National Law Institute

University

Family law project on

Dower: Nature and significance under Muslim law

Submitted to:

Submitted By:

Mrs. Kavita Singh

Deepak kaneriya

Associate Professor

2012BALLB 76

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Table of Contents
A BRIEF HISTORY OF DOWER...................................................................................................4
DOWER IN THE QURAN............................................................................................................6
Kinds of dower:...............................................................................................................................7
Prompt and deferred dower:........................................................................................................7
The Nature of Dower.......................................................................................................................9
Conclusion.13
Bibliography..14

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Acknowledgment:
I would like to thank my family law teacher Mrs. Kavita Singh for allowing me to pick up such
an interesting topic and giving me detail and idea regarding with my topic I would also like to
thank my seniors as well as my friends for providing valuable inputs during the course of this
project.

A BRIEF HISTORY OF DOWER

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It is said that during pre-historic times man lived a barbaric life, which had the tribal form. For
unknown reasons marriage was prohibited between a male and a female of the same blood.
Hence the young men of a tribe, who wanted to marry, were compelled to choose their wives
from some other tribe . At that time ancestry was traced through the mothers. Men were
considered to be barren and sterile. After marriage they stayed with their wife's tribe as a mere
adjunct of it, because the wife required her husband's company. This period is known as the
period of matriarchy.
During this period also a marriage between the people having the same blood was prohibited.
Man had to choose his wife from some other tribe, and bring her to his own tribe. As there was
constant warfare among the tribes, the only way to get a wife was to kidnap a young girl from
some other tribe.
During this period the custom of kidnapping the girls was abolished. In order to get the girl of
his choice the man went to her tribe, became a hired worker of her father and worked for him for
some time. In consideration of the services rendered by him the girl's father gave her hand to him
and he took her to his own tribe.
When money became common, man discovered that instead of serving the bride's father for
years, it was better to present a suitable gift to him and take the girl immediately. That was the
origin of the dower (mahr).
According to this account, in the early days man lived as an adjunct of woman and served her.
During this period woman ruled over man. In the next stage, when power passed into man's
hands, he kidnapped women from some other tribe. During the third stage, in order to win a
woman, man went to woman's father and served him for years. During the fourth stage man
presented a sum of money to the woman's father. And that is how the custom of dower
originated.
It is said that since the time man abolished the system of matriarchy and laid the foundation of
patriarchy, he gave woman the status of a slave, or at the most, of an employee or a servant of
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his. He looked upon her as an economic tool, which, by the way, could satisfy his lust also. He
did not give her social or economic independence. The fruits of woman's labour belonged either
to her father or to her husband. She did not have the right to choose her husband, nor could she
carry out any economic activity for her own sake. The money which man paid as dower and the
expenses which he bore as maintenance (nafaqah) were in consideration of the economic gains
which he derived from her during the period of conjugal relations1

1 http://www.al-islam.org

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DOWER IN THE QURAN

The Qur'an in its incomparably elegant style says: "Give to the women a free gift of their
marriage portions". (Surah an-Nisa, 4 : 4) This means that the dower belongs to women
exclusively and it is a gift to be paid directly to them. It has nothing to do with their fathers or
brothers.
DOWER- Mahr or dower is sum of money or other property which the wife is entitled to receive
from the husband in consideration of the marriage.
Some significant definition of dower:-

1. Dower is not the woman for entering into the contract; but an effect to the contract
imposed by the law on the husband as a token of respect for its subject, the woman.2

2. It is either a sum of money or other form of property to which the wife becomes entitled
by marriage It is an obligation imposed by law on the husband as a mark of respect for
the wife.3

3. Mahr or dower is sum that become payable by the husband to the wife on marriage,
either by agreement between the parties, or by operation of law.4

4. Mahr or Dower is a token of respect, enjoined by ISLAM for its object I;e women/
bride.5

5. According to Mulla dower is consideration of the marriage contract.

2 Baillie

3 Abdur rahim (on the basis of hedaya)

4 Tyabji

5 Hamilton on hedaya
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Kinds of dower:

SP rp o e p c e i fir e d
Broadly, there are two kind of dower:(i) specified, and (ii) unspecified. But the specified dower
has

been

further

divided

into-

(a)

prompt,

and

(b)

deferred.

(i) Specified dower An amount settled by the parties at the time of marriage or after, is called
specified dower. If the bridegroom is minor, his father may settle the amount of dower.
The husband is bound to pay the amount of the specified dower, however exercise or beyond the
reach it may be.

Prompt and deferred dower:

- Prompt dower is payable on demand, and deferred dower is payable on the dissolution of
marriage by death or divorce. The wife may realize the prompt portion of the dower at any time
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before or after consummation, but the deferred dower could not be so demanded.
In the case where it is not settled how much of the dower is prompt and what part of it is
deferred, the Shia law holds that the whole of dower is prompt; the Sunni law, however, holds
that only a part is prompt. This part is to be fixed with reference to (i) custom, or (ii) the status of
the

parties,

and

(iii)

the

amount

of

settled

dower.

There are two aspect of the prompt dower :1.The time factor and quantum factor. Prompt in theory means immediately on demand or at the
time of marriage, or at any time before consummation, or after consummation when demanded.
In practice, however, it is seldom paid promptly at the time of marriage or even when demanded;
and

equally

tardily

demanded.

(ii) Unspecified dower: - in such case where dower has not been settled at the time of the
marriage or after, it is fixed with reference to the social position of the wifes family and her own
personal qualification. Help would be taken by taking into accounts of dower fixed in case of
wifes sister, paternal aunts, etc., and according to the hedaya, the wifes age, beauty, intellect
and virtual will also be considered.
Under school of Muslim law, even where the wife stipulates that she will not demand any
dower, she remains entitled to it and the rule of estoppels will not apply to her. This implied
dower is called proper dower, or customary dower.

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The Nature of Dower

Mahmood, J; in Abdul Kadir v. salima, gives the best description of the nature of dower. He
observes:
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 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 as a necessary effect of marriage. To used the language of the hedaya, the
payment of dower is in enjoyed by the law merely as a token of respect for its object (the
woman), 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 a man were to engage in the contract
on the special condition that there should be no dower.
Even after the marriage the amount of dower may be increased by the husband during
converture; in this sense and no other can dower under the muhammadan law be regarded as
Arabic textbooks of muhammadan law have compared it to price in the contract of sale it is
simply because marriage is a civil contract under that law and sale is the typical contract which
muhammandan jurist are accustomed to refer to in illustrating the incident of other contract by
analogy. (Italics are mine).
Whether Dower is the similar condition as mentioned in Indian contract act 1872
The line of reasoning based on the analogy of sale was criticised by Ameer Ali and by sir shah
Sulaiman in Anees begum v. Mohd Istefa and in Wajid Ali khan case. Sir sulaiman observed:
It is quite 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.
It was observed in this case that the similarity of dower to sale price cannot be pushed in too far
nor can the principles the governing the sales of the goods be applied in all their details. For
examples the contract of sale of goods can be cancelled if a portion of the price has not been
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paid. Even if the goods have been once delivered they may in such an even be returned. But if
consummation of marriage has taken place and the wife at her could cancel a part of the dower
remains

unpaid,

it

would

be

absurd

to

think

that

marriage

will.

Islam insists that dower should be paid to the wife herself. It sought to make dower into a real
settlement in favors of the wife a provision for the rainy day and socially a check on the
capricious

exercise by the husband of his almost unlimited power of divorce.

A husband thinks thrice before divorcing a wife when he knows that upon divorce the whole of
dower

would

be

payable

immediately.

There is a classic example given by someone, which must be mentioned here. A person
purchases a horse. To whom he must pay the price? Not to the horse itself, certainly. But to the
owner. Thus, if dower be regarded as sale-price, it must be paid to the guardian of the wife. Since
it is paid to the wife herself, it cannot be the price. It is a token of respect.
Confirmation of Dower :- The dower becomes confirmed.
1. By consummation of the marriage.
2. By a valid retirement or
3. Death of the party of dissolution of marriage.
Non-payment of prompt dower and restitution of conjugal rightsTwo suits were filed, one by Rabia Khatoon against her husband for dissolution of marriage and
The other by Mukhtar Ahmad against the wife for restitution of conjugal rights. The marriage
took place in 1948 and was consummated with the consent of the wife. In 1951, a child was born
to them after which the wife went to live in her fathers house. The respondent went to bring his
wife back but she refused to come back. No maintenance allowance was paid by the husband to
the wife since 1951 and the suits giving rise to the present appeal were filed in 1956.
In the suit filed by the wife it was alleged that the husband had not paid her prompt dower which
Was settled at Rs. 5000; that she continued to perform her marital relations with her husband for
Over two year and a child was born to them; that the husband treated her cruelly compelling her
to take shelter in her fathers house. She alleged that her husband had failed to maintain her
during all these years and had not paid her prompt dower.
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Husband alleged that the dower payable to the wife was deferred dower and it was only Rs. 500.
Court was of the view that
It is true that unless she makes a demand for her prompt dower the husband is Entitled to
conjugal rights, but if a demand for prompt dower has been made and the dower is not Paid, the
refusal of the wife to live with the husband would be justified even though this is not Assigned as
the reason of her refusal. The husband being in default is not entitled to the exercise of conjugal
rights and the failure of the wife to live with the husband cannot be a wrong.

After consummation of marriage non-payment of dower, even though exigible, cannot be

pleaded in defense of an action for restitution of conjugal rights.6

6 Abdul Kadir v. Salima(1886)

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1. Whether wife / Guardian can demand for the dower in case wife was minor at time of
marrying?
2. If a person is major under personal law and is minor under Indian majority act. In that
case can she demand for dower?
1. Some authorities have chosen to call it 'consideration for the marriage,' while others as '
payment' in honor of the wife. But there can be no Mahomedan marriage without a dower either
fixed by the parties or presumed under the law.
If a Mahomedan minor who is a major by his personal law but a minor under the Indian Majority
Act enters into a marriage, as he is capable of doing, he must enter into a contract for payment of
dower. Even if he does not do so, the law will presume such contract.i
2. There a minor Mahomedan wife a major according to her personal law but a minor according
to the Indian Majority Act relinquished her dower on her husband's death-bed. The question was
whether she had the capacity to do this and the learned Judges held that relinquishment of dower
is not an act in the matter of dower.
when the Legislature permitted a person to act in the matter of that dower it only intended to let
person who was not otherwise competent under the law to act in the matter to initiate to the
religious act or ceremony which under the personal law of the subject, he or she was capable of
initiating.ii

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i Mozharul Islam vs Abdul Gani Ala (1924)

ii Abi Dhunimsa Bibi v. Fati Md. Udnisahib (1918)

Conclusion
Dower is an essential condition under muslim law .but it should be differentiate with the consideration
under Indian contract act 1872.
In the case of HUMAIRA Bibi vs Humaida bibi Lord parker held that dower is an essential incident
I.e. legal consequence to the status of marriage.
Dower is flows from the factum of marriage and dower amount is a personal rights.
As we all know that the consideration is one of the essential condition for contracting to a party so the
dower does affect the validity of the marriage if there is offer of acceptance takes palce.
And dower is a consideration of marriage but not for divorce.
Another important fact is that the dower is the debt but an unsecured debt.

Bibliography
1.
2.
3.
4.
5.

Class notes by mrs. Kavita singh.

Indian kanoon for cases.
http://wrcaselaw.files.wordpress.com
http://outlookbd.blogspot.in/p/muslim-dower.html
http://www.al-islam.org/womanrights/7.htm