Dower is a peculiar Muslim law concept. In the modern law, mahr is something in the nature of gift which a Muslim husband undertakes to make to his wife. It is an integrated part of Muslim marriage; probably it is also used as a deterrent to Muslim husband’s absolute power to announcing divorce on his wife.
Mulla defines “dower” as a “sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage”[1]. It is not a consideration proceeding from the husband for the contract of marriage but it is an obligation imposed by the law on the husband. Non specification of Dower does not render a Muslim marriage void it is an integral part of marriage and it may be fixed either before, at or after the marriage. In case it is not fixed by the parties, it is implied in every marriage and is actually fixed by the courts. Such importance is attached to the Dower that even if a wife enters into stipulation in the marriage contract that she abandons her claim to dower such stipulation is void and the wife will nonetheless be entitled to proper dower.
Quantum of Dower
The peculiarity of the Muslim concept of Dower is that no school of Muslim fixes the maximum amount of Dower even the minimum amount of dower is not fixed except by the Hanafis and the Malikis.
The Hanafis fix the minimum amount at 10 Dirhams and the Malikis at 3 Dirhams. Since no maximum amount of Dower is prescribed a Muslim couple may fix any amount of dower even an amount which is evidently much beyond the means of the husband[2]. Sometimes dower is deliberately fixed at a very high figure so that it act as a deterrent on husbands power of divorce[3] and in such case the husband is not allowed to plead equity[4].
However Oudh Law act 1876 and the Jammu Kashmir state Muslim Dower act 1920 lays down that courts may not award stipulated dower if it consider it to be too expensive and should award and amount which it considered reasonable with reference to the means of the husband and the status of the wife.
CLASSIFICATION OF DOWER
- Specified Dower{ Mehr-e-Mussama}
- Proper Dower or Unspecified Dower{Mehr-e-Misl}
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Specified dower:
It may be fixed by the parties at the time of marriage and in case son is minor then it is fixed by the father.
The Hanafis take the view that the amount fixed by the father is binding on the son and the father is not liable personally or as surety for his son[5]. Under Hanafis School the wife is entitled to receive the minimum amount of dower even if she has agreed to receive less.
Under the Shia school the father is liable if the son has no means. The wife is entitled to receive only the amount fixed under the agreement whatever may be its quantum.
Sometimes for the purpose of glorification of the husband a large amount of dower is announced in the public but in fact A moderate amount is fix in a private it is the amount fixed in the private which is the real and realizable dower.
The Specified Dower is usually divided into 2 parts:
- Prompt Dower{muafal}
- Deferred Dower{muwajjal}
Prompt Dower:
It is that portion of dower which the wife is entitled to at any time after the marriage. She has right even if the marriage is not been consummated.
So basically it is payable and realizable at once after the solemnization of marriage on demand and the wife has a right to refuse the conjugal relationship to the husband till the Promt dower is paid.
Rights of Wife for Non- Payment of Promt Dower:
- Refuse of sexual intercourse
- Refuse to live with husband
- Defence to husband’s suit for Restitution of Conjugal Rights.
Deferred Dower:
It is that portion of dower which is payable either on expiry of some specific period or on happening of specified contingency or in every case, on the dissolution of marriage, by death or divorce.
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Unspecified Dower or Proper Dower:
Dower been integral part of marriage, even when dower is not stipulated in the marriage contract, the wife is entitled to what is known as proper or customary dower.
So when at time of marriage no dower is fixed, it has been expressly agreed that there should be no dower even then wife is entitled to proper dower. The amount payable to wife is fixed by the court.
Basis to decide the amount are:
- Nobility of her birth
- The beauty of her person
- The custom of her female relationship
- Social position of wife’s father
- Her own personal qualification
No importance to husband’s social position or status is taken into consideration.
The Shia school take the view that proper dower cannot exceed 500 Dirhams.
Remission of Dower:
Although the wife has no power to agree not to receive any Dower at the time of marriage she has the power to remit the whole or any part of dower in favour of her husband or is heirs after the marriage.
The adult or sane wife has a power to remit the whole or any part of the dower even without consideration.
The remission of the amount of dower should be with the free consent of the wife. The consent given in great mental distress such as when her husband is on death bed and has died cannot be treated to be a free consent.
In Hasnumiya v Halim Nussa[6] case wife has given her consent to remission of her dower under a mental distress therefore she was even after that entitled to dower.
[1] Mulla: Mohammedan Law, 227(17th Ed.)}
[2] Haliman v Md. Manir, AIR 1971 Pat 385
[3] Zakiri v Sakina, ILR (1909) 32 All 167
[4]Md. Sultan v sarajuddima, AIR 1927,All 364
[5] Sabbir Hussain v Farzand, AIR 1938 PC 80
[6] AIR 1942 BOM 128
Author: Ridhi Gupta,
Panjab university and 3rd year