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)

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.

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.

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.

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.

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.

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.

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