Written by: Chidambra Sharma
Under Muslim law, Dower also called as Mahr, is a price which is paid to the wife as a token of respect to her by her husband, before, at the time or after the marriage. It can be paid in the form of money or property, either or both. The nature of a Muslim marriage is an unsettled topic, but mostly it is regarded as contractual in its procedural sense but sacramental in religious sense. Often, the amount of dower is confused with the terms of consideration, maintenance or gift to the wife for the consummation of marriage. However, it is neither of those things according to the best Muslim Lawyer(s). It is the amount of money or property which a husband must pay to the wife to acknowledge her dignity as his wife. It is essential to note that under Muslim Law, there cannot be a marriage without dower. If there exists an agreement between the husband and wife that the wife would not claim dower from the husband, wife’s right to dower exists despite such an agreement and such an agreement is void in nature. It is the wife’s absolute right to claim dower from her husband and the husband must pay ‘something’ to the wife as a mark of respect and acknowledgement of her dignity. Dower was introduced and made obligatory by Prophet Mohammad.
In the case of Abdul Kadir v. Salima (1886) 8 All 149 (FB), Justice Mahmood defined dower as, “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, the law confers the right of dower upon the wife as necessary effect of marriage.”
Object of Dower/Mahr
- To impose an obligation on the husband as mark of respect to the wife.
- The amount of dower acts as a subsistence for the wife after the dissolution of the marriage, so that the wife can maintain herself after divorce or death of husband and does not end up being helpless.
- The amount of dower prevents the misuse of the power of divorce on the part of the husband, as it acts as a prohibition.
Types of Dower
Dower is of various types and we will look at it in detail along with the situations where such types of dower is to be paid to the wife.
- If the amount of dower has been fixed by agreement and the marriage has been consummated or either party has died, the entire amount of dower is payable to the wife.
- If the amount of dower is unspecified and the marriage has been consummated or dissolved by the death of either party, the wife is entitled to proper dower.
Let us look at the concept of proper dower. Proper dower (mahr-i-misl) is payable when amount of dower is not expressly fixed or when the marriage has been contracted on a condition that wife will not claim any dower. The amount of proper dower is determined by taking into consideration various factors such as the dower which was given to other female members of her father’s family, personal qualifications of the wife such as her age, beauty, understanding etc., social position of her father’s family, economic conditions of the husband, circumstances at that time, etc. Therefore, in the absence of a settled amount, all these aspects are taken into consideration, and an amount is decided upon which is provided to the wife.
- If an irregular marriage has not been consummated but is dissolved by the death of the party, then the wife is entitled to specified or proper dower whichever is less.
Specified dower, as the name suggests, is when a specific amount of dower is specified in the marriage contract, it is called specified dower. This dower can be settled by the parties either before, at the time or even after the marriage.
Specified dower is of two types – Prompt Dower and Deferred Dower
- Prompt dower: Prompt dower becomes payable immediately after marriage and it must be paid on demand, unless a delay is agreed by both the parties. The wife has a right to refuse herself to her husband until the prompt dower has been paid by the husband, and in the case the wife is a minor, her guardian has a right of refusal to send her to her husband. This was expressly stipulated by the Allahabad High Court in the case of Nasra Begum v. Rizwan Ali. However, this does not mean that the wife will not be maintained by the husband, if she is residing away from him. Right of maintenance also exists with her.
It is important to note here that if the marriage has been consummated, the wife cannot refuse her conjugal duties to her husband if the prompt dower has not been paid by him yet, but, she has an absolute right of recovery of prompt dower by the way of suing for recovery. In the case of Rabia Khatoon v. Mukhtar Ahmed, if the husband files a petition for restitution of conjugal rights, the court may pass a decree conditional on payment of dower. His right of restitution arises only after the dower has been paid.
The period of limitation is 3 years and this time starts running on the demand of dower and refusal of husband. If during the entire continuance of marriage, the wife does not demand the dower, the limitation period starts running after the dissolution of marriage, either by death or divorce. Lapse of time since marriage raises no presumption in favor of the payment of dower.
- Deferred dower: Deferred dower is payable on dissolution of marriage either by death or divorce. However, if there is an agreement that the payment of deferred dower will be made earlier than dissolution, then it will be a valid and binding agreement. The interest of the wife in deferred dower is a vested interest and not a contingent interest. The wife does not have a right of demanding deferred dower, unless it is otherwise stipulated and agreed to, but the husband can treat it as prompt dower, and fulfil the demand. Such payment is not void.
A widow has right to relinquish her interest in the deferred dower, after the husband’s death. Such a relinquishment must be a voluntary act of the widow.
- Where the wife is divorced by the husband without consummation or valid retirement, the wife is entitled to receive half of the specified dower, or a present of three articles of dress or of their value.
Wife’s Rights and Remedies on Non-Payment of dower or Mahr
Besides, filing a suit of recovery of dower from her husband through best Muslim lawyer, the law also confers the following three rights to the wife to compel the husband to pay dower:
- Refusal to cohabit
The wife has a right to refuse to cohabit with the husband on non-payment of prompt dower, if the marriage has not been consummated yet. In case, the wife is a minor or insane, the guardian has the same right to exercise it on behalf of the minor or insane wife. The husband is bound to maintain the wife even under these circumstances.
When dower is deferred dower, and is payable at a future date or on the contingency of happening of an event, in the absence of any contract to the contrary, it is generally practiced that the wife does not have the right to deny her conjugal duties to her husband. This has been recognized in the case of Abdul Kadir v. Salima ILR 1986 8 All 149.
- Right to dower as a debt
Dower is equivalent to debt, and similar to other creditors, the widow is entitled to have this debt satisfied on the death of the husband from his estate, by filing a suit against his heirs. The heirs are however, only liable to the extent and proportion to which they have inherited the estate of the deceased husband. If the husband is alive, the widow can recover the amount of dower by instituting a recovery suit against him.
- Right to retain possession in lieu of unpaid dower
The wife is entitled to recover the dower amount, along with other creditors. This right of the wife is no greater than an unsecured creditor. If the wife obtains possession of the property of husband to recover her dower amount from the rent or other issues accruing, or absolute possession, this right of possession against the heirs and other creditors only remains until the amount is satisfied or is duly paid by the heirs from the estate. This right to retain possession arises only after dissolution of marriage. The wife does not get any title over the property where she obtains possession and hence she cannot alienate the property.
CONCLUSION
The most important consideration under this topic is that the wife holds an absolute right to receive dower from her husband as her mark of respect and dignity. Dower acts as a powerful tool which helps in keeping a check on divorces on the whims and fancies of the husband and even if that happens, then it acts as a tool with which a wife can maintain herself if the marriage stands dissolved. It is considered as a penal sum with the object to compel the husband to fulfil the marriage contract in its entirety. It is an obligatory duty on the part of the husband. In various practices, it is also considered as a consideration for conjugal intercourse with the wife. This is because a wife can refuse to enter into conjugal life of husband until the prompt dower is paid. Although, prompt dower, according to Muslim law is payable immediately on demand, in majority cases, it is rarely demanded and rarely paid. In Sunni law, minimum limit of specified dower is 10 dirhams, whereas for Shia law no such limit is prescribed. In real practice, a husband gives very less thought to paying dower to the wife, even when the wife asks for payment due to any disagreement or behavior of the husband.
However, if we look at the objectives, it is a very powerful tool. Although it has grown a little out of practice, but various other legislations also exist in order to protect the rights of Muslim women, such as the Dissolution of Muslim Marriages Act, 1939.
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