‘Dower is the sum of money or other property, which the wife is entitled to receive from the husband in consideration of the marriage'. Discuss fully and point out how and under what conditions the wife can remit the whole or part of her dower.

Question: ‘Dower is the sum of money or other property, which the wife is entitled to receive from the husband in consideration of the marriage. ‘Discuss fully and point out how and under what conditions the wife can remit the whole or part of her dower. [BJS 1978]

Find the answer only on Legal Bites. [‘Dower is the sum of money or other property, which the wife is entitled to receive from the husband in consideration of the marriage’. Discuss fully and point out how and under what conditions the wife can remit the whole or part of her dower.]

Answer

Mahr or dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. Under Mohammedan law, the dower is an obligation imposed upon the husband as a mark of respect to the wife.

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):

1. Refusal of Conjugal Rights

Before the consummation of the marriage, the wife is entitled to deny cohabitation to the husband till he gives her Prompt Dower on demand. It is to be noted that under Muslim law, a husband has the right to cohabit with his wife, and she cannot refuse the same without any reasonable excuse.

But non-payment of Prompt Dower before consummation is a lawful justification for the wife to refuse cohabitation. A Muslim wife can refuse to live with her husband and refuse to him sexual intercourse so long as the Prompt Dower is not paid to her.

The relevant case law is Nasra Begum v. Rizwan Ali, AIR 1980 All 119, in which the Allahabad High Court held that the right to dower comes into existence before cohabitation and Prompt Dower may be demanded even before cohabitation. Where the wife is minor or insane, her guardian can refuse to allow the husband to take his wife with him till the Prompt Dower has been paid.

If the minor wife is already in the custody of her husband, such a guardian can take her back on the ground of non­payment of Prompt Dower. But, where the consummation has taken place even once, the wife’s right to refuse consummation is lost. If the marriage has already been consummated, the husband’s suit for restitution of conjugal right will not fail on the ground of non-payment of Prompt Dower.

However, the court has discretion, even in such a case, to pass a decree for restitution of conjugal rights subject to Prompt Dower’s payment condition.

Another case is Anis Begum v. Muhammad Istafa Wali Khan AIR 1933 All 634. It was held by Sulaiman, C.J., that there was no absolute right in a husband to claim conjugal rights unconditionally. The courts have the discretion to make the decree of restitution of conjugal rights conditional on payment of the wife’s unpaid Prompt Dower even where the marriage has already been consummated. Accordingly, the decree for restitution of conjugal rights was passed in favour of the husband subject to his payment of Rs 15,000/-.

2. Enforcement of Dower as debt

Where the marriage has been consummated, the wife cannot enforce her claim by refusing conjugal rights to the husband. In such a situation, the wife can recover her unpaid dower by maintaining an action in a court of law. She may realize it from her husband in the same manner as a creditor recovers his loan.

If the husband dies, the widow is entitled to recover the amount by filing a suit against the legal heirs of the deceased husband. But the husband’s legal heirs are not personally liable to pay the dower. The dower is a debt against the estate of the deceased husband, which is inherited by heirs.

3. Widows’ Right of Retention

After the death of the husband, the most effective method of enforcement of the dower is the exercise of the right of retention. A widow whose dower remains unpaid has a right to retain the properties of the husband till her dower debt is satisfied. This right is termed the right of retention in lieu of unpaid dower, and it is available to a widow, whether there is an agreement between the parties for this right or not.

Under this right, if a wife has taken possession of her husband’s properties lawfully (with the free consent of the husband) in lieu of an unpaid dower, then she is entitled to retain that possession after the death of her husband until her dower is paid out of the properties retained by her.

This right is exercised against the creditors of her deceased husband and his legal heirs if any. The husband’s legal heirs cannot get possession (and benefit) of the deceased’s properties until they make payments towards the unpaid dowers in proportion to their respective shares. Thus, this may be said to be a coercive method of recovery of unpaid dower from the husband’s legal heirs.

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