INTRODUCTION
Let’s delve into historical aspects to study the background that gave rise to the concept of Mahr in order to understand its origin, legality and significance in Islam and Islamic law.
In pre-Islamic Arabic Era when the postulation on marriage as we know it today was not established, the sexual relationship between man and woman was in vogue. The relation between man and woman back then could hardly be considered better than prostitution. However, the determination evolved with time.
Men often used to disposes their wives and turned off their back to them and left them absolutely helpless without any means. A device was prevalent in the name of SHIGHAR marriage, in which a woman was married on influence her father or brother to any man in consideration of the latter giving his sister or daughter in marriage to the former, in order that neither of the wife could get dower. The women being in marriage were often falsely accused of unchastity in order to deprive them of dower.
In a so called, BEENA marriage back then, the husband visited the wife but did not bring her home. The wife in this kind of marriage was called a Sadiqua or female friend and gift made to her was known as Sadaq which means a dowry. The term Sadaq was believed to be synonymous with Mahr. However, originally both the term Sadaq and Mahr were quite distinct. Sadaq was a gift to wife in Beena marriage whereas, Mahr was merely a compensation given to parents of the wife in BAAL form of marriage, a kind of marriage where the wife was supposed to part her ways from her parents and in lieu of which husband was supposed to pay compensation to wife’s parents.
Promulgation of Islam on light of teachings of Prophet Muhammad abolished all stereo kinds of marriages and gave rise to the just kind of Marriage, as in evident in Quran: “If you separate yourself from your wives, send them away with generosity: it is not permitted to you to appropriate the goods you have once given to them’’.
DEFINITION
Mahr or dower is a sum of money that is payable to wife by the husband as a consideration of marriage, either by agreement between the parties or by operation of law. Mahar or dower may either be prompt (Mu’ajjal), or deferred (Mu’wajjal).
According to Ameer Ali, “Dower” is a consideration that belongs absolutely to the wife.
According to Wilson, “Dower” is a consideration for surrender of person by the wife. It is technical Anglo-Mohammedan term for its equivalent “Mahr” in Arabic.
According to Mulla, “Dower” is a sum of money or other property that which the wife is entitled to receive from the husband in consideration of the marriage. The word consideration is not bused in then sense in which the word is used in The Indian Contract Act. Its is an obligation imposed upon the husband as a mark of respect to the wife.
Relevant Case Laws
In Abdul Qadir v. Salima, Justice Mahmood emphasized that Dower under the Muslim law is a sum of money or other property promised by the husband to be paid tpo wife in consideration of marriage, and even if no dower is fixed or mentioned at the marriage ceremony, the law confers the right of dower towards the wife.
TYPES OF MAHR OR DOWER
Mahr or Dower can broadly be classified in following manner:
- SPECIFIED DOWER (Mahr-I-Musamma)
- Prompt Dower (mu’ajjal mahr)
- Deferred Dower (mu’wajjal mahr)
- Prompt Dower (mu’ajjal mahr)
- CUSTOMARY OR PROPER DOWER (Mahr-I-Misl)
- SPECIFIED DOWER (Mahr-I-Musamma)- It is a kind of dower, amount of which is fixed and stated in the marriage contract. The amount maybe fixed before the marriage, at the time of the marriage or after the marriage by both the parties. In case of marriage of a minor boy or lunatic boy, the amount of mahr or dower is decided by the guardian of the minor or lunatic boy. The amount of dower fixed by the guardian becomes binding on the minor or lunatic boy and he cannot on attaining the age of majority question or be not the party of the consideration. The husband can settle any amount as dower for his wife. However, it may leave nothing to his heirs after the payment of the amount. But the amount of dower shall nowhere be settle less than ten dirhams according to Hanafi Law and 3 dirhams according to Maliki Law. Shia Law fix no minimum amount for dower. For those muslim husband who are very poor and cannot even pay an amount of 10 dirhams to their wife, the prophet has directed them to teach Quran with meaning in lieu of dower. There is no maximum limit for dower and the minimum has now become Obsolete.
- Prompt Dower- It is to be paid by the husband to the wife immediately after marriage on demand by wife.
According to Ameer Ali, a wife may refuse to enter into conjugal domicile of the husband, until the prompt dower is fulfilled.
Essentials of Prompt Dower :-
Prompt dower must be paid immediately, once the marriage is consummated, unless delay is determined for or agreed. It can be asked for at any time, before or after the marriage. The wife has full right to refuse herself to her husband, until the prompt dower is paid. If the wife is minor, the parents may refuse to send her to the matrimonial home until the payment of prompt dower is made. However, the husband is still bound to look after wife’s expenses, although she is residing apart from him.
Prompt dower does not become deferred after the consummation of the marriage the wife can still sue the husband for the recovery of the prompt dower even after consummation of the marriage. However, the wife cannot deny for conjugal rights of the husband for the non-payment of dower.
- Deferred Dower- It is to be paid by the husband to the wife on instance of dissolution of marriage either by death or divorce.
According to Ameer Ali, generally in India dower is the Penal Sum with the object to compel husband to fulfil marriage contract in its entirely.
Essentials of Deferred Dower :-
Deferred dower sum is payable by the husband essentially after the dissolution of marriage, either by death or divorce. However, if there is an agreement between both the parties for the payment to be made earlier than the dissolution of marriage. Such an agreement would be valid and binding.
The widow may relinquish her dower at the death of the husband’s funeral by the recital of a formula. Such an act must be voluntary act of the widow.
The interest of the wife in deferred dower is a vested one and not contingent one.
- CUSTOMARY OR PROPER DOWER (Mahr-I-Misl)- When the amount of the dower is not fixed in the marriage contract at the time of the marriage or even if the marriage is contracted on the condition that the wife should not claim any dower, the wife is entitled to dower.
Regulation of proper dower
The proper dower is regulated according to the following factors :-
Personal qualification of the wife; her age, beauty, fortune, understanding and virtue.
Social position of her father’s family.
Dower given to her female paternal relations.
Economic conditions of her husband.
As per circumstances of time.
There is no maximum limit for the amount of proper dower under the Sunni law, but under Shia law the amount should not exceed the amount of 500 dirhams.
LEGAL IMPLICATION OF UNPAID MAHR IN INDIA
On account t of non-payment of dower, the muslim law confers upon the wife the following three rights to compel payment of her dower:
- Refusal of conjugal rightsRight to claim dower as debt Right to retain deceased husband’s property.
- Refusal of Conjugal rights
The wife has the right to refuse for conjugal rights as long as the prompt dower is not paid. In case of a wife who is minor or insane, the parent or the legal guardian has the right to send her to the husband’s house the payment of the prompt dower is made. However, the husband is still bound to maintain her during such a stay.
The absolute right of the wife to recover her prompt dower, invalidates once she gives him the access to her. After the consummation the husband may attempt for suit of restitution of conjugal rights, upon her refusal can secure only a decree conditional on payment of dower.
Case laws
Abdul Qadir v. Salima- It was held thaton the non- payment of the dower, the wife can refuse for conjugal rights over husband. If the husband sues in such an incident for restitution of conjugal rights before sexual intercourse takes place, non- payment of dower is a complete defence to the suit and the suit will be dismissed.
Similarly, in Rabia Khatoon v. Mukhtar Ahmed– It was held that if the suit is brought after the sexual inter-course has taken place with her free consent the proper decree to pass is not a decree of dismissal, but a decree of restitution, conditional on payment of prompt dower.
- Right to claim dower as debt
It was held by the lordships of the privy council that “the dower ranks as debt and the widow is entitled with other creditors to have it satisfied on the death of the husband, out of his estate.” During the lifetime of the husband, the wife can recover the indebted dower by instituting a suit against the husband. After the death of the husband, the wife shall claim the dower debt by instituting a suit against the legal heirs of the husband. However, the legal heirs will not be liable personally but severably. If the widow remains in possession of the husbands property, under the claim for his dower, the payment shall be made by the legal heirs of the husband by recovering their respective shares upon payment of a quota of the dower debt proportionate to those shares.
In Mohammad Tusabuddin V. Yasin Begum, the court held that the claim of a widow for dower is in the nature of the secured debt.
- Right to retain possession in lieu of unpaid Dower
Unpaid dower ranks as debt, and wife along with other creditors is entitled to have it satisfied on the death of the husband out of his estate. However, this right only exists if she is lawfully in possession after his husbands death. If she never had possession or if she gave it up, she cannot later claim possession through this right. It shall not be considered as a charge or mortgage over the property, but only a personal right enforceable against the heirs and creditors of her deceased husband.
CONCLUSION
The concept of Mahr (Dower) in Islamic law is much more than a mere custom. It is a legally binding ethical obligation that stems directly out of Nikah (marriage contract). Historically it is rooted in socio-economic structure where women required protection. Although mahr has evolved with time but it’s fundamental core remains the same. It acts as a mark of respect, a right which is vested and a form economic security for wife in marriage, underscoring the husband’s commitment.
The legal framework specially in India, recognizes the Mahr’s importance by classifying it into Specified Dower (Prompt and Deffered) and Customary Dower (Mahr-i-Misl), each with its own binding conditions and legal implications. The law in India provides robust mechanism for the wife to use her right of Mahr even after the death of the husband. The right of refusal to cohabit, right to claim dower as debt and right to retain the possession in lieu of dower being unpaid are powerful remedies that safeguard wife’s economic interest even after death of the husband.
Hence, the Mahr reinforces the enduring principle of marriage in Islam, emphasizing it as a sacred contract with significant, binding and legal responsibilities.
About Author
Qurratul Ain, a law student at Sister Nivedita University, school of law, Kolkata, is a budding legal writer with a keen inclination towards analysing the dynamic contours of the academics legal domain. Her principal academic interests are Family law, Intellectual property Rights and Laws of Contract. Driven by intellectual curiosity and strong sense of professionalism, Qurratul Ain aspires to make substantive contribution to legal academia, research and practice.