DOWER (Mahr)

Meaning of DOWER

Dower (mahr) is a sum of money or other property which the wife is entitled to receive from the husband, in consideration of marriage.

BAILLIE: dower is not the woman for entering into the contract; but an effect to the contract imposed by the law on the husband as a token of respect for its subject, the woman

ABDUR RAHIM (On the basis of Hedaya): “ It is either a sum of money or other form of property to which the wife becomes entitled by marriage … It is an obligation imposed by law on the husband as a mark of respect for the wife … (This definition has adopted by Mulla also).

TYABJI: “Mahr or dower is sum that become payable by the husband to the wife on marriage, either by agreement between the parties, or by operation of law.”

Nature and Object of Muslim Marriage

According to Muhammadan law, marriage is a civil contract, and dower is a necessary result of it, being a part of the consideration of her agreement to become her husband’s wife by consummating the marriage.

However, the word “consideration” is not used here in the same sense in which it is used in the Indian Contract Act. It is not the sale-price of the bride and a Muslim marriage contract is not a commercial transaction. In fact, it would be more correct to say that under Muhammadan Law, dower is an obligation imposed upon the husband as a mark of respect for the wife.

Mr. Justice Mahmood (in Abdul Kadirv. Salima, (1866) 8. All. 149) defined the term dower as under:

“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, the law confers the right of dower upon the wife.”

The Mahar (Dower) belongs to wife and she can deal with it in the manner she likes it and neither her husband nor husband's relations nor even her relations can dictate her in matter of using the Mahar money or property.

The object of dower is three fold-

1.      To impose an obligation on the husband as a mark of respect of the wife.

2.      To put a check on the capricious use of right of divorce by husband

3.      To provide for her subsistence after dissolution of her marriage

Kinds of Dower

Broadly, there are two kind of dower:

         (i)      Specified- the specified dower has been further divided into- (a) prompt, and (b)                 deferred.

         (ii)     unspecified.

Specified dower (mahrul-musamma)

An amount settled by the parties at the time of marriage or after is called specified dower. It is also known as Mahr-I-Musmma. Usually the mahar 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.

If the bridegroom is minor or lunatic, the amount of dower may be settled by his guardian, and the same shall be binding on  the bridegroom.

Further any amount of dower may settled by husband but it cannot be less than 10 Dirhams under Hanafi Law and 3 Dirhams under Malaki Law.

There are two kinds of specified dower in Islam:-

i. Prompt Dower (Muajjal)

It is derived from a root meaning ‘to hasten, to precede’. Prompt dower is payable immediately on demand. It may also be demanded before the consummation of the marriage the wife may refuse to live with him unless he pays the prompt dower.

·  The wife has a right to refuse cohabitation with the husband until she is paid the dower. 

·  If the wife is a minor, the guardian can refuse to allow the wife to be sent to the husband until dower is paid. 

·  Only after the payment of dower, the husband is able to enforce the conjugal rights. However, if the marriage is consummated, the wife cannot refuse cohabitation after that. 

·  Prompt dower does not become deferred after consummation and the wife has the right to demand and sue for it any time. 

ii. Deferred Dower (Muwajjal)

Deferred dower is payable on the dissolution of marriage either by death or by divorce.

• Even though it is deferred, an agreement to pay be before is valid and binding. 
• A wife does not have a right to claim dower but a husband can treat it as prompt and transfer property as payment. 
• A widow can relinquish her claim to dower at the time of the funeral of the husband by reciting a formula, but her relinquishment must be a voluntary act. 
• The interest of wife in deferred dower is a vested one and her heirs can claim it after her death.

Presumption regarding Prompt and Deferred dower – Under Sunni Law-When dower is fixed, it is usual to split it into two equal parts and to stipulate that one shall be paid at once or on demand, and the other on the deth of the husband or divorce or the happening of some specified event. But a difficulty arises when it is not settled whether the dower is prompt of deferred.

Under Shia Law, the presumptions that the whole of the dower is prompt.

UNSPECIFIED DOWER

Where dower has not been settled at the time of the marriage or after is called unspecified dower.Unspecified dower may be classified into Proper Dower. Proper dower is fixed with reference to the social status of the wife and her own personal qualification.

• Determination of Proper Dower

Following facts are taken into consideration while determining the amount of dower.

i. The local custom of society.

ii. Personal skill and qualification of the wife.

iii. Social position of the husband.

iv. Social status of father of the wife.

v. Amount of Dower fixed in case of wife’s sisters, paternal aunts and other nearest elatives.

There is no limit to the maximum amount of dower under the  sunni  law but under shia law the proper dower should not exceed 500 Dirhams.

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 and a Muslim girl who has attained puberty is competent to relinquish her mahr, although she may not have attained majority (18 years) within the meaning of the Indian Majority Act. The remission of the mahr by a wife is called hibatul mahr or hiba-i-mahr.

Wife’s right and remedies on non payment of Dower

To compel the payment of dower by husband, wife has following rights-

1.      Refuse to cohabit. The wife is under Islamic Law entitled to refuse herself to her husband until the prompt dower is paid; and if in such circumstances she happens to reside apart from him, the husband is bound to maintain her.

This right of refusing herself is, however, lost on consummation. Thus if the husband files a suit for restitution of conjugal rights before cohabitation, non-payment of prompt dower is a complete defence; but after cohabitation, the proper course for the court is to pass a decree for restitution conditional on payment of prompt dower.

2.      Right to dower as debt  The dower ranks as a debt and the widow is entitled, along with the other creditors of her deceased husband, to have it satisfied out of his estate. Her right, however, is the right of an unsecured creditor; she is not entitled to a charge on the husband’s property, unless there be an agreement. The Supreme Court of India had laid down (1) that the widow has no priority over other creditors, but (2) that mahr as a debt has priority over the other heirs, claims. And the heirs of the deceased are not personally liable to pay the dower; they are liable to the extent of the share of the inheritance which comes to their hands.

3.      Right to retain her deceased husband’s property Islamic law gives to the widow, whose dower has remained unpaid, a very special right to enforce her demand. This is known as the widow’s right of retention. A widow lawfully in possession of her deceased husband’s estate is entitled to retain such possession until her dower debt is satisfied. Her right is not in the nature of a regular charge, mortgage or a lien; it is, in essence, a personal right as against heirs and creditors to enforce her right; and it is a right to retain, not to obtain, possession of her husband’s estate. Once she loses possession of her husband’s estate, she loses her special right and is in no better position than an unsecured creditor.

    The Supreme court of India had laid down that a Muslim widow in possession of her husband’s estate in lieu of her claims for dower, whether with the consent of the heirs or otherwise, is not entitled to priority as against his unsecured creditors.

    The right of retention does not confer on the widow any title to the property. Her rights are twofold; one, as heir of the deceased, and two, as widow entitled to her dower and, if necessary, to hold possession must, therefore, be sharply distinguished from her right as an heir. She has no right to alienate the property by salt, mortgage, gift or otherwise and if she attempts to do so, she loses her right of retention; but the widow may assign her right of mahr.