Mst. Azka Afreen vs Hafiz Umar Yasin etc.

Stereo.HCJDA 38.

JUDGMENT SHEET.

LAHORE HIGH COURT

RAWALPINDI BENCH, RAWALPINDI.

JUDICIAL DEPARTMENT

WRIT PETITION NO.1221 OF 2022

Mst. AZKA AFREEN vs HAFIZ UMAR YASEEN and another.

JUDGMENT.

Date of hearing: 09.06.2026.

Petitioner by: Mahr Muhammad Ismail, Advocate.

Respondent No.1 by: Mr. Karim Nawaz Abbasi, Advocate.

Mirza Viqas Rauf, J. The petitioner was married to respondent No.1 (hereinafter referred to as “respondent”) on 03rd August 2014 in accordance with Muslim Rites. However, prior to the consummation of marriage, spouses lost their confidence and trust upon each other. In this backdrop, the petitioner instituted a suit for dissolution of marriage, recovery of dower and maintenance allowance before the learned Senior Civil Judge (Family Division), Rawalpindi. Suit was resisted by the respondent, being defendant, who submitted his written statement, controverting the assertions contained in the plaint. After framing of necessary issues from the divergent pleadings of the parties, the trail court recorded evidence of both the sides. On completion of evidence, suit was partly decreed vide judgment dated 14th July, 2021. Feeling aggrieved, the petitioner as well as respondent assailed the judgment and decree of the Family Court before the learned Additional District Judge, Rawalpindi. The appeals were consolidated and ultimately decided through consolidated judgement dated 16th December, 2021, in terms whereof judgment and decree of the Family Court was modified. Feeling disgruntled, the petitioner is now before this Court in constitutional

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jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as “Constitution”).

2.Learned counsel for the petitioner contended that main grievance of the petitioner is now related to dower which was in the shape of gold and land including constructed house. He added that initially the claim of dower was partly decreed by the learned Judge Family Court, Rawalpindi, however, in appeal, the learned Additional District Judge has drawn a contra view and declined the relief of dower on the context that marriage was not consummated. Learned counsel submitted that the view adopted by the appellate court is in contravention of Sub-Section (5) of Section 10 of the Family Courts Act, 1964. It is contended with vehemence that since all the dower was prompt so petitioner was entitled for seventy five percent of the same. Learned counsel submitted that both the courts have totally misconstrued the mandatory provision of Section 10(5) of the Act,

3.Conversely, learned counsel for the respondent submitted that only five tola gold was prompt which was paid to the petitioner at the time of marriage whereas rest was deferred. It is argued emphatically that since marriage was not consummated so the petitioner was not entitled to the claim of any dower. Learned counsel submitted that the impugned judgment passed by the appellate court is unexceptionable. Placed reliance on Mst. RAFIA YAQOOB versus SULEMAN AYUB

(2026 SCMR 561)

4.Heard. Record perused.

5.Marriage interse petitioner and respondent was solemnized on 03rd August, 2014 and terms of the same were incorporated in the Nikahnama (Exh.P2). Suit was though instituted for multiple reliefs but the point which requires determination of this Court is now restricted to entitlement of the petitioner for dower. As per claim of the petitioner, dower was fixed in shape of fifteen tola gold ornaments and land measuring one kanal alongwith constructed house situated

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near Zakariya University, Multan, which remained unpaid. On the contrary, the stance of the respondent is that dower was though fixed as fifteen tola gold ornaments but out of the same, five tola was prompt which was paid to the petitioner whereas rest of the gold as well as land including constructed house is still outstanding which was payable at the time of rukhsati. In the light of respective stances of both the sides, it is thus admitted position that dower was in the shape of fifteen tola gold out of which five tola was given to the petitioner at the time of Nikah whereas ten tola gold and land measuring one kanal alongwith constructed house mentioned in Column No.16 of the Nikahnama (Exh.P2) are outstanding. Though it is one of the contentions of learned counsel for the respondent that except five tola gold, which has been paid to the petitioner, being, prompt rest of ten tola gold and land including house were in the nature of deferred dower but it is noticed that no such fact was asserted in the written statement and as such this contention is not only beyond pleadings but highly ill-founded.

6.In order to examine the nature of dower, it would be apposite to have cursory glance on the entries in the Nikahnama (Exh.P2), which are reproduced below: -

غلبمپاچنہزارروےپ رہمیکرمق مع مع دنپرہوتہلوسپازویراتالتیئ۔پاچنوتہلوسپازویراتالتیئ رہمیکرمقینتک جلاورینتکریغ جل 14 ادا

دسوتہلوسپادنعابلطل آپارہماکھچکہصحشادیےکومعقرپاداایکایگ ارگایکایگےہوتسکدقر

ایانکلزنیمہعمباچردویاریوکیھٹاکمنینکسنزدذرکپا آپاوپرےرہمپااسےکیسکہصحےکوعض ویوینریٹساتلمن۔۔۔دنعابلطل ںیموکیئاجدیئاددییئگےہوتاساجدیئادیک ت رصاحاوراسیکتمیقوجفزنیقیےکامنیب ےطپایئےہ۔

It can be observed with naked eye that against ten tola gold as well as house, find mention in Column No.16 of the Nikahnama, the term دنعابلطلhas been mentioned. Literal meaning of دنعابلطلin English is

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payable on demand. Even otherwise, as per Section 10 of the Muslim Family Laws Ordinance, 1961 (hereinafter referred to as “Ordinance”) where no details about the mode of payment of the dower are specified in the Nikahnama or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand. There thus remains no cavil to the proposition that even in absence of any specification of dower, the entire amount of dower shall be presumed as payable on demand. Reliance to this effect can be placed on MUHAMMAD YOUSAF versus HUMA SAEED and others (2024 SCMR 1078).

7.To the above effect, case of MUHAMMAD SAJJAD versus ADDITIONAL DISTRICT AND SESSIONS JUDGE and 2 others (PLD 2015 Lahore 405) is also quite relevant, wherein while dealing with the similar proposition, it was held as under: -

13.I have given my anxious considerations to the contents of Nikah Nama where the column No.14 which relates to the payment of the dower amount in Mu'ajjal and Mowajjal (prompt and deferred) was left blank while against the column No.15 which relates to the condition as to whether how much of the dower amount was paid at the time of Marriage; it is specifically mentioned that one house plot measuring 5 Marla which leads to the fact that all of the dower mentioned in the Nikah Nama was fixed and payable at the time of Marriage ceremony.

14.I am afraid that the defendant/petitioner cannot raise this plea for the first time before this Court in its extra ordinary constitutional jurisdiction. The family court is a court of ultimate jurisdiction which has power to record the evidence and to decide the factual controversies. Both the courts below have concurrently found the plaintiff/respondent No.3 entitled for the grant of dower in terms of Nikah Nama (Exh.P/1).

15.In general terms, dower is defined as "Muajjal" and "Muwajjal" which is called prompt and deferred respectively. The prompt dower is payable immediately on demand whereas deferred dower is payable at a specified time and on consummation of marriage, the dower is right of the wife,

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whether prompt or deferred and there is no difference of opinion between Islamic jurists regarding payment of prompt dower at the time of marriage or when it is demanded by the wife. However, various schools of thoughts have divergent opinion about the payment of deferred dower. According to "Hanfi Fiqah" to which the most of the society belong in our Country, if the deferment or postponement is not specified and is generally described as deferred, this dower will be considered prompt and shall be payable accordingly.

16.This Court would refer to Kitab-al-Fiq Ala-Madhahib-Al- Arbaha by Abdul Rehman Al-Jazairi, Volume 4, Page 153, Chapter of Nikah, Published at Darul Fiq, and Bidaie-As-Sanaie Fi Tarteeb Ash-Sharai by Allama Abu Bakar Alla-ud-Din Al- Qasmi Al-Hanfi, Volume 2, Page 288, to hold that the view that deferred dower is not payable unless the marriage is dissolved is not supported by any recognized principle based on some authority whereas on the other hand, the deferred dower shall always be treated as prompt if no specified period for the payment of dower is fixed. This view is in conformity to the command of Holy Quran, therefore, in terms of section 6(5)(a) of the Muslim Family Laws Ordinance, 1961 the immediate payment of entire amount of dower, whether prompt or deferred is obligatory in such cases.

17.The only difference of Mu'wajjal and Mu'ajjal i.e. prompt and deferred is that deferred dower is not payable till the arrival of stipulated period whereas prompt dower is payable immediately on demand and if for the payment of deferred dower no stipulated time is fixed, it would be treated as prompt i.e. payable on demand. This leads this Court to the conclusion that deferred dower without specification of period or stipulation, shall be payable at any time upon demand.

The accumulative effect of above noted discussion is that nature of dower in the present case was prompt.

8.Adverting to the next limb of the controversy which relates to the entitlement of the petitioner qua dower, it is observed that the petitioner in her suit claimed dissolution of marriage. During pre-trial reconciliation proceedings, conducted by the Family Court, which

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ultimately failed and as a result thereof marriage was dissolved in terms of Section 10(5) of the Family Courts Act, 1964 (hereinafter referred to as “Act, 1964”). Nevertheless, with regard to the return or surrender of deferred or prompt dower, issues were framed to the following effect: -

1.Whether the plaintiff is entitled to a decree for recovery of prompt as well as deferred dower from the defendant? OPP

2.Whether the plaintiff is entitled to a decree for recovery of land measuring 01-kanal alongwith constructed house thereon as dower? OPP

3.Whether land measuring 1⁄2 kanal alongwith house contracted thereon was dowered to the plaintiff? OPD

4.Whether the plaintiff is entitled to recover a car as a gift from the defendant? OPP

5.Whether the plaintiff has waived the right of deferred dower by claiming the dissolution of marriage? OPD

The Family Court after recording of the evidence treated five tola gold as prompt whereas rest of ten tola gold alongwith one kanal land alongwith constructed house were treated as deferred dower. In this backdrop, Family Court held the petitioner entitled to recover 21⁄2 tola gold ornaments and half kanal land alongwith constructed house thereon or its alternate price to be determined during execution proceedings. The appellate court, on the other hand, while taking into consideration the fact of non-consummation of marriage, declined dower to the petitioner.

9.As already noted herein above that dower in the shape of gold as well as land alongwith constructed house was prompt dower so the conclusion drawn by the Family Court as well as the Appellate Court are completely erroneous. After arriving at this conclusion that the dower was in the nature of prompt, there remains no difficulty to set the remaining controversy at rest. Section 10 of the Act, 1964 deals with pre-trial proceedings. Sub-Section (5) ordains that in a suit for dissolution of marriage, if reconciliation fails, the Family Court shall immediately pass a decree for dissolution of marriage and, in

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case of dissolution of marriage through khula, may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty- five percent of her admitted prompt dower to the husband. In view of clear mandate of Sub-Section (5) of Section 10 of the Act, 1964, while dissolving the marriage on the basis of khula, the Family Court was obliged to direct the petitioner to surrender up to twenty five percent of her prompt dower to the respondent irrespective of the non- consummation of marriage. Guidance to the above effect can be sought from the case of Mst. RAFIA YAQOOB versus SULEMAN AYUB (2026 SCMR 561). Relevant extract from the same is reproduced below: -

9.Given the petitioner's own affirmation of the concurrent findings of the Family and Appellate Court, the issue that now arises is the quantum of return of dower in cases of khula. Section 10(5) of the Act empowers the Family Court, in cases of khula, to direct the wife to surrender up to twenty-five percent of her admitted prompt dower to the husband. The ibid section provides as follows:

"In a suit for dissolution of marriage, if reconciliation fails, the Family Court shall immediately pass a decree for dissolution of marriage and, in case of dissolution of marriage through khula, may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty-five percent of her admitted prompt dower to the husband."

10.Before proceeding further, it is important to clarify that, in light of section 10(5) of the Act, there was no necessity to delve into the principles of Islam concerning the practice of khula, which is the wife's right to initiate divorce. Thus, we consider the High Court's references to various verses of the Holy Quran to be unwarranted and extraneous to the issue at hand. The relevant legal provision is clear and unambiguous in its intent and applicability, rendering any exploration of religious doctrine unnecessary for resolving this matter. Consequently, our discussion will be confined to a thorough examination of the language and stipulations of section 10(5) of the Act, while refraining from assessing its validity in relation to the foundational teaching of Islam.

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10.It would not be out of context to mention here that vires of Section 10(5) of the Act, 1964 have come under consideration before عمران انور خان و the Federal Shariat Court of Pakistan in the case of ت قانون ،الہور و دیگر

(PLDدیگر بنام حکومت پنجاب بذریعہ سیکرٹری وزار ِ

2022 Federal Shariat Court 25) and it was ruled as under: - ت ذموکرہپاالثحبیکروینشںیمہیاابنتسطرکپالکشمںیہنہکاجنپبیلمیفوکرٹ(نزیمیم)اٹکی2015،یکدہعف10ےکذیلیداعفت()5اور 27 ت ت ()6یعطقوطررپرشتعیےکانمیفںیہ۔صنفزآنےسانوقانینیکپادیئںیہنوہیتاورہنرصفہیہکوکیئدحیرشفیانیکوتقیثےک ت ےئلدایتسبںیہنہکلبوقانیناالسمںیمخلعاولےکدقمامت(رضحتپاینبسیقیکویبویںےکدقمامت)،نجںیمہلصیفیبنپاکیلص ت اہللہیلعوملسےنفزامپااھت،ےساصتمدمںیہ۔مزیدہیہکافلخےئرادشنیاوراحصہبرکامےکدورےکیسکواہعقاورروایےسیھبانوقانینوک ت ت وکیئیدنزایئںیہنیتلم۔وموضعهمازہعنزامیماینبدیوطررپاےنپادنردحیلعیگےکےئلوصحلامیلتعفنمےکےیلرپششکیتگلںیہاورضحمامیل ت وفادئےکوصحلےکےیلیھبدحیلعیگےکراحجنںیمانزادیاورااضہفاکسنبیتکسںیہ۔مزیدنزاںاننزامیمےسآنیئےکآرلکیٹ35 ت ےکتحتشادی،امںاورےچبوکاحلصرپایتسظفحتیھبرطخےںیمڑپپاےہاوراخدنانوفحمظرےنہیکاجبےئرشتنموہاتکسےہ۔ ت ت ت لدارشتعیرعدیضاتربمنیرشتعیرعیضداشربمن/4:آیئآف2016رمعاناونراخنانبموکحماجنپب،رشتعیرعدیضاش 28 ت ت ربمن/7:آیئآف2017رمعاناخنجدونانبموکحماجنپب،رشتعیرعدیضاشربمن/4:آیئآف2019دمحماربکدیعسوریغہانبم ت ت ڈیفرنشیآفپااتسکنوریغہاوررشتعیرعدیضاشربمن/3:آیئآف2020خیشومحمداابقلانبموکحماجنپبوظنمررکےکیلمیفوکرٹ ت ت ت ت اٹکی1964،یکدہعف10ںیماعتمرفرکایئیئگذیلینزامیم()5اور()6وکریغرشیعفزاردپااجپاےہ۔ذموکرہذیلینزامیم()5اور()6مکی یئم2022ءےسوسنمخاورریغومنزوصتروہیگ۔لداوسالربمن()3اکوجاباابثتںیمےہ۔

It is noticed that the above judgment was rendered by the Federal Shariat Court on 17th February, 2022 and it was held that in terms thereof subsections (5) and (6) of section 10 of the Act, 1964 shall be deemed to be annulled and ineffective with effect from 1st May, 2022. Article 203D of the Constitution deals with the powers, jurisdiction and functions of the Federal Shariat Court and in terms of proviso to sub-article (2) of Article 203D, no decision of the Federal Shariat Court shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or where an appeal has been so preferred, before the disposal of such appeal. Article 203F of the Constitution provides a time period for filing an appeal against the decision of the Federal Shariat Court before the Supreme Court of Pakistan. In terms whereof, if the appeal is to be preferred by any party to the proceedings such appeal is to be presented within sixty days of the decision whereas if the appeal is to be preferred on behalf of the

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Federation or of a Province it prescribes six months’ time limit for such appeal. It is an admitted position on the record that against the decision of the Federal Shariat Court in عمران انور خانsupra case an appeal in terms of Article 203F of the Constitution has been preferred by the Province of Punjab. From the joint reading of both the provisions i.e. Articles 203D and 203F of the Constitution an inference can safely be drawn that at the time of passing of impugned order, Section 10(5) of the Act, 1964 was intact. Consequently, the said provision continued to hold the field and was binding upon the parties. Under Section 10(5) of the Act, 1964, a wife seeking dissolution of marriage through khula is under a legal obligation to surrender twenty-five percent of the dower where the dower has been specified as prompt. Since, in the present case, the dower, for the reasons discussed hereinabove, has been held to be prompt dower so, the petitioner is legally bound to relinquish twenty-five percent thereof in accordance with the mandate of Section 10(5) of the Act,

11.The nutshell of above discussion is that the Family Court as well as the appellate Court have clearly erred in law while adjudicating the matter in issue. Resultantly, this writ petition is allowed and judgments and decrees of both the courts below are set- aside to the extent of issue of dower. The marriage between the spouses shall stand dissolved on the basis of khula subject to surrender of twenty-five percent of prompt dower by the petitioner to the respondent. No order as to costs.

(MIRZA VIQAS RAUF)

JUDGE

Sajjad

APPROVED FOR REPORTING

JUDGE