PLJ 2022 Lahore 137
Muslim Family Law Ordinance, 1961 (VIII of 1961)--
----S. 10--Deferred dower--Death of husband--Suit for recovery of dower was decreed--Dismissal of appeal--Father-in-law was wakeel in Nikahnama--Death of father-in-law during pendency of suit--Challenge to--(Father-in-law of Respondent No. 3) was party to Nikahnama and his name is clearly mentioned in Column No. 9 as “Wakeel of bridegroom”--There is no escape by father-in-law to wriggle out of his liability if being “Wakeel” of bridegroom, he had signed prescribed column of nikahnama at time of marriage--Suit filed by Respondent No. 3 for recovery of dower against her father-in-law, who had acted as a “Wakeel” of bridegroom and had signed it, is held to be competent--Counsel for petitioners has been unable to point out any illegality or irregularity in impugned Judgments, which are well founded and based on well reasoning--Petition was dismissed. [Pp. 142 & 144] C, D, E & F
PLD 2016 Pesh. 109, PLD 2010 Lah. 199, 1994 SCMR 686 and
PLD 1978 Lah. 711 ref.
Words and Phrases--
----“WAKIL” A person invested with authority to act for another.
[P. 140] A
Wakil--Law of Lexicon with Legal Maxims and Words and
Phrases reprint Edition 1996 at page 1329.
Words and Phrases--
----“VAKIL” A plenipotentiary; a representative with absolute authority. [P. 140] B
Wakil--Urdu English LAW DICTIONARY Edition 2000 published
Irfan law Book house page 515.
Mr. Muhammad Naeem Bhatti, Advocate for Petitioners.
Rao Muhammad Ashraf Idrees and Dr. Malik M. Hafeez, Advocates for Respondents.
Mr. Muhammad Javed Khan and Miss Mehwish Mahmood, Research Officers for Assistance Rendered.
Date of hearing: 21.9.2021.
PLJ 2022 Lahore 137
[Bahawalpur Bench, Bahawalpur]
Present: Anwaarul Haq Pannun, J.
MUHAMMAD FAYYAZ, etc.--Petitioners
versus
ADDITIONAL DISTRICT JUDGE, etc.--Respondents
W.P. No. 5899 of 2020, heard on 21.9.2021.
Judgment
Through the instant writ petition, the petitioners have called in question the vires of the judgment and decree dated 19.11,2019, passed by learned Judge Family Court, Hasilpur, decreeing the suit of Respondent No. 3 for recovery of dower and judgment and decree dated 27.08.2020, passed by learned Addl. District Judge, Hasilpur, whereby their appeal was dismissed.
2. The facts of the case in brief are that Respondent No. 3 claimed her deferred dower i.e. Rs. 1,00,500/- and possession of land measuring 04 Kanals or its alternate price Rs. 10,00,000/- by filing a suit against her father-in-law, the late Rahim Bux (died on 28.9.2017 during the pendency of the suit) with the averments that she was married to one Muhammad Shehzad Khan on 13.05.2005 in consideration with aforesaid dower, duly incrporated in the Nikahnama, while the late Rahim Bux acted as a Wakeel of her late husband, and thus is liable to pay the outstanding dower. Since, after the death of her husband, she is entitled to recover the dower from her father-in-law, who being signatory of the nikahnama and Wakeel of his son, is bound to pay the same. After the death of Rahim Bux, the petitioners substituted in the matter as his legal heirs. They have resisted the suit on legal as well as factual planks while denying the averments the plaint. After a thorough learned Judge Family Court decreed the suit of Respondent No. 3 vide its judgment and decree dated 19.11.2019, in the following terms:
“The plaintiff towards dower is entitled to receive Rs. 500/- and 04-K from the property of original defendant (Rahim Bux deceased) in Mouza Awal Khan, Tehsil Khairpur Tamewali or in alternative its market value prevailing on the date of death of plaintiffs husband Muhammad Shahzad Khan (05.12.2015), mode and value to be determined by the learned executing Court during execution, from the defendants (legal heirs of original defendant) as per their proportionate share in the inheritance of original defendant. No order as to costs.”
Being dissatisfied with the aforesaid judgment and decree, the petitioners preferred an appeal, which was dismissed by learned Addl. District Judge, Hasilpur, vide its judgment and decree dated 27.08.2020. Hence, this writ petition.
3. Arguments heard and record perused.
4. The main thrust of argument of learned counsel for petitioners is that as husband of Respondent No. 3 died on 05.12.2012, she filed the suit on 02.05.2017 i.e. after lapse of more than 04 years and 05 months which ought to have been brought within a period of three years after the death of her husband, therefore, suit of Respondent No. 3 was badly time barred. They produced photocopy of Death Certificate of the deceased Muhammad Shehzad Khan (Mark-A) to substantiate their claim. On the other hand, learned counsel for Respondent No. 3 contended that since her husband died about 1½ years prior to the institution of the suit, hence the suit is well within time and to fortify her claim, she also produced Death Certificate (Exh.P-2). Exh.P-2 is certified copy while Mark-A is photocopy of Death Certificate of the deceased husband. Exh.P-2 being a public document enjoys presumption of truth qua its entries. Muhammad Imran, Secretary Union council Inayati Teshil Khairpur Tamewali (DW-1) brought the original death record register and according to him, Exh.D-1 is correct copy as per record, the particulars of Exh:P-2 and Exh.D-1 are the same and entry is available at Serial No. 18 of the register. As per Death Certificate (Exh.P- 2), Muhammad Shehzad Khan, husband of Respondent No. 3 and brother of the petitioners died on 05.12.2015. Neither the petitioners produced certified copy of Death Certificate Mark-A nor they got summoned the original record of said document, as such, Said document has no evidentiary value and is inadmissible, thus discarded. Hence, in view of the above, the suit of Respondent No. 3 is well within time.
5. The next argument of learned counsel for the petitioners is that the suit for recovery of dower against father of the husband (father-in-law) being incompetent, is not maintainable, However, suffice it is to say that the suit for recovery of dower can validly be filed against father-in-law. Under Islamic law, nikah is a civil contract which binds the parties. Such contract can be made/solemnized through agent/wakeel. According to legal and Arabic dictionary the word wakil/vakil mean and define as under:
WAKIL: A person invested with authority to act for another.
اَلمُنجِد: (عربی اُردو) کے مطابق لفظ الوکیل کی تعریف یوں بیان کی گئ ہے۔
الوَکیل: وہ شخص جس پر بھروسہ کیا جائے وہ جس کو عاجز آدمی اپنا کام سپرد کر دے۔
(Page 1104)
As per Shariah, Nikah of female/parties can be solemnized through their Wakeel and all the Islamic Schools of thought recognized Nikah performed through Wakeel as valid. Maulana Mujeebullah Nadvi at page 644, Volume II of his Book—“Islami Fiqha” defined the meaning of' Wakalat’ in the following words: --
وکالت کے لغوی معنی نگرانی۔ حفاظت۔ چارہ سازی۔ وکار سازی کے ہیں۔ ۔۔۔۔۔۔ جو کام آدمی خود کر لیتا ہے یا کرسکتا ہے اس کو دوسروں سے بھی کرا سکتا ہے۔ شریعت میں اس کی اجازت ہے۔ اور اسی کو وکالت کہتے ہیں۔
At page 646 of the said Book the author observed as under:
تفویض احد اُمرہ لاخرواقامتۃ مقامہ۔
ترجمہ اردو: کسی شخص کا کسی کام کو کسی دوسرے کے سپرد کر دینا اور اس کو اپنا قائم مقام بنا دینا۔
The term "Wakalat" has further been explained at page 648 of the said Book in the following words:
"دوسرے معاملات کی طرح وکالت میں بھی موکل و وکیل کے درمیان ایک معاہدہ ہوتا ہے۔ اس لیے ضروری ہے کہ زبانی یا تحریری طور پر دونوں ایجاب و قبول کریں۔ مثلاً آپ نے کسی سے کہا یا کسی کو لکھا کہ میرا فلاں کام آپ کر دیجئے اور اس نے کہہ دیا یا لکھ دیا کہ ہاں میں کروں گا تو یہ ایجاب وقبول ہو گیا۔"
In ‘Urdu Daaira Maarif Islamia' at page 21, Volume 23, published by Danish Gab Punjab the word ‘Wakalat’ has been defined as under:
"اردو یا فارسی میں وکالت مختیارنامہ۔ اختیار دے دینا یہ ایک قسم کا عقد (معاہدہ) ہے۔ جس کی رُو سے معاہدے کا ایک فریق (موکل) دوسرے کو اپنا وکیل بنا دیتا ہے تاکہ وہ اس کی کوئی خدمت سر انجام دے۔"
6. The word wakeel is synonymous to English word agent. The agency may be created expressly i.e. in writing or through implications. Even it can be inferred from the circumstances of the case, the thing spoken or written or on the basis of ordinarily course of dealings. By creating agency, the principal confers certain authorities to agent and agent owes certain liabilities in exchange towards Principal. Agency remains intact unless rescinded or some act. of agent renders him incapable of continuing his authority. Normally agent is not held responsible for enforcement of contract entered by him on behalf of the Principal. However, Islamic law clearly a departure to the general rule in case pertaining to the marriage has made, particularly, where father had acted as a wakeel of his son/bridegroom. In absence of tangibly expressed repudiation of such authority the agent/wakeel cannot get rid off the liabilities imposed upon him being wakeel/father of bridegroom. The term ‘Wakeel' has not been defined in the Muslim Family Laws Ordinance, 1961. However, Wakeel is an attorney legally competent to conduct marriage on behalf of bride. The Wakeel generally is representative of the party appointing/nominating him. Registration of Nikah is mandatory under the Muslim family laws.
(Exh.P-1). The late Rahim Bux (father-in-law of Respondent No. 3) was party to the Nikahnama and his name is clearly mentioned in Column No. 9 as “Wakeel of the bridegroom”. The Nikahnama also bears his thumb impression. There is no denial that it is primarily duty and obligation of the husband to pay dower to his wife, yet there is no bar or prohibition on another person to bind himself as a surety by way of putting his signature on the Nikah Nama, ensuring its payment and such surety cannot wriggle out from such legal obligation when a suit for the recovery of dower is brought against him by the wife, hence, there is no escape by father-in-law to wriggle out of his liability if being “Wakeel” of bridegroom, he had signed the prescribed column of nikahnama at the time of marriage. Reliance is placed upon case reported as “Gul Akbar and another vs. Jameela Afridi and 4 others” (PLD 2016 Peshawar 109). Reliance may also be placed upon case reported as “Muhammad Anwar Khan vs. Sabia Khanam and another” (PLD 2010 Lahore 119) wherein, it has been held that:
“Husband as a rule, could not give as dower property that did not belong to him but belonged, to someone else including his father--Exception to this rule could be found if it was shown that the father of the husband agreed to do so----in spire of having knowledge that his house had been given as dower in nikahnama the father of the husband never took any step to take any legal action for exclusion of the house from nikaahnama. ----House mentioned in the nikahnama as dower even though, it did not belong to the husband was liable to be transferred to the plaintiff as the father of the husband had given his consent for the same.”
The august Supreme Court of Pakistan in case reported as “Mst. Faqraz Bibi vs. Elahi Bakhsh and 2 others" (1994 SCMR 686) has pleased to observe that:
“Petitioner’s claim of ownership to house in question was based on entry in “Nikahnama” on strength of which she claimed that the house was given to her in lieu of dower at the time of marriage—Petitioner claimed that she had been exercising proprietary rights over the house in question, without let or hindrance by respondents and that both respondents (her husband and his father) had signed “Nikahnama” of petitioner in token of confirmation of stipulation contained in “Nikahnama”— Contention raised by petitioner required examination---Leave to appeal was granted in circumstances."
Family Court under Section 5 of the West Pakistan Family Court Act, 1964 had exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule to the said Act and there was no barring provision that while claiming dower from the husband only bridegroom/ husband could be impleaded in the suit for recovery of dower and none else- -If another person had stood surety or had guaranteed the payment of dower, he/she could lawfully be impleaded in the suit--Surety and guarantor to the dower were as much party and liable to pay dower as the bridegroom himself. It has been held in the case reported as “Khan Asadullah Khan and others vs. Sheikh Islamud Din” (PLD 1978 Lahore 711) that:
10. “As regards the second question, Mulla in Principles of Mohammadan Law reproduces the definition of dower as “a sum of money or other property which the wife is entitled to receive, from the husband in consideration of the marriage” It has further been observed “if the dower is not paid, the wife, and after her death, her heirs, may sue for it” In Baillie’s Digest of Mohammadan Law on the subject of disputes with regard to dower the following observations occur:
“Disputes regarding the dower may take place between the married parties themselves in their lifetime, or between their heirs when both are dead, or after the death of one of them, between his or her heirs and the survivors.”
11. In the Mohammadan Law of Inheritance by Almaric Russay on the subject of posthumous claims of dower it has been observed:
“It has been seen already that the right to dower is not extinguished by the death of husband or wife or both and it is in fact distinctly laid down that a claim of dower may be maintained by the wife against the husband’s inheritors, by the wife’s inheritors against the husband,
or by the wife’s inheritors against the husband’s inheritors.”
12. It is clear, therefore, that the right to sue survives the death and the heirs can continue the proceedings and their claim in the proceedings continues to be for the dower.
9. I also duly appreciate the assistance rendered by the Research Officers of this Bench to deal with the issue discussed and dealt with hereinabove.
(Y.A.) Petition dismissed
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