By Paromita Maitra
Published on: May 15, 2022 at 15:32 IST
Dower is referred to as ‘Haq-Mahr’ or ‘Mahr’ in Mohammedan law. Apart from offer and acceptance, the dower is one of the most important elements in a Muslim marriage. It is one of the most important aspects of Muslim marriage. According to Islamic beliefs, a Muslim wife has the right to dower.
“Mahr, also known as dower, is an amount paid by the husband to the wife upon their marriage, either by mutual consent or by operation of law.” – Written by Tyabji In other words, a dower is an amount that the wife is privileged to receive from her husband in consideration of the marriage.
Some Muslim schools believe that dower is an obligation placed on the husband as a token of respect for the woman, rather than a condition of the marriage. Dower, as the name suggest, is a fixed payment paid by the husband to his wife as economic security.
The amount in regard of dower may be determined by the parties themselves. It could be in the form of a monetary payment, or it could be in the form of a gift or property. Although there is no restriction on the number of dower, excessive dower is deemed immoral but not criminal by Shia and Sunni schools.
TYPES OF DOWER
1. According to the Determination of Amount
- A. Specified Dower (Mahr-i-Mussama/ Mahr-e-Tafweez)
- B. Unspecified/ Proper/ Customary Dower (Mahr-i-Misl)
2. According to the Time it is payable
- A. Prompt Dower (Mu-Ajjal)
- B. Deferred Dower (Mu-Wajjal)
• Dower Specified
Specific Mahr-i-Massuma is another name for Dower.
It is the sum of money agreed upon by the parties at the time of marriage or prior to or after the marriage. Both parties agree on the amount of the dower to be settled.
The spouse is obligated to pay the stated amount of dower. The guardian can set the amount of dower in the instance of a lunatic or a minor. The guardian’s dower is binding on the boy until he reaches puberty or majority.
- Dower Unspecified
Unspecified Dower is sometimes called as proper or customary dower. This type of dower is known as Mahr-i-Misl in Islam. Even if the amount of dower is not specified in the contract or the marriage contract stipulates that the bride will not claim any dower, the wife is entitled to customary dower.
In these circumstances, the amount of dower is determined by taking into account the amount of dower agreed upon for other female relatives of the father’s household.
The amount of dower can also be determined by the wife’s age, fortune, beauty, knowledge, and morality. (i.e. personal credentials) The husband’s economic/financial situation. Customs in the area. The father’s social status.
- Prompt Dower
It is also known as Mu-Ajjal is another name for it. The term “prompt dower” refers to the payment of the dower as soon as the marriage is consummated. The wife has the right to refuse cohabitation with her husband until the dower sum is paid.
If the wife is a minor, the father of the minor can refuse to deliver his daughter to the husband until the dower is paid. After consummation, prompt dower is not suspended; in fact, the wife retains the right to claim dower and suit him for it.
Only after the payment of dower can the husband enforce the conjugal rights. If the marriage has been consummated, the wife cannot refuse cohabitation.
- Dower Deferred
In Islam, deferred dower is referred to as Mu-wajjal. Deferred dower is contingent on the occurrence of a specific event. It indicates that the payment has been postponed.
Even if it is deferred, a payment arrangement made before the wedding is legitimate and binding. The spouse is not free from paying dower, but he is given time to do so.
During the duration of the marriage, he can pay the dower. The husband, on the other hand, is obligated to pay when the marriage is dissolved.
DOWER AMOUNT FIXED FOR DIFFERENT SCHOOL OF THOUGHTS
Hanafi School – 10 Dirhams
Maliki School – 3 Dirhams
Shafi School – No Fixed Amount
Shariya School – No Fixed Amount For those Muslims who are poor and cannot pay even 10 Dirhams, they can teach their wife Quran instead of paying Mahr.
LAND MARK CASES ON MEHR
- Maina Bibi v. Chaudhary Vakil Ahmed (1924)
In this case, a man named Moinuddin died leaving behind his wife and some property. The respondents filed a case against the widow to acquire possession of the property. However, the widow claimed that until her dower amount is not paid to her, she had the right to claim possession of the property.
She continued possession of the property as the respondents did not pay her the dower. The widow sold the property and the documents showed she implied an absolute right over the property.
Thus, the respondents filed a case against her because they claimed that the widow had the right to retain not the right to have a title for herself.
The Privy Council held that the widow has the right to acquire lawfully and peacefully the possession of the property until the widow is her mahr. The court also held that the widow has no right to alienate the property by way of sale, gift, mortgage, lease or otherwise.
- Mohammed Ahmed Khan v. Shah Bano Begum
Shah Bano Begum was thrown out of the house and was divorced by her husband in 1978. She approached the court by filing a petition for maintenance under section 125 of Cr.PC. Her husband contended that he has no obligation to maintain her as he had already paid Rupees 3000 by way of dower.
The Supreme Court observed that dower is paid by the husband as a mark of respect to his wife. Also, mahr is an amount that is payable either at the time of marriage and if not paid then at the time of dissolution of marriage. The court further said that such women are even entitled to maintenance under section 125 of Cr.PC.
- Hakim Masihuddin v. Abdul Wahid (2010)
Ishrat Bano married to the defendant in Delhi as per the Muslim customs. Ishrat had a daughter named Rifatfrom her earlier marriage who was accepted by the defendant as his daughter. This was the 2nd marriage for both the defendant and Ishrat Bano and a dower of amount Rupees 20,000 was fixed at the time of nikkah.
Ishrat Bano repeatedly requested the dower amount which she never received from her husband during her lifetime. On 17th January 2004,Ishrat Bano died. The plaintiffs i.e. the father of the deceased and minor daughter of the deceased filed a suit for recovery of dower amount and dowry articles.
The issue was decided in favour of the plaintiffs and the court ordered a decree for recovery of the dower amount of Rupees 20,000 + future interest at the rate of 6% per annum.
- Beena v. B. Mohammed (2015)
The petitioner was a Christian before marriage and converted to Islam to marrythe defendant. The petitioner was an employeewho used to work under the defendant for a monthly salary of Rupees 6,000.
It was the petitioner’s 2nd marriage and at the time of marriage, the respondent agreed to pay 10 sovereigns of gold ornaments as dower. The petitioner was divorced by her husband and the dower was not paid to her at the time of dissolution of marriage.
Kerala High Court held that as it was a case of prompt dower the defendant was liable to pay the dower either on demand by the wife or at the time of marriage or dissolution of marriage. As the dower was never paid by the defendant he is held liable to pay the dower which was fixed at the time of marriage.
- Nasra Begum v. Rijwan Ali (1980)
The Supreme Court held in this case that if an agreement is drawn at the time of marriage regarding payment of dower the same is payable by the husband and the dower amount becomes recoverable by the wife under the said agreement.
DOWER’S LEGAL CONSEQUENCES
In the event that mahr is not paid, a wife’s rights are as follows:
Mahr is the equivalent of a debt owed to the woman by the husband prior to the marriage being consummated. The wife has the right to refuse cohabitation if the same is not paid. Until the dower is paid, the wife has the right to keep her husband’s possessions.
She is, nevertheless, unable to alienate the property. Within three years, the wife might sue her husband or his heirs for dower payment. Dower is a contingent right, which means that if the dower is not paid, the heirs of the widow can seek it after her death.
- Bano Begum v. Mir Aun Ali [9 Bom. LR (1907)]
In this case, the Bombay High Court held that as per Muslim law if a widow has never received the amount of Haq Mahr by her deceased husband when she was divorced, then in such a situation she can approach the court for the payment of dower money. Thus, the court will be under an obligation to pass an order for the recovery of the entire amount mentioned in the nikahnama.
- Wilayat Hussain v. Allah Rakhi[(1880) ILR 2 All. 837]
The court held in this case that even after consummation of marriage the husband failed to pay haq mahr to his wife and on this ground, she can refuse to fulfil her marital obligation.
- Mirza Bedar v. Mirza Khurram[(1873) 19 WR 315]
In this case, the court held that when there is a dispute as to which part is prompt and which part is deferred then, in such cases, the whole amount shall be considered as prompt as per the laws followed by Shia Muslims. Whereas as per Sunni Muslims, it is considered that half part of the dower is deferred while the other half is prompt.
- Nasiruddin v. Amatul[AIR 1948 Lah. 135]
In this case, the question before the Lahore High Court was as to the determination of dower whether it is to be considered as prompt or deferred dower. The court observed that this issue should be determined based on the usages and customs of the parties. One half shall be considered as prompt while the other half will be considered as deferred dower in a case where there is no specific usages or customs. However, the court also said that the proportion of deferred and prompt dower can sometimes differ from case to case basis.
- Shahana Bibi v. Nadeem Shah [(2015) MLD 1623]
The court held that a wife being expelled from her marital home or subjected to mental cruelty or non payment of maintenance amount by the husband are considered as grounds for dissolution of marriage. Hence, the wife is entitled to not only the maintenance but also the unpaid dower amount.
- Shah Bano v. IftikharMohammad (1956)
Karachi HC It was held by the Karachi High Court, where a wife waived off her Haq Mahr to get her husband’s attention and to win him back. It was concluded by the court that such cancellation of mahr was deemed to be without her consent and hence, not binding on her.
In Islamic Marriages Law, the custom of paying dower is still practiced. In Islamic marriages, the payment of dower is still required. Women have special rights to seek their unpaid dower, and their husbands are legally compelled to pay it, according to the case law.
The right of women to keep their husband’s property instead of paying dower is still up for debate. Various High Courts and Supreme Courts across the country have expressed opposing viewpoints on the matter. They haven’t reached any consensus on a single legal viewpoint.
Edited by: Tanvee Jain, Publisher, Law Insider