2024 LHC 676
An agreement for dower was none the less binding on the petitioner as the same was made at the time of solemnization of marriage. Even as per para 336(2) of the Principles of Muhammadan Law by D.F. Mulla, if the marriage was consummated, the wife becomes entitled to immediate payment of whole of the unpaid dower both prompt and deferred. Dower is a sum of money or other property which wife is entitled to receive from husband in consideration of marriage. The word ‘consideration’, however, cannot be deemed at par with the sense in which the word is used under the provisions of the Contract Act, 1872.
A marriage is valid although no mention be made of the dower by the contracting parties as the term Nikah in its literal sense signifies a contract of union which is fully accomplished by the bond of a man and woman. Moreover, payment of dower is enjoined merely as a token of respect, therefore, the mention of it is not absolutely essential to the validity of marriage.
Any amount/property agreed to be paid by the husband to wife on the happening of some future event, by all intents and purposes be counted as a deferred dower to be paid by the husband on the happening of such event.
where no specific or definite period is settled for the payment of deferred dower, wife would become entitled to dower at the event of dissolution of marriage or on the death of any of the spouses. If deferred dower is agreed to be paid on the happening of some specified event, the same would become payable on the occurrence of that specified event. In the instant case, there was a specific stipulation in the Nikah Nama that in case of contracting of second marriage or divorcing the respondent, petitioner would pay an additional dower to the tune of Rs.500,000/-. Undeniably, petitioner has divorced the respondent, therefore, respondent was entitled to the dower to the tune of Rs.500,000/-as stipulated in Nikah Nama. It would not be out of context to mention here that initially petitioner did not admit the insertion of additional dower in Nikah Nama, therefore, he cannot argue that divorce was given by him on the asking of respondent and her father. Since it has been resolved by the courts below that the entry qua additional dower was a genuine entry, the same would be construed strictly and as a whole, therefore, stance taken by petitioner in his written statement that he pronounced divorce on the asking of respondent and her father needs to be taken up and resolved in view of evidence adduced by petitioner at trial. Petitioner simply failed to substantiate his stance as taken in his written statement in reply to paragraph No.5 of the plaint qua pronouncing of divorce upon respondent on her insistence. Neither Muhammad Akhtar nor Muhammad Amjad who were claimed to be the witnesses of the happening whereby respondent and her father insisted the petitioner for giving divorce to respondent, have been produced to substantiate the said version. Muhammad Ashiq DW-2 even did not say anything about demand allegedly made by respondent or her father for pronouncing divorce upon the respondent. In this view of the matter, it can conveniently and legitimately be resolved that petitioner at his own divorced the respondent and the sentence qua divorcing respondent on her asking as mentioned in the written statement was an afterthought tale presumably added by a design to counter in anticipation the stipulation mentioned against column No.17 of the Nikah Nama.
W.P. No.7630 of 2018
Muhammad Ghause Versus Additional District Judge, Bahawalpur & 02 others
Date of hearing:06.02.2024
2024 LHC 676
