JAMIA MILLIA ISLAMIA

FACULTY OF LAW

SUBJECT- FAMILY LAW I

TOPIC- “CONCEPT OF DOWER”

SUBMITTED BY- SUBMITTED TO-

ABHISHEK SINGH DR. KAHKASHAN Y.
B.A.LLB. (HONS.) S/F DANAYAL
2nd Year, IV SEMESTER PROFESSOR
Roll No.-2
 TABLE OF CONTENT

Referred to

1. ACKNOWLEDGMENT………...…………………………………………………...3

2. INTRODUCTION………………………………………………………..…………4

3. DEFINITION OF DOWER ………………………………………………………..5-

4. AMOUNT OF DOWER………………………………………………...…………6-

5. TYPES OF DOWER…………………………………………………………….7-

11

6. INCREASE OR DECREASE OF DOWER……………………………………………

11

7. NON-PAYMENT OF DOWER……………………………….…………………11-

12

8. THE WIDOWS RIGHT OF RETENTION……………………………….………..13-

14

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9. CONCLUSION…………………………………………………………………...15

10. BIBLIOGRAPHY…………………………………………………………………16

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 ACKNOWLEDGEMENT

In preparation of my assignment, I had to take the help and guidance of some

respected persons, who deserve my deepest gratitude. As the completion of this
assignment gave me much pleasure, I would like to express my special
appreciation and thanks to my subject Professor DR. KAHKASHAN DANYAL, you
have been a tremendous mentor for me. I would like to thank you for encouraging
my research and for allowing me to grow as a researcher.

I would thank many people, especially my Parents and classmates who have made
valuable comment and suggestions on my research which gave me an inspiration to
improve the quality of the assignment.

I also thank the Faculty of Law, Jamia Millia Islamia for giving me such an
opportunity of doing research on the topic “Concept of Dower”.

Furthermore I would also like to acknowledge with much appreciation the crucial
role of the staff of Faculty of Law, who gave the permission to use all required
equipment and the necessary materials to complete the task “Concept of Dower”.

At the last but not the least I would also like to expand my gratitude to all those
who have directly and indirectly guided me in writing this assignment. All that I
have done is only due to such supervision and assistance and I would not forget
their guidance.

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 CONCEPT OF DOWER
INTRODUCTION
In Pre-Islamic Arabia, the institution of marriage as we know today was not developed and
sexual relations were in vogue. Two forms of marriage were practiced in pre-islamic Arabia that
is Been from and Baal form1. Under ‘Been’ form of marriage wife did not accompany the
husband and she live at own place and husband visited her there. Under this kind of marriage
there is custom to give gift to wife at time of marriage which was known as ‘sadaq’. In Baal form
of marriage wife accompany her husband and used to give her parents certain amount in
consideration for their daughter leaving home and the amount is known as ‘Mahr’ which is
therefore linked as bride price. After advent of Islam in Arabia Prophet regulated the institution
of marriage and a new form of marriage came in to existence that is “Nikah”. One of the
essential parts of Muslim marriage (Nikah) is “dower” paid or promised to be paid by the
husband to the wife. Without Mahr a nikah cannot be said to have been properly solemnized.
Dower money must be paid or fixed before the solemnization 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 marriage2. The amount of dower may be fixed either before or at the time of
marriage of after marriage. 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.

DEFNITION OF DOWER

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 may be delayed according
to what has been agreed upon between the spouses. The mahr is for the bride to spend as she
wishes.3 “According to Ameer Ali, “Dower is consideration which belongs absolutely to the

1
Rakesh Kumar Singh, Law of dower(Mahr) In India, Journal of Islamic Law and Culture, 12:1, 58-73, DOI:
10.1080/1528817X.2010.528594, Taylor & Francis Group.
2
V.P. Bhartiya, Syed Khalid Rashid s Muslim Law, Eastern Book Company,Lucknow,4th edition, page 89.
3
V.P. Bhartiya, Syed Khalid Rashid s Muslim Law, Eastern Book Company,Lucknow,4th edition page 90.

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wife.” According to Tayabji, “Mahr or dower is sum that becomes payable by the husband to the
wife on marriage either by agreement between parties, or by operation of law4.

Justice Mahmood defines dower as follows:5

‘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.’ It is not the consideration in modern sense of the term but a obligation
imposed by law on husband as a mark of respect towards women6.

Here the word consideration is not used in the sense of contract act as we know that without
consideration there will be no contract and if in a Muslim marriage the husband does not pay the
dower promptly then there will be no marriage according to contract but in Islamic marriage
there is provision for “Deferred Dower” which can be paid later so we cannot say that Dower is
consideration for marriage and other point is If we purchase any thing we pay price to the owner
and according to this the husband should pay dower to father or guardian of the wife not to the
wife as prevalent in Pre Islamic Arabia “Baal Marriage” so we cannot say that Marriage in
Islam is civil contract and Dower is consideration for marriage.7

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 best general observations on dower are those of Lord Parker of Waddington in Hamira Bibi
v. Zubaida Bibi8.

‘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
4
V.P. Bhartiya, Syed Khalid Rashid s Muslim Law, Eastern Book Company,Lucknow,4th edition, page 89.
5

6
Abdul Kadir v. Salima (1886) 8 All. 149.
7
V.P. Bhartiya, Syed Khalid Rashid s Muslim Law, Eastern Book Company,Lucknow,4th edition, page 90.
8
(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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 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.’

AMOUNT OF DOWER

The amount of mahr may either be fixed or not; if it is fixed, it cannot be a sum less than the
minimum laid down by the law. Minimum amount of specified dower is fixed for Hanafis and
Malikis which is 10 and 3 dirham respectively. With a view to preventing the husband from
divorcing his wife, the dower is generally fixed very high 9. Once amount of dower is in the
contract of marriage is fixed, at the time of enforcement of contract husband cannot take defense
that amount was excessive beyond his means10. The amount of dower also depends on a
consideration of the financial circumstances of husband and wife, the position of the woman’s
family, her intellectual attainments or personal attractions, qualification, etc11.

Among the Muslims of India two distinct tendencies are to be found in society. In some cases, it
is not to stipulate for a sum higher than the minimum fixed by the Prophet for his favorite
daughter Fatima, the wife of Ali, namely 500 dirhams. Among certain other communities, there
are dowers of anything between a hundred and a thousand rupees; Ameer Ali mentions amounts
between four to forty thousand rupees. An altogether different tendency is to be found in Uttar
Pradesh, and also to some extent in Hyderabad, Deccan, where the absurd rule appears to be that

9
Zakeri v Sakina (1909) 32 All 167
10
Mohammad Sultan v Sarajuddin, AIR 1936 Lah 183
11
Mohammad Shahabuddin v. Mst. Umator Rasoal, AIR 1960 Pat 511

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the nobler the family, the higher the mahr, regardless of the husband’s ability to pay or capacity
to earn.

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’12. Thus, dower may, first of all, be either specified or not specified.
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 or deferred.

Thus we have two kinds of dower in Islam:

A. Specified Dower and

B. Unspecified Dower or Proper Dower.

Specified Dower may be again be divided into-

 In (A) and (B) the question Prompt and

 Deferred
Before the court is the amount payable: in (I) and (II) the question is the time when payment has
to be made.

SPECIFIED DOWER (mahr al- aqd)

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. 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. 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,
12
A.A.A.Fyzee, Outlines of Muhammadan Law, Oxford University Press, New Delhi (4th edn.1974)Page 136.

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and it was held that 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 extent of the assets received by them from the deceased, and
not personally13.

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
fictitous14.

(A) Prompt Dower (Muajjal Maher)

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 Uddin15, 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 Maniran16 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.

13
(1937) 65 I.A. 119
14
This is called ‘fictitious dower’. Sometimes for the purpose of ‘glorification’ a larger mahr is announced, but the
real mahr is smaller.
15
1943, All LJ 98,
16
1933, 12 Pat, 297.

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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.

(B) Deferred dower

It is payable on dissolution of marriage 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.

PROPER DOWER

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 dower17.
Where the dower is specified, any amount, however excessive, may be stipulated for.

17
Syed Sabir Husain’s Case, (1937) 65 I.A. 119

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The customary18 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.

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 Muslim
law to the status of marriage; to such an extent 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’. 19 The
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.

INCREASE OR DECREASE OF DOWER

18
Ameer Ali calls it the ‘customary’ dower.
19
Syed Sabir Husain’s Case, (1937) 65 I.A. 119

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The husband may at any time after marriage increase the dower. Likewise, the wife may remit
the dower, wholly or partially; and a Muslim girl who has attained puberty is competent to
relinquish her mahr, although she may not have attained majority (18 years) within the meaning
of the Indian Majority Act20.

It has, however, been held in Karachi 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 for mahr 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 deed21.

NON-PAYMENT OF DOWER

The claim of the wife or widow for the unpaid portion of the mahr is an unsecured debt due to
her from her husband or his estate, respectively. It ranks ratably with unsecured debts, and is an
actionable claim. During her lifetime the wife can recover the debt herself from the estate of the
deceased husband. If she predeceases the husband, the heirs of the wife, including the husband,
become entitled to her dower. A lady, whose mahr was Rs. 50,000, received from her husband
during his lifetime sums of money in the aggregate exceeding the mahr settled on her. The
largest of such payments was Rs. 3,000. The question arose here whether these payments
satisfied the husband’s obligation. The Judicial Committee held that such payments were not to
be treated as having been made in satisfaction of the dower debt. There was no evidence that
these payments were intended by the husband to satisfy the doer debt22.

NON PAYMENT OF PROMPT DOWER

If the husband refuses the pay prompt dower, the guardian of a minor wife has the right to refuse
to allow her to be sent to the husband’s house; and similarly, the wife may refuse the husband his
conjugal rights, provided no consummation has taken place. The wife is under Muhammadan

20
Qasim Husain v. Bibi Kaniz, (1932) 54 All. 806
21
Shah Bano v. Iftekar Muhammed ,PLD 1956 (W.P.) Kar. 363.
22
Mohammad Sadiq v. Fakr Jahan (1931) 59 I.A. 19.

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 Law entitled to refuse herself to her husband until the prompt dower is paid; and if in such
circumstances she happens to reside apart from him, the husband is bound to maintain her.23

This right of refusing her is, however, lost on consummation.24 Thus if the husband files a suit
for restitution of conjugal rights before cohabitation, non-payment of prompt dower is a
complete defence; but after cohabitation, the proper course is to pass a decree for restitution
conditional on the payment of prompt dower. This was laid down in the leading case of Anis
Begam v. Muhammad Istafa Wali Khan.25

NON PAYMET OF DEFFERED DOWER

The non-payment of deferred dower by its very nature cannot confer any such right of refusal on
the wife. The right to enforce payment arises only on death, divorce or the happening of a
specified event.

The dower ranks as a debt and the widow is entitled, along with the other creditors of her
deceased husband to have it satisfied out of his estate. Her right, however, is the right of an
unsecured creditor; she is not entitled to a charge on the husband’s property, unless there be an
agreement. The Supreme Court of India has laid down

i. That the widow has no priority over the creditors, but

ii. That mahr as a debt has priority over the other heirs’ claims.26

And the heirs of the deceased are not personally liable to pay the dower; they are liable ratably to
the extent of the share of the inheritance which comes to their hands.

The Widow’s Right of Retention

23
Nur-ud-din Ahmad v. Masuda Khanam PLD 1957 Dacca 242; Muhammadi v. Jamiluddin PLD 1960 Karachi 663.
24
Rahim Jan v. Muhammad, PLD 1955 Lahore 122;
25
(1933) 55 All. 548. This case is of great importance as Sulaiman C.J. has carefully considered and criticized
certain dicta of Mahmood J. in the leading case of Abdul Kadir v. Salima (1886) 8 All. 149
26
Kapore Chand v. Kadar Unnissa [1950] S.C.R. 747.

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Mohammadan law gives to the widow, whose dower has remained unpaid a very special right to
enforce her demand. This is known as ‘the widow’s right of retention’. A widow lawfully in
possession of her deceased husband’s estate is entitled to retain such possession until her dower
debt is satisfied.27 Her right is not in the nature of a regular charge, mortgage or a lien 28; it is in
essence a personal right as against heirs and creditors to enforce her rights; and it is a right to
retain, not to obtain, possession of her husband’s estate. Once she loses possession of her
husband’s estate, she loses her special right and is in no better position than an unsecured
creditor.29

The nature of this right was discussed by their lordships of the Privy Council in Maina Bibi v.
Chaudhri Vakil Ahmad30 . One Muinuddin died in 1890 possessed of immovable property
leaving him surviving his widow Maina Bibi, who entered into possession. In 1902 some of the
heirs filed a suit to recover possession of their share of the property. The widow pleaded that the
estate was a gift to her, or alternatively that she was entitled to possession until her dower was
paid. In 1903 the trial judge made a decree for possession in favour of the plaintiffs on condition
that the plaintiffs paid a certain sum by way of dower and interest to the widow within six
months. This sum was not paid, however, and the widow remained in possession, in 1907 Maina
Bibi purported to make a gift of the whole of her property to certain persons. The original
plaintiffs challenged this gift and the Privy Council held that the widow had no power to make a
gift of the properties, and could not convey the share of the heirs to the donees. Their lordships,
in discussing the nature of a widow’s right of retention, said that

‘the possession of the property being once peaceably and lawfully acquired, the right of the
widow to retain it till her dower-debt is paid is conferred upon her by Mahomedan Law’.31 They
further said that it is not exactly an lien, nor a mortgage, usufructuary or other.

27
Mirvahedalli v. Rashidbeg, AIR (1951) Bom. 22
28
Zaibunnissa v. Nazim Hasan, AIR (1962) All. 197
29
Ibid
30
(1924) 52 I.A. 145.
31
Id at p. 150.

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Thus, in essence, it is a personal right given by Muhammadan law to safeguard the position of
the widow.32

The Supreme Court has laid down that a Muslim widow in possession of her deceased husband’s
estate in lieu of her claims for dower, whether with the consent of the heirs or otherwise, is not
entitled to priority as against his unsecured creditors.33

There is a conflict of opinion whether in order to retain possession the consent, express or
implied, of the husband or his heirs is necessary. Some judges are of opinion that such consent is
necessary; others, that it is not. It is submitted with great respect, that on first principles, having
regard to the nature of the right, the consent of the husband or his heirs is immaterial.
Muhammadan law casts a special obligation on every debtor to pay his debt, and the right of the
widow for her dower is a debt for which the widow has a good safeguard. Thus, the question of
consent appears to be immaterial.

The right to retention does not confer on the widow any title to the property. Her rights are
twofold: one, as heir of the deceased and two, as widow entitled to her dower and, if necessary,
to retain possession of the estate until her mahr has been paid. The right to hold possession must,
therefore, be sharply distinguished from her right as an heir. The widow, in these circumstances,
has the right to have the property administered, her just debts satisfied and her share of the
inheritance ascertained and paid. She has no right to alienate the property by sale, mortgage, gift
or otherwise, and if she attempts to do so, she loses her right of mahr.

32
The Patna High Court has adopted this view, Abdul Samad v. Alimuddin (1943) 22 Pat. 750.
33
Supra Note 25

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CONCLUSION

After the foregoing discussion, it can be concluded that Under the Muslim Law, Maher (dower)
means money or property which the wife is entitled to receive from the husband in consideration
of the marriage, but the concept of consideration in Muslim marriage is not the same as that of
the civil contract. If a person purchase anything he has to pay price to the owner of the thing but
here husband pay mahr to the wife not to her parents and also a contract becomes void without
consideration but in case of Muslim marriage if dower is not paid promptly then also marriage is
valid. Dower is an obligation imposed upon the husband as a mark of respect for the
wife. Mahr is something in the form of a sum of money or some property which a wife is entitled
to get from her husband and in case of his death from his heirs also. When the amount of dower
is fixed, it is specified dower or otherwise proper dower may be specified before at the time of
and even after marriage. Dower is a debt, though unsecured. The maher is the sole property of
the wife and neither parents nor any other relatives have any right over it. The wife, widow or
divorce has a right to retain in possession of the property of the husband till her dower debt is
satisfied. The right of retention is not a charge on property. The right of dower is heritable and
transferable which in possession of the husband’s property in lieu of her dower debt the widow
or divorcee can neither make alienation of that property nor manage it.

16
 BIBLIOGRAPHY

Books Referred-
 Ameer Ali, Mahommedan Law, Vol.II, Kitab Bhavan, New Delhi (1986).
 A.A.A. Fyzee, Outlines of Muhammadan Law, Oxford University Press, New Delhi (4th
edn., 1974)
 Syed Khalid Rashid, Muslim Law, Eastern Book Company, Lucknow (5th edn,, 2009),
Revised by Prof. V.P. Bhartiya.
 Dr. Kahkashan Y. Danyal, Muslim Law of Marriage, Dower, Divorce and Maintenance,
Regal Publications, New Delhi (2015).

Journals & Articles-

 All India Reporter
 Supreme Court Cases
 Journal of Islamic Law and Culture (Taylor and Francis group)
 Shodhganga

Legal Database-
 Hein Online
 Lexis Nexis
 Manupatra
 SSC Online
 Jstor

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