INTRODUCTION
Dower is also known as Mahr in Muslim law. It is one of the significant ingredients of marriage under Muslim Law. It is an amount of money or other property paid or provided to the wife. It could either be a specified or unspecified dower. Mahr or Dower is the legal responsibility of a man towards the woman as a result of marriage. The Mahr (Dower) belongs to the wife and she can use it in any manner she likes it, neither her husband nor husband’s relations nor even her relations can give the command to her in the matter of using the Mahr money or property. Mahar may be fixed orally or in writing (meharnama); it may be fixed, before, during, or soon after marriage.
According to Mulla, a dower is a sum of money that wife is entitled to receive from her husband in consideration of marriage.
Even after divorce, Mahr is non-refundable (unless the wife remits it at her- willingness) and it becomes the property of the wife till eternity. Even if marriage is not consummated, it is mandatory to provide mahr to the wife.
The case of Hamira Bibi v. Zubaida Bibi, (1916) 431 A299, indicates that Dower is an essential ingredient under the Mohammadan law to the status of Marriage, to such an extent this is so that when its unspecified at the time the marriage is contracted the law declares that it must be adjudged on definite principles.
In Nasra Begum v. Rijwan Ali, AIR (1980) All 118 at P 120, The court held that where there has been an agreement between the parties at the time of their marriage about the amount of dower payable by the husband between husband and wife for payment of dower the quantity becomes recoverable under the agreement.
Quantum Of Mahr
The amount of Mahr differs from one section to another like under:
Hanafi Law – 10 Dirhams
Malaki Law – 3 Dirhams
Shafi Law – No Fixed Amount
Shariya Law – No fixed amount.
A dirham (derived from Greek) is the name of a silver coin of 2.97 grams in weight. Mahr is not only the right of the wife; it adds to her dignity and saves her in times of Pain or divorce or death of a husband. According to Muslim Law on the dissolution of marriage, the wife can claim her dower money or Mahr. No maximum, amount of dower is prescribed, it may be higher or lower and depends upon the source of income earned by the husband. The husband can fix a higher amount of dower but his parents are not liable to pay the same in case if he fails to pay. Generally, Mahr is fixed as above, but if not so fixed at the time of marriage, then the wife may get the amount fixed through court. Further, it acts, as a check on the capricious exercise power of the husband’s right to talak.
TYPES OF MAHR
Mahr is divided into two types:
a) Specified Dower (mahrul-musamma)
b) Unspecified Dower (mahrul misal)
a) Specified Dower (mahrul-musamma)
If the amount of dower is expressed in the marriage contract, it is known as the specified dower. Dower is usually settled by the parties either before the marriage or at the time of the marriage or even after the marriage. If the parties to the marriage have attained the age of puberty and are of sound mind, they are competent to settle among themselves the amount of dower. If the party is minor then Mahr is paid by the father on behalf of his minor son. Mahr fixed by the father at the time of marriage on behalf of his minor son is binding on the minor son on his majority.
- Specified Dower is further divided into two parts i) Prompt dower (muajjal) ii) Deferred dower (muvajjal)
i) Prompt dower (muajjal) –.
- A technical term for Prompt is Muajjal. The word Muajjal is originated from a root meaning ‘hasten’, ‘to proceed’.
- Prompt dower is payable instantly after marriage on demand. A wife can refuse to enter into the conjugal domicile of husband until the payment of the prompt dower is provided.
- When dower is paid, it is usually split into two equal parts, one part is paid at once or on-demand and the other on the death of the husband or after the dissolution of the marriage or at the happening of some specified event.
- Even after consummation of marriage Prompt dower does not become deferred.
- It is only on the payment of prompt dower that the husband is entitled to enforce conjugal rights.
- Prompt dower is payable on demand.
ii) Deferred dower (muvajjal)
- A technical term for Deferred is Muvajjal. The word Muvajjal is originated from the root meaning ‘delayed’ or ‘deferred.’
- It is payable on dissolution of marriage either by death or divorce. If the wife dies, her heirs may claim, the mahr. On husband’s death or divorce, she may sue and recover.
- The wife is not entitled to demand payment of deferred dower.
- The widow has the right to relinquish her dower at the time of her husband’s funeral by the recital of formula.
- The interest of the wife in the deferred dower is a vested one and not a contingent one.
b) Unspecified or Proper dower (mahrul misal) –
It is the obligation as well as the legal responsibility of the husband to pay and it does not depend upon any contract between the parties. Therefore, the husband is bound to pay Mahr even if it is not specified. The only question would be about the quantum. If no Mahr is paid to the wife then, the wife will be entitled to receive the amount which is customary in the community or respective society, what is proper dower in each case will be determined as under –
- Concerning the social position of her father’s family.
- Her qualifications.
- The social and economic position of the husband.
- Wife’s age, beauty, fortune, understanding, and virtues.
- Mahr paid earlier in their family (i.e., Mahr generally settled for women in the wife’s father’s family such as her sister, paternal aunt, etc)
Author: Varsha Jayan,
Sharda University