Khalid Pervaiz vs Samina, etc
The petitioner challenged a High Court judgment that upheld a decree for the recovery of mehr (dower) and maintenance in favour of his wife, the respondent. The core legal question was whether a husband is obligated to pay the mehr during the subsistence of the marriage, particularly when the nikahnama does not specify a mode of payment. The Supreme Court dismissed the petition, holding that the husband is legally obligated to pay the mehr upon the wife's demand, regardless of the subsistence of the marriage. The Court affirmed that the impugned judgment was in accordance with the law, noting that the petitioner's refusal to pay was untenable and constituted frivolous litigation. The Court laid down the principle that the mere filing of an appeal or challenge against a judicial decision does not render that decision ineffective or excuse non-compliance. Furthermore, the Court emphasized that courts should not hesitate to impose costs, including compensatory costs, to discourage unnecessary litigation and ensure that judicial orders are respected and complied with promptly.
- Is a husband obligated to pay mehr to his wife during the subsistence of the marriage?
- Does the filing of an appeal against a judgment automatically stay or render the judgment ineffective?
- What is the legal consequence when a nikahnama does not specify the mode of payment for dower?
- Section 2, Muslim Personal Law (Shariat) Application Act 1962
- Section 10, Muslim Family Laws Ordinance 1961
ORDER
Qazi Faez Isa, CJ. Learned counsel for the petitioner states that the petitioner had married respondent No.1 on 10 February 2017. The Nikahnama mentioned the wife's mehr (dower) to be five hundred thousand rupees. The mehr was not paid by the petitioner to the respondent No.1, who filed a suit on 8 January 2018, which was decided in her favour on 23 February 2019. The petitioner (defendant in the suit) was directed to pay to the respondent No.1 the mehr and maintenance with annual increase of ten percent. The petitioner appealed the judgment and decree of the Family Court and the learned Additional District Judge partly allowed it, by holding that the wife was not entitled to her mehr as her marriage subsisted. The wife (respondent No.1) successfully assailed the judgment of the appellate court before the High Court which restored the judgment of the learned Civil Judge.
2. The learned counsel states that since the marriage subsists the mehr is not payable. We enquired whether the mehr has since been paid to the respondent No.1 and the learned counsel states that the petitioner is paying maintenance as decreed but has not paid the mehr because the parties are still married, and since the instant petition is pending.
3. Mehr is an Islamic concept mentioned in the Holy Quran, (An-Nisa (4) verse 4 and Al-Baqrah (2) verses 236-7) and it is specifically recognised by the law of Pakistan, that is, section 2 of the Muslim Personal Law (Shariat) Application Act, 1962. Mehr has to be paid whenever demanded by the wife.
Section 10 of The Muslim Family Laws Ordinance, 1961 stipulates that: '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.'
In the case of Syed Muhammad v Mst. Zeenat (PLD 2001 SC 128) the Supreme Court held that, mehr (dower) can be demanded during the subsistence of the marriage, and that the husband is under an obligation to pay it.
4. The impugned judgment accords with the law and the learned counsel has not been able to point out any illegality therein. It transpired during the hearing that the petitioner has two wives, but the petitioner did not fulfil his obligations towards the respondent No.1 when he failed to pay the mehr demanded by the respondent No.1. The respondent No.1 had to file a suit for recovery of the mehr and maintenance, and the petitioner unnecessarily involved the respondent No.1 in litigation, which reached this Court after six and half years. This kind of frivolous litigation is paralysing the judicial system of Pakistan. The petitioner took up an untenable defence, and perpetuated it probably because costs were not imposed upon him and the courts did not insist that the decision of the Family Court should first be complied with before entertaining a challenge to it. The excuse put forward by the learned counsel that, since the decision was challenged it was not complied with, is untenable. We reiterate that if a decision is challenged it does not mean that it becomes ineffective, and need not be complied with.
5. There was no justification to assail the decision of the High Court, which was in accordance with the law. Therefore, leave to appeal is declined and this petition is dismissed. Imposing sufficient costs may have had the salutary effect to make the petitioner act reasonably. Courts should not hesitate in imposing costs, and compensatory costs too when required. We were inclined to impose substantial costs, however, the learned counsel states that the mehr (dower) will be paid to the respondent No.1 through bankers cheque/pay order/demand draft or will be deposited in the Family Court within one month. Therefore, in addition to imposing costs throughout we impose compensatory costs to the extent of one hundred thousand rupees on the petitioner considering the decrease in the value of money. If the mehr and the said costs are not paid the Family Court shall execute this order, which may include attachment of the properties of the petitioner.