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Lecture 10

Dower

Dower (Mahr)

Basic Concepts:
In pre-Islamic Arabia Mahr was known as Sadaqa and paid to the wifes father
and could therefore be regarded as it tantamount to sale-price. But Islam insisted
on payment to the wife, a provision for the rainy days of the wife. Socially it
became a check on the capricious exercise by the husband of his almost unlimited
power of divorce. The husband thinks twice before divorcing a wife. He knows
that upon divorce the whole of the dower would be payable immediately.
Mr. Justice Mahmood defines dower in the case of Abdul Kadir v. Salima (1886,
8 ALL, 149) as:
"Dower under the Mohammedan 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 or mentioned at the marriage
ceremony, the law confers the right of dower upon the wife."
According to Ameer Ali, dower is defined as:
"A certain sum of money given by the husband in consideration of the marriage."
According Islamic law where there is a marriage there is a dower. It is a bridal gift.
It is a token of respect to the wife.
The dower is a sum of money or other property which becomes payable by the
husband to the wife as an effect of marriage. The Quran ordains:
"And give the women (on marriage) their dower as a free gift." (Sura Nissa, IV,
V4)

The wife shall be entitled to half of the specified dower if the-marriage is dissolved
before consummation. Under the Quranic, verse:
"If ye divorce them before ye have touched them and ye have appointed unto them
a portion, then pay the half of that which ye have appointed."
Different views regarding Dower:
Regarding dower there are three different views;
1. One is that in its incidents it is similar to Donatio Propier Nuptias of the
Romans.
2. Second that it is given by the husband to the wife \ as a mark of respect and
3. Third that it is a device to control the unfettered y power of the husband to
divorce his wife.
Kinds of Dower:
Dower can be broadly divided into two categories, that is
1. Specified Dower/ Al-Mahr-al-Musamma
2. Unspecified dower/ Mahr-al-Mithl
Again specified dower can be divided into two main categories
1. Prompt dower/ Muwazzal
2. Deferred dower. Muajjal
1. Specified Dower:
When the amount of dower is settled between the parties of the marriage at the
time of marriage, it is known as specified dower. Any amount can be settled as
dower. But it must not be less than 10 Dirham in Hanafi or 3 Dirham in Maliki

law. The wife can forgive the dower after marriage (Hibe-al-Mahr) or the husband
can increase the dower. Our Prophet once allowed the marriage of an indigent
person for a silver ring and on another occasion on the condition that the husband
will teach her the holy Quran.
In Hanafi law, if the specified dower is less than 10 dirham it will be increased to
10 dirham. In Ithna Ashari law it can't exceed 500 dirham which was given by the
Prophet on her daughter Fatima's marriage.
a. Prompt Dower:
Becomes payable immediately after the marriage and must be paid on
demand. The wife claiming the dower stands as an unsecured creditor. If the
is not paid she could refuse to stay with her husband and also can take legal
action.
b. Deferred Dower:
Becomes payable at the termination or dissolution of marriage either by death
or divorce. If by divorce, deferred dower can be acquired by compromise or
by suing in the Family Court. If by death, deferred dower can be acquired
from her husband's estate by compromise or by suing in the Family Court.
Before Muslim Family Laws Ordinance of 1961, if dower is unspecified, then the
dower was paid as 50% prompt dower and 50% deferred dower. But after Family
Law Ordinance, 1961, the whole amount is prompt dower if dower is unspecified.
In Ithna Ashari law where no dower is specified the whole amount is prompt
dower.

Muslim Family Law Ordinance, 1961 under section 10- Dower:


If no details mode of dower is specified in the Nikhanama entire amount of dower
becomes prompt.
In Mst. Meherunnahar v. Rahman Khondekar, the family court said that the
amount of dower should be that which the husband is able to give.

Distinction
Prompt

Deferred

1. Has to be paid immediately on


demand

1. Paid after dissolution either by


death or divorce

2. If not paid, wife can take legal


action.

2. If after divorce then suing in the


Family Court and if by death from
the husband's estate (Widow's LienRight of Retention).

3. It is an immediate right of the


wife.

3. It is a right for the provision of her


rainy days.

4. Wife stands as an unsecured


creditor but can't retain her
husband's property.

4. The widow has a right of retention


of her husband's property in lieu of
her dower debt.

Fig: Points of differences

2. Unspecified Dower:
When the amount of dower has not been settled at the time of marriage, it is known
as unspecified dower. Then also there is dower that is fixed as to her paternal
relations (paternal aunts). In modern times it is fixed by the status of the bride and
the ability of the husband.
According to the Hedaya: "The important rule is that her age, beauty, fortune,
understanding and virtue must be taken into consideration before virginity was also
considered
The main consideration is the social position of the bride's family.
Ameer Ali says:
"The court will consider the dower fixed upon her female paternal relations such as
sisters and aunts. However, in reality there is a trend to give enhanced amount of
dower".
In Islamic law there is a doctrine of Assummat where a large amount of dower may
be announced in public whereas privately the parties agree to a smaller amount.
In Bangladeshi case laws on the concept of Usool & detailed analysis has been
made in several research papers.
Case laws:
Where the wife felt that possible way to win or retain the affection of her
husband was to act on his suggestion and to remit the dower. It was held that
she did not act as free agent and it would be inequities to hold that a woman
who remits dower in such circumstances is bound by it. Case: Shah Banu
Begum v. Iftekhar Md. Khan, 8 DLR WP, 1956, 133

Prompt Dower may be considered a debt, always due and demandable and
payable upon demand and the wife is under the Mohammedan law entitled
to refuse herself to her husband until and unless the prompt dower is paid.
Case: Nuruddin Ahmed v. Masuda Khanam.
Wife can refuse to live with her husband if dower is not paid. On her
demand and consummation does not affect this right of the wife.
Unreported case
But contrary case: Rabia Khatoon v. Mukhtar Ahmad: it was held that the
right of refusing herself is lost on consummation. Thus, if the husband files a
suit for restitution of conjugal rights before cohabitation, non-payment of
prompt dower is a complete defense. But after cohabitation, the proper
course for the court is to pass a decree for restitution conditional on payment
of prompt dower, this was held in the leading case of: Anis Begum v. Md.
Istafa Wali Khan, 1933,ALL, 743

The Widows Right of Retention/ Widows


Lien
A widow whose dower has remained unpaid and lawfully in possession of her
deceased husband's estate is entitled to retain such possession unti! her dower debt
is satisfied.
It is a right to retain and not to obtain. The right to retention does not confer on the
widow any title of the property.
Privy Council observed in the Case: Maina Bibi v. Chowdhury Wakil Ahmed,
52, IA (1924), p.147:
FactMainuddin died in 1890, his widow Maina Bibi entered into possession of his
immovable property until her dower is paid. In 1903 the Trial Judge made a decree
for possession in favor of the plaintiffs on condition that the plaintiffs paid a
certain sum by way of dower- within six months. The sum was not paid. In 1907
Maina Bibi purported to make a gift of the property to certain persons. The Privy
Council held that the widow had no power to make a gift of the property.
There was another issue whether consent of the parties for retention is essential.
The Jurists said it is immaterial."
The right of retention does not confer any title to the property.
Widow's rights are twofold1. As an heir and
2. As a right of dower.
These two are distinguished rights.

There are two major issues: whether the right of dower to retain the husband's
property is heritable or transferable?
It was held by Mysore High Court in the Case: Hussain v. Rahim Khan and in
the Case: Zaibunnessa v. Nazim hasan, 1954:
Allahabad High Court decided it is heritable and transferable. But in Patna case of
Jubair Ahmad v. Jainandan Prasad, 1962: It was held that such a right is not
transferable. The balance of authority is in favor of the Patna case. Thus it is in
essence a personal right given by Mohammedan law to safeguard the position of
the widow.
The liabilities of heirs for Dower/Debt:
The heirs are not personally liable for the whole dower debt of the deceased but
each heir is liable for the debt to the extent only of a share of the debt proportionate
to the share of the estate.
Suit for Dower and Limitation:
If the dower is not paid to the wife, heirs can sue for it after her death.
Prompt Dower: Must be filed within three years from refusal after demand.
Deferred Dower: Must be filed within three years of divorce or death