Importance of Mahr in a Muslim marriage

What is Mahr?
What is the importance of Mahr in Muslim marriage?
“Dower is a debt in nature.”, what are its legal consequences?
What are the rights of a wife at the non-payment of the dower?
What are the rights of a Muslim widow to retain possession of her husband’s estate in lieu of her dower? Who can change the Mahr?
Discuss various kinds of Mahr.
What is the difference between deferred and non-deferred Mahr?

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 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 that 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 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 a certain extent. Therefore, Mahr is very important for balancing the rights of the husband and wife. Mahr is an absolute requirement of 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, J Mahmood has observed that the marriage contract is easily dissoluble and the freedom of divorce and of polygamy to a husband places the power in the hands of the husband, which the Muslim law intends to restrain by the mechanism of Mahr. Thus, the right of a wife to her Mahr is a fundamental feature of the marriage contract.
Thus, Mahr serves the following purposes –

to impose an obligation on the husband as a mark of respect to the wife.
to place a check on the power of the husband to divorce and polygamy.
to provide for the subsistence of the wife in the event she is divorced by the husband.

Nature of Mahr
Mahr is an essential requirement of Muslim marriage. Thus, it is obligatory for the husband to pay Mahr to the wife upon marriage. A wife has an unrestricted right to demand Mahr from her husband. In Abdul Kadir vs Salima AIR 1980, J Mahmood observed that Mahr may be regarded as a consideration for connubial 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 AIR 1980, it was held that right to dower precedes cohabitation. Thus, a wife can refuse consummation of marriage until Mahr is paid.

The right of a 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 the 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.

Legal Consequences of Mahr (Rights of wife in case of non-payment of Mahr)

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.
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.
Wife can sue heirs of the husband for payment of dower.
If the dower is deferred, the wife is entitled to it upon dissolution of marriage either due to divorce or due to death.
Dower is a vested right and not a contingent right. Thus, even after the death of the wife, her heirs can demand it.
If dower has not been agreed upon at the time of marriage, courts can decide the amount of dower by taking the financial status of the husband, age of the wife, cost of living, and property of the 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 is able to satisfy her debt by the rents or issues accruing out of the property. She is also entitled to 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 1924, 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.

Who can change 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.

Kinds of Mahr

Mahr is of two kinds – Specified (Mahr i Musamma) and Customary or Proper (Mahr i Misl)

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 dhirams in Sunni Law. Shia law has no minimum. For those Muslims who are so poor that they cannot even pay 10 dhirams, 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.

The wife has a right to refuse cohabitation with the husband until she is paid the dower.
If the wife is a minor, the guardian can refuse to allow the wife to be sent to the husband until dower is paid.
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.
Prompt dower does not become deferred after consummation and the wife has the right to demand and sue for it any time.
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.

Even though it is deferred, an agreement to pay be before is valid and binding.
A wife does not have a right to claim dower but a husband can treat it as prompt and transfer property as payment.
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.
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 –

age, beauty, fortune, understanding, and virtue of wife.
social position of the father
dower given to her female paternal relations.
the economic condition of the husband.
circumstances of the time.

There is no limit on maximum limit in Sunni Law, but shia law prescribes a maximum limit of 500 dhirams, which was the amount paid by Prophet Mohammad for his daughter Fatima.

Differences between Shia and Sunni Law on Mahr

Sunni Law	Shia Law
Minimum of 10 dhirams for specified dower.	No minimum limit.
No maximum limit for proper or specified dower.	Dower above 500 dhirams is considered abominable but legal.
If dower was not decided or marriage was done on condition that no dower will be paid, dower shall be payable if marriage is dissolved by death irrespective of whether the marriage was consummated or not.	Dower shall be payable only if the marriage was consummated in this case.
An agreement that no dower shall be payable is void.	Such an agreement by sane and adult wife is valid.
In absence of a contract, only a reasonable part of the dower is considered to be prompt. Rest is deferred.	The whole the dower is presumed to be prompt.