ACKNOWLEDGEMENT

For this project has involved over one month time of researching and writing. This project has been helpful in enriching my knowledge and clearing my concept about the topic. Many people have been extraordinarily generous with time, information and counsel. So with pleasure, I would like to dedicate a paragraph to them. But I shall hope that each of the individuals and institutions named will appreciate the extent and warmth of my gratitude to them. Institutions The library staff of Chanakya National Law University, Patna who helped me during the entire period, with books and other materials for the accomplishment of this project work. Individuals These are divided into several groups, beginning with those friends, colleagues, and mentors who supported me all through the project work. In no particular order, they are: my honourable faculty DR. SHAIWAL SATYARTHI KUMAR and others. Last but not least I would like to thank Almighty whose blessing helped me to complete this project. and librarian RATNESH

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RESEARCH METHODOLOGY
Aims and Objectives: The aim of this research paper is to present a detailed study MAHR AND ITS SOCIAL ASPECTS Scope and Limitations: The researcher has used the doctrinal method and has relied on the secondary sources for the content of the research paper. Owing to the large number of topics that could be included in the project, the scope of this research paper is exceedingly vast. However in the interest of brevity, this paper has been limited to the topics which deal with the topic i.e MAHR. Sources of Data: The following secondary sources of data have been used in the project Articles Books Writing

Method of Writing: The method of writing followed in the course of this research paper is primarily descriptive as well as analytical. Mode of Citation: The researcher has followed a uniform mode of citation throughout the course of this research

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CHAPTER-I INTRODUCTION
In an Islamic marriage, the groom is obliged to give the bride a wedding gift, called a "mahr." This gift is meant to show his appreciation for her, and is a token of sincerity and warmth on his behalf. Often, if the bride wishes, the mahr is merely a symbol. In many cultures, however, the groom gives substantial amounts of money, land or jewelry to the bride. According to Islamic legal tradition, the mahr becomes the property of the wife. Muslims proudly consider this to be one of the many ways that Islam improved the status of women, since in pre-Islamic Arabia and much of Europe until the modern age, women were not allowed to independently own property or wealth. The purpose of mahr The right in Islam for a wife to receive Mahr and to dispose of it as she pleases is a Quran injunction1: And give unto the women (whom ye marry) free gift of their marriage portions; but if they of their own accord remit unto you a part thereof, then ye are welcome to absorb it (in your wealth). In Islam many newly wed couples are comparative strangers to each other unlike the relationships established before marriage in the vast majority of marriages of Christians from Western or Roman churches. Therefore, the process of negotiating and giving a gift to the bride, and her remittal of part or the whole of the gift offered may be considered to be an act of reciprocal altruism or the first step in the process of developing their partnership from an assumed platonic social relationship into an intimate personal partnership. The mahr given by the groom to his bride during an Islamic wedding can be interpreted as the transfer of the ownership and title to a sum of
1

Robert Smith, Kinship, 93 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University Press, 4th Edition, 2002) p.132

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money or property to publicly confirm his recognition of her new role in the family and society. This gift, viewed in this way, is in essence an act of empowerment and recognition of the womans increased social capacity that establishes her right to act more independently than an un-married woman. This recognition is not in principle affected by the value of the gift except that it can only be proven to be an actual recognition of rights when she has possession of the gift and by the degree of freedom of control she exercises over it.Upon the death of a wife her mahr, whether it has been paid to her or not, becomes the property of her heirs and they may claim its payment from her husband. If the husband dies before her she may claim it from his estate before it is divided amongst the inheritors or claim it from his heirs if it has been mixed with the deceaseds estate for any reason. The shariah guidance upon the value of mahr Although the mahr is an obligatory and essential element of the aqd al-Nikh the shariah does not set a maximum value upon the gift but its minimum value is specified as teaching the bride the verses of the Quran known to the groom. This value is derived from the hadith that describe a woman asking the Prophet if she could be married. The Prophet asked the men sitting with him if any of them wished to marry the woman and one man said that he would but when the Prophet asked if he had anything to give to the woman he explained that neither he nor his family had anything that they could give to her as a bridal gift. The Prophet asked what he knew of the Quran and to him to teach that to the woman as her gift. ( Bukhari 1985:7.62.24) Versions of this hadith also appear in Muslim, al-Muwatta, with different isnds in Tab al-. Some schools of Islamic law do recommend minimum cash values below which the mahr is considered as disliked but these are on the whole very low sums although it may be of interest to consider on what basis one of these values was calculated. I do not think that women should be married for less than a quarter of a dinar. That is the lowest amount for which cutting off the hand is obliged. (Mlik 1980:3.11) This analogous use of amputation, adopted with differing resultant sums by Mlik and Ab Hanfa, was criticised by Ibn

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Rushd (d. 1198 CE) for its weakness and its use in opposition to sound hadith. (Ibn Rushd 1996). The strength of the hadith specifying that there is no minimum value for mahr has not prevented an acceptable sum being established from the usual practice of the Prophet. Mahr al-sunnah as it is termed, is a recommended value set at not more than 500 dirhams. This sum of money is recommended because it is explicitly mentioned in several similar hadith that have been transmitted from different primary narrators and verified by scholars of both the Sunni and Shia schools. The following hadith is one of the versions found in Saih al-Muslim: Ab Salama b. Abd al-Rahmn reported: I asked isha, the wife of Allahs Messenger (saw): How much was the adq (mahr) of Allahs Messenger? She said: It was twelve qiyya (ounces) and one nash. She said: Do you know what a nash is? I said: No. She said: It is half of an qiyya, so that is five hundred dirhams, and that was the adqthat Allahs Messenger married with. (Muslim 1990: opposite p. 357) Spectorsky draws attention to hadith which indicate values of 480 and

400dirhams for mahr al-sunnah: Ibn Sad has a chapter on the dowers of the Prophetss wives, which contains eight traditions. Half report 500 dirhams as the amount that both the Prophets wives and his daughters received; the other half report 480 dirhams. (Spectorsky, S. 1993:18) She does not give any consideration to the changing value of the dirham during the period of the reporting and collecting of hadith. Certainly the number

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CHAPTER-II DEFINITION
PRIOR to Islam, two kinds of material gifts were prevalent. In a certain type of marriage, 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 the wife on marriage was called sadaq. In Islam sadaq simply means a dowry and is synonymous with mahr. But originally the two words were quite distinct: sadaq is a gift to the wife and mahr to the parents of the wife. 2 The latter term belongs to the marriage of dominion, which is known as the baal marriage, where the wifes people part with her and have to be compensated. Now mahr in the baal form of marriage was used by the Prophet to ameliorate the position of the wife in Islam, and it was combined with sadaq, so that it became a settlement or a provision for the wife. In Islamic law, mahr belongs absolutely to the wife.3 Thus, historically speaking, the idea of sale is latent in the law of mahr (dower). Justice Mahmood defines dower as follows: 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

Robert Smith, Kinship, 93 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford Kor. iv, 4; Ameer Ali, II, 461-2; Fat. Law 70 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan

University Press, 4th Edition, 2002) p.132

3

Law, (Oxford University Press, 4th Edition, 2002) p.132

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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.4 It 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. 5 This 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 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.6 There is no doubt that mahr was originally analogous to sale-price, but since the inception of Islam it is hardly correct to regard it as the price of connubial intercourse. If the authors of the Arabic text-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. In pre-Islamic Arabia, sadaq was a gift to the wife; but mahr was paid to the wifes father, and could therefore be regarded as tantamount to sale-price. But when Islam insisted on its payment to the wife, it could no longer be regarded strictly as a sale 7. Thus Islam sought to make mahr into a real settlement in favour of the wife, a provision for a rainy day and, socially, it became a check on the capricious exercise by the husband of his almost unlimited power of divorce. A husband thinks twice before
4 5

Abdul Kadir v. Salima (1886) 8 All. 149 Abdur Rahim, 334. as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University Hamiltons Hedava, 2nd ed. By Grady, 44, cited by Mahmood J. in Abdul Kadir v. Salima (1886) 8 All. Robert Smith, Kinship, 92-3, 111; Ameer Ali shows how the change was effected, II, 432-4, 461-3 as

Press, 4th Edition, 2002) p.133

6

149 at 157-8.
7

cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University Press, 4th Edition, 2002) p.133

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divorcing a wife when he knows that upon divorce the whole of the dower would be payable immediately. The Muslim concept of dower has no reference to the price that under some systems of law was paid to the father of the bride when she was given in marriage. On the other hand, it is considered a debt with consideration (for submission of her person by the wife). The result is that dower is purely in the nature of a marriage settlement and is for consideration. It is a claim arising out of contract by the husband and as such has preference to (sic) bequests and inheritance, but on no principle of Muhammadan law it can have priority over the contractual debts8 The best general observations on dower are those of Lord Parker of Waddington in Hamira Bibi v. Zubaida Bibi9 : Dower is an essential incident under the Muslim 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. Regarded as a consideration for the marriage, it is, in theory, payable before consummation; but the law allows its division into two parts, one of which is called prompt, payable before the wife can be called upon to enter the conjugal domicil; the other deferred, payable on the dissolution of the contract by the death of either of the parties or by divorce..But 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. 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 satisfies. This is called the widows lien for dower, and this is the only creditors lien of

8 9

Per Khaliluzzaman J. in Kapore Chand v. Kadar Unnissa, [1950] S.C.R. 747 at 751 (1916) 43 I.A. 294 at 300-1; also cited in Syed Sabir Husain v. Farzand Hasan (1937) 65 I.A. 119 at

127.

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the Muslim law which has received recognition in the British Indian Courts and at this Board.

Mahr in Islam: Gift or Payment for Sex?

This post was made in response to a discussion on whether mahr (i.e.: dowry) in Islam is a gift or actually payment by the man to have sex with the wife (i.e.: whether hes buying the woman like he buys the services of a whore). So, and to use no other basis than legal principles and rationale pure and simple, heres what. In contracts we have basic terms and conditions to be fulfilled before the contract is complete. In a gift contract, terms and conditions revolve entirely around the second definition given here (something voluntarily transferred by one person to another without compensation). But if the two parties in fact decide that the gift will instead be given for compensation, then the terms and conditions are so radically changed as to transform this from a gift contract to a normal business deal (i.e.: a buying and selling contract; something taken in compensation for something given). In marriage, a natural result of the man freely choosing to form a contract is that he is legally obliged to offer, I repeat, merely offer, a mahr. Note, this obligation has no stated compensation to it, when for compensation to exist it must always be clearly stated. The woman may refuse that mahr, but the marriage contract will be untouched and will be correct and complete all the same, and divorce may take place. Since, legally speaking, divorce is only permitted in the case of a correct and complete marriage contract (and thus an actual, ongoing marriage), then consequently mahr is neither a term nor a condition for a marriage contract. Hence, regardless of whether mahr is accepted or 9|Page

refused, the marriage contract remains virtually unchanged. Thus the analogy between marriage contracts and gift contracts/business deals is null and void.10 Further, arising as a direct, natural result to the man stating his wish to enter marriage, mahr is thus consequently voluntary. The reasoning is that when you accept to enter into any contract, you also voluntarily accept to be bound by any arising legal obligations. Due to all the aforementioned, and according to Sharia, two separate contracts arise when a man declares his wish to enter marriage. The normal marriage contract, and the gift contract (mahr), their only commonality lying a shared origin (the declaration by the man), yet both remain completely independent of each other in nature and effect. Additionally, gift contracts may be conditional. You may loan your car to a friend, on condition that he collects it himself from the mechanic. Your friend collecting the car is not compensation, but merely a condition of your gift. (This is in accordance with English Law. For a reference, see Contract Law, by Francis Quinn and Catherine Elliot). In this regard the mahr is a conditional gift. It is offered, on condition that half the amount is to be returned if the marriage is not consummated. This is one view on the matter. There is another, which states that the mans declaration gives rise to only one contract, the marriage contract, of which mahr is a stipulation or a provision. Unlike terms and conditions, which are essential to the contract, provisions may be dropped without necessarily nullifying the contract or changing its basic legal effects. Once again, this provision (mahr), as a component of the contract, is a legal obligation that arises and binds the man as a direct result of his voluntary declaration. It remains to the woman to keep this provision and identify its amount, or to remove it completely (refuse the mahr). Here, again, the mahr is treated as a gift in the ethical sense. Also, legally speaking, all other legal obligations remain the same and completely unchanged, with or without this provision (i.e.: the obligation of the man to spend financially on the house, or the obligation of the woman to obey her husband, or the obligation on both to raise their children, treat each other in a certain way, etc). Consequently, mahr in this case is without consideration, is also voluntary (remember,
10

Robert Smith, Kinship, 93 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University Press, 4th Edition, 2002)

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when you accept to enter into any contract, you also voluntarily accept any arising legal obligations), and can again be refused by the woman.11 The conclusion is, regardless of which explanation one pursues, the end result and the ultimate effects remain virtually the same. Under no possible scenario can mahr be considered payment for sex, only a gift.

Repayment of Mahr in cases of khul divorce. A khul divorce is one in which a wife sues for divorce even though the husband has not driven her to it by his unreasonable behavior. If there is no good reason for a wife wishing to divorce her husband, but it is a case in which she simply wishes to finish the marriage with no particular legal grounds against the husband, the husband may agree to grant her the divorce if she returns all or part of the mahr. This has to be agreed between them. If the wife does have genuine grounds for divorce - such as cruelty, mental cruelty, breaking of the marriage contract, adultery, desertion, incurable insanity, long-term imprisonment, abandonment of Islam - then the divorce is not khul but a normal talaq, in which the wife has as much right to instigate proceedings as the husband. In these cases, she most certainly does not have to hand over any of the mahr. If the wife has genuine grounds for divorce but the husband refuses the divorce, she may then approach lawyers for khul, and appoint an Imam to act for her. It is sensible to do this as well as having a UK lawyer. She is not required to pay back any of her mahr. Indeed, the lawyers may demand some further compensation for her if the husband is guilty. (She may have to prove his guilt, and should gather as much evidence beforehand as she can - such as signed and witnessed statements of witnesses, photographs of injuries sustained, etc).12
11

Robert Smith, Kinship, 93 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University Press, 4th Edition, 2002) 12 Mahmood , Syed Tahir. ,The Muslim law of India, Law Book Co., 1980

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Under what conditions is it payable?

There are two main ways of properly presenting mahr to the bride. The first way is to hand it over in full at the time of marriage, in which case it is known as mahr mu'ajjal, or 'promptly given mahr'. (Notice the ' . The word is derived from 'ajilah, meaning 'without delay'. This was the accepted practice during the time of the Prophet, and the amount fixed was generally quite minimal. In the case of Fatimah and Ali, Ali informed the Prophet that he had nothing to give her. The Prophet reminded him of a coat of chain-mail he had been given. It was still in his possession, although in a dilapidated condition and worth less than four dirhams. The Prophet suggested he gave that to Fatimah, and this was done. The second way of presenting mahr is to defer it, to hand it over to the bride after a certain period of time, the duration of which must be specified, fixed by the man and agreed by the wife. This has to be settled, with witnesses, at the time of the marriage. This form of mahr is known as mahr muwajjal. (the word implies 'in a period of time'). The five major schools of Islamic jurisprudence all agree that delay in handing over the mahr, whether in full or in part, is lawful provided that the fixed period for payment is not indefinite.13 This method should never be used as an excuse to willfully postpone the payment. A definite date should always be fixed, witnessed, and adhered to. It should certainly not be left 'hanging' in case the marriage breaks down and the couple come to consider a divorce - because of the inevitable emotions, bitterness, arguments, hostilities and financial problems involved at that time.

13

Mahmood , Syed Tahir. ,The Muslim law of India, Law Book Co., 1980

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If the husband died, or they got divorced, the mahr debt must be paid up immediately to the widow before his inheritance or other financial settlements are considered. It is her property, and not his.

How much should the Mahr amount be? It is unIslamic for a Muslim woman to set a huge demand for herself, with the intention of deterring suitors of humble means. Islam does not require husbands and wives to come from the same social strata or income brackets - although this may often seem to be advisable. Islamic compatibility is based on religious faith and mutual respect, not on money, caste (another Hindu custom), class, background, nationality, etc. It is just as unIslamic to demand a huge mahr, generally beyond the husband's means, based on the intention of checking the husband from ill-treating his wife, or wrongfully or causelessly divorcing the wife, or preventing him from remarrying another later - the reasoning being that in cases of divorce the woman can demand the full payment of the mahr. The fixing of a substantial mahr for the above purposes rests on the supposition that the mahr has to be fixed at the time of marriage, but not handed over until divorce which gives it a supposed 'deterrent' value. This is unlawful in Islam, for in this case the wife has no use or ownership of the mahr during the time of the marriage. If the prospective husband is not a wealthy man, a generous wife may choose to accept very small mahr, but this has to be her own free choice. She should not be coerced or have pressure put on her in any way. Some of the Prophet's female companions accepted their husbands' conversions to Islam, or memorising of ayat of the Qur'an, or giving education to others as their mahr. The mahr has to be fixed taking into account the bridegroom's position in life. That is, it should not normally be more than he is easily able to afford, whether it be a lump sum or 13 | P a g e

some article of value. Jurists have different views on what the minimum amount should be, but all agree that it should be substantial enough for something to be bought against it. In other words, any amount which is sufficient for a purchase is acceptable as mahr. The husband may be loaned money by his father or family, but it must be repaid. In the case of Nabi Musa (the Prophet Moses), when he left Egypt for Madyan he married Safura the daughter of the Prophet Shu'ayb. His mahr mu'ajjal was settled and paid off by binding himself to grazing his father-in-law's cattle for ten years without wages. Presumably Shu'ayb had paid Safura on Musa's behalf. A good woman might agree on a low mahr if she wishes, or none at all, according to the circumstances of her husband. Once fixed it is fixed, and legally binding - so it is good practice to have it written down and witnessed on a document. The wife should take advice on her decision, and not be blinded by emotion, or coercion, or fear, or family pressure. If any person pressurises a woman into a decision she might not have otherwise made, that person will be held to account in the Life to Come, even if he 'got away with it' on this earth. One recorded hadith suggests that 'the best woman is the one whose mahr is the easiest to pay.' (al-Haythami, Kitab an-Nikah 4:281). However, it is sensible for a wife to accept a reasonable mahr, as this becomes her own property as stated, and is hers to keep should the marriage fail and end in divorce.

Who owns the mahr? Can it be refused?

It is owned solely by the wife. The husband is not allowed to refuse to pay his wife a proper mahr or faridah. The settling of the payment is obligatory.

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'Women are lawful to you.provided that you take them in marriage and not fornication. As to those through whom you profit (through marriage), give them their faridah as appointed.' (2:24). The same applied when marrying Jewish or Christian women (5:5). If a Muslim man married someone 'whom his right hand possessed' (ie a slave or prisoner of war), the mahr was to grant her freedom and other payment was not required. Caliph Umar ruled that if a woman had excused her husband his mahr, but later demanded it, the husband should be compelled to pay it on the grounds that the fact that she demanded it was a clear proof that she had not remit it of her own free will. The case of a woman whose husband died before fixing the amount of the dowry or consummating the marriage was brought to Abdullah b. Mas'ud. He ruled that she should be paid according to the mahr of women of like status to herself. The Shafi 'I school rules that a wife may refuse to consummate the marriage if the husband agreed to pay the mahr immediately, but did not do so. She may have the marriage annulled.

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SOCIETAL ASPECT OF MAHR

The Socially Aggressive Mahr. The mahr can be used for socio-political motives as seen in display the power and wealth that a person, family or group has in order to establish social divisions by intimidation. In the case of al-Mamn his display of wealth, that included scattering 1000 matched pearls over his bride to be, left no doubt as to who was the ruler and who were the ruled. Al-Mamn on the eve of the wedding also compelled his father in law to drink wine as a further display of his Caliphal power. Where mahrs are agreed for the purpose of extravagance or as a way of creating or maintaining class divisions they need to be excluded from the calculation of the typical mahr in a given society. They are distortions of an Islamic practice and are in principle contrary to Islamic ethics.14 The Socially Strategic Mahr In an attempt to be associated with those who are endowed with the means to deploy socially aggressive mahrs individuals and families will emulate the excessivemahrs of the elite. That is an attempt to defend the self-perception of their status and leads them to demand that un-reasonable sums be agreed for mahr. The details of the agreed sums may be flaunted publicly contrary to the behaviour expected of Muslims, And
14

Mahmood , Syed Tahir. ,The Muslim law of India, Law Book Co., 1980

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swell not thy cheek (for pride) at men, nor walk in insolence through the earth; for Allah loveth not any arrogant boaster. 15

The Socially Constructive Mahr Where the parties to a marriage might settle for a mahr of high value but decide for reasons of mutual or public interest to proceed upon an amount that is within the range of commonly accepted mahrs they can be said to be socially constructive. They set an example of mutual consideration for all to see. In cases where couples of average status settle for less than the norm their decision .

15

Mahmood , Syed Tahir. ,The Muslim law of India, Law Book Co., 1980

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REGULATION OF GOVERNMENT ON MAHR

Having presented evidence that there are social, legal and economic problems associated with the values agreed for mahral gifts that fall into the three categories of sunnah noncompliance an ethical question should be addressed, particularly by Muslims. By what right do we initiate further legislation and change to what may be seen as a private transaction? If it is accepted that marriage is intended for the good of the individual and society then anything that acts against marriage acts against society and society has grounds upon which to act. An Islamic justification for the permissibility of regulation can also be made on the grounds of public interest and this can be specifically supported in regard to mahr with or what satisfies the people, that is commonly used by Kulayni in the narrations they report defining mahr as an alternative to the mahr al-sunnah. Alns is not given any restriction and so it may apply to the bride and groom, near relatives or be extended to anyone who is affected by the sum agreed. Thus regulation would seem to be justified when the primary purpose for regulating the size of mahral payments is to maximise their positive social effects and avoid them becoming an obstacle to marriage.16 The history of attempts to regulate mahral payments begin it is said when the Caliph Umar tried to fix a maximum amount to stop the large sums being given as mahr preventing poorer Arab men from marrying during his rule. He was forced to abandon the attempt when a woman objected with the words, You shall not deprive us of what God gave us. Although the accuracy and authenticity of this report are questionable there is, by its frequent use in discussions upon the issue of mahral values,
16

Diwan , Paras, Muslim law in modern India, Allahabad Law Agency, 1977

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a strong indication of an early and lasting concern about them and their affect in limiting the number of available marriage partners. This concern can also be inferred to have existed in the first century AH by the number of hadith that refer to 500 dirhams and in the second and third centuries AH by the frequency with which the Shiite Imams and early Sunni scholars responded to the question of what should be given with the answer mahr al-sunnah. In the twentieth century attempts to limit the size of mahral payments by legislation met with as little success. In Afghanistan in 1924 and 1978 limits were imposed but failed to gain popular support because women felt they were being devalued, and Turkey with the adoption of Swiss Family Law tried to outlaw mahr altogether but the practice still continues. The issue in Turkey was the secularisation of the state while in Afghanistan bridal gifts were seen as an impediment to national and educational development because the high mahrsforced men to work from 5 to 10 years in order to obtain a bride. Countries with large religious minorities, such as Malaysia and India, have made provision for variations in family law for different faiths. India has the Muslim Women (Protection of Rights on Divorce) Act, 1986 3), among other provisions to include shariah laws within the secular law of the nation. This act recognisesmahr and allows a magistrate to order its payment, or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of subsection (1) to the divorced woman: An Indian magistrate may also reduce the sum offered or order its payment by instalments after assessing the mans wealth and income.17

17

Diwan , Paras, Muslim law in modern India, Allahabad Law Agency, 1977

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The current status of mahr in law (England and Wales)

As stated in the opening paragraph the parties to a nikh can derive some recognition at law by being considered to have formed common law marriage but in England and Wales: All marriages which take place in the United Kingdom must, in order to be recognised as valid , be monogamous and must be carried out in accordance with the requirements of the Marriage Act 1949, as amended by the Marriage Acts of 1970, 1983 and 1994, the Marriage Regulations of 1986 and other related Acts (eg; the Children Act 1989). (Immigration Directorates Instructions 2003). Thus, the often referred to case of Shanaz v Rizwan was dealt with as a marriage contracted according to foreign law and the mahr was awarded to the wife under the provisions of Indian Law. (QBD 1965:390) Mahr has never been accepted in English courts of law as a notorious fact. Justice Winn in his summation of Shanaz v Rizwan at appeal wrote, the right to dower, once it has accrued as payable, is a right in action, enforceable by a civil action without taking specifically matrimonial proceedings, regarded by Mohammedan law as a proprietary right assignable under section 3 of the Transfer of Property Act, 1882, of the Indian Code, (Winn 1964) As McLean says, English courts take judicial notice of the law of England and of notorious facts, but not of foreign law. It would, however, require further adaptations of 20 | P a g e

current Muslim marriage formalities to increase the possibility that brides and ex-wives might enforce their right to receive any deferred payments in the future. These adaptations would include arriving at a specified value range for marital gifts that would be regarded by courts as being acceptable for legal action to be pursued and specifying that the mahr is a gift within the marriage so that claims for its payment might proceed under the provisions of the Married Womens Property Act of 1882, section 17, in the United Kingdom. (Black, J., J. Bridge and T. Bond 1998:508) This need to establish the time and date of the marital gift is less critical if a Civil Marriage ceremony has been solemnized before the reading of the aqd al-Nik. Where the civil ceremony precedes the aqd the gift of the mahr is de facto within the legally recognised marriage but to date this has not been tested at trial. There are also lessons to be learned from experiences in U.S. courts where in some cases the payment of mahr has been enforced but has often been confused with the Jewish get or simply been misunderstood: There are some elements of American ante-nuptial contracts that are clearly at odds with Muslim practice. For example, refusal to enforce mahr terms because they tend to encourage separation by only providing for settlement in the event of divorce. This disregards many important principles in Islamic culture: in particular those that place emphasis on the promotion and preservation of marital ties. Additionally, there is no tradition in Islam requiring disclosure of assets or seeking legal advice prior to matrimony. Continuing with the current position of nikh and consequently mahr being unregulated by law allows any misuse to continue unchecked and leads some commentators to the conclusion that, Obviously courts do not understand the purpose of the Mahr Agreement which does not in any way facilitate divorce or separation.18

18

Gajendragadkar, P. B., Endowment lectures , Syed Tahir Mahmood, Personal laws in crisis Metropolitan, 1986

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A possible alternative to achieve regulation and legal recognition for mahr. Having criticised the attempts that have been made to regulate the size and value of property given as mahr an alternative possibility may be considered by legislators for Islamic and non-Islamic countries. It is reasonable that gifts made for purposes other than fulfilling a religious obligation, i.e. as a transaction, should to some extent, be regulated by laws commonly applied to other transactions. To coin a Christian gobbit, we should render Caesar his due. Especially if by doing so social and religious benefits may be accrued. A measure for the inclusion of mahr within the regulations and laws that provide for taxation of income will regulate the sums offered and also confer a real legal status to mahr that it does not have at present. Mahr can be considered as income for the woman, an assumption that is supportable in the Quran .it is possible to consider that these gifts might be subjected to some form of income tax. Individual governments will need to assess what the mahr al-sunnah will equate to in their own currency, for it may form the basis of calculating an acceptable tax threshold that protects that portion of the gift which is purely religious in its intent, before establishing the rate of taxation and any graduation of it. 19

19

Gajendragadkar, P. B., Endowment lectures , Syed Tahir Mahmood, Personal laws in crisis Metropolitan, 1986

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NON-PAYMENT OF DOWER
The 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. It 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. If she predeceases the husband, the heirs of the wife, including the husband, become entitled to her dower. A lady, whose mahr was Rs. 50,000, received from her husband during his lifetime sums of money in the aggregate exceeding the mahr settled on her. The largest of such payments was Rs. 3,000. There was no evidence that these payments were intended by the husband to satisfy the doer debt. The question arose whether these payments satisfied the husbands obligation. The Judicial Committee held that such payments were not to be treated as having been made in satisfaction of the dower debt.20 Non-payment of Prompt Dower If the husband refuses the pay prompt dower, the guardian of a minor wife has the right to refuse to allow her to be sent to the husbands house; and similarly, the wife may refuse the husband his conjugal rights, provided no consummation has taken place. The wife is under Muhammadan 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.21

20 21

Mohammad Sadiq v. Fakr Jahan (1931) 59 I.A. 19. Nur-ud-din Ahmad v. Masuda Khanam PLD 1957 Dacca 242; Muhammadi v. Jamiluddin PLD 1960

Karachi 663.

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This right of refusing her is, however, lost on consummation. 22 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 is to pass a decree for restitution conditional on the payment of prompt dower. This was laid down in the leading case of Anis Begam v. Muhammad Istafa Wali Khan.23 Non-payment of Deferred Dower The non-payment of deferred dower by its very nature cannot confer any such right of refusal on the wife. The right to enforce payment arises only on death, divorce or the happening of a specified event. 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 husbands property, unless there be an agreement. The Supreme Court of India has laid down i. ii. That the widow has no priority over the creditors, but That mahr as a debt has priority over the other heirs claims.24 And the heirs of the deceased are not personally liable to pay the dower; they are liable rateably to the extent of the share of the inheritance which comes to their hands.

The Widows Right of Retention

22

In Lahore it has been held that consummation does not deprive the wife of her right to refuse conjugal

relations if the prompt dower is not paid, Rahim Jan v. Muhammad, PLD 1955 Lahore 122; per contra, Rabia Khatoon v. Mukhtar Ahmad AIR (1966) All. 548, which, it is submitted is the correct view.
23

(1933) 55 All. 548. This case is of great importance as Sulaiman C.J. has carefully considered and Kapore Chand v. Kadar Unnissa [1950] S.C.R. 747.

criticized certain dicta of Mahmood J. in the leading case of Abdul Kadir v. Salima (1886) 8 All. 149
24

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Muhammadan law gives to the widow, whose dower has remained unpaid a very special right to enforce her demand. This is known as the widows right of retention. A widow lawfully in possession of her deceased husbands estate is entitled to retain such possession until her dower debt is satisfied. 25 Her right is not in the nature of a regular charge, mortgage or a lien26; it is in essence a personal right as against heirs and creditors to enforce her rights; and it is a right to retain, not to obtain, possession of her husbands estate. Once she loses possession of her husbands estate, she loses her special right and is in no better position than an unsecured creditor.27 The nature of this right was discussed by their lordships of the Privy Council in Maina Bibi v. Chaudhri Vakil Ahmad28 . One Muinuddin died in 1890 possessed of immovable property leaving him surviving his widow Maina Bibi, who entered into possession. In 1902 some of the heirs filed a suit to recover possession of their share of the property. The widow pleaded that the estate was a gift to her, or alternatively that she was entitled to possession until her dower was paid. In 1903 the trial judge made a decree for possession in favour of the plaintiffs on condition that the plaintiffs paid a certain sum by way of dower and interest to the widow within six months. This sum was not paid, however, and the widow remained in possession, in 1907 Maina Bibi purported to make a gift of the whole of her property to certain persons. The original plaintiffs challenged this gift and the Privy Council held that the widow had no power to make a gift of the properties, and could not convey the share of the heirs to the donees. Their lordships, in discussing the nature of a widows right of retention, said that the possession of the property being once peaceably and lawfully acquired, the right of the widow to retain it till her dower-debt is paid is conferred upon her by Mahomedan Law.29

25 26 27 28 29

Mirvahedalli v. Rashidbeg, AIR (1951) Bom. 22 Zaibunnissa v. Nazim Hasan, AIR (1962) All. 197 Ibid (1924) 52 I.A. 145. Id at p. 150.

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They further said that it is not exactly an lien, nor a mortgage, usufructuary or other. The widow who holds possession of her husbands property until she has been paid her dower has no estate or interest in the property as a mortgagee under an ordinary mortgage.30 Thus, in essence, it is a personal right given by Muhammadan kaw to safeguard the position of the widow.31 The Supreme Court has laid down that a Muslim widow in possession of her deceased husbands 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.32 There is a conflict of opinion whether in order to retain possession the consent, express or implied, of the husband or his heirs is necessary. Some judges are of opinion that such consent is necessary; others, that it is not. It is submitted with great respect, that on first principles, having regard to the nature of the right, the consent of the husband or his heirs is immaterial. Muhammadan law casts a special obligation on every debtor to pay his debt, and the right of the widow for her dower is a debt for which the widow has a good safeguard. Thus, the question of consent appears to be immaterial. The right to 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 retain possession of the estate until her mahr has been paid. The right to hold possession must, therefore, be sharply distinguished from her right as an heir. The widow, in these circumstances, has the right to have the property administered, her just debts satisfied and her share of the inheritance ascertained and paid. She has no right to

30 31 32

Id at p. 151. The Patna High Court has adopted this view, Abdul Samad v. Alimuddin (1943) 22 Pat. 750. Supra Note 25

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alienate the property by sale, mortgage, gift or otherwise, and if she attempts to do so, she loses her right of mahr. There are two other major questions on which the law is still unsettled. Can the widow transfer her right of retention? And is this right of retention heritable? In Maina Bibi v. Chaudhri Vakil Ahmad33 their lordships expressed a doubt whether a widow could transfer the dower debt or the right to retain the estate until the mahr was paid. Following that case there has been much conflict of judicial opinion on the questions as to the heritability and transferability of this right. The Mysore and Allahabad High Coutrs have decided that the right is both heritable and transferable 34; but the Patna High Court has held that the widows is a personal right, and not a lien, and as such, it is not transferable.35 Although there is a conflict of opinion, in view of Kapore Chands case, the balance of authority seems to be in favour of the Patna view.

33 34 35

Supra Note 29 Hussain v. Rahim Khan AIR (1954) Mysore 24; Zaibunnissa v. Nazim Hasan AIR (1962) All. 197. Zobair Ahmad v. Jainandan Prasad AIR (1960) Pat. 147.

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ANALYSIS OF SOME CASES 1) Mohd. Ahmed Khan v. Shah Bano Begum and Ors.36

HONBLE JUDGES Y.V. Chandrachud, C.J., D.A. Desai, E.S. Venkataramiah, O. Chinnappa Reddy and Ranganath Misra, JJ. FACTS The appellant, who is an advocate by profession, was married to the respondent in 1932. Three sons and two daughters wire born of that marriage. In 1975 the appellant drove the respondent out of the matrimonial home. In April 1978, the respondent filed a petition against the appellant under Section 125 of the Code in the court of the learned Judicial Magistrate (First Class), Indore asking for maintenance at the rate of Rs. 500 per month. On November 6, 1978 the appellant divorced the respondent by an irrevocable talaq. His defence to the respondents petition for maintenance was that she had ceased to be his wife by reason of the divorce granted by him, to provide that he was therefore under no obligation maintenance for her, that he had already paid maintenance to her at the rate of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the court by way of dower during the period the of iddat. In August, 1979 the learned Magistrate directed appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. It may be
36

AIR 1985 SC 945

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mentioned that the respondent had alleged that the appellant earns a professional income of about Rs. 60,000 per year. In July, 1980 in a revisional application filed by the respondent, the High court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. The husband thus came before the Supreme Court by Special leave.

RELEVANT ISSUE 1) Would the payment of mahr indemnify the husband from his obligation under the provisions of Section 125 Cr.P.C? DECISION The Court decided that mahr is different from a sum payable on divorce which occurs in Section 127(3)(b) of Cr.P.C and hence does not indemnify the husband from his obligation under the provisions of Section 125 Cr.P.C. REASONING In Mullas principles of Mahomedan Law (18th Edition, page 308), mahr or Dower is defined in paragraph 285 as a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. Dr. Paras Diwan in his book, Muslim Law in Modern India (1982 Edition, page 60), criticises this definition on the ground that mahr is not payable in consideration of marriage but is an obligation imposed by law on the husband as a mark of respect for the wife, as is evident from the fact that nonspecification of mahr at the time of marriage does not affect the validity of the marriage. Under the Muslim Personal Law, the amount of mahr is usually split into two parts, one of which is called prompt, which is payable on demand, and the

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other is called deferred which is payable on the dissolution of the marriage by death or by divorce. But, the fact that deferred mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable on divorce. Even assuming that, in a given case, the entire amount of mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. Divorce maybe a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression on divorce, which occurs in Section 127(3)(b) of the Code. If mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the Marriage. Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce. A man may marry a woman for love, looks, learning or nothing at all. And he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable on divorce.

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2) Md. Nayeem Khan v. Union Law Secretary, Government of India, New Delhi
and others 37 HONBLE JUDGES Satya Brata Sinha, C.J. and V.V.S. Rao, J FACTS This case is based on a very complex factual matrix. However, the relevant issue to be discussed does not require much elaboration of facts. Hence, the author is not mentioning the facts. RELEVANT ISSUE 1) Whether Muslim women entitled to retain possession of husbands immovable property even after divorce, until her dower debt is satisfied? DECISION The Court decided that a Muslim widow is conferred with the right to retain property in lieu of payment of mahr till it is paid off, whether she is divorced or her husband is deceased. REASONING A principle of Muslim law confers a right on the widow to retain the immovable property of her late husband in her possession in lieu of payment of Mahr till the same is paid off.
37

2001 (5) ALD 145

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Possibly the same principle may be extended having regard to the rationale behind the said principle to cases where the divorced wife is in possession of a house of the husband or in regard to the matrimonial home where she is residing. She may be entitled to retain possession of the house of the husband who divorced her till the mahr amount is paid off.

3) Kapore Chand v. Kadar Unnisa Begum and Ors.38

HONBLE JUDGES Mehr Chand Mahajan, R.C. Patnaik and Khaliluzzaman, JJ. FACTS The appellant, Kapurchand, had a money decree, amongst others; against one Mir Hamid Ali Khan, husband of the respondent Kaderunnisa. In execution of the decree the house in dispute belonging to the deceased judgment-debtor was attached. To the attachment the widow of the deceased raised an objection on the ground that she was in possession of it in lieu of her outstanding dower and could not be dispossessed her claim was satisfied. The objection was allowed by the executing court and it was ordered that the house be sold subject to the respondents claim, the decree-holder being entitled to the surplus, if any, out of the sale proceeds. There was not much possibility of the house fetching more in the execution sale than the amount due on account of dower. The court took the view that the widows claim for dower had priority over debts due to other unsecured creditors and her position was analogous to that of a secured creditor.

38

AIR 1953 SC 413,

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The decree-holder made an application in revision to the High Court but without any success. He then preferred an appeal to the Judicial Committee of the State and it is now before the Supreme Court of India.

ISSUE 1) Whether widow possessing husbands estate in lieu of dower entitled to priority over other creditors?

DECISION The Court decided that a widow possessing husbands estate in lieu of dower is not entitled to priority over creditors; however it is entitled priority against heirs of the deceased husband. REASONING The dower of a Muslim woman is a settlement in her favour made prior to the marriage contract and is similar to the donation proper nuptias of the Romans but is of such an obligatory nature that if it is not mentioned before or at the time of the marriage, it is presumed to exist to the extent of a proper dower amount The Muslim concept of dower has no reference to the price that under some systems of law was paid to the father of the bride when she was given in marriage. On the other hand, it is considered a debt with consideration (for the submission of her person by the wife). Therefore dower is purely in the nature of a marriage settlement and is for consideration. It is a claim arising out of contract by the husband and as such has preference to bequests and inheritance, but on no principle of Muhammadan Law it can have priority over other contractual debts.

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In our view, therefore, a dower debt cannot be given any priority over other debts on any equitable consideration or on the ground that there is something inherent in its very nature which entitles it to priority.

CONCLUSION
In conclusion, all that can be said is that Mahr is a mandatory gift given by the groom to the bride. Unlike a bride price, however, it is given directly to the bride and not to her father. Although the gift is often money, it can be anything agreed upon by bride and groom such as a house or viable business that is put in her name and can be run and owned entirely by her if she chooses. In todays terms, it has taken a very wide scope and many important constitutional questions have also cropped up. However, in my opinion, even though Dower serves as security for the girl, it should entirely be scrapped. Infact, all personal laws should be scrapped and a uniform civil code should be brought in. This shall make the Indian Society live in a state of perfect harmony.

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BIBLIOGRAPHY
BOOKS

1. Robert Smith, Kinship, 93 ,Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University Press, 4th Edition, 2002) 2. Mahmood , Syed Tahir. ,The Muslim law of India, Law Book Co., 1980 3. Diwan , Paras, Muslim law in modern India, Allahabad Law Agency, 1977 4. Gajendragadkar, P. B., Endowment lectures , Syed Tahir Mahmood, Personal laws in crisis Metropolitan, 1986
Eastern Book Company, 1963

5. Saksena,Kashi Prasad , Muslim Law as Administered in India and Pakistan,4th ed.

WEBSITES

1. Legalseviceindia.com 2. Manupatra.com

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