Muslim Family law

Dower/Mehar
In pre Islamic Arabia, when the institution of marriage as we know it today was not developed, many
forms of sexual relationships existed. Some were hardly better than prostitution. Men, after
despoiling their wives, often turned them out, helpless and without any means.

Under this background, Islam tried to provide a just treatment for wives. In Muslim Law, a husband
can divorce his wife at his whim and to ensure that the woman is not left helpless and without any
means, the concept of Mahar was brought in.

It forces the husband to pay a certain amount to the wife either at the time of marriage or at the
time of dissolution of marriage. This amount acts as a security to the wife in case she is turned out
by the husband or in her old age.

Definition –

As per Tyabji, Mahr 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. It may either be prompt (Mu ajjal) or
deferred (Mu wajjal).

According to Amir Ali, Mahr is a consideration which belongs absolutely to the wife.

In Saburunnessa vs Sabdu Sheikh AIR 1934, Cal. HC held that Muslim marriage is like a contract
where wife is the property and Mahr is the price or consideration.

This was contested by jurist on the basis that , that non-payment of Mahr does not void the
marriage, so Mahr is not purely a consideration.

Importance of Mahr

Marriage in Muslim Law provides an absolute power to the husband to divorce his wife. It also allows
the husband to have multiple wives. This often results in a desperate situation for women because
they are left with no means to support themselves.

Mahr mitigates this issue to certain extent. Therefore, Mahr is very important for balancing the
rights of the husband and wife. Mahr is an absolute requirement of a Muslim marriage and so, even
if Mahr is not specified at the time of marriage, the law will presume it by virtue of the contract of
marriage itself. Even if a woman stipulates to forgo the Mahr, her declaration will be invalid.

In Abdul Kadir vs Salima AIR 1980, J Mahmood has observed that the marriage contract is easily
dissoluble and the freedom of divorce and of polygamy to a husband place the power in the hands of
the husband, which the Muslim law intends to restrain by the mechanism of Mahr. Thus, right of
wife to her Mahr is a fundamental feature of the marriage contract. Thus, Mahr serves the
following purposes –

1. to impose an obligation of husband as a mark of respect to wife.

2. to place a check on the power of husband to divorce and polygamy.

3. to provide for subsistence of wife in the event she is divorced by the husband.
Nature of Mahr

Mahr is an essential requirement of a muslim marriage. Thus, it is obligatory for the husband to pay
Mahr to wife upon marriage. A wife has an unrestricted right to demand Mahr from husband.

In Abdul Kadir vs Salima AIR 1980, J Mahmood observed that Mahr may be regarded as a
consideration for concubial intercourse by way of analogy to the contract for sale. It provides the
woman with the right to resist the husband until Mahr is paid. This right is akin to the right of lien
of a vendor upon sold goods while they remain in his possession and so long as the price for the
goods has not been paid.

In Smt Nasra Begum vs Rizwan Ali AIR 1980, it was held that right to dower precedes cohabitation.
Thus, a wife can refuse consummation of marriage until Mahr is paid. The right of wife to her dower
puts her in a similar position as that of other creditors. Just like other creditors, she must be paid out
of the property of the husband. Thus, it can be said that Mahr is a kind of debt upon the husband
incurred in marriage.

However, at the same time, payment of Mahr is not a charge upon the estate of the husband, unless
an agreement is made to that effect. The interest that a wife has over the property of her husband in
lieu of dower debt is limited to existing lawful possession towards her self enjoyment only. It does
not give her the right to alienate the property.

After the death of the husband, she can sue the heirs for the dower but heirs are not personally
liable for it. They are liable only to the extent of their share in the inherited property. A dower can
also be secured by an agreement just like any other debt.

In Syed Sabir Hussain vs Farzand Hussain, a father stood surety for payment of dower by his minor
son. After his death, his estate was held liable for the payment of his son's dower.

Legal Consequences of Mahr (Rights of wife in case of non payment of Mahr)

1. Dower is like a debt and the husband is liable to pay it to the wife before the consummation of
marriage. Until it is paid, the wife has a right to resist cohabitation with the husband.

2. If the wife is in possession of husband's property, she has a right to retain it until dower is paid.
She does not get a title to the property and does not get a right to alienate it.

3. Wife can sue heirs of the husband for payment of dower.

4. If the dower is deferred, the wife is entitled to it upon dissolution of marriage either due to
divorce or due to death.

5. Dower is a vested right and not a contingent right. Thus, even after the death of the wife, her
heirs can demand it.

6. If dower has not been agreed upon at the time of marriage, courts can decide the amount of
dower by taking financial status of the husband, age of wife, cost of living, property of wife, into
consideration.

Right of wife over husband's property

Dower ranks as debt and the wife is entitled, along with other creditors, to have it satisfied on the
death of husband out of his estate. Her debt, however, is no greater than any other unsecured
creditor except that if she is lawfully in possession of the husband's property, she is entitled to that
possession until she is able to satisfy her debt by the rents or issues accruing out of the property.
She is also entitled to the possession against the heirs of the husband until her dower is satisfied.

Limitations on right of retention –

This right arises only after the death of the husband or after divorce. During the course of marriage, a
wife does not have any right to retain the property. She should have obtained the possession
lawfully. Right to retention is not analogous to mortgage. Thus, she does not get title to the property
in case dower is not paid. Further, if the property is mortgaged, the wife cannot retain possession
against the mortgagee. Wife cannot alienate the property. She has to satisfy the dower only though
the rents or other issues accruing from the property.

In a leading case of Maina Bibi vs Chaudhary Vakil Ahmad 1924, one Moinuddin died leaving his
widow Miana Bibi and some property. The respondents instituted a suit against the widow for
immediate possession of the property. However, the widow claimed that she had the right to
possession until her dower was paid. It was held that the respondents could have the possession of
their share of the property after paying the dower to the widow. The respondents did not pay and
the widow continued possession. Later, the widow sold the property. The deed showed that the
widow tried to convey an absolute title to the property. The respondents again filed the suit
claiming that the widow did not have the right to transfer property because she only had a right to
retain and did not have any right to title for herself. It was held by the privy council that a widow has
the right to retain the possession of the property acquired peacefully and lawfully, until she is paid
her dower. Further, she has no right to alienate the property by sale, mortgage, gift, or otherwise.

Who can change Mahr

A husband can increase the amount of debt at any time, though he cannot decrease it. A wife can
remit the dower wholly or partially. The remission of Mahr by wife is called Hibe e Mahr. However,
she should have attained puberty to do so. She does not have to be a major to relinquish Mahr, only
attaining puberty is sufficient. The remission made by the wife should be with free consent.

Thus, in Shah Bano vs Iftikhar Mohammad 1956 Karachi HC, when a wife she was being ignored by
husband and thought that only way to win him back was to waive Mahr, her remission of Mahr was
considered without her consent and was not binding on her.

Kinds of Mahr

Mahr is of two kinds - Specified (Mahr i Musamma) and Customary or Proper (Mahr i Misl)

Specified Dower means the dower that has been agreed upon by the parties at the time of
marriage. Such a dower can be settled before marriage, at the time of marriage, or even after the
marriage.

In case of a minor or a lunatic, the guardian can fix the amount of dower. Dower fixed by the
guardian is binding upon the boy and after attaining puberty or majority, he cannot take the plea that
he was not a party to it.

A husband can settle any amount as dower to his wife, even if that leaves nothing to the heirs but he
cannot settle for less that 10 dhirams in Sunni Law. Shia law has no minimum. For those Muslims
who are so poor that they cannot even pay 10 dhirams, they can teach the wife Quran in lieu of
paying Mahr.
Specified dower can further be divided into two categories - Prompt (Mu Ajjal) and Deferred (Mu
Wajjal).

Mu Ajjal - As the names suggest, Mu ajjal dower means that the dower is payable immediately upon
the marriage.

1. The wife has a right to refuse cohabitation with the husband until she is paid the dower.

2. If the wife is a minor, the guardian can refuse to allow the wife to be sent to the husband until
dower is paid.

3. Only after the payment of dower, the husband is able to enforce the conjugal rights. However, if
the marriage is consummated, the wife cannot refuse cohabitation after that.

4. Prompt dower does not become deferred after consummation and the wife has the right to
demand and sue for it any time.

5. The period of limitation starts after demand and refusal and it is of three years.

Mu Wajjal - It means that the dower is payable upon dissolution of marriage either by divorce or by
death of husband.

1. Even though it is deferred, an agreement to pay be before is valid and binding.

2. a husband can treat it as prompt and transfer property as payment.

3. A widow can relinquish her claim to dower at the time of the funeral of the husband by reciting a
formula, but her relinquishment must be a voluntary act.

4. The interest of wife in deferred dower is a vested one and her heirs can claim it after her death.

Customary or Proper Mahr (Mahr i Misl)

When the amount of dower is not fixed in the marriage contract or even if the marriage has been
contracted on the condition that she will not claim any Mahr, the wife is entitled to Proper Dower.
The amount is to be arrived upon after taking into consideration the amount of dower settled for
other female members of the father's family. It is also regulated with reference to the following
factors –

1. age, beauty, fortune, understanding and virtue of wife.

2. social position of the father

3. dower given to her female paternal relations.

4. economic condition of the husband.

5. circumstances of the time.

There is no limit on the maximum limit in Sunni Law,

but Shia law prescribes a maximum limit of 500 dhirams, which was the amount paid by Prophet
Mohammad for his daughter Fatima.