Mehr (Dower) Muslim Law

Mehr (Dower)

Definition, Nature and Importance of Dower (Mahr)

“Dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage” Mulla.

According to K.P. Saxena “Dower is a sum of money or any property promised by the husband to be paid or delivered to the wife as a mark of respect for the surrender of her person after the marriage contract but generally said to be consideration for marriage.”

Further, In Saburannessa v. Sabdur Sheikh, [(1934) Justice Mitter remarked: The marriage under Muslim law is a civil contract and it is like a contract of sale. But the notion of dower given above is not correct.

Fitzgerald says: “It would be incorrect to describe the Muslim dower purely as the bride’s price.”

Baillie says, under Muslim Law ‘dower is an obligation imposed upon the husband as a mark of respect to the wife.’

Abdur Rahim rightly says, “It is not a consideration proceeding from the husband for the contract of marriage, but is an obligation imposed by the law on the husband as a 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.” (Muhammadan Jurisprudence, p. 334).

Hedaya says that “the payment of dower is enjoined by the law as a token of respect for its object, the woman.”

Further unlike sale, dower is not given to anyone except to the women herself.

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;
• to place a check on the capricious use of divorce on the part of husband; and
• to provide for her subsistence after the dissolution of her marriage, so that she may not become helpless after the death of the husband or termination of marriage by divorce.

Subject matter of dower

• A handful of dates (Abu Daud).
• A pair of shoes (Tirmizi).
• If the husband is a slave, his services to his wife (Mohit Sarkhsee).
• The services of the husband’s slaves to the wife (Fatawa-i-Alamgiri).
• Husband’s services rendered to the guardian of a minor wife (Durrul Muktar).
• Teaching Koran to the wife (Tradition). In fact, the main contention of the Muslim jurists is that anything which comes within the definition of property can be the subject-matter of dower.

Minimum and Maximum Amounts of dower

Minimum –

Hanafis 10 dirhams

Malikis – 3 dirhams.

Shafiis No minimum.

Shias. No minimum.

Maximum amount can be any amount without any upper limit. Among some of the sects of Shias, however, there is a tendency “not to stipulate for a sum higher than the minimum fixed by the Prophet for his favourite daughter Fatima, the wife of Ali, namely 500 dirhams.

Amounts of dower and conditions of payment.

1. If the marriage is consummated, and is dissolved by death:

(a) whole of the specified dower or in case of regular marriage.

(b) proper dower if unspecified,

(c) specified or proper dower, which is less, in the case of irregular marriage.

2. if the marriage is not consummated, and is dissolved by the act of party.

(i) When divorced by the husband–

(a) half of the specified dower, or

(b) a present of three articles, if unspecified – in case of regular marriage

(ii) When divorced by the wife: No dower,

(iii) If the marriage is irregular: No dower

 

Kinds of dower

Broadly, there are two kinds of dower:

• specified (Mahr i Musamma) and
• unspecified (proper or Mahr i Misl).

The specified dower has been further divided into:

(a) Prompt (Mahr Muajjal) and

(b) Deferred (Mahr e Muwajjal)

(i) Specified dower.- An amount settled by the parties at the time of marriage or after, is called specified dower. If the bridegroom is minor, his father may settle the amount of dower, Hanafi Law says that the father is not personally liable for the dower, but according to Shia Law, he will be so liable.

Prompt and Deferred dower.-Prompt dower is payable on demand, and deferred dower is payable on the dissolution of marriage by death or divorce. The prompt portion of the dower may be realised by the wife at any time before or after consummation, but the deferred dower could not be so demanded. In the case where it is not settled how much of the dower is prompt and what part of it is deferred, the Shia Law holds that the whole of dower is prompt; the Sunni Law, however, holds that only a part is prompt. This part is to be fixed with reference to (i) custom, or (ii) the status of the parties, and (iii) the amount of settled dower.

• Unspecified dower.-In such cases where dower has not been settled at the time of the marriage or after, it is fixed with reference to the social position of the wife’s family and her own personal qualifications. Help would be taken by taking into account the amounts of dower fixed in case of wife’s sisters, paternal aunts, etc., and according to the Hedaya, the wife’s age, beauty, intellect and virtue will also be considered. Such dowers are called mahr-ul-misl. One aspect of dower beneficial to the Muslim woman is that even where the parties to the marriage have not stipulated any dower, the husband remains under an obligation to pay it.

 

Remedies in case of non-payment of Dower

The rights which dower confers on the wife are threefold :

1. Refusal to cohabit.
2. Right to dower as a debt.
3. Retention of husband’s property.
4. Refusal to cohabit. Before consummation, the wife is entitled to refuse to live with her husband and refuse to him sexual intercourse so long as prompt dower is not paid to her. In a suit for restitution of conjugal rights by the husband, the non-payment of prompt dower is a complete defence if the marriage is not consummated. If the wife is minor or insane, her guardian can refuse to allow the husband to take her with him till the payment of prompt dower. If the minor wife is already in her husband’s custody, such guardian can take her back on the ground of nonpayment of prompt dower. (Nasra Begum v. Rizwan Ali, AIR 1980 All. 118). If the marriage has been consummated, she cannot refuse to cohabit. After consummation the husband’s suit for restitution would not be dismissed, but the Court may pass decree of restitution on condition of payment of prompt dower.
5. Right to dower as a debt. The dower ranks as a debt and the wife is entitled, along with the other creditors, to have it satisfied on the death of the husband out of his estate. The Privy Council in the case of Ameeroon Nissa v. Moorad Unnissa, (1855) held that the dower ranks as a debt and the widow is entitled to have it satisfied along with the other creditors, in case of death of her husband, out of his estate.
6. Right to Retention. The dower ranks as a debt, and the wife is entitled, along with other creditors, to have it satisfied on the death of the husband out of his estate. Her right is not greater than that of any other unsecured creditors, and as such, it does not entitle her to charge on any specific property of her deceased husband. She must however, be paid like other creditors, before legacies and before distribution of the estate. But if she lawfully and without force or fraud obtained in lieu of her dower actual possession of the whole or part of her deceased husband’s property, she is entitled to retain that possession as against the other heirs and as against other creditors of her husband, until her dower debt is satisfied. A widow who has not obtained possession of her husband’s estate in lieu of her dower cannot exclude other heirs of her husband from possession. They are entitled to joint possession with her. This right is sometimes called a ‘lien’ but it is not a lien in the strict sense of the term. However, this is the only kind of lien under Muslim Law, recognized in India [Hamira v. Zubaida Bibi, 8 All. 581 (PC)].

Leading Case: Maina Bibi v. Chaudhary Vakil Ahmad (1925)

Facts of the Case:

• Muinuddin’s Death: Muinuddin died in 1890, leaving behind immovable property and his widow, Maina Bibi.
• Initial Suit (1902): Respondents filed a suit against Maina Bibi for immediate possession of their shares of the estate.
• Widow’s Defense: Maina Bibi claimed the estate was gifted to her by her husband and alternatively argued she was entitled to retain possession until her dower was paid.
• Trial Court Decree (1903): The court decreed possession to the respondents on the condition they pay Rs. 25,357 to Maina Bibi within six months. If not paid, the suit would be dismissed.
• Non-Payment: Respondents did not pay, and Maina Bibi continued in possession.
• Deeds of Gift (1907): Maina Bibi executed two deeds of gift of the estate to some donees, giving them possession.

Present Suit (1915):

• Respondents’ Claim: They argued that under Muslim Law, Maina Bibi could not transfer the property as she only had a right of retention until her dower was paid. They sought possession unconditionally or upon payment of the proportionate dower debt.
• Appellants’ Defense: They contended that the 1902 decree operated as res judicata and that the claim was barred by limitation.

Privy Council’s Observations:

• Right of Retention: The widow’s right to retain possession until her dower is paid is conferred by Muslim Law. This right is not exactly a lien or mortgage but allows her to hold possession.
• No Right to Alienate: The widow has no estate or interest in the property akin to a mortgagee and cannot alienate the property by sale, mortgage, gift, or otherwise.
• Heritable Right: The right to hold possession is heritable, though its transferability remains uncertain. However, the balance of authority in India favors the view that it is transferable.

Key Takeaways:

• Widow’s Right: Under Muslim Law, a widow can retain possession of her deceased husband’s property until her dower is paid.
• Limitations on Alienation: The widow cannot transfer the property as she does not have an estate or interest in it.
• Heritability and Transferability: The right to hold possession is heritable, and there is a leaning towards it being transferable.