Narrate the importance and function of dower in Muslim law.

Question: Narrate the importance and function of 'dower' in Muslim law.

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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. The importance and function of the dower in Muslim Law have been elaborately discussed in the case of Ahamadalli Mahamad Hanif v. Rabiya Alias Babijan Hasan Shaikh, (1978) 80 BOMLR 238, as follows:

"Mahr or Dower according to the Mohammedan Law is a sum of money or other property promised by the husband to be paid or delivered, to the wife in consideration of the marriage. Even where no dower is expressly fixed or mentioned before the marriage, the law confers the right of dower upon the wife. It is an obligation imposed by law upon the husband as a mark of respect for the wife. Since this payment is enjoined by law merely as a token of respect for the wife, the mention of it is not absolutely essential to the validity of a marriage, and for the same reason, the marriage is valid even though the parties were to enter in the contract of marriage on the special condition that there should be no dower. Whatever the origin of the term "Mahr" (which literally means the sale price), the Mohammedan Law has not accepted that word to mean a price for concubinage intercourse. The said word is accepted to denote that the Mohammedan Law considers marriage as a civil contract".

Although further, payment of Mahr or Dower is not absolutely essential to the validity of marriage, and a contract of marriage under the Mohammedan Law can be entered on a special condition that there should be no dower, by practice it is considered an essential incident to the status of marriage, to such an extent that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged on definite principles. Regarded as a consideration for the marriage, it is, in theory, payable before consummation; but the law allows its division into two parts, one of which is called "prompt" payable before the wife can be called upon to enter a conjugal relationship and the other "deferred" payable on the dissolution of the marriage by the death of either of the parties or by divorce.

Dower, however, ranks as a debt, and the wife is entitled along with the other creditors to have it satisfied on the death of the husband out of his estate. Her right however is not greater than that of any other unsecured creditor except that if she lawfully obtains possession of the whole or part of his estate to satisfy her claims with the rents accruing therefrom, she is entitled to retain such possession until it is satisfied. This is called the widow's lien for dower.

Dower is a debt like all other liabilities of the husband, and has preference over legacies bequeathed by the testator and the right of the heirs. A partition of the estate cannot take place until the dower debt has been satisfied. When the wife is alive she can recover the debt herself from the estate of her husband. If she is dead, her representatives stand in her place and are entitled to recover the same"; and goes on to say: "Dower, in fact, whether it be prompt or deferred, is a debt due from the husband to the wife. [In Abdul Karim Khan v. Maqbul-un-issa Begam, A.W.N. (1908) 113

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