INTRODUCTION One of the essential parts of Muslim marriage is “dower” paid or promised to be paid by the husband to the wife. Without mahr a nikah can not be said to have been properly solemnized. Dower money must be paid or fied before the solemnization solemnization of a marriage. marriage. Dower must not! however however be confused with “dowry” “dowry” which consists of presents made by father and other relations of the bride and Muslim "aw does not make any provision for payment of dowry. Dower is the sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage. #he amount of dower may be fied either before or at the time of marriage of after marriage. #he law does not say anything about the $uantum of dower. #he amount of dower is generally split into two parts% “prompt dower” which is payable immediately immediately on demand by the wife wife and “deferred “deferred dower” which is payable only on dissolution dissolution of marriage by death or divorce.
DEFINITION &ustice Mahmood defines dower as follows' ( Dower, 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 consideration of the marriage, and even where no dower dower is expressly expressly fixed fixed or mentioned mentioned at the marriage marriage ceremony, ceremony, the law confers confers the right of dower upon the wife.) wife .)* +t is not (consideration) in the modern sense of the term, but an obligation imposed by the law upon the husband as a mark of respect to the wife. - #his is made abundantly clear by the author of the Hedaya when he says'
(The payment of dower is enjoined by the law merely as a token of respect for for its object (the women), 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 the man were to engage in the contract on the special condition that there should be no dower!) dower!) #here #here is no doubt that mahr was originally analogous to sale%price! but since the inception of +slam it is hardly correct to regard it as the price of connubial intercourse. +f the authors of the /rabic tet%books on Muhammadan law have compared it to price in the law of sale! it is simply because marriage is regarded as a civil contract in the system. #he line of reasoning based on the analogy of the sale was criticized in "mmer ali! ali! an a nd by sir #hah #ulai #ulaiman man in "nis "nis $egam $egam v! Mohd! Mohd! %stafa %stafa0* 0*11 112 2,a ,and nd in &ajid &ajid 'han 'han ase0*1*-2. ase0*1*-2. 3ir 3ulaiman observed'% “it is $uite obvious that the analogy of sale cannot be carried too far! the marriage cannot be regarded as purely a sale of the person by the wife in consideration for the payment of dower.”
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"bdul 'adir v. #alima 0*4452 #alima 0*4452 4 /ll. *61
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/bdur 7ahim! 6. as cited from /saf././.8yzee! utlines of Muhammadan *aw! *aw ! 0Oford 9niversity
:ress! 6th ;dition! -<<-2 p.*
=amilton)s Hedava =amilton)s Hedava!! - nd ed. >y ?rady! 66! cited by Mahmood &. in "bdul in "bdul 'adir v. #alima 0*4452 #alima 0*4452 4 /ll.
*61 at *@A%4.
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AMOUNT OF DOWER
#he amount amount of mahr may either be fied or not, if it is fied! it cannot be a sum less than the minimum laid down by the law. Minimum Dower Dower *2 -2 2 62
=anafi nafi law % *< dirhams Maliki law % dirhams Shafii law B Co fied minimum 3hiit 3hiitee law law B Co Co minim minimum um fied. fied.
/ dirham dirham 0:ersian 0:ersian!! diram! diram! a word derived from the ?reek2 is the name of a silver coin -.1A gram in weight weight6! and is usually valued at %6 annnas or -<%-@ paise. +n +ndia! it has been held that the value of ten dirhams is dirhams is something between 7s. and 6 @. #hus it will be seen that the minimum doer fied by the law can hardly be deemed to be an ade$uate provision for the wife. +n fact! it would be a mistake to lay too great a stress upon the monetary value of the minimum dower. +t is said that in the case of an etremely poor man! the :rophet re$uested him to teach the oran to his wife! and this was considered by the "awgiver to be an ade$uate re$uital of the husband)s obligation. /mong the Muslims of +ndia two distinct tendencies are to be found in society. +n some cases! as in the Sulaymani >ohoras! the dower is 7s. 6
TYPES OF DOWER
#hus we have two kinds of dower in +slam' /. 3pec 3pecif ifie ied d Dow Dower er 0al-mahr al-musamma al-mahr al-musamma2, and >. 9nspec 9nspecifi ified ed Dower Dower or or :roper :roper Dowe Dowerr 0mahr 0mahr al mithl 2. 2. 3pecified Dower may be again be divided into% :rompt % mu+ajjal ! and Deferred % muajjal .
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+n 0/2 and 0>2 the $uestion before the court is the amount payable' in 0+2 and 0++2 the $uestion is the time when payment has to be made. A. Specified Dower (al-mah u al-mu!amma al- mu!amma""# Dower (al-mahu
9sually the mahr is fied at the time of marriage and the -a.i performing -a.i performing the ceremony ceremony enters the amount in the register, or else there may be a regular contract called kabinnama! with numerous conditions. #he sum may be fied either at the time of marriage or later! and a father)s contract on behalf of a minor son is binding on the minor. minor. 6
/ccording to Wilson)s /lossary! /lossary! (a silver coin 6@%@< grains in weight! rather heavier than si pence).
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"sma $ibi v. $ibi v. "bdul "bdul #amad 0*1<12 - /ll. *5A.
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/lso called mahr al0+a1d .
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Where Where a father stipulates stipulates on behalf behalf of his son! in =anafi law! the father is not personally personally liable for the mahr , but aliter in Ithna $A!hai la%. +n #yed #abir Husain v. 2ar.and v. 2ar.and Hasan, a 3hiite father had made himself surety for the payment of the mahr of his minor son. #hereafter he died! and it was held that the estate estate of the deceased deceased was liable liable for the payment payment of his son)s mahr! mahr! /ccordingly each heir was made responsible for a portion of the wife)s claim in proportion to the share received by the particular heir on distribution from the estate of the deceased. #he heirs were! however! liable only to the etend of the assets received by them from the deceased! and not personallyA. Where the amount has been specified! the husband will be compelled to pay the whole of it! however ecessive it may seem to the court! having regard to the husband)s means, but in Oudh! only a reasonable amount will be decreed! if the court deems the amount to be ecessive or fictitous4. &. Unspecified mah al-mit al -mithl hl ) Unspecified Dower ( )9
#he obligation to pay dower is a legal responsibility on the part of the husband and is not dependent upon any contract between the parties, in other words! if marriage! then dower *<. Where the dower is specified! any amount! however ecessive! may be stipulated for. >ut what are the principles upon which the amount of dower is to be determined where no agreement eitsE #he customary or proper dower of a woman is to be fied with reference to the social position of her father)s family and her own personal $ualifications. #he social position of the husband and his means are of little account. #he Hedaya #he Hedaya lays lays down the important rule that her (age! beauty! fortune! understanding and virtue) must be taken into consideration. +slamic marriage! therefore! safeguards the rights of a wife and attempts to ensure her an economic status consonant with her own social standing +n fiing the amount of the proper dower! regard is to be had to the amount fied in the case of the other female members of the wife)s family. #he main consideration is the social position of the bride)s father)s family! and the court will consider the dowers fied upon her female paternal relation such as sisters or paternal aunts who who are considered considered to be her e$uals. e$uals. #he :rophet once allowed the marriage of an indigent person for a silver ring, and on another occasion! merely on the condition that the husband should teach the oran to his wife. 3rompt 0mu(aFFal2 and Deferred Defe rred 0mu)aFFal2 dowe do werr When the dower is specified! the $uestion arises' /t what times and in what proportions is the amount payableE =ere two somewhat puzzling terms are used and it is necessary to distinguish carefully between them. #he technical term for (prompt) dower is mu+ajjal . +t is derived from a root meaning (to hasten! to preced). #he term mu+ajjal ! therefore! means (that which has been hastened or given a priority in point of time). #he term muajjal ! however! means (delayed! deferred)! and comes from a root which means (to delay or postpone). Written in the original /rabic there would be no cause for confusion! but in the usual ;nglish forms of spelling the words often puzzle those who are not familiar with the /rabic tongue. :rompt dower is payable immediately after the marriage! if demanded by the wife, while deferred dower is payable on the dissolution of the marriage or on the happening of a specified event. When dower is fied! it is usual to split it into two e$ual parts and to stipulate that one shall be paid at once or on demand! and the other on the death of the husband or divorce or the happening of some specified event. >ut a difficulty arises when it is not settled whether the dower is prompt or deferred. A
0*1A2 5@ +./. **1.
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#his is called (fictitious dower). 3ometimes for the purpose of (glorification) (glorification) a larger mahr is announced!
but the real mahr is smaller. 3uch a mahr for the purposes of (show) is know as sum+a as sum+a.. 1
/meer /li calls it the (customary) dower.
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#his has been emphasized by the :rivy Gouncil in #yed #abir Husains ase, 0*1A2 5@ +./. **1
+n Ithna $A!hai la% the presumption is that the whole of the dower is prompt, but in =anafi law the position is different. different. #he whole whole of the dower may be promptly awarded awarded **, but a recent 8ull >ench decision lays down first! that where the kabin-nama is silent on the $uestion! the usage of the wife)s family is the main consideration, and secondly! that in the absence of proof of custom! the presumption is that one%half is prompt! and the other half deferred! and the proportion may be changed to suit particular cases.
INCREASE OR DECREASE OF DOWER
#he husband may at any time after marriage increase the dower. "ikewise! the wife may remit the dower! wholly wholly or partially, partially, and a Muslim Muslim girl who has attained attained puberty is competen competentt to relin$uish relin$uish her mahr ! although she may not have attained maFority 0*4 years2 within the meaning of the +ndian MaFority /ct *-. #he remission of the mahr by mahr by a wife is called hibat al0mahr or hiba0e mahr . +t has! however! been held in arachi that in certain cases remission of dower cannot be upheld. 8or instance! if a wife feels that the husband is increasingly showing indifference to her and the only possible way to retain the affection affection of her husband is to give up her claim for mahr and and forgoes her claim by eecuting a document! she is not a free agent and it may be against Fustice and e$uity to hold that she is bound by the terms terms of the deed*.
NON-PAYMENT OF DOWER
#he claim of the wife or widow for the unpaid portion of the mahr is an unsecured debt due to her from her husband or his estate! respectively. +t ranks rateably with unsecured debts! and is an actionable claim. During her lifetime the wife can recover the debt herself from the estate of the deceased husband. +f she predeceases the husband! the heirs of the wife! including the husband! become entitled to her dower. / lady! lady! whose mahr was 7s. @
+f the husband refuses the pay prompt dower! the guardian guardian of a minor wife has the right to refuse to allow her to be sent to the husband)s house, and similarly! the wife may refuse the husband his conFugal rights! provided no consummation has taken place. #he wife is under Muhammadan "aw 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 .*@ **
:er &. Mahmood in /bdu / bdull 'adir 'adir v. #alima! #alima ! 0*4452 0*4452 4 /ll. /ll. *61, Hussein-han v. /ulab 'hatum 'hatum 0sic2
0*1**2 @ >om 45. *-
4asim Husain v. $ibi v. $ibi 'ani. ! 0*1-2 @6 /ll. 4<5
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#hah $ano v. $ano v. %fte-ar %fte-ar Muhammed Muhammed :"D *1@5 0W.:.2 ar. 5.
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Mohammad #adi1 v. 2a-r v. 2a-r 5ahan 0*1*2 @1 +./. *1.
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6ur0ud0din "hmad v. Masuda 'hanam :"D *1@A Dacca -6-, Muhammadi -6-, Muhammadi v. 5amiluddin :"D 5amiluddin :"D *15<
arachi 55.
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#his right of refusing her is! however! lost on consummation. *5 #hus if the husband files a suit for restitution of conFugal rights before cohabitation! non%payment of prompt dower is a complete defence, but after cohabitation! the proper course is to pass a decree for restitution conditional on the payment of prompt dower. #his #his was laid laid down in the leading leading case of "nis of "nis $egam v. Muhammad v. Muhammad %stafa %stafa &ali 'han. 'han.*A N'n-aym)nt 'f D)f))* D'%)
#he non%payment of deferred dower by its very nature cannot confer any such right of refusal on the wife. #he right to enforce payment arises only on death! divorce or the happening of a specified event. #he dower ranks as a debt and the widow is entitled! entitled! along with the other creditors creditors of her deceased deceased husband to have it satisfied out of his estate. =er 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. #he 3upreme Gourt of +ndia has laid down i. ii.
That That the widow widow has no prior priority ity over over the the credit creditors ors but but That That mahr mahr as a debt debt has has prior priority ity over over the the other other heirs heirs!! claim claims. s. "#
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+n "ahore it has been held that consummation does not deprive the wife of her right to refuse conFugal
relations if the prompt dower is not paid! 7ahim paid! 7ahim 5an v. Muhammad v. Muhammad ! :"D *1@@ "ahore *--, per *--, per contra! contra ! 7abia 'hatoon v. 'hatoon v. Mu-htar Mu-htar "hmad /+7 /+7 0*1552 /ll. @64! which! it is submitted is the correct view. *A
0*12 @@ /ll. @64. #his case is of great importance as 3ulaiman G.&. has carefully considered and
criticized certain dicta of Mahmood &. in the leading case of "bdul of "bdul 'adir v. #alima 0*4452 #alima 0*4452 4 /ll. *61 *4
'apore hand v. 'adar v. 'adar 8nnissa H*1@
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