INTRODUCTION

1. MEANING AND DEFINITION

In a Muslim marriage, the bridegroom promises to pay the bride, certain sum of
money or other property in consideration of marriage. The amount or property is
called “Dower or Mahr”. The dower is regarded as a mark of respect to the bride.
Mahr is also known as sadaq, sadakat, niglat, atiya, and akr. These words are
attributed as Mahr in different situations and circumstances.

2. DEFINITION OF DOWER (MAHR)

Following are some of the definitions.

Mahr or Dower is a sum that becomes payable by the husband to the wife on
marriage, either by agreement between the parties or by operation of law. It may either
be prompt(Mu‟ajjal), or deffered(Mu‟wajjal).

According to Wilson, “Dower” is a consideration for the surrender of person by the

wife. It is the technical Anglo- Mohammedan term for its equivalent “Mahr” in
Arabic.

According to Ameer Ali, “Dower” is a consideration which belongs absolutely to the

wife.

According to Mulla, “Dower” is a sum of money or other property which the wife is
entitled to receive from the husband in consideration of the marriage. The word
„consideration‟ is not used in the sense in which the word is used in Indian Contract
Act. It is an obligation imposed upon the husband as a mark of respect to the wife.

Hon‟ble Justice Mahmood has said in Abduk Kadir v. Salima, that „Dower under the
Muslim law is a sum of money or the property promised by the husband to be paid or
delivered to the wife in consideration of 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‟.

The above opinions are based on the argument that marriage is a civil contract and
dower is a consideration for the contract. But it is submitted that the above opinions
are erroneous, because even in those cases where no is specified at the time of
marriage, marriage is not void on that recount, but the law requires that some dower
should be paid to the wit. Abdur Rahim correctly observes, “It is not a consideration
proceeding from the husband for the contract of marriage, but it is an obligation
imposed by the law on the husband as mark of respect for the wife as is evident from
the fact that the non- specification of dower at the time of marriage does not affect the
validity of marriage.

3. NATURE OF DOWER
Dower in the present form was introduced by the prophet Mohammad and made
obligatory by him in the case of every marriage. “Dower” in Muslim law is somewhat
similar to the demotion proper nuptials in Roman law. The important difference
however, is that while under the Roman law it was voluntary, and under the Muslim
law it is absolutely obligatory. The following points may be noted with respect to the
nature of Dower.

1. Analogy is often drawn between a contract for dower and one for sale. The
wife is considered to be the property and the dower her price.

In Abdul Kadir v. Salima, Mahmood. J., comparing the marriage and dower with
contract for sale and consideration, says “Dower may be regarded as consideration for
connubial intercourse by way of analogy to the contract for sale. The right to resist her
husband so long as the Dower remains unpaid is analogous to the lien of a vendor
upon the sold goods while they remain in his possession and so long as the price or
any part of it is unpaid and her surrender to husband resembles the delivery of the
goods to the vendee…”

2. It is regarded by some eminent authorities as a consideration for conjugal

intercourse. In the case of Smt. Nasra Begum v. Rigwan Ali, Allahabad High
court expressed the view that the right to claim prompt dower proceeds
cohabitation.
3. Dower is an essential incident and fundamental feature of marriage with the
result that even if no dower is fixed the wife is entitled to some dower from the
husband. The marriage is valid even though no mention of dower made by the
contracting party. In Hassina Bibi v. Zubaida Bibi, the Judicial committee held
that- “Dower is an essential incident under the Muslim law the status of
marriage, to such an extend this is so that when it is unspecified at the time the
marriage is contracted, the law declares that it must be adjudged on definite
principles.

Regarded as a consideration for the marriage, it is in theory payable before

consummation but the law allows its division into two parts, one of which is called
“Prompt” payable before the wife can be called upon to enter the conjugal domicile or
demanded by the wife the other deferred, payable on the dissolution of the contract by
the death of either of the parties or by divorce. But the dower ranks as a debt and the
widow is entitled along with other creditors of her deceased husband, to have it
satisfied on his death out of his estate”. If the property of her deceased husband is in
her possession, she is entitled to retain the possession, until her dower is satisfied.
Heirs may recover that property after they have paid up her debt. Dower-debt is not a
charge and widow cannot prevent another creditor or of her husband from recovering
his debt from his estate. Dower-debt is an unsecured debt ranking equally with other
debts.

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
cheek on the capricious exercise by the husband of his almost unlimited power of
divorce.

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

If dower be regarded as sale price, it must be paid to the father or the guardian of the
wife, since it is paid to the wife herself, it cannot be the price. It is a token of respect.

4. THE OBJECT OF DOWER

The object of dower is three-fold:

 To impose an obligation on the husband as a mark of respect of the wife,

 To place a check on the capricious use of divorce on the part of husband, &
 To provide for her subsistence after the dissolution of her marriage, so that she
may not become helpless after the death of the husband or termination of
marriage by divorce.
FIXATION OF MAHR
The Indian Ulema recommended in a seminar that Mahr(dower) should be
fixed in terms of gold and silver so that the rights of women are fully protected
in the event of fall in the values of currencies.

5. CLASSIFICATION OF DOWER
(i) Specified and (ii) Customary (proper)

(i) Specified Dower (Mahr-i-Musamma)

Specified dower is that dower which is fixed at the time of marriage or later on. There
are provisions relating to dower under sections 13, 14, 15, 16 and 20 of the
Kabinnama [Form-E] according to the Muslim Marriages and Divorces Rule 1975. Ex
-When a husband agrees to pay to his wife a residential building or one lakh taka as
mahr.

The specified dower has been further divided into (a) prompt and (b) deferred.

 Prompt Dower (Muajjal Mahr)

It is payable immediately after marriage on demand. According to Ameer Ali, a wife
can refuse to enter into conjugal domicile of husband until the payment of the prompt
dower.

The following point must be noted regarding prompt dower:

 Prompt dower is payable immediately on the marriage taking place and it must
be paid on demand unless delay is stipulated for or agreed. It can be realized
any time before or after the marriage. The wife may refuse herself to cohabit
with her husband, until the prompt dower is paid. If the wife is minor, her
guardian may refuse to allow her to be sent to the husband‟s house till the
payment of prompt dower. In such circumstances, the husband is bound to
maintain the wife, although she is residing apart from him.

It was held in Rehana Khatun v. Iqtider Uddin, that the prompt portion of the dower
may be realized by the wife at any time before or after consummation. In the case of
Mahadev Lal v. Bibi Maniran it was decided that prompt dower does not become
deferred after consummation of marriage, and a wife has absolute right to sue for
recovery of prompt dower even after consummation. Dower which is not paid at once
may, for that reason, be described as deferred dower, but if it is postponed until
demanded by the wife it is in law prompt dower.

 It is only on the payment of the prompt dower that the husband becomes
entitled to enforce the conjugal rights unless the marriage is already
consummated. The right of restitution arises only after the dower has been paid.
 As the prompt dower is payable on demand, limitation begins to run on demand
and refusal. The period of limitation for this purpose is three years. If during
the continuance of marriage, the wife does not make any demand, the limitation
begins to run only from the date of the dissolution of marriage by death or
divorce.

Although prompt dower, according to Muslim law, is payable immediately on

demand, yet, in a large majority of cases it is rarely demanded and is rarely paid, in
practice a Muslim husband generally gives little thought to the question of paying
dower to his wife save when there is domestic disagreement, or when the wife presses
for payment upon the husband‟s embarking upon a course of extravagance and
indebtedness without making any provision for the lapse of time since marriage raises
no presumption in favour of the payment of dower.

 Deferred dower (Muwajjal Mahr)

It is payable on dissolution of mariage either by death or divorce. According to Ameer
Ali generally in India dower is a penal sum with the object to compel husband to
fulfill marriage contract in its entirety.

The following points must be noted regarding deferred dower:

 Deferred dower is payable on dissolution of marriage by death or divorce. But

if there is any agreement as to the payment of deferred dower earlier then such
an agreement would be valid and binding.
 The wife is not entitled to demand payment of deferred dower, but the husband
can treat it as prompt and pay or transfer the property in lieu of it. Such a
transfer will not be void as a fraudulent preference unless actual insolvency is
involved.
 The widow may relinquish her dower at the time of her husband‟s funereal by
the recital of a formula. Such a relinquishment must be a voluntary act of the
widow.
 The interest of the wife in the deferred dower is a vested one and not a
contingent one. It is not liable to be displaced by the hampering of any event,
not even on her death; as such her heirs can claim the money if she dies.

If the Kabin-nama, the marriage contract deed, fixes the amount of dower but fails to
show what portion of it will be prompt and what deferred dower, according to
Allahabad and Bombay High courts the proportion between the two should be fixed
on the basis of

(i) position of the wife, (ii) custom of locality, (ii) total amount of dower, (iv) status of
the husband.

Shia law- Under Ithna Ashari shia law if the Kabinnama fixes the total amount of
dower but does not specify as to what portion of it will be prompt and what deferred,
the whole of the dower is regarded as prompt.

In the Madras presidency, unless otherwise stipulated the entire dower is prompt no
matter the parties are Shia or Sunni.

Sunni law- According to Sunni law, in the absence of any family usage and statement
in kabinnama, half of the total amount is regarded as prompt and half as deferred.
 (ii) Proper dower (Mahr-i-Misl)
Its size is to be determined in view of the socio-economic conditions of the parties
involved. If no mahr has been agreed or expressly stipulated by the parties, the
contract of marriage is still valid. This also means that if no mahr sum is specified in
the marriage contract, the husband is not thereby released from his liability to pay a
dower. Even a statement that no dower shall be paid does not change the position. In
these circumstances, what is known as the „proper dower‟ becomes due. It is worked
out on the basis of the mahr agreed for women of a similar social status to the wife.
Particularly relevant will be the mahr paid to other female members of the wife‟s
family, for instance sisters, paternal aunts and female cousins.

Determination of Proper Dower

 Personal qualifications of wife, her age, beauty, fortune, understanding

and virtue.
 Social position of her father‟s family.
 Dower given to her female paternal relations.
 Economic condition of her husband.
 Circumstances of time.
There is no limit to the maximum amount of proper dower under the Sunni law, but
under the Shia law the proper dower should not exceed 500 Dirham. 500 Dirham was
the amount of dower which was fixed in the marriage of Fatima, the prophet‟s
daughter. In the Shia Muslims it is, therefore, considered a point of honour not to
stipulate for a sum higher than the sum of dower fixed by the prophet for his daughter,
Fatima.

 Distinction between Dower & Dowry

One should not confuse between dowry and dower. Dowry payments are not a part of
Muslim Legal tradition, while the dower or mahr is an integral element of Muslim
matrimonial law. Dowry payments have been outlawed and criminalized in south
Asia, where they still are a huge legal problem Dowry not being an element of
traditional Muslim law, where it occurs, it is part of customary traditions.

A dower is a woman‟s right to marital property. It is her right to receive a part of the
husband‟s income or estate if he dies in the course of the marriage. Dowry however, is
the woman‟s property that she brings into the marriage when she gets married. The
dowry law no longer exists in most of the states. Dower is a sum of money receivable
by the wife from the husband as a consideration for the marriage, whereas dowry is an
extra dower consideration payable by one party to the marriage to another on the plea
of bringing equality in marriage. Taking or paying or abetting payment of dowry has
been made punishable.

Subject matter or object of Dower

The 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, Amir- 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.‟‟

The followings were recognised as the subject of dower:

 A handful of dates (Abu Daud).

 A pair of shoes (Tirmizi).
 If the husband is a slave, his services to his wife (Mohit Sarkhsee).
 The services of the husband‟s slaves to the wife (Fatawa-i Alamgir)
 Husband‟s services rendered to the guardian of a minor wife (Durrul Muktar).
 Teaching Koran to the wife (Tradition).

In fact, the main contention of the Muslim Jurists is that anything which comes within
the definition of meal 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, chooses-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
mahr-ul-misl, proper dower because such dowers are invalid for uncertainty.
Similarly, “a have” 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 such
cases.

 Contract of Amount of Dower in Marriage & Contract of Dower

made by Father
The amount of dower may be fixed either before or after marriage and can be
increased after marriage. It was held in Basir Ali v. Hafiz that the amount of dower
may be entered into by the father of the bride.

The father of a minor son may make a contract on dower on his behalf and it would be
binding on the son even if it was made after his marriage during the minority of the
son. The father, if he acts as guardian for the marriage of his infant son, he is not
personally liable unless he expressly becomes a surety for the dower stipulated.
Otherwise the father only acts on behalf of the minor son and binds the latter and not
himself personally. When a father enters into a contract of dower on behalf of his son,
he makes himself a surety for due payment of dower in case his minor son has no
means of paying it.

 Standard of Dower and Conditions or Terms of Payment

This may be divided into two-

If the marriage is consummated, and is dissolved by death:

(a) Whole of the specified dower in case of regular marriage.

(b) Proper dower if unspecified in case of regular marriage.

(c) Specified or proper dower, whichever is less, in the case of irregular marriage.

If the marriage is not consummated, and is dissolved by the act of party:

1. When divorced by the husband: Half of the specified dower, in case of regular
marriage: in case of regular marriage. A present of three articles if unspecified: in case
of regular marriage.

2. When divorced by the wife: No dower. If the marriage is irregular in the weses
and above: No dower.

 Maximum & Minimum Amounts of Dower

The amount of dower or mahr varies in different countries; there is no fixed rule as to
the maximum (mus‟ab Settled a dower of 500,000 dirham or the granddaughter of
Abu Bakre. The Prophet did not enunciate any fixed rule as to the amount of dower.
He expressly left it to custom and local usages but as he appears to have settled 500
dirham upon Maimuna, the Shias consider that amount to be the mahr-i-sunnat. The
Radd-ul-Muhtar says the dower of “our lady” Fatima was 400 dirham). It depends on
the social position of the parties and the conditions of society in which they live. The
Radd-ul-Muhtar lays this down with considerable distinctness. “Whatever amount
exceeding the minimum the man agrees to pay he will be liable therefore”.

The Shiah Shara‟ya says: “there is no limit either to the maximum or the minimum of
dower,” it being a matter of contract between husband and wife; So long as the article
given or assigned by way of dower possesses any definite value, the assignment is
considered valid. There is no distinction so far as this principle is concerned between
the Shias and the Sunnis. Both schools, however, regard excessive dower as improper
though not absolutely illegal; but, as will be seen, this recommendation is totally
disregarded by the Indian Musulmans, for reasons which have been explained in the
Introduction.
The early Hanafi lawyers fixed ten dirham, as the minimum for dower. The Malikis
inhabiting a poorer and less populous country than that in which the early Hanafi
lawyers flourished, considered even a smaller sum as permissible.

These minimums have become obsolete and it is now customary in different countries
to fix the amount of dower entirely by a consideration of the circumstances of the
husband and wife.

Among Sunnis there is no maximum; any amount may be fixed. Some of the sects of
Shias, however, there is a tendency “not to stipulate for a sum higher then the
minimum fixed by the Prophet for his favourite daughter Fatima, the wife of Ali,
namely 500 dirham.‟‟

 Increase or Decrease of Dower

The husband may at any time after marriage increase the dower. Likewise, the wife
may remit the dower wholly or partially in favour of her husband or his heirs. A
Muslim girl who has attained puberty is competent to relinquish her Mahr although
she may not have attained majority (18 years) within the Bangladesh Majority Act.
The remission of the Mahr by a wife called Hibe-e-Mahr.

But the remission made by the wife, should be with free consent. It was held in the
case of Nurunnessa v. Khaje Mahommed that where the wife was subject to the
mental distress, on account of her husband‟s death the remission of dower, was
considered as against her consent and not binding on her.

In has been held in a (Karachi case) Shah Bano v. Iftekar Mohammed, that in certain
cases remission of dower cannot be upheld. For instance, if a wife feels that the
husband is increasingly showing indifference to her and the only possible way to
retain the affection of her husband is to give up her claim of Maher and forgoes her
claim by executing a document, she is not a free agent and it may be against justice
and equity to hold that she is bound by the terms of the deed.