Case of ‘first impression’: Dower can’t be a conditional promise or consideration, has to be absolute

ISLAMABAD: Deciding a case of ‘first impression’ – a legal issue that has never previously been decided and has no precedent -- the Islamabad High Court (IHC) has ruled that mehar (dower) cannot be a conditional promise or consideration and it has to be absolute, even though it may be deferred (mu’wajjal). In a first-of-its-kind judgment, authored by Justice Aamer Farooq, it was ruled that mehar or dower need not be in the form of tangible goods but can also be in the form of services as per the Holy Quran, Sunnah and case law. One Tehreem Aamir contracted marriage on June 13, 2014. The two parties to the marriage mentioned dower in their Nikahnama of the sum of Rs 5,000 along with expenses to be incurred in the shape of ziarat (pilgrimage) to the holy sites in Iraq, Iran and Syria and the performance of Hajj. Due to a marital dispute, the relationship could not continue for long, and the lady was divorced after some five months.

She filed a suit for the recovery of her dower amounting to a sum of Rs1.2m as expenses for performing ziarat and Hajj; dowry articles of the sum of Rs 229,600 and maintenance at the rate of Rs10,000 per month as well as five tolas of ornaments at the prevailing market rates. In November, 2016, the family court decided the case whereby the claim to the extent of dower was turned down on the basis that the promise to take the spouse for ziarat is not dower and is actionable before the courts of plenary jurisdiction; the claim, to the extent of dowry articles, was also rejected partially; maintenance for the iddat period was awarded and the recovery of five tolas of gold was also decided in her favour. Her appeal against this judgment was dismissed by the additional district judge of Islamabad. She then approached the IHC.

The IHC verdict said that the former husband had argued that he is not a person of means and no evidence was presented by her as to the conditionality that he has the means to pay. The conditional aspect of the promise takes the clause [of the Nikahnama] out of the ambit of ‘dower’ and, as has been rightly observed by the trial and appellate courts, that it is an actionable claim. Even if it is regarded that it is dower, she has still not presented any evidence about the means of her former spouse in support of her claim.

Since the case involved a one-of-its-kind question on which no judgment of any superior court was available, the IHC appointed prominent lawyer Kashif Malik as the amicus curiae and later nominated advocates Ali Raza and Khalid Mahmood for assistance on the point.

Tehreem Aamir’s lawyer contended that the promise to take her on ziarat and Hajj was part of the dower, hence fell within the jurisdiction of the family court and ought to have been granted. He argued that since she cannot now travel alone without a mehram [a close family member with whom marriage is considered illegal], the cost of travelling for two persons is approximately Rs1.2m. He submitted that the claim of dowry articles has been denied unjustifiably, as cogent evidence was presented in the court.

Kashif Malik contended that marriage in Islam was a legal contract between two parties on the terms and conditions agreed between them; that no amount has been fixed in Shariah for the dower and it depends upon the norms of the society and whether or not it is affordable for the male. For his argument, he relied on various Surahs of the Holy Quran. He also referred to the Ahadees on the subject to substantiate that it is not essential that dower is only a tangible item or something which can be quantified in money terms.

The IHC noted that in the nikahnama, along with a sum of Rs 5,000 as dower it was mentioned that the husband would take the lady for ziarat to different countries, if he has the ability to do so, and for the performance of Hajj. Taking the spouse for ziariat and Hajj falls within the concept of ‘dower’ per se, however, it can be seen from the nikahnama that a rider has been added that ‘if the husband has the ability to do the same’.