Discuss the right and liabilities of a Muslim widow who is in possession of her deceased husband's property in lieu of an unpaid dower.

Question: Discuss the right and liabilities of a Muslim widow who is in possession of her deceased husband's property in lieu of an unpaid dower. [UPJS 1997]

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Answer

The claim of the wife or widow for the unpaid portion of Mahr is the unsecured debt due to her from her husband or his estate respectively. It ranks rateably as an unsecured debt and is an actionable claim.

During her lifetime, the wife can recover the debt from the estate of her deceased husband. If however, she predeceases her husband, the heirs of the wife become entitled to her dower.

Widow's Right of Retention

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.

The right of a Mohammedan widow to retain possession of her husband's property, which she has lawfully obtained, has been held to be a heritable right in Majidmian Banumian v. Bibi-Saheb Jan, (1916) I.L.R. 40 Bom. 34. In the same case the view has been expressed that if the widow or her heirs are wrongfully dispossessed, she or they can sue to recover possession. But the widow's right only arises when the possession is obtained.

It was held in Hamira Bibi v. Zubaida Bibi, (1916) ILR 38 All 581, she is only in the position of an unsecured creditor, subject to which she is entitled to retain the property lawfully in her possession. She has no right to sue for possession if she never had it. Prima facie it would seem to follow that the widow's heirs unless they follow her immediately into possession and are subsequently dispossessed, cannot sue to recover possession. So that what is heritable would be merely the right to retain possession. The heirs cannot inherit more than the widow herself had.

In the case of Ahmed Hossein v. Mussainut Khodeja, (1868) 10 W.R. 368, the court observed that:

"Whatever the right of the widow in possession may be called, it appears to be founded on the power of the widow as a creditor for her dower to hold the property of her husband of which she has lawfully and without force or fraud obtained the possession until her debt is satisfied, with the liability to account to those entitled to the property subject to the claim for the profits received."

Similarly in Maina Bibi v. Chaudhri Vakil Ahmed, (1925) 27 BOMLR 796, it was made clear that the possession of the property being once and lawfully acquired, the right of the widow to retain it till her dower debt is paid is conferred upon her by the Muslim law. The widow's right of retention does not create any right of the widow on the property. She can simply retain the possession and appropriate the usufruct until her dower debt is satisfied. She has thus no right to alienate the property by sale, mortgage, gift, or otherwise and if she attempts to do so, she loses her right of retention. The Supreme Court held that the widow is not entitled to priority as against her husband's other unsecured creditors.

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