CHAPTER 8 DOWER (MAHR) SYNOPSIS 8. Classification of dowe, 1, Origin 2 9. Wife's Rights ang 3 ala dower Payment of dower, "Mes on ye 10. Difference between. Sung a Ww relating to dower, and 5. Legislature's right to make a legislation i in respect of reasonable dower. 11. Effect of Apostacy on dower, The object of dower 12. Suits for dower and Limitation, 7. Increase or decrease of dower. 13. Kharche-i-Pandan, 1. Origin—In old precIslamic Arabia, when the institution of mary we know it today was not developed, many forms of sex relations; man and woman were in vogue. Some were temporary and hardly Prostitution. Men, after despoiling their wives, often turned them out absolutely helpless and without any means. The ancient custom to settle certain sums for subsistence of the wife in the event she was tured out was of disregarded, as there was no organised system of law. A device was in vo under the name of SHIGHAR marriage in which a man would give his daughter or sister in marriage to another in consideration of the latte. giving his daughter or sister in marriage to the former. Thus neither of the wire could get a dower. False accusations of unchastity were frequently used to deprive the wife of her dower. In the so called Beena marriage, where the husband visited the wie 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, Sadag. In Islam Sadaq simply means a dowry and is synonymous with Mahr (sale price). But originally the two words (Sadag and Mahr) were quite distinct. Sadaq was # gift to the wife in the Beena form of marriage and mahr was a gift compensation to the parents of the wife in the baal form of marriage. Mal belongs to the marriage of dominion, which is known as the baal marriage Where the wife's parents (guardian) part with her and have t compensated. Promulgation of Islam Bave a new form of nikah to marriage = a . it abolished this ancient custom and forbade unjust acts towards the fair ee evident from the Quran. "If you age as iPS between better thanDOWER (MA\ HI e 149 2 Definition.—Mahr or dower is a sum that be pand to the wife on marriage, either by ins peration of law. It may either be pr wai ‘According to Wilson, "Dower" is a cor the wife. It is the technical Anglo- ‘Nar’ in Arabic, ‘According to Ameer Ali, "Dower" absolutely to the wife. ecomes payable by the Y agreement between the parties or ompt (Mu’ ajjal), or deferred (Mu’ nsideration for the surrender of person Mohammedan term for its equivalent is a consideration which belongs According to Mulla, "Dower" is a sum of money or other property which the wile 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 the 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 Abdul Kadir v. Salima,? that Dower under the Muslim law is a sum of money or other 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 dower is specified at the time of marriage, marriage is not void on that account, but the law requires that some dower (proper dower) should be paid to the wife. Abdur Rahim correctly observed, "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 Monammad and made obligatory by him in the case of every marriage. Dower in Muslim Law is somewhat similar to the donatio propter nuptias in Roman Law. The important difference, however, is that while under ‘he 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. Wife is considered, to be the property and the dower her price. In Abdul Kadir v. Salima3 Mahmood, J., comparing the marriage itt dower with contract for sale and consideration, says “Dower may the'®8*tded as consideration for connubial intercourse by way of analogy to ® contract for sale, The right to resist ler husband so long as the Dower i Ty | 2 padi’: Mustim Law, 4th Ed., p. 102. 3 11 0886 8 al 149 (157. >) 8 All 149. | The150 MOHAMMEDAN LAW the lien of a vendor upon the sold goods | \d so long as the price or any part of it ig wwii es the delivery of the goods wri e remains unpaid is analogous to they remain in his possession an and her surrender to husband resembl vende..." el i ded by some eminent authorities as a consideration for con, intorenuee daa cacy, Sut, Nasr Begun v. Riztan Ali! Allahabed He Court expressed the view that the right to claim prompt dower procegg. cohabitation. (3) Dower is an essential incident and fundamental feature of Muslin marriage with the result that even if no dower is fixed the wife is entitled 4, some dower from the husband, The marriage is valid even though no mention of dower has been made by the contracting party. In Hassina Bibi v. Zubnidg Bibi,? the Judicial Committee held that— "Dower is an essential incident under the Muslim 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 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 (as against other heirs of her husband and as against other creditors of her husband) 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. In Zobair Ahmad v. Jainandan Prasad,3 their Lordships of the Patna High Court held "The dower debt of a Mohammedan widow is not properly speaking, a charge upon the property of her husband; the interest which she has in the Property in her possession in lieu of dower-debt is an interest restricted in its enjoyment to her personally within the meaning of Section 6 (d), Transfer of Property Act, and as such is not capable of alienation’, In Smt. Nasra Begum v. Rizwan Ali4 Allahabad High Court observed :— "No doubt, under the Mohammedan Law Mahr or dower means money or property which the wife is entitled to receive from the husband in consideration of the marriage. However, the expression ‘consideration’ not to be understood in the sense in which it is used in the Contract Act. I" 1. AIR 1980 All119, 2. (1916) 43 IA 294, 3. AIR 1960 Pat. 147, 4. AIR 1980 A119,WI DOWER (MAHR) 151 effect dower is an obligation iny for the wife". Posed upon the husband as a mark of respect | a leenenee a dower.—Fatwai-i-Quazi Khan says, "Mahr is so necessary to marriage 7 it were not mentioned at the time of the marriage, or in the contract, the law will presume it by virtue of the contract itself”, It is essentially an incident of the Muslim L: i i en ; aw of Marriage that even if there is stipulation on the part of the woman before marriage te forego all her right to dower, or even if she agrees to marry without any dower, the stipulation or agreement will be invalid. The reason of its importance lies in the Protection that it imparts to the wife against the arbitrary exercise of the power of divorce by the husband. In _ Muslim Law, the husband can divorce his wife at his whim and so the object of dower is to check upon the capricious exercise of the husband of his power to terminate the marriage at will. It not only protects from his unbridled power to divorce but also from his extravagance in having more than one wife. A stipulation to charge a huge dower on the occasion of his another marriage is enough to deter him from enjoying the luxury of having two, three or four wives. In Abdul Kadir v. Salima,! Mahmood, J., has observed : "The marriage contract is easily dissoluble, and the freedom of divorce and the rule of polygamy place the power in the hands of the husband which the law-giver intended to restrain by rendering the rules as to payment of dower stringent on the husband. That is why the right of the wife to her dower is a fundamental feature of the marriage contract; it has a pivotal place in the scheme of the domestic relation affecting the mutual rights of the spouses at more than one point.” The question with regard to dower does not arise in case of marriages solemnized under the Special Marriage Act, 1954. But the right to Mahr fixed in a marriage first contracted under Muslim Law will not be forfeited merely by the fact of registration of the marriage under the Special Marriage Act, 1954. 5. Legislature's right to make a legislation in respect of reasonable dower.—According to Muslim law, on the dissolution of marriage, the wife can claim her dower money. It is possible that the amount of dower may be very high or it may be very low. There were cases where the husband was having sufficient source of income but the amount of dower was so meagre, that it was not possible for the wife to maintain herself without that and, therefore, the Legislature was given full power to make law providing that the Court will not be bound to award the amount of dower according to marriage deed. Section 5 of the Oudh Laws Act, 1876 provided that the Court is not to award the amount of dower stipulated in the contract of marriage but only such’sum as shall be Teasonable with reference to the means of the husband and the status of the Wife? 6. 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; — TLR (1886) 8 All. 149. Abdul Rahaman v. Inayati Bibi, (1931) AC 631.MOHAMMEDAN LAW 152 (ii) to place a check on the capricio’ and (ii) to pro that she may not become h termination of marriage by divorce. = ixation of Mahr—The Indian Ulema recommended in a so, a (dover) should be fixed in terms of gold ea so tha rights of women are fully protected in the evel fall in the values 7 currencies. 7. Increase or decrease of Dower—The husband may at any tine aj, marriage increase the dower. Likewise, the wife may remit the dower ‘holy or partially. A Muslim girl who has attained puberty is competent » relinquish her Mahr although she may not have attained majority (1g Year within the Indian Majority Act). The remission made by the wife, should be with free consent. The remission of the Mahr by a wife is called Hibe». Mahr. Ina case where the wife was subject to mental distress, on account of her husband’s death the remission of dower, was considered as against her consent and not binding on her? It has been held in a Karachi case,3 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 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 deed. 8. Classification of dower.—The dower may be classified into: (i) Specified dower (Mahr-i-Musamma).—Specified. dower is again divided into: us use of divorce on the part of, Ch 7 ic subsistence after the dissolution of her lary vide for her stpelpless after the death of the hash o (2) prompt dower, and (b) deferred dower. (ii) Customary (Proper) dower (Mahr-i-Misl). (i) Specified dower.—If the amount of dower is stated in the marriag® 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 even after the marriage. If a marriage of a minor or lunatic boy is contracted °Y @ guardian, such guardian can fix the amount of dower. Dower fixed by ty guardian is binding on the minor boy and he cannot on attaining the ®8°° Puberty take the plea that he was not party to it. Even after the marriaB° Such minor or lunatic boy, the guardian can settle the amount of do" rovided i ll inor ie stim that at the time of settlement of dower, the boy is still mine i Sec Issues Decision of Indian Ulems, p.141FA Publication. 3 Shan give Dadaniav. Halimunnisea Hafullah, ATR 1949 Boon 128 Bano v. Iekar Mohammad, P.LD,, 1956 (PW) Kar. 363, eePOWER (MAHR) 153 the husband eae settle any amount he likes by way of dower upon his wile though it may leave nothing to his heirs after payment of the amount. rit he cannot in any case settle less than ten dirhams (the money value of 10 girhans i8 ear and 4 rupees) according to Hanafi Law and 3 dirhams ‘ccording to Maliki Law. Shia Law does not fix any minimum amount for dower. : For those Muslim husbands who are very poor and not in a position to pay even 10 dirhams to the wife as dower, the Prophet has directed them to teach Quran to the wife in lieu of dower. At present there is no limit to the maximum. Snount of dower. The minimum has now become obsolete, As already stated, specified dower is again subdivided into:— (i) Prompt Dower (muajjal mahr). (ii) Deferred Dower (muwajjal mahr). (a) Prompt Dower—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 realised any time before or after the marriage. The wife may refuse herself to 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. (ii) 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. After consummation, she cannot resist the conjugal rights of the husband if the prompt dower has not been paid by him. Instead of refusing to decree the suit for restitution of conjugal rights to which the husband is entitled, if marriage is consummated, the court may pass a decree conditional on payment of dower. (iii) 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. (io) 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 ‘o the question of paying dower to his wife save when there is domestica 154 MOHAMMEDAN LAW disagreement, or when the wife presses for ued Gin the husbang, embarking upon a course of extravagance and indebtedness without makin ae provision for her. Lapse of time since marriage raises no presumption jn inet ; of the payment of dower.! : (b) Deferred dower.—It is payable on the dissolution of marriage Cither by death or divorce. According to Ameer Ali generally in India dower is a penal sum with the object to compel husband to fulfil marriage contract in its entirety, ‘The following points must be noted regarding deferred dower: (i) Deferred dower is payable on the dissolution of marriage by death 7 divorce. But if there is any agreement as to the payment of deferred dower earlier than the dissolution of marriage such an agreement would be valid and binding. (ii) The wife is not entitled to demand payment of deferred dower (unless otherwise stipulated), but the husband can treat it as prompt and pay of transfer the property in lieu of it. Such a transfer will not be void as a fraudulent preference unless actual insolvency is involved. (iii) The widow may relinquish her dower at the time of her husband's funeral by the recital of a formula, Such a relinquishment must be a voluntary act of the widow. (i) The interest of the wife in the deferred dower is a vested one and nota contingent one. It is not liable to be displaced by the happening of any event, not even on her own death and as such her heirs can claim the money if she dies. Presumption regarding prompt and deferred dower.— The amount of dower is split into two parts : (1) one is called ‘prompt’ which is payable on demand, and (2) other is called ‘deferred’, which is payable on dissolution of marriage by death or divorce. The prompt portions of the dower may be realised by the wife at any time before or 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 wife, it is in law prompt dower. But deferred dower does not become prompt merely because the wife demands it4 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 wife, (ii) custom of locality, (iii) total amount of dower, (iv) status of husband, Tt has been held in Rehana Khatun’s case,5 that the proportion of prompt dower is regulated by custom, and, in absence of custom, the total amount of dower is to be settled on the basis of the status of the parties. ‘AIR 1941 Oudh. 457, Iqtidar-uddin, (1943)AN1 Ly 98, ‘Maldeo Lal v.Bidi Maniram, AIR 1939 Pats E ‘Manohar Bibi v. Rakha Singh, AIR 1954 Manipus 1, Rahana Khattun v. Igtidar-uddian. (1943) AL} 98, geepeDOWER (MAI Ge) 155 shia Law.—Under Ithna Ashari Shia law j i , otal amount ct oe but does not speciy ee ae enaer itil be prompt and what deferred, the whole of the dower is regarded as prompt, The Bombay High Court also in Hussain Khan v. Gulab Khutun! hell okt hence the fact that parties are Shia otherwise stipulated the entire or Sunni. i Presidency, unless wer is prompt no matter the parties are Shia Sunni Law.—According to Sunni Law, and statement in Kabin-nama, half of the t and half as deferred. in the absence of any family usage otal amount is regarded as prompt (ii) Proper (Customary) Dower—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 (mahr-i-misl) is regulated with reference to the following factors :— i (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 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. 9. 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 a debt; and 3. Right to retain her deceased husband's property. i ited, the (1) Refusal to cohabit.—If the marriage has not been consummated, Wife has ae corns to cohabit with her husband so long as the prompt dower is not paid. In the case of a wife who is a minor or an insane, her Buardian has right to refuse to send her to her husband's house till payment of 0911) 36 Bom 386,4 156 MOHAMMEDAN LAW prompt dower, During such a stay in her guardian's house the husband is bg to maintain her, The absolute right of the wife before giving him the access to to insist on payment of the Prompt do her, is lost after the consummation of 4” marriage.! After consummation the husband in his eure restitution & conjugal rights upon her refusal can secure only a eae conditional on Paymeng of dower. It was held in Abdul Kadir v. Salima,? that the effect of non. payment of prompt dower is that the wife can refuse to cohabit or Tefuse to live with the husband. If the husband sues her for restitution of conjugal rights before sexual intercourse takes place, non-payment of dower is a complete defence to the suit, and the suit will be dismissed. Similarly, in Nasra Begum, v. Rizwan Ali it was held by the Allahabad High Court that the wife can. refuse to live with her husband and refuse to him the sexual intercourse so | as the prompt dower is not paid to her. In a suit for restitution of conjugal rights by the husband, the non-payment of prompt dower before consummation, is a complete defence and the suit must fail. Where the wife is minor or insane her guardian can refuse to allow the husband to take his wife with him till the prompt dower has been paid. If the minor wife is already in the custody of-her husband, such guardian can take her back on the ground of non-payment of prompt dower. It was held in Rabia Khatoon y, Mukhtar Ahmed,‘ that if the suit is brought after sexual intercourse has taken place with her free consent the proper decree to pass is not a decree of dismissal, but a decree for restitution, conditional on payment of prompt dower. 3 When dower is deferred and is payable at a future date or on the contingency of an event, and there is no other contract to the contrary, the | question is whether she can refuse to the husband his conjugal rights whether her guardian can detain her till it is paid, Abu Yusuf is of opini that she can but according to Imam Muhammad and the Shia Law, she cat have such option of denial in cases of deferred dower, and it appears from the decision of Mahmood J. in Abdul Kadir v. Salima, that the latter opinion hai been followed in India. (2) Right to dower as a debt—Their Lordships of the Privy Council hel that "the dower ranks as a debt and widow is entitled along with othe creditors to have it satisfied on the death of the husband, out of his estate." I! the husband is alive, the wife can recover the dower debt by instituting a suit against him. After the death of the husband, dower debt remaining unpai the widow can enforce her claim for the dower debt by filing a suit against his heirs. The heirs of the deceased husband are however, not personally liable for the dower debt. They are liable to the extent to which and in the proportion in which they inherit the property of the deceased husband, If the widow is it possession of her husband's property under a claim for her dower, the othe? ‘Hamidunissa Bibi TLR (1886) 8 All. 149, AIR (1980) All 118, AIR 1966 All 548, IER (1886) 8 All 149, heeDOWER (MAHR) 157 heirs of her husband are severally entitled to recover their respective share upon payment of a quota of the dower debt proportionate to those shares.! ‘A Mohammdan dies leaving a widow, a son and two daughters. The widow is entitled to a dower debt of Rs. 3,200; the widow's share in the estate is 1/8 and she is liable to contribute 1/8 of Rs. 3,200=Rs. 400. The son's share is 7/16 and he is liable to 7/16 of Rs. 3,200 = Rs. 1,400. The share of each daughter is 7/32 and she is liable to pay 7/32 of Rs. 3,200 =Rs. 700 and if the widow is in possession to recover her share on payment of Rs. 700. She is not, however, entitled to any charge on her husband's property, though such a charge may be created by agreement. Even a father's contract on behalf of his minor son is binding upon the minor and upon the father if the minor fails to pay. In Syed Sabir Hussain v. Farzand Hussain,3 a Shia Muslim stood surety for payment of the dower by his minor son. After his death his estate was held liable for the payment of his son's mahr and each heir was made responsible for a portion of the wife's claim in proportion to his share in the estate of the deceased. In Mohammad Tusabuddin v. Yasin Begum,’ the Court held that the claim of a widow for dower is in the nature of a secured debt. There is no doubt that it is within the competence of a Court to create a charge by its decree for a dower debt so that if such a charge is created and the decree has been appealed against and has become final, effect will be given to the charge in other words, a decree creating a charge is not a nullity for want of jurisdiction. But though it is not beyond the power of a court to pass a decree creating a charge, it will not ordinarily do so. To pass such a decree means to give the dower debt a priority over other debt due from the deceased. The proper decree to make is simple money decree and no charge is created merely because the decree directs execution by sale of properties mentioned. If a decree is passed creating a charge the proper course of the Appellate Court would be to set it aside to that extent. In Anjum Hassan Siddiqui v. Salma Bi, the Allahabad High Court held that an application by the divorced woman for sum of Mahr or dower under Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 can lie only before the Magistrate concerned. The Family Court established under the 1984 Act cannot exercise jurisdiction unless the same had been specifically conferred upon the family Court under the provision of Section 2 (b) of 1984 Act. The family Court in this case was therefore, not competent to deal with the application moved by the respondent for want of jurisdiction. In Parvej Khan v. State of U.P.” the High Court of Allahabad observed that perusal of Section 3(4) of the Muslim Women (Protection of Rights on eae Hamira Bibi v. Zubaida Bibi, ILR (1916) 38 All $81. Hamira Bibi v. Zubaida Bibi, ILR (1916) 38 All $81. 651A 119, 17 DLR 224, ‘Ammeeroon-nissa v. Moorad-un-nissa, (1855) 6 MIA 211. AIR 1992 All, 322. MANU/UP/0766/2013.158 MOHAMMEDAN LAW ken by the Magistr Divorce) Act, 1986, showed that the view tal ate absolutely correct. In the facts of this case no ee een passed We Magistrate on the application by the wife ond i aaa e Act of 1986 for payment of Mahr and for return of her other longings. Thus, the C held that since the order has im pest] oe ne ae pire arts & stion for non-compliance of said order. farsi of Rights on Divorce) Act, 1986, shall apply ers the leameq Magistrate has passed the order and there is non-comp! lance the same and ig view of this, the said application was rightly rejected by the trial Court view of the above the application under Section 468, Cr. P.C. being devoid on merit and deserves to be dismissed. (3) Right to Retain Possession in lieu of unpaid Dower.—Dower ranks agq_ debt, and the wife is entitled, along with the other creditors, to have jg satisfied on the death of the husband out of his estate. Her right, however, 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 wit the rents and issues accruing therefrom she is entitled to retain such possession until it is satisfied.! If the widow has lawfully and without force or fraud obtained in lieu of her dower actual possession of the property of the deceased husband, she is entitled to retain that possession as against other heirs and against other creditors of her husband, until her dower is paid.? This right retention does not give her any title to the property; therefore she cann alienate the property. The right to retain possession of husband's estate till Payment of dower also arises after divorce. In no case it arises during the continuance of marriage. A widow's right to retain possession of her husband's estate in lieu her dower, is for a special purpose. It is by way of compulsion to obtain speedy payment of the dower which is an unsecured debt. Where she is not in possession or has lost possession, she cannot claim to obtain it, because her right to retain is not in the nature of a charge on the property like mortgage but a personal right against the heirs and creditors of her deceased husband. The following features of right to retain Possession must be noted : (i) No Right of Retention During Continuance of Marriage.—The right comes into existence only after the death of her husband, or if the marriage is dissolved by divorce, immediately on such divorce, but not before. Thus, if a creditor of the husband obtains a decree against him and the husband's property is sold in execution of such decree in his lifetime, the wife has no right of retention against a purchaser in execution of the decree and she must deliver possession to him.3 (ii) Actual Possession. —The ri ight of retention m ight to continue in the possession of the husban sara, the right.to d's property after termination of marriage 1 Hamima Bibi v. Zubaide BETTE: 1, Hamira Bibi Zubaida Bibi, TLR (1916) 38 All 581, 2. Babee Bach a il (1928 so tangy, amid Hussain, (1871) 14 MIA 377 and Maina Bibi v. Chaudhry Vakil Ahmed 3. (1924) 52 1A 145.DOWER (MAHR) 159 (cither by divorce or by death) until the satisfaction of the dower debt. It is, therefore, necessary for the exercise of this right that the wife or widow must be in actual possession of the property at the time of the termination of marriage. If she was not in actual possession of the property at this time, she cannot afterwards acquire possession of the husband's property in lieu of this right. The right of retention is the right to retain possession of the property which was acquired by her during the subsistence of marriage. It is, therefore, not a right to obtain possession, It is also necessary that the wife should have obtained possession of the property lawfully and without force or fraud, (ii) The right of retention not analogous to a mortgage—The woman has no interest in the property, as mortgagee has under an ordinary mortgage. There is no true analogy between her right of retention and mortgage. In the case of a mortgage, the mortgagee retains possession under an agreement between him and the mortgagor, while her right or rentention does not arise from any such agreement but is conferred on her by law. (iv) Not a charge—The right does not constitute a charge on the property and as such she is not a secured creditor. If the property, which is being held by her in lieu of dower under her right of retention has been mortgaged by her deceased husband, the mortgagee can sell it free of her right and can oust her from possession. (v) A possessory lien on property is no title —(a) She is to satisfy her claim for dower with the rents and profits accruing from the property. (b) The right of retention does not give her any title to the property. The title to the property is in the heirs, including, of course, the widow. (c) She cannot alienate the property by sale or mortgage to satisfy her dower. If she alienates the property, it is valid to the extent of her own share and not of the shares of other heirs of her husband. If she delivers possession thereof to the alienee, the other heirs become entitled to recover immediate possession of their shares unconditionally, that is, without payment of their proportionate share of the dower-debt. The widow is not entitled on the alienation being set aside, to be restored back Possession. By giving up possession of the property, she loses her right to hold possession thereof, However, if the widow is dispossessed by the heirs of the husband or their transferees, she can recover possession only by instituting a suit under Section 9 of the Specific Relief Act, that too within 6 months of dispossession, failing which she would lose her right to recover possession. In case she is dispossessed by a trespasser, she can sue within 12 years under Article 12 of the Indian Limitation Act. In the leading. case of Maina Bibi v. Chaudhary Vakil Ahmad,' one Muinuddin died in 1890 leaving immovable property, Maina Bibi was his widow. In 1902 the respondents instituted a suit against the widow for immediate possession of their shares of the estate. The widow pleaded that 1. (1924) 52 1A 145.EDAN LAW 160 MOHAMM! her by her husband and alternatively thay. entitled to possession eal her eo we Eee he Teal prea i105 ma ession in favour of t! ene ad te scee pone default of payment the suit should be dismissed. ne respondents dig not ~ the money and the widow continued in possession. y In 1907 Maina Bibi executed two deeds of gift of her husband's es, favour of some donees to whom she gave possession. The terms of the aad showed that the widow purported to convey an absolute title to the don is The respondents filed the present suit in 1915 against the widow, Maina Bay and her alienees, the appellants. The respondents claimed that the wig, could not, according to Muslim Law, transfer the properties over which she had only right or retention until the payment of dower. They claimed Pos: unconditionally, or alternatively upon payment of the proportionate am, the dower debt, after deducting the profits of the property. The apps pleaded among other things that the decree of 1902 operated as res further that the claim was barred by limitation. the estate was gifted to S°SSion lOUNt of ellants, judicay Their Lordships of the Privy Council observed that the possession of the property being once peacefully and lawfully acquired, the right of the widow to retain it till her dower debt is satisfied, is conferred upon her by the Muslim Law. They further said that it is not exactly a lien, nor a mortgage, usufructuary or other. The widow who holds possession of her husband's property until she has been paid her dower has no estate or interest in the property as has mortgagee under an ordinary mortgage. She has no right to alienate the property by sale, mortgage, gift or otherwise. In Meer Meher Ally v. Mst. Amanee,! it was said that the lien of the widow over the property in her possession is not a lien in the ordinary legal sense of the term and that a claim for dower is in the same position as that of any other ordinary creditor and ranks pari passu with them and like other debts has to be paid before the heirs are entitled to take anything. (vi) Widow in possession liable to account.—A widow in possession of het husband's estate is bound to account the other heirs of her husband for the rents and profits received by her out of the estate while she is herself entitled 0 charge interest on the dower due to her and to set it off against the net profits Tt was held in Shaikh Salima’s case, that “widow in possession of het husband's property in lieu of dower debt is liable to account to other sharers income from such property, in her possession’ 2 (ii) Can sue heirs—The widow is not disentitled to sue her husband’ heirs for the recovery of her dower out of his assets on the ground that se ® retaining the property. (viii) The right of retention whether heritabl. Ther 4 Pa . le or transferable- se if conflict of judicial opinions whethe: the wi 's ri ‘ossession transferable and heritable? mee ono 1 1WRa2i2, 2. Shaikh Salma v. Mohammad Abdul Kadar, 3. Zubair Ahmed v. Jainadan Prasad, AIR 60 Pat say? ee:| DOWER (MAHRy yee Seer ie Fight is a personal right and not a lien and it cannot Lee y Tansierred by sale, gift or otherwise, nor can it pass to her heirs on her dea 161 zane ce ae iL of the Mysore High Court that the right to hold sion is asa > oth heritable and transferable? Such right to retain 0 De exercised by her heirs after her death.’ It has been held ina case that it is heritable withoat expressing any oping rr | transferable. F 8 any opinion whether it is also 3. In another case of the Allahab: ad High Court it has be 7 both transferable and heritable. 8h Court it has been held that it is All that can now be said with certainty, is that the right to hold Possession is heritable, Though it cannot be said with certainty, whether it is transferable but the balance of authority in India is in favour of the view that it is also transferable,8 Following illustrations may make the position clear. A Muslim dies leaving a widow and a brother. The widow is in lawful Possession of her husband’s property in lieu of her dower. The brother cannot claim his share until he pays his proportionate share of the dower debt. The dower debt remains unsatisfied, and the widow sells the whole Property to Satisfy the debt, and delivers possession thereof to the purchaser. Now the duestion is—what is the effect of the sale? The sale passes to the purchaser only the widow’s share and the right to the possession of that share. Now what will be the effect of the delivery of possession to the purchaser 2 The effect will be that the brother, who was not entitled, before delivery of repscssion, to possession of his share until he paid his share of the dower debt, becomes entitled to immediate possession of his share without paying his share of debt. The purchaser is not entitled to retain possession of the rother’s share until the brother pays his share of dower debt. The reason is that the deed does not purport to transfer to him either the dower or the right Hadi Ali v, Akbar Ali, (1898) 22 All 262. ‘Hussain v. Rahim Khan, AIR 1951 Mys 4. Haliman v, Mohammad Moin, AIR 1971 Pat, 385. Azizullah v, 7 All 353. ia 5 Maing Be “Ahmad, (1925) 521A 145; ee also Zaibunnissa v. Nazim Hassan, AIR 1.197, 1 4 ue v. Mohammed, (1932) 54 All. 499; Sheikh Abstur Rahman v. Saikh Wali, (1923) Pat, 72, ul v. Shamsul Haq, (1921) All 262. Maina Bibi "Chaudhary Vakil Ahmad, (1925) 521A 145. ee162 MOHAMMEDAN LAW Nor is the widow entitled to have the hold possession lost her rj °8%*sion if Reed arene at giving up possession, she lost her right 4 1% restored back to her, for by ol) ion. possession. ; 10, Difference between Sunni and Shia Laws relating to dower: | SERIES ToT 7-7 Shia Li —j Sunni Law Shia Law | 1. A minimum limit of 10 dirhams is 1. prescribed for specified dower. There is no limit to proper dower. 2. There is no maximum limit for 3. specific dower, If marriage is dissolved by death and dower has not been specified, or it is agreed that no dower shall be payable, proper dower would be due whether the marriage was consummated or not. An agreement that no dower shall _ 5. be due is void. In the absence of an agreement 6, only a reasonable part of the - No minimum limit is Prescribeg ~ Proper dower cannot exceed 500 dirhams, Fixing of dower exceed; dirhams is considered abo; though not illegal. In such case no dower would be dye if the marriage consummated. ng 500 minable was not Such agreement by sane and adult wife is valid. The whole dower is presumed to be prompt. dower is presumed to be prompt. 11. Effect of Apostacy on Dower. under a decree of the Court is regulate; Dissolution of Muslim Marriage Act —The effect of dissolution of marriage d by statute. According to Section 5 of the t, 1939, a married Muslim woman shall 12, Suits for dower after her death, her heirs may sue for i Article 113 of the Limitation Act, for years from the date when the dower is and Limitation tf the dower is not paid, the wifea™! t. The period of limitation, accort! sS a suit to recover prompt dower is demanded, refused; or where duis recovery, 1. Mulla, Pri ciples of Mohamedan Law, 16th ed,, p, 284, feeCc EI DOWER (MAHR) 163 Amount of Dower and Condition of P; two 1 @ Where the amount of the Mah has been fixed by agreement, and the marriage has been consummated or either party has died the whole of the mahr is payable to the wife. ° (b) Where the Mahr is unspecified, and if i } \ the marriage has been onsummated or either party |} i i ji B ooo eal mish), Party has died, the wife is entitled to proper dower (c) Where the marriage is irregular and it has been unconsummated but dissolved by death of the party, then the wife is entitled to specified or proper dower whichever is less, ‘ayment.'—This may be divided into De Where the wife is divorced by the husband without consummation or valid retirement, the wife is entitled to receive: (a) Half of the specified dower, or (b) A present of three articles of dress or of their value, If divorce is given by the wife then she is not entitled for any dower. 13. Kharche-i-pandan.—The Kharche-i-pandan literally means betel box expenses and is a personal allowance to the wife customary among Muslim families of rank specially in upper India. It is also called an allowance for mewakhori (eating fruits). When the parties are minors, the contract is made between the respective parents and in such a case the wife as beneficiary is entitled to enforce it. Moreover this is fixed either before or after marriage and according to the means and position of the parties.? Muslim jurists have compared Kharche-i-pandan to ‘pin money’ found in English Law. But there is some difference in the two. The Kharche-i-pandan is payable to the wife so long as she lives with her husband and she can spend the same without any control of the husband. The ‘pin money’, however, is spent during coverture with the advice and at the instance of the husband. we 1. Tayabj fi, op cit p 116 Sikandar Ara v. Hussan Ara, 1916 Oudh 136.