Wife’s right to dower remains protected if marriage dissolved due to husband’s misconduct: LHC

LAHORE: The Lahore High Court (LHC) has ruled that a wife’s right to her dower (Haq Mehr) remains protected if a marriage is dissolved due to the husband’s cruelty or misconduct, even if the family court formally terms the decree as “Khula”.

Dismissing a petition filed by a husband challenging a family court decision that awarded 50 per cent of the deferred dower to his former wife, Justice Mohsin Akhtar Kayani issued directives to end the automatic forfeiture of dower in marital dissolution cases.

According to details, the couple married on March 18, 2022, with a deferred dower of Rs100,000.

Shortly afterwards, the wife filed a suit for dissolution of marriage, alleging that her husband subjected her to physical and verbal abuse when she demanded payment of the dower.

She alleged that her husband remained unemployed, was involved in theft and intoxication, and forcibly turned her out of the house.

A senior civil judge (family division) in Toba Tek Singh dissolved the marriage and awarded 50 per cent of the deferred dower to the wife under Section 10(4) of the Family Courts Act, 1964.

The husband challenged the dower award, arguing that after the Federal Shariat Court (FSC) struck down sub-sections (5) and (6) of Section 10 in 2022, family courts no longer had the authority to grant any part of the dower upon dissolution of a marriage.

However, Justice Kayani rejected the husband’s argument, clarifying the critical legal distinction between a divorce sought purely due to a wife’s personal aversion (Khula simpliciter) and a dissolution caused by the husband’s misconduct (Nashuz).

The judge noted that under Sections 2 and 5 of the Dissolution of Muslim Marriages Act (DMMA), 1939, if a wife proves statutory grounds such as physical, psychological, verbal or economic abuse, her dower is neither affected, reduced nor forfeited — whether prompt or deferred, paid or unpaid.

The judge added that cruelty was a civil matter to be decided on the balance of probabilities.

“A wife’s credible testimony does not require medical certificates or police reports to be acted upon by a family court,” Justice Kayani ruled.

He also observed that the family courts cannot routinely convert a suit founded on cruelty into a simple Khula decree without the wife’s explicit informed consent.

The judge maintained that an unpaid deferred dower was a debt owed by the husband and cannot be erased under the guise of Khula.

“Dower is a proprietary right arising from the contract of marriage. It is not a penalty upon the husband, nor a benefit held at the Family Court’s discretion. It cannot be forfeited, reduced or apportioned without a specific finding that the law permits it,” Justice Kayani ruled.

The judge further observed that the right to dissolve a marriage and the right to dower were separate rights.

“A decree of dissolution does not by itself decide the fate of the dower that requires its own finding, on its own evidence,” he added.

Justice Kayani highlighted that much of the confusion in trial courts arose because sub-sections (5) and (6) of Section 10 were struck down by the FSC without new legislative provisions replacing them, leading family courts to mistakenly deny women their dower across the board.

The judge further observed that there was a need for a fresh provision, drafted in the language of Section 5 of the Dissolution of Muslim Marriages Act, 1939, requiring family courts to independently record a finding on the cause of dissolution before deciding the question of dower, and making it clear that dower is not affected where a ground under Section 2 of that Act is proved.

The judge directed the LHC registrar to forward copies of the judgment to the Punjab Law and Parliamentary Affairs Department and the Law and Justice Commission of Pakistan for drafting fresh legislation explicitly protecting dower rights in dissolution cases. ...