Gul Bad Shah Vs Mst. Sonila Bibi etc

Judgment Sheet

PESHAWAR HIGH COURT BANNU BENCH

(Judiciol Department)

WP No.37-Bl2025

Gul Bad Shah Vs Mst. Sonila Bibi, etc.

JUDGMENT

For petitioner: Pir Nadeem Ullah Shah Advocate For respondent: Mr. Shahid Ullah Khan Advocatc Date of hearing: 24.08.2026

MUHAMMAD TARIQ AFRIDI. J.- This consolidated judgment shall decide Writ Petition No. 37-812025 and Writ Petition No. 169-8/2025, arising out of the judgment and decree dated 18.12.2024, passed by the leamed Additional District I Judge-V, Bannu, whereby the wife's appeal was partially allowed and the judgment and decree dated 30.04.2024, passed by the learned Judge, Family Court, Bannu, was set aside and decreed her claim for recovery of 10 tolas of gold as prompt dower which the leamed Trial Court had declined on the ground that it constituted deferred dower.

2.Briefly stated, Sonila Bibi, plaintiff in the suit (hereinafter referred to as the "the wife"), instituted a suit against Gul Bad Shah, defendant therein (hereinafter referred to as the "the husband"), before the leamed Senior Civil Judge / Judge Family Court, Bannu, seeking recovery of 12 tolas of gold as dower; maintenance at the rate of Rs. 10,000/- per month with effect from 18.03.2024, along with future maintenance with an annual increase of l|Yo; medical expenses of Rs.35000/-; and dowry articles as detailed in the plaint.

The wife averred that she contracted marriage with the husband as his second wife on 14.11.2020, against dower of 12 tolas of gold, as recorded in the Kabin Nama of the same date, which, according to her, remained unpaid. She further asserted that, upon consummation of the marriage on 17.12.2020, she brought dowry articles, worth of Rs. 150,000/- to the matrimonial home, where they remained. According to her, despite duly performing her matrimonial obligations, she was subjected to ill treatment from the outset. She alleged that her husband scolded her, compelled her to serve his first wife and subjected her to cruelty over the issue of childlessness. She maintained that she tolerated his conduct in the hope of an improvement, but to no avail. Instead, his behavior worsened and he subjected her to greater cruelty, when she demanded payment of her dower.

? It was further pleaded that the husband stopped maintaining her and required her to obtain financial suppofi from her parents. Upon her insistence that it was his obligation to maintain her, he allegedly subjected her to physical ill-treatment and eventually tumed her out of the matrimonial home while she was unwell. Thereafter, she resided with her parents, during which period the husband neither maintained her nor inquired about her well-being.

She also claimed td have incurred medical expenses from her own resources, towards which he made no contribution. His refusal to pay the outstanding dower, maintenance and medical expenses, or to return her dowry articles occasioned the institution of the suit.

3.The husband contested the suit asserting that the agreed dower was only two (02) tolas of gold, which had been paid at the time of marriage. He maintained that the wife had voluntarily left the matrimonial home and refused to return despite his efforts, disentitling her to maintenance. He admitted only a box and a cot as dowry articles and denied the remaining claim.

4.After framing issues, recording evidence and hearing the parties, the leamed Trial Cout held that the agreed dower was 12 tolas of gold, of which two tolas constituted prompt dower and had been paid, while the remaining 10 tolas were deferred. Recovery of the latter was held premature, as the husband was alive and no divorce had taken place. The claim for dower was accordingly dismissed.

5.The leamed Trial Court also dismissed the claims for maintenance and medical expenses, finding that the wife had voluntarily withdrawn from the husband's society. It, however, decreed recovery of the dowry articles at serial Nos.l to 8 and 11 in their used condition or, altematively, their assessed value of Rs.80,000/-.

6.Feeling aggrieved, the wife preferred an appeal but withdrew her challenge concerning maintenance, medical expenses and dowry articles. The appeal thus remained confined to the findings regarding payment of 02 tolas of gold omaments and the classification of the remaining ten (10) tolas as deferred dower.

Upon hearing leamed counsel for the parties, the learned Appellate Court concurred with the findings that agreed dower comprised twelve ( 12) tolas o1'gold and that two (02) tolas of gold had been paid to the wife at the time of marriage. It, however, disagreed with the conclusion that the remaining ten (10) tolas constituted deferred dower. Accordingly, vide judgment and decree dated 18.12.2024, it partially allowed the appeal, set aside the judgment and decree of the Trial Court to that extent, and decreed recovery ofthe remaining ten (10) tolas of gold as prompt dower in favour of the wife.

7.The husband has instituted Writ Petition No.37-Bl2025, challenging the appellate judgment and decree to the extent that it awards the wife ten (10) tolas of gold as prompt dower. He has

also questioned the judgment and decree of the Trial Court, whereby her claim for dowry articles was partially decreed, with the alternative relief of payment of Rs.80,000/- as their assessed value. The wife, in turn, has instituted Writ petition No.169- 812025, seeking modification of the judgments and decrees of both Courts below and a decree of her suit in its entirety, as prayed for in the plaint.

8.Arguments of learned counsel for the parties have been heard and the record perused.

9, Before examining the merits, it is necessary to define the scope of the controversy in these writ petitions. Admittedly, the husband did not challenge in appeal the judgment and decree 0 dated 30.04.2024, whereby the leamed Trial Court partially decreed the wife's claim for recovery of dowry articles or, alternatively, their market value of Rs. 80,000/-. The wife preferred an appeal but expressly withdrew it to the extent of her claims for maintenance, medical expenses and dowry articles. The Trial Court's findings on these claims thus attained finality between the parties and cannot be reopened in the present proceedings under Article 199 of the Constitution. The controversy before this Court is, therefore, confined to the nature and quantum of dower, whether prompt or deferred, and the extent to which it has been paid or remains unpaid.

10.The questions before this Court concem the nature of the dower, whether prompt or deferred, and the time of its payment. Their determination on merits requires examination of both the facts of the case and the relevant injunctions of Sharia.

11, To resolve the points in controversy, this Court considers it appropriate first to examine the factual background of the case and thereafter to consider the concepts of prompt and deferred dower in the light of the relevant Qur'anic verses, Hadith, and

scholarly writings. Accordingly, the facts of the case are taken up for consideration fiist.

12.Both Courts below, upon a detailed appraisal of the oral and documentary evidence, concurrently found that under the Kabin Nama (Ex.PW-5/l), the wife's dower was fixed at twelve (12) tolas of gold ornaments, of which two (02) tolas had been paid, while the remaining ten (10) tolas remained unpaid. These concurrent findings of fact, being supported by the record, warrant no interference by this Court in the exercise of its constitutional jurisdiction.

13.The question that now falls for determination is whether the outstanding dower of ten ( I 0) tolas was rom t or deferred and when it became payable. Resolution of this question requires an examination of the concept of dower and its kinds.

14.Dower (Mahr / X 6) is the money or property that a husband is legally bound to pay or transfer to his wife by reason of marriage. It constitutes the wife's exclusive right and may comprise cash, gold omaments, immovable property, or other property of value.

Dower is classified by reference to the determination of its amount and the time of its payment. As regards its determination, dower may be either specified or proper.

Specified dower (Mahr-e-Musamma I 9.,,.- ja) is that whose amount or subject matter is hxed by agreement between the parties, either at the time of marriage or subsequently.

Proper dower (Mahr-e-Misl I & .f) is payable where no amount has been validly fixed and is assessed with reference to the wife's circumstances and the dower ordinarily settled upon similarly situated women of her paternal family.

As regards the time of payment, dower may be prompt or deferred. Prompt dower (Mahr-e-Muajjal t ,P y) is payable

immediately upon the wife's demand, whereas deferred dower (Mahr-e-Muwajjal Lht tr) becomes payable at an agreed future time or upon an agreed event, ordinarily the dissolution of marriage by death or divorce.

These classifications are not mutually exclusive: specified or proper dower may be wholly prompt, wholly deferred, or partly prompt and partly deferred.

In this regard, Section 10 of the Muslim Family Laws Ordinance, 1961 provides that, where the Nikahnama or marriage contract does not specifo the mode of payment, the entire amount of dower is payable on demand' For convenience, the provision is reproduced below:

a 10. Dower. Where no details about the mode of payment of dower are specified in the Nikahnama' or the marriage contract, the entire amount of the dower shall be prescribed to be payable on demand.

15.Having discussed in detail the definition and types of dower, this Court now tums to the material on record, particularly the Kabin Nama (Ex.PW-5/l), to ascertain the nature and terms of the dower agreed upon by the parties. For clarity, the relevant portion thereof is reproduced below:

G- "L,1i- c.r,+} 6i!^J CtS-,, .:li' tS JF JJ! t}} ^S ^1" it"."^ ,slJJCj ;)..t .rlLi U:- )i "-h tZ :rl ^l#J* ::- -.tor 'oU.,,.

JL ^S ": -al L,\ tU u* al + -+ ..rt+-p U:- )-i 3: I .grl:*i .grt i / ,j.-i-t criit 4{ +} J -:S -.rS c'l-r::j;)J" .,rlli -r3.rr,-, -.! ls /JS Jtr-

- --il1"" J .,;.,., ^l#J*'.1-,. .'lLll!c' J+i' y3':)'

3 S ^:G.rs"y, sr.\ rs 4.,Js Jl-r -s -6 -rS >" J;.s il.13s; t-,j-, ); lZ #.i- CL $r*'.1-"-.- ,'-J*.,1. i); ;.r"1 JJI -.sSy "(L

16.A plain reading of the Kabin Nama (Ex'PW-5/1) shows that the total dower was fixed at twelve (12) tolas of gold ornaments' Of this, two (02) tolas were stipulated to be delivered to the wife at the time of rukhsati I marriage, whereas the remaining ten

tolas, though described as "tJr. iF J{-", were expressly made payable 5''.'rLrl$e'r, i.e., upon demand by the wife. The stipulation must be read as a whole, and effect must be given to all its terms. The expression "dr.i" cannot, therefore, be read in isolation so as to render meaningless the immediately accompanying and specific 1.r, ..' "lLlli!et'. No particular future date was fixed, nor was payment made contingent upon death, divorce, or dissolution of the marriage. The contractual obligation in respect of the remaining ten (10) tolas was thus expressly made enforceable upon demand by the wife.

17.The leamed Trial Court, therefore, fell into error in holding that recovery of the remaining ten (10) tolas was premature merely because the husband was alive and the marital tie continued to subsist. Once the Kabin Nama itself made the ? outstanding dower payable on demand, neither the subsistence of marriage nor the absence of divorce could postpone its payment contrary to the express terms agreed between the parties' The learned Appellate Court was, therefore, justified in setting aside the finding of the Trial Court to that extent and decreeing recovery of the outstanding ten ( 10) tolas of gold in favour of the wife. No illegality, jurisdictional defect or perversity has been demonstrated in the appellate judgment warranting interference in constitutional jurisdiction.

18.The judgments of both the courts below, as well as the facts of the case, have been examined from a legal perspective' It is now necessary to examine the concepts of (Mahr-e-Musamma / F .f), prompt and deferred dower in the light of the relevant writings' Qur'anic verses, Ahadith, and authoritative scholarly

19.Regarding dower (Mahr), Allah Almiglrty states in Surah An-Nisa, verse 4:

O fj.-r r:+ ijtiS tr*ii: in tU ;* S,1! oF'ii!'#tit'ru4ll lilil Enslish translation

"And give women their dower willingly. But if they, of their own free will, give you any part of it, then enjoy it with pleasure."

Urdu translation

d d9,il oj;61 Xi.J.JS l.rl --, f.r,J,F r,a J Ol JS r.d-.r-P -,rs!

.JI{J # a-,,|j,..1is. dl i cstt4r LJ*iJ {5s c: of Lyl In Surah An-Nisa, verse 20, Allah Almighty states;

'g;a 4.:4 lrli.k ii 1.,rlli 6[rsl e,:.1.1 eij org e.!j .Jri];Lr ;i3.,1i 0p ls uir3 riuij +:3.rii:i o,.

Enslish translation

a If you wish to replace one wife with another, and you have given one ofthem a great amount of wealth as dower, do not take any of it back. Would you take it through slander and manifest sin?

Urdu translation

,/ d # ul .r3l ,3,1Ll LjY ,rs+ 6#Jr J; ,i aly.qt f jl ,rl ,-t+l

I !S.Ji ^j,.y*lt "r{+ # * o*" r.xl i ,31 * t: st M ctr,*15 $ tJ 3l rpitj <J( olj3 )# ll .I t3J Ot *r -l

Allah Almight states in Surah Al-Baqarah Ayat 282 Q:282) (;j$ri ,F,Fj,ll ,)ct.:4rs rll r,,j.al cjJll sj r;l Enelish translation

"O you who have believed, when you contract a debt for a specified term, write it down."

-ri 16 ".|tg tS ,ij 4 J ou o"rA u*.s r.l;e g-ni f i;; l3llr Ot+l al .16t+lf$al The verse tells believers to put in writing any debt payable at a future date. This provides a general basis for recording

deferred dower, including its amount and when it must be paid. However, the verse speaks about debts generally and does not specifi cally mention deferred dower.

All four Imams' schools of Islamic jurisprudence permit deferred dower, but differ regarding the time for its payment, particularly whether it may be deferred until death or divorce.

i. Imam Abu Hanifah - Hanafi Jurisprudence The Hanafi school of jurisprudence takes the tbllowing position on deferred dower:

The whole or any part of the dower may be deferred until a specified time. Where deferment is stipulated but no time for payment is fixed, the deferred il dower becomes payable upon death or marital separation, with due regard to established custom. However, the ?ahir al-RiwSyah a;t3-.,/t-.,pt-.li (the reported rulings of Imam Abu Hanifah and his two leading students, Imam Abu Yusuf and Imam Muhammad ibn al- Hasan al-Shayban) also records the view that if no time is fixed for payment of deferred dower, its payment may be demanded immediately.

ii. Imam Malik-ibn-Anas - Maliki Jurisprudence Where the dower consists of money or similar property, payment of the whole or any part thereof may be deferred for a specified period, although such deferment is regarded as disfavoured (ols.-). According to the well-known Maliki position, however, payment may not validly be deferred until an event of unceftain timing, such as death or divorce. If such a condition is stipulated, the marriage is subject to annulment before consummation. After consummation, the marriage

- l0 -

remains valid, but the stipulated dower is replaced by Mahr-e-Misl l&.f.

Reference: Wahbah al-Zuhayli, Al-Fiqh al-Islami wa Adillatuhu, vol. 9, p. 6788.

iii. lmam Muhammad-ibn-Idris al-Shaf i Shaf i Jurisprudence

Payment of the whole or any part of the dower may be deferred, provided that the period of deferment is clearly specified. Merely describing the dower as "deferred" without speciffing when it becomes payable, or deferring payment until death or divorce, renders the dower stipulation invalid. This does not invalidate the marriage; instead, the wife becomes entitled to mahr al- i mithl, namely, the customary dower of a woman of comparable standing, in place of the stipulated dower.

Reference: 'Abd al-Rahman al-Jaziri, Al-Fiqh 'ala al- Madhahib al-Arba'ah, vo1. 4, p. 141.

iv. Imam Ahmad-ibn-Hanbal - Hanbali Juris rudence Payment of the dower, wholly or partly, may validly be deferred for a specihed period. Ifthe dower is stipulated as deferred without specifuing when it becomes payable, the authoritative Hanbali position is that it falls due upon death or dissolution ofthe marriage. An express stipulation defening payment until death or divorce is likewise valid. However, where the dower is fixed without any stipulation for deferred payment, it is payable immediately.

Referencc: 'Abd al-Rahm an al-Jaz\ri , Al-Fiqh 'ala al- Madhahib al-Arba'ah.

20.The foregoing juristic principles also demonstrate that Islamic jurisprudence recognizes the validity of stipulating

t of today placed on B.A. No, 99-8/2025 payment of dower immediately or at a future time, either wholly or in part, although the schools differ as to the legal consequences mad Sher Vs The State etc), the tnstarfi where deferment is stipulated without fixing a definite time or is linked with death or dissolution of marriage. These differences, ncellation application, 1,€, however, do No.10- not control the present controversy, because the parties themselves expressly agreed that the outstanding dower would be payable on demand (!.dLll$e'. The case is therefore s hereby dismissed nlbninie.

governed primarily by the express terms of the marriage contract.

Once payment was made dependent upon the wife's demand, her demand matured the obligation, and the outstanding dower could not be treated as recoverable only upon death or dissolution of the 2s.

S' marriage.

21.For these reasons, I do not find any force in the present writ petitions. Both petitions are dismissed accordingly. ,B) Hon'ble Mi lastlcc Abdal Fayaz Announced lL.

(Ghafoor Zamar) t)ry -Sd- Judge

JUDGE

Date of heaing and announcement of judgment ...... ... ..... ...........24.08.2026 Date of preparation and signing of judgment...... ........ ............16.09.2026 ,b

It' ',{;1 r

SC,{NNEI)

1 ! SEP ZUi'l (s.B.) Cc:t'-!1oc=s Hon'ble Mr. Justicc Muhammad Tariq Afridi