Concept of Dower Under Muslim Law

 Q2 (a). Define dower (Mahr) and discuss its nature? What is the importance of a dower in the Muslim law of marriage?

 

Ans. Definition, Nature and Importance of Dower (Mahr) –

Dower.-Dower is an integral part of Muslim marriage. It is given by the husband to wife in the form of money or property in consideration of marriage. In other words, mahr (dower) is something in the nature of nuptial gift which is given by a husband to his wife at the time of marriage or after marriage.

The system of "dower" is not new in Muslim law. In pre-Islamic Arabia, it was prevalent in some other form. In those days, there were two forms of marriage for the purpose of dower

(a) In the first category of marriage, the wife did not accompany her husband to his home after marriage. She continued to live at her parent's house and her husband usually visited her. In such marriage, it was customary to give to the wife, on marriage, which was called "Sadaq" (the wife was called "Sadiqa"), a woman friend and not a girlfriend.

(b) In second category of marriage wife accompanied her husband to his matrimonial home after marriage. In such, the marriage i.e. bal-marriage, the husband had to pay an amount to the parents of his wife in consideration of her leaving parent's home. Such an amount was called mahr In other words, it was like a sale-price of the bride.

The condition of payment of dower to a wife also helps in checking the capricious exercise of the unlimited power of the husband to divorce. A husband has to think so many times before giving divorce to his wife that if he does so, he will have to pay the whole amount of dower immediately

 

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."

According to Mahmood, J., "Dower under the Mohammedan 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 wife"; Abdul Kadir v Salima, (1886) 8 All 149 (157).

According to 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 essential to the validity of a marriage."

According to K.P. Saxena, "Dower is a sum of money or any property promised by the husband to be paid or delivered to the wife as a mark of respect for the surrender of her person after the marriage contract but generally said to be consideration for marriage"

 

According to Dr Jung, "The property or its equivalent, incumbent on the husband either by reason of being agreed in the contract of marriage or by virtue of contract as special consideration for Buza, the right of enjoyment itself."

 

 In Saburannessa v. Sabdur Sheikh, [(1934) 31 Cal. W.N. 747] this analogy has been extended to even a greater degree. It was held in the above case-"The right to resist her husband so long as the price or any part of it (dower) is unpaid is analogous to the lien of vendor upon the goods sold while they remain in his possession and so long as the price or any part of it is unpaid; and her surrender to her husband resembies the delivery of goods to the vendee". In this case, Justice Mitter remarked: "The marriage under Muslim law is a civil contract and it is like a contract of sale. Sale is a transfer of property for a price. In the contract of marriage the wife is the property and dower is the price."

But the notion of dower given above is not correct. Fitzgerald says:"It would be incorrect to describe the Muslim dower purely as the bride's price."

Dower is not a consideration for marriage in true sense of the term. Because ordinarily a contract without consideration is void, whereas even if dower is not fixed at the time of marriage, marriage is not void and in such a case, the wife is entitled to obtain proper dower from her husband. " If dower were the bride's price, a post nuptial agreement to pay dower would be void for want of consideration. But such an agreement is valid and enforceable. [Mst. Fatima Bibi v. Lal Din, 1937 Lahore 345].

The word 'consideration' is not used in the sense in which this word is used in the Indian Contract Act. Baillie says, under Muslim Law 'dower is an obligation imposed upon the husband as a mark of respect to the wife.'

Dower is not exchange or consideration given by the husband to the wife for entering into the contract of marriage, but it is an effect of the contract of marriage imposed by husband as a token of respect for its object-the woman,

Abdur Rahim rightly says, "It is not a consideration proceeding from the husband for the contract of marriage, but is an obligation imposed by the law on the husband as a mark of respect for the wife as is evident from the fact that the non-specification of dower at the time of marriage does not affect the validity of marriage."(Muhammadan Jurisprudence, P.334) .

Hedaya says that "the payment of dower is enjoined by the law as a token of respect for its object, the woman."

In Hamira Bibi v. Zubaida Bibi [(1916) 43 IA 294] the Privy Council observed-"Dower is an essential incident under the Mussalman law to the status of marriage, to such an extent this is so that when it is unspecified at the time the marriage, is contracted, the law declares that it must be adjudged on definite principles.

Thus, it is clear that

1. Dower is an essential element of marriage.

2. If dower is unspecified it must be adjudged on definite principles.

3. Dower is a kind of debt which can be realized by wife from the property of her husband 4. A wife can keep lien on the property of husband so long as dower debt is not satisfied.

 

Amount of Dower

 

The amount of mahr (dower) may either be fixed or not, if it is fixed, it cannot be less than the minimum laid down by the law.

Minimum Dower

 

1. Hanafi law - 10 dirhams

2. Maliki law - 3 dirhams

3. Shafi law, and

4. Shiaite law - No fixed minimum.

"Dirham" - A dirham (Persian, diram, a word derived from the Greek) is the name of a silver coin 2.97 grammes in weight, and is usually valued at 3-4 annas or 20-25 paise.

Nature of Mehr (Dower)

 

Dower is anything paid to Muslim bride at the time of marriage. Mehr property, movable, immovable or a valuable security which a woman egally entitled to receive from her husband by virtue of entering into ontract of marriage. Regarding dower, there are three clear different views –

1.       one is that in its legal incident, it is similar to "donatio propter nuptials" of the Romans;

 Dower as a gift: Quran in its Sura 4, Aayat 4 states, "Give the women on marriage their dower as a free gift... Even it pre-Islamic Arabi there was a custom for giving the wife a gift (sadaq). Ameer Ali say that the mahr of the Islamic system is similar, in all its legal incidents to the donatio propter nuptials of the Romans. It is a settlement in favour of the wife, made prior to the completion of the marriage - contract in consideration of the marriage. However, there is an essential difference of the Roman donatio propter nuptials (a gift in consideration of marriage) and the mehr of Mussalmans, that whereas the former is purely voluntary on the part of the husband; the later is absolutely obligatory.

 

Dower as an obligation: Dower is not exactly a consideration for marriage in the sense of a consideration for any other contract. It is an obligation imposed by the law on the husband as a mark of respect for the wife. The character of the obligation to pay the dower is a debt. The moment the dower is settled, it becomes a recoverable debt and the wife has a lien over the property of her husband in her possession for unpaid dower, pari passu with other creditors.

2.       second that it is given by the husband to his as a mark of respect; and

Sir Abdul Rahim regards dower not as a consideration proceeding from the husband for the contract of marriage but as an obligation imposed the husband by Mahomedan law as a mark of respect for the wife. Islam had given women an equal status and respect which negated the idea which considered woman as a commodity for whom a sale price may be fixed Quran, in its Sura IV: Aayat 19, states "...Live with them on a footing  kindness and equality". Mohammadans pay respect to woman and even prophet used to stand-up even at a public place like his mosque, whenever his daughter Fatima used to come to him. This was a precedent (Sunnat) created b this Prophet and all his followers are bound to follow it.

3.       third that it is a device to control the unfettered power of the husband to divorce his wife.

Sometimes Mehr becomes a restrictive measure on the exclusive right o divorce by husband, because usually the payment of agreed amount of Mehr is beyond the capacity and reach of husband. Dower is frequently fixed out of all proportions to the means of the husband to make it a healthy check. As such dower serves the purpose, for a husband thinks twice before divorcing his wife due to immediate accrual of dower - payment on divorce.

 

In Mohd Bashir v. Walayat Begum PLD [AIR 1967 Lah. 391] it was observed that the reason for fixing high amount of dower was to prevent the husband from divorcing his wife, in which case husband has to pay the dower amount.

 

Q. 2 (b)Discuss the kinds of dower. What are differences between prompt dower and deferred dower?

Or

 Explain specified Dower (Mahr-i-Musamma) and proper Dower (Mahr-ul-Misl). Point out the differences between prompt and deferred dower.

Kinds of Dower

The dower can be divided into the following categories:

 

(1) As to amount

(a) Specified dower

(b) Unspecified dower

 

(2) As to time

(a) Prompt dower

(b) Deferred dower According to Shia school mehr can be divided into the following categories:

(a) Mahr-i-sunnat

(b) Mahr-i-misi

(c) Mahr-i-mausamma.

 

Specified Dower (ai-mahru al-musamma)

 

When the amount of dower is fixed either before or at the time of marriage or even after marriage, such fixed amount is called specified dower.

The amount of dower is generally settled at the time of marriage - but ante-nuptial or post-nuptial agreements are permissible and such agreements are binding on the parties. If the parties to the marriage have attained the age of puberty and are of sound mind, they are competent to settle themselves, the amount of dower

In case, the contract of marriage of a minor son, is entered into by the father or guardian, the amount of mehr so fixed by father or guardian is binding on the minor. There is difference of opinions amongst the various schools regarding determining the personal liability of father or guardian for dower on behalf of minor. According to Hanafi law, the father is not personally liable for the mehr However in Ithana-Ashari law, he is held responsible. In Syed Sabir Husain v. Farzand Hasan, (1937) 65 IA 119, it has been held that the estate of a father who died after entering into the contract of marriage of his minor and committed the amount of mehr, is liable for the payment of a specified dower Accordingly, each heir of such deceased father was made responsible to pay a portion of wife's claim of dower in proportion to, share received by him or her. Where the amount of mehr has been specified, the husband is bound to pay the whole amount of dower, even though the court may feel that the amount of dower is too much than the financial position of husband.

 

Unspecified dower (mehr al-mithl)

 

When the amount of the dower has not been settled, or even when the marriage has been contracted on an express stipulation that the wife shall not claim any dower, she is entitled to proper or customary dower; Nasra Begum v. Rizwan Ali, AIR 1980 All 118. It is also termed as 'dower of the equals

 

It was laid down in "Hedaya" that following factors play an important role for fixing the amount of dower

(a) age of bride,

(b) beauty,

(c) fortune,

(d) understanding,

(e) virtues.

 

It is at the discretion of the court as to what it considers proper for the woman, but the court is generally to be guided by the following considerations:

(a) the social position of the family of woman's father;

(b) her own personal qualification,

(c) the dower that have been given to her female paternal relations, i.e. her consanguine sisters, her paternal aunts, the daughters of her paternal uncles or her father's sisters;

 (d) the position of the husband must not be altogether excluded from consideration as unequal marriage often take place;

(e) when a wife bases her claim on a contract which she fails to establish, the court is bound to decree such amount as dower as is admitted by her husband.

 

Prompt dower

 

The amount of dower payable by a Muslim husband to his wife immediately after marriage is called "prompt dower" or mu'ajjal. The technical term used for the word 'prompt' is mu'ajjal which is derived from a root meaning, "to fasten" or "to precede". The term mu'ajjal therefore means, that which has been fastened or given a priority in point of time. When dower is fixed, it is usually splitted into two equal parts. One part of the dower is paid at once on demand and the other on

 (a) the death of the husband or

 (b) divorce or

 (c) on the happening of some specified events.

The difficulties in this regard arise when it cannot be ascertained whether the dower was prompt or deferred.

 

In Rahilan v. Sana Ullah, 59 P Lah 470, it has been held by the court in Pakistan that the prompt dower becomes a debt as soon as it is demanded and the husband is liable to pay it. The wife can refuse to live with her husband so long as "prompt dower" is not paid to her. It has been further held in Nuruddin Ahmad v. Masuda Khanam, 57 P Dec 242, that the wife's right to prompt dower cannot be defeated by the husband on the ground of his being denied the society to his wife. The prompt dower (mahr-muajjal) can be realised by the wife at any time before or after consummation, if it is not paid at once, it will come into the category of "deferred-dower," if its payment is postponed until demanded by the wife, it will in law be prompt dower

 

Deferred Dower

 

When the dower or mehr is payable by a Muslim husband to his wife on dissolution of marriage or it is paid after the death or divorce, it is called deferred dower. It is called mehr-muaajjal which means 'delayed' or 'deferred'. It comes from a root which means 'to delay' or 'to postpone'. Describing the nature of deferred dower it has been held in Manihar Bibi v. Rakha Singh, 54 A Manipur, that 'A deferred dower' does not become prompt merely because the wife demands it."

 

Q.2 (c)What are the modes recognised by the Muslim Law for the enforcement of dower? Discuss.

 

 Ans. Remedies in case of non-payment of Dower.-The rights which dower confers on the wife are three fold:

 

1. Refusal to cohabit.

2. Right to dower as a debt.

3. Retention of husband's property.

 

1. Refusal to cohabit.-Before consummation, the wife is entitled to refuse to live with her husband and refuse to him sexual intercourse so long as prompt dower is not paid to her. In a suit for restitution of conjugal rights by the husband, the non-payment of prompt dower is a complete defence if the marriage is not consummated. If the wife is minor or insane, her guardian can refuse to allow the husband to take her with him till the payment of prompt dower. If the minor wife is already in her husband's custody, such guardian can take her back on the ground of non payment of prompt dower. [Nasra Begum v. Rizwan Ali, AIR 1980 All. 118].

 

If the marriage has been consummated, she cannot refuse to cohabit. After consummation the husband's suit for restitution would not be dismissed, but the Court may pass decree of restitution on condition of payment of prompt dower.

 

2. Right to dower as a debt.-The 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. The Privy Council in the case of Ameeroon Nissa v. Moorad Unnissa, (1855) held that the dower ranks as a debt and the widow is entitled to have it satisfied along with the other creditors, in case of death of her husband, out of his estate.

 

3. Right to Retention.-The dower ranks as a debt, and the wife is entitled, along with other creditors, to have it satisfied on the death of the husband out of his estate. Her right is not greater than that of any other unsecured creditors, and as such, it does not entitle her to charge on any specific property of her deceased husband. She must, however, be paid like other creditors, before legacies and before distribution of the estate.

But if she lawfully and without force or fraud obtained in lieu of her dower actual possession of the whole or part of her deceased husband's property, she is entitled to retain that possession as against the other heirs and as against other creditors of her husband, until her dower debt is satisfied. A widow who has not obtained possession of her husband's estate in lieu of her dower cannot exclude other heirs of her husband from possession. They are entitled to joint possession with her.

This right is sometimes called a 'lien' but it is not a lien in the strict sense of the term. However, this is the only kind of lien under Muslim Law, recognized in India [Hamira v. Zubaida Bibi, 8 All. 581 (PC)].

 

Q. 3.  Define the concept of Divorce under Muslim Law? What are the different modes of Talaq recognised under Muslim Law? Describe the procedure of pronouncing a different kind of Talaq. When does Talaq become irrevocable?

OR

Explain the different kinds of Talaq and distinguish between Sunni and Shia law of Talaq.

 

 Ans- Click on the link given below.

Concept of Divorce under Muslim Law

Q. 4 (a) State the grounds on which a wife married under the Muslim Law can obtain a decree for the dissolution of her marriage under old Muslim law?

Ans Click on the link given below-

Special ground of Divorce for Muslim women

References

 

Muslim Law in India—Tahir Mahmood

Family law S.R Myneni`s

 

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