Mahr (Dower) under Muslim Law

In Islam, a mahr (mehr, meher, or mahrieh) is a mandatory payment, in the form of money or
possessions paid by the groom, or by groom's father, to the bride at the time of marriage that legally
becomes her property. While the mahr is often money, it can also be anything agreed upon by the bride
such as jewelry, home goods, furniture, a dwelling. Mahr is typically specified in the marriage contract
signed during an Islamic marriage. Mahr is similar in legal enforceability to donatio propter
nuptias of Eastern Roman law, except some critical differences. Donatio propter nuptias was optional
and voluntary, while mahr is mandatory and required for all Muslim marriages. Mahr is not an optional
gift. The other difference was that donatio propter nuptias was a security the groom delivered to bride
or registered in her name, at the time of marriage, in exchange for dos (dowry) that came with the
bride. Mahr is a religious requirement according to Sharia.

In pre Islamic Arabia, when the institution of marriage as we know it today was not developed, many
forms of sexual relationships existed. Some were hardly better than prostitution. Men, after despoiling
their wives, often turned them out, helpless and without any means. Under this background, Islam tried
to provide a just treatment for wives. In Muslim Law, a husband can divorce his wife at his whim and
to ensure that the woman is not left helpless and without any means, the concept of Mahr was brought
in. It forces the husband to pay a certain amount to the wife either at the time of marriage or at the time
of dissolution of marriage. This amount acts as a security to the wife in case she is turned out by the
husband or in her old age.
Definition
As per Tyabji, Mahr is a sum that becomes payable by the husband to the wife on marriage either by
agreement between the parties or by operation of law. It may either be prompt (Mu ajjal) or deferred
(Mu wajjal).
According to Amir Ali, Mahr is a consideration which belongs absolutely to the wife.
In Saburunnessa vs Sabdu Sheikh AIR 1934, Cal. HC held that Muslim marriage is like a contract
where wife is the property and Mahr is the price or consideration. However, it is also true that non-
payment of Mahr does not void the marriage, so Mahr is not purely a consideration.
Importance of Mahr
Marriage in Muslim Law provides an absolute power to the husband to divorce his wife. It also allows
the husband to have multiple wives. This often results in a desperate situation for women because they
are left with no means to support themselves. Mahr mitigates this issue to certain extent. Therefore,
Mahr is very important for balancing the rights of the husband and wife. Mahr is an absolute
requirement of a Muslim marriage and so, even if Mahr is not specified at the time of marriage, the law
will presume it by virtue of the contract of marriage itself. Even if a woman stipulates to forgo the
Mahr, her declaration will be invalid.
In Abdul Kadir vs Salima AIR 1980:
Justice Mahmood has observed that the marriage contract is easily dissoluble and the freedom of
divorce and of polygamy to a husband place the power in the hands of the husband, which the Muslim
law intends to restrain by the mechanism of Mahr. Thus, right of wife to her Mahr is a fundamental
feature of the marriage contract.
Thus, Mahr serves the following purposes –

a) to impose an obligation of husband as a mark of respect to wife.

b) to place a check on the power of husband to divorce and polygamy.

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 c) to provide for subsistence of wife in the event she is divorced by the husband.

Nature of Mahr
Mahr is an essential requirement of a muslim marriage. Thus, it is obligatory for the husband to pay
Mahr to wife upon marriage. A wife has an unrestricted right to demand Mahr from husband. In Abdul
Kadir vs Salima, J Mahmood observed that Mahr may be regarded as a consideration for concubial
intercourse by way of analogy to the contract for sale. It provides the woman with the right to resist the
husband until Mahr is paid. This right is akin to the right of lien of a vendor upon sold goods while
they remain in his possession and so long as the price for the goods has not been paid. In Smt Nasra
Begum vs Rizwan Ali, it was held that right to dower precedes cohabitation. Thus, a wife can refuse
consummation of marriage until Mahr is paid.
The right of wife to her dower puts her in a similar position as that of other creditors. Just like other
creditors, she must be paid out of the property of the husband. Thus, it can be said that Mahr is a kind
of debt upon the husband incurred in marriage. However, at the same time, payment of Mahr is not a
charge upon the estate of the husband, unless an agreement is made to that effect. The interest that a
wife has over the property of her husband in lieu of dower debt is limited to existing lawful possession
towards her self enjoyment only. It does not give her the right to alienate the property. After the death
of the husband, she can sue the heirs for the dower but heirs are not personally liable for it. They are
liable only to the extent of their share in the inherited property.
A dower can also be secured by an agreement just like any other debt. In Syed Sabir Hussain vs
Farzand Hussain, a father stood surety for payment of dower by his minor son. After his death, his
estate was held liable for the payment of his son's dower.
Kinds of Mahr
Mahr is of two kinds - Specified (Mahr i Musamma) and Customary or Proper (Mahr i Misl)
Specified Dower:
Specified Dower means the dower that has been agreed upon by the parties at the time of marriage.
Such a dower can be settled before marriage, at the time of marriage, or even after the marriage. In
case of a minor or a lunatic, the guardian can fix the amount of dower. Dower fixed by the guardian is
binding upon the boy and after attaining puberty or majority, he cannot take the plea that he was not a
party to it.
A husband can settle any amount as dower to his wife, even if that leaves nothing to the heirs but he
cannot settle for less that 10 dirhams in Sunni Law.
Shia law has no minimum. For those Muslims who are so poor that they cannot even pay 10 dirhams,
they can teach the wife Quran in lieu of paying Mahr.
Specified dower can further be divided into two categories-
 Prompt (Mu Ajjal), and
 Deferred (Mu Wajjal)

Mu Ajjal - As the names suggest, Mu ajjal dower means that the dower is payable immediately upon
the marriage.

1. The wife has a right to refuse cohabitation with the husband until she is paid the dower.
2. If the wife is a minor, the guardian can refuse to allow the wife to be sent to the husband until
dower is paid.
3. Only after the payment of dower, the husband is able to enforce the conjugal rights. However, if
the marriage is consummated, the wife cannot refuse cohabitation after that.

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 4. Prompt dower does not become deferred after consummation and the wife has the right to
demand and sue for it any time.
5. The period of limitation starts after demand and refusal and it is of three years.

Mu Wajjal - It means that the dower is payable upon dissolution of marriage either by divorce or by
death of husband.

1. Even though it is deferred, an agreement to pay be before is valid and binding.

2. A wife does not have a right to claim dower but a husband can treat it as prompt and transfer
property as payment.
3. A widow can relinquish her claim to dower at the time of the funeral of the husband by reciting
a formula, but her relinquishment must be a voluntary act.
4. The interest of wife in deferred dower is a vested one and her heirs can claim it after her death.

Customary or Proper Mahr (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 will not claim any Mahr, the wife is entitled to Proper Dower. The
amount is to be arrived upon after taking into consideration the amount of dower settled for other
female members of the father's family. It is also regulated with reference to the following factors:-

1. Age, beauty, fortune, understanding and virtue of wife.

2. social position of the father
3. Dower given to her female paternal relations.
4. Economic condition of the husband.
5. Circumstances of the time.

There is no limit on the maximum limit in Sunni Law, but shia law prescribes a maximum limit of 500
dirhams, which was the amount paid by Prophet Mohammad for his daughter Fatima.
Legal Consequences of Mahr (Rights of wife in case of non payment of Mahr):

1. Dower is like a debt and the husband is liable to pay it to the wife before the consummation of
marriage. Until it is paid, the wife has a right to resist cohabitation with the husband.
2. If the wife is in possession of husband's property, she has a right to retain it until dower is paid.
She does not get a title to the property and does not get a right to alienate it.
3. Wife can sue heirs of the husband for payment of dower.
4. If the dower is deferred, the wife is entitled to it upon dissolution of marriage either due to
divorce or due to death.
5. Dower is a vested right and not a contingent right. Thus, even after the death of the wife, her
heirs can demand it.
6. If dower has not been agreed upon at the time of marriage, courts can decide the amount of
dower by taking financial status of the husband, age of wife, cost of living, property of wife,
into consideration.

Right of wife over husband's property

Dower ranks as debt and the wife is entitled, along with other creditors, to have it satisfied on the death
of husband out of his estate. Her debt, however, is no greater than any other unsecured creditor except
that if she is lawfully in possession of the husband's property, she is entitled to that possession until she

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is able to satisfy her debt by the rents or issues accruing out of the property. She is also entitled to the
possession against the heirs of the husband until her dower is satisfied.
Limitations on right of retention –
This right arises only after the death of the husband or after divorce. During the course of marriage, a
wife does not have any right to retain the property.
She should have obtained the possession lawfully.Right to retention is not analogous to mortgage.
Thus, she does not get title to the property in case dower is not paid. Further, if the property is
mortgaged, the wife cannot retain possession against the mortgagee.
Wife cannot alienate the property. She has to satisfy the dower only though the rents or other issues
accruing from the property.
In a leading case of Maina Bibi vs Chaudhary Vakil Ahmad, one Moinuddin died leaving his widow
Miana Bibi and some property. The respondents instituted a suit against the widow for immediate
possession of the property. However, the widow claimed that she had the right to possession until her
dower was paid. It was held that the respondents could have the possession of their share of the
property after paying the dower to the widow. The respondents did not pay and the widow continued
possession. Later, the widow sold the property. The deed showed that the widow tried to convey an
absolute title to the property. The respondents again filed the suit claiming that the widow did not have
the right to transfer property because she only had a right to retain and did not have any right to title for
herself. It was held by the Privy Council that a widow has the right to retain the possession of the
property acquired peacefully and lawfully, until she is paid her dower. Further, she has no right to
alienate the property by sale, mortgage, gift, or otherwise.
Remission of Mahr:
A husband can increase the amount of debt at any time, though he cannot decrease it. A wife can remit
the dower wholly or partially. The remission of Mahr by wife is called Hibe e Mahr. However, she
should have attained puberty to do so. She does not have to be a major to relinquish Mahr, only
attaining puberty is sufficient. The remission made by the wife should be with free consent. Thus,
in Shah Bano vs Iftikhar Mohammad 1956 Karachi HC, when a wife she was being ignored by
husband and thought that only way to win him back was to waive Mahr, her remission of Mahr was
considered without her consent and was not binding on her.
Differences between Shia and Sunni Law on Mahr
Sunni Law Shia Law
Minimum of 10 dirhams for specified dower. No minimum limit.
Dower above 500 dirhams is
No maximum limit for proper or specified dower. considered abominable but
legal.
If dower was not decided or marriage was done on condition that no Dower shall be payable only if
dower will be paid, dower shall be payable if marriage is dissolved by the marriage was consummated
death irrespective of whether the marriage was consummated or not. in this case.
Such an agreement by sane and
An agreement that no dower shall be payable is void.
adult wife is valid.
In absence of a contract, only a reasonable part of the dower is Whole of dower is presumed to
considered to be prompt. Rest is deferred. be prompt.

It is suggested to go through the class notes also.

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