DOWER (PART 1 OF 2)

INTRODUCTION
Initially, a marriage in Arabia was similar to a contract for purchasing a girl from her
guardian. The property or cash received by the guardian as compensation for the girl was
called Mahr. Otherwise, the husband paid the money/ gave the property to the wife directly.
After the advent of Islam, the Prophet retained this payment; but the payment was to be
made to the wife and not to her guardian. He also clarified that the payment was not the
price, consideration or a mere gift for marrying him; it was a mark of respect. It was to
acknowledge her dignity and her high status as awarded by the Muslim law.
DEFINITION
It is that money/property which a Muslim wife is entitled to from her husband on marriage
as a token or symbol of respect for her.
Though some define it as a sum of money or other property promised by the husband to be
paid or delivered to the wife in consideration for marriage, it is submitted that Dower is not
a consideration. Hedaya says that it is merely a token of respect for its object, the woman.
Though Dower fulfils the requirement of being the consideration as the Muslim marriage is
considered to be a contract, it is merely an obligation that law has fixed upon the husband.
Non-specification of Dower at the time of marriage does not render it illegal but
consideration forms an essential part of a contract and would render it void. It is only under
the Ithna Asharia School, that the woman can give away this right before itself as it
presumes that the parties are adults and mature enough to understand the consequences.
Muslim jurists claim Dower to be a way through which a husband can admit and
acknowledge his wife’s dignity and honour. The practical reasons, however, are two.
Firstly, the wife has the Dower money/property for her exclusive use. Thus, she will not be
helpless if the marriage is terminated. Secondly, it serves as a check on the husband’s
unrestricted right of pronouncing talaq because generally the amount of Dower is fixed at
exorbitant heights.
 CLASSIFICATION
The basis of classification is whether the parties or operation of law has fixed the Dower
and whether it is payable upon dissolution only or the wife can demand it at any time.
It can be studied in the following manner:
a)Unspecified Dower   (Mahr-i-Misl)
b) Specified Dower (Mahr-i-Musamma)
Unspecified Dower or Prompt Dower.
 
If the amount of Dower is not specified at the time of marriage, it is called Prompt Dower.
Then the wife is entitled to get a proper Dower that is fixed by the courts based on definite
and specific principles. The non-specification should be due to mala fide intentions or
negligence. Even if there were a contract that the wife would not claim any Dower, the wife
would still be entitled to proper Dower.
The amount of proper Dower varies as per the application of the following principles:
a)     Qualifications of the wife, personal and otherwise;
b)     Social position of the wife’s father; and
c)     Custom in the wife’s family with respect to Dower.
Hedaya is of the view that age, beauty, fortune and understanding as well as virtue of the
wife are also of significance. Basic principle here is that there should be a comparison
between equals.
Shias call it Mahr-I-Mithl or the dower of the like or the equal. It is also called the
Customary Dower.
Shia Law sets the upper limit of Dower as 500 dirhams. A dirham is said to be a 2.9 odd
grams silver coin. This was the amount of Dower in the marriage of Fatima, the Prophet’s
daughter. Thus it is also called Mahr-i-Sunnat, as per the traditions of the prophet.
Specified Dower
Usually the Dower is fixed before or at the time of the marriage. The sum or property fixed
is called the Mahr-i-Musamma. It can be settled orally or through a written agreement
called the Mahr Nama or may be incorporated in the nikah nama itself.
Where the parties have attained puberty and are sane, they can fix their own Dower. For
minors or insane parties, their guardians will fix the Dower for them. This amount will be
binding on the boy/husband and not on the guardian. But if the guardian becomes a surety
and guarantees payment, he will be personally liable to pay on the husband’s default.
Shia law makes the guardian liable to pay the Dower if the minor husband has no means of
his own.