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Writ Petition No. 1142 of 1974, decided on 4th July 1974.

-- S. 5 & Sched.-Jurisdiction-Dower suit-Existence of wedlock at time of suit-Not necessary for claiming dower-Dower money ---Can be claimed by heirs of deceased wife by filing suit in Family Court.

The existence of a wedlock at the time of suit is not necessary for claim ing the dower because for example an ex-wife, who is divorced, has contracted a second marriage and has children from a new husband cannot be estopped from claiming her "dower money" from her ex-husband and if she files a suit before a Judge, Family Court in that respect, she cannot be told that "since your wedlock with the ex-husband at the time of the suit is no longer subsisting, therefore, your claim has ceased to be a dower-claim and cannot be gone into by the Judge, Family Court". The nature of the claim is one thing but the time at which it is being claimed is another thing. Since the nature of the claim both in the case of an ex-wife or heirs of an ex-wife is essentially the recovery of "dower" that remains so always and the mere fact that it i3 being claimed by the heirs of the deceased wife does not detract anything from its real character. The various items of the Schedule refer to the true nature of the subject-matter of a suit and not the persons who may file or institute it.

---Nature of suit for purposes of jurisdiction of Court-Primarily to be seen from averments in plaint and not defence of defendant.

Mahr distinguishable from dower as understood in European countries and also from presents given at time of marriage and jahez.

Abdul Kadir v. Salima and another (1886) 8 All. 149 ref.

Mian Muzaffar Ahmed for Petitioner.

The petitioner entered into a love-marriage with Mst. Tabassum Nawaz (predecessor-in-interest of respondents) on 25-10-1970, as pleaded in the writ petition against the wishes of her parents. Unfortunately, she was murdered on 8-3-1971, and the petitioner was challaned and tried for her murder but was acquitted by the learned Addl. Sessions Judge, Lahore on 11-3-1974. The father, mother, sister and brothers of the deceased (wife) on 17/20-11-73 instituted a suit before the Judge, Family Court, Lahore, for the recovery of the dower amount of Rs. 10,000.00. The suit was resisted by the petitioner (husband) on the ground that it being essentially a suit for claim to the inheritance of the deceased was not maintainable in the Family Court. The learned Judge, Family Court rejected this plea by means of his interim order, dated 4-3-1974. The husband has come up in writ petition against the aforesaid order to this Court.

2. The law relevant on the subject is contained in section 5 of the West Pakistan Family Courts Act XXXV of 1964, which reads as follows;-----

"Section 5. Jurisdiction.-Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, bear and adjudicate upon matter specified in the Schedule."

The Schedule referred to in section 5 which is appended to the Act contains the following matters, viz:

(1) dissolution of marriage, (2) dower, (3) maintenance, (4) resti tution of conjugal rights, (5) custody of children, and (6) guardianship. Reading these two provisions of law together, it is evident that the suit for recovery of "dower" is essentially within the exclusive jurisdiction of the Family Court. Learned counsel submitted that "dower remains "dower" so long as the wife is in wedlock but after cessation of that relationship or after her death it can no longer be called "dower" but only a debt due to an ex or a deceased wife and debts due to (confining the point to the facts of this case) an ex-wife whatever their nature, do not fall within the scope of the jurisdiction of the Family Courts. The contention has no merit. The existence of a wedlock at the time of suit is not necessary for claiming the dower because for example an ex-wife, who is divorced, has contracted a second marriage and has children from a new husband cannot be estopped from claiming her "dower-money" from her ex-husband and if she files a suit before a Judge, Family Court in that respect, she cannot be told that since your wedlock with the ex-husband at the time of the suit is no longer subsisting, therefore, your claim has ceased to be a dower- claim and cannot be gone into by the Judge, Family Court. The nature of the claim is one thing but the time at which it is being claimed is another thing. Since the nature of the claim both in the case of an ex-wife or heirs of an ex-wife is essentially the recovery of "dower" that remains so always and the mere fact that it is being claimed by the heirs of the deceased wife does not detract anything from its real character. The various items of the Schedule reproduced above, refer to the true nature of the subject-matter of a suit and not the persons who may file or institute it. Again the nature of a suit for purposes of the jurisdiction of the Court is primarily to be seen from the averments in the point and not the defence of the defen dant. Another thing to be kept in view is as to what is a Mahr in Muhammadan Law. Mohr has to be distinguished from dower a ' understood in European countries as well as from other presents given at the time of the marriage by (a) strangers, (b) the husband to the bride, or (c) to the bride from her father as Jahez. In Abdul Kadir v. Salima and another (1886) 8 All. 149 (157), it was laid down that, "dower is not the exchange or consideration given by the man to the woman for entering into the contract ; but an effect of the contract, imposed by the law on the husband as a token of respect for its subject, the woman." It is well-known that for instance where husband dies, the surviving wife can still claim her Mahr and the nature of this claim is not changed merely due to the demise of the ex-husband. Rather death of either party is an event which renders the Mahr payable instead of (as submitted by the learned counsel, bringing any change in its incidents or characteristics.

3. The upshot of the above discussion is that the view taken by the learned Judge, Family Court that the suit in the circumstances of the case was essentially for dower and was maintainable before him, is unexception able and calls for no interference by this Court. The writ petition has no merit and is dismissed in limine.

S. A. H. Petition dismissed.

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