Assignment-Family Law -II Topic- Dower

(With reference to Mohammedan Law)

THE ICFAI UNIVERSITY, DEHRADUN

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A ASSIGNMENT ON – Dower
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SUBMITTED TO: Dr. Ashish Kumar Singhal

ASSOCIATE PROFESSOR, FAMILY LAW
COURSE: BA.LL.B. (Hons.) II Year
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SUBMITTED BY: Davinder Singh

ENROLLMENT NO: 21FLICDDN02176
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SUBMISSION DATE: 17/4/2023

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ICFAI LAW SCHOOL,

THE ICFAI UNIVERSITY, DEHRADUN

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Assignment-Family Law -II Topic- Dower
(With reference to Mohammedan Law)

Abstract:

According to Muslim law, "Mehr" (dower) refers to money or other items that the
wife is entitled to receive from the husband as payment for the marriage, albeit this
payment is different from that of a civil contract. As a sign of respect for the wife,
the husband is required to pay dower. The primary purpose of the dower is to
provide for the wife's subsistence after the dissolution of her marriage, so that she
does not become helpless upon the death of the husband or the termination of the
marriage by divorce. Mehr was also taken into account as part of maintenance
while determining the amount of maintenance under Section 125 of the Criminal
Procedure Code of 1973. Because there is no clear cut definition of the dower
(Mehr) amount in Muslim Personal Laws, different High Courts and the Supreme
Court of India have delivered varied interpretations of Mahr in different
circumstances.

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Assignment-Family Law -II Topic- Dower
(With reference to Mohammedan Law)

Introduction:

India is a secular nation. The term'secular' is considered to mean that the

state has no religion. It treats all religions fairly. The Indian Constitution
provides everyone the freedom of conscience and the right to profess,
practise, and promote religion. This results in the development of many
personal religious laws. Muslim personal law governs the majority of
Muslims. The Muslim personal law covers several legal laws about
marriage, dower, divorce, will, support, and so on. As was already said,
Muslim personal law governs how the concept of dower is to be applied
to all Muslims. Dower is referred to as "mahr" in Muslim law. Mahr is
an amount of money that the husband must give the wife upon their
marriage. We will comprehend the meaning of mahr in Muslim law.

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Assignment-Family Law -II Topic- Dower
(With reference to Mohammedan Law)

Dower :
In pre-Islamic, Arabia, when the institution of marriage was not developed many forms of sex
relationships between man and woman were in vogue. Some were temporary and hardly better
than prostitution. Men, after despoiling their wives, often turned them out, absolutely helpless
and without any means, the ancient custom to settle certain sums for subsistence of the wife in
the event she was turned out was often disregarded, as there was no organized system of law.
Sometime the guardian of the bride used to take the dower himself; but it is not certain whether it
was a mere violation of the usage that the bride should take the dower, or whether it shows that
dower was originally the price paid for the bride to her parents. A device was in vogue under the
name of SHIGHAR marriage in which a man would give his daughter or sister in marriage to
another in consideration of the latter giving his daughter or sister in marriage to the former. Thus
neither of the wives could get a dower. False accusations of unchastity were frequently used to
deprive the wife of her dower. Promulgation of Islam gave a new form of nikah to marriage,
abolished this ancient custom and forbade unjust acts towards the fair sex, as is evident from the
Quran. If you separate yourself from your wives, send them away with generosity: it is not
permitted to you to appropriate the goods you have once given to them. Thus the custom
originated in ancient times with the payment which husbands often made to their wives as means
of support in their old age or when turned out by them. In Islamic law Mahr belongs absolutely
to the wife, although historically speaking it is more akin to brides price than gift or anything
else.

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Assignment-Family Law -II Topic- Dower
(With reference to Mohammedan Law)

Origin of Mahr:
The institution of marriage was very different from what it is today in ancient pre-Islamic
Arabia. Different types of sexual connections between men and women were common at the
time. The abuse usually targeted the women. After despoiling their spouses, men used to
abandon them. Men used to refuse to provide any financial assistance to the wife when they
separated because there was no effective system of law governing marriage at the time. In those
days, the Shighar form of marriage was prevalent. In this kind of union, one man would wed his
sister or daughter to another in exchange for the latter wedding his sister or daughter to the
former. The wives would not receive any dower in this type of marriage.
Beena marriage was another type of marriage. In this type of marriage, the husband visited the
wife but did not bring her home; the wife was known as Sadiqa, and a gift known as Sadaq was
presented to the wife upon marriage. Sadaq is thought to have been the earliest kind of dower in
the Islamic tradition.
The concept of mahr was introduced in the Baal marriage. In the Baal form of marriage, Mahr
was a type of gift or compensation paid to the wife's parents. The mahr was often owned by the
wife's parents or guardians. However, the ancient type of marriage was gradually phased out
through time. Marriage took on a new form after the spread of Islam. This type of marriage
claimed that if a man divorces his wife, he should send her away with generosity, and that the
man should not take back the goods that were once provided to the wife.

Meaning of mahr:
The Arabic word'mahr' literally means "dower." It is a sum of money paid by the husband to the
wife upon marriage. The mahr is carried out either by consent of the parties or by operation of
law. Several jurists have attempted to define mahr.
According to Wilson, mahr or dower was a form of consideration for the wife's surrender of a
person.A dower, Mulla defines a dower as "a sum of money or property that the wife is entitled
to receive from the husband in consideration of marriage."

A dower, in Ameer Ali's opinion, is a type of payment that belongs to the wife.

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Assignment-Family Law -II Topic- Dower
(With reference to Mohammedan Law)

Comparing consideration in a contract to consideration in Islamic

law:
The term 'consideration' has been identified in the preceding definitions. The misunderstanding
arises from whether the term 'consideration' is identical to or distinct from that used in contracts.
Various cases and real-life observations have confirmed that the term 'consideration' differs from
that used in the contract. A contract is normally void if there is no consideration, but if the dower
or consideration is not stated during the marriage, the marriage is not void. Dower, on the other
hand, is required by law to be paid to the woman upon marriage. In Islamic law, consideration
refers to a legal responsibility imposed on the husband as a display of respect for the wife.

The difference between the words "mahr" and "dowry":

Mahr literally means "dower," however there are some key distinctions between the two words.
Mahr is a legal principle in Islam that protects women's financial security. Dowry, however, is a
societal vice. The bride's family is typically asked for dower by the bridegroom's relatives as a
gift for the union. The Dowry Prohibition Act of 1961's Section 2 defines dowry under Indian
law. Therefore, it should be highlighted that dowry and mahr are two distinct ideas. One
promotes security, while the other is bad for society.

Dower classification:

Specified dower:
The amount of dower is specified in the marriage contract in this type of dower. The dower may
be settled between the parties prior to marriage, during marriage, or after marriage. If a minor or
crazy boy marries, the amount of dower can be determined by the guardian. Any amount of
dower can be settled by the spouse. However, he cannot settle the sum of dower that is less than
ten Dirhams under Hanafi law and three Dirhams under Maliki law. Shia law makes no
requirement for a minimum amount of dower. In the instance of husbands who are really
destitute and cannot afford to pay ten Dirhams, the Prophet says they are instructed to teach the
Quran to the bride rather than the dower.

Unspecified dower:
The obligation to pay dower is a legal obligation on the husband's behalf and is independent of
any contract between the parties. As a result, even if it is not indicated, the husband is obligated
to pay Mahr. The only question is the quantum. If no Mahr is set, the wife is entitled to the

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Assignment-Family Law -II Topic- Dower
(With reference to Mohammedan Law)

amount that is usual in the community or in the local society, or what is appropriate in each
individual case. What is appropriate in each given circumstance will be determined as follows:

 With reference to her father's family's social standing.

 Her own personal qualifications.
 The husband's social status. But husband's means are unimportant.
 Her age, beauty, fortune, understanding, and virtues.
 Mahr fixed earlier in the family (i.e., Mahr fixed for the wife's father, brother, uncle,
sister, etc.

Prompt dower:
Muajjal is a technical name for Prompt, whereas Muvajjal is a technical phrase for Deferred.
Muajjal is derived from a word that means 'hasten' or 'to continue,' whereas Muvajjal is derived
from a root that means 'delayed' or 'deferred.'The prompt dower is paid immediately after the
marriage, but the postponed dower is paid later. Dower becomes due at the dissolution of the
marriage or the occurrence of a specified event. When dowry is fixed, it is customarily divided
into two equal halves, one of which is paid at immediately or on demand and the other upon the
husband's death, divorce, or the occurrence of some specified event. The presumption in Ithna
Ashari Law is that the entire dower is immediate, while the position in Hanafi Law is different.
Ideally and normally, the entire Mahr is required to be provided swiftly, but in an earlier
instance, the Full Bench concluded that the wife's family's usage (custom) is the important
consideration, and in the lack of proof of custom, the assumption is that one half be awarded
promptly. However, the proportion can be adjusted to fit individual circumstances.

Deferred dower:
Deferred Dower is payable following the dissolution of a marriage, whether by death or divorce.
Wife cannot make a claim for the payment of deferred dower during her lifespan or the duration
of the marriage. Widow can waive her entitlement to receive postponed dower money.

Dower amount is fixed for each school of thoughts:

1. Hanafi School–10 Dirhams
2. Maliki School – 3 Dirhams
3. Shafi School –No Fixed Amount
4. Shariya School – No Fixed Amount
For those Muslims who are poor and cannot pay even 10 Dirhams, they can teach their wife
Quran instead of paying Mahr.

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Assignment-Family Law -II Topic- Dower
(With reference to Mohammedan Law)

Proper or customary dower:

If a marriage is consummated without the amount of dower specified in the marriage contract or
on the condition that the wife not claim any dower, the wife is entitled to proper dower. The
amount of proper dower is determined by considering the amount of dower paid to other female
members of the father's family. The proper dower is determined by considering the following
factors:
1. Personal qualifications of the wife. Like her age, beauty, virtue, fortune, etc.
2. Social position of her father’s family.
3. Dower given to her female paternal relations.
4. Economic conditions of husband.
5. Circumstances of time.
There is no maximum limit for a proper dower under Sunni law, but under Shia law, the proper
dower should not exceed 500 Dirhams.

Increase or decrease of dower:

The Dower can be increased at any moment by the Husband. Similarly, the woman may waive
the Dower whole or in part. Hibatul Mahr, or Hiba-I-Mahr, is the remission of the Mahr by the
wife.When a wife was being ignored by her husband and believed that the only way to win him
back was to waive Mahr, her waiver of Mahr was considered without her agreement and was not
binding on her.

What to do if the amount of dower is intentionally given low and the

wife cannot maintain herself:
Even when their financial situation is good, few men purposely offer a low amount of dower.
The amount of the dower is so small that the woman is unable to support herself. This issue was
finally rendering the object of dower useless. To address this issue, legislation was enacted
requiring a suitable dower. As a result, the legislature was given complete authority to maintain
the amount of dower, with the caveat that the court would not be compelled to award the amount
of dower specified in the marriage deed.

Rights of wife when dower is not paid to her:

Under Muslim law, every woman has the right to a dower on the commission of marriage. If
such a right is violated, the lady has several options, just like any other law. According to Islamic
law, a wife or widow has the following rights to demand the payment of dower.

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Assignment-Family Law -II Topic- Dower
(With reference to Mohammedan Law)

Refusal to cohabit:
If the marriage has not been consummated, the wife has the right to refuse cohabitation with her
husband as long as the prompt dower has not been paid. If the wife is a minor or insane, the
guardian has the power to refuse to send her to her husband's house until prompt dower is paid.
The husband is obligated to support the wife while she is staying at her guardian's place.
If, however, consummation occurs after marriage, the wife loses her absolute right to insist on
timely dower payment. This is due to the husband's ability to launch a petition for restitution of
conjugal rights. If the wife continues to refuse to reside with her husband, she is only entitled to a
dower decree conditional payment. In the case of Rabia Khatoon v. Mukhtar Ahmed (1966), it
was determined that if the suit is initiated after sexual intercourse with her free consent, the right
order to pass is a decree for restitution, conditional on quick dower payment.
The payment of dower is a contingent event in deferred dower. As a result, the question is
whether the wife can decline the husband's conjugal rights or not. There has been some
disagreement about this. Famous jurist Abu Yusuf believes women has the right to refuse
cohabitation if a postponed dower is not paid. However, eminent Shia Law expert Imam
Mahmood believes that in circumstances of deferred dower, the wife cannot refuse to cohabit.

Right to dower as a debt:

The dower was seen to be an obligation by the lordships of Privy Council, and it was decided
that the widow and other creditors might have it paid off from the husband's assets upon his
passing. If the husband is still living, the woman may file a lawsuit against him to recoup the
dower. When the dower obligation is still outstanding, the widow may pursue legal action
against the husband's heirs to assert her claim for the debt. The extent and proportion to which
the heirs inherit the husband's property, however, determines their liability.
In the 1937 case of Syed David Hussain v. Farzand Hussain, it was decided that a Shia Muslim
might be held liable for the young son's failure to pay the dower. Following his passing, his
estate was held accountable for paying his son's mahr, and each heir was deemed liable for a
portion of the wife's claim in accordance with his share of the deceased's inheritance.

Right to retain possession in lieu of unpaid dower:

Dower is considered a debt, and the wife has the right—along with the other creditors—to have
it paid off from her husband's estate upon his passing. However, she has no more rights than any
other unsecured creditor, with the exception that if she lawfully assumes ownership of all or a
portion of his estate, she is entitled to keep that position until her claim is paid in full using the
rents and other benefits that flow from it. She has no ownership interest in the property beyond

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Assignment-Family Law -II Topic- Dower
(With reference to Mohammedan Law)

the right of retention. She is unable to alienate the property as a result. In lieu of a dower, a
widow's right to maintain custody of her husband's inheritance is a photo special purpose. It is
done through coercion to obtain prompt payment of the dower, which is an unsecured loan.

Effect of apostasy on dower:

Apostasy has a significant impact on Islamic personal law. It is thought that man's apostasy from
Islam results in the quick divorce of marriage. Apostasy by the woman from Islam, on the other
hand, does not result in the immediate breakup of the marriage. A married Muslim woman has
the same rights in respect of the dower after the dissolution of marriage under this Act, according
to Section 5 of the Dissolution of Muslim Marriage Act 1939. The dissolution of marriage under
the Act, even if made after the wife's apostasy, does not deprive her of her claim to dower.

Suitable for dower and restriction:

If the dower is not paid to the widow while she is alive, her heirs may claim it after her death.
According to the Limitation Act of 1963, the period of limitation for a suit to recover prompt
dower is three years from the date the dower is demanded or refused. In the instance of deferred
dower, the statute of limitations is three years from the day the marriage is terminated by death
or divorce.

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Assignment-Family Law -II Topic- Dower
(With reference to Mohammedan Law)

Case Laws on dower:

1. Maina Bibi v. Chaudhary Vakil Ahmed (1924):

In this case, a guy named Moinuddin died, leaving behind his wife and some property. The
respondents filed an action against the widow in order to take possession of the property.
However, the widow maintained that she had the right to custody of the property until her dower
sum was given to her. She kept ownership of the property since the respondents did not give her
the dower. The widow sold the property, and the agreements revealed she suggested an absolute
claim to the property. As a result, the respondents launched a case against her, claiming that the
widow had the right to keep but not the right to have a title for herself.
The Privy Council ruled that until the widow becomes her mahr, she has the right to acquire
lawfully and tranquil ownership of the property. The court also ruled that the widow has no right
to sell, gift, mortgage, lease, or otherwise alienate the property.

2. Mohammed Ahmed Khan v. Shah Bano Begum:

In 1978, Shah Bano Begum was driven out of the house and divorced by her husband. She
petitioned the court for maintenance under Section 125 of the Cr.PC. Her husband claimed that
he was under no responsibility to support her because he had previously paid Rupees 3000 in
dower.
According to the Supreme Court, dower is paid by the husband as a gesture of respect to his
wife. Also, mahr is a payment that is payable at the time of marriage and, if not paid, at the time
of divorce. The court further stated that such women are entitled to maintenance under Cr.PC
section 125.

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1. [1924] 52 IA 145.

2. 1985 AIR 945, 1985 SCR (3) 844.

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Assignment-Family Law -II Topic- Dower
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3. Hakim Masihuddin v. Abdul Wahid (2010):

According to Muslim norms, Ishrat Bano married the defendant in Delhi. Ishrat had a daughter
named Rifat from a previous marriage, who the defendant accepted as his daughter. This was the
defendant's second marriage, and a dower of Rupees 20,000 was arranged at the time of the
nikkah. Ishrat Bano often asked her husband for the dower sum, which she never received during
her lifetime. Ishrat Bano died on January 17, 2004. The plaintiffs, the deceased's father and
minor daughter, filed a suit to reclaim the dower payment and dowry articles.
The court ruled in favour of the plaintiffs and issued a decree for the recovery of the dower
amount of Rs. 20,000 plus future interest at the rate of 6% per annum.

4. Beena v. B. Mohammed (2015):

Before marrying the defendant, the petitioner was a Christian who converted to Islam. The
petitioner was an employee who worked for the defendant for a monthly wage of Rs. 6,000. It
was the petitioner's second marriage, and the respondent agreed to give ten sovereigns in gold
ornaments as dower at the time of marriage. The petitioner was divorced by her husband, and the
dower was not paid to her at the time of the divorce.
The Kerala High Court ruled that because it was a quick dower case, the defendant was required
to pay the dower on demand by the wife or at the time of marriage or dissolution of marriage.
Because the defendant never paid the dower, he is deemed liable to pay the dower that was
determined at the time of marriage.

5. Bano Begum v. Mir Aun Ali [9 Bom. LR (1907)]:

In this case, the Bombay High Court held that as per Muslim law if a widow has never received
the amount of Haq Mahr by her deceased husband when she was divorced, then in such a
situation she can approach the court for the payment of dower money. Thus, the court will be
under an obligation to pass an order for the recovery of the entire amount mentioned in the
nikahnama.

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3. 20 August, 2010 case.

4. Rev.Pet.No. 92 of 2014.

5. 9 Bom. LR (1907)

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6. Nasiruddin v. Amatul[AIR 1948 Lah. 135]:

In this case, the question before the Lahore High Court was as to the determination of dower
whether it is to be considered as prompt or deferred dower. The court observed that this issue
should be determined based on the usages and customs of the parties. One half shall be
considered as prompt while the other half will be considered as deferred dower in a case where
there is no specific usages or customs. However, the court also said that the proportion of
deferred and prompt dower can sometimes differ from case to case basis.

7.Abdul Kadir v. Salima:

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.

8. Abdul Karim Khan v. Maqbul-un-issa Begam:

Dower is a debt like all other liabilities of the husband, and has preference over legacies
bequeathed by the testator and the right of the heirs. A partition of the estate cannot take place
until the dower debt has been satisfied. When the wife is alive she can recover the debt herself
from the estate of her husband. If she be dead, her representatives stand in her place and are
entitled to recover the same"; and goes on to say: "Dower, in fact, whether it be prompt or
deferred, is a debt due from the husband to the wife.

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6. AIR 1948 Lah. 135.

7. Salima (1886) 8 All 149.

8. (1908) ILR 30 All 315.

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9:Chaudhri Wasi Ahmed v. Musammat Maina Bibi:

It has also been explicitly stated that dower is a debt. Dower, as a result, cannot fall under the
ambit of Section 37(2), which applies to circumstances not covered by Section 37(1). or by any
other legislation in force in British India; nonetheless, the subject of whether a debt is or is not to
bear interest is not one covered by the Municipal legislation of British India. The fact that dower
debt is the result of a peculiarity of the Muhammadan Law of Marriage and is not the
consequence of advancing money is no reason to deprive it of the features of a debt and impose
the limitations established by the Hanafi School of the Mahommedan Law on usury on it.

10. Shahana Bibi v. Nadeem Shah [(2015) MLD 1623]:

The court held that a wife being expelled from her marital home or subjected to mental cruelty or
non payment of maintenance amount by the husband are considered as grounds for dissolution of
marriage. Hence, the wife is entitled to not only the maintenance but also the unpaid dower
amount.

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9. 51 Ind Cas 242.

10. [(2015) MLD 1623].

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Conclusion:
Under Islamic law, the concept of dower is crucial. Dower is the husband's way of showing his
wife respect, it can be concluded. A dower improves a Muslim woman's standing in society. The
woman is entitled to the correct lien over the property in the event that the husband passes away.
This is frequently done to ensure that her dower is paid by the legal heirs via their share of the
property that they acquire from the husband. In order to ensure that the Muslim woman doesn't
face too many troubles in life and is properly maintained after the marriage, whether there is a
divorce or the husband passes away, there are a number of ways to pay the dower. In the case
that the spouse passes away, the lady is entitled to the proper lien on the property. This is
commonly done to make sure that her dower is paid by the husband's lawful heirs through their
portion of the property they inherit. There are several ways to pay the dower in order to make
sure the Muslim lady doesn't have too many problems in life and is properly maintained after the
marriage, whether there is a divorce or the husband passes away.

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Bibliography:
1. Aqil Ahmad Mohammedan Law (Book).
2. https://www.lawyerservices.in
3. https://www.lawinsider.in
4. https://blog.ipleaders.in

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