Agreement of enhancement of Haq mahar

اس کیس میں قانونی نقطہ بنیادی طور پر مہر کی مقدار میں اضافے کے قانونی جواز پر ہے۔ لاہور ہائی کورٹ نے اس فیصلے میں یہ نکتہ واضح کیا:

1. **مہر کی مقدار میں اضافہ**: عدالت نے یہ تسلیم کیا کہ مہر کی مقدار کو شادی کے دوران یا بعد میں بڑھانا قانونی طور پر جائز ہے۔ معاہدے (Exh.P2) میں مہر کی رقم 40 لاکھ روپے طے کرنے کو درست قرار دیا گیا، کیونکہ اسلامی قانون اور متعلقہ قانونی اصولوں کے تحت مہر کی مقدار میں اضافہ ممکن ہے۔

2. **معاہدے کی قانونی حیثیت**: عدالت نے معاہدے کی درستگی کو تسلیم کیا اور یہ قرار دیا کہ معاہدہ شادی کو برقرار رکھنے کی شرط نہیں بلکہ مہر کی مقدار کو بڑھانے کے لئے ہے۔ یہ قانونی طور پر جائز ہے اور اس پر عمل درآمد کیا جا سکتا ہے۔

یہ فیصلے اس بات کی وضاحت کرتے ہیں کہ مہر کی مقدار میں اضافہ ایک قانونی حق ہے، اور ایسے معاہدے جو مہر کے بڑھنے کا ذکر کرتے ہیں، اسلامی قوانین اور دیگر متعلقہ قانونی اصولوں کے تحت قابلِ عمل ہیں۔

معاہدے (Exh.P2) میں درج ذیل نکات شامل تھے:

1. **مہر کی رقم**: معاہدے میں طے کیا گیا تھا کہ اگر طلاق ہو جاتی ہے تو مہر کی رقم 4 لاکھ روپے ہوگی۔

2. **معاہدے کی توثیق**: معاہدے کی توثیق کی گئی اور اس پر درخواست گزار اور جواب دہندہ کے دستخط موجود تھے۔

3. **دستخط اور گواہ**: معاہدے پر دونوں فریقین کے دستخط اور دو گواہوں کی تصدیق بھی شامل تھی۔

یہ معاہدہ مہر کی رقم میں اضافے کا معاہدہ تھا، اور عدالت نے اس معاہدے کو قانونی طور پر جائز قرار دیا کیونکہ مہر کی مقدار میں اضافہ کرنا اسلامی قوانین اور متعلقہ قانونی اصولوں کے تحت ممکن ہے۔

Stereo.HCJDA.38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.38567/2022

Syed Sibt Hassan

Vs.

Saba Batool etc.

Date of hearing

19-02-2024

Petitioner by

Mr. Farrukh Shehzad Kamboh, Advocate.

Respondents No.1 &

2 by

Mr. Shahzad Hussain Goraya, Advocate.

ABID AZIZ SHEIKH, J. This judgment will also decide

the connected Writ Petition No.75369/2021 (hereinafter referred to

as connected Petition), as both these Petitions are between the

same parties and against the same impugned judgment and decree

dated 27.10.2021 (impugned judgment & decree) passed by the

Appellate Court.

Relevant facts are that respondents No.1 & 2 in this Writ

Petition, who are also petitioners in connected Petition, (hereinafter

referred to as respondents) filed a family suit for recovery of

maintenance allowance, dowry articles, delivery expenses and

dower against the petitioner, who is also respondent No.1 in

connected Petition (hereinafter referred to as petitioner) on

19.06.2017. The said suit was decreed by the Trial Court, vide

judgment and decree dated 01.03.2019 (judgment & decree of

Trial Court), awarding monthly maintenance allowance @

Rs.2,000/- for respondent No.1 (wife) from September 2016 till

Iddat period, maintenance allowance @ Rs.5,000/- per month for

respondent No.2 (minor-daughter) from her date-of-birth till

marriage with 10% increase per annum and the alternative price of

dowry articles at Rs.350,000/- and delivery expense of Rs.25,000/-

to respondent No.1, however, the claim of respondent No.1 for

dower was dismissed. The petitioner did not challenge the

judgment & decree of Trial Court, however, in Appeal (filed by the

)

Writ Petition No.38567/2022

respondents), the Appellate Court increased the amount of delivery

expenses to Rs.33,778/- and upheld the judgment & decree of the

Trial Court to the extent of remaining claims, vide judgment and

decree dated 12.07.2019 (judgment & decree of Appellate

Court). The petitioner again did not challenge the above-noted

judgment & decree, however, the respondents filed Constitutional

Petition (WP No.51624/2019), wherein the matter was remanded

back to the Appellate Court, vide order dated 01.06.2021 (remand

order), to decide the question of dower while recording the finding

about validity and effect of the Agreement dated 21.01.2017

(Exh.P2) (hereinafter referred to as Agreement). In post-remand

proceedings, the Appellate Court while upholding the validity of

the Agreement, through the impugned judgment & decree, awarded

amount of Rs.4,000,000/- in favour of respondent No.1 as dower.

The petitioner being aggrieved of the impugned judgment & decree

has filed this Constitutional Petition, whereas the respondents have

also filed connected Writ Petition claiming enhancement of the

maintenance allowance or alternative price of the dowry articles.

Learned counsel for the petitioner submits that the petitioner

got a stamp-paper issued for renewal of license of medical store but

the same was stolen by respondent No.1 and she got the Agreement

inscribed thereon. Further submits that in any case the condition of

Agreement to pay dower amount of Rs.4,000,000/- in case of

divorce, being a stringent condition on divorce, is not sustainable.

Reliance in this regard is placed on “Muhammad Bashir Ali

Siddiqui Vs. Mst. Sarwar Jahan Begum and another” (2008 SCMR

186) and “Muhammad Asif Vs. Mst. Nazia Riasat and 2 others”

(2018 CLC 1844).

Learned counsel for the respondents, on the other hand,

submits that the Agreement was duly proved and it was not to

impose stringent condition to remain in marriage bond rather same

is for enhancement of dower amount, which is permissible under

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Writ Petition No.38567/2022

the law. He submits that the respondents only want to contest this

Writ Petition and will not press their connected Petition filed for

enhancement of maintenance allowance or the alternative price of

dowry articles.

Arguments heard. Perusal of the record demonstrates that in

previous round of litigation, the petitioner did not challenge the

judgments and decrees of the Trial Court and Appellate Court

impugning the maintenance allowance, alternative price of dowry

articles and the delivery expenses, therefore to that extent the

findings of the courts below in aforesaid judgments have already

attained finality against the petitioner. Similarly, today the

respondents have not pressed their connected Petition for

enhancement of maintenance allowance or alternative price of

dowry articles, therefore, these issues being not under challenge

need not be examined in this judgment. Now the only question

needs determination is regarding the issue of dower on the basis of

Agreement, which was remitted back by this Court vide remand

order and has been allowed by the Appellate Court through the

impugned judgment & decree.

In above context, the Issue No.4 relates to recovery of the

dower amount. This Court, vide order passed in Writ Petition

No.51624/2019, remanded the matter to the Appellate Court firstly

to decide the validity or otherwise of the Agreement and secondly

its effect qua the claims of the subject-matter, in case the same is

held valid and enforceable in law. Regarding validity of the

Agreement, no doubt under Section 17 of the Family Courts Act,

1964 (Act), the Qanun-e-Shahadat Order, 1984 (QSO) and the

Code of Civil Procedure, 1908 (CPC) are not applicable in family

matters, however, as the respondents were beneficiary of the

Agreement, initially the burden of proof was on them to prove the

execution of the Agreement. In this behalf, respondent No.1 herself

appeared as PW-1 and besides producing the Agreement as Exh.P2,

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Writ Petition No.38567/2022

she also repeated the contents of the Agreement in her affidavit i.e.

Exh.P1. During the cross-examination, not only she remained

consistent but was not specifically cross-examined that whether the

Agreement was executed in her favour or not or whether this is a

forged document or was stolen by her. She also produced two

marginal witnesses of the Agreement i.e. Shahid Naeem and

Waseem Raza, who appeared as PW-2 & PW-3 respectively and

supported the claim of respondent No.1. The petitioner while

appearing as DW-1 admitted that he purchased a stamp-paper,

however, claimed that same had been stolen and used against him

subsequently. However, during cross-examination he categorically

admitted that the stamp-paper of Agreement was got issued by him

and signatures on front side as well as backside thereof were also

made by him. Further, on backside of the Agreement it is

specifically recorded that this is for an agreement between the

petitioner and respondent No.1 (parties) and petitioner’s signature

and his CNIC number are also mentioned there. No doubt, the

scribe and the vendor of Exh.P2 were not got examined but their

absence actually goes against the petitioner, who had to prove that

the stamp-paper was got issued for renewal of the license of

medical store and not for Agreement between the parties. Further,

the petitioner never sought cancellation of the stamp-paper or got

FIR lodged or got rapat diarized if at all his stamp-paper was

stolen, as claimed by him. The above oral and documentary

evidence proved beyond doubt that the Agreement was lawfully

executed between the parties.

Now coming to the next question that whether under the

Agreement respondent No.1 is entitled for dower amount of

Rs.4,000,000/-. There is no cavil with the proposition settled by the

Supreme Court in case of ‘Muhammad Bashir Ali Siddiqui’ supra,

followed by this Court in case of ‘Muhammad Asif’ supra (relied

upon by petitioner’s counsel) that a stringent condition cannot be

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Writ Petition No.38567/2022

imposed to keep the parties in marriage bond. However, perusal of

the Agreement (Exh.P2) shows that the petitioner agreed to pay

Rs.4,000,000/- as dower in case of divorce. This stipulation in the

Agreement is not stringent condition imposed to keep the parties in

marriage bond rather it is enhancement of the dower amount by the

husband, which is not only permissible but also executable as

discussed below.

Under Para-287 of the “Principles of Mahomedan Law” by

DF Mulla, the dower may be fixed either before or at the time of

marriage or after marriage and can also be increased after marriage.

The afore-noted Para is reproduced hereunder:-

“287. Dower may be fixed after marriage. The

amount of dower may be fixed either before or at

the time of marriage or after marriage and can be

increased after marriage.”

The Supreme Court of Pakistan in “Ghania Hassan Vs. Shahid

Hussain Shahid and another” (2016 SCMR 2170) affirmed the

above legal position and held as under:-

“An overview of the above reveals that it is not a

settled proposition of law that the dower can be

fixed before marriage and at time of marriage or

thereafter. Furthermore, the dower once settled can

always be increased by the husband or by an

agreement between the parties.”

The Apex Court also in case of “Mst. Naziran Begum through

Legal Heirs Vs. Mst. Khurshid Begum through Legal Heirs” (1999

SCMR 1171) held as under:-

“It is well-settled that under Hanfi Law a husband is

entitled to fix any amount of dower either at the time

of marriage or even subsequently and also provide

for mode of its payment.”

This Court in case of “Mst. Zainab Khatoon Vs. Amir

Abdullah Khan” (PLD 2004 Lahore 330) observed as under:-

“9. Agreement dated 26-03-1985 is not in

restraint of marriage but is a contingent document

Writ Petition No.38567/2022

increasing amount of prompt dower, in case

petitioner is divorced against her wishes or

respondent contracts second marriage. Section 26

of the Contract Act, 1872 does not cover documents

creating partial or indirect restraints on marriage,

in the sense that it does not restrict marriage though

it may adversely makes liable to do some thing or

pay some amount, in lieu of marriage. Thus an

agreement to pay a woman a specified amount, in

case of divorce or remarriage, is not in restraint of

marriage and cannot be considered, as void, being

violative of the provisions of section 26 of the Act of

1872 (ibid). In a Division Bench judgment given in

the case of Muhammad Ali v. Ayesha Khatun (AIR

1916 Calcutta 761) husband authorized his wife to

divorce him, in case of his entering into tie of

second marriage, it was held that agreement does

offend section 26 of the Contract Act, 1872.

Husband under law is competent to increase dower

amount, after marriage and this document is of this

nature and could be enforced against the

respondent. Thus the judgment and decree

impugned herein is tainted with material

irregularity and illegality, thence is not sustainable

at law.”

The same view was also expressed by the Division Bench of this

Court in “Mst. Shahida Adeeb and another Vs. Nauman Ejaz and

another” (2007 CLC 1160) in following words:-

“It is settled principle of law that in case of

Muhammadan women it is open to husband to fix

the dower amount at any time before or after the

marriage. It is further open to the husband to

increase the amount of the dower at any time during

the continuous of the marriage. For purpose of

increasing dower declaration by husband is

sufficient. Reliance has been placed on the case

reported as Chan Pir v. Fakar Shah AIR 1940 Lah.

104.”

The same view was also expressed by this Court in case of “Junaid

Ahmad Khan Shahzad Vs. District Police Officer, Muzaffargarh

and 5 others” (2021 YLR 869)

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Writ Petition No.38567/2022

10. For reasons recorded above, no illegality is found in the

impugned judgment and decree for interference in this

Constitutional Petition, whereas the respondents have made request

for withdrawal of their connected Petition, as already noted above.

11. In view of the above discussion, both these Writ Petitions are

dismissed.

(ABID AZIZ SHEIKH)

JUDGE

Approved For Reporting.

JUD

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