Fatima Bibi Vs Additional District Judge etc.

HCJD/C-121

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

W. P. No. 29132 / 2025

Fatima Bibi

VERSUS

Additional District Judge, Sheikhupura & 02 others

JUDGMENT

Date of Hearing: 10.03.2026 Petitioner By: Rai Hamid Mushtaq, Advocate Respondent No. 3 By: Ch. Zahid Saeed, Advocate

ABID HUSSAIN CHATTHA, J: This constitutional Petition is directed against the impugned Judgments and Decrees dated 08.02.2025 & 17.03.2025 passed by Judge Family Court and Additional District Judge, Sheikhupura, respectively.

2.Briefly, the Petitioner instituted a suit against Respondent No. 3 (the “Respondent”) for recovery of maintenance allowance, dowry articles valuing Rs. 1,894,700/- and deferred dower in the nature of 05-tolas gold ornaments which was contested by the Respondent by filing written statement. Out of the divergent pleadings of the parties, Family Court framed issues, recorded respective evidence of the parties and after appraisal of the same, proceeded to partially decree the suit. The Petitioner was held entitled to maintenance @ Rs. 5,000/- per month from the date of institution of suit till her legal entitlement subject to performance of matrimonial obligations. Deferred dower was granted as prayed for by placing reliance on case titled, “Khalid Pervaiz v. Samina and others” (2024 SCMR 142). However, the claim of dowry articles was dismissed as not proved.

3.Separate appeals were preferred by the parties against the decision of Family Court. Upon reappraisal of evidence, the Appellate Court maintained

the finding qua maintenance allowance. Finding with respect to dowry articles was modified and some of the dowry articles or its alternate price of Rs. 250,000/- was decreed. The claim of deferred dower was dismissed by placing reliance on case titled, “Saadia Usman and another v. Muhammad Usman Iqbal Jadoon and another” (2009 SCMR 1458).

4.Learned counsel for the Petitioner contends that Family Court after proper appreciation of the evidence on record had rightly decreed the suit to the extent of deferred dower being payable on demand in the light of Khalid Pervaiz case (supra). However, the Appellate Court set aside the said finding by misinterpreting the law. Adds that the Appellate Court has awarded a meager amount of maintenance and much less of claimed dowry articles or alternative sum thereof although the Petitioner had successfully proved her claims as per her pleadings.

5.On the other hand, learned counsel for the Respondent contended that Appellate Court did not consider the evidence on record in its true perspective while decreeing suit of the Petitioner to the extent of dowry articles. However, he supported the finding with respect to deferred dower in the light of Saadia Usman case (supra) to the effect that the same is only payable upon dissolution of marriage, either by death or divorce.

6.The Judgments of the Courts below have been minutely perused in the light of evidence on record. The quantum of maintenance was determined after analyzing the financial position and status of the Respondent and requirements of the Petitioner. The concurrent finding of fact in the absence of any illegality does not require interference. The Family Court dismissed suit of the Petitioner to the extent of dowry articles in view of absence of documentary evidence and contradictions or discrepancies in the depositions of her witnesses. However, the Appellate Court partially decreed the claim by invoking the deep-rooted customary practice regarding bestowing of dowry articles by parents to their daughter at the time of marriage according to their financial status. The claim was thus, proportionally decreed and the substance of the claim was rejected as unproved. The finding of Appellate Court regarding entitlement of the Petitioner to her claimed dowry articles is

based on cogent and sound reasons and does not suffer from perversity of reasoning. Therefore, it is liable to be preferred over that of the Family Court.

7.The variant finding with respect to deferred dower warrants serious consideration. There are two views in respect of payment of “deferred dower” (Mehr-e-Mu”wajjal) amongst Muslim Jurists in the absence of stipulation regarding time of payment. One view holds that deferred dower becomes due only upon the dissolution of marriage, whether by death or divorce and does not automatically become payable simply because the wife demands it. The other view maintains that deferred dower must be paid whenever the wife asks for it, even while the marriage subsists. In addressing the inconsistency, a closer reading of judgments of the Supreme Court, alongside the statutory framework, shows that these positions are not at variance, rather, they apply to different factual and contractual circumstances and when interpreted harmoniously, they yield a coherent rule.

8.The distinction between “prompt dower” (Mehr-e-Mu”ajjal) and “deferred dower” (Mehr-e-Mu”wajjal) is well settled and consistent in Islamic jurisprudence. The Saadia Usman case explored this distinction in terms of mode or time of payment of deferred dower in the light of teachings of various schools of thought and concluded as under:

“16. Thus, we are of the opinion that prompt dower is payable on demand during the subsistence of marriage tie whereas the deferred dower is payable on the time stipulated between the parties, but where no time is stipulated, it is payable on dissolution of marriage either by death or divorce. But, the deferred dower does not become “prompt” merely because the wife has demanded it.”

The conclusion was advanced as the correct and dominant view of Muslim Jurists while acknowledging the contra view amongst them which advocated payment of deferred dower on demand in the absence of stipulation with reference to specific time of payment. However, importantly and conspicuously, the Supreme Court of Pakistan due to lack of proper assistance did not examine the import of statutory rule contained in Section 10 of the Muslim Family Laws Ordinance, 1961 (the “Ordinance”) which proclaims

that where no details about the mode of payment of dower are specified in the Nikahnama or the marriage contract, the entire amount shall be deemed payable on demand.

9.It is pertinent to note that no distinction was made in terms of “prompt” or “deferred” dower in Section 10 of the Ordinance which fact explicitly and manifestly dictates that the rule applies to both types of dower. It is pertinent to mention that Legislature was not oblivious to distinction between “prompt” and “deferred” dower since in Section 6(5) of the Ordinance, it specifically provided that any man who contracts another marriage without the permission of the Arbitration Council shall pay immediately the entire amount of dower, whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue. Therefore, provision encapsulated in Section 6(5) of the Ordinance unequivocally ordains that even where deferred dower is clearly stipulated to be payable upon dissolution of marriage by death or divorce, it is not an absolute rule and upon marriage without permission of the Arbitration Council, “deferred dower” would become immediately payable. Hence, the omission to categorize dower into “prompt” or “deferred” in Section 10 of the Ordinance is a conscious omission and as such, the statutory presumption would indiscriminately apply to “prompt” or “deferred” dower in the absence of specific stipulation qua mode and time of payment. This statutory principle was invoked by the Supreme Court in Khalid Pervaiz case (supra), wherein, it was held that dower has to be paid whenever demanded by the wife and that the husband is under an obligation to pay it during the subsistence of marriage. This was reinforced on the basis of an earlier precedent in case titled, Syed Muhammad v. Mst. Zeenat (PLD 2001 SC 128). Later, the Supreme Court of Pakistan, in case titled, Mst. Fakhra Jabeen and others v. Wasif Ali and others (PLD 2026 SC 20), affirmed that dower is a mandatory condition for a valid and effective marriage contract and that its validity is presumed even where the parties have not expressly stipulated it, in which event “Mehr-ul-Misel” (reasonable dower) is implied. The Court further held that dower is the

exclusive right of a bride and is relatable to a thing which has marketable value. It may either be in the form of cash or property or both and may also be prompt or deferred. The Court on the mode of payment observed as under:

“If the parties have not specified the nature of the payment of dower, then it is presumed to be prompt as provided under Section 10 of the Ordinance, 1961”.

10.Before proceeding further, it would be helpful by way of example to examine a few typical stipulations in a Nikahnama to elaborate the proposition in hand. “Rs. 5,000/-” or “Rs. 5,000/- payable on demand” or “Rs. 5,000/- paid on spot” or “Rs. 5,000/- deferred dower” or “Rs. 5,000/- deferred dower payable after ten years of marriage” or “Rs. 5,000/- deferred dower payable upon death of husband” or “Rs. 5,000/- deferred dower payable at the time of divorce”. The above example shows that at times, prompt or deferred dower without any stipulation regarding time of payment is mentioned, while at times, definite mode and time of payment is prescribed alongwith expression of prompt or deferred dower. There is no confusion that in the absence of statutory command, the dominant view of Muslim Jurists is that simple fixation of “prompt dower” connotes “immediate payment” or “payment on demand”, whereas, simple fixation of “deferred dower” postulates payment on “death” or “divorce”. However, Section 10 of the Ordinance creates a statutory presumption to supply for inadvertent omissions on the part of parties to Nikah qua time of payment for dower as a whole to be payable “on demand” when specific mode or time of payment is not specified. Therefore, if dower is only described as “deferred dower” in the marriage contract, as in the Nikahnama in the instant case without specifying that it would be payable at the time of death or divorce or a specified time, the statutory presumption will operate in favour of wife to demand its payment who as recipient and beneficiary of dower is entitled to benefit from statutory intervention providing an objective tool to settle disputes qua mode and time of payment of dower.

11.The above interpretation can also be looked at from another angle. Generally, stipulations with reference to “prompt” or “deferred” dower are used

with entries of cash or gold. However, stipulations regarding immovable property as undertakings of Nikah or dower are often independent which merely describe the area, location and nature of the property. Such stipulations have always been granted and enforced as and when demanded by the wife.

12.It follows from the above that in view of statutory principle enshrined in Section 10 of the Ordinance, where dower is only described as “deferred” in the Nikahnama without an express stipulation that it would be payable on death or divorce or any specific time or happening of any particular future event, the same shall be payable on demand. In other words, where the dower is expressly designated as “deferred” and the parties have stipulated a specific time or triggering event, it falls due at that point of time or upon the occurrence of that event while where the dower is designated as “deferred” but no time limit or event is specified, it becomes payable upon demand and wife shall not have to wait for dissolution of the marriage by death or divorce.

13.In the present case, nothing has been pointed out from the Nikahnama showing that payment of the deferred dower was specifically restricted or linked to the occurrence of divorce or death. Hence, the Petitioner cannot be deprived of her lawful right to claim the same merely on the ground that the marriage between the parties still subsists. Thus, it is evident that Family Court had correctly appreciated the evidence on record and correctly applied the law while decreeing suit of the Petitioner for recovery of dower, whereas, the Appellate Court misapplied the law in reversing the said finding of the Family Court.

14.In view of the above, this Petition is partially allowed in the manner that finding of dower to Issue No. 3 of the Appellate Court is set aside and that of the Family Court is maintained. The impugned Judgment & Decree passed by the Appellate Court is set aside and stands modified to this extent.

(Abid Hussain Chattha) Judge Approved for Reporting.

Judge *WaqaR*