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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 &

Mr. Shahzad Hussain Goraya, Advocate.
2 by

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.
2. 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
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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.
3. 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).
4. 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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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.
5. 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.
6. 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.
7. 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.
8. 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.”

9. 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
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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.

JUDGE
Arsalan