Dower under Muslim law

 

 

Synopsis-

1. Introduction
2. Meaning of Dower

III. Objective and Importance of Dower

• Classification of Dower

– Specified dower

– Proper dower

• Differences between Shia and Sunni law relating to Dower

 

1. Introduction

Islam, unlike other religions, strongly advocates marriage and treats it as a social necessity. The purpose of Islamic marriage is the creation of families which are considered as a fundamental unit of the society.

Muslim law recognizes marriage as a civil contract. Since there can be no contract without consideration, a Muslim marriage cannot be contracted without consideration and the consideration which is taken in a Muslim marriage is called “Dower”.

However, Muslim jurists treat it as a mark of respect towards the wife. Dower is a unique concept under Muslim law.

This article discusses the meaning of Dower, its objective and classification of Dower under Muslim law. It also highlights the differences between Shia and Sunni law in relation to Dower.

 

1. Meaning of Dower

Mulla defines Dower as a sum of money or other property which the wife is entitled to receive from her husband in consideration of the marriage.

The term “consideration” is not to be interpreted in its general sense as used under Indian contract law because jurists consider it to be a token of love and affection towards the wife. Hedaya defines Dower as a token of respect given by the husband to the wife at the time of marriage. Dower is also called Mahr.

Abdul Rahim, in his book Muhammadan Jurisprudence, states that “Mahr is either a sum of money or other form of property to which wife becomes entitled by marriage. 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 as a mark of respect for the wife.”  

Dower is considered to be an integral part of marriage. It may be settled before or at the time of or even after the marriage. Non-specification of dower at the time of marriage does not affect its validity.

 

III. Objective and Importance of Dower-

The importance of dower lies in the fact that it affords protection to the wife against the arbitrary exercise of the power of divorce by the husband. Since Muslim law permits the husband to divorce the wife at his whims, dower seeks to put a check on the capricious exercise of such power.

It also acts as a check on the husband’s extravagance while having more than one wife.

Following are the objectives of dower:

1. imposing an obligation on the husband as a mark of respect towards the wife.
2. placing a check on the capricious exercise of power of divorce by the husband.
3. to provide for the subsistence of the wife after the dissolution of the marriage.

 

Classification of Dower- 

Dower is mainly classified into two types namely- (a) Specified dower i.e. dower which is fixed and (b) proper dower, which is dower that has not been fixed. Specified dower is further sub-categorized into prompt dower and deferred dower.

 

Specified dower-

If the amount of dower has been fixed by the parties before the marriage or at the time of marriage, it is called specified dower or Mahr-i-musamma. Execution of deed for fixing the dower is not necessary under Muslim law. If the bridegroom is a minor or a person of unsound mind, the dower is generally fixed by his father/guardian.

Dower fixed by the guardian is binding on the minor who cannot, after attaining the age of puberty, take the plea that he was not a party to it. Under Sunni law, dower fixed by the father is binding on the son though he is not personally liable for it.

Under Shia law, if the son has no means to pay the dower fixed by the father, the father becomes liable to pay it. Specified dower can be paid before or at the time of or anytime after the marriage.

 

In Kukkiya Begum vs. Radha Kishan, AIR 1944 All 241, the Allahabad High Court held that amount of dower fixed earlier may be increased after the marriage by mutual consent.

 

Specified dower is of the following types:

 

• Prompt dower – A specified dower which is payable immediately after the marriage or at any other time on the wife’s demand is called prompt dower. It may be realized before or after consummation and it does not get deferred after consummation of the marriage.
• Wife has the right to sue for recovery of prompt dower even after consummation of the marriage. Unless the marriage has already been consummated, the husband becomes entitled to enforce conjugal rights only after the payment of prompt dower.

 

In Rabia Khatoon vs. Mukhtar Ahmed, AIR 1966 All 548, the Allahabad High Court held that the wife may refuse to live with her husband and to admit to sexual intercourse until prompt dower has been paid. It was further held that prompt dower is payable on demand and proof of sexual intercourse between the parties is not necessary for claiming payment.

 

• Deferred dower – If a specified dower is not payable immediately after marriage and is payable upon the happening of any event or after the expiry of a particular period or upon the dissolution of marriage, it is called deferred dower or Mahr-i-Muwajjal. The wife is not entitled to demand payment of deferred dower unless otherwise agreed upon by the parties. The wife’s interest in deferred dower is a vested one and not a contingent one. On the death of the husband, the wife has the right to relinquish her dower but the relinquishment must be voluntary.

 

If no period or event has been fixed for payment of the deferred dower, it shall be payable on the termination of the marriage by divorce or by the death of either party.

 

Proper dower

If the amount of dower has not been fixed between the parties, before or at the time of marriage, the wife is entitled to get a reasonable amount from the husband as dower. This dower is called proper dower or Mahr-i-Misl. It is payable on demand by the wife. Even if the marriage has been solemnized on the condition that the wife shall not claim dower, she is still entitled to claim proper dowe from the husband. The amount of proper dower is generally fixed by the Court taking the following factors into consideration:

 

• personal qualifications of the wife.
• wife’s age, beauty, fortune, understanding, and virtue.
• the social position of the wife’s father’s family.
• economic status of the husband.
• dower generally settled for women in wife’s father’s family such as her sister, paternal aunt or paternal parallel cousin, etc.

 

1. Differences between Shia and Sunni law relating to Dower

 

The differences between Shia and Sunni law relating to Dower are as follows:

 

S.No.	Point of differentiation	Sunni law	Shia law
1.	The minimum limit for specified dower	A minimum limit of 10 dirhams was fixed by the early Hanafi lawyers though no minimum limit has been prescribed under law	No minimum limit of dower has been specified
2.	Maximum limit	No maximum limit for proper/specified dower has been prescribed	Proper dower cannot exceed 500 dirhams
3.	Agreement to waive dower	An agreement to waive dower is void	An agreement to waive dower by a sane and adult wife is valid
4.	Consummation of marriage	If the marriage gets dissolved by death and dower has not been specified, dower would be payable irrespective of whether the marriage was consummated or not	Dower is not payable on the death of either party before consummation of marriage
5.	Nonspecification of dower at the time of marriage or by custom	Part of the dower is regarded as prompt dower and the rest as deferred and the proportion of prompt and deferred dower is  regulated by the status of the parties and amount of dower settled	The whole amount is presumed to be prompt dower