Case the recovery of widow’s dower amount

Name:	Mushtaq and others v. Mst. Fatima and others
Citation:	2025 SCP 43
Judges on the Bench:	Justice Yahya Afridi, Chief Justice Justice Shahid Waheed, Judge
Parties:	Petitioners: Mushtaq and others Respondents: Mst. Fatima and others
Date of hearing:	31.01.2025
Court:	Supreme Court of Pakistan

Facts:

Mst. Fatima, the widow, of the deceased (Akhter Alam), filed a suit for the recovery of her dower, which consisted of three items: four tolas of gold ornaments, a five-marla constructed house, and a monetary amount of Rs. 5,000. This claim was founded upon Dower Deed No. 38, executed at the time of marriage on January 29, 2011. The Family Court dismissed her suit, the decision was based on non-compliance with Article 79 of the Qanun-e-Shahadat, 1984, which mandates atleast two attesting witnesses must be produced to establish the execution of financial document. The First Appellate Court also upheld this decision. Subsequently, Mst. Fatima challenged the decision in the Peshawar High Court, which overturned the lower courts’ decisions. The defendants, siblings of the deceased husband, then challenged the High Court’s ruling before the Supreme Court of Pakistan.

Issues:

1). Whether the strict evidentiary requirements of Article 79 of the Qanun-e-Shahadat,1984, apply to family cases concerning dower claims.

2). Whether the High Court was justified in overturning the decisions of the lower courts in favor of the widow’s dower claim.

Decision:

The Supreme Court dismissed the present petition filed by the siblings of the deceasedand refused leave to appeal, thereby upholding the widow’s right to her dower as stipulated in the dower deed.

Ratio Decidendi:

The Supreme Court held that in family cases, the evidentiary standards are relaxed compared to general civil suits. The court established decision on the following reasons:

1. Section 17 of The Family Courts Act, 1964, exempted the requirement under Article 79 of Qanun-e-Shahadat and provides a more flexible approach to proving claims related to dower.
2. Under Article 79 of Qanun-e-Shahadat, general civil suits require at least two attesting witnesses, but family cases do not require two attesting witnesses to prove a dower deed.
3. Once the execution of a dower deed is established, a non-rebuttable presumption arises regarding its enforceability.
4. The burden of proof shifts to the defendant to prove that the dower has been paid. Since the defendants failed to provide any rebuttal evidence, the widow’s claim stood proven.

Arguments summary:

Petitioners’ Argument: It was argued that the dower deed could not be enforced due to non-compliance with Article 79 of the Qanun-e-Shahadat, 1984, which requires two attesting witnesses to prove a financial document.
Respondent’s Argument: The respondent argued that Section 17 of The Family Courts Act, 1964, provides a more flexible approach to proving claims related to dower and that the strict evidentiary standards of the Qanun-e-Shahadat do not apply to family matters.

Conclusion:

This judgment reinforces the principle that family disputes are governed by a distinct legal framework that prioritizes fairness over strict technical requirements. It affirms that a dower deed is enforceable unless rebutted by clear evidence and that High Courts have the authority to correct misinterpretations of family law by lower courts.