DOWER IN ISLAMIC LAW AND PAKISTANI LEGAL SYSTEM

Introduction

This work explores the Meaning, nature, and definition of dower in Islamic law. What are the

types of dower? What is the nature and quantity of dower? Is dower a pre-condition for the

validity of marriage? What is the significance of prompt and deferred dower? What can be given

in dower? How is dower confirmed? Can a woman refuse herself to the husband if the prompt

dower is not paid or is delayed for some time and the marriage is already consummated? When

does the deferred dower become payable? Whether deferred dower becomes payable on demand

or on dissolution of marriage either by death or divorce? Is the wife who obtains separation

through khul‘ allowed to receive the deferred dower if it is still outstanding? How is dower

judicially interpreted in Pakistan? These issues are examined from the perspecitve of Islamic

law, especially of the Hanafi school of though which is more often applied by the superior

Courts in Pakistan in many cases, most of which are subjected to a critical evaluation in this

work. In addition, other related issues to dower are discussed along the way whereever

necessary.

Dower: Meaning and Definition in Islamic Law

Pakistani law does not provide statutory definition of dower, however, its meaning, nature,

significance and definition of the term, has been explained in many cases by the courts. Dower has

many other names in Arabic some of them are used in the Qur’an and others in ahadith of the

Prophet Muhammad (peace be upon him). It is defined by al-Babarti (786/1384) as “[T]he property

which becomes payable by the husband as an effect of the benefits of marriage either through
specification or due to the marriage contract.”1 According to Ibn ‘Aabidin (d. 1252/1836), dower

is “[T]he [property] that becomes payable to the wife because of marriage contract or sexual

intercourse.”2 Badruddin al-‘Ayni (d. 855/1453) notes in his commentary on al-Hidayah that al-

Kaki3 has mentioned several names for mahr,4 three of them are in the Qur’an which are Nahla

(dower)5; ‘Ajr (dower)6; and Faridah (dower)7. The Qur’an also mentions the word Taul for

dower.8 Other names used are mahr9, Sadaq also Sidaq, pl. suduq ((bridal) dower)),10 and ‘Uqr11.

Dower is an effect of marriage but is neither an element not a condition for marriage, however, it

is obligatory. The Qur’an says, “But it is lawful for you to seek out all women except these,

offering them your wealth and the protection of wedlock rather than using them for the unfettered

satisfaction of lust. And in exchange of what you enjoy by marrying them pay their bridal-due as

an obligation.”12 Allah also says in the Qur’an, “Give women their bridal-due in good cheer

(considering it a duty); but if they willingly remit any part of it, consume it with good pleasure.”13

Mahr is not a pre-condition for the validity of marriage, however. The Qur’an says, “There is no

blame upon you if you divorce your wives before you have touched them or settled a bridal gift

1
Muhammad Akmaluddin al-Babarti, al-‘Ainayah sharh al-Hidayah (Beirut: Dar al-Fikr, n.d.), 3:316.
2
Muhammad Amin ibn. ‘Aabidin, Radd al-Muhtar ‘Ala al-Durr al-Mukhtar [of Haskafi] (Beirut: Dar al-Fikr, 3rd.
edn. 1992), 3:101.
3
He is Muhammad b. Muhammad al-Khjandi but is famous with the name Qawamuddin al-Kaki (d. 749 A.H.). He
is the author of Mi‘raj al-Dirayah fi sharh al-Hidayah, and Jami‘ al-Asrar fi sharh al-Manar. See, Muhammad
‘Abdul Hayy al-Laknawai, Al-Fawa’id al-Bahiyah fi Tarajim al-Hanafiyah, ed. Ahmad al-Zu‘bi (Beirut: Dar al-
Arqam, 1998), 186.
4
Mahmud b. Muhammad Badruddin al-‘Ayni, al-Binayah sharh al-Hidayah, ed., Ayman Salih Sha‘ban (Beirut: Dar
al-Kutub al-‘Ilmiyah, 2000), 5:131.
5
Qur’an, 4:4.
6
Qur’an, 4:24, 25, 5:25, 33:50, 60:10.
7
Qur’an, 2:236, 237, 4:24
8
Qur’an 4:25.
9
The word mahr is used in the hadith in which the Prophet is reported to have said, “So if he had sex with her, she
is entitled to mahr …”. Abud Dawud Suliman b. al-Asha‘th, Al-Sunnan, Kitab al-Nikah, Bab fi al-Wali, hadith no.
2085.
10
Hans Wehr, A Dictionary of Modern Written Arabic, ed., J. Milton Cowan (Beirut: Librairie Du Liban, 1974, rep.
1980), 509
11
Which is indemnity for illicit sexual intercourse with a woman slave. See, ibid., at 629.
12
Qur’an, 4:24.
13
Qur’an, 4:4.
upon them. But even in this case you should make some provision for them: the affluent, according

to his means; the straitened, according to his means – a provision in fair manner. That is a duty

upon the good-doers.”14 In other words, it is just like an implied condition which is read into a

contract although it may not be expressly mentioned in the same. Thus, a marriage contract would

not be valid if mahr would be a pre-condition for the validity of marriage. It is never a bride-price.

According to Kamal b. Humam (d. 861/1457), “Dower has been ordered to underline the prestige

of the marriage contract and to stress its importance … It has not been enjoined as a consideration

like a price or a wage, otherwise it would have been set as a prior condition”.15 Nasir argues that

dower “is neither an essential nor a condition for the validity or effectiveness of the marriage

contract, nor to make it binding, nor is it mentioned as being so in any modern Islamic

legislation.”16 Dower is confirmed by one of three things: consummation of marriage, seclusion of

the husband and wife (khalvat al-Sahiha), or death of either one of them.17 However, the issue of

dower always surfaces on the dissolution of marriage in anyway as is seen in the cases under

consideration. Dower may be named in the marriage contract or through the mutual consent of the

parties in which case it is called mahr al-Musamma (specified dower) but a marriage is valid

without specifying it. The Qur’an says, “or settle a bridal gift upon them, then (give them) half of

what you have settled.”18 Since there is no sin on the husband who divorces his wife without fixing

her dower and since there cannot be divorce without a nikah (marriage contract), therefore,

marriage is valid even if dower is not fixed or mentioned.19 Mahr al-mithal is the dower fixed for

14
Qur’an, 2:236.
15
Kamaluddin b. Humam, Sharh Fathul Qadeer ‘Ala al-Hidayah, ed. ‘Abdur Razzaq al-Mahdi (Beirut: Dar al-
Kutub al-‘Ilmiyah, 2003), 3:305.
16
Jamal J. Nasir, The Status of Women Under Islamic Law and Modern Islamic Legislation, (Leiden: Brill, 2009),
87. Also available at <https://brill.com/view/book/9789004182196/BP000006.xml> (last accessed 28 April 2021).
17
‘Alauddin Abu Bakr al-Kasani, Bada’i’ al-Sana’i’ fi Tartib al-Shara’i‘, ed., Muhammad ‘Adnan Derveesh
(Beirut: Dar Ihya’ al-Turath al-‘Arabi, 2000), 2: 584.
18
Qur’an, 2:237.
19
Kasani, Bada’i’ 2:559.
the wife after taking into consideration women of her equal status at the time of marriage. It is

payable in situations when it is either not fixed or is unknown or the marriage contract mentions

that there shall be no dower or what is named cannot be dower under Islamic law or she was

married on the condition that he will serve her for a specified period of time. In all these cases the

mahr to be payable is called mahr al-mithal or standard dower. If the woman died before

consummation of marriage and her mahr is not fixed, the husband has to pay standard dower. If

the husband died before consummation and the dower is not fixed, his estate shall be liable to

standard dower. If she is divorced before consummation when the dower is not fixed, no dower

shall be paid as she will be entitled to a gift (which shall be up to half of the standard dower).20

The Hanafi jurists argue that standard dower should be fixed according to the dower of other

women in the family of the father of the woman. These women include her sisters, aunts, and her

cousins. However, if no woman is found in her father’s family, then the dower of a woman who is

from another family which is similar in status as her father’s family. 21 Wealth, beauty, age,

intellect, and spirituality are taken into consideration for determining standard dower.22 However,

the region, virginity, the specific era, education, and perfectness in behaviour may also be

assessed.23 Both woman should be from the same region and era and that the dower of a woman

related to her but living in a different region cannot be considered to determine mahr al-mithal

because mahr varies from region to region and time to time.24 Any property considered as valuable

in Islamic law can be given as dower whether movable or immovable. In addition, mahr al-

20
Ibid.
21
See, Muhammad Abu Zahrah, Al-Ahwal al-Shakhsiyah (Cairo: Dar al-Fikr al-‘Arabi 2005), 182.
22
Fakhruddin ‘Ali b. Uthman al-Zaila‘iy, Tabi’n al-Haqa’iq sharh Kanzul al-Daqa’iq (Cairo: al-matba‘a al-Kubra,
1313 A.H.), 2:154. Also see, Wahbah al-Zuhaili, Al-Fiqh al-Islami wa Adillatuhu (Damascus: Dar al-Fikr, 3rd edn.
1989), 7:266.
23
Al-Dhu Suliman al-Dhu, Ahkam al-Mahr fi al-Fiqh al-Islami unpublished Masters dissertation in Comparative
Fiqh submitted to the Faculty of Shari‘ah & Law at Al-Azhar University, Egypt, 1978, 86.
24
Shahbuddin al-Shalabi, Hashiyat al-Shalabi ‘ala Hamish Tab’iin al-Haqa’q li al-Zaila‘iy (Cairo: al-matba‘a al-
Amiriyah, 1313 A.H.), 2:154.
musamma may be entirely or partially prompt (mu‘jjal) or deferred (mu’jjal).25 Muslim jurists have

disagreed about the minimum quantity of dower. According to the Hanafi school, it should not be

less than 10 dirhams26 or its equivalent property because of the saying of the Prophet Muhammad

(peace be upon him) who is reported to have said, “Dower shall not be less than 10 Dirham.”27

The Ahnaf also state that the minimum dower shall not be less than the Nisab28 of theft which is

one Dinar or 10 Dirham.29 They consider the hadith which says, “Find even if it be a ring of steel”30

to be in the nature of the prompt portion of dower. They argue that some of the dower must be

paid before the consummation of marriage. To prove this point, they argue that the Prophet (peace

be upon him) stopped ‘Ali b. Abi Talib from consummation of marriage with Fatima (May Allah

be pleased with them both) till she was paid some of her dower. However, ‘Ali said that he has

nothing, on which the Prophet (peace be upon him) told him to give her his armour. ‘Ali gave her

his armour.31 The Ahnaf argue that in case the mahr fixed is less than 10 dirham or its equivalent,

the nikah is valid but the dower is invalid and should be raised to 10 or more for its validity.32

There are many decisions in which judges have tried to elaborate some complicated rules

about dower. Abdul Kadir v Salima, (1886) the Allahabad High Court described dower, under the

Muhammadan Law, as “a sum of money or other property promised by the husband to be paid or

25
See, Salah Muhammad Abul Haj, Al-Khra’it al-Zihniyah fi al-Ziwaj wa al-Talaq ‘Inda al-Hanafiyah (‘Amman:
Markaz Anwarul ‘Ulama lidirasat, 2020), 30.
26
Burhanuddin al-Marghinani, Al-Hidayah, transl. Imran A. K. Nyazee (Bristol: Amal Press, 2006), 1: 507. Kasani,
Bada’i’, 2: 561. Also see, Kasani, Bada’i‘, 2: 561. Dirham is a silver coin and is equal to 35 grams of silver or one
Dinar of gold of five grams. See, Abul Haj, Al-Khra’it, 30.
27
See, Abul Hasan ‘Ali al-Dar Qutni, Sunan al-Darqutni, Bab al-mahr, 3: 245.
28
Nisab is the minimum amount of property which if stolen would make the accused liable to the cutting of his hand
if proven guilty. In Pakistan the minimum nisab for theft as per section 6 of the Enforcement of Hudud Ordinance
VI of 1979 is 4.457 grams of gold.
29
Marghinani, Al-Hidayah, 1: 508.
30
Muhammad b. Isma‘il al-Bukhari, Al-Jami‘ al-Sahih, Kitab Faza’il al-Qur’an, hadith no. 5030.
31
Muhammad b. ‘Ali al-Shawkani, Nail al-Awtar sharh Muntaqa al-Akhbar (Cairo: Matba‘a Mustafa al-Babi al-
Halabi, n.d.), 6: 195.
32
Kasani, Bada’i‘, 2: 562.
delivered to the wife in consideration of the marriage …”.33 This approach has been criticized.

According to Justice Tanzil ur Rahman, of the Sindh High Court, dower “is that financial gain

which the wife is entitled to receive from her husband by virtue of the marriage contract itself

whether named or not in the contract of marriage, in which case proper dower (Mahr Mithl)

becomes due.34 The dower, therefore, is a right which comes into existence with the marriage

contract itself except that in case the dower is deferred its enforcement is held in abeyance till a

certain event, i.e. dissolution of marriage by death or divorce, occurs.”35 According to Justice

Khattak of the Peshawar High Court, “Under Mohammadan law dower is a mark of respect to the

wife. ”36

Types, and Classification of Dower

Mahr is classified into Mahr al-musamma (specified dower) and Mahr al-mithl (standard dower).

The first is an amount specified or fixed at the time of the marriage contract and the second comes

into force automatically, should no amount be fixed or should the specification be invalid. Another

classification of dower is based on the time of its payment for which it may either be prompt

(mu‘ajjal) or deferred (mu’jjal). Prompt is the portion which may be payable immediately whereas

deferred generally becomes due upon divorce or the death of the husband (to be explained later)

or second marriage (in Pakistan).

Mahr is confirmed either through consummation of marriage which means that the husband

and wife either has a sexual intercourse or had valid retirement (khalvat sahiha). Valid privacy is

when the two meet in a place where there is no sensory, legal, or natural impediment preventing

them from having sexual intercourse. Mahr is also confirmed through the death of either husband

33
Abdul Qadir v Salima (1886) ILR 8 All 149, para. 12.
34
The Court has thus alluded to the two types of dower, i.e. prompt (mu‘jjal) and deferred (mu‘jjal).
35
Anwarul Hassan Siddiqui v Family Judge, PLD 1980 Kar. 477, at 483.
36
Zarin Qaisha v Arbab Wali Mohd, PLD 1976 Pesh. 128, para. 4.
or wife or through divorce of the wife by the husband. A woman is entitled to half of mahr, if

divorced before consummation and mahr is fixed. It is recognition of her legal status as a wife. If

divorced before consummation when the dower is not fixed, then she is entitled to a gift called

‘mut‘a’ which shall not exceed half of mahr al-mithl. The iddat (waiting period) of a woman whose

marriage is terminated. If the marriage is dissolved through the death of her husband or divorce

after valid/invalid privacy, then wife should undergo the iddat period (a decision based on

istihsan). Every privacy is treated as a valid privacy with respect to the child’s paternity. The

interest of the child, and the financial rights of the woman, make the observation of iddat

imperative. The effects of valid privacy are that valid privacy only implies presumption of

intercourse and makes the obligation of full mahr binding on the husband. Moreover, it confirms

mahr; establishes descent of the child if any; makes the observation of iddat mandatory; gives the

wife the right to maintenance as well as residence during the iddat period; and prohibits marriage

of the husband with the wife’s sister or with any other woman if he had divorced his fourth wife.

If a woman is divorced after a valid privacy (but not actual intercourse), such a divorce is

considered as irrevocable. They can remarry only after an intervening marriage or Halala which

must be consummated and then over (but not planned!). Paid/unpaid dower has some

repercussions: until the mu‘jjal (prompt) dower is received by the wife, she may refuse to

accompany her husband on any journeys. Similarly, she can refuse herself (to her husband)

(according to Abu Hanifah, but not according to Abu Yusuf and Shaybani. The husband cannot

legally prevent her from travelling, or going anywhere. In Shah Daraz Khan v Mst. Naila37 dower

was fixed as 30 tolas38 gold jewelry, ten of which was prompt and 20 was deferred but only six

37
2015 MILD 73 [Pesh.]. Also available online at <https://cite.pakcaselaw.com/mld-peshawar-high-court/2015/73/>
(last accessed 28 April 2021).
38
One tola equals 11.663 grams.
tolas was delivered by the husband but was taken back and never returned to the wife and thus,

the entire amount of dower was outstanding. The marriage was dissolved by the trial Court due to

the brutality and ill-treatment by the husband. The wife claimed her entire amount of dower of 30

tolas which was contested by the husband who pleaded that the dower was only six tolas which

has already been paid. The Family Court decreed her suit to the extent of 24 tolas of gold as dower.

Both parties appealed to the first Appellate Court which partially allowed the appeal to the extent

of dower. The ex-husband assailed both the judgments of the lower courts below. The husband

alleged that his signature on the Nikahnama or marriage contract is fake, however, an expert

proved it to be his signature. The High Court accepted his claim that he has paid six tolas of gold

jewelry to his wife and held that 24 tolas are still outstanding to the husband. In Ghazala Sadia v

Muhammad Sajjad,39 rupees 1,000 was fixed as prompt and 50,000 was fixed as deferred dower.

The wife alleged cruelty and although she had been delegated the right to divorce herself but she

did not exercise it and, instead obtained separation through khul‘ from the Family Court which

ordered her to return the prompt dower. However, the husband was ordered to pay her the deferred

amount of 50,000. The District Court dismissed husband’s appeal. On a writ petition to the Lahore

High Court it was held that the words of section 10(4) of the Family Courts Act, 1964, which says,

“[T]he Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree

for the dissolution of marriage forthwith and shall restore the husband the Haq Mehr received by

the wife in consideration of marriage at the time of marriage”40, that the proviso “only talks of the

restoration of Haq-ul-Mehr [dower] already received and its restoration [and that] withholding or

relinquishment of deferred dower cannot be added to this proviso which the Legislature never

intended. Had that been [the] intention of the Legislature, after the word received, the words, or

39
2012 YLR 2841 Lahore.
40
Section 10(4) of the Family Courts Act, 1964.
agreed to be received should have followed.”41 The Court also observed that the husband has been

cruel to the wife and that he has been the cause of discord between the two. The Court cited Babar

Ismail v Mst. Sheeba Bashir,42 a decision of the Sindh High Court and Mst. Shaista v Sh. Liaquat

Ali Sathi43, a decision of the Lahore High Court, where it has been held that the prompt dower if

already paid to the wife was to be restored and if it is not yet paid by the husband, it was not to be

paid to the wife.44 However, the last sentence is contradictory to the ruling of the Court in the

instant case. The Court also endorsed Muhammad Kaleem Asif v A. D. J.45 in which it was held

that the wife is not liable to restore dower or other benefits received by her in case of dissolution

of marriage through khul‘, if she claims that the husband was the cause of discord.46 The Court

concluded that, “[A]s the right of Khula [khul‘] has accrued to a wife for redressal of her grievance

against her husband, the return of whole amount of dower becomes unnecessary and returnable

amount may be reduced, in a case when the dissolution of marriage on the basis of Khula [khul‘]

is claimed also due to fault or wrong on the part of the husband.”47 The Court also relied on Khalid

Mehmood v Anees Bibi.48 However, a wife may claim any wrongdoing against her husband but a

mere claim or accusation is not sufficient to give such a ruling. The accusation or claim must be

proven. The main issue often ignored in khul‘ cases is that all allegations of cruelty and non-

maintenance etc., are not investigated by the Court as it takes much more time as evidence has to

be recorded and rebutted and witnesses will be examined and cross-examined in a full dress trial

whereas in case of proceedings for khul‘, the case may be decided in one or two hearings without

41
2012 YLR 2841 Lahore, para. 9.
42
2006 CLC 1662.
43
PLD 2006 Lahore 158.
44
Ibid., para. 8.
45
PLD 2009 Lahore 484.
46
Ibid.
47
2012 YLR 2841 Lahore, para. 9.
48
PLD 2007 Lahore 626.
any trial. This shortcut suits the counsels, Family Courts, as well as the husbands but the wives

have to return the dower if already received. However, if cruelty is proven the marriage has to be

dissolved under the Dissolution of Muslim Marriages Act, 1939 (DMMA) and not under khul‘.

Dissolution of marriage under the DMMA means that the wife will not be returning her dower if

paid. Thus, our Courts decide cases instantly but deprive the woman of her dower.49

Mahr: Nature and Quantity

Dower signifies the willingness of the man to undertake the responsibilities of marriage. The

woman has the option of asking for the full amount of the dower or designated property in advance,

or of deferring part of it to become due at a specified later time, or upon such event as death or

divorce.50 In the case of death, sadaq/mahr becomes a senior debt of the deceased husband’s estate

to be satisfied ahead of all other debts.51 Thus, in case the estate of the husband is overburdened

by huge debt, the mahr becomes more important than the widow’s share in inheritance. Sadaq

becomes the most important and defined money or property for a woman in case of divorce or

death of her husband. It is true that some rich women set for a symbolic mahr, the vast majority of

women view it as a financial guarantee and security net in the event of death of their husbands or

divorce. Some women may prefer to take the full amount at the outset to invest it as they prefer in

any venture of their liking. They may give it to charity or start some business with it. In practice

the reality of paying dower is different from what is in the textbooks. In our culture and the custom

49
For details of the various aspects of khul‘ in Islamic law and Pakistani legal system, see, Muhammad Munir, “The
Law of Khul‘ in Islamic Law and the Legal System of Pakistan‘LUMS Law Journal, 2, no. 2 (2015): 33-63; and
Muhammad Munir, “Challenging State Authority or Running a Parallel Judicial System?: ‘Ulama versus the
Judiciary in Pakistan”, LUMS Law Journal, 4, no. 1 (2017): 1-28; Muhammad Munir, “ISLAMI SHARIAT AWR
PAKISTANI QANUN MEI KHUL‘ KI HAYSIYATT: RASOOL AKRAM SALALLAHU ‘ALIYHI WASSALM KI SUNNAT YA ‘ADALATI
IJTIHAD? (KHUL’ BETWEEN ISLAMIC AND PAKISTANI LAW: SUNNAH OF THE PROPHET (PBUH) OR JUDICIAL IJTIHAD?),
Shariah Academy, International Islamic University, Islamabad, 2017; and Muhammad Munir, “One Step Forward,
Two Steps Back: The Unending Twist and Turn Regarding the Law of Khul‘ and its Exposition by the Superior
Courts in Pakistan”, Manchester Journal of Transnational Islamic Law & Practice, 17, no. 1 (2021): 133-149.
50. Ibid., 174.
51. Ibid., and ‘Abd al-Karim Zaidan, Al-Mufassal fi Ahkam al-Mar’ah wa al-Bayt al-Muslim (Beirut: Mu’assasat al-
Risalah 1994),7:90.
of our land fathers negotiate the amount or type of mahr on behalf of their daughters who

themselves have no say as such in the negotiation because of the trust in their fathers. In other

cultures where a substantial mahr may be taken by the father to appropriate it from his daughter

for covering wedding expenses or for buying dowery items which is customarily the responsibility

of the father. In other cultures, the husband may “borrow” the dower amount or property from his

wife after marriage and use it as he wishes. In addition, in some cultures the wife is pressurized to

waive the deferred part of her mahr altogether as a gesture of good will towards the husband. There

are many cases in Pakistan about the points explained above. Although a woman is free to decide

about her own dower, however, she will become highly vulnerable financially and will lose a good

measure of her God-given independence.

Any object that is ‘mal’ (property) under Islamic law. Things must be in existence at the time

of the contract. Specifications such as the future produce of certain trees or lands. Thus, future

uncertain goods/produce cannot be dower. In such a case she will be entitled to mahr al-mithal or

standard dower. Future or uncertain produce are not valid for legal transactions because they don’t

exist independently. If a woman is married on the condition that the man will not marry another

woman (during the existence of their marriage), the specification is not valid for there is no

property, but the marriage is valid. Anything ritually impure, i.e. carrion, wine, pork, the

specification is not valid but the marriage is valid and she is entitled to mahr al-mithl. She is

entitled to mahr al-mithl even if she agrees to a mahr that carries no legal value.

Legal Effects of Paid/Unpaid Dower

There are many legal effects depending on whether the dower is prompt fully or partially and when

the prompt part is not paid for a specific period of time agreed by the husband and the wife. In

case the dower is prompt and is not paid, the woman can refuse herself to the husband even if she
has shifted to his house. In addition, the husband cannot legally prevent her from travelling, or

going out of the house or from visiting her family. A husband cannot get back if he has given her

part of the prompt dower because this was her legal right. It is the same if the dower was fixed but

it was not mentioned whether the dower is prompt or deferred because dower is like a financial

transaction in which both parties have the same rights.52 She cannot refuse herself to the husband

if the time for payment of dower was fixed but it was not paid according to Abu Hanifah (d.

150/767) and Muhammad b. Hassan al-Shaybani (d. 189/805) but Abu Yusuf (181/798) opines

that she has the discretion to prevent herself.53 If the payment of the prompt dower was delayed

for a month, she cannot refuse herself from her husband according to Abu Hanifah and Shaybani

because they consider it deferment due to an emergency but Abu Yusuf argues that she can refuse

herself. However, in such a case if she did not refuse herself willingly from consummation or

seclusion (khalvat al-Sahiha), she can still refuse herself till she receives her dower. Similarly, he

cannot prevent her from travelling according to Abu Hanifah but according to Abu Yusuf and

Shaybani, she cannot refuse herself whether the marriage is consummated or they had met in

seclusion.54 In our part of the world in most cases half of the dower is prompt and half is deferred

as is shown in many cases discussed below. In an earlier case of the subcontinent, the opinions of

Abu Yusuf and Shaybani were preferred. Judicial opinions are split over this issue, that is, whether

a wife can refuse herself to her husband if the prompt dower is not paid. In Abdul Kadir v Salima

(1886) the Allahabad High Court declared that a Muslim wife whose prompt dower had not been

paid had no right to refuse herself to her husband if the marriage had earlier been consummated

with her consent. This was re-confirmed in Anis Begam v Muhammad Istafa Wali Khan (1933)55

52
Kasani, Bada’i’, 2:580.
53
Ibid.
54
Ibid., 2:251.
55
AIR 1933 All 634.
and in Rabia Khatoon v Mohd Mukhtar Ahmad (1966) by the same High Court.

As far Pakistan and Bangladesh an early case is Rahim Jan v Muhamamd56 of the Lahore High

Court in which it was held: “I do not find any principle of justice or reason by which the right of

the wife to refuse the performance of marital obligations on account of non-payment of prompt

dower may come to an end by her once surrendering herself”.57 In other words, Kaikaus J, adopted

the view of Abu Hanifah. In Nur-ud-Din Ahmad v Masuda Khanam,58 the then Dacca High Court

held that, “The wife is under the Muhammadan Law entitled to refuse herself to her husband until

and unless the prompt dower is paid to her”. The same principle was confirmed in Chanani Begum

v Muhamamd Shafiq.59 In Muhamamdi v Jamil-ud-Din, the Sindh High Court held that, “Another

ground on which she can refuse to go to her husband’s house is the non-payment of the prompt

dower.”60 The same High Court confirmed it in Muhammad Ishaque v Rukhsana Begum.61 In Tahir

Ayub Khan v Mrs. Alia Anwer62 the Sindh High Court ruled that “if the prompt dower is not paid

on demand, the wife can refuse to perform conjugal obligations to her husband.”63

Under Islamic law only half of the dower is payable in case of dissolution of marriage before

consummation in case it is specified. However, in case it is not named and the marriage is

dissolved, only mut‘ah is to be paid. Allah says, “There is no blame upon you if you divorce your

wives before you have touched them or settled a bridal gift upon them. But even in this case you

should make some provision for them: the affluent, according to his means; the straitened,

according to his means – a provision in fair manner. That is a duty upon the good-doers. And if

56
PLD 1955 Lah, 122.
57
Ibid., also available at <https://pakistanlaw.pk/case_judgements/176665/mst-rahim-jan-versus-muhammad> (last
visited June 2, 2022).
58
PLD 1957 Dacca 242.
59
1985, MLD, 310.
60
PLD 1960 (W.P.) Kar. 663.
61
PLD 1988 Kar. 625.
62
2017 M L D 412.
63
Ibid. para. 5. Per Muhammad Iqbal Kalhoro, J.
you divorce them before you touch them or settle a bridal gift upon them, then (give them) half of

what you have settled unless either the women act leniently and forgo their claim, or he in whose

hand is the marriage tie acts leniently (and pays the full amount). If you act leniently, it is closer

to God-fearing. And forget not to act gracefully with one another, for indeed Allah sees all that

you do.”64 Marginani (d. 593/1197) argues that “mut‘ah is three dresses (that is three parts of a

dress) according to the apparel of a woman of her status. These are the shirt, head covering, and

the lion cloth.”65 The amount of dower given in case the wife is divorced before consummation

was one of the issues in Muhammad Akbar v Shazia Bibi.66 In this case marriage was solemnized

in 2004 and 99 Kanal of land was mutated in favour of wife in 2004 as dower. Marriage never

took place and the wife was divorced. The husband alleged in his suit that the land was fraudulently

transferred to the wife. The Family Court decreed husband’s suit but the respondent’s appeal was

accepted by the first Appellate Court. The Lahore High Court dismissed the husband’s appeal and

upheld the decision of the first Appellate Court. The husband appealed to the Hon’ble Supreme

Court on the ground that the marriage was never consummated. The Supreme Court ruled that she

is entitled to half of the dower because the marriage was not consummated. A related question to

ask is that whether dower could be enhanced subsequently and, if yes, what is its legal effect. In

Abdullah v Naila Aslam67 a subsequent agreement to enhance dower from rupees 500 to 100,000

was considered valid and binding on the husband. In Naziran Begum v Khurshid Begum68 it was

held that a husband can increase the amount of dower fixed at the time of marriage. In Malik Amir

Akbar v Mian Murid Husain69 it was held that a wife may settle on a lower amount of dower if the

64
Qur’an, 2:236, 237.
65
Burhanuddin al-Marghinani, Al-Hidayah, transl. Imran A. K. Nyazee (Bristol: Amal Press, 2006), 1:509.
66
PLD 2014 SC 693.
67
NLR 2007 362.
68
1999 SCMR 1171.
69
2008 SCMR 505.
husband is unable to pay.

When does deferred dower become prompt?

One of the most contested legal issues regarding dower in Pakistan is when does deferred dower

become prompt? In Muhammad Azam v A.D.J.,70 the main issue before the Lahore High Court was

as per the husband’s point of view his wife was entitled to dower only on her death or divorce. The

LHC ruled that the wife was entitled to receive her deferred dower upon demand when her husband

remarried. In Sadia Usman v M. Usman71, Sadia’s dower was fixed at PKR one million, half of it

was prompt and was given as gold ornaments and the other half was deferred. Dispute arose when

the husband moved abroad and did not maintain his wife. Sadia filed suit for recovery of deferred

dower and maintenance. Husband filed suit for restitution of conjugal rights. The Family Court

decreed her suit for recovery of 500,000 and some money for maintenance. Both parties appealed

to the first Appellate Court, however, the Court did not deal with recovery of dower and increased

the amount of maintenance. Both parties came to the Islamabad High Court in a writ petition. The

IHC decided that the deferred dower cannot be paid during the subsistence of marriage unless it

was agreed between the parties or death of either party or divorce. The wife appealed to the

Hon’ble Supreme Court. The Court endorsed the decision of the IHC. The Hon’ble Supreme Court

relied on Kitab al-Fiqh ‘ala Mazahib al-Arb‘ah by Al-Jaziri and stated that “the deferred dower is

payable at the time stipulated between the parties, but where no time is stipulated, it is payable on

dissolution of marriage either by death or divorce. But the deferred dower does not become

"prompt" merely because the wife has demanded it.” It is appropriate to mention what exactly is

said in the original book of Jaziri. While discussing the opinion within the Hanafi school of

thought, Jaziri stated that “[A]nd when dower is specified for her: half of it prompt and half

70
PLJ 2006 Lah. 927.
71
2009 SCMR 1458.
deferred and the time for the deferred is not mentioned, as if he said to her: ‘I marry you on 100,

50 prompt and 50 deferred and the time for the deferred [portion] is not specified, so, there is

difference of opinion. Some [jurists] argued, that the deferment is void and the entire dower shall

be paid instantly; others say that the deferment is legal and it takes place at the time of separation

either by death or divorce, and this is the correct view.” The above opinion seems to be available

almost in verbatim in al-Bada’i‘ of ‘Alauddin Al-Kasani’s (587/1191)72 and Fatawa al-Hindiya.73

The only addition in both is “as is the custom in our land” which is found in both Bada‘i’ and

Fatawa. Since this opinion has become a binding precedent being the decision of the Supreme

Court, it can only be overruled either by a larger Bench of the Supreme Court or by an amendment

in law which would provide the quickest remedy for battered women for payment of their deferred

dowers on demand. However, there are conflicting decisions from the High Courts on the same

issue. In Muhammad Sajjad v A.D.J.74 the main issue before the LHC was that the wife had sought

recovery of dower, maintenance, and dowery. The Family Court decreed her suit and the first

Appellate Court upheld the same. The husband brought writ petition before the LHC. He assailed

the decree on the ground that during the subsistence of his marriage he is not supposed to pay the

deferred dower. The Court ruled that the view that deferred dower could only be paid on death or

divorce is not supported ‘by any recognized principle’. That “deferred dower shall always be

treated as prompt if no specified period for the payment of dower is fixed”75 and that “the

classification of dower as prompt and deferred has no legal sanction behind it…”76. Justice Bhatti,

72
‘Alauddin Abu Bakr al-Kasani, Bada’i’ al-Sana’i’ fi Tartib al-Shara’i‘, ed., Muhammad ‘Adnan Derveesh
(Beirut: Dar Ihya’ al-Turath al-‘Arabi, 2000), 2: 580.
73
Fatawa ‘Alamgiriya, (Quetta: Maktaba Rashidiya, n.d.), 1:318.
74
PLD 2015 Lah 405.
75
Ibid., para. 16.
76
Ibid., para. 19. The same sentence seems to be taken from another judgment of the Lahore High Court reported as
2000 CLC 1384, para. 9.
however, did not refer to Sadia Usman’s case. Similarly in Tahir Hanif v Saira Kosar77, the wife

filed two suits for recovery of deferred dower and maintenance. In this case the dower was

demanded at the time of Rukhsati (wedding) and the husband promised to pay it after one year of

the marriage. Counsel for the husband relied on Sadia Usman’s case but Justice Sardar Abdul

Hameed Khan of Shariat Court of Azad Jammu & Kashmir (AJ&K) referred to an earlier decision

of the LHC, Dr Subaira Sultana case78 and held that if the time for the payment of deferred dower

is not fixed “it will be payable on the eve of dissolution of marriage by death or divorce”.79 Justice

Khan argued that the classification of prompt and deferred dower is practiced in society. It is

incorporated for the convenience of the parties and does not have any legal sanction behind it. He

asserted that deferred dower does not mean that it is waived or postponed until dissolution of

marriage. The Court did not interfere in the judgment and decrees passed by the trial Court. A very

good case on the distinctions and consequences of the classification of dower into prompt and

deferred is Dr. Sabira Sultana v Maqsood Sulari, A.D.J.80 in which Justice Abbasi of the Lahore

High Court stated that “[T]he classification of dower as prompt and deferred has no legal sanction

behind it except the general practice in the Muslim Society for the convenience of the parties.

Normally, women do not demand payment of full dower which is fixed at the time of marriage

and only a portion of the dower is paid before consummation of marriage and the remaining dower

is deferred to be paid later which does not mean that either it was waived or was treated as deferred

till dissolution of marriage.”81 He also ruled that “[T]he concept and wisdom in this classification

of dower as prompt and deferred depend upon the better relations of parties and protection of right

77
2016 YLR 440.
78
2000 CLC1384.
79
2016 YLR 440, para. 17.
80
Dr. Sabira Sultana v Maqsood Sulari, Additional District & Sessions Judge, Rawalpindi, 2000 CLC1384.
81
Ibid., para. 10.
of a woman in unforeseen circumstances without taking away her right of demand of payment of

dower till the marriage is not dissolved.”82 The Court ruled that “[A] person is not supposed to

contract a second marriage without maintaining the first wife and payment of dower and thus, in

case of contract of second marriage without payment of dower to the first wife, the law does not

permit withholding the payment of dower till the dissolution of marriage. The deferred dower is a

sort of guarantee for a woman against ill-treatment, non-maintenance, desertion or any other

abnormality in the family life including rash and arbitrary divorce whereas the prompt dower is

payable either at the time of marriage or at any subsequent time when it is demanded by the wife.”83

The Court held that “the payment of deferred dower is deemed to be postponed till either the

specified time and if no time is specified, till the wife demands it.”84 The LHC reversed the

decision of the Additional District Judge or the first Appellate Court in the instant case which had

dismissed the suit of the petitioner for the recovery of dower and restored the judgment and decree

passed by the Family Court and order its execution accordingly. After analysing various cases

regarding the time of payment of deferred dower, it seems that Courts in Pakistan have developed

elaborate principles of Islamic law mainly derived from the Hanafi school of thought, and with

few exceptions, have followed these principles consistently.

In Pakistan another reason which makes deferred dower as prompt and payable immediately

is when a husband marries without the permission of the first/existing wife or wives as per section

6(5)(a) of the Muslim Family Law Ordinance, 1961. The section says that “Any man who contracts

a marriage without the permission of the Arbitration Council shall:- (a) Pay immediately the entire

amount of dower whether prompt or deferred, due to the existing wife or wives, if not so paid,

82
Ibid.
83
Ibid.
84
Ibid.
shall be recoverable as arrears of land revenue.”85 In Muhammad Jamil v Mst. Sajida Bibi,86 where

among other issues the husband had married without the permission of his first wife as well as the

Arbitration Council, the Supreme Court applied this section and held that “[I]t is abundantly clear

that the entire amount of dower fixed at the of marriage whether prompt or deferred is immediately

payable on account of the second marriage.”87 That the petitioner No. 1 [that is, the husband] by

entering into second marriage without seeking prior permission either from the existing wife, i.e.

respondent No. 1 or the Arbitration Council, the dower even if it is termed as deferred or prompt

has become payable without any delay.”88 The Supreme Court refused to interfere in the judgment

of the Peshawar High Court which had ordered the immediate payment of the dower amount of

five tolas of gold. In Gul Hassan v Mst. Nasreen Akhtar89 the respondent (wife) demanded her

outstanding dower from her husband who insisted that she should forgo it and ask, instead for

khul‘ which the responded refused. The counsel for the husband (petitioner) contention that she is

not entitled to the dissolution of marriage due to hate and aversion on her part of the wife, did not

persuade the Divisional Bench of Peshawar High Court which ruled that the aversion in question

was the result of the cruelty, maltreatment; non-payment of dower; and non-maintenance by the

husband and that she is entitled to her dower as well as maintenance. The Court ruled that

“[M]arriage shall be dissolved on the basis of Khulla, [khul‘] when the wife is determined not to

live with her husband because of her hatred for him and without any fault on the part of the

husband.”90 The Court held that “[D]ue to the conduct and cruel attitude of the petitioner, it will

not be possible for the respondent to live with him within the limits prescribed by Almighty Allah

85
Section 6(5)(a) of the Muslim Family Law Ordinance, 1961 also available at
<http://punjablaws.gov.pk/laws/777a.html> (last visited June 2, 2022).
86
Civil Petition No. 4690 of 2018 (unreported).
87
Ibid., para. 4.
88
Ibid.
89
2014 Y L R 1743.
90
Ibid., para. 12.
and thus she could not be deprived of her dower debt and other rights.”91 The Court dismissed both

petitions of the husband.

Another related issue to dower is the subsequent enhancement of dower. This was the issue

in Abdullah v Naila Aslam92 in which a subsequent agreement to enhance dower from rupees 500

to 100,000 was considered valid and binding on the husband. Similarly, it was ruled by the

Supreme Court in Naziran Begum v Khurshid Begum93 that a husband can increase the amount of

dower fixed at the time of marriage. Similarly, in Malik Amir Akbar v Mian Murid Husain94 it was

held that a wife may settle on a lower amount of dower if the husband is unable to pay. Finally,

dower is secured for the woman as a debt upon her marriage and is not a gift.

Conclusion

Dower is a sum of money or property which becomes payable by the husband to the wife as an

effect of marriage. Dower is classified as far the time of its payment is concerned into prompt and

deferred. Since a marriage is valid even if the dower is not mentioned, therefore, it is also classified

into specified dower and standard dower. In the vast majority of cases in Pakistan part of the dower

is prompt and another part is deferred. The deferred dower becomes due on the time specified for

its payment or death or divorce or, in the case of Pakistan if the husband marries another wife

without the permission of the first wife or existing wife or wives. The Supreme Court has ruled in

Sadia Usman case95 that deferred dower does not become due when demanded by the wife and

that it will be paid either on dissolution of marriage by death or divorce. However, in other cases

the Courts have ignored this decision and have ruled that the prompt part becomes due on demand

91
Ibid.
92
NLR 2007 362.
93
1999 SCMR 1171.
94
2008 SCMR 505.
95
2009 SCMR 1458.
by the wife. It seems that Courts have developed elaborate principles of Islamic law mainly derived

from the Hanafi school of thought, and with few exceptions, have followed these principles

consistently.