2021 LHC 2341
How various columns of the nikahnama deal with the dower and its kinds, keeping in view the scope of Section 10 of the Ordinance, and in the light of the examination thereof, whether house referred against column No. 16 of the nikahnama constituted part of prompt or deferred dower?
Entries under columns No. 13 to 16 of the nikahnama envisage reflection and manifestation of the parties as to amount/Raqm and other articles and/or property given or to be given by husband to wife as the dower overall.
In the context of Muslim marriage, dower is an obligation under Holy Quran and Hadith. It is the amount of some monetary value to be paid by the husband to the wife at the time of marriage, part of which can be delayed or deferred according to what has been agreed between them. It may be specified (Mahr Musamma) or unspecified (Mahr al-Mithl) . When the dower is unspecified, it would still be an obligation and the law will award it on the demand of the wife. In such case, the amount would be determined keeping in view factors such as dower of the females of her class or of her father’s family, the financial position of the groom, the social status of the bride, the prevalent custom of the time and place, and the agreement that the bride and the groom can reach over the amount. 5 Similarly, the dower can be Prompt (Mu’ajjal) or Deferred (Ghair Muajjal or Muwajjal). Prompt dower is to be paid either at the time of marriage or on demand whereas Deferred dower is to be paid at such date or time as may be mutually agreed between the parties and in the absence of the same, it is to be paid at the dissolution of marriage. It is pertinent to point out that under Shariah there is no specification as to the nature, scope and extent of dower to be given. The Prophet, P.B.U.H said to a man, "Marry, even with (a Mahr equal to) an iron ring.” 6Similarly, there is no upper limit for the fixation of dower in Islam. The inherent idea behind dower is that it is an obligation imposed upon the husband.
Under the Ordinance, marriage is regarded as a civil contract and Section 5 thereof makes it necessary that the marriage shall be registered and the parties can settle their terms and conditions of marriage including dower, through said contract, for which Form II, used as nikahnama, is prescribed in terms of Rule 10 of the West Pakistan Rules made under the Ordinance. The relevant entries in this regard can be incorporated by the parties in columns No. 13 to 16, which relate to dower. Any entry, by way of an amount or an undertaking related to transfer of any property or other valuable such as ornaments etc., is the dower or part thereof.
Here it is relevant for the present purposes to traverse through the wording of columns No. 13 to 16 of the nikahnama. In column No. 13, the word “Raqm (مقر)” (amount) has been used; column No.14 also uses the word “Raqm (مقر)” (amount) whereas columns No. 15 and 16 use the word “Mahr” (dower) that also reveals the intention of the legislature with regard to amount of dower, which can be incorporated and settled by the parties, under columns No.13 and 14 and other valuables as dower under columns No. 15 and 16. Entries in columns No.13 to 16 together become ‘dower overall’. Thus, entry in column No. 13 of the nikahnama is to contain the amount of dower, entry 14 envisages the break-up of such amount of dower spelled out by the parties by virtue of entry under column No. 13 into prompt and deferred whereas entry in column No. 15 may contain anything given or paid out of the amount envisaged under entry 13 or in addition thereto forming as part of the dower overall. In the same strain, entry under column No.16 is to also form part of the dower overall in addition to the amount/cash which may be stipulated by way of entry under column No.13 and also in addition to anything else given by way of entry under column No. 15. Therefore, entries under columns No. 13 to 16 of the nikahnama envisage reflection and manifestation of the parties as to amount/Raqm (مقر) and other articles and/or property given or to be given by husband to wife as the dower overall. Therefore, anything other than an amount, forming part of dower overall and incorporated under columns No. 15 and/or 16 has also to contain the time and mode of payment and giving of the same by husband to wife. Failure to spell out the mode and time of dower contained in entry 15 and/or 16 would entail the attraction and applicability of Section 10 of the Ordinance.
It is also important to examine as to under or against which column of the nikahnama, such amount or property is mentioned. It is entry in column No. 14 of the nikahnama, if incorporated, will indicate the true intention of the parties in relation to the extent of amount (only) fixed as prompt and/or deferred dower. For other valuables such as gold or property, mode/time of payment is to be specified in corresponding entries/columns. If no detail about the mode of payment of the dower is specified in the nikahnama,Perusal of Section 10 of the Ordinance, brings forth the legislative fiat that where no details about the mode of payment of dower has been spelled out by the parties to confer certainty to it under the marital contract, the omission or failure of the parties to fill in and/or reflect their intention in a perspicuous manner, the legislature has stepped in to fill in such omission of the parties through Section 10 of the Ordinance which clearly states that, in such like situations, the entire amount of the dower shall be presumed to be payable on demand. The statutory presumption embodied under Section 10 of the Ordinance is rebuttable; however, the same has to be rebutted through positive evidence.
Writ Petition-Family-Dowry Articles
12103-14
QAYYUM ANJUM VS ADJ ETC
Mr. Justice Anwaar Hussain
14-06-2021
2021 LHC 2341
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