Limitation Periods and the Right to Dower (Mahr) in Pakistan:

Reconciling the Limitation Act, 1908 with Islamic Law and the Constitution

Zeeshan Ashraf

Mohammad Azam Hussain

Mohamad Fateh Labanieh

 

Abstract: Despite its established juristic stance, Articles 103 and 104 of the Limitation Act, 1908 (Pakistan) set a strict three-year limit for dower (mahr) claims from divorce or the husband’s death. This legislative scheme results in a conflict with Islamic jurisprudence and the constitutional mandate found in the Constitution of the Islamic Republic of Pakistan, 1973. It should be mentioned that prior literature has mainly focused on the legal and quantitative aspects of dower without giving sufficient attention to the constitutional validity of the disputed limitation clauses. Based on doctrinal legal research, this article examines Articles 103 and 104 with respect to the constitutional safeguards of property and equality guaranteed by Articles 23, 24, and 25, and the Islamisation doctrine in Article 227, adopting an interpretive approach based on three analytical perspectives: Islamic jurisprudence, superior court jurisprudence in Pakistan, and legislative comparison with several jurisdictions. The limitation period of three years is at variance with Islamic law, where dower represents a perpetual debt payable before inheritance division, thus making the limitation law unconstitutional. It is recommended to the legislature to make amendments regarding exemptions of dower claims from limitation. Further, the matter should be referred to the Council of Islamic Ideology and the Law Reform Commission of Pakistan, with a view to relaxing limitations on dower.