"Dower" is an invaluable right of a Muslim wife. Comment. What are the different types of dower?

Question: "Dower" is an invaluable right of a Muslim wife. Comment. What are the different types of dower? [DJS 2005]

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Answer

Mahr or Dower is a sum of money or other property to be paid or delivered to the wife. It is either specified or unspecified but in either case, the law confers a mandatory right of Mahr or Dower on the wife.

The Mahr (Dower) belongs to the wife and she can deal with it in the manner she likes and neither her husband nor husband's relations nor even her relations can dictate her matter of using the Mahr's money or property. No doubt, Mahr was originally analogous to the sale price, but since the inception of Islam, it is hardly correct to regard it as the price of sexual intercourse.

Muslim marriage is like a contract where the wife is the property and Mahr is the price or consideration. However, it is also true that non-payment of Mahr does not void the marriage, so Mahr is not purely a consideration. In pre-Islamic Arabia, Sadqua was a gift to the wife but Mahr was paid to the wife's father and could, therefore, be regarded as the sale price. But after Islam, Mahr payment is required to be paid to the wife and not to her father, it could no longer be regarded as Sale Price.

According to Mulla, a dower is either a sum of money or property which the wife is entitled to receive in the consideration of marriage from the husband.

No sin upon you if you divorce woman before you have touched them (but) appoint a portion fixed for them by you (rather pay Mahr) and make provision (or gift) for them, Rich, according to his means, Poor, according to his means.

And if you divorce them before you have touched them, and you have fixed for them the dower, (pay) half of what you have fixed (i.e., dower) unless they (women) relinquish or give it up. Thus, it can be said that the "Dower" is an invaluable right of a Muslim wife.

Types of Dower

A. Specified dower (Mahr-i-musamma)

The Mahr is usually fixed at/ the time of marriage but it is also fixed after the marriage. Mahr fixed by the father on behalf of his minor son is binding on the minor son on his majority. However, under Hanafi Law, the father is not personally liable for the Mahr but in Ithna Ashari Law, the father is also held liable. Where the amount has been specified, the husband will be compelled to pay the whole of it, howsoever excessive it may be.

But in Oudth, only a reasonable amount will be granted, if the court deemed the amount excessive or fictitious. Sometimes, for the purpose of glorification, a large Mahr for the purposes of show is announced but the real Mahr is smaller. Such a Mahr for the purposes of the show is fictitious. But this will be a fraud on Law and defeats the very purpose and hence must not be allowed to be given recognition in law.

B. Unspecified dower (Mahr-i-Misl)

The obligation to pay the dower is a legal responsibility on the part of the husband and is not dependent upon any contract between the parties. Hence, the husband's liable to pay Mahr even if it is not specified. The only question would be the quantum. If no Mahr is fixed, the wife will be entitled to receive the amount which is customary in the community or in the respective society or what is proper in each individual case. What is proper in each individual case will be determined as under?

1. With reference to the social position of her father's family.

2. Her own personal qualifications.

3. Social position of the husband. But the means of husband are of little account.

4. Her age, beauty, fortune, understanding, and virtues.

Mahr is fixed earlier in the family (i.e., Mahr is fixed for the father, brother, uncle, sister, etc. of the wife's family).

C. Prompt (muajjal) and deferred (muwajjal) Mahr

A technical term for Prompt is Muajjal and for Deferred is Muwajjal. The term Muajjal is derived from a root meaning 'hasten', or 'to proceed' whereas the term Muwajjal is derived from the root meaning 'delayed' or 'deferred.'

The prompt dower is payable immediately after the marriage but the deferred Dower becomes payable either on the dissolution of the marriage or on the happening of a specified event. When the dower is fixed, it is usual to split it into two equal parts, one part is paid at once or on demand and the other on the death of the husband or on divorce or on the happening of some specified event. In Ithna Ashari Law, the presumption is that the whole of the dower is prompt but in Hanafi Law, the position is different.

Ideally and usually, the whole Mahr is required to be promptly awarded but in the earlier cases, the Full Bench held that the usage (custom) of the wife's family is the main consideration and in absence of proof of custom, the presumption is that one half is prompt. However, the proportion may be changed to suit particular cases.

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