ACKNOWLEDGEMENT

For this project has involved over one month time of researchin and !ritin " This project has #een helpf$l in enrichin m% &no!led e and clearin m% concept a#o$t the topic" Man% people have #een e'traordinaril% enero$s !ith time( information and co$nsel" )o !ith pleas$re( * !o$ld li&e to dedicate a para raph to them" +$t * shall hope that each of the individ$als and instit$tions named !ill appreciate the e'tent and !armth of m% ratit$de to them" Institutions The li#rar% staff of Chana&%a National La! ,niversit%( -atna !ho helped me d$rin the entire period( !ith #oo&s and other materials for the accomplishment of this project !or&" Individuals These are divided into several ro$ps( #e innin !ith those friends( collea $es( and mentors !ho s$pported me all thro$ h the project !or&" *n no partic$lar order( the% are. m% hono$ra#le fac$lt% DR. SHAIWAL SATYARTHI K,MA/ and others" Last #$t not least * !o$ld li&e to than& Almi ht% !hose #lessin helped me to complete this project" and li#rarian /ATNE)0

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/E)EA/C0 MET0ODOLOG2
Aims and Objectives: The aim of this research paper is to present a detailed st$d% MAHR A D ITS SO!IAL AS"#!TS Sco$e and Limitations: The researcher has $sed the doctrinal method and has relied on the secondar% so$rces for the content of the research paper" O!in to the lar e n$m#er of topics that co$ld #e incl$ded in the project( the scope of this research paper is e'ceedin l% vast" 0o!ever in the interest of #revit%( this paper has #een limited to the topics !hich deal !ith the topic i"e MAHR. Sou%ces o& Data: The follo!in secondar% so$rces of data have #een $sed in the project3 Articles +oo&s Writin

Met'od o& W%itin(: The method of !ritin follo!ed in the co$rse of this research paper is primaril% descriptive as !ell as anal%tical" Mode o& !itation: The researcher has follo!ed a $niform mode of citation thro$ ho$t the co$rse of this research

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!HA"T#R)I I TROD*!TIO
*n an *slamic marria e( the room is o#li ed to ive the #ride a !eddin ift( called a 5mahr"5 This ift is meant to sho! his appreciation for her( and is a to&en of sincerit% and !armth on his #ehalf" Often( if the #ride !ishes( the mahr is merel% a s%m#ol" *n man% c$lt$res( ho!ever( the room ives s$#stantial amo$nts of mone%( land or je!elr% to the #ride" Accordin to *slamic le al tradition( the mahr #ecomes the propert% of the !ife" M$slims pro$dl% consider this to #e one of the man% !a%s that *slam improved the stat$s of !omen( since in pre3*slamic Ara#ia and m$ch of E$rope $ntil the modern a e( !omen !ere not allo!ed to independentl% o!n propert% or !ealth" T'e $u%$ose o& ma'% The ri ht in *slam for a !ife to receive Mahr and to dispose of it as she pleases is a 6$r7an inj$nction1. 8And ive $nto the !omen 9!hom %e marr%: free ift of their marria e portions; #$t if the% of their o!n accord remit $nto %o$ a part thereof( then %e are !elcome to a#sor# it 9in %o$r !ealth:"< *n *slam man% ne!l% !ed co$ples are comparative stran ers to each other $nli&e the relationships esta#lished #efore marria e in the vast majorit% of marria es of Christians from Western or /oman ch$rches" Therefore( the process of ne otiatin and ivin a ift to the #ride( and her remittal of part or the !hole of the ift offered ma% #e considered to #e an act of reciprocal altr$ism or the first step in the process of developin their partnership from an ass$med platonic social relationship into an intimate personal partnership" The mahr iven #% the room to his #ride d$rin an *slamic !eddin can #e interpreted as the transfer of the o!nership and title to a s$m of
1

/o#ert )mith( Kinship( => as cited from Asaf"A"A"F%?ee( Outlines of Muhammadan Law( 9O'ford ,niversit% -ress( @th Edition( 4AA4: p"1>4

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mone% or propert% to p$#licl% confirm his reco nition of her ne! role in the famil% and societ%" This ift( vie!ed in this !a%( is in essence an act of empo!erment and reco nition of the !oman7s increased social capacit% that esta#lishes her ri ht to act more independentl% than an $n3married !oman" This reco nition is not in principle affected #% the val$e of the ift e'cept that it can onl% #e proven to #e an act$al reco nition of ri hts !hen she has possession of the ift and #% the de ree of freedom of control she e'ercises over it",pon the death of a !ife her mahr, !hether it has #een paid to her or not( #ecomes the propert% of her heirs and the% ma% claim its pa%ment from her h$s#and" *f the h$s#and dies #efore her she ma% claim it from his estate #efore it is divided amon st the inheritors or claim it from his heirs if it has #een mi'ed !ith the deceased7s estate for an% reason" T'e s'a%i+a' (uidance u$on t'e value o& ma'% Altho$ h the mahr is an o#li ator% and essential element of the aqd al-Nikh the shariah does not set a ma'im$m val$e $pon the ift #$t its minim$m val$e is specified as teachin the #ride the verses of the 6$r7an &no!n to the room" This val$e is derived from the hadith that descri#e a !oman as&in the -rophet if she co$ld #e married" The -rophet as&ed the men sittin !ith him if an% of them !ished to marr% the !oman and one man said that he !o$ld #$t !hen the -rophet as&ed if he had an%thin to ive to the !oman he e'plained that neither he nor his famil% had an%thin that the% co$ld ive to her as a #ridal ift" The -rophet as&ed !hat he &ne! of the 6$r7an and to him to teach that to the !oman as her ift" 9 Bukhari 1=BC.D"E4"4@: ersions of this hadith also appear in Muslim, al-Muwatta, with different isnds in !a"# al-$ %ome schools of *slamic la! do recommend minim$m cash val$es #elo! !hich the mahr is considered as 8disli&ed< #$t these are on the !hole ver% lo! s$ms altho$ h it ma% #e of interest to consider on !hat #asis one of these val$es !as calc$lated" 8* do not thin& that !omen sho$ld #e married for less than a F$arter of a dinar" That is the lo!est amo$nt for !hich c$ttin off the hand is o#li ed"< 9MGli& 1=BA.>"11: This analo o$s $se of amp$tation( adopted !ith differin res$ltant s$ms #% MGli& and A#H 0anIfa( !as criticised #% *#n

@|-a e

/$shd 9d" 11=B CE: for its !ea&ness and its $se in opposition to so$nd hadith" 9*#n /$shd 1==E:" The stren th of the hadith specif%in that there is no minim$m val$e for mahr has not prevented an accepta#le s$m #ein esta#lished from the $s$al practice of the -rophet" Mahr al-sunnah as it is termed( is a recommended val$e set at not more than CAA dirhams" This s$m of mone% is recommended #eca$se it is e'plicitl% mentioned in several similar hadith that have #een transmitted from different primar% narrators and verified #% scholars of #oth the )$nni and )hi7a schools" The follo!in hadith is one of the versions fo$nd in )aih al3M$slim. A#H )alama #" JA#d al3/ahmGn reported. * as&ed K7isha( the !ife of Allah7s Messen er 9sa!:. 0o! m$ch !as the adq 9mahr: of Allah7s Messen erL )he said. *t !as t!elve &qi''a 9o$nces: and one nash" )he said. Do %o$ &no! !hat a nash isL * said. No" )he said. *t is half of an &qi''a( so that is five h$ndred dirhams( and that !as the adqthat Allah7s Messen er married !ith" 9M$slim 1==A. opposite p" >CD: )pectors&% dra!s attention to hadith !hich indicate val$es of @BA and

@AAdirhams for mahr al-sunnah. *#n )7ad has a chapter on the do!ers of the -rophets7s !ives( !hich contains ei ht traditions" 0alf report CAA dirhams as the amo$nt that #oth the -rophet7s !ives and his da$ hters received; the other half report @BA dirhams"< 9)pectors&%( )" 1==>.1B: )he does not ive an% consideration to the chan in val$e of the dirham d$rin the period of the reportin and collectin of hadith" Certainl% the n$m#er

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!HA"T#R)II D#,I ITIO

-/*O/ to *slam( t!o &inds of material ifts !ere prevalent" *n a certain t%pe of

marria e( the so3called #eena marria e( !here the h$s#and visited the !ife #$t did not #rin her home( the !ife !as called sadiqa or female friend( and a ift iven to the !ife on marria e !as called sadaq. J*n *slam sadaq simpl% means a do!r% and is s%non%mo$s !ith mahr$ +$t ori inall% the t!o !ords !ere F$ite distinct. sadaq is a ift to the !ife and mahr to the parents of the !ife"7 4 The latter term #elon s to the marria e of dominion( !hich is &no!n as the #aal marria e( !here the !ife7s people part !ith her and have to #e compensated" No! mahr in the #aal form of marria e !as $sed #% the -rophet to ameliorate the position of the !ife in *slam( and it !as com#ined !ith sadaq( so that it #ecame a settlement or a provision for the !ife" *n *slamic la!( mahr #elon s a#sol$tel% to the !ife"> Th$s( historicall% spea&in ( the idea of sale is latent in the la! of mahr 9do!er:" M$stice Mahmood defines do!er as follo!s. J(ower, under the Muhammadan law, is a sum of mone' or other propert' promised #' the hus#and to #e paid or deli)ered to the wife in consideration of

/o#ert )mith( Kinship( => as cited from Asaf"A"A"F%?ee( Outlines of Muhammadan Law( 9O'ford Kor" iv( @; Ameer Ali( **( @E134; *at$ Law N DA as cited from Asaf"A"A"F%?ee( Outlines of Muhammadan

,niversit% -ress( @th Edition( 4AA4: p"1>4

>

Law( 9O'ford ,niversit% -ress( @th Edition( 4AA4: p"1>4

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the marria+e, and e)en where no dower is e,pressl' fi,ed or mentioned at the marria+e ceremon', the law confers the ri+ht of dower upon the wife"7@ *t is not Jconsideration7 in the modern sense of the term; #$t an o#li ation imposed #% the la! $pon the h$s#and as a mar& of respect to the !ife" C This is made a#$ndantl% clear #% the a$thor of the -eda'a !hen he sa%s. J!he pa'ment of dower is en.oined #' the law merel' as a token of respect for its o#.ect /the women0, wherefore the mention of it is not a#solutel' essential to the )alidit' of a marria+e1 and, for the same reason, a marria+e is also )alid, althou+h the man were to en+a+e in the contract on the special condition that there should #e no dower$7E There is no do$#t that mahr !as ori inall% analo o$s to sale3price( #$t since the inception of *slam it is hardl% correct to re ard it as the price of conn$#ial interco$rse" *f the a$thors of the Ara#ic te't3#oo&s on M$hammadan la! have compared it to price in the la! of sale( it is simpl% #eca$se marria e is re arded as a civil contract in the s%stem" *n pre3*slamic Ara#ia( sadaq !as a ift to the !ife; #$t mahr !as paid to the !ife7s father( and co$ld therefore #e re arded as tantamo$nt to sale3price" +$t !hen *slam insisted on its pa%ment to the !ife( it co$ld no lon er #e re arded strictl% as a sale D" Th$s *slam so$ ht to ma&e mahr into a real settlement in favo$r of the !ife( a provision for a rain% da% and( sociall%( it #ecame a chec& on the capricio$s e'ercise #% the h$s#and of his almost $nlimited po!er of divorce" A h$s#and thin&s t!ice #efore
@ C

2#dul Kadir v" %alima 91BBE: B All" 1@= A#d$r /ahim( >>@" as cited from Asaf"A"A"F%?ee( Outlines of Muhammadan Law( 9O'ford ,niversit% 0amilton7s -eda)a( 4nd ed" +% Grad%( @@( cited #% Mahmood M" in 2#dul Kadir v" %alima 91BBE: B All" /o#ert )mith( Kinship( =43>( 111; Ameer Ali sho!s ho! the chan e !as effected( **( @>43@( @E13> as

-ress( @th Edition( 4AA4: p"1>>

E

1@= at 1CD3B"
D

cited from Asaf"A"A"F%?ee( Outlines of Muhammadan Law( 9O'ford ,niversit% -ress( @th Edition( 4AA4: p"1>>

D|-a e

divorcin a !ife !hen he &no!s that $pon divorce the !hole of the do!er !o$ld #e pa%a#le immediatel%" The M$slim concept of do!er has no reference to the price that $nder some s%stems of la! !as paid to the father of the #ride !hen she !as iven in marria e" On the other hand( it is considered a de#t !ith consideration 9for s$#mission of her person #% the !ife:" The res$lt is that do!er is p$rel% in the nat$re of a marria e settlement and is for consideration" *t is a claim arisin o$t of contract #% the h$s#and and as s$ch has preference to 9sic: #eF$ests and inheritance( #$t on no principle of M$hammadan la! it can have priorit% over the contract$al de#tsB The #est eneral o#servations on do!er are those of Lord -ar&er of Waddin ton in -amira Bi#i v" 3u#aida Bi#i4 . J(ower is an essential incident under the Muslim law to the status of marria+e1 to such an e,tent this is so that when it is unspecified at the time the marria+e is contracted the law declares that it must #e ad.ud+ed on definite principles$ 5e+arded as a consideration for the marria+e, it is, in theor', pa'a#le #efore consummation1 #ut the law allows its di)ision into two parts, one of which is called prompt, pa'a#le #efore the wife can #e called upon to enter the con.u+al domicil1 the other deferred, pa'a#le on the dissolution of the contract #' the death of either of the parties or #' di)orce6$$But the dower ranks as a de#t, and the wife is entitled, alon+ with the other creditors, to ha)e it satisfied on the death of the hus#and out of his estate$ -er ri+ht, howe)er, is no +reater than that of an' other unsecured creditor, e,cept that if she lawfull' o#tains possession of the whole or part of his estate, to satisf' her claim with the rents and issues accruin+ therefrom, she is entitled to retain such possession until it is satisfies$ !his is called the widows lien for dower, and this is the onl' creditors lien of

B =

-er Khalil$??aman M" in Kapore 7hand v" Kadar 8nnissa( O1=CAP )"C"/" D@D at DC1 91=1E: @> *"A" 4=@ at >AA31; also cited in %'ed %a#ir -usain v" *ar9and -asan 91=>D: EC *"A" 11= at

14D"

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the Muslim law which has recei)ed reco+nition in the British :ndian 7ourts and at this Board$7

Ma'% in Islam: -i&t o% "a.ment &o% Se/0

This post !as made in response to a disc$ssion on !hether mahr 9i"e". do!r%: in *slam is a ift or act$all% pa%ment #% the man to have se' !ith the !ife 9i"e". !hether he7s #$%in the !oman li&e he #$%s the services of a !hore:" )o( and to $se no other #asis than le al principles and rationale p$re and simple( here7s !hat" *n contracts !e have #asic terms and conditions to #e f$lfilled #efore the contract is complete" *n a ift contract( terms and conditions revolve entirel% aro$nd the second definition iven here 9somethin vol$ntaril% transferred #% one person to another !itho$t compensation:" +$t if the t!o parties in fact decide that the ift !ill instead #e iven for compensation( then the terms and conditions are so radicall% chan ed as to transform this from a ift contract to a normal #$siness deal 9i"e". a #$%in and sellin contract; somethin ta&en in compensation for somethin iven:" *n marria e( a natural result of the man freel' choosin+ to form a contract is that he is le all% o#li ed to offer( * repeat( merel% offer( a mahr" Note( this o#li ation has no stated compensation to it( !hen for compensation to e'ist it m$st al!a%s #e clearl% stated" The !oman ma% ref$se that mahr( #$t the marria+e contract !ill #e $nto$ched and !ill #e correct and complete all the same( and divorce ma% ta&e place" )ince( le all% spea&in ( divorce is onl% permitted in the case of a correct and complete marria e contract 9and th$s an act$al( on oin marria e:( then conseF$entl% mahr is neither a term nor a condition for a marria e contract" 0ence( re ardless of !hether mahr is accepted or =|-a e

ref$sed( the marria e contract remains virt$all% $nchan ed" Th$s the analo % #et!een marria e contracts and ift contractsQ#$siness deals is n$ll and void"1A F$rther( arisin as a direct( nat$ral res$lt to the man statin his !ish to enter marria e( mahr is th$s conseF$entl% vol$ntar%" The reasonin is that !hen %o$ accept to enter into an% contract( %o$ also vol$ntaril% accept to #e #o$nd #% an% arisin le al o#li ations" D$e to all the aforementioned( and accordin to )haria( t!o separate contracts arise !hen a man declares his !ish to enter marria e" The normal marria e contract( and the ift contract 9mahr:( their onl% commonalit% l%in a shared ori in 9the declaration #% the man:( %et #oth remain completel% independent of each other in nat$re and effect" Additionall%( ift contracts ma% #e conditional" 2o$ ma% loan %o$r car to a friend( on condition that he collects it himself from the mechanic" 2o$r friend collectin the car is not compensation( #$t merel' a condition of %o$r ift" 9This is in accordance !ith ;n+lish Law" For a reference( see Contract La!( #% Francis 6$inn and Catherine Elliot:" *n this re ard the mahr is a conditional ift" *t is offered( on condition that half the amo$nt is to #e ret$rned if the marria e is not cons$mmated" This is one vie! on the matter" There is another( !hich states that the man7s declaration ives rise to onl% one contract( the marria e contract( of !hich mahr is a stipulation or a pro)ision" ,nli&e terms and conditions( !hich are essential to the contract( provisions ma% #e dropped !itho$t necessaril% n$llif%in the contract or chan in its #asic le al effects" Once a ain( this provision 9mahr:( as a component of the contract( is a le al o#li ation that arises and #inds the man as a direct res$lt of his vol$ntar% declaration" *t remains to the !oman to &eep this provision and identif% its amo$nt( or to remove it completel% 9ref$se the mahr:" 0ere( a ain( the mahr is treated as a ift in the ethical sense" Also( le all% spea&in ( all other le al o#li ations remain the same and completel% $nchan ed( !ith or !itho$t this provision 9i"e". the o#li ation of the man to spend financiall% on the ho$se( or the o#li ation of the !oman to o#e% her h$s#and( or the o#li ation on #oth to raise their children( treat each other in a certain !a%( etcR:" ConseF$entl%( mahr in this case is !itho$t consideration( is also vol$ntar% 9remem#er(
1A

/o#ert )mith( Kinship( => as cited from Asaf"A"A"F%?ee( Outlines of Muhammadan Law( 9O'ford ,niversit% -ress( @th Edition( 4AA4:

1A | - a e

!hen %o$ accept to enter into an% contract( %o$ also vol$ntaril% accept an% arisin le al o#li ations:( and can a ain #e ref$sed #% the !oman"11 The concl$sion is( re ardless of !hich e'planation one p$rs$es( the end res$lt and the $ltimate effects remain virt$all% the same" 8nder no possi#le scenario can mahr #e considered pa'ment for se,, onl' a +ift"

Re$a.ment o& Ma'% in cases o& 1'ul divo%ce. A &h$l divorce is one in !hich a !ife s$es for divorce even tho$ h the h$s#and has not driven her to it #% his $nreasona#le #ehavior" *f there is no ood reason for a !ife !ishin to divorce her h$s#and( #$t it is a case in !hich she simpl% !ishes to finish the marria e !ith no partic$lar le al ro$nds a ainst the h$s#and( the h$s#and ma% a ree to rant her the divorce if she ret$rns all or part of the mahr" This has to #e a reed #et!een them" *f the !ife does have en$ine ro$nds for divorce 3 s$ch as cr$elt%( mental cr$elt%( #rea&in of the marria e contract( ad$lter%( desertion( inc$ra#le insanit%( lon 3term imprisonment( a#andonment of *slam 3 then the divorce is not &h$l #$t a normal talaF( in !hich the !ife has as m$ch ri ht to insti ate proceedin s as the h$s#and" *n these cases( she most certainl% does not have to hand over an% of the mahr" *f the !ife has en$ine ro$nds for divorce #$t the h$s#and ref$ses the divorce( she ma% then approach la!%ers for &h$l( and appoint an *mam to act for her" *t is sensi#le to do this as !ell as havin a ,K la!%er" )he is not reF$ired to pa% #ac& an% of her mahr" *ndeed( the la!%ers ma% demand some f$rther compensation for her if the h$s#and is $ilt%" 9)he ma% have to prove his $ilt( and sho$ld ather as m$ch evidence #eforehand as she can 3 s$ch as si ned and !itnessed statements of !itnesses( photo raphs of inj$ries s$stained( etc:"14
11

/o#ert )mith( Kinship( => as cited from Asaf"A"A"F%?ee( Outlines of Muhammadan Law( 9O'ford ,niversit% -ress( @th Edition( 4AA4: 14 Mahmood ( Syed Tahir. (The Muslim law of India, Law Book Co., 1980

11 | - a e

*nde% 2'at conditions is it $a.able0

There are t!o main !a%s of properl% presentin mahr to the #ride" The first !a% is to hand it over in f$ll at the time of marria e( in !hich case it is &no!n as mahr m$Sajjal( or Spromptl% iven mahrS" 9Notice the S " The !ord is derived from Sajilah( meanin S!itho$t dela%S" This !as the accepted practice d$rin the time of the -rophet( and the amo$nt fi'ed !as enerall% F$ite minimal" *n the case of Fatimah and Ali( Ali informed the -rophet that he had nothin to ive her" The -rophet reminded him of a coat of chain3mail he had #een iven" *t !as still in his possession( altho$ h in a dilapidated condition and !orth less than fo$r dirhams" The -rophet s$ ested he ave that to Fatimah( and this !as done"

The second !a% of presentin mahr is to defer it( to hand it over to the #ride after a certain period of time( the d$ration of !hich m$st #e specified( fi'ed #% the man and a reed #% the !ife" This has to #e settled( !ith !itnesses( at the time of the marria e" This form of mahr is &no!n as mahr m$!ajjal" 9the !ord implies Sin a period of timeS:" The five major schools of *slamic j$rispr$dence all a ree that dela% in handin over the mahr( !hether in f$ll or in part( is la!f$l provided that the fi'ed period for pa%ment is not indefinite"1> This method sho$ld never #e $sed as an e'c$se to !illf$ll% postpone the pa%ment" A definite date sho$ld al!a%s #e fi'ed( !itnessed( and adhered to" *t sho$ld certainl% not #e left Shan in S in case the marria e #rea&s do!n and the co$ple come to consider a divorce 3 #eca$se of the inevita#le emotions( #itterness( ar $ments( hostilities and financial pro#lems involved at that time"

1>

Mahmood ( Syed Tahir. (The Muslim law of India, Law Book Co., 1980

14 | - a e

*f the h$s#and died( or the% ot divorced( the mahr de#t m$st #e paid $p immediatel% to the !ido! #efore his inheritance or other financial settlements are considered" *t is her propert%( and not his"

Ho2 muc' s'ould t'e Ma'% amount be0 *t is $n*slamic for a M$slim !oman to set a h$ e demand for herself( !ith the intention of deterrin s$itors of h$m#le means" *slam does not reF$ire h$s#ands and !ives to come from the same social strata or income #rac&ets 3 altho$ h this ma% often seem to #e advisa#le" *slamic compati#ilit% is #ased on reli io$s faith and m$t$al respect( not on mone%( caste 9another 0ind$ c$stom:( class( #ac& ro$nd( nationalit%( etc" *t is j$st as $n*slamic to demand a h$ e mahr( enerall% #e%ond the h$s#andSs means( #ased on the intention of chec&in the h$s#and from ill3treatin his !ife( or !ron f$ll% or ca$selessl% divorcin the !ife( or preventin him from remarr%in another later 3 the reasonin #ein that in cases of divorce the !oman can demand the f$ll pa%ment of the mahr" The fi'in of a s$#stantial mahr for the a#ove p$rposes rests on the s$pposition that the mahr has to #e fi'ed at the time of marria e( #$t not handed over $ntil divorce 3 !hich ives it a s$pposed SdeterrentS val$e" This is $nla!f$l in *slam( for in this case the !ife has no $se or o!nership of the mahr d$rin the time of the marria e" *f the prospective h$s#and is not a !ealth% man( a enero$s !ife ma% choose to accept ver% small mahr( #$t this has to #e her o!n free choice" )he sho$ld not #e coerced or have press$re p$t on her in an% !a%" )ome of the -rophetSs female companions accepted their h$s#andsS conversions to *slam( or memorisin of a%at of the 6$rSan( or ivin ed$cation to others as their mahr" The mahr has to #e fi'ed ta&in into acco$nt the #ride roomSs position in life" That is( it sho$ld not normall% #e more than he is easil% a#le to afford( !hether it #e a l$mp s$m or 1> | - a e

some article of val$e" M$rists have different vie!s on !hat the minim$m amo$nt sho$ld #e( #$t all a ree that it sho$ld #e s$#stantial eno$ h for somethin to #e #o$ ht a ainst it" *n other !ords( an% amo$nt !hich is s$fficient for a p$rchase is accepta#le as mahr" The h$s#and ma% #e loaned mone% #% his father or famil%( #$t it m$st #e repaid" *n the case of Na#i M$sa 9the -rophet Moses:( !hen he left E %pt for Mad%an he married )af$ra the da$ hter of the -rophet )h$Sa%#" 0is mahr m$Sajjal !as settled and paid off #% #indin himself to ra?in his father3in3la!Ss cattle for ten %ears !itho$t !a es" -res$ma#l% )h$Sa%# had paid )af$ra on M$saSs #ehalf" A ood !oman mi ht a ree on a lo! mahr if she !ishes( or none at all( accordin to the circ$mstances of her h$s#and" Once fi'ed it is fi'ed( and le all% #indin 3 so it is ood practice to have it !ritten do!n and !itnessed on a doc$ment" The !ife sho$ld ta&e advice on her decision( and not #e #linded #% emotion( or coercion( or fear( or famil% press$re" *f an% person press$rises a !oman into a decision she mi ht not have other!ise made( that person !ill #e held to acco$nt in the Life to Come( even if he S ot a!a% !ith itS on this earth" One recorded hadith s$ ests that Sthe #est !oman is the one !hose mahr is the easiest

to pa%"S 9al30a%thami( Kita# an3Ni&ah @.4B1:" 0o!ever( it is sensi#le for a !ife to accept a reasona#le mahr( as this #ecomes her o!n propert% as stated( and is hers to &eep sho$ld the marria e fail and end in divorce"

W'o o2ns t'e ma'%0 !an it be %e&used0

*t is o!ned solel% #% the !ife" The h$s#and is not allo!ed to ref$se to pa% his !ife a proper mahr or faridah" The settlin of the pa%ment is o#li ator%"

1@ | - a e

SWomen are la!f$l to %o$R"provided that %o$ ta&e them in marria e and not fornication" As to those thro$ h !hom %o$ profit 9thro$ h marria e:( ive them their faridah as appointed"S 94.4@:" The same applied !hen marr%in Me!ish or Christian !omen 9C.C:" *f a M$slim man married someone S!hom his ri ht hand possessedS 9ie a slave or prisoner of !ar:( the mahr !as to rant her freedom and other pa%ment !as not reF$ired" Caliph ,mar r$led that if a !oman had e'c$sed her h$s#and his mahr( #$t later demanded it( the h$s#and sho$ld #e compelled to pa% it on the ro$nds that the fact that she demanded it !as a clear proof that she had not remit it of her o!n free !ill" The case of a !oman !hose h$s#and died #efore fi'in the amo$nt of the do!r% or cons$mmatin the marria e !as #ro$ ht to A#d$llah #" MasS$d" 0e r$led that she sho$ld #e paid accordin to the mahr of !omen of li&e stat$s to herself" The )hafi S* school r$les that a !ife ma% ref$se to cons$mmate the marria e if the h$s#and a reed to pa% the mahr immediatel%( #$t did not do so" )he ma% have the marria e ann$lled"

1C | - a e

SO!I#TAL AS"#!T O, MAHR

T'e Sociall. A((%essive Mahr. The mahr can #e $sed for socio3political motives as seen in displa% the po!er and !ealth that a person( famil% or ro$p has in order to esta#lish social divisions #% intimidation" *n the case of al3MaTmHn his displa% of !ealth( that incl$ded scatterin 1AAA matched pearls over his #ride to #e( left no do$#t as to !ho !as the r$ler and !ho !ere the r$led" Al3Ma7mHn on the eve of the !eddin also compelled his father in la! to drin& !ine as a f$rther displa% of his Caliphal po!er" Where mahrs are a reed for the p$rpose of e'trava ance or as a !a% of creatin or maintainin class divisions the% need to #e e'cl$ded from the calc$lation of the t%pical mahr in a iven societ%" The% are distortions of an *slamic practice and are in principle contrar% to *slamic ethics"1@ T'e Sociall. St%ate(ic Mahr *n an attempt to #e associated !ith those !ho are endo!ed !ith the means to deplo% sociall% a ressive mahrs individ$als and families !ill em$late the e'cessivemahrs of the 8elite<" That is an attempt to defend the self3perception of their stat$s and leads them to demand that $n3reasona#le s$ms #e a reed for mahr$ The details of the a reed s$ms ma% #e fla$nted p$#licl% contrar% to the #ehavio$r e'pected of M$slims( 8And
1@

Mahmood ( Syed Tahir. (The Muslim law of India, Law Book Co., 1980

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s!ell not th% chee& 9for pride: at men( nor !al& in insolence thro$ h the earth; for Allah loveth not an% arro ant #oaster"< 1C

T'e Sociall. !onst%uctive Mahr Where the parties to a marria e mi ht settle for a mahr of hi h val$e #$t decide for reasons of m$t$al or p$#lic interest to proceed $pon an amo$nt that is !ithin the ran e of commonl% accepted mahrs the% can #e said to #e sociall% constr$ctive" The% set an e'ample of m$t$al consideration for all to see" *n cases !here co$ples of avera e stat$s settle for less than the norm their decision "

1C

Mahmood ( Syed Tahir. (The Muslim law of India, Law Book Co., 1980

1D | - a e

R#-*LATIO O, -O3#R M# T O MAHR

0avin presented evidence that there are social( le al and economic pro#lems associated !ith the val$es a reed for mahral ifts that fall into the three cate ories of J sunnah non3 compliance7 an ethical F$estion sho$ld #e addressed( partic$larl% #% M$slims" +% !hat ri ht do !e initiate f$rther le islation and chan e to !hat ma% #e seen as a private transactionL *f it is accepted that marria e is intended for the ood of the individ$al and societ% then an%thin that acts a ainst marria e acts a ainst societ% and societ% has ro$nds $pon !hich to act" An *slamic j$stification for the permissi#ilit% of re $lation can also #e made on the ro$nds of p$#lic interest and this can #e specificall% s$pported in re ard to mahr !ith or !hat satisfies the people( that is commonl% $sed #% K$la%ni in the narrations the% report definin mahr as an alternative to the mahr al-sunnah" 2lns is not iven an% restriction and so it ma% appl% to the #ride and room( near relatives or #e e'tended to an%one !ho is affected #% the s$m a reed" Th$s re $lation !o$ld seem to #e j$stified !hen the primar% p$rpose for re $latin o#stacle to marria e"1E The histor% of attempts to re $late mahral pa%ments #e in it is said !hen the Caliph ,mar tried to fi' a ma'im$m amo$nt to stop the lar e s$ms #ein iven as mahr preventin poorer Ara# men from marr%in d$rin his r$le" 0e !as forced to a#andon the attempt !hen a !oman o#jected !ith the !ords( 82o$ shall not deprive $s of !hat God
1E

the si?e of mahral an

pa%ments is to ma'imise their positive social effects and avoid them #ecomin

ave $s"< Altho$ h the acc$rac% and a$thenticit% of this report are

F$estiona#le there is( #% its freF$ent $se in disc$ssions $pon the iss$e of mahral val$es(
Di!an ( Paras, Muslim law in modern India, llaha!ad Law "en#y, 19$$

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a stron indication of an earl% and lastin concern a#o$t them and their affect in limitin the n$m#er of availa#le marria e partners" This concern can also #e inferred to have e'isted in the first cent$r% A0 #% the n$m#er of hadith that refer to CAA dirhams and in the second and third cent$ries A0 #% the freF$enc% !ith !hich the )hi7ite *mams and earl% )$nni scholars responded to the F$estion of !hat sho$ld #e iven !ith the ans!er 8mahr al-sunnah<" *n the t!entieth cent$r% attempts to limit the si?e of mahral pa%ments #% le islation met !ith as little s$ccess" *n Af hanistan in 1=4@ and 1=DB limits !ere imposed #$t failed to ain pop$lar s$pport #eca$se !omen felt the% !ere #ein deval$ed( and T$r&e% !ith the adoption of )!iss Famil% La! tried to o$tla! mahr alto ether #$t the practice still contin$es" The iss$e in T$r&e% !as the sec$larisation of the state !hile in Af hanistan #ridal ifts !ere seen as an impediment to national and ed$cational development #eca$se the hi h mahrsforced men to !or& from C to 1A %ears in order to o#tain a #ride" Co$ntries !ith lar e reli io$s minorities( s$ch as Mala%sia and *ndia( have made provision for variations in famil% la! for different faiths" *ndia has the M$slim Women 9-rotection of /i hts on Divorce: Act( 1=BE >:( amon other provisions to incl$de shariah la!s !ithin the sec$lar la! of the nation" This act reco nisesmahr and allo!s a ma istrate to order its pa%ment( 8or( as the case ma% #e( for the pa%ment of s$ch mahr or do!er or the deliver% of s$ch properties referred to in cla$se 9d: of s$#3 section 91: to the divorced !oman.< An *ndian ma istrate ma% also red$ce the s$m offered or order its pa%ment #% instalments after assessin income"1D the man7s !ealth and

1D

Di!an ( Paras, Muslim law in modern India, llaha!ad Law "en#y, 19$$

1= | - a e

T'e cu%%ent status o& ma'% in la2 4#n(land and Wales5

As stated in the openin para raph the parties to a nikh can derive some reco nition at la! #% #ein considered to have formed common la! marria e #$t in En land and Wales. All marria es !hich ta&e place in the ,nited Kin dom m$st( in order to be recognised as valid ( #e mono amo$s and m$st #e carried o$t in accordance !ith the reF$irements of the Marria e Act 1=@=( as amended #% the Marria e Acts of 1=DA( 1=B> and 1==@( the Marria e /e $lations of 1=BE and other related Acts 9e ; the Children Act 1=B=:" 9*mmi ration Directorates *nstr$ctions 4AA>:" Th$s( the often referred to case of )hana? v /i?!an !as dealt !ith as a marria e contracted accordin to 8forei n la!< and the mahr !as a!arded to the !ife $nder the provisions of *ndian La!" 96+D 1=EC.>=A: Mahr has never #een accepted in En lish co$rts of la! as a 8notorio$s fact<" M$stice Winn in his s$mmation of )hana? v /i?!an at appeal !rote( the ri+ht to dower, once it has accrued as pa'a#le, is a ri+ht in action, enforcea#le #' a ci)il action without takin+ specificall' matrimonial proceedin+s, re+arded #' Mohammedan law as a proprietar' ri+ht assi+na#le under section < of the !ransfer of =ropert' 2ct, >??@, of the :ndian 7ode, /Ainn >4BC0 As McLean sa%s( D;n+lish courts take .udicial notice of the law of ;n+land and of notorious facts, #ut not of forei+n law$E *t !o$ld( ho!ever( reF$ire f$rther adaptations of 4A | - a e

c$rrent M$slim marria e formalities to increase the possi#ilit% that #rides and e'3!ives mi ht enforce their ri ht to receive an% deferred pa%ments in the f$t$re" These adaptations !o$ld incl$de arrivin at a specified val$e ran e for marital ifts that !o$ld #e re arded #% co$rts as #ein accepta#le for le al action to #e p$rs$ed and specif%in that the mahr is a ift !ithin the marria e so that claims for its pa%ment mi ht proceed under the pro)isions of the Married Aomens =ropert' 2ct of >??@, section >F, in the 8nited Kin+dom$ /+lac&( M"( M" +rid e and T" +ond 1==B.CAB: !his need to esta#lish the time and date of the marital +ift is less critical if a 7i)il Marria+e ceremon' has #een solemni9ed #efore the readin+ of the aqd al-Nik$ Ahere the ci)il ceremon' precedes the aqd the +ift of the mahr is de facto within the le+all' reco+nised marria+e #ut to date this has not #een tested at trial$ !here are also lessons to #e learned from e,periences in 8$%$ courts where in some cases the pa'ment of mahr has #een enforced #ut has often #een confused with the Gewish +et or simpl' #een misunderstoodH There are some elements of American ante3n$ptial contracts that are clearl% at odds !ith M$slim practice" For e'ample( ref$sal to enforce mahr terms #eca$se the% tend to enco$ra e separation #% onl% providin for settlement in the event of divorce" This disre ards man% important principles in *slamic c$lt$re. in partic$lar those that place emphasis on the promotion and preservation of marital ties" Additionall%( there is no tradition in *slam reF$irin disclos$re of assets or see&in le al advice prior to matrimon%" Contin$in !ith the c$rrent position of nikh and conseF$entl% mahr #ein $nre $lated #% la! allo!s an% mis$se to contin$e $nchec&ed and leads some commentators to the concl$sion that( 8O#vio$sl% co$rts do not $nderstand the p$rpose of the 8Mahr A reement< !hich does not in an% !a% facilitate divorce or separation"<1B

1B

Gajendra ad&ar( P. B., Endowment lectures ( Syed Tahir Mahmood( Personal laws in #risis Me%ro&oli%an, 198'

41 | - a e

A $ossible alte%native to ac'ieve %e(ulation and le(al %eco(nition &o% ma'%. 0avin criticised the attempts that have #een made to re $late the si?e and val$e of propert% iven as mahr an alternative possi#ilit% ma% #e considered #% le islators for *slamic and non3*slamic co$ntries" *t is reasona#le that ifts made for p$rposes other than f$lfillin a reli io$s o#li ation( i"e" as a transaction( sho$ld to some e'tent( #e re $lated #% la!s commonl% applied to other transactions" To coin a Christian o##it( !e sho$ld render Caesar his d$e" Especiall% if #% doin so social and reli io$s #enefits ma% #e accr$ed" A meas$re for the incl$sion of mahr !ithin the re $lations and la!s that provide for ta'ation of income !ill re $late the s$ms offered and also confer a real le al stat$s to mahr that it does not have at present" Mahr can #e considered as income for the !oman( an ass$mption that is s$pporta#le in the 6$r7an "it is possi#le to consider that these ifts mi ht #e s$#jected to some form of income ta'" *ndivid$al overnments !ill need to assess !hat the mahr al-sunnah !ill eF$ate to in their o!n c$rrenc%( for it ma% form the #asis of calc$latin an accepta#le ta' threshold that protects that portion of the ift !hich is p$rel% reli io$s in its intent( #efore esta#lishin the rate of ta'ation and an% rad$ation of it" 1=

1=

Gajendra ad&ar( P. B., Endowment lectures ( Syed Tahir Mahmood( Personal laws in #risis Me%ro&oli%an, 198'

44 | - a e

O )"AYM# T O, DOW#R
The claim of the !ife or !ido! for the $npaid portion of the mahr is an $nsec$red de#t d$e to her from her h$s#and or his estate( respectivel%" *t ran&s ratea#l% !ith $nsec$red de#ts( and is an actiona#le claim" D$rin her lifetime the !ife can recover the de#t herself from the estate of the deceased h$s#and" *f she predeceases the h$s#and( the heirs of the !ife( incl$din the h$s#and( #ecome entitled to her do!er" A lad%( !hose mahr !as /s" CA(AAA( received from her h$s#and d$rin his lifetime s$ms of mone% in the a re ate e'ceedin the mahr settled on her" The lar est of s$ch pa%ments !as /s" >(AAA" There !as no evidence that these pa%ments !ere intended #% the h$s#and to satisf% the doer de#t" The F$estion arose !hether these pa%ments satisfied the h$s#and7s o#li ation" The M$dicial Committee held that s$ch pa%ments !ere not to #e treated as havin #een made in satisfaction of the do!er de#t"4A on)$a.ment o& "%om$t Do2e% *f the h$s#and ref$ses the pa% prompt do!er( the $ardian of a minor !ife has the ri ht to ref$se to allo! her to #e sent to the h$s#and7s ho$se; and similarl%( the !ife ma% ref$se the h$s#and his conj$ al ri hts( provided no cons$mmation has ta&en place" The !ife is $nder M$hammadan La! entitled to ref$se herself to her h$s#and $ntil the prompt do!er is paid; and if in s$ch circ$mstances she happens to reside apart from him( the h$s#and is #o$nd to maintain her"41

4A 41

Mohammad %adiq v" *akr Gahan 91=>1: C= *"A" 1=" Nur-ud-din 2hmad v" Masuda Khanam -LD 1=CD Dacca 4@4; Muhammadi v" Gamiluddin -LD 1=EA

Karachi EE>"

4> | - a e

This ri ht of ref$sin her is( ho!ever( lost on cons$mmation" 44 Th$s if the h$s#and files a s$it for restit$tion of conj$ al ri hts #efore coha#itation( non3pa%ment of prompt do!er is a complete defence; #$t after coha#itation( the proper co$rse is to pass a decree for restit$tion conditional on the pa%ment of prompt do!er" This !as laid do!n in the leadin case of 2nis Be+am v" Muhammad :stafa Aali Khan"4> on)$a.ment o& De&e%%ed Do2e% The non3pa%ment of deferred do!er #% its ver% nat$re cannot confer an% s$ch ri ht of ref$sal on the !ife" The ri ht to enforce pa%ment arises onl% on death( divorce or the happenin of a specified event" The do!er ran&s as a de#t and the !ido! is entitled( alon !ith the other creditors of her deceased h$s#and to have it satisfied o$t of his estate" 0er ri ht( ho!ever( is the ri ht of an $nsec$red creditor; she is not entitled to a char e on the h$s#and7s propert%( $nless there #e an a reement" The )$preme Co$rt of *ndia has laid do!n i. ii. That the widow has no priority over the creditors, but That mahr as a debt has priority over the other heirs claims.24 And the heirs of the deceased are not personall% lia#le to pa% the do!er; the% are lia#le ratea#l% to the e'tent of the share of the inheritance !hich comes to their hands"

T'e Wido2+s Ri('t o& Retention

44

*n Lahore it has #een held that cons$mmation does not deprive the !ife of her ri ht to ref$se conj$ al

relations if the prompt do!er is not paid( 5ahim Gan v" Muhammad( -LD 1=CC Lahore 144; per contra( 5a#ia Khatoon v" Mukhtar 2hmad A*/ 91=EE: All" C@B( !hich( it is s$#mitted is the correct vie!"
4>

91=>>: CC All" C@B" This case is of reat importance as )$laiman C"M" has caref$ll% considered and Kapore 7hand v" Kadar 8nnissa O1=CAP )"C"/" D@D"

critici?ed certain dicta of Mahmood M" in the leadin case of 2#dul Kadir v" %alima 91BBE: B All" 1@=
4@

4@ | - a e

M$hammadan la! ives to the !ido!( !hose do!er has remained $npaid a ver% special ri ht to enforce her demand" This is &no!n as Jthe !ido!7s ri ht of retention7" A !ido! la!f$ll% in possession of her deceased h$s#and7s estate is entitled to retain s$ch possession $ntil her do!er de#t is satisfied" 4C 0er ri ht is not in the nat$re of a re $lar char e( mort a e or a lien4E; it is in essence a personal ri ht as a ainst heirs and creditors to enforce her ri hts; and it is a ri ht to retain( not to o#tain( possession of her h$s#and7s estate" Once she loses possession of her h$s#and7s estate( she loses her special ri ht and is in no #etter position than an $nsec$red creditor"4D The nat$re of this ri ht !as disc$ssed #% their lordships of the -riv% Co$ncil in Maina Bi#i v" 7haudhri akil 2hmad@? " One M$in$ddin died in 1B=A possessed of immova#le propert% leavin him s$rvivin his !ido! Maina +i#i( !ho entered into possession" *n 1=A4 some of the heirs filed a s$it to recover possession of their share of the propert%" The !ido! pleaded that the estate !as a ift to her( or alternativel% that she !as entitled to possession $ntil her do!er !as paid" *n 1=A> the trial j$d e made a decree for possession in favo$r of the plaintiffs on condition that the plaintiffs paid a certain s$m #% !a% of do!er and interest to the !ido! !ithin si' months" This s$m !as not paid( ho!ever( and the !ido! remained in possession( in 1=AD Maina +i#i p$rported to ma&e a ift of the !hole of her propert% to certain persons" The ori inal plaintiffs challen ed this ift and the -riv% Co$ncil held that the !ido! had no po!er to ma&e a ift of the properties( and co$ld not conve% the share of the heirs to the donees" Their lordships( in disc$ssin the nat$re of a !ido!7s ri ht of retention( said that Jthe possession of the propert' #ein+ once peacea#l' and lawfull' acquired, the ri+ht of the widow to retain it till her dower-de#t is paid is conferred upon her #' Mahomedan Law7"4=

4C 4E 4D 4B 4=

Mir)ahedalli v" 5ashid#e+( A*/ 91=C1: +om" 44 3ai#unnissa v" Na9im -asan( A*/ 91=E4: All" 1=D :#id 91=4@: C4 *"A" 1@C" :d at p" 1CA"

4C | - a e

The% f$rther said that it is not e'actl% an lien( nor a mort a e( $s$fr$ct$ar% or other" J!he widow who holds possession of her hus#ands propert' until she has #een paid her dower has no estate or interest in the propert' as a mort+a+ee under an ordinar' mort+a+e7">A Th$s( in essence( it is a personal ri ht iven #% M$hammadan &a! to safe $ard the position of the !ido!">1 The )$preme Co$rt has laid do!n that a M$slim !ido! in possession of her deceased h$s#and7s estate in lie$ of her claims for do!er( !hether !ith the consent of the heirs or other!ise( is not entitled to priorit% as a ainst his $nsec$red creditors">4 There is a conflict of opinion !hether in order to retain possession the consent( e'press or implied( of the h$s#and or his heirs is necessar%" )ome j$d es are of opinion that s$ch consent is necessar%; others( that it is not" *t is s$#mitted !ith reat respect( that on first principles( havin re ard to the nat$re of the ri ht( the consent of the h$s#and or his heirs is immaterial" M$hammadan la! casts a special o#li ation on ever% de#tor to pa% his de#t( and the ri ht of the !ido! for her do!er is a de#t for !hich the !ido! has a ood safe $ard" Th$s( the F$estion of consent appears to #e immaterial" The ri ht to retention does not confer on the !ido! an% title to the propert%" 0er ri hts are t!ofold. one( as heir of the deceased and t!o( as !ido! entitled to her do!er and( if necessar%( to retain possession of the estate $ntil her mahr has #een paid" The ri ht to hold possession m$st( therefore( #e sharpl% distin $ished from her ri ht as an heir" The !ido!( in these circ$mstances( has the ri ht to have the propert% administered( her j$st de#ts satisfied and her share of the inheritance ascertained and paid" )he has no ri ht to

>A >1 >4

:d at p" 1C1" The -atna 0i h Co$rt has adopted this vie!( 2#dul %amad v" 2limuddin 91=@>: 44 -at" DCA" %upra Note 4C

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alienate the propert% #% sale( mort a e( ift or other!ise( and if she attempts to do so( she loses her ri ht of mahr" There are t!o other major F$estions on !hich the la! is still $nsettled" Can the !ido! transfer her ri ht of retentionL And is this ri ht of retention herita#leL *n Maina Bi#i v" 7haudhri akil 2hmad<< their lordships e'pressed a do$#t !hether a !ido! co$ld transfer the do!er de#t or the ri ht to retain the estate $ntil the mahr !as paid" Follo!in that case there has #een m$ch conflict of j$dicial opinion on the F$estions as to the herita#ilit% and transfera#ilit% of this ri ht" The M%sore and Allaha#ad 0i h Co$trs have decided that the ri ht is #oth herita#le and transfera#le >@; #$t the -atna 0i h Co$rt has held that the !ido!7s is a personal ri ht( and not a lien( and as s$ch( it is not transfera#le">C Altho$ h there is a conflict of opinion( in vie! of Kapore 7hands case( the #alance of a$thorit% seems to #e in favo$r of the -atna vie!"

>> >@ >C

%upra Note 4= -ussain v" 5ahim Khan A*/ 91=C@: M%sore 4@; 3ai#unnissa v" Na9im -asan A*/ 91=E4: All" 1=D" 3o#air 2hmad v" Gainandan =rasad A*/ 91=EA: -at" 1@D"

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A ALYSIS O, SOM# !AS#S ! Mohd. "hmed #han v. $hah %ano %egum and &rs.'(

HO +6L# 7*D-#S 2"U" Chandrach$d( C"M"( D"A" Desai( E")" Uen&ataramiah( O" Chinnappa /edd% and /an anath Misra( MM" ,A!TS The appellant( !ho is an advocate #% profession( !as married to the respondent in 1=>4" Three sons and t!o da$ hters !ire #orn of that marria e" *n 1=DC the appellant drove the respondent o$t of the matrimonial home" *n April 1=DB( the respondent filed a petition a ainst the appellant $nder )ection 14C of the Code in the co$rt of the learned M$dicial Ma istrate 9First Class:( *ndore as&in for maintenance at the rate of /s" CAA per month" On Novem#er E( 1=DB the appellant divorced the respondent #% an irrevoca#le talaF" 0is defence to the respondent7s petition for maintenance !as that she had ceased to #e his !ife #% reason of the divorce ranted #% him( to provide that he !as therefore $nder no o#li ation maintenance for her( that he had alread% paid maintenance to her at the rate of /s" 4AA per month for a#o$t t!o %ears and that( he had deposited a s$m of /s" >AAA in the co$rt #% !a% of do!er d$rin the period the of iddat" *n A$ $st( 1=D= the learned Ma istrate directed appellant to pa% a princel% s$m of /s" 4C per month to the respondent #% !a% of maintenance" *t ma% #e
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A*/ 1=BC )C =@C

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mentioned that the respondent had alle ed that the appellant earns a professional income of a#o$t /s" EA(AAA per %ear" *n M$l%( 1=BA in a revisional application filed #% the respondent( the 0i h co$rt of Madh%a -radesh enhanced the amo$nt of maintenance to /s" 1D="4A per month" The h$s#and th$s came #efore the )$preme Co$rt #% )pecial leave"

R#L#3A T ISS*# 1: Wo$ld the pa%ment of mahr indemnif% the h$s#and from his o#li ation $nder the provisions of )ection 14C Cr"-"CL D#!ISIO The Co$rt decided that mahr is different from a s$m pa%a#le Jon divorce7 !hich occ$rs in )ection 14D9>:9#: of Cr"-"C and hence does not indemnif% the h$s#and from his o#li ation $nder the provisions of )ection 14C Cr"-"C" R#ASO I - *n M$lla7s principles of Mahomedan La! 91Bth Edition( pa e >AB:( mahr or Do!er is defined in para raph 4BC as 8a s$m of mone% or other propert% !hich the !ife is entitled to receive from the h$s#and in consideration of the marria e"< Dr" -aras Di!an in his #oo&( 8M$slim La! in Modern *ndia< 91=B4 Edition( pa e EA:( criticises this definition on the ro$nd that mahr is not pa%a#le 8in consideration of marria e< #$t is an o#li ation imposed #% la! on the h$s#and as a mar& of respect for the !ife( as is evident from the fact that non3 specification of mahr at the time of marria e does not affect the validit% of the marria e" ,nder the M$slim -ersonal La!( the amo$nt of mahr is $s$all% split into t!o parts( one of !hich is called 8prompt<( !hich is pa%a#le on demand( and the

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other is called 8deferred< !hich is pa%a#le on the dissol$tion of the marria e #% death or #% divorce" +$t( the fact that deferred mahr is pa%a#le at the time of the dissol$tion of marria e( cannot j$stif% the concl$sion that it is pa%a#le Jon divorce7" Even ass$min that( in a iven case( the entire amo$nt of mahr is of the deferred variet% pa%a#le on the dissol$tion of marria e #% divorce( it cannot #e said that it is an amo$nt !hich is pa%a#le on divorce" Divorce ma%#e a convenient or identifia#le point of time at !hich the deferred amo$nt has to #e paid #% the h$s#and to the !ife" +$t( the pa%ment of the amo$nt is not occasioned #% the divorce( !hich is !hat is meant #% the e'pression Jon divorce7( !hich occ$rs in )ection 14D9>:9#: of the Code" *f mahr is an amo$nt !hich the !ife is entitled to receive from the h$s#and in consideration of the marria e( that is the ver% opposite of the amo$nt #ein pa%a#le in consideration of divorce" Divorce dissolves the Marria e" Therefore no amo$nt !hich is pa%a#le in consideration of the marria e can possi#l% #e descri#ed as an amo$nt pa%a#le in consideration of divorce" The alternative premise that mahr is an o#li ation imposed $pon the h$s#and as a mar& of respect for the !ife( is !holl% detrimental to the stance that it is an amo$nt pa%a#le to the !ife on divorce" A man ma% marr% a !oman for love( loo&s( learnin or nothin at all" And he ma% settle a s$m $pon her as a mar& of respect for her" +$t he does not divorce her as a mar& of respect" Therefore( a s$m pa%a#le to the !ife o$t of respect cannot #e a s$m pa%a#le Jon divorce7"

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2! Md. )ayeem #han v. *nion +aw $ecretary, ,overnment of -ndia, )ew .elhi
and others '/ HO +6L# 7*D-#S )at%a +rata )inha( C"M" and U"U")" /ao( M ,A!TS This case is #ased on a ver% comple' fact$al matri'" 0o!ever( the relevant iss$e to #e disc$ssed does not reF$ire m$ch ela#oration of facts" 0ence( the a$thor is not mentionin the facts" R#L#3A T ISS*# 1: Whether M$slim !omen entitled to retain possession of h$s#and7s immova#le propert% even after divorce( $ntil her do!er de#t is satisfiedL D#!ISIO The Co$rt decided that a M$slim !ido! is conferred !ith the ri ht to retain propert% in lie$ of pa%ment of Jmahr7 till it is paid off( !hether she is divorced or her h$s#and is deceased" R#ASO I - A principle of M$slim la! confers a ri ht on the !ido! to retain the immova#le propert% of her late h$s#and in her possession in lie$ of pa%ment of Mahr till the same is paid off"
>D

4AA1 9C: ALD 1@C

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-ossi#l% the same principle ma% #e e'tended havin re ard to the rationale #ehind the said principle to cases !here the divorced !ife is in possession of a ho$se of the h$s#and or in re ard to the matrimonial home !here she is residin " )he ma% #e entitled to retain possession of the ho$se of the h$s#and !ho divorced her till the mahr amo$nt is paid off"

'! #apore 0hand v. #adar *nnisa %egum and &rs.'1

HO +6L# 7*D-#S Mehr Chand Mahajan( /"C" -atnai& and Khalil$??aman( MM" ,A!TS The appellant( Kap$rchand( had a mone% decree( amon st others; a ainst one Mir 0amid Ali Khan( h$s#and of the respondent Kader$nnisa" *n e'ec$tion of the decree the ho$se in disp$te #elon in j$d ment3de#tor !as attached" To the attachment the !ido! of the deceased raised an o#jection on the ro$nd that she !as in possession of it in lie$ of her o$tstandin do!er and co$ld not #e dispossessed her claim !as satisfied" The o#jection !as allo!ed #% the e'ec$tin co$rt and it !as ordered that the ho$se #e sold s$#ject to the respondent7s claim( the decree3holder #ein entitled to the s$rpl$s( if an%( o$t of the sale proceeds" There !as not m$ch possi#ilit% of the ho$se fetchin more in the e'ec$tion sale than the amo$nt d$e on acco$nt of do!er" The co$rt too& the vie! that the !ido!7s claim for do!er had priorit% over de#ts d$e to other $nsec$red creditors and her position !as analo o$s to that of a sec$red creditor" to the deceased

>B

A*/ 1=C> )C @1>(

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The decree3holder made an application in revision to the 0i h Co$rt #$t !itho$t an% s$ccess" 0e then preferred an appeal to the M$dicial Committee of the )tate and it is no! #efore the )$preme Co$rt of *ndia"

ISS*# 1: Whether !ido! possessin h$s#and7s estate in lie$ of do!er entitled to priorit% over other creditorsL

D#!ISIO The Co$rt decided that a !ido! possessin h$s#and7s estate in lie$ of do!er is not entitled to priorit% over creditors; ho!ever it is entitled priorit% a ainst heirs of the deceased h$s#and" R#ASO I - The do!er of a M$slim !oman is a settlement in her favo$r made prior to the marria e contract and is similar to the donation proper n$ptias of the /omans #$t is of s$ch an o#li ator% nat$re that if it is not mentioned #efore or at the time of the marria e( it is pres$med to e'ist to the e'tent of a proper do!er amo$nt The M$slim concept of do!er has no reference to the price that $nder some s%stems of la! !as paid to the father of the #ride !hen she !as iven in marria e" On the other hand( it is considered a de#t !ith consideration 9for the s$#mission of her person #% the !ife:" Therefore do!er is p$rel% in the nat$re of a marria e settlement and is for consideration" *t is a claim arisin o$t of contract #% the h$s#and and as s$ch has preference to #eF$ests and inheritance( #$t on no principle of M$hammadan La! it can have priorit% over other contract$al de#ts"

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*n o$r vie!( therefore( a do!er de#t cannot #e iven an% priorit% over other de#ts on an% eF$ita#le consideration or on the ro$nd that there is somethin inherent in its ver% nat$re !hich entitles it to priorit%"

!O !L*SIO
*n concl$sion( all that can #e said is that Mahr is a mandator% ift iven #% the room to the #ride" ,nli&e a #ride price( ho!ever( it is iven directl% to the #ride and not to her father" Altho$ h the ift is often mone%( it can #e an%thin a reed $pon #% #ride and room s$ch as a ho$se or via#le #$siness that is p$t in her name and can #e r$n and o!ned entirel% #% her if she chooses" *n toda%7s terms( it has ta&en a ver% !ide scope and man% important constit$tional F$estions have also cropped $p" 0o!ever( in m% opinion( even tho$ h Do!er serves as sec$rit% for the irl( it sho$ld entirel% #e scrapped" *nfact( all personal la!s sho$ld #e scrapped and a $niform civil code sho$ld #e #ro$ ht in" This shall ma&e the *ndian )ociet% live in a state of perfect harmon%"

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6I6LIO-RA"HY
+OOK)

1" /o#ert )mith( Kinship( => (Asaf"A"A"F%?ee( Outlines of Muhammadan Law( 9O'ford ,niversit% -ress( @th Edition( 4AA4: 4" Mahmood ( Syed Tahir. (The Muslim law of India, Law Book Co., 1980 >" Di!an ( Paras, Muslim law in modern India, llaha!ad Law "en#y, 19$$ @" Gajendra ad&ar( P. B., Endowment lectures ( Syed Tahir Mahmood( Personal laws in #risis Me%ro&oli%an, 198'
*as%ern Book Com&any, 19'+

C" )a&sena((ashi Prasad ( Muslim Law as dminis%ered in India and Pakis%an,)%h ed.

WE+)*TE)

1" Le alseviceindia"com 4" Man$patra"com

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