Critical Review of Mahr (or Dower) and its importance in Muslim Personal Law

Critical Review of Mahr (or Dower) and its importance in Muslim Personal Law

 I.                   Introduction

Initially, the word dower was recognized as a sum of money or property which the women is endorsed to take from her husband in consideration of marriage.[1] It is reliably ratified by Islam and also brings up in the Quran as “and give women their dowers freely.”[2]

Beforehand further proceeding, it is critical to note that, in the early period, the word dower and mahr were deliberated to be two different terms with poles apart origination; however, in the later period the word mahr was erroneously translated into dower.[3] Nonetheless, in the contemporary world, these two terms are mostly used interchangeably, which lead to the acceptance of dower and mahr as a synonym of each other.[4]

In the pre-Islamic Arabia, the word mahr is used in a distinct sense, and at that time it was used to signify the gifts which were given to the parents of the wife as recompense for parting with the daughter.[5] Nonetheless, the concept of proving gift to the wives was there and it was denoted by using the word sadka or sadaq.[6] In the later periods, with the ratification in Islam, a novel set of directions laid down by the prophet bestowing to which it had become obligatory for the husbands for providing some possessions to their wives, and not to their parents/guardians.[7] Thus, Mehr came up as a real settlement which is very advantageous for wife, and, also, by this way, Islam sought to make available a check on the husband’s unconstrained power to divorce as now the husband has to pay the dower instantaneously after the divorce.[8]

 

II.                Nature of Dower

In the broad sense, the dower is defined as the consideration for the marriage contract, and the nature of the contract is considered as hiba-bil-ewaz (Gift for consideration).[9] In one of the cases, Mahood J. held that sum which is paid to the wife (i.e. dower) had been found analogical to the price paid in the sale of the contract because of the fact that marriage can genuinely be considered as a civil contract and sale is evidently a contract.[10]

However, in the real sense, the word consideration is used in a quite different sense from that of the Indian contract act, 1872. Now, if supposedly the dower is gazed at as the sale price and the marriage as a sale contract then the amount of dower is needed to be paid to the guardian of the daughter and not to the woman who is marrying because under the sale of goods the consideration is needed to be paid to the supplier and not to the supplied goods itself. However, since the amount of dower is obligatory to be compensated to the wife herself and not to her guardian, it is evident that marriage cannot be regarded as the sale of the person based on the amount of dower.[11] Thus, dower is more likely to be a token of respect for the wives,[12] and it can be said that the objective behind the dower is to make available a method by which she can obtain the truth of her dignity from her husband.[13]

Furthermore, it is imperative to note that the subject matter of the dower is not circumscribed to the sum of money or the properties; however, it also includes personal services and other things e.g. teaching the Quaran to wife, husband’s service to the guardian of the minor wife, et al.[14] Also, there is contention that lies among different schools of Islamic laws regarding the subject matter under the dower; for example, under the Shia law the dower of non-existent things like produce of trees or crops which are yet to be grown is considered to be valid; however, such things are not considered valid under other schools of Muslim law.[15]


Critical Review of Mahr (or Dower) and its importance in Muslim Personal Law


III.             Kinds of Dower

It should be noted that the dower is an indispensable constituent in the Muslim marriage; irrespective of whether the amount of the dower is fixed or not, and whether it is to be paid before or after marriage.[16] With regards to such a broad perspective of the dower, it has been distributed into the following two major categories-

(i)                 Specified (Al-mahr al-musamma)

Under this category, only those cases come up where the amount of dower is fixed. It should be noted that in most of the cases the amount of dower has been fixed at the time of marriage and Kazi, who is responsible for performing the ceremony,  is responsible for fixing the amount by entering into the register; however, there are also many cases where the amount of dower is fixed after the marriage.[17]

Under this category, when the bridegroom is a minor, there are two diverse provisions. Firstly, as per the Hanafi law, where the father of the bridegroom cannot be personally liable for the non-payment, and secondly, as per the Shia law, a father can validly be held liable in case of non-payment.[18]

Furthermore, specified dower can be further classified into two types:

 

(a)    Prompt Dower

This type of dower becomes payable instantaneously after the marriage when the wife demands it.[19] In the case, where the prompt dower remains due, the wife has the right to decline to live with the husband and also it is a complete defence against the restitution of the conjugal rights in cases prior to consummation.[20] In the cases of post consummation, the decree of restitution is made conditional to the payment of the dower. The significance of prompt dower can be understood from the fact that the law has provided the rights to claim such amount to the heirs of the bride in case of her death.


(b)   Deferred Dower

In this case, the amount of dower becomes payable only after the death or divorce or some other specific event.[21] However, under this type of dower, even if any period is not mentioned, it shall become payable on the termination of the marriage.[22]

It is important to note that merely the fact that the wife demands the dower does not convert deferred dower into prompt dower.[23] The interest of wife under such dower is not that of a contingent one; however, it is indeed a vested interest; so, it cannot be banished. [24]  

 

(ii)               Unspecified (Mahr al-mithl):

This category compacts with the cases where the amount of the dower is not fixed; however, such a condition does not cease the wives from getting the amount of dower. [25] Dower is an essential incident for the status of the Muslim marriage; and so, even in the cases where parties are explicitly mentioned that wife can not claim dower, wives have the right to claim for dower.[26]

Under this category of dower, the following are some of the criteria which are used in determining the amount of dower:

The social position of the women and her family, their wealth, women’s personal qualifications, husband’s status and wealth.[27]

It is also important to note that there is an exception to the abovementioned rule under the Ithna Ashari law, where the wife, after getting the age of majority can waive of her right to have dower. However, such rule of estoppel does not apply in other schools of Muslim law.[28]


Critical Review of Mahr (or Dower) and its importance in Muslim Personal Law


IV.             Enforcement of the right of the dower

As it is evident that the right to dower is the crucial right for the Muslim women, however, such a right can only become useful when it is applied successfully.[29] Thus, in order to save such rights, Muslim law laid down specific measures to enforce such rights which are as follow:

(i)                 Rebuttal of the conjugal rights

One of the most important right hold by the wife is that of refusal from cohabitation with the husband; however, this right works only in the cases where the prompt dower is due and the marriage is yet to be consummated.[30] It should be noted that, under the Islamic law, the husbands hold a right to cohabit with his wife; however, the non-payment of the amount of dower stretches an indispensable right to the wife to refuse from any sexual intercourse as well as to live together.[31] In the case, where the wife is incompetent (e.g. minor or insane), the wife’s guardian has full right to refuse the husband from the custody of the wife. Moreover, such non-payment also amount to be a defence against the husband’s claim of restitution.

However, one of the most significant shortcomings of this right is that it comes to be insufficient in the case of prior-consummation.

 

(ii)               Execution of Dower as debt

As it is evident that women can apply the conjugal rights only in the case where the marriage has not been consummated.[32] So, in such cases, women can enforce their right by taking action in a court of law. The unpaid dower holds the same stand as a debt which is due to the creditor; and thus, it provides an actionable claim to the wife which is parallel to that of the unsecured creditor’s right.[33]

Moreover, this way of enforcing the can be used even in the cases where the husband is not alive. Under such situations, the wife can sue the legal heirs of the husband for recovery of the dower; however, the legal heirs of the husband cannot be personally held liable, and they are liable only up to the extent to which they hold the property of her husband.[34]

It should also be noted that generally the dower is not charged from the property of the husband, and wives can only get a simple money decree. However, in the cases where the parties have a mutual agreement for charging such properties, the dower can be settled from that property.[35] Indeed, even in the absence of such agreement, the court is also competent to discharge the dower from the property. However, as already mentioned above, such situations are rare because it will give priority to dower over other debts, which will go in contradiction to the rights of the other creditors of the husband.[36]

(iii)             Right to Retention

This right is considered to be one of the most important rights for the wife against the unpaid dower, where the wife is entitled to retain the possession of her husband's property against the creditors[37] as well as the legal heirs[38] of the deceased husband. This right can be enforced in cases where the wives are continued to hold the possession of the property which is in return of the unpaid amount of dower without any unlawful act (e.g. coercion or fraud). Herein, the wife can validly retain the husband’s property till the time she gets the due payment back.[39] This way of enforcement does not require any prior agreement between the spouses and, also, it can be applied irrespective the type of dower and the way in which the marriage is terminated.[40]

However, she can not avail this right in the situations where the husband dies without prior transfer of the property. Moreover, one of its most significant disadvantages is that such right to retention does not provide the title of that property to the wife, which means that the wife cannot transfer the property by way of sale, mortgage or gift.[41] It should be also noted that the wife does not hold any interests or estate regarding the property which is in toto unlikely with the rights held by the property.[42] Moreover, as per the ruling of Madras High Court, in the case where the creditor has a decree regarding the property during the lifetime of the husband, the wife cannot claim possession of that property.[43]

Furthermore, this right also fetches certain liabilities to the wife. The possession of the property makes the wife accountable against the legal heirs for the rents and other pecuniary gains obtained from such property.[44] Such liability seems to be unfair to the wife. So, in order to maintain the balance, the court allows the wife to be an entitlement for the compensation, which is mostly in the form of interests on the unpaid dower. It should also be noted that the wife has the right to waive off this compensation in the form of interests.[45]

Regardless of these limitations, this right is proven to be a very useful tool for the wives for obtaining the due dower, and it seems to be used in a large portion.

 

V.                Limitations

It is well settled that the wife can enforce her right to dower; however, such right does not remain uncluttered for the infinite period. There is a limitation period settled down under statute, which is dynamic to the type of dower.[46]  In the case of prompt dower, where the marriage subsists, the suit must be filed before three years from the date of the dower is demanded. Whereas in the case of prompt dower, where marriage dissolves, the limitation period begins from the date of such termination.

Moreover, in the cases of deferred dower, the limitation period of three years began from the day of dissolution of the marriage. However, the situation becomes complicated when the wife continued to hold the husband’s property in lieu of unpaid dower, and, under such situations, the limitation period extended until the remaining payment of dower is recovered.

VI.    Controversy regarding the separation of dower from the maintained paid after the divorce

There are several incidents where the Muslim husband suddenly gives divorce to his wife, which lead to significant financial trauma for the wife. It is also evident from the above discussion that under such condition, the dower is one of the important financial sources for the women. Such a usage of the dower leads to an immense contention i.e. whether dower embodies the amount paid to women after the divorce.[47]

Moreover, such contention raised due to the ambiguity in the application of two sections under the Criminal Procedure Code, 1973. One of these sections lays down that it is obligatory for a person, who has sufficient means, to maintain his wife even in the case of divorce.[48] However, the other section terminates such payment in the case where the wife has already received the whole amount under personal law in case of divorce.[49] Following which there are many cases raised where the court has based its decision on the latter section, and thereafter realised the husband from the liability to pay maintenance cost once he paid the dower.[50] Therefore, in this way, the court seemed to accept dower as the sum of money payable to the wife in case of divorce.

However, later on, it was found that such decisions were in toto against a large number of women, and also it leads to many malpractices on behalf of the husband. Following these factors, many contentions came up by arguing that it is no more than a misconception that dower represents the amount which is to be paid after the divorce.[51] Such contentions lead to raise the doubt that since dower can be prompt, which is to be paid during the marriage; so, how can it be recompense for divorce.[52] Furthermore, such a practice is considered in opposition to the constitutional objective of economic justice.[53] However, it is only after the landmark case of Shah Bano, the court explicitly separated dower from the divorce.[54] In that case, the court mainly held three arguments which are as follows:

(a)    Mere the fact that deferred dower is payable at the time of divorce cannot justify that dower is sufficient payment at the time of divorce, and also all the cases of dower do not occur on the event of divorce which is an essential requisite to apply §127(3)(b).[55] 

(b)   It is apparent that, in many of the cases, dower is considered as a consideration of marriage whose objective is, indeed, conflicting to that of the consideration of divorce. So, it is not possible to say that the amount which is paid as a consideration for the marriage amounts to be the same as consideration of divorce.[56]

(c)    Dower symbolises a mark for respect for the wife, and it is evident that the husband does not divorce his wife as a mark of respect. Thus, the amount which is paid to show respect cannot be considered as the amount payable on divorce.[57]

Furthermore, it should be noted that later to this judgement, legislation came up with a statute under which a consonant note regarding Shah Bano judgement is specified and it was clearly laid down that “dower is not the amount which is payable in case of divorce”.[58] Thus, it can be said that in the current situation, the position of the court got much steady regarding this debate.

 

VII.          Conclusion

From the above discussions, it can be concluded that payment of dower is still holding an essential part under Islamic law. The husbands are accountable for paying such amount and in the case where such amount remains due, the law provides various ways for enforcing this right to have dower, e.g. rebuttal of conjugal rights, right to retain the property, et al., to wives. However, these rights are not absolute in nature and regulated by various other laws. It is also important to note that, in recent years, the significant debate on the status of dower, i.e. whether to consider it as a consideration for divorce or consideration for the marriage, finally settled down. Lastly, in recent years, the court is giving the impression as if they are trying to compose the concept of dower in such a way that it can become a supportive tool for the wives, and also that it can fulfil its objective, i.e. to be a symbol of gratitude towards the women.



[1] Sir Dinshaw Fardunji Mulla, Mulla Principles of Mahomedan law 382 (22nd ed., 2017).

[2] The Quran, 4:4, 8.

[3] Paras Diwan, Law of Marriage and Divorce 233 (14th ed., 2002).

[4] Id., 233.

[5] Prof Kusum, family law Lectures family Law-I 404 (4th ed., 2015).

[6] V.P. Bhartiya, Syed Khalid Rashid’s MuslimLaw 88 (5th ed., 2018).

[7] Kusumsupra note 4, 404.

[8] Fyzee, Outlines of Mohammedan Law 133 (1974).

[9] H.M. mondal v. D.R. Bibi, AIR 1971 Cal. 162.

[10] Abdul Kadir v. Salima, ILR (1886) 8 All 149.

[11] Anis Begam v. Mohd. Istafa, ILR 1933 All 743.

[12] Bhartiya, supra note 5, 90.

[13] R.K.Singh, The Muslim Law 67 (6th ed., 2006).

[14] Assignment Point, Definition of Dower, available at https://www.assignmentpoint.com/arts/law/definition-dower.html/(Last visited on 12th Feb, 2020).

[15] B.R.Verma, Mohammedan Law 143 (8th ed., 2008).

[16] Rakesh Kumar Singh, Law of dower (Mahr) in India, Journal of Islamic Law and Culture (2010). 

[17] Asaf A.A. Fyzee, Outlines of Mudammadan Law 136 (4th ed., 1999).

[18] Syed Sabir Husian v. Farzand Hasan, (1937) 65 IA 119.

[19] Nanda Chiranjeevi Rao, Marriage Agreements Under Muslim Law - A Weapon In The Hands Of Muslim Women, 1 Journal of the Indian Law Institute, vol. 55 (2013).

[20] Furqan Ahmad, Understanding Islamic Law In India: An Assessment Of The Contribution Of Justice V.R. Krishna Iyer: A Tribute, 3 Journal of the Indian Law Institute, Vol. 57 (2015).

[21] Mona Siddiqui, Mahr: Legal Obligation Or Rightful Demand, 1 Journal of Islamic Studies, vol. 6 (1995).

[22]J. Henry Korson, Dower and Social Class in an Urban Muslim Community, 3 Journal of Marriage and Family, vol. 29, 529 (1967).

[23] Manihar Bibi v. Rakha Singh, AIR 1954 Manipur 1.

[24] Lawnn.com, Meaning of Dower, Types, Difference under Shia and Sunni Law, April 2, 2017, available at https://www.lawnn.com/meaning-of-dower/(Last visited on 12th Feb, 2020).

[25] Aqil Ahmed, Mohammedan Law  155 (22nd ed., 2006).

[26] Hamira Bibi v. Zubaida Bibi, AIR 1916 P.C. 46.

[27] Tanzil-ur-Rahman, A Code of  Muslim Personal Law, 3 Bulletin of the School of Oriental and African Studies, vol.  46,  223 (1983).

[28] Bhartiya, supra note  6, 92.

[29] Heather Jacobson, The Marriage Dower: Essential Guarantor of W or of Women's Rights in s Rights in the West Bank and Gaza Strip, 1 Michigan Journal of Gender & Law, vol. 10 (2003).

[30] Mohammad Taqi Ahmad Khan v. Farmoodi Begam, AIR 1941 All 181.

[31] Nasra Begum v. Rizwan Ali, AIR (1980) All. 118.

[32] Abdul Kadir v. Salima, (1886) 8 All. 149 (FB).

[33]Singhsupra note 13, 76.

[34] Cooverbai Nasarwanji Bulsara v. Hayatbi Budhanbhai, (1943) 45 BOMLR 730.

[35] Ameer-oon-Nissa v. Mooradoon-Nissa, (1885) 6 MIA 211.

[36] Mullasupra note 1, 390.

[37] Mt. Ghafooran v. Ram Chandra Das, AIR 1934 All 168.

[38] Beebee Bachun v. Sheikh Hamid, (1871) 14 MIA 377.

[39] Asia Khatun v. Amarendra, (1940) Cal. 578.

[40] Kusumsupra note 5, 408.

[41] Maina Bibi v. Choudhary Vakil Ahmed, 52 IA 145.

[42] Rakesh Kumar Singh,  Law of dower (Mahr) in India, 1 Journal of Islamic Law and Culture, vol. 12 (2010). 

[43] Narayana v. Biyari, (1922) 45 Mad. 103.

[44] Shankar Dass v. Mahbub Jain, AIR 1942 Pesh. 42.

[45] Ram Prasad v. Bibi Khodaijatul, AIR 1944 Pat. 13.

[46] The Limitation Act, 1963, Art. 49.

[47] Bhartiya, supra note 5, 98.

[48] The Criminal Procedure Code, 1973, §125(1).

[49] The Criminal Procedure Code, 1973, §127(3)(b).

[50] Bai Tahira v. Ali Hussian, (1979) 2SCC 316.

[51] Paras Diwan, Dowry and Protection to Married Women, 135 ( 1st ed.,1996).

[52] Fuzlunbi v. K. Khader Vali, AIR 1980 SC 1730.

[53] Bhartiya, supra note 5, 101.

[54] Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.

[55] Id., 953.

[56] Id., 953.

[57] Id., 953.

[58] The MuslimWomen Act, 1986, §3(1)(c).


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