Concept of MAHR [dower]

 Two kinds of marriage prevailed in Pre-Islamic

arabia.
 Beena form-wife[sadaqa] after Nikah did not
accompany her husband to his home.
 Gift [Sadaq] was given to wife.
 Baal marriage [As asura marriage under hindu
law] –wife accompanies-husband pays some
amount to her parents.
 This amount was known as Mahr [consideration
for marriage]
 Concept of Mahr [dower]
 Dower/morning gift-object is to support in
the event that she survives her husband.
 It is integral part of Muslim Marriage.
 Generally no writing is required-but Mahr-
nama can be prepared.
 A/c to Mulla, it is a sum of money or other
property
 Which the wife is entitled to receive from
the husband in consideration of marriage.
 Concept of Mahr [dower]
 When the groom gives his bride the dower, it becomes
her property.
 In case of a divorce, she won't have to give up her
dower unless she is the one who requested the divorce .
 The amount promised or paid to the bride forms part of
her personal property and is of assistance to her in times
of financial need, such as a divorce or desertion by the
husband .
 While the Mahr is usually in the form of cash, it may also
be a house or viable business that is put in her name
and can be run and owned entirely by her if she so
chooses.
 Concept of Mahr [dower]
 Now it is given to wife-a provision for
rainy days.
 It may put a check on the capricious
exercise of his unlimited power of divorce.
 Because at divorce whole dower becomes
payable immediately.
 It is not consideration as used in contract
act but obligation imposed upon husband
as a mark of respect to the wife.
 Kinds of dower
 There can be no marriage without Mahr.
 It may be either specified or unspecified.
 Specified-husband and wife may settle any
amount they like .
 Unspecified/proper/customary dower-if not
settled.[age, beauty, understanding and virtue
are kept in mind while fixing proper dower]
 Major husband is obliged to pay.
 Minor husband-his father has power to make
contract of dower but contract is binding on
husband.
 Kinds of dower
 On attaining the age of puberty-he can take the
plea that he was not party to contract.[privitiy of
consideration]
 Stranger to consideration is allowed but stranger
to contract is not allowed.
 This above is exception to the general rule of
contract.
 Sunni law –father in such case is not a
surety[Not liable in case son is avoiding]
 Shia law-he is liable personally if son avoids.
 Kinds of dower
 Specified dower may be prompt or
deferred.
 Prompt-payable immediately after
marriage if demanded by wife.
 She may demand before or after
consummation.
 Wife may refuse to stay with husband so
long as dower remains unpaid.
 Kinds of Mahr
 Non payment of dower is good defence in a suit for RCR by
Husband.
 She may assign the whole or any part of dower to any person.
 Once it is confirmed[by consumation ] , no forfeiture even if on
gross misconduct or adultery on part of women.
 Not Even when she kills her husband or husband kills her[heirs will
get it]
 If dower is not confirmed by consummation, and they want to
separate then half dower or only a present[if dower not specified]
 If prompt dower is not paid, wife and after her death—heirs may
sue within 3 years.
 Limitation commences when demand is made and refused or
marriage is dissolved by death or divorce.
 Kinds of Mahr
 Mahr which is payable on the dissolution of
marriage by death or divorce or happening on
specified event.
 Deferred does not become prompt merely
because wife demands it.
 Shia law-if it is not fixed at time of marriage,
whole amount is considered as prompt.
 Sunni-part is regarded as prompt and part is
deferred.
 Kinds of Mahr
 On dissolution of marriage- wife is entitled to the
immediate payment of whole/half unpaid dower
if marriage was consummated/unconsummated.
 In case of her death, heirs can claim within 3
years.
 If amount of dower is has not been settled or
even if there is stipulation that wife will not
claim
 Wife is still entitled to proper/customary dower.
 The amount is fixed by court at the discretion of
the court.
 Kinds of Mahr
 Amount of Mahr-it may be fixed or not.
 If fixed then it can not be less 10 dirham
in sunni but not minimum fixed in shia
law.
 Shia says proper dower can not exceeds
500 dirhams [dower fixed for prophet’s
daughter]
 Dower-if husband promises to teach koran
to his wife [Prophet allowed once]
 Kinds of marriage
 Husband at any time after marriage increase it
but can not decrease it .
 He can decrease with consent of wife.
 Wife may remit the dower wholly or partially.
 It must be with free consent.
 Age will be governed by IMA[confusion exists till
today]
 Wife can also reduce the amount voluntarily.
 Mahr remitted- Wife was in great mental distress
owing to her husband’s death.[No free consent.
 Kinds of Mahr

 Wife thinks she is not getting affection

due to claim of Mahr-Not good.
 Enforcement of dower—
 The claim of wife [divorce] or widow
[death] is unsecured debt due to her from
her husband or his estate, on his death.
 In case she dies, her heirs including
husband become entitled to her dower.
 Kinds of Mahr
 Wife ‘s right is no greater than that of any other
unsecured creditor but bigger if compare with
rights of heirs except
 If she obtains possession of deceased husband’s
property lawfully , she is entitled to hold it until
her debt is satisfied.
 This right is an actionable claim.
 It can be recovered not only from husband but
also from heirs in case of death of husband.
 Dower as a debt
 If husband is not paying prompt dower, she can
live separetely and demand maintenance.
 If wife is minor, guardian may refuse to send
minor to matrimonial home till the dower is paid.
 Wife can file a suit against husband for recovery
of her dower debt.
 The heirs of are not personally liable for
payment of dower-debt.
 They are liable to the extent only of share of
debt proportionate to his share of estate.
 Widow right of retention
 Maina Bibi V Vakil ahmed 1924 IA
 When this right is lost?
 When the income and profits of property her dower debt
is satisfied.
 Where she alianates property and possession.[generally
not allowed]
 Where she voluntarily hands over possession to heirs.
 Heirs can also file a suit for share in retained property by
widow/divorcee, court will grant decree subject to
condition that share should be given to her
proportionally.
 Kharch-i-pandan
 Mewa khori
 This is enforceable by court .
 Right of retention is transferrable or not?
 Different courts , different views
 Personal right or right attached to
property.
 If property , it is transferrable.
 Confusion still exists.
 Kinds of Mahr
 Right of retention
 This right comes into existence only after the
husband’s death or upon divorce.
 She can retain only where possession is in her
hands in Lieu of her unpaid dower.
 She can not obtain its possession after death of
husband. [she should already have possession]
 This right gives no title to her. She can not
alienate the property.
 If property is mortgage property-compensation
is allowed.