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)
 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.
 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 favorite 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 Mahomed 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.
 INDEX
1) Meaning and Definition.
2) Nature of dower.
3) Object of dower.
4) Fixation of dower.
5) Classification of dower.
a) Specified dower.
i) Prompt dower.
ii) Deferred dower.
b) Proper dower.
6) Determination of Proper dower.
7) Distinction b/w dower & dowry.
8) Subject matter or object matter of dower.
9) Contract of Amount of Dower in Marriage & Contract of
Dower made by Father.
10) Standard of Dower and Conditions or Terms of Payment.
11) Maximum & Minimum Amounts of Dower.
12) Increase or Decrease of Dower.
UNIVERSITY OF LUCKNOW

Subject-Family Law
Topic- “Dower(Mahr)”

Submitted by- Anurag Patel

(LL.B. Hons.)
Semester-3rd
Roll no.-180010450021
Submitted to-Prof. Kiran Sharma