The Concept Of Dower In Islam & Related Case Laws

INTRODUCTION

Dower under Mohammedan law is known as ‘Haq-Mahr’ or ‘Mahr.’ In Muslim marriage, the dower is one of the essential ingredients other than offer and acceptance. It is one of the fundamental features of Muslim marriage. A Muslim wife has a right to dower as per the principles of Islam.

WHAT IS DOWER

“Mahr also known as dower 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.” - 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 of the Muslim schools say that dower is not a consideration of the marriage, but it is an obligation imposed upon the husband as a mark of respect to the wife. It is clear that dower is a fixed sum payable by the husband to his wife as financial security on her part.

The quantum of the amount in respect of dower may be fixed by the parties themselves. It may be paid in the form of a sum or paid in kind or property. There is no limit to the amount of dower, however, according to Shia and Sunni schools, excessive dower is considered improper, but not illegal.

• FACTS: It is said that back in the year 1906, the Nizam of Hyderabad Mir Osman Ali Khan at the time of marriage to his 1st wife Azamunnisa Begum gave her 1 lakh in cash, 7000 Gold coins and approximately 128 Kg of Gold as dower.

TYPES OF DOWER

• Mahr/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)

• Specified Dower

• Specific Dower is also known as Mahr-i-Massuma.
• It is that amount that is agreed bythe parties either at the time of marriage or before/ after the marriage.
• Both the parties agree to any quantum of the dower settled.
• The husband is bound to pay, that much dower which is a specified one.
• In the case of a lunatic or a minor, the guardian can fix the amount of dower.
• Dower fixed by the guardian is binding upon the boy and attaining puberty or majority.

•Unspecified Dower

• Unspecified Dower also known as customary or proper dower.
• In Islam, such kind of dower is called as Mahr-i-Misl.
• The wife is entitled to customary dower even if the amount of dower is not fixed in the contract or even if the marriage contract states that the bride will not claim any dower.
• In such cases, the amount of dower shall be fixed by taking into consideration, the amount of dower settled for other female members of the father's family.
• The dower amount can also be regulated in terms of :-

1. Age, fortune, beauty, understanding and virtue of wife. (i.e. personal qualifications)
2. Economic/ Financial of the husband.
3. Local Customs.
4. Social Position of the father.

• Prompt Dower

• It is also known as Mu-Ajjal. Prompt dower means that the dower is payable immediately upon the marriage.
• Until the wife is not paid the dower amount she has a right to refuse cohabitation with her husband.
• If the wife is a minor, until the dower is not paid the father of the minor can refuse to send his daughter to the husband.
• Prompt dower does not become suspended after consummation,in fact, the wife still has the right to demand dower and sue him for the same.
• The husband can enforce the conjugal rights only after the payment of dower. However, the wife cannot refuse cohabitation if the marriage was consummated.

• Deferred Dower

• Deferred dower is known as Mu-wajjal in Islam.
• Deferred dower depends on the happening of some event. It means the payment is postponed.
• An agreement to pay before the marriage is valid and binding, even though it is deferred.
• The husband is not exempted from the liability to pay, but he gets time to pay dower.
• He can pay the dower during the continuance of the wedlock. However, the husband is liable to pay after the dissolution of the marriage.

DOWER AMOUNT FIXED FOR DIFFERENT SCHOOL OF THOUGHTS

1. Hanafi School–10 Dirhams
2. Maliki School – 3 Dirhams
3. Shafi School –No Fixed Amount
4. 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.

CASE LAWS ON DOWER

1. Maina Bibi v. Chaudhary Vakil Ahmed (1924)

Facts: 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.

Judgement: 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.

2. Mohammed Ahmed Khan v. Shah Bano Begum

Facts: 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.

Judgement: 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.

3. Hakim Masihuddin v. Abdul Wahid (2010)

Facts: 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.

Judgement: 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.

4. Beena v. B. Mohammed (2015)

Facts: 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.

Judgement: 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.

5. 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.

LEGAL EFFECTS

1. In Case of Batil Marriage

There is no civil rights or obligations and the wife is entitled to customary dower after consummation of marriage.

2. In Case of Fasid Marriage

There is no legal effect before consummation of marriage and the wife is entitled to mahr/ dower either proper dower or specified dower.

3. In Case of Muta Marriage

• Muta marriage is contracted for a fixed period and some dower must be fixed at the time of marriage.
• If the marriage is not consummated, the wife will be entitled to half dower.
• If marriage is consummated, the wife is entitled to full dower.
• If the wife leaves in between before completion of the fixed period then she is entitled to proportionate dower.

LEGAL CONSEQUENCES OF DOWER

The rights of a wife in case of none payment of mahr are as follows:

• Mahr is equivalent to a debt which the husband is liable to pay to the wife before consummating the marriage. If the same is not paid the wife has the right to resist cohabitation.
• The wife has the right to retain the property of her husband until the dower is not paid. However, she cannot alienate the property.
• The wife can sue her husband or his heirs within 3 years for payment of dower.
• Dower is a contingent right and so even the heirs of the wife can demand after the death of the wife in the case where the dower was not paid.
• The courts can decide the amount of mahr if the amount of mahr was not agreed upon at the time of marriage.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

WHO CAN CHANGE MAHR/ DOWER

A husband can increase but cannot decrease the amount of dower. The cancellation of dower by a wife is called as Hibe-e-Mahr. The wife can cancel the mahr i.e. dower either partially or fully but for that, she needs to attain puberty. However, the cancellation of mahr by the wife should be with consent.

8. 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.

CONCLUSION

At one point dower is considered beneficial for women as it provides security to themat the time of marriage. The haq mahr is exclusively of the wife infact, no relatives and not even the parents of the wife has any right over the haq mahr.

The Quran mentions a great reason for giving HaqMahr to a wife – It states that it is paid as a gift to a woman who leaves the security of her home and family and is risking to adjust and live in an unfamiliar set-up. It is an obligation on all Muslim husbands and no one is exempted from paying mahr to their wife.

Indeed, the fact is that in reality this legal cum religious requirement has been made a mockery of, where the amount fixed is too petty. In India, there are many such Muslim marriages solemnized wherein the dower fixed at the time of marriage while signing the nikahnama is just barely “1 Rupee” so that ultimately there will be no need for the husband to pay the dower. Also, at times the amount of dower is astonishingly fixed so high that they are unable to pay.