Mahr (Dower) under Muslim Law

In Islam, a mahr (mehr, meher, or mahrieh) is a mandatory payment, in the form of

money or possessions paid by the groom, or by groom's father, to the bride at the time
of marriage that legally becomes her property. While the mahr is often money, it can
also be anything agreed upon by the bride such as jewelry, home goods, furniture, a
dwelling. Mahr is typically specified in the marriage contract signed during an Islamic
marriage. Mahr is similar in legal enforceability to donatio propter nuptias of Eastern
Roman law, except some critical differences. Donatio propter nuptias was optional
and voluntary, while mahr is mandatory and required for all Muslim marriages. Mahr
is not an optional gift. The other difference was that donatio propter nuptias was a
security the groom delivered to bride or registered in her name, at the time of
marriage, in exchange for dos (dowry) that came with the bride. Mahr is a religious
requirement according to Sharia.

In pre Islamic Arabia, when the institution of marriage as we know it today was not
developed, many forms of sexual relationships existed. Some were hardly better than
prostitution. Men, after despoiling their wives, often turned them out, helpless and
without any means. Under this background, Islam tried to provide a just treatment for
wives. In Muslim Law, a husband can divorce his wife at his whim and to ensure that
the woman is not left helpless and without any means, the concept of Mahr was
brought in. It forces the husband to pay a certain amount to the wife either at the time
of marriage or at the time of dissolution of marriage. This amount acts as a security to
the wife in case she is turned out by the husband or in her old age.

Definition
As per Tyabji, Mahr is a sum that becomes payable by the husband to the wife on
marriage either by agreement between the parties or by operation of law. It may either
be prompt (Mu ajjal) or deferred (Mu wajjal).
According to Amir Ali, Mahr is a consideration which belongs absolutely to the wife.
In Saburunnessa vs Sabdu Sheikh AIR 1934, Cal. HC held that Muslim marriage is
like a contract where wife is the property and Mahr is the price or consideration.
However, it is also true that non-payment of Mahr does not void the marriage, so
Mahr is not purely a consideration.
Importance of Mahr
Marriage in Muslim Law provides an absolute power to the husband to divorce his
wife. It also allows the husband to have multiple wives. This often results in a
desperate situation for women because they are left with no means to support
themselves. Mahr mitigates this issue to certain extent. Therefore, Mahr is very
important for balancing the rights of the husband and wife. Mahr is an absolute
requirement of a Muslim marriage and so, even if Mahr is not specified at the time of
marriage, the law will presume it by virtue of the contract of marriage itself. Even if a
woman stipulates to forgo the Mahr, her declaration will be invalid.
In Abdul Kadir vs Salima AIR 1980:
Justice Mahmood has observed that the marriage contract is easily dissoluble and the
freedom of divorce and of polygamy to a husband place the power in the hands of the
husband, which the Muslim law intends to restrain by the mechanism of Mahr. Thus,
right of wife to her Mahr is a fundamental feature of the marriage contract.
Thus, Mahr serves the following purposes
a) to impose an obligation of husband as a mark of respect to wife.
b) to place a check on the power of husband to divorce and polygamy.
c) to provide for subsistence of wife in the event she is divorced by the husband.
Nature of Mahr
Mahr is an essential requirement of a muslim marriage. Thus, it is obligatory for the
husband to pay Mahr to wife upon marriage. A wife has an unrestricted right to
demand Mahr from husband. In Abdul Kadir vs Salima, J Mahmood observed that
Mahr may be regarded as a consideration for concubial intercourse by way of analogy
to the contract for sale. It provides the woman with the right to resist the husband until
Mahr is paid. This right is akin to the right of lien of a vendor upon sold goods while
they remain in his possession and so long as the price for the goods has not been
paid. In Smt Nasra Begum vs Rizwan Ali, it was held that right to dower precedes
cohabitation. Thus, a wife can refuse consummation of marriage until Mahr is paid.
The right of wife to her dower puts her in a similar position as that of other creditors.
Just like other creditors, she must be paid out of the property of the husband. Thus, it
can be said that Mahr is a kind of debt upon the husband incurred in marriage.
However, at the same time, payment of Mahr is not a charge upon the estate of the
husband, unless an agreement is made to that effect. The interest that a wife has over
the property of her husband in lieu of dower debt is limited to existing lawful
possession towards her self enjoyment only. It does not give her the right to alienate
the property. After the death of the husband, she can sue the heirs for the dower but
heirs are not personally liable for it. They are liable only to the extent of their share in
the inherited property.
A dower can also be secured by an agreement just like any other debt. In Syed Sabir
Hussain vs Farzand Hussain, a father stood surety for payment of dower by his
minor son. After his death, his estate was held liable for the payment of his son's
dower.

Kinds of Mahr
Mahr is of two kinds - Specified (Mahr i Musamma) and Customary or Proper (Mahr i
Misl)
Specified Dower:
Specified Dower means the dower that has been agreed upon by the parties at the time
of marriage. Such a dower can be settled before marriage, at the time of marriage, or
even after the marriage. In case of a minor or a lunatic, the guardian can fix the
amount of dower. Dower fixed by the guardian is binding upon the boy and after
attaining puberty or majority, he cannot take the plea that he was not a party to it.
A husband can settle any amount as dower to his wife, even if that leaves nothing to
the heirs but he cannot settle for less that 10 dirhams in Sunni Law.
Shia law has no minimum. For those Muslims who are so poor that they cannot even
pay 10 dirhams, they can teach the wife Quran in lieu of paying Mahr.
Specified dower can further be divided into two categories-
Prompt (Mu Ajjal), and
Deferred (Mu Wajjal)

Mu Ajjal - As the names suggest, Mu ajjal dower means that the dower is payable
immediately upon the marriage.

1. The wife has a right to refuse cohabitation with the husband until she is paid
the dower.
2. If the wife is a minor, the guardian can refuse to allow the wife to be sent to the
husband until dower is paid.
3. 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.
4. Prompt dower does not become deferred after consummation and the wife has
the right to demand and sue for it any time.
5. The period of limitation starts after demand and refusal and it is of three years.
Mu Wajjal - It means that the dower is payable upon dissolution of marriage either
by divorce or by death of husband.

1. Even though it is deferred, an agreement to pay be before is valid and binding.
2. A wife does not have a right to claim dower but a husband can treat it as
prompt and transfer property as payment.
3. 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.
4. The interest of wife in deferred dower is a vested one and her heirs can claim it
after her death.
Customary or Proper Mahr (Mahr i Misl)

When the amount of dower is not fixed in the marriage contract or even if the
marriage has been contracted on the condition that she will not claim any Mahr, the
wife is entitled to Proper Dower. The amount is to be arrived upon after taking into
consideration the amount of dower settled for other female members of the father's
family. It is also regulated with reference to the following factors:-
1. Age, beauty, fortune, understanding and virtue of wife.
2. social position of the father
3. Dower given to her female paternal relations.
4. Economic condition of the husband.
5. Circumstances of the time.
There is no limit on the maximum limit in Sunni Law, but shia law prescribes a
maximum limit of 500 dirhams, which was the amount paid by Prophet Mohammad
for his daughter Fatima.

Legal Consequences of Mahr (Rights of wife in case of non payment of Mahr):
1. Dower is like a debt and the husband is liable to pay it to the wife before the
consummation of marriage. Until it is paid, the wife has a right to resist
cohabitation with the husband.
2. If the wife is in possession of husband's property, she has a right to retain it
until dower is paid. She does not get a title to the property and does not get a
right to alienate it.
3. Wife can sue heirs of the husband for payment of dower.
4. If the dower is deferred, the wife is entitled to it upon dissolution of marriage
either due to divorce or due to death.
5. Dower is a vested right and not a contingent right. Thus, even after the death of
the wife, her heirs can demand it.
6. If dower has not been agreed upon at the time of marriage, courts can decide
the amount of dower by taking financial status of the husband, age of wife, cost
of living, property of wife, into consideration.
Right of wife over husband's property

Dower ranks as debt and the wife is entitled, along with other creditors, to have it
satisfied on the death of husband out of his estate. Her debt, however, is no greater
than any other unsecured creditor except that if she is lawfully in possession of the
husband's property, she is entitled to that possession until she is able to satisfy her
debt by the rents or issues accruing out of the property. She is also entitled to the
possession against the heirs of the husband until her dower is satisfied.
Limitations on right of retention
This right arises only after the death of the husband or after divorce. During the course
of marriage, a wife does not have any right to retain the property.
She should have obtained the possession lawfully.
Right to retention is not analogous to mortgage. Thus, she does not get title to the
property in case dower is not paid. Further, if the property is mortgaged, the wife
cannot retain possession against the mortgagee.
Wife cannot alienate the property. She has to satisfy the dower only though the rents
or other issues accruing from the property.
In a leading case of Maina Bibi vs Chaudhary Vakil Ahmad, one Moinuddin died
leaving his widow Miana Bibi and some property. The respondents instituted a suit
against the widow for immediate possession of the property. However, the widow
claimed that she had the right to possession until her dower was paid. It was held that
the respondents could have the possession of their share of the property after paying
the dower to the widow. The respondents did not pay and the widow continued
possession. Later, the widow sold the property. The deed showed that the widow tried
to convey an absolute title to the property. The respondents again filed the suit
claiming that the widow did not have the right to transfer property because she only
had a right to retain and did not have any right to title for herself. It was held by the
Privy Council that a widow has the right to retain the possession of the property
acquired peacefully and lawfully, until she is paid her dower. Further, she has no right
to alienate the property by sale, mortgage, gift, or otherwise.

Remission of Mahr:
A husband can increase the amount of debt at any time, though he cannot decrease it.
A wife can remit the dower wholly or partially. The remission of Mahr by wife is
called Hibe e Mahr. However, she should have attained puberty to do so. She does not
have to be a major to relinquish Mahr, only attaining puberty is sufficient. The
remission made by the wife should be with free consent. Thus, in Shah Bano vs
Iftikhar Mohammad 1956 Karachi HC, when a wife she was being ignored by
husband and thought that only way to win him back was to waive Mahr, her remission
of Mahr was considered without her consent and was not binding on her.

Differences between Shia and Sunni Law on Mahr

Sunni Law Shia Law
Minimum of 10 dirhams for specified dower. No minimum limit.
No maximum limit for proper or specified dower.
Dower above 500 dirhams
is considered abominable
but legal.
If dower was not decided or marriage was done on
condition that no dower will be paid, dower shall be
payable if marriage is dissolved by death irrespective of
whether the marriage was consummated or not.
Dower shall be payable
only if the marriage was
consummated in this case.
An agreement that no dower shall be payable is void.
Such an agreement by sane
and adult wife is valid.
In absence of a contract, only a reasonable part of the
dower is considered to be prompt. Rest is deferred.
Whole of dower is
presumed to be prompt.

It is suggested to go through the class notes also.