Mohammedan Law

Unit-3-Dower(Mahr)
 Dower (Mahr)
 Mahr or Dower 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(Tyabji).Mahr is
a gift which becomes due from a Muslim
husband to his wife on marriage as a token of
respect symbolizing his sincerity.(Baillie)
 Dower (Mahr)
 Under Shariah,the parties to a marriage are
free to determine the quantum of Mahr
themselves by mutual consent. It is a sum of
money promised by the husband to be paid
or delivered to the wife in consideration of
marriage and even where no dower is
expressly fixed or mentioned at the marriage
ceremony, the law confers the right of dower
upon the wife.(Justice Mahmood).However
non specification of dower does not render a
Muslim marriage void.
 Dower (Mahr)
 According to Ameer Ali,dower is a sum with
the object to compel husband to fulfill
marriage contract in its entirety. It is a sort of
marriage settlement for the wife. Dower is an
invaluable right of a Muslim wife. Mulla says
Dower is a sum of money which the wife is
entitled to receive from the husband in
consideration of marriage.
 Concept of Dower
 It is used as a deterrent to Muslim husband’s
absolute power to pronouncing on his wife. It
is an integral part of marriage and may be
fixed before or after the marriage. In case not
fixed by parties, it is implied in every marriage.
A contract of dower after the marriage can be
made by the father if the son is minor on the
date of contract. Under the Hanafi law, a
father’s contract of dower on behalf of a minor
son is binding on the son and the father is not
personally liable for the Mahr.
 Concept of Dower
 No school of Muslim law fixes the maximum
amount of dower. A Muslim couple may fix
any amount of dower even an amount which
is much beyond the means of husband.The
Hanafis fix the minimum amount at 10
dirhams and Malikis at 3dirhams.In Shia law,
no minimum dower has been prescribed.
Dower is fixed in terms of money, but it may
be as well any type of property. No writing is
required, usually a Mahrnama (Dower Deed)
is executed.
Abdul Kadir Vs.Salima 8All.LJ1866
 It was said that the marriage contract is easily
dissoluble and the freedom of divorce and
the rule of polygamy place a power in the
hands of the husband which the law givers
intended to retain by rendering the rules as
to payment of dower stringent upon the
husband. It was said that dower may be
regarded as consideration for connubial
intercourse by way of analogy to the contract
of sale. A distinction was made between
marriage dower with the contract of sale.
Bi Tahira Vs.Ali Hussain AIR 1979
s.c.362
 The Supreme Court through Justice Krishna
Iyer said that even if the husband has paid to
his wife dower money, the wife shall be
entitled for maintenance during her life time.
Zobair Ahmad Vs.Jainandan Prasad
A.I.R 1960 Pat.147
 Their Lordships of the Patna High Court held
the dower debt of a mohammedan widow is
not properly speaking a charge upon the
property of her husband. The interest which
she has in the property in her possession in
lieu of dower debt is an interest restricted in
its enjoyment to her personally within the
meaning of Section 6(d) of Transfer of
Property Act and as such is not capable of
alienation.
 Kinds of Dower
 Specified (Mahr-i-Musamma-By Mutual
agreement) and Proper Dower (Mahr-i-Misi-
Customary Dower by operation of law)

 Prompt (Marjjal-On Demand) and Deferred

Dower(Muwajjal-On death or Divorce)
 Specified and Proper Dower
 Specified Dower-Determination of the
amount of dower. It is fixed by mutual
agreement of the parties. It may be settled by
the parties to the marriage either before or at
the time of marriage or even after the
marriage.
 Proper Dower-Unspecified dower/Mahr-i-
Misi also called customary dower arises by
operation of law. If nothing is said about the
dower at the time of marriage,the wife may
claim to have a reasonable amount of dower.
 Specified and Proper Dower
 A proper dower is a dower which would be
payable to a woman of similar status and
circumstances. In fixing it, the court is guided
by the amount of dower settled upon the
other female members of the family of wife’s
father. The husband’s social position and his
means are not of much importance.
According to Hedaya, the wife’s age, beauty,
understanding must be kept in mind when
fixing proper dower.
 Specified and Proper Dower
 Under Shia law, the proper dower should not
exceed 500 dirham and if either party dies
before the consummation of marriage, dower
is not payable. In respect of specified dower
the court must decree the whole amount,
though the husband had no means of paying
it. The amount of dower fixed can be
increased by the husband after marriage.
 Prompt & Deferred Dower
 Prompt dower- is payable immediately on the
marriage taking place and it must be paid on
demand. It may be realized at any time before
or after consummation. It is only on the
payment of prompt dower that the husband
becomes entitled to enforce his conjugal
rights unless the marriage is already
consummated.
 Deferred Dower-is payable on dissolution of

marriage either by death or divorce of parties.

 Prompt & Deferred Dower
 The absolute right of wife to insist on
payment of the prompt dower before giving
him the access to her is lost after the
consummation of marriage. After
consummation the husband in his suit for
restitution of conjugal rights upon her refusal
can secure a decree conditional on payment
of dower.
Mode of Enforcement of Dower
 Nature of Wife’s/Widow’s right to Dower-Dower
is an ordinary unsecured debt. Widow is entitled
to have it satisfied on the death of her husband
out of his estate. dower debt is not a mere right
to sue. It is an actionable claim. A claim of
dower arises on the confirmation of dower. It is
vested in her and its forfeiture can not take
place even on the basis of her gross
misconduct such as adultery. Widow like any
other creditors of the husband can not claim
priority over other creditors for her dower debt.
Nature of Wife’s/Widow’s right to
dower
 Widow’s dower debt has priority over the claims
of heirs. Heirs of the husband are not
personally liable for the dower debt. The
amount can be realized from the shares of heirs
in the husband’s estate. Wife has no power to
agree not to receive any dower at the time of
marriage. She has the power to remit the whole
or any part of the dower in favour of her
husband or his heirs after the marriage. She can
relinquish her dower provided she has attained
puberty at the time of the relinquishment.
Nature of Wife’s/Widow’s right to
dower
 It is a right of wife to continue to be in
possession of her husband’s property in
those cases where her dower debt has not
paid. To enforce the right, the widow should
have been in actual possession of her
husband’s property and such possession
should have been acquired lawfully and
without any force or fraud. The possession
must be acquired with the express or implied
consent of the husband or his other heirs.
Hamira Bibi Vs.Zubida Bibi 1916 43
ILR 294
 In this case, the Privy Council observed the
right of retention is not exactly a lien nor a
mortgage. It does not give the widow any title
to the property. She can not alienate (sale,
gift, mortgage) the property even to satisfy
her dower debt. However it does not bar her
suit for the recovery of her dower debt.
During the period of possession, the widow is
liable to render full account of all the income
and profits.
Distinction between Sunni and Shia
Law relating to Dower
 Sunni Law-Minimum 10 dirhams for specified
dower.

 Shia Law-No minimum dower.

 Sunni Law-There is no maximum limit to

proper dower.

 Shia Law-The proper dower should not

exceed 500 dirhams.
Distinction between Sunni and Shia
Law relating to Dower
 Sunni Law-If marriage is dissolved by death
and dower has not been specified. Proper
dower would be due whether the marriage was
consummated or not.
 Shia Law-If either part dies before the
consummation of marriage, dower is not
payable.
 Sunni Law-In the absence of agreement the
whole may be awarded as prompt dower.
 Shia Law-No specific agreement-The whole is
regarded as prompt dower.