-Contracted marriage---Enhancement of dower amount--Under Islamic Law, parties of a marriage can fix/enhance amount of dower at any time, after its solemnization even during subsistence of their marriage-

 PLJ 2021 Lahore 624

Criminal Procedure Code, 1898 (V of 1898)--

----S. 491--Recovery of detenue--Custody of private respondent--Contracted marriage--Question of--Whether petitioner contracted marriage with detenue as a result of crush--Alleged detenue being sui-juris and major while exercising her free will has contracted marriage with petitioner--Unfortunately, this marriage has been contracted by spouses against wishes and without blessings of detenue's parents and other siblings.         [P. 625] A

Muhammadan Law--

----S. 287--Enhancement of dower amount--Under Islamic Law, parties of a marriage can fix/enhance amount of dower at any time, after its solemnization even during subsistence of their marriage--Petitioner has submitted an affidavit/undertaking Mark “AA”, fixing amount of Rs. 10,00,000/-(ten lac) as deferred dower of alleged detenue/his wife, with his volition, therefore, same shall be considered as integral part of Nikahnama. [Pp. 626 & 627] B & C

Ch. Noman Ahmad and Rana Rizwan, Advocate with Petitioner.

Mr. Muhammad Ayyub Buzdar, Assistant Advocate General for Respondents.

Sahibzada Munir Raza Gilani, Advocate for Private Respondents.

Date of hearing: 14.10.2020.

 PLJ 2021 Lahore 624
[Multan Bench, Multan]
Present: Anwaarul Haq Pannun, J.
JUNAID AHMAD KHAN SHEHZAD--Petitioner
versus
DISTRICT POLICE OFFICER, etc.--Respondents
W.P. No. 12824-H of 2020, decided on 14.10.2020.

Order

Through this petition under Section 491, Cr.P.C., the petitioner seeks recovery of his wife Mst. Safia Manzoor Bibi, hereinafter to be called as the alleged detenue, from the illegal and improper custody of private respondents, so that she may be dealt with in accordance with law. The petitioner has made his averments in the petition which are to the effect that the detenue with her own free will and consent but against the wishes of her parents, contracted marriage with him on 22.12.2018. The couple has been enjoying the bliss of their marital union happily. On 15.9.2020, Respondent No. 3, father of the alleged detenue assured the spouses while stating that he has purged his ill-will against them, had taken the detenue alongwith him from the house of the petitioner to his own house on the pretext that her seriously ailing mother wanted to see her. The petitioner, after a lapse of 06 days when approached the respondents for return of his wife/ detenue, they instead of allowing the detenue to join him, extended threats of dire consequences. The detenue however succeeded in sending a message to the petitioner that her movements have been restricted and she has been confined in a room, besides depriving her from proper food, causing health hazard to her, which may ultimately prove detrimental to her life. Hence this petition.

2. Subject to deposit of Rs. 20,000/- with D.R (Judicial) of this Court, as security, this Court vide its order dated 30.09.2020 directed Respondent No. 2/SHO that the alleged detenue after her recovery be produced before the Court. In compliance with aforesaid order, Abdul Kareem, SI accompanied by a lady constable has produced the alleged detenue before the Court, after her recovery from the house of her parents/respondents, who categorically states that she is sui-juris and major and has contracted marriage with the petitioner, without the blessings of her parents. She after affirming the above mentioned averments of the petition, has shown her desire to accompany with her husband i.e. the petitioner.

3. For what has been described above, it emerges that the alleged detenue being sui-juris and major while exercising her free will has contracted marriage with the petitioner. Unfortunately, this marriage has been contracted by the spouses against the wishes and without the blessings of the detenue's parents and other siblings. In view of phenomenal increase in contracting choice marriages by the youth, considering this change in society a reality, the Courts are justified in exercising their jurisdiction in a befitting manner to harmonize the social values based on the primitive norms with the prevailing concept of society, giving access and opportunity both to the individuals to enjoy their fundamental rights guaranteed under the Constitution. Therefore, with a view to examine his bona-fides as to whether the petitioner has contracted marriage with aforesaid detenue merely as a result of his crush, momentous and impulsive passion, arising out of her bodily and behavioral charm or he has entered into this sacred bond sincerely and with religious zeal, Junaid Ahmad Khan, the petitioner, being present before the Court, when quizzed, he in order to fortify his bona-fide as well as to forge a sense of security, in monetary terms, in the mind of the detenue, showed his inclination to enhance/re-affix the amount of deferred dower by submitting his sworn affidavit. Under the Islamic Law, the parties of a marriage can fix/enhance the amount of dower at any time, after its solemnization even during the subsistence of their marriage. The August Supreme Court of Pakistan in case reported as “Ghania Hassan vs. Shahid Hussain Shahid and another” (2016 SCMR 2170) has expressly dealt with the issue in hand and observed as under:

“In the Principles of Mohammadan Law by DF Mulla (Pakistan Edition), it has been stated as follows:

“287. Dower may be fixed after marriage.—The amount of dower may be fixed either before or at the time of marriage or after marriage; and can be increased after marriage.”

(Emphasis supplied)

In the Mahommedan Law Vol II (Containing the Law Relating to Succession and Status compiled from Authorities in the Original Arabic) by Syed Ameer Ali, it has stated as follows:

“Dower may be increased after marriage:-

The Musulman Law accepted in the matter the more liberal principle of the pre Islamic Arab customs. Under the Islamic system there is no community of goods between husband and wife. She is absolute owner of her own property and of whatever the husband settles on her as dower. The terms of the settlement are agreed to before marriage, but when these have been omitted, they may be settled subsequently. The terms of the contract may be varied at any time during the continuance of the marriage by mutual consent. The wife has the power either to relinquish the whole dower-debt, or make an abatement in her husband's favour: whilst the husband, similarly, has the power of making additions to her settlement or dower.

The amount of the dower, as already pointed out, is either settled by the contract of marriage or by custom, or in the case of tafwiz or tahkim, by a subsequent agreement between the parties, or by an order of the Judge, or arbitrators.”

(emphasis supplied)

In Hedaya (2nd Edition Vo. 1 page 45) Commentary on the Muslim Law, it is stated that:

“Case of an addition made to the dower after marriage.--If a man makes any addition to the dower in favour of his wife subsequent to the contract, such addition is binding upon him.”

          “The question of addition of dower came up before this Court in the judgment, reported as Mian Aziz A. Sheikh v. The Commissioner of Income Tax Investigation, Lahore (PLD 1989 SC 613), wherein after examining the classical text books on the subject and the previous judgments of the Sub-continent on the matter in issue, it was observed as follows:

          “19. It would have been seen that an acknowledgement in any form including declaration by the husband with regard to increase of dower is, as held by the Lahore High Court in Chan Pir's case. “quite sufficient” to prove the same under Muslim Law...”

          A similar view was taken by this Court in the judgment, reported as Ameer Ali Khan v. Kishwar Bashir and another (PLD 2004 SC 746).

          An overview of the above reveals that it is not a settled proposition of law that the dower can be fixed before marriage and at time of marriage or thereafter. Furthermore, the dower once settled can always be increased by the husband or by an agreement between the parties.”

4. In the light of above discussion, since the petitioner has submitted an affidavit/undertaking Mark “AA”, fixing the amount of Rs. 10,00,000/-(ten lac) as deferred dower of the alleged detenue/his wife, with his volition, therefore, the same shall be considered as integral part of Nikahnama.

5. In the light of what has been discussed above, this petition is allowed, consequently, the detenue Mst. Safia Manzoor Bibi is set at liberty. She may accompany with her husband. The security amount already deposited by the petitioner in compliance of order dated 30.09.2020 is ordered to be refunded to him. The office is directed to send the copies of this order and aforesaid affidavit (Mark-AA) to the Secretary, Union Council concerned, for its endorsement in the relevant column of the “Nikahnama”, available with him/record. The assistance rendered in the matter by Mr. Fakhar Bashir Sial, Civil Judge/Research Officer, Lahore High Court, Multan Bench is appreciated.

(R.A.)  Petition allowed