Surah Al-Baqra, Urdu translation of which reads as under: - Surah Al-Nisa, in verse 20 and 21 also explicitly restricts a husband from claiming back the dower or any other benefits he has given to a wife he wishes to divorce. Urdu translation of the said verses is as under: - The concept of khula is also based on verses No.228 and 229 of Surah Al-Baqarah. Practical application of khula is found in the instances in the lifetime of the Holy Prophet and thereafter. It is in this context that khula is initiated by the wife with the consent of the husband, or where the husband does not consent, by a judicial decree that is obtained on the wife's application. In khula, the wife may be required to give some consideration to the husband for her release from the marital bond. This consideration to be paid by the wife in a khula is a matter of agreement between the parties or determination by the Court, based on the specific circumstances of the case. When it comes to the rules for such determination by the court, in the Imran Anwar Khan's case (supra), it has been held by the Federal Shariat Court that where the wife obtains khula merely on the basis of disliking against the husband the dower received by the wife is returnable. It was also held in the referred case that where wife seeks khula due to fault on the part of the husband by providing reasonable justification, it is not valid to require from her return of the dower already received by her. In such eventuality, it is on the court to determine, keeping in view facts and circumstances of the case, that how much return of the already received benefits by the wife would be appropriate. This view was reiterated by the Federal Shariat Court in the case of Haji Saif- ur-Rahman Shaheen v. Islamic Republic of Pakistan through Attorney General of Pakistan, Islamabad and 4 others (PLD 2024 Federal Shariat Court 9) in the following words: - "- - - if a wife claims that she is forced to seek a decree of khula because of her husband's ill- treatment or mistreatment, etc., the Court may reduce the amount of compensation if it finds the husband at fault after recording of evidence so much so that in severe cases, the Court may grant divorce in case of khula to a wife without paying back any amount of Mahar at all."
Therefore, the return or surrender of dower by the wife is not an automatic consequence in each and every case of khula.
10. Nikahnama is a valid and binding contract between the parties.
Deferred dower is a contractual obligation undertaken by the husband. Unless there are valid legal grounds to deviate from the terms of this contract, husband is bound to fulfill his obligation. The mere fact that the wife sought khula does not automatically nullify this contractual obligation. In order to determine entitlement of a wife seeking khula to the claim qua deferred dower, key consideration is the reason for her seeking khula. Where a wife seeks khula on the ground of disliking against the husband, without any fault on the part of the husband, she loses her right to deferred dower in the same way as in the case of prompt dower. Conversely, if the husband's conduct compels the wife to seek dissolution, she retains her entitlement to the deferred dower. In the instant case, the respondent obtained the decree for dissolution of marriage on the basis of khula. Nonetheless, the crucial factor to determine is what prompted the respondent to seek dissolution of marriage. In the plaint as well as her examination in chief as PW-1, the respondent has leveled allegations of bad conduct and disrespectful behaviour of the petitioner towards her, which prompted her to seek dissolution of marriage. Relevant excerpt of the plaint is reproduced hereunder: - Same allegation was reiterated by the respondent in her affidavit tendered as examination in chief.
To that extent her testimony has not been discredited in cross examination by the petitioner rather the same has been confirmed by the respondent PW-1 by stating in cross examination as under: - This unchallenged rather reaffirmed allegation of bad conduct and disrespectful behavior, that amounts to cruelty, provides a strong justification for the respondent/wife to be entitled to the full amount of her deferred dower in the same way as she would have been in case of divorce pronounced by the petitioner. Though in cross examination the respondent PW-1 stated that she has obtained khula on her own initiative, however, this deposition, when seen in conjunction with the above referred assertions of the PW-1, does not necessarily mean the petitioner was not at fault for respondent's seeking khula.
11. As per para 289-A(a) of the Principles of Muhammadan Law by D.F. Mulla, dower becomes confirmed by consummation of marriage. Para 336(2) of the Principles of Muhammadan Law ibid provides that if the marriage was consummated, the wife becomes entitled to immediate payment of whole of the unpaid dower both prompt and deferred. These rules have been delineated in compliance of the command in verses No.20 and 21 of Surah Al-Nisa referred above. Marriage between the petitioner and the respondent subsisted for approximately nine years. During this long period, the respondent/wife fulfilled her marital obligations. The deferred dower is also seen as a form of security and compensation for the wife for her commitment during the marriage. After such a long period of marriage, it would be inequitable to deny full amount of the deferred dower to wife, especially when the dissolution was sought due to cruelty and bad behavior and conduct on the part of the petitioner.
12. The case of Muhammad Arif v. Saima Noreen and another (2015 SCMR 804), relied upon by learned counsel for the petitioner is distinguishable on facts as in that case element of cruelty by husband had not been proved.
13. For the foregoing reasons, impugned judgments and decrees are unexceptionable. Therefore, petition in hand is dismissed being devoid of any merits.