Jamia Millia Islamia

Faculty of Law
Semester IV

FAMILY LAW - I

TOPIC : DOWER

Presented to : Submitted By :

Dr. Kahkashan Y. Danyal Dilshad Ahmed

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TABLE OF CONTENTS
S No. Topic Page No.

1. Introduction 03

2. Definition 04

3. Types of Dower 07

4.

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INTRODUCTION

One of the essential parts of Muslim marriage is “dower” paid or promised to be

paid by the husband to the wife. Without mahr, a nikah can not be said to have
been properly solemnised. Dower money must be paid or fixed before the
solemnisation of a marriage. Dower must not, however be confused with “dowry”
which consists of presents made by father and other relations of the bride and
Muslim Law does not make any provision for payment of dowry. Dower is the sum
of money or other property which the wife is entitled to receive from the husband
in consideration of marriage.1 The amount of dower may be fixed either before or
at the time of marriage of after marriage. The law does not say anything about the
quantum of dower. The amount of dower is generally split into two parts- “prompt
dower” which is payable immediately on demand by the wife and “deferred
dower” which is payable only on dissolution of marriage by death or divorce. In
this present endeavour the author would try to explain in detail the types of dower
and the effect of non-payment of dower. Some of the important cases with respect
to dower would also be analysed.

1
D.F. Mulla, Principles of Mohammedan Law, 17th Ed.P.277
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Definition
PRIOR to Islam, two kinds of material gifts were prevalent. In a certain type of
marriage, the so-called beena marriage, where the husband visited the wife but did
not bring her home, the wife was called sadiqa or female friend, and a gift given to
the wife on marriage was called sadaq. ‘In Islam sadaq simply means a dowry and
is synonymous with mahr. But originally the two words were quite distinct: sadaq
is a gift to the wife and mahr to the parents of the wife.’2 The latter term belongs to
the marriage of dominion, which is known as the baal marriage, where the wife’s
people part with her and have to be compensated.

Now mahr in the baal form of marriage was used by the Prophet to ameliorate the
position of the wife in Islam, and it was combined with sadaq, so that it became a
settlement or a provision for the wife. In Islamic law, mahr belongs absolutely to
the wife.3 Thus, historically speaking, the idea of sale is latent in the law of mahr
(dower).

Justice Mahmood defines dower as follows:

“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.”4

2
Robert Smith, Kinship, 93 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law,
(Oxford University Press, 4th Edition, 2002) p.132
3
Kor. iv, 4; Ameer Ali, II, 461-2; Fat. Law δ 70 as cited from Asaf.A.A. Fyzee, Outlines of
Muhammadan Law, (Oxford University Press, 4th Edition, 2002) p.132
4
Abdul Kadir v. Salima (1886) 8 All. 149
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It is not ‘consideration’ in the modern sense of the term; but an obligation imposed
by the law upon the husband as a mark of respect to the wife.5 This is made
abundantly clear by the author of the Hedaya when he says:

“The payment of dower is enjoined by the law merely as a token of respect for its
object (the women), 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 the man were to engage in the contract on the special condition that
there should be no dower.” 6

There is no doubt that mahr was originally analogous to sale-price, but since the
inception of Islam it is hardly correct to regard it as the price of connubial
intercourse. If the authors of the Arabic text-books on Muhammadan law have
compared it to price in the law of sale, it is simply because marriage is regarded as
a civil contract in the system. In pre-Islamic Arabia, sadaq was a gift to the wife;
but mahr was paid to the wife’s father, and could therefore be regarded as
tantamount to sale-price. But when Islam insisted on its payment to the wife, it
could no longer be regarded strictly as a sale7 . Thus Islam sought to make mahr
into a real settlement in favour of the wife, a provision for a rainy day and,
socially, it became a check on the capricious exercise by the husband of his almost
unlimited power of divorce. A husband thinks twice before divorcing a wife when
he knows that upon divorce the whole of the dower would be payable immediately.
The Muslim concept of dower has no reference to the price that under some
systems of law was paid to the father of the bride when she was given in marriage.
5
5 Abdur Rahim, 334. as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford
University Press, 4th Edition, 2002) p.133
6
Cited by Mahmood J. in Abdul Kadir v. Salima (1886) 8 All. 149 at 157-8.
7
Cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University Press, 4th
Edition, 2002) p.133
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On the other hand, it is considered a debt with consideration (for submission of her
person by the wife). The result is that dower is purely in the nature of a marriage
settlement and is for consideration. It is a claim arising out of contract by the
husband and as such has preference to (sic) bequests and inheritance, but on no
principle of Muhammadan law it can have priority over the contractual debts8

The best general observations on dower are those of Lord Parker of Waddington
in Hamira Bibi v. Zubaida Bibi9 :

“Dower is an essential incident under the Mussulman law to the status of

marriage; to such an extent 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 domicil; 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 wife is entitled, along with the 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 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 satisfies.
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 at
this Board.”

8
Per Khaliluzzaman J. in Kapore Chand v. Kadar Unnissa, [1950] S.C.R. 747 at 751
9
(1916) 43 I.A. 294 at 300-1; also cited in Syed Sabir Husain v. Farzand Hasan (1937) 65 I.A.
119 at 127.
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TYPES OF DOWER
We have seen that dower is payable whether the sum has been fixed or not, Ali
said: ‘There can be no marriage without mahr’. Thus, dower may, first of all, be
either specified or not specified. In the latter case, it is called mahr al-mithl, Proper
Dower, or to be strictly literal, ‘the dower of the like’. If the dower has been
specified, then the question may be whether it is prompt (mu‘ajjal) or deferred
(muwajjal, strictly mu’ajjal).

Thus we have two kinds of dower in Islam:

A. Specified Dower (al-mahr al-musamma); and
B. Unspecified Dower or Proper Dower (mahr al mithl).
Specified Dower may be again be divided into-
 Prompt - mu‘ajjal, and
 Deferred - mu’ajjal.

Specified Dower (al-mahru al-musamma) 10

Usually the mahr is fixed at the time of marriage and the kazi performing the
ceremony enters the amount in the register; or else there may be a regular contract
called kabinnama, with numerous conditions. The sum may be fixed either at the
time of marriage or later, and a father’s contract on behalf of a minor son is
binding on the minor. Where a father stipulates on behalf of his son, in Hanafi law,
the father is not personally liable for the mahr; but aliter in Ithna ‘Ashari law. In
Syed Sabir Husain v. Farzand Hasan, a Shiite father had made himself surety for
the payment of the mahr of his minor son. Thereafter he died, and it was held that
10
Also called mahr al-‘aqd
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the estate of the deceased was liable for the payment of his son’s mahr.
Accordingly each heir was made responsible for a portion of the wife’s claim in
proportion to the share received by the particular heir on distribution from the
estate of the deceased. The heirs were, however, liable only to the extend of the
assets received by them from the deceased, and not personally11 .

Where the amount has been specified, the husband will be compelled to pay the
whole of it, however excessive it may seem to the court, having regard to the
husband’s means; but in Oudh, only a reasonable amount will be decreed, if the
court deems the amount to be excessive or fictitous12.

Prompt (mu‘ajjal) and Deferred (mu’wajjal) dower

Prompt dower is payable immediately after the marriage, if demanded by the wife;
while deferred dower is payable 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 and to stipulate that one shall be paid at once or on demand, and the
other on the death of the husband or divorce or the happening of some specified
event. But a difficulty arises when it is not settled whether the dower is prompt or
deferred.

In Ithna ‘Ashari law the presumption is that the whole of the dower is prompt; but
in Hanafi law the position is different. The whole of the dower may be promptly
awarded13; but a recent Full Bench decision lays down first, that where the
kabin-nama is silent on the question, the usage of the wife’s family is the main
11
(1937) 65 I.A. 119.
12
This is called ‘fictitious dower’. Sometimes for the purpose of ‘glorification’ a larger mahr is
announced, but the real mahr is smaller. Such a mahr for the purposes of ‘show’ is know as
sum‘a.
13
Per J. Mahmood in Abdul Kadir v. Salima, (1886) 8 All. 149; Husseinkhan v. Gulab Khatum
(sic) (1911) 35 Bom 386.
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consideration; and secondly, that in the absence of proof of custom, the
presumption is that one-half is prompt, and the other half deferred, and the
proportion may be changed to suit particular cases.

Unspecified Dower (mahr al-mithl) 14

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; in other words, if marriage,
then dower15. Where the dower is specified, any amount, however excessive, may
be stipulated for. But what are the principles upon which the amount of dower is to
be determined where no agreement exits?

The customary or proper dower of a woman is to be fixed with reference to the

social position of her father’s family and her own personal qualifications. The
social position of the husband and his means are of little account. The Hedaya lays
down the important rule that her ‘age, beauty, fortune, understanding and virtue’
must be taken into consideration.

Islamic marriage, therefore, safeguards the rights of a wife and attempts to ensure
her an economic status consonant with her own social standing. Historically
speaking, and on the analogy of sale, it is permissible to ask: ‘What have the
circumstances of a purchaser to do with the intrinsic value of the thing he buys?’
The answer is that the Indian courts no longer consider marriage as a form of sale
or barter, and do not proceed upon the analogy that dower is the price of
consortium.

14
Ameer Ali calls it the ‘customary’ dower.
15
This has been emphasized by the Privy Council in Syed Sabir Husain’s Case, (1937) 65
I.A.119
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In fixing the amount of the proper dower, regard is to be had to the amount fixed in
the case of the other female members of the wife’s family. ‘Mahr is an essential
incident under the Mussalman law to the status of marriage; to such an extend that
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’.16The main consideration is
the social position of the bride’s father’s family, and the court will consider the
dowers fixed upon her female paternal relation such as sisters or paternal aunts
who are considered to be her equals.

The Prophet once allowed the marriage of an indigent person for a silver ring; and
on another occasion, merely on the condition that the husband should teach the
Koran to his wife. In Hanafi law, where the specified dower is less than 10
dirhams, the wife is entitled only to the minimum, namely 10 dirhams, and in Ithna
‘Ashari law, the proper dower can never exceed 500 dirhams, the dower fixed for
the Prophet’s daughter Fatima.

Thus, among the Shiites there are three kinds of mahr:

i. Mahr-e sunat, the dower supported by tradition, i.e. 500 dirhams;

ii. Mahr-e mithl, ‘the dower of the like’, or the dower of an equal, which is the
technical name for proper or unspecified dower; and

iii. Mahr-e musamma,the specified dower

16
Syed Sabir Husain’s Case, (1937) 65 I.A. 119
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CONCLUSION
In conclusion, all that can be said is that Mahr is a mandatory gift given by the
groom to the bride. However, it is given directly to the bride and not to her father.
Although the gift is often money, it can be anything agreed upon by bride and
groom such as a house or viable business that is put in her name and can be run
and owned entirely by her if she chooses.

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