Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERSITY

Lucknow

Faculty of Law

ASSIGNMENT OF FAMILY LAW-II

(Mahr)

Submitted by

Harsh Savita

(6th Semester)

Roll no.- 184140031

Academic Session: 2020-21

Under the Supervision of

Mis. Susmita Rajput

Faculty of law
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INDEX

1.Introduction.
2.Definations.
3.Amount of dower.
4.Types of dower.
5.Increase or decrease of dower.
6.Wife's rights and remedies on non payment of dower.
7.Conclusion.
8.Bibiliography.

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ACKNOWLEDGEMENTS:-

First and foremost, I am thankful to Mis. Susmita Rajput for allotting me the topic “ Mahr ”.
She has been very kind in providing inputs for this work, by way of suggestions material.
I would also like to thank my dear colleagues and friends in the University, who have helped
me with ideas about this work. Last, but not the least I thank the University Administration
for equipping the University with such good library and internet facilities, without which, no
doubt this work would not have taken the shape in correct time.

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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 form. 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 and divorce.

DEFINITIONS:-
Mahr or dower is a sum of money which becomes payable by the husband to his wife on
marriage, either by agreement between the parties or by operation of law. Mahr can either be
prompt (Mu’ ajjal), or deferred (Mu’wajjal).

According to Wilson, ‘Dower’ is a consideration for the surrender of person by the wife.

According to Ameer Ali, ‘Dower’ is a consideration which belongs absolutely to the wife.

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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 1. The word ‘consideration’
which is used under this definition is not used with the same meaning as used under the
Indian Contract Act. Payment of Mahr is an obligation on the part of husband as a mark of
respect to his wife.
There was an argument that marriage is a civil contract and dower is the consideration for the
contract of marriage.
Therefore, in the case Abdul Kadir v. Salim 2, Justice Mahmood stated that under Muslim
Law ‘Dower’ is a sum of money or other property promised by the husband to be paid to the
wife in the consideration of marriage and if the amount of money or other property is not
fixed in the marriage ceremony then also the wife has right to demand dower. But the above
opinion was considered inaccurate, because even if the payment of dower is not specified
during or before the marriage ceremony that does not make the marriage void.

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 high3. 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 means. 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, etc.
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,

1
Aqil Ahmad, Mohammedan law, page no.149.
2
(1886) ILR 8 All. 149.
3
Zakeri v Sakina (1909) 32 All 167

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where the absurd rule appears to be that the nobler the family, the higher the mahr, regardless
of the husband’s ability to pay or capacity to earn4.

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’11. Thus, dower may, first of all, be either specified or not
specified. Proper Dower, or to be strictly literal, ‘the dower of the like’.

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:-
•Prompt Dower
•Deferred Dower

SPECIFIED DOWER (mahr al- aqd)

If the amount of dower is stated in the marriage contract, it is called the specified dower.
Dower may be settled by the parties to the marriage either before the marriage or at the time
of the marriage or a guardian, such gaurdian can fix the amount of dower. Dower fixed by the
guardian is binding on the minor boy and he can not on attaining the age of puberty take the
plea that he was not party to it. Even after the marriage of such minor or lunatic boy, the
gaurdian can settle the amount of dower, provided that at the time of settlement of dower , the
boy is still minor or lunatic. The husband may settle any amount he likes by way of dower
upon his wife, through it may leave nothing to his heirs after payment of amount. But he
cannot in any case settle less than ten dirhams ( the money value of 10 dirhams is between 3
and 4 rupees) according to Hanifa law and 3 dirhams according to Maliki law . Shia law does
not fix any minimum amount for dower5.
For those muslim husbands who are very poor and not in position to pay even 10 dirhams to
wife as dower, the prophet has directed them to teach quran to the wife in lieu of dower. At
4
http://www.legalserviceindia.com/legal/article-5105-mahr-under-muslim-law.html
5
Aqil Ahmmad, Mohammden law, page no. 152.

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present there is no limit to the maximum amount of dower. The minimum has now become
obsolete.
As already stated, specified dower is again subdivided into:-
(i) Proper Dower ( muajjal mahr).
(ii) Deferred Dower ( muwajjal mahr).

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 hasan 6, 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 Maniran7 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. 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 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
6
AIR 1943 All 184
7
Mahadev Lal v. Bibi Maniran

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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 dies8.

PROPER DOWER (mahr-i-misl):-

When the amount of dower is not fixed in the marriage contract or even if the marriage has
been contracted on the condition that she should not claim any dower, the wife is entitled to
proper dower. Proper dower is to be determined by taking into consideration the amount of
dower settled upon other female members of the father's family such as her father's sisters.

Determination of Proper Dower:-

The proper dower is regulated with reference to the following:-
(a) Personal qualifications of wife, her age , beauty, fortune, understanding and virtue.
(b) Social position of her father's family.
(c) Dower given to her female paternal relations.
(d) Economic condition of her husband.
(e) 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 the 500 Dirhams. 500 Dirhams was amount of
dower which is fixed in the marriage of Fatima, the Prophet's daughter. In the shia muslims it

8
https://www.legalbites.in/dower-mahr-muslim-law/

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is, therefore, considered a point of honour not to stipulate for sum higher than the sum of
dower fixed by the Prophet for his daughter, Fatima9

INCREASE OR DECREASE OF DOWER:-

Husband can increase the amount of dower at any time and also the wife can remit the dower
wholly or partially but it should be done by her free consent. A Muslim girl who has attained
puberty can relinquish her dower, it is not mandatory that she has attained majority (which is
18 years according to Indian Majority Act) or not. The remission of Mahr by wife is called
Hibe-e-Mahr.
In any case after the death of husband, wife suffers mental distress, then remission of dower
at that condition will be considered against her free consent and will not be binding on her.

WIFE'S RIGHTS AND REMEDIES ON NON PAYMENT OF

DOWER:-
Muslim law confers upon a wife (or widow) the following three rights to compel payment of
her dower:
1. Refusal to cohabit.
2. Right to dower as debt
3. Right to retain her deceased husband's property.

1.Refusal to Cohabit:-
Under Muslim law, wife has a right to refuse to live with her husband when the amount of
prompt dower is not paid, if the marriage has not been consummated. If the wife is minor or a
lunatic then her guardians can refuse to send her to her matrimonial home until the payment
of prompt dower is done and during that time husband is bound to maintain his wife.
In the case Abdul Kadir v. Salima10, it was held that wife can refuse to cohabit or to live
with her husband and if before the consummation of marriage husband files petition for
restitution of conjugal rights, then such appeal will be dismissed.

9
Aqil Ahmmad, Mohammden law, page no. 155.
10
(1886) ILR 8 All 149

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Similarly in the case of Nasra Begum v. Rizwan Ali11, it was held by the Allahabad High
Court the wife can refuse to cohabit or to live with her husband until the amount of dower is
paid by him. Any suit for restitution of conjugal rights will be void before the consummation
of marriage. In case the wife is minor or lunatic then her guardian can refuse to send her to
her matrimonial home until the amount of dower is paid by her husband and if the minor wife
is already in the custody of husband, then her guardians can take her back on the ground that
the amount of dower is not paid.

2. Right to dower as a debt:-

The Privy Council has held that dower is ranked as a debt which must be paid to the widow
along with the other creditors out of the estate of the husband on account of his death. If the
husband is alive, then wife can claim for dower debt by filing a suit against him. After the
death of husband, widow can claim for dower by filing suit against the other heirs of the
property from which the amount of dower has to be recovered.
Heirs of deceased husband are not personally liable for the payment of dower debt; they are
liable to the extent in which they inherit the property of the deceased. If the property of the
deceased husband is already in the possession of the widow, then the other heirs of the
deceased are entitled to recover their shares according to the payment of the debt
proportionate to their shares.

In the case of Syed Sabir Hussain v. Farzand Hussain 12, a Shia Muslim took legal
responsibility for the payment of dower of his minor son that if he fails to do pay then he will
pay instead of the son, after the death of the father payment of dower was done from his
estate as he was liable to pay his son’s dower and every heir was responsible to pay for the
dower proportionate to their share.

3. Right to retain possession in lieu of unpaid dower:-

Widow has right to retain the possession of the property of her deceased husband which she
has already obtained lawfully and without any force or fraud against other heirs and creditors
of the property until the amount of dower is paid. The right to retain the property does not her
the owner of the property, therefore she cannot alienate the property. The right to retain the
property also arises in case of divorce.
11
Nasra Begum v. Rizwan Ali
12
(1938) 40 BOMLR 735

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Right to retain the possession of the property by the widow is for special purpose, so she has
to satisfy the amount of dower as soon as possible from that property. If the widow is not in
possession of the property or has lost it then she cannot claim for the possession of the
property.

CONCLUSION:-
Under “the Muslim Law dower implies cash or property which the wife is entitled to get from
the husband with regards to the marriage consideration. Dower is an obligation imposed upon
the husband as a sign of respect for the wife. The significant object of the dower is to give
resources to the wife after the dissolution of her marriage so she may not get hopeless after
the death of the husband or end of a marriage by divorce. 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.

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BIBLIOGRAPHY:-
1.Aqil Ahmmad, Mohammden law.
2.http://www.legalserviceindia.com/
3. https://youtu.be/FB00Zhco19A
4. https://www.legalbites.in/dower-mahr-muslim-law/

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