PESHAWAR, April 27: The Peshawar High Court has ruled that a husband is liable to pay dower to his wife when she is compelled to seek dissolution of marriage on the grounds of cruelty.

The high court has ruled that the court has the powers to refuse the return of the dowered property/amount to the husband or to release him from the liability of paying dower where due to his cruelty the wife was compelled to take recourse to “khula.”

The high court made it clear that if the dissolution of marriage was on the basis of cruelty by the husband then the dower could be decreed in his wife’s favour.

A two-member bench of the court, comprising Justice Malik Hamid Saeed and Justice Shehzad Akber Khan, released detailed judgment in an appeal dismissed by the bench a few days back. The appeal was filed by Karimullah against the judgments of a family judge and a district judge whereby he was directed to hand over 15 tolas of gold ornaments as dower to his wife, Shabana, who had sought dissolution of marriage.

The dissolution was sought on the grounds of cruelty of the petitioner, Kareemullah, due to which the respondent (Shabana) had made a suicide attempt.

Advocate Essa Khan had appeared for the respondent wife and cited views of various Muslim jurists in support of his contention. He argued that where the wife was compelled to resort to ‘khula’ due to the cruelty of the husband, in that case the husband could not be relieved of his liability to pay dower to his wife.

In the judgment, authored by Justice Shehzad Akber Khan, various verses of the Holy Quran and views of the Muslim jurists are quoted.

Referring to verse 229 of Sura Baqara, the judgment states: “The Quranic verse, when carefully considered in its context, confirms entitlement upon the husband to receive consideration from wife i.e. the dower which he had paid to her, in lieu of dissolving the marriage. However, such an alternative, when looked into the light of opinion of ‘faqeeh’ (jurist of Islam) does not appear to be absolute, and can adversely be effected by the element of ‘Noshooz’ i.e. cruelty.”

The receiving of any consideration by the husband, when he was at fault of practising cruelty, was termed illegal and forbidden, the court observed.

On a logical and philosophical dimension of the matter, the court observed, it could also be argued that a husband, if left unchecked, should apprehend no loss if he, for any reason, developed a disposition to break the bondage of marriage and resorted to cruelty with a mind to compel the wife to demand ‘khula’ instead of giving her ‘talaq’.

In this way he would secure for him the benefit of retaining or getting back the dowered property/amount. Such a cruelty would undoubtedly be a purpose-oriented one of which the law and courts must take notice so as to keep the husband off the oche of cruelty, the bench ruled.

The high court held: “Where the court, through a legal, cogent and convincing evidence, comes to an irresistible conclusion that the husband, because of his machismonian attitude and displaying his masculine aggressiveness, has compelled the wife to ask for dissolution of marriage on the ground of ‘khula’, then the court shall have the power to refuse the return of the dowered property/amount to husband or to release him from the liability of payment of dower.”