In pre-Islamic, Arabia, when the institution of marriage 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 organized system of law. In this article, we will be looking after an important component of Muslim marriage, the dower or Mahr.
Shighar form of marriage was observed during those times. In this form of marriage, a man would give his daughter or sister in marriage to another in consideration of the latter giving his daughter or sister in marriage to the former. In this form of marriage, the wives would not get any dower. In Beena marriage, the husband visited the wife but did not bring her home, the wife was called Sadiqa and a gift was given to the wife on marriage known as Sadaq. It is believed that in Islam Sadaq was the very first form of dower.
Promulgation of Islam gave a new form of nikah to 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 (dower) belongs absolutely to the wife, although historically speaking it is more akin to brides price than gift or anything else. In the Baal marriage, the concept of mahr was introduced. The main and foremost object of the dower is to provide a livelihood to the wife after the dissolution of marriage or in case their husband dies. Therefore, the concept of Dower worked as a sense of security for the wife. If in case, the husband abandons the wife or compels her to move out, the amount of Dower becomes the source of her livelihood.
What is Dower or Mahr?
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. Dower or Mahr is considered as an important essential to perform marriage (nikah) in Islam. It is regarded as a consideration to the wife in marriage. Without it, the marriage is deemed incomplete. It is in the form of a gift given by a husband to the wife.
According to Ameer Ali, “Dower” is a consideration which belongs absolutely to the wife. 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. It may either be prompt (Mahr- i- marjjal) or deferred (Mahr-i-muwajjal).
Dower is an essential incident and fundamental feature of marriage with the result that even if no dower is fixed the wife is entitled to some dower from the husband. The marriage is valid even though no mention of dower made by the contracting party. The amount fixed for Mahr is usually a mutually agreed between the parties and if the parties are competent to marry, they may fix their own Mahr at the time of contracting their marriage contract. At any event it is enforceable in law.
In Abdul Kadir v. Salima, (1886) ILR 8 All 149 case, the Court observed that “Dower, under the Muhammadan Law, is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage, and even where no dower is expressly fixed or mentioned at the marriage ceremony effect of marriage. To use the language of the Hedaya, the payment of dower is enjoined by the law merely as a token of respect for its object (the woman), wherefore the mention of it is not absolutely essential to the validity of a marriage; and, for the same reason, a marriage is also valid, although a men were to engage in the contract on the special condition that there should be no dower”. Even after the marriage the amount of dower may be increased by the husband during covertures.
In Saburannessa v. Sabdu Sheikh, AIR 1934 Cal 693 case, the Calcutta High Court has observed that Muslim marriage is like a contract of sale in which the wife is the property and dower is the price. The above opinions are based on the argument that marriage is a civil contract and dower is a consideration for the contract. But it is submitted that the above opinions are erroneous, because even in those cases where no dower is specified at the time of marriage, marriage is not void on that account, but the law requires that some dower (proper dower) should be paid to the wife.
Objects of Dower:
- 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
Kinds of Dower:
According to Muslim law, the dower may be classified into the following categories-
- Specified dower
- Prompt dower
- Deferred dower
- Proper or customary dower
Specified dower (Mahr-i-Musamma):
Usually, the mahr is fixed at the time of marriage and the qazi performing the ceremony enters the amount in the register; or else there may be a regular contract called kabin-nama with numerous conditions. If the amount of Dower is decided at the time of marriage, it is known as specified Dower. It may be settled even before or after the ceremony of marriage. If the parties to the marriage are minor, then the guardian can fix the sum of Dower on behalf of the minor. 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 the 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 Rs. 3 and 4) according to Hanafi law and 3 dirhams according to Muslim 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. There is no maximum limit on the amount of dower.
Specified dower is again subdivided into: (a) Prompt Dower (b) Deferred Dower
The dower which is payable immediately on demand is called prompt dower. The dower may be realized by the wife before or after the consummation of the marriage. In case if the prompt dower is not paid then the wife has the right to refuse to live with her husband.”
a) Prompt dower (Muajjal Mahr) :
The following point must be noted regarding prompt dower:
- Prompt dower is payable immediately on the marriage taking place and it must be paid on demand, unless delay is stipulated for agreed. It can be realized any time before or after the marriage. The wife may refuse herself to her husband, until the Prompt Dower is paid. 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 the 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.
- It is only on the payment of prompt dower that the husband becomes entitled to enforce the conjugal rights unless the marriage is already consummated. The right of restitution arises only after the dower has been paid.
- 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; in practice Muslim husband generally gives little though to the question of paying dower to his wife save when there is domestic disagreement, or when the wife presses for payment upon the husband’s embarking upon a course of extravagance and indebtedness without making any provision for her. Lapse of time since marriage raises no presumption in favour of the payment of dower.
b) Deferred dower (Muwajjal Mahr):
the dower which is payable on dissolution of marriage by death or divorce is known as deferred dower either by divorce or by the death of the husband.
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 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.
Unspecified or Proper or Customary Dower:
Dower is an integral part of Muslim marriage even when dower is not stipulated in the marriage contract, the wife is entitled to what is known as a proper or customary dower, mahr-i- misl or mahrul-mithul. In case the amount of dower is not fixed at the time or before the marriage then the dower of the wife is decided by the court relying on the various factors that are according to local customs, position of husbands, position of wife’s father, reference to dower of female paternal relations, personal qualifications that dower is known as unspecified dower. The wife is entitled to proper dower even when at the time of marriage, she had agreed to receive no dower.
The basis for determining customary Dower is-
- The personal qualification of the wife. Everything is considered from her beauty to intelligence.
- The social status of the wife’s father and family background is considered.
- The amount of Dower given to her family females is considered.
- The economic and social status of the husband is also taken into consideration.
- The other factors, such as present circumstances and family situations at the time of determining Dower.
Rights and Remedies for Non-payment of Dower:
Right to dower as debt:
If the dower is debt then the widow is entitled along with other creditors to have it satisfied on the death of husband out of his bequest.
Right to cohabit:
The wife has a right under Muslim law to refuse to cohabit with her husband in case the prompt dower is not paid and if the marriage has not been consummated. If the marriage is consummated then, she can’t deny cohabiting.
The right to retain her deceased husband’s property:
The wife can remain in possession of the husband’s property (if she has lawfully obtained the possession of her husband property) until the amount of Dower is paid. But she does not have the right to sell or alienate the property.
The Right to File Suit:
If the Dower is not paid to the wife, then she can file a suit against her husband and recover the sum of Dower. In case she dies then her legal heirs can sue. The period of limitation is three years. If the husband has died, she may recover it from his property or heirs.
Widow’s Right to Retention:
A Muslim widow’s right to retention allows her to remain in possession of her husband’s property after his death. A widow with a pending dower debt has the right to keep the husband’s properties until her dower is paid. The privilege is known as the right of retention in lieu of unpaid dower and applies when a marriage is dissolved by death or divorce. This is a way of compulsion to obtain speedy payment of the dower which is an unsecured debt. The right to retention does not give her any title to the property. Therefore, she cannot alienate the property. Unless she has a contractual right of lien or possession, a woman does not have the right of retention during the marriage.
In Hamira Bibi v. Zubaida Bibi, (1916) ILR 38 All 581 case, the Court held that, because of the character of the rights of retention, no permission is needed, particularly given the well-established presumption that a widow’s possession should be lawful and gained while not force or fraud.
In Maina Bibi v Chaudhri Vakil Ahmed, (1925) 27 BOMLR 796 case, the Court held that it absolutely was dominated that a widow has the proper to carry a property once it’s been lawfully nonheritable till her dower obligation has been paid underneath Muslim law. The widow’s right of retention doesn’t confer possession of the property on her. she will merely hold possession and take the legal right till her dower debt is paid. She has no right to sell, mortgage, gift, or otherwise alienate the property, and if she makes an attempt, she’s going to lose her right to stay it. in step with the Supreme Court, the widow doesn’t fancy precedence over her husband’s different unsecured creditors.
Conclusion:
“Under “the Muslim Law 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. Dower or Mahr is considered as an important essential to perform marriage (nikah) in Islam. It is regarded as a consideration to the wife in marriage. Without it, the marriage is deemed incomplete. It is in the form of a gift given by a husband to the wife in respect. The significant object of the dower is to give resources to the wife after the dissolution of her marriage so she may not get hopeless after the death of the husband or end of a marriage by divorce. Dower has additionally been considered as the piece of maintenance while fixing the amount of maintenance under Section 125 of Criminal Procedure Code, 1973.