Dower

Introduction:
•In Pre-Islamic Arabia there were two forms of institution of marriage were prevalent. First known
as Beena form and second Baal form.
•In the Beena form of marriage, the wife did not accompany her husband to his home, but
continued to stay in her own home and the husband visited her there. In this way, there was a
custom to give his wife a gift at the time of marriage. Which was known as SADAQ and the wife
was known as SADAQA.
•In the Baal form of marriage the wife accompanied her husband to his home and the husband, in
consideration of wife’s leaving her parent's home. Used to pay amount to her parents and this
amount was known as MAHR or in other words as price of bride or consideration for marriage.
•After the promulgation of Islam prophet Mohammaed reformed the law of marriage. In this reform
prophet Mohammaed combined these two forms of marrages and introduced the new concept of
Nikah along with Meher.
•In this process prophet Mohammaed combined Sadaq and Mahr, hence Dower is inherent and an
integral part of marriage. In Islamic law, Mahr is a settlement or provision for the wife which is
absolutely belong to the wife.
•Wherever Quran mentions marriage it has emphasized payment of dower to woman. This dower
should be paid to wife as a gift by the husband and not to her parents and husband is not entitled
to tack it back.
 Definition:
• Wilson: Dower is consideration for the surrender of person
by the wife. It is technical Anglo-Mohammedan term, for its
equivalent ‘Mahr’ in Arabia.
• Abdul Rahim: Mahr is that sum of money or property which
a Muslim wife is entitled to get from her husband on marriage
as a token of respect towards herself.
• Ameer Ali: Dower is consideration which belongs absolutely
to the wife.
• Mulla: A sum of money or other property which the wife is
entitled to receive from the husband in consideration of
marriage. The word consideration is not used in the sense in
which the word in the contract Act. According to the Muslim
law, dower is an obligation imposed upon husband as a mark
• Law of Marriage (compiled by All India Muslim
Personal Law Board) in ‘compendium of Islamic Laws
provides: Dower is the mal (money or property of any kind)
which is an obligation of the man towards the woman as a
result of the marriage (Section 127).
• Dower is a financial right arising from the marriage contract
which is an obligation in all circumstances; even if at the
time of marriage it was agreed upon that there will be no
dower (Section 128).
• The amount of dower may be fixed and paid either before, at
the time of, or after marriage from the assets of the husband.
The wife is competent to relinquish her dower provided she
has attained puberty at the time of relinquishment.
 Nature of Dower
• Mahr is a consideration for marriage:
• Justice Mohammod in Abdul Kadir v. Salima (1886) ILR 8 All
149 compares Mahr with the consideration. He compared
Muslim Marriage with civil contract and in which Mahr is
the price in a contract of marriage. Because under Muslim
marriages their can be no marriage without consideration
as like under Indian Contract Act there can be no contract
without consideration. But in strict sense it is not
consideration in the sense of a ‘quid pro quo’ contemplated
by the Indian Contract Act, 18772. Same thing is
emphasized by the Calcutta High Court in Suburanuessay v.
Sabdar Shaik 1934 Cal 697.
• Mahr is a mark of respect for marriage:
• Mahr is a mark of respect in which the wife is held by the
husband. Hedays provides that, the payment of Dower is
enjoyed by the law, merely as a token of respect to the wife
under valid marriage.
• Abdul Rahim defines Mahr is that sum of money or property
which a Muslim wife is entitled to get from her husband on
marriage as a token of respect towards herself.
• The Supreme Court in Sha Bano case observed that, Mahr
was not a consideration for marriage but an obligation
imposes upon the husband as a mark of respect to his wife,
and was therefore not a sum payable on divorce.
• Mahr is a controlling device for Divorce:
• Dower is neither a consideration in the marriage contract nor
a gift to the wife to allow intercourse with her. Sometimes
Mahr becomes a restrictive measure on the exclusive right to
divorce by husband, because under Muslim law the wife may
ask Mahr beyond the capacity of the husband which can
make as a controlling device for divorce.
• Mahr is an actionable claim:
• In the legal nature Mahr is an actionable claim it can be
taken in execution of decree like any other debt. Dower is a
legal right of a wife therefore she has got every right to fie a
suit for recovery of dower and in such cases she would obtain
a money decree against all property, including the property of
husband in her own possession.
• Mahr is a gift or an obligation on the husband:
• Quran says, “Give the woman on marriage their dower as a free gift…”
• Ameer Ali says that Mahr of the Islamic system is similar in all its incidents
to the donatio propter nuptials (a gift in consideration of marriage) of the
Romans. It is a settlement in favor of the wife, made prior to the
completion of the marriage-contract in consideration of the marriage.
However, there is an essentials difference of the Roman donation propter
nuptials and the Mahr of Mussalmans, that whereas the former is purely
voluntary on the part of the husband: the later is absolutely obligatory.
• Dower is not exactly a consideration for marriage in the sense of a
consideration for any other contract. It is an obligation imposed by the law
on husband as a mark of respect for the wife. The character of the
obligation to pay the dower is a debt. The moment the dower is settled, it
becomes a recoverable debt and the wife has a lien over the property of her
husband in her possession for unpaid dower, pari passu (side by side; at the
same rate or on an equal footing ) with other creditors.
 Object of Dower
• To impose an obligation on the
husband as a mark of respect to
the wife.
• To place a check on the capricious
use of divorce on the part of the
husband, and
• To provide for her subsistence
 Who can make a contract of Dower
• Any person who is not insane and who has attained the age of puberty
or majority.
• A minor also makes a contract of dower through his or her guardians.
• Under Sunni law, a contract for dower made by the father of a minor
son, whether before or after or at the time of marriage, will be binding
on the son to the extent of the amount specified.
• The father does not become personally liable, but he can be liable only
when he stands as a surety for dower, or accepts a stipulation that the
dower may be recovered from him in the event of the son failing to pay
it.
• Under Shia law, the father becomes liable for the dower where he
contracts a minor son in marriage and when the son has no independent
means of his own.
 Subject matter of Dower
•Any sum of money or any property which has the value, or right in any
property or money may be subject of Mahr which could be given to
wife.
•Everything permissible in Islam could be settled for Mahr. These
things should have some value. But those things which are prohibited
under Islam can’t be subject matter of dower such as wine, cheating,
and many more.
•Any kind of property movable or immovable, tangible or intangible
may be the subject matter of dower.
•Rent, profit or other benefits interested of movable or immovable
property may also be subject matter of dower.
•But the only condition is that, that property should be in existence at
the time of making a contract for dower.
 Formalities for Dower
• The contract of dower may be executed on a deed known as Mahr
Nama or Kabil Nama.
• It may also be fixed orally, no written deed is compulsory. But
generally Mahr Nama is in written.
• In this Mahr Nama the amount of Mahr must be mentioned.
• As far as amount is concerned, sky is the upper limit even though it
may be out of reach of husband but minimum limit is fixed in certain
sects such as;
• Hanafi law prescribes minimum 10 dirhams.
• Maliki law prescribes minimum 3 dirhams.
• Shafi law prescribes no minimum dirhams.
• Shia Law prescribes no minimum dirhams.
• Prophet had given his only surviving daughter, Fatima in
marriage to Ali for an agreed Mahr of 500 Dirhams, hence
some consider it as the minimum limit and on the contrary
some other consider this amount to be maximum limit
which should not be exceeded.
• According to section 129 of Law of Marriage (Complied by
All India Muslim Personal Bboard in compendium of
Islamic Laws) says that, “The minimum amount of dower
is ten dirhams, the weight of which is 30.618 gm silver.
Therefore the minimum dower in every age and every
country will be the amount which can buy 30.618 gm
silver. There is no maximum limit for dower.
 Types of Dower
Types of
Dower

Specified Dower Proper Dower

(Mahr-i-Musamma / Mahr-i- (Mahr-i-Misl/Mahrul
Tafweez) Mithi).

Prompt Dower Deferred Dower

(Mahr-i-Muwajjal) (Mahr-Muwajjal)
 Specified Dower (Mahr-i-
Musamma/Mahr-i-Tafweez)
• When the amount of dower is fixed by contract between the
parties to the marriage, it is called Specified Dower.
• Such dower may be fixed by the father if the son if manor or
insane.
• According to Sunni Law, the dower fixed by the father is binding
on the son and the father is not personally liable to pay it.
• But according to the Shia Law if the son has no means to pay the
Specified dower, the father is liable to pay it.
• Time for fixation: Specified dower may be fixed either before
marriage or at the time of marriage or even after the marriage.
• If at the time of marriage fixation of dower has been left
to the discretion of the husband, then he may fix any
amount. But the specified dower would not be less than
the Proper Dower.
• And if it is left to the discretion of the wife, the
Specified dower would not be more than the Proper
Dower.
• Under Shia law, if at the time of marriage fixation of
dower has been left to the discretion of the husband
then he may fix any amount but if it is left to the
discretion of wife she cannot fix it at more than 500
dirhams.
• Any time after the marriage, the husband and wife
may lawfully enter into a contract for the
enhancement of the amount of dower specified at the
time of marriage and it is binding on husband.
• But husband cannot reduce the amount subsequently.
• However, the wife can herself reduce or remit her
claim to the whole or part of the Specified Dower but
for this she must attained the age of puberty and she
must be in sound mind position. This is called
remission of the Dower.
 Prompt Dower (Mahr-i-Muwajjal)
• Prompt dower is payable to wife immediately after marriage or
on her demand at any time.
• Prompt Dower may be demanded by the wife any time as she
likes, whether the consummation has taken place or not.
• As soon as the prompt dower is demanded by the wife, the
husband may pay it promptly or immediately.
• If any delay is caused in the payment, the wife is entitled to get
also the interest for the period during which it remined unpaid.
• The wife may refuse consummation till the husband does not
pay the Prompt Dower on demand provided the marriage is not
consummated.
 Deferred Dower (Mahr-Muwajjal)

• The Deferred Dower is payable to wife on the expiry of

Specified period or on the happening of such contingency to
which it is deferred.
• On the dissolution of the marriage either by divorce or death
of either party, it is payable immediately in every other case.
• If the Specified Dower has been fixed as Deferred, the wife
cannot claim it before the termination of marriage either by
divorce or by death of the husband,
• If the marriage is dissolved by the death of the wife. In such
case her legal heirs are entitled to claim the Deferred Dower.
• The dower is deferred when it has been agreed
that the dower may be claimed only upon the
happening of the certain event. In such cases
the Deferred Dower cannot be clamed by the
wife unless that event takes place.
• But if the marriage is dissolved by divorce or
death of either party before such event could
happen, the dower becomes immediately
payable.
 Proper Dower (Mahr-i-Misl/Mahrul Mithi)
• The obligation to pay dower is a legal responsibility on the part of
the husband.
• Therefore if the amount of Dower is not fixed by a contract between
the parties, the wife is entitled for Proper Dower which is fixed by
the court according to keeping in mind various factors such as;
• Local Customs: Local customs should be observed while fixing the
proper Dower. In fixing the amount of the Proper Dower regard
must be paid to local custom, with special reference to the Dower of
the women who are equal of the female in question, in knowledge,
lineage, wealth, understanding and such like.
• Where no examples are available from female of her paternal
family, the court would go to the customs among strangers
occupying the same rank in life and under similar circumstances.
• Position of the Husband: In determining
the amount of Proper Dower, the position of
the husband and his status may also be
observed. But some jurist are of the views
that the social position of the husband should
not be the criterion.
• Position of wife’s father: In determination
of amount of Proper Dower, the social
position and status of wife’s father is also to
be observed.
• Reference to Dower of female paternal relations: The
Proper Dower is to be fixed with reference to the amount of
Dower given to wife’s paternal relations such as sister,
consanuine sister, paternal aunts, etc. if there is no full or
consanguine sister or paternal aunt, the dowers given to the
uterine sister’s daughter or uncle’s daughters may be
considered.
• Personal qualification: In determining the amount of
proper dower, wife’s personal qualifications, e.g., her beauty,
education, age, understanding etc. also to be observed.
• In case of irregular marriage also, even if the Dower is
specified, the wife is entitled to receive only proper Dower.