Infertility no ground to deny woman dower or maintenance: SC

Business Recorder

4 days ago

ISLAMABAD: The Supreme Court declared that infertility is no ground to deny a woman her dower or maintenance, and certainly no ground to challenge her womanhood.
A two-judge bench, headed by Chief Justice Yahya Afridi heard an appeal against the judgment of the Peshawar High Court (PHC).
According to the lis, the petitioner-husband (Saleh Muhammad) and the respondent-wife (Mst Mehnaz Begum) were engaged in 2003, and their Nikah was solemnized in 2006. In 2007, the respondent was left at her parental home by the petitioner.
The respondent in 2015 initiated a suit for recovery of her dower, dowry articles, and maintenance. The petitioner, rather than contesting the claim of the respondent on any credible ground, persisted in advancing a line of argument that the respondent was medically unfit to perform conjugal rights and bear children, and hence disputed her status as a 'female' under the law, thereby seeking to deny her dower and maintenance altogether.
All the courts below, ie, trial court, District and Sessions Court and the PHC delivered judgments in favour of respondent, refuting the respondent's allegation, on the basis of reports of medical boards, which were prepared after the respondent had to undergo invasive medical examinations. The medical report prepared on the direction of the PHC conclusively and categorically affirmed that the respondent is indeed a female, with no features or characteristics suggesting otherwise. The report did not yield any conclusive determination to the question of infertility.
The judgment authored by Justice Yahya said: 'It is a sorrowful truth of our society that infertility, or even the suspicion of it, is often weaponised against women. This social prejudice routinely results in courts of law becoming venues for humiliating a woman under the guise of litigation.'
The judgment without equivocation acknowledged 'that infertility, even if present, is no ground to deny a woman her dower or maintenance. It is certainly no ground to challenge her womanhood. To convert such personal pain into a legal weapon is not only an abuse of the process, but an affront to human dignity that should not be enabled.'
It said; 'The holy Quran has described the spouse as a garment; the relationship between a husband and wife is likened to that of libaas in our religion, and therefore, the ideals of protection, mutual respect, and dignity in marriage must not be compromised in any event.'
It declared that the courts cannot, and will not, be passive venues for the perpetuation of social prejudices that harm women and subject them to one trauma after the other. It is not a matter of judicial discretion but of constitutional and moral obligation that the personal dignity of all who appear before the courts be duly safeguarded, particularly where the power imbalance between the parties is so manifest.
The petition was dismissed with costs of Rs500,000, imposed primarily as an expression of the strong disapproval of this Court towards the misuse of judicial process by the petitioner to inflict gratuitous humiliation upon the respondent, which shall be paid to the respondent. The judgment said if the said amount of costs is not paid by the petitioner, the same shall be recovered by way of arrears of land revenue.
The Court hoped that this order serves as a reminder to all litigants and counsel that the dignity of every individual, particularly of women, must be respected in all judicial proceedings. Frivolous allegations attacking the personal identity and dignity of a woman will not be countenanced in any court of law.
Copyright Business Recorder, 2025