Mahr (Dower) under Muslim Law

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 ust treatment for wives. In Muslim !aw, 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. "his 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 "yabi, 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$.
According to Amir Ali, Mahr is a consideration which belongs absolutely to the
wife.
In Saburunnessa vs Sabdu Sheikh AIR 19!" #al$ %# held that Muslim
marriage is like a contract where wife is the property and Mahr is the price or
consideration. %owever, it is also true that non&payment of Mahr does not void
the marriage, so Mahr is not purely a consideration.
Im&ortan'e of Mahr
Marriage in Muslim !aw provides an absolute power to the husband to divorce
his wife. It also allows the husband to have multiple wives. "his 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. "herefore, Mahr is very
important for balancing the rights of the husband and wife. Mahr is an absolute
re'uirement 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. (ven if a woman stipulates to forgo the Mahr, her declaration will be
invalid.
In Abdul (adir vs Salima AIR 19)*+
,usti'e 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. "hus, right of wife to her Mahr is a fundamental feature of
the marriage contract.
"hus, 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.
') to provide for subsistence of wife in the event she is divorced by the
husband.
-ature of Mahr
Mahr is an essential re'uirement of a muslim marriage. "hus, 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 (adir vs Salima" , 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. "his 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 -asra .e/um
vs Ri0wan Ali, it was held that right to dower precedes cohabitation. "hus, a
wife can refuse consummation of marriage until Mahr is paid.
"he right of wife to her dower puts her in a similar position as that of other
creditors. *ust like other creditors, she must be paid out of the property of the
husband. "hus, it can be said that Mahr is a kind of debt upon the husband
incurred in marriage. %owever, 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. "he 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 enoyment
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. "hey are liable only to the extent of their share in the inherited property.
A dower can also be secured by an agreement ust like any other debt. In S1ed
Sabir %ussain vs 2ar0and %ussain, 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.
Le/al #onse3uen'es of Mahr (Ri/hts of wife in 'ase of non &a1ment of
Mahr)+
,. -ower 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.
.. 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.
/. 0ife can sue heirs of the husband for payment of dower.
1. If the dower is deferred, the wife is entitled to it upon dissolution of
marriage either due to divorce or due to death.
2. -ower is a vested right and not a contingent right. "hus, even after the
death of the wife, her heirs can demand it.
3. 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.
Ri/ht of wife over husband4s &ro&ert1
-ower 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. %er 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 ri/ht of retention 5
"his right arises only after the death of the husband or after divorce. -uring the
course of marriage, a wife does not have any right to retain the property.
She should have obtained the possession lawfully.
4ight to retention is not analogous to mortgage. "hus, she does not get title to
the property in case dower is not paid. 5urther, if the property is mortgaged, the
wife cannot retain possession against the mortgagee.
0ife 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 .ibi vs #haudhar1 6akil Ahmad, one Moinuddin
died leaving his widow Miana 6ibi and some property. "he respondents
instituted a suit against the widow for immediate possession of the property.
%owever, 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. "he respondents
did not pay and the widow continued possession. !ater, the widow sold the
property. "he deed showed that the widow tried to convey an absolute title to
the property. "he 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 7rivy 8ouncil that a
widow has the right to retain the possession of the property ac'uired peacefully
and lawfully, until she is paid her dower. 5urther, 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. "he remission of Mahr by wife
is called %ibe e Mahr. %owever, she should have attained puberty to do so. She
does not have to be a maor to relin'uish Mahr, only attaining puberty is
sufficient. "he remission made by the wife should be with free consent. "hus,
in Shah .ano vs Iftikhar Mohammad 1978 (ara'hi %#, 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.
(inds of Mahr
Mahr is of two kinds & Specified #Mahr i Musamma$ and 8ustomary or 7roper
#Mahr i Misl$
S&e'ified Dower9
Specified -ower 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. -ower fixed by the guardian is binding
upon the boy and after attaining puberty or maority, 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 ,: dirhams in Sunni !aw.
Shia law has no minimum. 5or those Muslims who are so poor that they cannot
even pay ,: dirhams, they can teach the wife ;uran in lieu of paying Mahr.
Specified dower can further be divided into two categories&
9rom&t (Mu Ajjal)" and
Deferred (Mu :ajjal)
Mu Ajjal & As the names suggest, Mu aal dower means that the dower is
payable immediately upon the marriage.
,. "he wife has a right to refuse cohabitation with the husband until she is
paid the dower.
.. If the wife is a minor, the guardian can refuse to allow the wife to be sent
to the husband until dower is paid.
/. <nly after the payment of dower, the husband is able to enforce the
conugal rights. %owever, if the marriage is consummated, the wife
cannot refuse cohabitation after that.
1. 7rompt dower does not become deferred after consummation and the wife
has the right to demand and sue for it any time.
2. "he period of limitation starts after demand and refusal and it is of three
years.
Mu :ajjal & It means that the dower is payable upon dissolution of marriage
either by divorce or by death of husband.
,. (ven though it is deferred, an agreement to pay be before is valid and
binding.
.. A wife does not have a right to claim dower but a husband can treat it as
prompt and transfer property as payment.
/. A widow can relin'uish her claim to dower at the time of the funeral of
the husband by reciting a formula, but her relin'uishment must be a
voluntary act.
1. "he interest of wife in deferred dower is a vested one and her heirs can
claim it after her death.
#ustomar1 or 9ro&er Mahr (Mahr i Misl)
0hen 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 7roper -ower. "he 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
factors9&
,. Age, beauty, fortune, understanding and virtue of wife.
.. social position of the father
/. -ower given to her female paternal relations.
1. (conomic condition of the husband.
2. 8ircumstances of the time.
"here is no limit on the maximum limit in Sunni !aw, but shia law prescribes a
maximum limit of 2:: dirhams, which was the amount paid by 7rophet
Mohammad for his daughter 5atima.
Differen'es between Shia and Sunni Law on Mahr
Sunni Law Shia Law
Minimum of ,: dirhams for specified dower. =o minimum limit.
=o maximum limit for proper or specified dower.
-ower above 2:: 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.
-ower 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. 4est is deferred.
0hole of dower is
presumed to be prompt.