Dower or Mahr under Muslim Law | Family Law - CLAT PG PDF Download

Introduction and Meaning of Mahr (Dower)

•  Mahr  , also known as Dower, refers to a sum of money or property that is  mandatory  to be given to the wife in a Muslim marriage. It can be  specified  or  unspecified  , but the law guarantees the right to Mahr regardless.
• Mahr is the wife’s  exclusive property  , and she has the freedom to use it as she wishes. Neither her husband nor their families can dictate how she uses the Mahr.
• While Mahr was once likened to a sale price, it is not accurate to view it as the price for sexual intercourse in the context of Islamic marriage.

Mahr in Muslim Marriage: Contractual Perspective

• In a Muslim marriage, the  wife  is seen as property, and Mahr is the price or consideration for the marriage contract. However, the non-payment of Mahr does not invalidate the marriage, indicating that Mahr is not solely a consideration.
• In pre-Islamic Arabia, Sadqua was a gift to the wife, and Mahr was paid to the wife’s father, resembling a sale price. After the advent of Islam, Mahr is paid to the wife directly, not her father, and is no longer viewed as a sale price.

Characteristics of Mahr

• Mahr must be given to the wife, but she has the option to remit it if she chooses. It is non-refundable even after divorce unless she decides to remit it.
• Mahr becomes the wife’s property  perpetually  and is mandatory even if the marriage is not consummated, in which case it is half of the specified amount.
• Mahr serves as a check on the husband's power of divorce, ensuring a measure of protection for the wife.

Mahr Amount

• The Mahr amount differs across Islamic sects:
  • Under  Hanafi Law  : 10 Dirhams
  • Under  Malaki Law  : 3 Dirhams
  • Under  Shafi'i Law  : Varies
• The Mahr paid by Prophet Muhammad for his daughter Fatima was  500 Dirhams  . A Dirham is a silver coin weighing  2.97 grams  .
• The monetary value of Mahr is not the primary concern; it is more about the respect for the woman. In cases of extreme poverty, the Prophet suggested alternatives like teaching the Quran as Mahr.
•  No maximum limit  is set for the dower amount. Even if the husband cannot afford it, a higher dower can be fixed, but the parents are not responsible for paying it if he fails to do so.
•  Mahrnama  (dower agreement) can be executed but is not mandatory.

Types of Dower 

 A. Specified Dower (Mahrul-Musamma) 

• Mahr is typically paid at the time of marriage but can also be paid after.
• If the father pays Mahr on behalf of his minor son, it is binding on the son when he reaches maturity.
•  Under Hanafi Law  , the father is not personally liable for the Mahr.
•  In Ithna Ashari Law  , the father is held liable for the Mahr.
• If the amount is specified, the husband must pay the entire amount, regardless of how excessive it may be.

 Two sub-types of Specified Dower: 

•  Prompt (Muajjal)  : This dower is payable immediately after the marriage.
•  Deferred (Muvajjal)  : This dower becomes payable either upon the dissolution of the marriage or upon the occurrence of a specified event.

 When dower is paid, it is common to split it into two equal parts: 

• One part is paid immediately or on demand.
• The other part is paid upon the death of the husband, divorce, or the occurrence of a specified event.

 In Ithna Ashari Law  , it is presumed that the entire dower is prompt.

 In Hanafi Law  , the presumption is different.

• Ideally, the entire Mahr should be awarded promptly.
• In earlier cases, the Full Bench ruled that the custom of the wife's family is the main consideration.
• In the absence of proof of custom, it is presumed that one half is prompt.
• This proportion can be adjusted based on specific cases.

 Wife's Rights 

• The wife can refuse to fulfill conjugal rights if the prompt dower is not paid.
• The husband cannot restrict the wife's movement until the payment is made.

 Unspecified or Proper Dower (Mahrul MisaD) 

The obligation to pay dower is a legal responsibility on the part of the husband and is not dependent upon any contract between the parties. Hence, the husband’s liable to pay Mahr even if it is not specified. The only question would be the quantum. If no Mahr is paid, wife will be entitled to receive the amount which is customary in the community or in respective society or what is proper in each individual case. What is proper dower in each individual case will be determined as under:

 1. Social Position of Her Father's Family 

The dower is influenced by the social standing and background of the wife's father's family.

 2. Wife's Personal Qualifications 

Factors such as the wife's education, skills, and personal attributes play a role in determining the dower.

 3. Husband's Social Position 

The social standing of the husband is considered, but his financial means are less significant.

 4. Wife's Age, Beauty, Fortune, Understanding, and Virtues 

Attributes like the wife's age, physical appearance, wealth, intelligence, and moral qualities are taken into account.

 5. Family Precedents 

Previous Mahr amounts paid within the wife's family (for her father, brother, uncle, sister, etc.) can influence the determination of proper dower.

Increase or Decrease of Dower 

 1. Increase of Dower by Husband:  The husband has the right to increase the dower at any time.

 2. Remission of Dower by Wife:  The wife has the option to remit the dower, either wholly or partly. This act of remission by the wife is known as  Hibatul Mahr  or  Hiba-I-Mahr  .

 3. Remission of Mahr and Consent:  There are instances where a wife, feeling neglected by her husband, might think that waiving the Mahr is the only way to win him back. In such cases, if her remission of Mahr is made without her genuine consent, it is considered non-binding. This principle was highlighted in the case of  Shah Bano v. Iftikhar Mohammad (1956, Karachi High Court)  .

Confirmation of Dower in Hanafi Belief 

According to Hanafi beliefs, a wife is entitled to dower in the following situations:

•  On Consummation:  The wife is entitled to dower at the time of consummation of the marriage.
•  On Valid Retirement:  The wife is entitled to dower upon valid retirement from the marriage.
•  On Death of a Party:  The wife is entitled to dower in the event of the death of either party.

Remedies of a Muslim Woman to Recover Dower 

The right to dower is an inherent right of every Muslim wife. But, unless this right is effectively enforced, it is of no use to her. Under Muslim law, the following means of enforcement of the right to dower are available to a wife (or widow): 

Refusal of Conjugal Rights 

• Before consummation of the marriage, the wife is entitled to deny cohabitation to the husband till he gives her Prompt Dower on demand.

 Right to Dower before Cohabitation 

• The right to dower exists  before cohabitation  .
•  Prompt Dower  can be demanded even before the marriage is consummated.

 Minor or Insane Wives 

• If the wife is a  minor  or  insane  , her guardian can refuse to allow the husband to take her until the Prompt Dower is paid.
• If a minor wife is already in the custody of her husband, her guardian can take her back due to non-payment of Prompt Dower.

 Impact of Consummation 

• If the marriage has been  consummated  even once, the wife loses the right to refuse consummation based on non-payment of Prompt Dower.
• After consummation, the husband’s suit for  restitution of conjugal rights  will not fail because of non-payment of Prompt Dower.

 Discretion of the Court 

• The court has the discretion to grant a decree for  restitution of conjugal rights  subject to the condition of paying Prompt Dower, even after consummation.

 Case Law Examples 

• In  Nasra Begam v. Rizwan Ali  , the court affirmed that the right to dower exists before cohabitation and Prompt Dower can be demanded beforehand.
• In  Anis Begum v. Muhammad Istafa Wali Khan  , it was ruled that a husband cannot unconditionally claim conjugal rights, and the court can make the decree conditional on the payment of the wife’s unpaid Prompt Dower, even after consummation.

 Recovery of Unpaid Dower 

• If the marriage has been  consummated  , the wife cannot enforce her claim by refusing conjugal rights. Instead, she can recover her unpaid dower by filing an action in court, similar to how a creditor recovers a loan.
• If the  husband dies  , the widow can recover the dower amount by suing the legal heirs of the deceased husband. However, the legal heirs are not personally liable to pay the dower; it is a debt against the estate of the deceased husband, which is inherited by the heirs.

 widow's Right of Retention 

•  After the death of her husband  , a widow has the right to retain her husband's properties until her unpaid dower is satisfied. This right is known as the  right of retention in lieu of unpaid dower  and is available to widows regardless of any prior agreement between the parties.
• When a wife lawfully takes possession of her husband's properties (with the husband's free consent) to satisfy her unpaid dower, she is entitled to retain that possession even after her husband's death until her dower is paid from the retained properties.
• The right of retention is exercised against the deceased husband's creditors and legal heirs. The legal heirs cannot gain possession or benefits from the deceased's properties until they pay the unpaid dower in proportion to their respective shares.
• This right serves as a  coercive method  to recover unpaid dower from the husband's legal heirs.
•  Right of retention  does not include the right to transfer the retained property.

 Effects of Right of Retention 

• The widow is required to provide a full account of the acquired property.
• She does not have the right to alienate the property.
• There is no restriction on filing a suit for recovery of dower possession.

 Loss of Right of Retention 

• Right of retention is lost when:  dower is satisfied  from the income of the property,  wife voluntarily hands over  the property,  wife alienates  the property along with possession.

Dower as a Debt 

• Dower is considered a debt, but not a secured debt. The wife is prioritized among other creditors. A wife, divorcee, or widow can recover dower from the husband or his estate upon his death. In case of the wife's death, her heirs can also inherit the right to recover the dower.

Period of Limitation to Recover Dower 

• The period of limitation to recover dower is  3 years  from the dissolution of marriage or the death of the husband. In case of the right of retention, the period lasts until the amount is satisfied.

Suit for Recovery of Dower Amount 

• A suit for the recovery of the dower amount is maintainable under  Section 3 of the Muslim Women (Protection on Divorce) Act, 1986  before the Magistrate.

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