Recovery of Dowry According to Islam and Pakistani Law

Recovery of Dowry According to Islam and Pakistani Law

This piece of research has been divided into two parts:

Part I. Concept of dowry in Islam;
Part II. Pakistani laws related to dowry (statutory law and case-law of superior judiciary in Pakistan).

PART I

1. Concept of dowry in Islam and historical background of dowry in the Subcontinent

Dowry, which was usually referred to as having two types, was either demanded (mandatory dowry) or given as a gift to the bride by her family (discretionary dowry). The sort of dowry that needed to be paid by the bride’s side of the family to the groom, before or after the solemnization of marriage (kaniyadaan) meant that it was a “gift to the girl”, a Sanskrit word and concept that has existed in the Hindu religion according to history and paid by the bride’s family to the groom in order to support the financial status of the groom. It was mandatory because there was no specific inheritance share for girls in the Hindu undivided family system. Yet, it was still considered to be immoral to demand dowry from a bride’s family.

It was later manipulated and people began to be demand expensive gifts, cash and kind from the brides’ families, who were often pressurized, tortured, divorced, even burnt alive or attacked with acid. Domestic violence is a routine matter in such cases and is carried out not only by the husband but other family members of the husband as well. The plight of women cannot be ignored, especially in regards to in Ind0-Pak subcontinent.

Sources have stated that the sort of dowry that is demanded as a mandatory entitlement is part of Hindu customs which have nothing to do with Islam – there is no concept of demanding a mandatory dowry in Islam. After the advent of Islam, Muslims of the Indo-Pak subcontinent “Islamized” the concept and called it “jahez”. This comes from the Arabic word ‘tajheez‘ which means to prepare someone for a journey. The goods prepared are called ‘jahazun‘. Following these, the Urdu word ‘jahez‘ was coined, as the Muslims of the Indo-Pak subcontinent were basically Hindus who later converted as Muslims and continued to follow some of their customary traditions with slight variations i.e. the traditional wedding gifts in the form of cash and kind still continued but without the groom or his family demanding them. Justifying this act, they argued that Prophet Muhammad (peace be upon him) also gave gifts to his daughter Fatima Zahra (R.A), even though they were simple household gifts but the concept is still alive of giving gifts to daughters on the occasion of their marriage, while supporting the groom’s financial status is still used as a justification.

While Islam has not restricted the giving of gifts to one’s children on their wedding, these gifts must not be excessive in any way. According to Islamic injunctions, there is no such concept of dowry that is mandatorily gifted to a daughter at the time of her marriage – such a concept of dowry is a moderated form of the dowry that is demanded which is, no doubt, a curse upon social values. Unfortunately, the practice of mandatory dowry still exists in certain remote areas of Punjab and Sindh in Pakistan, even when this practice has absolutely nothing to do with Islam, rather it goes against the very injunctions of Islam.

While the other form of dowry is based upon the discretion of the bride’s family and up to them whether to gift their daughter, the gifts should not be excessive or too expensive, as Prophet Muhammad has said,

“The best of the marriages is one which is least burdensome in the financial sense to the families of the bride and the groom.”

Unfortunately, because of the cruel tradition of demanding dowry, the bride’s family feels obligated to gift expensive things to impress the groom’s family.

2. Whether the recovery of dowry articles is a matter of right for the wife

As a gift in Shariah is considered to be a legal disposition, according Shafi’i jurists it is recoverable under all circumstances, while the Hanafis, whose rulings are generally upheld by the courts in most Islamic countries, take the view that a betrothal gift is recoverable like any other gift and that unless the gift has increased in value, been disposed of or destroyed, the donor is entitled to revoke it.

According to a case (2016 CLC 1473 Shariat court AJ&K), a gift or benefit was, in essence, a bounty from one person to another. When the ingredients of a ‘gift’ were completed, the same would become irrevocable. When the possession of gifted property was handed over to the donee, the donor could not claim a return or recovery of the same.

3. Whether the ownership of dowry articles vests with the wife

According to Section 5 of the Dowry and Bridal Gift Restriction Act 1976, alll property given as dowry or bridal gifts and all property given to the bride as a present shall vest absolutely in the bride, and her interest in the property however derived shall hereafter not be restrictive, conditional or limited.

In the light of the preceding issue-based analysis, it is clear that the concept of demanding dowry or the mandatory form of dowry has nothing to do with the injunctions of Islam and is a purely traditional practice that has stemmed from the early history of the subcontinent. Islam is not against giving gifts to a bride on the occasion of her marriage as long as they do not exceed or go beyond the limits prescribed by Allah. On the other hand, the gifts which have been given to a bride by her family, are supposed to be the exclusive belongings of her as a wife, hence she is the sole owner of those belongings in light of Islamic jurisprudence, statutory laws and rulings of the superior judiciary as mentioned supra.

PART II 

Pakistani laws related to dowry (statutory law and case-law of superior judiciary in Pakistan from 2008-2017):

1. Definition of dowry articles according to contemporary laws enforced in Pakistan (sections and case-law):

Dowry and Bridal Gifts (Restriction) Act 1976, Section 2(b) defines dowry in the following terms:

“…any property given before, at or after the marriage either directly or indirectly, to the bride by her parents in connection with the marriage but it does not include property which the bride may inherit under the laws of inheritance and succession applicable to her.”

2. Whether recovery of dowry articles shall be treated differently than other recovery suits

According to Shafique Sultan vs Asma Firdous, a husband contended that his ex-wife had not brought any dowry articles with her, as she had no proof of them except for a list of those items prepared later during the filing of a khula petition before the family judge. The Supreme Court decided that the principles of Qanoon-e-Shahadat Order and Civil Procedure Code (CPC) were not stricto sensu applicable to family cases and decided in favour of the respondent (wife) (SCMR 2017 393. SC).

3. Whether the laws and the decisions of courts to recover dowry articles are pro women

Section 17 of the West Pakistan Family Court Act 1964:

“Provisions of Evidence Act and Code of Civil Procedure not to apply —
(1) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872, and the Code of Civil Procedure, 1908, [except sections 10 and 11] shall not apply to proceedings before any Family Court.”

Muhammad Saleem Akhtar vs Judge Family Court etc.

In this case, it was held that admissibility of the list of dowry articles without its scribe could not be questioned on the ground of being violative of Qanoon-e-Shahadat Order 1984, since under section 17 of Family Courts Act 1964, provisions of Qanoon-e-Shahadat Order 1984 are not applicable to Family Court proceedings. Moreover, a violation of the provisions of Dowry and Bridal Gifts (Restriction) Act could not be used as a basis to challenge the dowry decree passed by the Family Court when that point was not taken up in the pleadings nor was any issue framed for that proposition. Furthermore, it was not necessary in all circumstances and events to produce more than one witness to prove a case – the sole statement of any party, if it inspired confidence, could be relied upon for the purposes of adjudication of the case. It was also held that the quality of evidence had to determine the fate of a case regardless of considering the quality of the decision of the case (NLR 2004 SD 576).

Muhammad Akram vs Shahida Parveen

This case held that in a suit for restitution of specific dowry articles, an option was generally available to the husband/defendant to either deliver the articles or make a payment equivalent to their value. The family court would also be right in directing the husband/defendant to make a payment corresponding to the price of dowry articles if they had been mercilessly used or were in a damaged condition (NLR 2004 SD 1051).

Zafar Iqbal vs Tahira Parveen

This suit was about alternatively recovering the value of dowry articles. The plea of the wife was that a motorcycle had been paid for by her father and purchased through her brother, which was given to her at the time of marriage and was sold by her husband for PKR 50,000. The husband’s plea was that his brother-in-law had offered the motorcycle to him for selling, which he had purchased as he was a dealer of motorcycles and subsequently sold to someone else. The High Court in this constitutional petition added the price of the motorcycle (PKR 50,000) to the amount of decree passed by the Family Court and the Supreme Court held it to have been correctly added after finding that the motorcycle had been given to the wife at the time of marriage as a dowry article, which had been sold by her husband for PKR 50,000. No illegality or jurisdictional defect was found in the impugned judgment. The controversy was merely factual in nature and did not involve any question of law, so the petition was dismissed (2006 SCMR 662).

Zulfiqar Ali vs Musarrat Bibi (SC.DB)

In this case, the husband claimed to have returned the dowry articles to the wife and relied upon the agreement signed by two brothers of the wife. The appellate court did not accept the agreement and directed the husband to return the articles, as the wife was not a party to the agreement and the husband could not show any authority given by the wife to her brothers to enter into that agreement with the husband. The judgment of High Court affirming the conclusion reached by the appellate court was not open to any exception and the leave to appeal was refused (2006 SCMR 1136).

Muhammad Habib vs Safia Bibi

In this case, the recovery of dowry articles by a divorced wife was decreed by the Family Court and the decreed amount was modified and enhanced by the appellate court. The contention of the husband was that no list of dowry articles was prepared at the time of marriage and that it was fabricated subsequently in the absence of valid receipts of purchase of the said articles, therefore the suit could not have been decreed and that appellate court was not legally justified to modify the decree passed by the Family Court and enhance the amount. However, the list of articles revealed those articles that were ordinarily given to a bride at the time of her marriage. Moreover, no illegality or irregularity had been pointed out in the concurrent findings of facts recorded by the two courts below. Thus, it was held that there were cogent and sound reasons for interference by the Supreme Court. The impugned order did not suffer from any legal discrepancy nor any substantial question of public importance was involved in the petition against such order (2008 SCMR 1584; section 5, Schedule 14 West Pakistan Family Courts Act).

Amiran vs Additional District Judge Bhakkar (Lahore)

S.5 Sched. & S.14 W.Pak. Family Courts Act. This suit for the recovery of dowry articles was concurrently dismissed by the Family Court and appellate court on the grounds that the wife was not able to adduce even a single witness in support of her contention and in such circumstances was not entitled to a claim of dowry articles. The plaintiff had specifically stated the names of the articles and gold ornaments given to her by her parents at the time of her marriage. She also had given the price of the said articles. However, the respondent and his counsel had not challenged or cross-examined them in the statement given by the plaintiff, thus, there was every reason in the circumstances to believe that the defendant had admitted the claim of the plaintiff. The defendant could not prove, for instance, that the dowry articles given to the plaintiff by her parents had already been taken away by her. Sufficient evidence was available on record to establish that the dowry articles given to the plaintiff by her parents were still at the defendant’s house. The Family Court had wrongly decided against the plaintiff on the grounds that she could not produce any other witness in support of her contention. The lower courts had totally ignored the facts available on record and the fact that the defendant also failed to produce any other witness to rebut the contention of the plaintiff. The findings concurrently recorded by the lower courts were totally unjustified, illegal, void ab initio and against the settled principles of law. The concurrent judgments and decrees passed by the lower courts were set aside and the plaintiff was held to be entitled to recover her dowry articles (2009 MLD 691).

Dr. Ali Chohan vs Ms. Fakhar-un-Nisa

This suit by a wife for the recovery of dowry articles was initially dismissed by the Family Court but the appellate court decreed otherwise. Counsel for the respondent resisted that the list of articles submitted as evidence was fake and concocted, hence coud not be admissible. The High Court decided the case in favour of the wife and held that the attached list exhibited in evidence was without objection and reservation – once a document had been exhibited in evidence without objection from the other side, no subsequent objection in respect of its admissibility could be taken (2009 CLC 255 PWR).

Humera Naseem vs ADJ Burewala, District Vehari

This was a suit filed by a wife for the recovery of dowry articles while the husband contended in the appellate court that the list of dowry articles did not bear the signatures of the trial court. The court held that it was a mistake on the part of the presiding officer who did not sign and the parties could not be penalized for it. Judgment of the appellate court was set aside and judgment of the trial court was restored (2010 YLR 848 LHR).

4. What is the “ordinary residence” of the wife?

The proviso in section 6 of the West Pakistan Family Court Rules 1965 covers the statutory provisions on the matter. The following case-law also explains it:

Shakeel Ahmed vs ADJ Lahore

Ordinary residence could not be determined through hard and fast rules. The “intention” of the wife to stay at a particular place was material and not the “length” of stay (2008 PLD 410 LHR).

Muhammad Ismail vs Judge Family Court Rahim-Yar Khan.

Ordinary residence referred to a place which had been taken up by the plaintiff with her own choice and with an intention to live in (2009 YLR 1700 LHR).

Conclusion

In conducting this research, the writer went through cases from 2008 to 2017 regarding the specific issues pertaining to the recovery of dowry articles and found that the maximum number of cases had been decided in favour of the wife and only a few cases were found in favour of the husband. Thus, it may be concluded that our laws and the decisions of the superior judiciary are pro women in Pakistan, which is justified and not unfair owing to the plight they have to go through in our society.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.