“A Case Study On Dower (Mhar) In Muslim Law”
Written By: Hrishika Rawat
Mahr or Dower is a sum of money or other property to be paid or delivered to the wife. It is either specified or unspecified but in either case, the law confers a mandatory right of Mahr or Dower on wife.
The Mahr (Dower) is the wife’s property, and she has complete control over how she uses it. Neither her husband nor his relatives, nor even her own relatives, may dictate how she uses the Mahr money or property. Although Mahr was initially similar to a selling price, it is scarcely accurate to view it as the price of sexual intercourse since the foundation of Islam.
In Abdul Kadir v. Salima[1], it was stated that dower/Mahr was not a trade or payment provided by a man to a woman, but rather a consequence of the contract imposed by the law on the husband as a show of respect for the wife. Because marriage is a civil contract and sale is a typical transaction to which Muslim jurists are accustomed to referring by analogy, the term consideration has been likened to the price in a contract of sale by Mahmood J.
The woman is the property, and Mahr is the payment or compensation in a Muslim marriage. However, because non-payment of Mahr does not result in the annulment of the marriage, Mahr is not only a consideration.[2] In pre-Islamic Arbia, Sadqua was a gift to wife but Mahr was paid to the wife’s father and could, therefore, be regarded as sale-price. But after Islam, Mahr’s payment is required to be paid to their wife and not to her father, it could no longer be regarded as Sale Price.
To maintain social and economic standing, the husband declares a greater dower payment, certain that they would not be obliged to pay the dower after the marriage is completed. In the case of Hamira Bibi v Zubaida Bibi[3], the Privy Council decided for the first time in the history of dower that the sum unpaid during the marriage should be paid in line with Islamic law.
Divorce is twice: keep them in a reasonable situation or release them with love. And it is not permissible for you to take back any of what you have given them unless they both fear that they will be unable to follow Allah’s boundaries, in which case she returns what she has been given.
- Mahr or Dower has to be given to wife however she is vested with discretion to remit it.
- Mahr is non-refundable even after divorce (unless she remits it at her sole discretion) and it becomes the property of wife in perpetuity.
- Payment of Mahr is mandatory even if marriage is not consummated. But in that case, Mahr is half of the amount fixed.
- In a way, Mahr provides a check on the capricious exercise by the husband of his almost unlimited power of divorce. Even a middle class man can fix the Mahr of eleven lakhs of Ashrafis (an ashrafi would be 15-20 rupees). This sum of money would give serious cause for anxiety for a middle class man for giving divorce.
Types Of Dower
- Specified dower (mahrul-musamma)
The dower is established across the Islamic world at the time of marriage and well before the marriage. It is set by the parties’ mutual agreement. The nature of the dower is such that, once a case of dower under the agreement is brought by the spouse, the Court shall, unless otherwise directed by any official authority, award the entire sum stipulated in the contract[4].
The father in the case of Sayed Sabir Husain v. S. Farzand Hasan[5] made himself the security for the sum of dower and died as a result. The court ruled that the dead subject’s house must pay the outstanding dower to the kid.
- Unspecified dower (mahrul misal)
The husband’s obligation to pay dower is a legal responsibility that is independent of any agreement between the parties. As a result, even if Mahr is not stated, the husband is obliged to pay it. The quantum would be the sole stumbling block. If no Mahr is set, the woman will be entitled to the amount that is usual in the community or society in question, or what is appropriate in each situation.
In the case of Najmoodeen v Beebe Husseini[6], it was decided that Muslim authorities do not encourage using the husband’s social background and position while deciding the dower.
- Prompt (muajjal) dower & Deferred (Muvajjal) dower
The amount of dower paid under the defined dower is further split into two categories: prompt dower, which is paid on demand by the wife at the time of marriage or at any other time, and late dower, which is paid on demand by the woman at any time. A deferred dower, on the other hand, is paid in the event of a marital breakdown due to divorce or death. The woman may get the prompt share of the dower at any moment before or after consummation.[7]
In general, the contract, known as mahr-nama, determines which part of the dower is paid immediately and which part is paid later. In most cases, one half of the sum is set aside as prompt dower, while the other half is set aside as postponed dower. However, there is no hard and fast rule in this area. Under Islamic law, it is customary to pay the dower promptly between marriages or if the woman wants it after the marriage12.[8]
When parties do not indicate which portion of the dower is prompt and which part is postponed, the entire sum is regarded as prompt, according to Shias, in the case of Mirza Bedar v Mirza Khurram[9]. On the Sunni side, one half is deemed immediate, while the other is postponed dower.
Increase or decrease of dower
The Dower can be increased by the Husband at any moment. In the same way, the wife has the option of remitting all or part of the Dower. Hibatul Mahr or Hiba-I-Mahr refers to the Mahr remission by the wife. When a wife is ignored by her husband and believes that the only option to get him back is to waive Mahr, her Mahr remission is considered without her agreement and is not obligatory on her.[10]
Judgement of cases
Mohammed Ahmed Khan v. Shah Bano Begum[11]
The husband pays dower as a token of respect to his wife, according to the Supreme Court. Mahr is also a sum of money that must be paid either at the time of marriage or, if not paid, at the time of divorce. The court went on to say that under section 125 of the Cr.P.C, such women are also entitled to maintenance.
Hakim Masihuddin v. Abdul Wahid (2010)
According to Muslim traditions, Ishrat Bano married the defendant in Delhi. Ishrat had a daughter called Rifat from a previous marriage, and the defendant embraced her as his daughter. Both the defendant and Ishrat Bano were married for the second time, and a dower of Rupees 20,000 was set at the time of the Nikah.
The court ruled in favor of the plaintiffs, and a decree was issued for the recovery of Rupees 20,000 in dower plus future interest at the rate of 6% per annum.
Beena v. B. Mohammed (2015)[12]
The Kerala High Court ruled that because it was a matter of quick dower, the defendant was obligated to pay the dower upon the wife’s demand or at the time of marriage or dissolution of marriage. The defendant is obligated to pay the dower that was set at the time of the marriage because he never paid it.
Nasra Begam v. Rizwan Ali[13]
The Supreme Court ruled in this case that if a dower agreement is drawn up at the time of marriage, the husband is responsible for paying it, and the dower sum is recoverable by the wife under the arrangement.
Conclusion
The practices with respect to payment of dower are still continuing in Islamic Marriages Law. Payment dower continues to hold essential in Islamic marriages. The case law determined that women have unique rights to demand their unpaid dower and that their husbands are legally obligated to pay it. Women’s rights to retain their husband’s property in lieu of paying dower are still under dispute. Various High Courts and Supreme Courts around the country have voiced differing views on this issue. There is no single position of law that they have arrived at.
[1] [1886] 8 All 149
[2] Saburunnessa v. Sabdu Sheikh AIR 1934, Cal. HC
[3] Hamira Bibi, Amina Bibi And Ors. v. Zubaida Bibi And Ors., [1916] ILR ALL 581
[4] M. Hidayatullah & Arshad Hidayatullah, Mulla: Principles of Mahomedan Law (19th ed. Lexis Nexis 2013).
[5] [1938] 40 BOM LR 735
[6] [1865] 4 WR 110.
[7] Rehana Khatun v. Iqtidar Uddin, [1943] ALL LJ 98.
[8] Paras Diwan, Law of Marriage & Divorce (6th ed. Universal Law Publishing 2011).
[9] [1873] 19 WR 315 (PC).
[10] Shah Bano v. Iftikhar Mohammad 1956 Karachi HC
[11] AIR 1985 SC 945
[12] Crl. Rev. Pet. No. 92 of 2014 ()
[13] AIR 1980 All 119
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