Name- Moksha Shah

A043
3rd year BA./LLB.
Subject- Family Law

Mahr under Muslim Law

Abstract:- Mahr is often referred to as "dower" in English, that holds significant

importance in Islamic jurisprudence, serving as a cornerstone of Muslim matrimonial
contracts. This abstract explores the multifaceted dimensions of Mahr within the framework
of Muslim law, encompassing its legal, social, and cultural implications. Legally, Mahr
constitutes a fundamental component of marriage contract (nikah), wherein the groom
commits to providing a predetermined gift or financial sum to the bride. Its primary objective
is to ensure the financial security and autonomy of the bride, safeguarding her rights within
the marital union. Mahr operates as a form of tangible security, delineating the groom's
financial obligations towards his spouse and symbolizing his commitment to her welfare.
However, the interpretation and implementation of Mahr can vary across different Muslim
communities, influenced by regional customs, religious interpretations, and socio-economic
factors. While Islamic law mandates the provision of Mahr as a right of the bride, disparities
may exist in its full fillment, raising questions of gender equity and justice within the
matrimonial contracts. In conclusion, Mahr represents more than a mere financial transaction
within Muslim matrimonial contracts. It embodies legal, social, as well as cultural
dimensions, shaping the dynamics of marital relationships and reflecting broader societal
norms and values. Understanding Mahr entails a nuanced examination of its legal
foundations, socio-cultural significance, and evolving interpretations in contemporary
contexts.

Keywords:- Mahr, Dowry, Dirham, Islam , Muslim, wife

Introduction:- India is a secular country. The term ‘secular’ is interpreted as that there is no
religion of the State. It treats all the religions equally. The Indian Constitution guarantees that
every person has the freedom of conscience and the right to profess, practise, and propagate
religion. This leads to the creation of different personal laws with respect to religion. All Muslims
are generally governed by Muslim personal law. The Muslim personal law contains different
legal provisions regarding marriage, dower, divorce, will, maintenance, etc. As already stated
above, the concept of dower for all Muslims are governed by Muslim personal law. Under
Muslim law, dower is known as ‘mahr’. Mahr is a sum of money that the husband has to pay to
the wife on marrying her. Through this article, we will be understanding the concept of mahr
under Muslim law. In the old pre-Islamic Arabia, the institution of marriage was way different
than today it is. At that time, different forms of sexual relationships were prevalent between men
and women. The women were usually victims of the abuse. Men used to leave their wives after
despoiling them. There was no such proper system of law regarding marriage, thereby men used
to refuse to give any monetary help to the wife after leaving them. Shighar form of marriage was
observed during those times. In this form of marriage, a man would give his daughter or sister in
marriage to another in consideration of the latter giving his daughter or sister in marriage to the
former. In this form of marriage, the wives would not get any dower. In the literal sense, the
Arabic term ‘mahr’ means dower. It is a sum of money that becomes payable by the husband to
the wife on marriage. The mahr is executed either by agreement between the parties or by
operation of law. Various jurists have tried to define mahr.

The conflict between the terms ‘mahr’ and ‘dowry’

The literal meaning of the term ‘mahr’ is dower, however, the two terms have some distinct
differences. In Muslim law, the concept of mahr is to ensure women’s financial security.
However, dowry is a social evil. Dowry is generally asked by the kin of the bridegroom from the
bride’s family as a gift to the marriage. Under Indian law, dowry has been defined in Section
2 of the Dowry Prohibition Act, 1961. It is thus to be noted that mahr and dowry are two
different concepts. One ensures security and the other is a social evil.

Classification of dower
The dower may be classified into:

 Specified dower: In this kind of dower, the amount of dower is stated in the marriage
contract. The dower may be settled between the parties either before the marriage or at
the time of marriage or after the marriage. If the marriage takes place of a minor or
lunatic boy then the amount of dower can be fixed by the guardian. The husband can
settle any amount of dower. However, he cannot settle the amount of dower less than
ten Dirhams according to Hanafi law and three Dirhams according to Maliki law. Shia
law does not state any minimum amount of dower. In the case of those husbands who
are very poor and are not in a position to pay ten Dirhams, then according to the
Prophet, they are directed to teach the Quran to the wife instead of the dower. There is
no maximum limit on the amount of dower. The specified dower can be classified
into:

1. Prompt dower: It is payable immediately after marriage on demand.

2. Deferred dower: It is paid after the dissolution of marriage either by death or divorce.

 Proper or customary dower: If a marriage is completed without the amount of dower

fixed in the marriage contract or marriage is completed on the condition that the wife
should not claim any dower, then the wife is entitled to proper dower. The amount of
proper dower is decided by taking into consideration the amount of dower settled
upon other female members of the father’s family. The proper dower is regulated with
reference to the following factors:

1. Personal qualifications of the wife. Like her age, beauty, virtue, fortune, etc.
2. Social position of her father’s family.
3. Dower given to her female paternal relations.
4. Economic conditions of husband.
5. Circumstances of time.
Under Sunni law, there is no maximum limit for a proper dower but under Shia law, the proper
dower should not exceed 500 Dirhams.

Rights of wife when dower is not paid to her

Every woman under Muslim law has the right to claim a dower on the commission of marriage.
Like any other law, if such a right is violated, then the woman has some remedies. Muslim law
confers upon a wife or a widow to some rights to compel to get the payment of dower:

Refusal to cohabit
If the marriage has not been consummated then the wife has a right to refuse to cohabit with her
husband as long as the prompt dower is not paid. If the wife is minor or insane, then the guardian
has a right to refuse to send her to her husband’s house until the payment of a prompt dower is
given. During the period, the wife stays in her guardian’s house, the husband is bound to maintain
her.

However, if consummation has taken place after marriage, then the wife loses the absolute right
to insist on the payment of prompt dower. This is because the husband can file a suit for
restitution of conjugal rights. If the wife still refuses to cohabit with her husband, then she is only
entitled to a decree conditional payment on dower. In the case of Rabia Khatoon v. Mukhtar
Ahmed, (1966), it was held 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.

In deferred dower, the payment of dower is a contingent event. Therefore, the question which
arises is whether the wife can refuse to the husband is conjugal rights or not. There has been a
difference of opinion regarding this. Famous jurist, Abu Yusuf is of the opinion that she can
refuse to cohabit if a deferred dower is not paid. However, famous jurist Imam Mahmood, Shia
Law is of the opinion that the wife cannot refuse to cohabit in cases of deferred dower.

Right to dower as a debt

According to the lordships of Privy Council, it was held that the dower ranks as a debt and the
widow is entitled along with other creditors to have it satisfied on the death of the husband, out of
his estate. If the husband is alive, then the wife can recover the dower by instituting a suit against
him. In cases where the dower debt is remaining unpaid, the widow can enforce her claim for the
dower debt by filing a suit against the husband’s heirs. However, the heirs are only liable to the
extent to which and in proportion to which they inherit the property of the deceased husband.

In the case of Syed David Hussain v Farzand Hussain (1937), it was held that a Shia Muslim
stood surety for the 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.
Right to retain possession in lieu of unpaid dower
Dower ranks as a debt and the wife is entitled along with the other creditors to have it satisfied on
the death of her husband out of his estate. Her right is however no greater than that of any other
unsecured creditor except that if she lawfully obtains the position 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 position until it is satisfied. The right to retention does not give her any title to the property.
Therefore, she cannot alienate the property.

A widow’s right to retain possession of her husband’s estate in lieu of a dower is a photo special
purpose. It is by a way of compulsion to obtain speedy payment of the dower which is an
unsecured debt.

Effect of apostasy on dower

Apostasy has a huge impact on Muslim personal law. It is believed that the apostasy of man from
Islam denotes immediate dissolution of marriage. On the other hand, apostasy by the wife from
Islam does not denote immediate dissolution of marriage. As per Section 5 of the Dissolution of
Muslim Marriage Act 1939, a married Muslim woman shall have the same rights in the respect of
the dower under the dissolution of marriage under this Act. The dissolution of marriage under the
Act, even though made after the apostasy of the wife does not take away her right to dower.

Suit for dower and limitation

If the dower is not paid to the wife while she is alive, then after her death, her heirs can claim it.
The period of limitation as per the Limitation Act, 1963, for a suit to recover prompt dower is
three years from the date when the dower is demanded, or refused. In the case of deferred dower,
the period of limitation is 3 years, from the date when the marriage is dissolved by death or
divorce.

Conclusion
The concept of mahr in Islamic law is beneficial for the woman. It ensures financial security so
that she is not left helpless after the death of the husband or after the termination of the marriage.
It also places a check on the capricious use of divorce by the husband. It is also believed that the
mahr is a pivotal custom in the marriages of Muslims.

References

 Mohammedan Law, Aqil Ahmed.

 https://www.myadvo.in/blog/difference-between-mahr-and-dowry/
 http://www.legalserviceindia.com/legal/article-5105-mahr-under-muslim-law.html