MUSLIM LAW DOWER AND RIGHT TO MAINTAINANCE: -

Introduction: -

India is a secular country; it treats all religions equally. The Indian constitution guarantees that
every person has freedom of conscience and the right to profess, practice, and propagate
religion. This leads to the creation of different personal laws concerning religion. All Muslims in
India are generally governed by Muslim personal laws. The Muslim personal law contains
different legal provisions regarding marriage, Dower, divorce, will, maintenance, etc.
Dower under Muslim Law is considered a sum of money or other property that the wife is
entitled to receive from the husband in consideration of marriage, but this consideration is not
the same as that of the civil contract. According to Mulla, Dower is an obligation imposed upon
the husband as a mark of respect for the wife. Dower is not a consideration proceeding from the
husband for the contract of marriage but it is an obligation imposed by law on the husband.
Concept of Dower: -
As has been mentioned before, marriages among Muslims are in the form of civil contract and
the concept of Dower holds relevance in this regard. For many, dower (used interchangeably
with the word ‘Mahr’ is a form of consideration given by the groom to his bride. However, the
concept of dower goes beyond that. Dower is a legal obligation vested upon the husband. In the
terms of Abdul Rahmin, “Dower is either a sum of money or another form of property to which
the wife becomes entitled by marriage”. He further remarks that it is an obligation imposed by
law on the husband and as a mark of respect for the wife. Though the dower is an essential part
of the marriage, there is no fixed sum or amount which is to be given as a dower. Further, it can
be given before or after the marriage. However, if the amount of dower has been decided and
agreed upon between husband and wife at the time of marriage, the amount is recoverable
under the agreement. It has been conclusively laid down that Mahr is an essential part of
marriage under Mohammedan law.
QUANTUM OF DOWER: -
The only peculiarity of the Muslim Law is that no school of Muslim Law fixes the
quantum/amount of dower. Usually, the dower is fixed in terms of money. No writing is
required, though usually a written deed, known as Mahr-nama (dower-deed) is executed at the
time of marriage. Since Mahr is an integral part of Muslim marriage, it may be fixed by an
agreement between the parties; in case it is not done, it will be determined by operation of law. In
the former case, it is known as a specified dower, and in the latter case, proper dower. Except for
the Hanafis and the Malikis, among whom a minimum amount (though not maximum) of dower is
laid down, Muslim law-givers do not fix any minimum or maximum amount of mahr. The Hanafi
fixed the minimum amount at ten dirhams and the Malikis at three dirhams. In India, the value of
ten dirhams is between Rs. 3-4. Thus, the minimum of mahr in both schools is nominal. The peculiar
feature of the Muslim law of mahr is that no maximum amount of mahr is prescribed, and,
therefore, a husband is free to fix any amount of mahr, even though it is beyond his means or ability
to pay or earn.
DOWER’S NATURE AND MODE OF ENFORCEMENT: -
Dower vests in the wife and she can recover it like actionable claims. She has the power to
assign it, though in Muslim Law dower is a debt but it is an unsecured debt. It is an unsecured
debt wife has to stand in the queue like other creditors of the husband. However, a wife who
has her husband’s property in her possession has a right to retain it till the time he doesn’t pay
her dower.
RIGHT TO RETENTION:-
It is the right of a Muslim wife to continue to have her husband’s property in those cases
where her dower has not been paid.
It has the following implications:- She has no right to alienate the property. Her right of
retention doesn’t bar her from filing suit for the recovery of her dower debt. A Muslim
widow has a full right to take possession of income and profits.
The right of retention is lost in the following cases:-
When it is satisfied that the wife has taken the full amount of dower from income and profits of
the property. On her alienation of the property together with possession. On her voluntarily
handing over possession to the heir.
The Muslim law is silent on the question of whether the right to retention is transferable or
heritable.
MAINTAINANCE TO MUSLIM WOMEN UNDER MUSLIM WOMEN ACT, 1986:-
The Act makes provisions for matters connected therewith. The act nowhere stipulates that
any of the rights available to Muslim women at the time of enactment of the act are taken
away or abridged. Under Muslim Law in India, maintenance is known as ‘ Nafqah’. Nafqah is
the amount that a man spends on his family. The right to maintenance of Muslim women is
absolute and non-conditional on whether they can maintain themselves or not.
Hence all Muslim women earning or not earning are eligible for the right to maintenance
which is contrary to most of the other religious acts where only dependent women are eligible
for the maintenance. It is the duty and liability of the husband to provide adequate
maintenance to his wife in all circumstances irrespective of his financial condition. However,
Muslim women cannot claim maintenance from their husbands in the following cases:- She
has not attained puberty. She has abandoned her husband and marital duties with sufficient
reason. Where she sloped with some other man. In a case where she disobeys the reasonable
commands of her husband.
The act lays down that a divorced woman is entitled to have a reasonable and fair provision and
maintenance from her former husband, and the husband must do so within the period of idda
and his obligations are not confined to the period of idda.
Application pending under section 125 CrPC should be disposed of under section 7 of the act.
No provision nullifies the order of 125 CrPC. The act doesn't take away the vested rights of the
Muslim women. All obligations of maintenance end with her remarriage.
MAINTAINANCE FROM OTHER RELATIONS AND WAKF BOARD:-
Section 4 of the Muslim Women Act 1986, lays down that a Muslim woman is entitled to
maintenance from her relatives or Wakf board, if the wife isn’t able to maintain herself and If she
has not been able to obtain any fair and reasonable maintenance from her husband.
For moving an application under section 4 the basic requirements are as follows: -
She shouldn’t have remarried. She is not able to maintain herself after the iddat period.
CONCLUSION: -
The concept of mahr in Islamic law is beneficial for the woman. It ensures financial security so
that she is not left helpless after the death of her husband or after the termination of the
marriage. It also places a check on the capricious use of divorce by the husband. It is also
believed that the mahr is a pivotal custom in the marriages of Muslims. Mahr and Maintenance
are two major concepts in Muslim Law. Mahr is a financial deal with the bride by the
bridegroom. More than a consideration of marriage, it is the responsibility of the husband to
provide mahr as a mark of respect. Mahr or dower plays a vital role in a Nikah. In the same way,
maintenance is an important part of a marriage under Muslim Law. Maintenance means to
provide food, clothes, and proper lodging facilities to a person. It is financial support given by
the husband to the wife under certain circumstances based on the status emerging from a valid
nikah or based on a pre-nuptial agreement between the parties or between the parents if both
or any one of the parties is a minor. This article mentions the instances where a person is
obliged to provide alimony and points out when the right of maintenance is available to a wife
or a divorced woman. It also deals with the provisions for maintenance under different statutes.
And highlights the revolutionary ruling of the apex court which paved the way for the
enactment of legislation that promotes the welfare of Muslim Women. Thus, the act ensures
that Muslim women have sufficient means to live their lives with dignity even after divorce.
Haaris Khan
8th Semester
Section B
1210