ASIF MEHMOOD vs ADDITIONAL DISTRICT JUDGE S — 2025 CLC 1074 LAHORE-HIGH-COURT-LAHORE

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ASIF MEHMOOD VS ADDITIONAL DISTRICT JUDGE S. 10(5)---Deferred dower---Post Khula entitlement---Khula based on misconduct---Wife not bound to return dower---Dower payable upon consummation---Principles---Long duration of marriage---Dower as security and compensation for commitment---Legal question was raised by the petitioner (husband) before the High Court regarding recovery of dower that as the marriage was dissolved on the basis of khula, the respondent (wife) was barred from claiming recovery of dower---It was imperative aspect of the case that subsections (5) and (6) were added to S. 10 of the Family Courts Act, 1964 through the Punjab Family Courts (Amendment)) Act, 2015 which became effective on 18.03.2015 ---However, subsections (5) and (6) of S. 10 have been declared as repugnant to the Injunctions of Islam by the Federal Shariat Court w.e.f. 01.05.2022---So, Ss. 10(5) & 10(6) of Family Courts Act, 1964 were not in force at the time of passing of order in the instant case qua dissolution of marriage on the basis of khula on 25.05.2022---The courts below by way of impugned judgments and decrees concurrently held the respondent entitled to the recovery of entire amount of deferred dower, which findings were under challenge by the petitioner on the ground that as the respondent herself sought khula, she could not be held entitled to the recovery of deferred dower---The question for determination before the High Court in view of the above backdrop was the impact of khula on wife's entitlement to dower---Islamic law recognized khula as a method for the dissolution of marriage, analogous to talaq, but they differ significantly on their initiation, procedures and consequences---Talaq is primarily the right of the husband to unilaterally dissolve the marriage---In case of talaq, the husband is precluded from claiming the dower, gifts or other benefits which he had already given to the wife---Khula is initiated by the wife with the consent of the husband, or where the husband does not consent, by a judicial decree that is obtained on the wife's application---In khula, the wife may be required to give some consideration to the husband for her release from the marital bond---This consideration to be paid by the wife in a khula is a matter of agreement between the parties or determination by the Court, based on the specific circumstances of the case---When it comes to the rules for such determination by the court, it has been held by the Federal Shariat Court that where wife obtains khula merely on the basis of disliking against the husband the dower received by the wife is returnable, however, where wife seeks khula due to fault on the part of the husband by providing reasonable justification, it is not valid to require her to return the dower already received by her---In such eventuality, it is on the Court to determine, keeping in view facts and circumstances of the case, that how much return of the already received benefits by the wife would be appropriate, therefore, the return or surrender of dower by the wife is not an automatic consequence in each and every case of khula---In order to determine entitlement of a wife seeking khula to the claim of deferred dower, key consideration is the reason for her seeking khula---Where a wife seeks khula on the ground of disliking against the husband, without any fault on the part of the husband, she loses her right to deferred dower in the same way as in the case of prompt dower---Conversely, if the husband's conduct compels the wife to seek dissolution then she retains her entitlement to the deferred dower---In the instant case the respondent obtained the decree for dissolution of marriage on the basis of khula---Nonetheless, the crucial factor to determine was what prompted the respondent to seek dissolution of marriage---In the plaint as well as her examination in chief as PW1 the respondent levelled allegations of bad conduct and disrespectful behavior of the petitioner towards her, which prompted her to seek dissolution of marriage and to that extent her testimony was not discredited in cross-examination by the petitioner---As per para 289-A(a) of Principles of Muhammadan Law by D.F. Mulla, dower becomes confirmed by consummation of marriage---Para 336(2) further provides that if the marriage was consummated the wife then becomes entitled to immediate payment of whole of the unpaid dower, both prompt and deferred---These rules have been delineated in compliance of the command in verses Nos. 20 and 21 of Surah Al-Nisa---In the instant case, the marriage between the petitioner and respondent subsisted for almost nine years and during this long period the respondent / wife fulfilled her marital obligations---The deferred dower is also seen as a form of security and compensation for the wife for her commitment during the marriage---After such a long period of marriage, it would be inequitable to deny full amount of the deferred dower to wife, especially when the dissolution was sought due to cruelty and bad behavior and conduct on the part of the petitioner---For the foregoing reasons, impugned judgments and decrees were upheld and the petition at hand was dismissed being devoid of any merits.

ASIF MEHMOOD vs ADDITIONAL DISTRICT JUDGE S — 2025 CLC 1074 LAHORE-HIGH-COURT-LAHORE

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