Mohd riyaz ahmad

INTRODUCTION

One of the essential parts of Muslim marriage is dower paid or promised to be paid by the
husband to the wife. Without mahr a nikah can not be said to have been properly solemnised.
Dower money must be paid or fixed before the solemnisation of a marriage. Dower must not,
however be confused with dowry which consists of presents made by father and other relations
of the bride and Muslim Law does not make any provision for payment of dowry. Dower is the
sum of money or other property which the wife is entitled to receive from the husband in
consideration of marriage. The amount of dower may be fixed either before or at the time of
marriage of after marriage. The law does not say anything about the quantum of dower.
The amount of dower is generally split into two partsprompt dower which is payable immediately on demand by the wife and
deferred dower which is payable only on dissolution of marriage by death or divorce.
In this present endeavour the author would try to explain in detail the types of dower and the
effect of non-payment of dower. Some of the important cases with respect to dower would also
be analysed.

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. 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. 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 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.

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. 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.
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. 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 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 preference to (sic) bequests and
inheritance, but on no principle of Muhammadan law it can have priority over the contractual
debts and as such has preference to (sic) bequests and inheritance, but on no principle of
Muhammadan law it can have priority over the contractual debts.

The best general observations on dower are those of Lord Parker of Waddington in

Hamira Bibi v. Zubaida Bibi :

Dower is an essential incident under the Mussulman 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 the Mussulman
law which has received recognition in the British Indian Courts and at this Board.

AMOUNT OF DOWER
The amount of mahr may either be fixed or not; if it is fixed, it cannot be a sum less than
the minimum laid down by the law.
Minimum Dower
1) Hanafi law - 10 dirhams
2) Maliki law - 3 dirhams
3) Shafii law No fixed minimum
4) Shiite law No minimum fixed.
A dirham (Persian, diram, a word derived from the Greek) is the name of a silver coin 2.97 gram
in weight, and is usually valued at 3-4 annnas or 20-25 paise. In India, it has been held that the
value of ten dirhams is something between Rs.3 and 411. Thus it will be seen that the minimum
doer fixed by the law can hardly be deemed to be an adequate provision for the wife. In fact, it
would be a mistake to lay too great a stress upon the monetary value of the minimum dower. It is
said that in the case of an extremely poor man, the Prophet requested him to teach the Koran to
his wife, and this was considered by the Lawgiver to be an adequate requital of the husbands
obligation.

Among the Muslims of India two distinct tendencies are to be found in society. In some cases, as
in the Sulaymani Bohoras, the dower is Rs. 40, it being considered a point of honour not to
stipulate for a sum higher than the minimum fixed by the Prophet for his favourite daughter
Fatima, the wife of Ali, namely 500 dirhams. Among certain other communities, there are dowers
of anything between a hundred and a thousand rupees; Ameer Ali mentions amounts between
four to forty thousand rupees. An altogether different tendency is to be found in Uttar Pradesh,
and also to some extent in Hyderabad, Deccan, where the absurd rule appears to be that the
nobler the family, the higher the mahr, regardless of the husbands ability to pay or capacity to
earn.

TYPES OF DOWER
We have seen that dower is payable whether the sum has been fixed or not, Ali said: There can
be no marriage without mahr. Thus, dower may, first of all, be either specified or not specified.
In the latter case, it is called mahr al-mithl, Proper Dower, or to be strictly literal, the dower of
the like. If the dower has been specified, then the question may be whether it is prompt
(muajjal) or deferred (muwajjal, strictly muajjal).

Thus we have two kinds of dower in Islam:

A. Specified Dower (al-mahr al-musamma); and
B. Unspecified Dower or Proper Dower (mahr al mithl).
Specified Dower may be again be divided into Prompt - muajjal, and
Deferred - muajjal.
In (A) and (B) the question before the court is the amount payable: in (I) and (II) the question is
the time when payment has to be made.

A. Specified Dower (al-mahru al-musamma)

Usually the mahr is fixed at the time of marriage and the kazi performing the ceremony
enters the amount in the register; or else there may be a regular contract called
kabinnama, with numerous conditions. The sum may be fixed either at the time of

marriage or later, and a fathers contract on behalf of a minor son is binding on the minor.
Where a father stipulates on behalf of his son, in Hanafi law, the father is not personally
liable for the mahr; but aliter in Ithna Ashari law.

In Syed Sabir Husain v. Farzand

Hasan, a Shiite father had made himself surety for the payment of the mahr of his minor
son. Thereafter he died, and it was held that the estate of the deceased was liable for the
payment of his sons mahr. Accordingly each heir was made responsible for a portion of
the wifes claim in proportion to the share received by the particular heir on distribution
from the estate of the deceased. The heirs were, however, liable only to the extend of the
assets received by them from the deceased, and not personally
Where the amount has been specified, the husband will be compelled to pay the whole of
it, however excessive it may seem to the court, having regard to the husbands means; but
in Oudh, only a reasonable amount will be decreed, if the court deems the amount to be
excessive or fictitious.
B. Unspecified Dower ( mahr al-mithl )
The obligation to pay dower is a legal responsibility on the part of the husband and is not
dependent upon any contract between the parties; in other words, if marriage, then
dower16. Where the dower is specified, any amount, however excessive, may be
stipulated
for. But what are the principles upon which the amount of dower is to be determined
where no agreement exits?
The customary or proper dower of a woman is to be fixed with reference to the social
position of her fathers family and her own personal qualifications. The social position of
the husband and his means are of little account. The Hedaya lays down the important rule
that her age, beauty, fortune, understanding and virtue must be taken into consideration.
Islamic marriage, therefore, safeguards the rights of a wife and attempts to ensure her an
economic status consonant with her own social standing. Historically speaking, and on
the analogy of sale, it is permissible to ask: What have the circumstances of a purchaser
to do with the intrinsic value of the thing he buys? The answer is that the Indian courts
no longer consider marriage as a form of sale or barter, and do not proceed upon the
analogy that dower is the price of consortium.
In fixing the amount of the proper dower, regard is to be had to the amount fixed in the
case of the other female members of the wifes family. Mahr is an essential incident
under the Mussalman law to the status of marriage; to such an extend that 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.17 The main consideration is the social position of the

brides fathers family, and the court will consider the dowers fixed upon her female
paternal relation such as sisters or paternal aunts who are considered to be her equals.
The Prophet once allowed the marriage of an indigent person for a silver ring; and on
another occasion, merely on the condition that the husband should teach the Koran to his
wife. In Hanafi law, where the specified dower is less than 10 dirhams, the wife is
entitled only to the minimum, namely 10 dirhams, and in Ithna Ashari law, the proper
dower can never exceed 500 dirhams, the dower fixed for the Prophets daughter Fatima.
Thus,among the Shiites there are three kinds of mahr:
i.

Mahr-e sunat, the dower supported by tradition, i.e. 500 dirhams.

ii.

Mahr-e mithl, the dower of the like, or the dower of an equal, which is the
technical name for proper or unspecified dower and
Mahr-e musamma,the specified dower

iii.

Prompt (muajjal) and Deferred (muajjal) dower

When the dower is specified, the question arises: At what times and in what proportions is the
amount payable? Here two somewhat puzzling terms are used and it is necessary to distinguish
carefully between them. The technical term for prompt dower is muajjal. It is derived from a
root meaning to hasten, to preced. The term muajjal, therefore, means that which has been
hastened or given a priority in point of time. The term muajjal, however, means delayed,
deferred, and comes from a root which means to delay or postpone. Written in the original
Arabic there would be no cause for confusion, but in the usual English forms of spelling the
words often puzzle those who are not familiar with the Arabic tongue.
Prompt dower is payable immediately after the marriage, if demanded by the wife; while
deferred dower is payable on the dissolution of the marriage or on the happening of a specified
event. When dower is fixed, it is usual to split it into two equal parts and to stipulate that one
shall be paid at once or on demand, and the other on the death of the husband or divorce or the
happening of some specified event. But a difficulty arises when it is not settled whether the
dower is prompt or deferred.
In Ithna Ashari law the presumption is that the whole of the dower is prompt; but in Hanafi law
the position is different. The whole of the dower may be promptly awarded; but a recent Full
Bench decision lays down first, that where the kabin-nama is silent on the question, the usage of
the wifes family is the main consideration; and secondly, that in the absence of proof of custom,
the presumption is that one-half is prompt, and the other half deferred, and the proportion may be
changed to suit particular cases.

INCREASE OR DECREASE OF DOWER

The husband may at any time after marriage increase the dower. Likewise, the wife may remit
the dower, wholly or partially; and a Muslim girl who has attained puberty is competent to
relinquish her mahr, although she may not have attained majority (18 years) within the meaning
of the Indian Majority Act19. The remission of the mahr by a wife is called hibat al-mahr or
hiba-e mahr.
It has, however, been held in Karachi that in certain cases remission of dower cannot be upheld.
For instance, if a wife feels that the husband is increasingly showing indifference to her and the
only possible way to retain the affection of her husband is to give up her claim for mahr and
forgoes her claim by executing a document, she is not a free agent and it may be against justice
and equity to hold that she is bound by the terms of the deed.

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.
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. This
right of refusing her is, however, lost on consummation.23 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

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. That the widow has no priority over the creditors, but
ii. That mahr as a debt has priority over the other heirs claims.
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

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.26 Her right is not in the nature of a regular charge, mortgage or a lien; 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 husbandsestate. Once she loses possession of her
husbands estate, she loses her special right and is in no better position than an unsecured
creditor.
The nature of this right was discussed by their lordships of the Privy Council in
Maina Bibi v.Chaudhri Vakil Ahmad . 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. 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.

Thus, in essence, it is a personal right given by Muhammadan law to safeguard the position of
the widow. 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. 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 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 Ahmad 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 judiciaand transferability of this right. The Mysore and
Allahabad High Coutrs have decided that the right is both heritable and transferable; 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. 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.