DOWER

Submitted By:

Aarav Anand

Roll No 2, B.A. LLB. (Hons.) (Self Finance)

Faculty of law

Jamia Millia Islamia

April 2019

Under the guidance of

Dr. Kahkashan Y. Danyal

Professor

Faculty of Law,

Jamia Millia Islamia

New Delhi, 110025

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 CERTIFICATE

The project DOWER submitted to Faculty of Law, Jamia Millia Islamia for FAMILY LAW-Ⅰ as
a part of internal assessment is based on my original work carried out under the guidance of
Dr. Kahkashan Y. Danyal the research work has not been submitted elsewhere for award of
any degree.

The material borrowed from other sources and incorporated in research paper has been
duly acknowledged.

I understand that I myself would be held responsible and accountable plagiarism if any
detectecd later on.

Signature of the candidate:

Date:

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 TABLE OF CONTENTS

INTRODUCTION

THE PHILOSOPHY OF MAHR

THE NATURE OF DOWER

AMOUNT OF DOWER

KINDS OF DOWER

INCREASE OR DECREASE OF DOWER

SUBJECT-MATTER OF DOWER

CONCLUSION

BIBILIOGRAPHY

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 INTRODUCTION

The mahr is meant to offer the bride a financial security within and after the marriage. It is a
divine order by the Almighty Allah. The giving of mahr to the bride is an important and
mandatory part of the Islamic terms of marriage.1 The amount of mahr is not legally
specified, however, a moderation in tandem with the existing social model is strongly
recommended. According the Islamic rules, the mahr may be paid earlier to the bride as soon
as possible at the time of marriage or deferred to a later date or a compromise of both. At the
time of marriage ,give the women their dowries willingly as an obligation) ; but if they , by
their own free will, give up to you a portion of it then you may enjoy it with pleasure. 2 And a
marriage ceremony means that one nuptial party proposes the ‘Ijab’ (proposal - ( willing
consent to enter into marriage and the other party expresses ‘Qabul’ (acceptance - (of the
responsibility at the time of marriage ceremony. The word mahr is derived from the Arabic
word.(Hebrew mohar, ‘bridal gift’ originally ‘‘purchase-money’’ which properly means
‘‘friendship’’ then ‘‘present’’ a gift given as a result of a marriage contract, as according to
the Muslim law, the gift which the bridegroom has to give to the bride when the contract of
marriage is made and which becomes the property of the wife. In the Holy Qur’an, it has also
been referred to as al-sadaq ,(la - saduqah ,(al-nihlah,(al-ajr,(al-faridah and al-‘aqd .(It is a
pre-requisite for a marriage as mentioned throughout the Qur’an. The woman may choose to
willingly forfeit anything as a reciprocity of the believing man who must offer the dowry
with sincere intentions. In the Islamic Law, mahr is a gift from the husband to his bride at the
time of marriage. The terms ‘dowry’3 and bride gift are sometimes used to translate mahr. In
Islamic marriages, such assets brought into the union by the wife may only be accepted by
the husband after the mahr has been paid by him to her. In the event that the marriage of the
contract does not contain an exact or specified mahr, the husband must still pay the wife an
equitable sum of money. The requirement of a mahr is mentioned several times in the Qur’an
and as a Sunnah.4 Exponents of Islamic scholars have given many definitions of mahr which
are as follows: According to the Islamic teaching in Sunnah, mahr is the amount of some
monetary value to be paid by the groom to the bride at the time of marriage (some of which

1
Al-Qur’an Al- Kareem
2
Altaf Hossein, Islamic Jurisprudence and Muslim Law, (Dhaka: City Law Books,Nilkhet, 5 th ed. 2003 1st in
1996)
3
Allama Abdul Aleem Siddiqui, Roots of Islamic Juriprudence (Cairo: Daar al Ma‘arif, 1998)
4
F.B Tayabji.(1968), Muslim Law (Bombey: N.M Tripathi,1968)

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may be delayed according to what has been agreed upon between the spouses. The mahr is
for the bride to spend as she wishes. 5 The ‘mahr’ is the payment of an agreed sum of money
from the intending husband to the intended wife. It is often paid (at least partly) in advance,
and should be completed at the wedding. This money belongs exclusively to the bride, and is
hers to keep should her husband later divorce her. The mahr does not mean so much as a
deterrent for the husband to divorce; but seeking a large ‘mahr’ is not in keeping with the
principles of Islam. Neither is the paying of it to the bride's father of family leader, nor not
agreeing to pay it at all. The question of ‘mahr’ should never be used as an opportunity as a
means to insult a woman, or keep her ‘prisoner’, or force her to remain unmarried. The
bride's family should certainly not pay dowry to the husband or his family, the practices of
which had been abolished by the Prophet (SAW). Mahr in Islamic Law refers to the gift that
must be given by the husband to the wife at the time of wedding.mahr refers to a payment
from the husband to the wife that is legally due at the solemnization ceremony, either in the
form of money actually paid or recognized as a credit with or without security, or as
something that, according to Islamic law, has a monetary value.

THE PHILOSOPHY OF Dower

The payment of mahr has a deep symbolic philosophy. In Arabian world, there are various
interpretations of mahr in relation to the marriage contracts, highlighting the differences
between Maliki, Hambali and Hanafi religious philosophies respectively. The word mahr
does not appear in the Qur‘an, however, the word Sadaq (has been employed. There is no
minimum amount of monetary value set for a mahr although various Sunnah suggest that it
should not be excessively low. No specific amount of monetary value has been determined
for the Sadaq, it is a matter that is decided by a mutual agreement between the woman and
the man.

The nature of dower

Mahmood, J., in Abdul Kadir v. Salima 6 , gives the best description of the nature of dower.
He observes: "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 or mentioned at the marriage ceremony, the law
confers the right of dower upon the wife as a necessary effect of marriage. To use the

5
AAA. Fyzee, Outlines of Mohamedan Law (Oxford University Press, 14th edition 1984, 1st in 1949
6
. ILR(1886)8 All 149

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language of the Hedaya, the payment of dower is enjoined by the law merely as a token of
respect for its object (the woman), wherefore the mention of it is not absolutely essential to
the validity of a marriage; and, for the same reason, a marriage is also valid, although a man
were to engage in the contract on the special condition that there should be no dower. 7" "Even
after the marriage the amount of dower may be increased by the husband during coverture;
and indeed in this, as in some other respects, the dower of the Muhammadan Law bears a
strong resemblance to the donario propter nuptias of the Romans which has subsisted in the
English Law under the name of marriage settlement. In this sense and in no other can dower
under the Muhammadan Law be regarded as the consideration for the connubial intercourse,
and if the authors of the Arabic textbooks of Muhammadan Law have compared it to price in
the contract of sale, it is simply because marriage is a civil contract under that law, and sale is
the typical contract which Muhammadan jurists are accustomed to refer to in illustrating the
incidents of other contracts by analogy."

The line of reasoning based on the analogy of sale was criticised by Ameer Au g , and by Sir
Shah Sulaiman in Anis Begam v. Mohd. Istafa 8 ; and in Wajid Ali Khan case 9. Sir Sulaiman
observed:

"It is quite obvious that the analogy of sale cannot be carried too far. The marriage cannot be
regarded as purely a sale of the person by the wife in consideration for the payment offer. It
was observed in this case that the similarity of dower to sale price cannot be pushed too far,
nor can the principles governing the sales of goods be applied in all their details. For
example, the contract of sales of goods can be cancelled if a portion of the price has not been
paid. Even if the goods have been once delivered they may in such an event be returned. But
if consummation of marriage has taken place and a part of the dower remains unpaid, it
would be absurd to think that marriage could be cancelled by the wife at her will. Moreover,
the question—whether the dower is the consideration for the first consummation of marriage
only or whether it is the consideration for the society of the wife during the married life?—
could not be answered by applying the analogy of sale to dower, money and marriage. Islam
insists that dower should be paid to the wife herself. It sought to make dower into a real
settlement in favour of the wife, a provision for the rainy day and socially, a check on the
capricious exercise by the husband of his almost unlimited power of divorce. A husband

7
Hamilton's Hedaya by Grady, at p. 44.
8
. ILR 1933 All V3
9
. Wajid Ali Khan v. Shaukat A li Khan, (1912)15 Oudh Cases 127.

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thinks thrice before divorcing a wife when he knows that on divorce the whole of the dower
would be payable immediately.

In Hamira Bibi v. Zubaida Bibi10. the Privy Council explained this special right of the widow
to enforce her demand for the payment of unpaid dower. Delivering the judgment, Lord
Parker observed: "Dower is an essential incident under the Mussulman Law to the status of
marriage.. .the dower ranks as a debt, and the wife is entitled, along with other creditors, to
have it satisfied on the death of the husband out of his estate. Her right, however, is no
greater than that of any other unsecured creditor, except that if she lawfully, with the express
or implied consent of the husband, or his other heirs, obtains possession of the whole or part
of his estate, to satisfy her claim with the rents and issues accruing therefrom, she is entitled
to retain such possession until it is satisfied. This is called the widow's lien for dower, and
this is the only creditor's lien of the Mussulman Law which has received recognition in the
British Indian Courts and this Board."

AMOUNT OF DOWER

the minimum doer fixed by the law can hardly be deemed to be an adequate provision for the
wife. In fact, it would be a mistake to lay too great a stress upon themonetary value of the
minimum dower. It is said that in the case of an extremely poor man, the Prophet requested
him to teach the Koran to his wife, and this was considered by the Lawgiver to be
an adequate requital of the husband’s obligation.Among the Muslims of India two distinct
tendencies are to be found in society

 Hanafi Law, 10 Dirhams

 Malaki Law, 3 Dirhams

 Shafi Law, No fixed amount

 Shariya Law, No fixed amount.

The Mahr fixed by Prophet of Islam for his favourite daughter Fatima, wife of Ali was 500
Dirhams. A dirham (derived from the Greek) is the name of Silver coin of 2.97 grams in
weight. However, it would be a sad mistake to lay too great stress upon the monetary value of
the Mahr amount. It is said that in the case of an extremely poor man, the Prophet requested

10
(1916)43 IA 24

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him to teach the Quran to his wife. It is said in one Hedaya that the payment of Mahr is
enjoined by the law merely as a token of respect for the woman.

Kinds of dower

Broadly, there are two kinds of dower: (i) specified, and (ii) unspecified. But the specified
dower has been further divided into: (a) Prompt, and (b) Deferred.

Specified dower.—

An amount settled by the parties at the time of marriage or after, is called specified
dower. If the bridegroom is minor, his father may settle the amount of dower. Hanafi Law
says that the father is not personally liable for the dower, but according to Shia Law, he
will be so liable. 11 The husband is bound to pay the amount of the specified dower,
however excessive or beyond the reach it may be. In Oudh, however, the excessive
amount may be curtailed to a reasonable amount.

Unspecified dower (mahrul misal)

The obligation to pay dower is a legal responsibility on the part of the husband and is not
dependent upon any contract between the parties. Hence, the husband’s liable to pay
Mahr even if it is not specified. The only question would be the quantum. If no Mahr is
fixed, wife will be entitled to receive the amount which is customary in the community or
in respective society or what is proper in each individual case. What is proper ion each
individual case will be determined as under?

 With reference to the social position of her father’s family.

 Her own personal qualifications.

 Social position of the husband. But the means of husband are of little account.

 Her age, beauty, fortune, understanding and virtues.

 Mahr fixed earlier in the family (i.e., Mahr fixed for father, brother, uncle, sister etc.
of the wife’s family).

 Prompt (muajjal) and deferred (muvajjal) Mahr

11
Syed Sabir Husain v. Farzand Hasan, (1937) 65 IA 119,

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 A technical term for Prompt is Muajjal and for Deferred is Muvajjal. The term Muajjal is
derived from a root meaning ‘hasten’, ‘to proceed’ whereas the term Muvajjal is derived
from the root meaning ‘delayed’ or ‘deferred.’

The prompt dower is payable immediately after the marriage but the deferred Dower
becomes payable either on the dissolution of the marriage or on the happening of a specified
event. When dower is fixed, it is usual to split it into two equal parts, one part is paid at once
or on demand and the other on the death of the husband or on divorce or on the happening of
some specified event. In Ithna Ashari Law, the presumption is that the whole of the dower is
prompt but in Hanafi Law, the position is different.Ideally and usually, the whole Mahr is
required to be promptly awarded but in earlier case, the Full Bench held that the usage
(custom) of the wife’s family is the main consideration and in absence of proof of custom, the
presumption is that one half is prompt. However, the proportion may be changed to suit
particular cases.

INCREASE OR DECREASE OF DOWER

The husband may at any time after marriage increase the dower. Likewise, the wife mayremit
the dower, wholly or partially; and a Muslim girl who has attained puberty iscompetent to
relinquish her mahr , although she may not have attained majority (18 years) within the
meaning of the Indian Majority Actwithin the meaning of the Indian Majority Act.
The remission of the mahr by a wife iscalled hibat al-mahr or hiba-e mahr. It has,
however, been held in Karachi that in certain cases remission of dower cannot beupheld. For
instance, if a wife feels that the husband is increasingly showing indifferenceto her and the
only possible way to retain the affection of her husband is to give up her claim for mahr and
forgoes her claim by executing a document, she is not a free agent andit may be against
justice and equity to hold that she is bound by the terms of the deed 12.

12
Shah Banov. Iftekar Muhammed PLD 1956 (W.P.) Kar. 363

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 Subject-matter of dower

The fitting subject-matter of dower is not only confined to a sum of money or property; it
includes personal services and other things. According to a tradition Aamir-bin-Rabia said
"that a woman of the tribe of Bani Fazarah married on a settlement of a pair of shoes, and the
Prophet said to her 'Are you pleased to give yourself and your property for these two shoes.'
She said, 'yes'. Then the Prophet approved of the marriage". 13 The following were recognised
as the subject of dower:

1.A handful of dates (Abu Daud).

2.A pair of shoes (Tirmizi).

3. If the husband is a slave, his services to his wife (Mohit Sarkhsee).

4.The services of the husband's slaves to the wife (Fa:aw -i-AIamgir.

5.Husband's services rendered to the guardian of a minor wife (Durrul Muktar).

6.Teaching Koran to the wife (Tradition).

In fact, the main contention of the Muslim jurists is that anything which comes within the
definition of maal can be the subject-matter of dower. Thus, apart from the personal services
of the husband, any profits arising from land or business, debts due to the husband, insurance
policies, choses-in-action, the sale proceeds of something, may constitute valid dower. If the
subject-matter of dower be "an animal" or "cloth", then the wife is entitled to ,nahr-ul-misl,
proper dower because such dowers are invalid for uncertainty. Similarly, "a house" or "the
land" without specifying the exact location and description are not fit subjects of dower, and
the court will have to fix proper dowers in those case.

13
Mohd.Yusuf, Vol. Iatpp. 111-112
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 CONCLUSION

The mahr is one of the wife’s rights that is sincerely given by the husband to the wife,
without exception, as an expression of his love and responsibility. In Islam, the concept of
mahr is more effective, comprehensive, vital and sacred than any other religions. It is one of
the fundamental rights of every woman. Mahr is not only considered to be a trust, a sacred
responsiblity, which is to be performed in conformity with the provisions of the Qur‘an and
Sunnah; but the dispensation of mahr also constitutes one of the most important acts of
devotion. It is intended to please the wife, so that she feels appreciated and more willing to
bring and share a new life with the husband. Nevertheless, Islam recommends moderation
and not setting a rate that is too high or low. The Prophet (SAW) has encouraged us to
simplify the giving of mahr.

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 BIBILIOGRAPHY

1.AAA. Fyzee,Outlines of Mohamedan Law(Oxford University Press, 14th edition 1984, 1st
in 1949 )

2.F.B Tayabji.(1968), Muslim Law (Bombey: N.M Tripathi,1968)

3.Syed Khalid Rashid’s MUSLIM LAW(EASTERN BOOK PUBLISHER,2017)Lucknow

4.Dr.paras Diwan,family law (Allahabad Law Agency,Faridabad(Haryana))10th edition

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