Dower

Before the advent of Islam in Arabia, generally there was two types of marriage in
practice i.e. Ball & Beena.

In Ball marriage, a man who wanted to marry a girl used to approach her guardian
and after giving him some money or property as compensation or price of the girl
called Mahr (sale price), used to take the girl with him as his wife.

On the other hand in Beena marriage the man used to approach the girl directly
and after giving her money or property called Sadaq, the wife was called Sadeeqa
(girlfriend), lived with her. She did not accompany the husband.

When Islam was promulgated, Prophet Muhammad retained the practice of

payment with different idea as an obligation to pay to the wife and not to her
guardian, as not a gift or price but as a mark of respect towards her.

Definition of Dower

Mahr or dower is a sum, which is payable by the husband to the wife on marriage,
either by agreement between the parties or by operation of law.

Justice Mahmood in Abdul Kadir v. Salima [I.L.R. (1886) 8 All. 149 (157)]
defines 'Dower under the Mohammedan Law, is a sum of money or other property
promised by the husband to be paid or delivered to the wife in consideration of the
marriage and even where no dower is expressly fixed, the law confers the right of
dower upon the wife as necessary effect of marriage.

According to Ameer Ali “Dower is a consideration which belongs absolutely to the

wife”.

According to Hedaya, “the payment of mahr is enjoined by the law, merely as a

token of respect for its object (the woman), wherefore the mention of it is not
absolutely essential to the validity of a marriage, and for the same reason, a
marriage is also valid although the man were to engage in the contract on the
special condition that there should be no mahr”

Object of Dower

1. To impose an obligation on the husband to give something as a mark of

respect of the wife.

2. To place a check on the capricious use (unrestricted right) of divorce on the

 part of husband; and

3. To provide a wife help or 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.

Classification of Dower

The basis of classification of dower is–

(a) Whether it has been fixed by parties or is fixed by operation of law, and

(b) Whether the dower may be claimed by wife any time or only upon the
dissolution of marriage.

Dower (Mahr)

Unspecified Dower or Specified Dower

Proper Dower or (Mahr-e- Musamma)
Customary Dower
(Mahr-e-Misl)

Prompt dower
(Mahr-i- Muajjal)

Deferred dower
(Mahr-i- Muwajjal)

Specified Dower (Mahr-i-Musamma)

The sum of money or any property which is fixed at the time of the marriage, is
called the specified dower.

It may be fixed by the parties either before the marriage or at the time of marriage
or even after the completion of the marriage.

A dower may be settled either orally or may be specified in a written agreement

called (Mahr-nama).
If any marriage of a minor or lunatic is contracted by a guardian, such guardian can
fix the amount of dower and it is binding on the minor and on attaining the age of
puberty he cannot take plea that he was not a party to it.

Dower may be fixed even after the marriage of such minor or lunatic, provided that
at the time of settlement, the boy is still minor or lunatic.

Any kind of property, movable or immovable, tangible or intangible, and of

any value may be settled, but that money or property should be in existence.

The minimum amount of the specified dower under Sunni Law is 10 Dirhams
(between 3 and 4 Rupees) while in Shia Law no minimum amount of specified.
Those Muslims who are not in position to pay even 10 Dirhams, the prophet has
directed them to teach Quran to the wife in lieu of dower. Now no limit to the
maximum, minimum has become obsolete.

The amount of the dower may be increased subsequently by the husband and the
wife is entitled to claim this additional amount, but the husband cannot reduce the
amount. However, the wife can herself reduce or remit her claim to the whole or a
part of the specified dower. This is called remission of dower.

Specified dower is again subdivided into –

(i) Prompt dower

(ii) Deferred dower.

Prompt Dower – It is payable immediately after marriage on demand, unless

delay is stipulated for or agreed.

The wife may refuse to cohabit with her husband.

If the wife is minor, her guardian has a right to not to send her to her husband's
house till the payment of prompt dower. In such conditions, the husband is bound
to maintain the wife, although she is living apart from him.

A husband becomes entitled to enforce the conjugal rights only after the payment
of prompt dower unless the marriage is already consummated.

If any delay is caused in the payment, the wife is entitled to get a simple interest on
that amount.

The period of limitation for the suit 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.

Deferred Dower – It is to be paid on dissolution of marriage either by death or

divorce or upon the happening of a specified event, if so agreed.

If the specified dower has been fixed as deferred, the wife cannot claim it before
the termination of marriage.

If the marriage is dissolved by the death of wife, her legal heirs are entitled to
claim the deferred dower. The widow may relinquish her dower at the time of her
husband's funeral.

If the amount of dower does not show, what portion is prompt and what is
deferred, under Shia law the whole of the dower is regarded as prompt while in
Sunni law half of the total is regarded as prompt and half as deferred.

Unspecified Dower or Proper Dower (Mahr-i-Misl)

If the amount of dower is not fixed by the parties at the time of marriage contract
or even if the marriage has been contracted that she would not demand any dower,
the wife is entitled to proper dower, fixed by the courts of law.

There is no definite amount but following principles of law are taken into
consideration–

 The personal qualifications of the wife i.e. her age, beauty, fortune,
understanding and virtue.

 The social position of wife's father.

 Dower given to her female paternal relations.

 Economic conditions of her husband.

 Circumstances of times.

Under Sunni law there is no limit to the maximum amount of proper dower while
in Shia law the amount should not exceed 500 Dirhams, which was fixed by
prophet in the marriage of his daughter Fatima.

Wife's Rights and Remedies on Non-payment of Dower

Muslim law confers upon a wife (or widow) some rights to compel payment of her
dower

Refusal to Cohabit : If the marriage has not been consummated and the dower is
prompt, the wife has a right to refuse to give her company to the husband till the
prompt dower is paid.

If the wife is minor or an insane, her guardian also has right not to send her to her
husbands house till payment of prompt dower and during such period if she is
living apart the husband is bound to maintain her.

If the minor wife is already in the custody of her husband, such guardian can take
her back.

Where the consummation has taken place even once, the wife's right to refuse
consummation is lost but the husband's suit for restitution of conjugal rights will
not fail. However, the court has a discretion, even in such a case, to pass a decree
for restitution of conjugal rights subject to the condition of payment of prompt
dower.

In Anis Begum V Muhammad Istafa Wali Khan [(1933) 55 All. 743] the court
held that a wife has a right to take simple interest of unpaid dower.

Right to Dower as a Debt:

If the marriage has been consummated, the wife has no right to claim the dower by
refusing conjugal rights but she can recover her unpaid dower by refusing conjugal
rights but she can recover her unpaid dower by maintaining an action in a court of
law.

Unpaid dower is an actionable claim and she may realise it in the same manner as a
creditor recovers his loan.

So, if the husband is alive and dower remains unpaid, she may recover it by
maintaining suit against him. If the husband dies, she is entitled to recover it from
the legal heirs of the husband but the legal heirs are not personally liable.

Their liability is to extent to which they get the property of the deceased.

For example- If the unpaid dower is Rs.6000/- and a legal heir's share in the
property is 1/6 then he is liable to pay only Rs. 1000/- to the widow.

Widow's Right of Retention to the Husband's Property:

After the death of the husband the most effective method of recovering the dower
is the exercise of right of retention the husband property till her dower debt is paid.

No greater than that of any other unsecured creditor.

If she lawfully obtains possession of the whole or part of his estate, she is entitled
to retain that possession as against others heirs and as against other creditors of her
husband.

This right of retention does not give her any title to the property i.e. she cannot
alienate the property in any manner (either by sale or by gift).

This right is for a special purpose, to get her unpaid dower speedy.

If she is not in possession or has lost possession, she cannot claim to obtain it.

Some special features of this rights

1. No Right during Marriage: This right is available only on the dissolution of

the marriage either by after the death of her husband or by divorce, but not before.

2. Actual Possession: This right means the right to continue in the possession. To
get this right, the property must be in the possession of the husband at the time of
the termination of the property and continued to be on. If she has no actual
possession at that time, she cannot afterwards acquire possession in lieu of this
right. The wife should have obtained possession lawfully and without force or
fraud.

3. Only Possessory Right: This right is simply a possessory right and does not
give any title or right of ownership to the widow. Her right is to retain possession
against the legal heirs of the husband and ownership vests in the husband's legal
heirs including herself.

4. Property is Non-transferable: The property in possession of the widow in lieu

of unpaid dower cannot be transferred by her. Not being the owner she has no right
to transfer the property (either by sale or gift). Any such transfer will be void and
the transferee will not get any title or interest in the property.

5. Widow in Possession Liable to Account: A widow who is in possession of her

husband's estate is liable and bound to give account to the other heirs of her
husband for the rents and profits received by her out of the state, on the other hand
she is legally entitled to charge interest on the dower due to her and to set it off
against the net profits.

6. Transferability of the Right of Retention: It is an exclusive right, available to

a widow only because her dower remains unpaid.

7. Heritability of the Right of Retention: This right can be inherited by the legal
heirs of the widow provided her own retention was lawful and she died during such
retention

Case of Maina Bibi v Chaudhri Vakil Ahmand [(1924) 52 IA 145]

Muinuddin and Maina Bibi were lawfully married husband and wife. After the
death of Muinuddin in 1890, Maina Bibi retained certain immovable properties of
her deceased husband in lieu of her unpaid dower.

No payment of her dower was made by the legal heirs of the husband including
Vakil Ahmad and she continued in her possession.

In 1907, Maina Bibi made a gift of those properties to others and also gave
possession to the donees.

After this Vakil Ahmad and others heirs filed the suit for getting possession over
the properties on the ground that the gift was void because during retention widow
had no right to transfer the properties.

It was held by Privy Council that a widow who is in possession of her husband's
estate in lieu of unpaid dower is not owner of the properties. The only right is to
continue to hold the possession till the dower is not paid by the heirs.

The court further observed that failure of the payment of dower by the heirs would
not make her an absolute owner of the immovable property of which she had been
in possession.

Any kind of transfer of the retained property, whether it is sale, gift or exchange
etc. is void and cannot take effect.

Remission of Dower

Just after the completion of a marriage the right to mahr is immediately vested in
the wife. After getting this right she may or may not enforce it against her husband.

She may relinquish or remit her right to mahr in favour of her husband.

She may do so either out of natural love or to gain affection from her husband.
This act is termed as remission of mehr by the wife.

The wife may remit the whole or only a part of her specified mehr.

After a lawful remission, the husband is under no legal obligation to pay the
remitted part of mehr to the wife.

It may be noted that if before the marriage a woman agrees that after marriage she
would not demand any mahr or she would not exercise her right to mehr, the
agreement is void because mehr is inseparable from a Muslim marriage. But, after
the marriage, „the right to mehr‟ comes in her hands and becomes her own
property. She is then free to deal with this property as she likes.

Therefore, she may surrender or make a gift of the whole or a part of the mehr in
favour of her husband. However, remission of mehr by the wife must be lawful.