DOWER (MAHR)
ORIGIN—
In old pre-Islamic Arabia, when the institution of marriage as we know it today was not developed, many forms of sex relationships between man and woman were in vogue. Some were temporary and hardly better than prostitution. Men, after despoiling their wives, often turned them out, absolutely helpless and without any means, The ancient custom to settle certain sums for subsistence of the wife in the event she was turned out was often disregarded, as there was no organised system of law. Thus, neither of the wives could get a dower. False accusation of unchastity were frequently used to deprive the wife of her dower.
In the so called Beena marriage, where the husband visited the wife but did not bring her home, the wife was called Sadiqa or female friend, and a gift given to wife on marriage was called, Sadaq. In Islam Sadaq simply means a dowry and is synonymous with Mahr. But originally the two words (Sadaq and Mahr) were quite distinct. Sadaq was a gift to the wife in the Beena form of marriage and mahr was a gift or compensation to the parents of the wife in the baal form of marriage.
abolished this ancient custom and forbade unjust acts towards the fair sex, as is evident from the Quran. “If you separate yourself from your wives, send them away with generosity it is not permitted to you to appropriate the goods you have once given to them”.
Thus, the custom originated in ancient times with the payment which husbands often made to their wives as means of support in their old age or when turned out by them.
In Islamic law Mahr belongs absolutely to the wife.
DEFINITION—
Mahr or dower is a sum that becomes payable by the husband to the wife on marriage, either by agreement between the parties or by operation of law.
According to Mulla, Dower’ is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. The word ‘consideration is not used in the sense in which the word is used in the Indian Contract Act. it’s an obligation imposed upon the husband as a mark of respect to the wife.
Hon’ble Justice Mahmood has said in Abdul Kadir v. Salima that ‘Dower under the Muslim law is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of marriage, and even where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the wife’.
According to Ameer Ali “Dower is a consideration which belongs absolutely to the wife.
NATURE OF DOWER—
Dower in the present form was introduced by the Prophet Muhammad and made obligatory by him in the case of every marriage.
THE OBJECT OF DOWER—
The object of dower is three-fold:
to impose an obligation on the husband as a mark of respect of the wife;
to place a check on the capricious use of divorce on the part of husband; and
to provide for her subsistence after the dissolution of her marriage, so that she may not become helpless after the death of the husband or termination of marriage by divorce.
FIXATION OF MAHR—
It is advisable that Mahr (dower) should be fixed in terms of gold or silver so that the rights of women are fully protected in the event of fall in the values of currencies.
INCREASE OR DECREASE OF DOWER—
The husband may at any time after marriage increase the dower.
Likewise, the wife may remit the dower wholly or partially.
A Muslim girl who has attained puberty is competent to relinquish her Main although she may not have attained majority (18 years within the Indian Majority Act). The remission made by the wife, should be with free consent. The remission of the Mahr by a wife is called Hiba-e-Mahr.
CLASSIFICATION OF DOWER—
1. SPECIFIED DOWER (MAHR-I-MUSAMMA).
(Specified dower is again divided into these two categories)
a. prompt dower, and
b. deferred downer.
2. CUSTOMARY/PROPER DOWER (MAHR-I-MISL).
1. SPECIFIED DOWER—
If the amount of dower is stated in the marriage contract, it is called the specified dower.
Dower may be settled by the parties to the marriage either before the marriage or at the time of the marriage or even after the marriage. If a marriage of a minor or lunatic boy is contracted by a guardian, such guardian can fix the amount of dower.
Dower fixed by the guardian is binding on the minor boy and he cannot on attaining the age of puberty take the plea that he was not party to it. Even after the marriage of such minor or lunatic boy, the guardian can settle the amount of dower, provided that at the time of settlement of dower, the boy is still minor or lunatic.
The husband may settle any amount he likes by way of dower upon his wife, though it may leave nothing to his heirs after payment of the amount.
But he cannot in any case settle less than ten dirhams (the money value of 10 dirhams is between 3 and 4 rupees) according to Hanafi Law and 3 dirhams according to Maliki Law.
Shia Law does not fix any minimum amount for dower
For those Muslim husbands who are very poor and not in a position to pay even 10 dirhams to the wife as dower, the Prophet has directed them to teach Quran to the wife in lieu of dower.
At present there is no limit to the maximum amount of dower.
specified dower is again subdivided into—
Prompt Dower (muajjal mahr).
Deferred Dower (muwajjal mahr).
PROMPT DOWER (MUAJJAL MAHR)
Prompt Dower (muajjal mahr) is payable immediately after marriage on demand. According to Ameer Ali a wife can refuse to enter into conjugal domicile of husband until the payment of the prompt dower.
If the wife is minor, her guardian may refuse to allow her to be sent to the husband’s house till the payment of Prompt Dower. In such circumstances, the husband is bound to maintain the wife, although she is residing apart from him.
Prompt dower does not become deferred after consummation of marriage, and a wife has absolute right to sue for recovery of prompt dower even after consummation.
After consummation, she cannot resist the conjugal rights of the husband if the prompt dower has not been paid by him. Instead of refusing to decree the suit for restitution of conjugal rights to which the husband is entitled, if marriage is consummated, the court may pass a decree conditional on payment of dower.
As the prompt dower is payable on demand, limitation begins to run on demand and refusal. The period of limitation for this purpose is three years. If during the continuance of marriage, the wife does not make any demand, the limitation begins to run only from the date of the dissolution of marriage by death or divorce.
Although prompt dower, according to Muslim law, is payable immediately on demand, yet, in a large majority of cases it is rarely demanded and is rarely paid.
DEFERRED DOWER
Deferred dower is payable on dissolution, of marriage either by death or divorce. But if there is any agreement as to the payment of deferred dower earlier than the dissolution of marriage such an agreement would be valid and binding.
According to Ameer Ali generally in India dower is a penal sum with the object to compel husband to fulfil marriage contract in its entirety.
The following points must be noted regarding deferred dower:
Deferred dower is payable on dissolution of marriage by death or divorce. But if there is any agreement as to the payment of deferred dower earlier than the dissolution of marriage such an agreement would be valid and binding.
The wife is not entitled to demand payment of deferred dower (unless otherwise stipulated), but the husband can treat it as prompt and pay or transfer the property in lieu of it. Such a transfer will not be void as a fraudulent preference unless actual insolvency is involved.
The widow may relinquish her dower at the time of her husband’s funeral by the recital of a formula. Such a relinquishment must be a voluntary act of the widow.
The interest of the wife in the deferred dower is a vested one and not a contingent one. It is not liable to be displaced by the happening of any event, not even on her own death and as such her heirs can claim the money if she dies.
Thus, The, amount of dower is split into two parts (1) one is called ‘prompt which is payable on demand, and (2) other is called ‘deferred’, which is ‘payable on dissolution of marriage by death or divorce.
The prompt portions of the dower may be realised by the wife at any time before or after consummation. Dower which is not paid at once may be for that reason be described as deferred dower but if it is postponed until demanded by wife, it is in law prompt dower but deferred dower does not become prompt merely because the wife demands it.
If the Kabin-nama, the marriage contract deed, fixes the amount of dower but fails to show what portion of it will be prompt and what deferred dower, according to Allahabad and Bombay High Courts the proportion between the two should be fixed on the basis of (i) position of wife, (ii) custom of locality, (iii) total amount of dower, (iv) status of husband”.
SHIA LAW—
Under Ithna Ashari Shia law if the kabin-nama fixes the total amount of dower but does not specify as to what portion of it will be prompt and what deferred, the whole of the dower is regarded as prompt. In the Madras Presidency, unless otherwise stipulated the entire dower is prompt no matter the parties are Shia or Sunni.
SUNNI LAW—
According to Sunni Law, in the absence of any family usage and statement in Kabin-nama, half of the total amount is regarded as prompt and half as deferred.
PROPER (CUSTOMARY) DOWER—
When the amount of dower is not fixed in the marriage contract or even if the marriage has been contracted on the condition that she should not claim any dower, the wife is entitled to Proper dower. Proper dower is to be determined by taking into consideration the amount of dower settled upon other female members of the father’s family such as her father’s sisters.
DETERMINATION OF PROPER DOWER—
a. Personal qualifications of wife; her age, beauty, fortune, understanding and virtue.
b. Social position of her father’s family.
c. Dower given to her female paternal relations.
d. Economic condition of her husband.
e. Circumstances of time.
There is no limit to the maximum amount of proper dower under the Sunni Law, but under the Shia law the proper dower should not exceed the
it was the amount of dower which was fixed in the marriage of Fatima, the Prophets daughter. In the Shia Muslims it is, therefore, considered a point of honour not to stipulate for a sum higher than the sum of dower fixed by the Prophet for his daughter, Fatima.
WIFE’S RIGHTS AND REMEDIES ON NON-PAYMENT OF DOWER—
Muslim Law confers upon a wife (or widow) the following three rights to compel payment of her dower
1. Refusal to cohabit;
2. Right to dower as a debt; and
3. Right to retain her deceased husband’s property
REFUSAL TO COHABIT—
If the marriage has not been consummated, the wife has a right to refuse to cohabit with her husband so long as the prompt dower is not paid. In the case of a wife who is a minor or an insane, her guardian has right to refuse to send her to her husband’s house till payment of prompt dower. During her such a stay in her guardian’s house the husband is bound to maintain her.
The absolute right of the wife to insist on payment of the prompt dower, before giving him the access to her, is lost after the consummation of the marriage.
RIGHT TO DOWER AS A DEBT—
Their Lordships of the Privy Council held that ‘the dower ranks as a debt and widow is entitled along with other creditors to have it satisfied on the death of the husband, out of his estate.” If the husband is alive, the wife can recover the dower debt by instituting a suit against him.
RIGHT TO RETAIN POSSESSION IN LIEU OF UNPAID DOWER—
Dower ranks as a debt, and the wife is entitled, along with the other creditors, to have it satisfied on the death of the husband out of his estate.
Her right, however, is no greater than that of any other unsecured creditor except that if she lawfully obtains possession of the whole or part of his estate, to satisfy her claim with the rents and issues accruing therefrom she is entitled to retain such possession until it is satisfied.
If the widow has lawfully and without force or fraud obtained in lieu of her dower actual possession of the property of the deceased husband, she is entitled to retain that possession as against other heirs and as against other creditors of her husband, until her dower is paid.
NO RIGHT OF RETENTION DURING CONTINUANCE OF MARRIAGE—
The right comes into existence only after the death of her husband, or if the marriage is dissolved by divorce, immediately on such divorce, but not before.
ACTUAL POSSESSION—
The right of retention means the right to continue in the possession of the husband’s property after termination of marriage (either by divorce or by death) until the satisfaction of the dower debt. It is, therefore, necessary for the exercise of this right that the wife or widow must be in actual possession of the property at the time of the termination of marriage, if she was not in actual possession of the property at this time, she cannot afterwards acquire possession of the husband’s property in lieu of this right.
WIDOW IN POSSESSION LIABLE TO ACCOUNT—
A widow in possession of her husbands estate is bound to account the other heirs of her husband for the rents and profits received by her out of the estate while she is herself entitled to charge interest on the dower due to bet and to set it off against the net profits.
Difference between Sunni and Shia Laws relating to dower:
SUNNI LAW
1. A minimum limit of 10 dirhams is prescribed for specified dower.
2. There is no limit to proper dower.
3. There is no maximum limit for specific dower.
4. In the absence of an agreement only a reasonable part of the dower is presumed to be prompt.
SHIA LAW
1. No minimum limit is prescribed.
2. Proper dower cannot exceed 500 dirhams.
3. Fixing of dower exceeding 500 dirhams is considered abominable (very bad) though not illegal.
4. The whole dower is presumed to be prompt.
1. Which of the following best describes "Prompt Mahr"?
A. Payable only upon death
B. Payable at the time of divorce
C. Payable immediately after the marriage is solemnized
D. Payable only when demanded by the heirs
Answer: C
2. Which type of Mahr is fixed after the marriage, based on custom or status?
A. Mahr-e-Musamma
B. Mahr-e-Mu'ajjal
C. Mahr-e-Misl
D. Mahr-e-Batil
Answer: C
3. Mahr can be:
A. Only in the form of money
B. Only in the form of property
C. Either monetary or non-monetary assets of value
D. Paid exclusively in gold
Answer: C
4. In which situation is the wife entitled to full Mahr?
A. If the marriage is consummated
B. If the husband dies after nikah but before consummation
C. If the marriage is dissolved after consummation
D. All of the above
Answer: D
5. Under Muslim Personal Law, if Mahr is not specified in the marriage contract, the wife is entitled to:
A. No Mahr
B. Nominal Mahr only
C. Mahr-e-Misl
D. Prompt Mahr
Answer: C
6. In case of default in payment of Mahr, a wife can:
A. Not seek legal remedy
B. File a suit for recovery under civil law
C. Only demand orally
D. Only claim after divorce
Answer: B
7. If a minor girl is married by a guardian without specifying Mahr, what is her right upon attaining majority?
A. She has no right
B. She may demand Mahr-e-Misl
C. She may repudiate the marriage only
D. She must accept the marriage without Mahr
Answer: B
8. In Hanafi law, if a wife is divorced before consummation but Mahr was fixed, she is entitled to:
A. Full Mahr
B. Half of the fixed Mahr
C. No Mahr
D. Mahr-e-Misl
Answer: B
9. Mahr is considered:
A. A gift
B. A debt upon the husband
C. A bribe to secure marriage
D. None of the above
Answer: B
