What is dower or Mahr in Muslim Law and what are its various forms? Discuss the above explaining the Muslim widow’s right of retention of her husband’s estate in lieu of her dower claim.
Question: What is dower or Mahr in Muslim Law and what are its various forms? Discuss the above explaining the Muslim widow’s right of retention of her husband’s estate in lieu of her dower claim. [HJS 1988, Punj JS 1995(II), JIS 2017, UPJS 2018, BJS 2018] Find the answer only on Legal Bites. [What is dower or Mahr… Read More »
Question: What is dower or Mahr in Muslim Law and what are its various forms? Discuss the above explaining the Muslim widow’s right of retention of her husband’s estate in lieu of her dower claim. [HJS 1988, Punj JS 1995(II), JIS 2017, UPJS 2018, BJS 2018]
Find the answer only on Legal Bites. [What is dower or Mahr in Muslim Law and what are its various forms? Discuss the above explaining the Muslim widow’s right of retention of her husband’s estate in lieu of her dower claim.]
Answer
Consideration under contract law simply means something for something. Hence, it is construed in a Muslim marriage that the woman must receive, as a matter of right, a sum of money from the husband’s side called Mahr or dower. Dower or marriage portion originated in the Arabic word Mahr. It is one of the ingredients of Nikah, or marriage.
According to the prophet, this dower is a form of honour and respect given to a woman when she agrees to marry a man by way of accepting the dower. The practical purpose is to ensure the woman’s financial security in and after marriage.
In the pre-Islamic period, the term Mahr was used to signify gifts (sadaka) given to the parents of the wife but sadaq was a gift to the wife herself. The sadaq or dower, which was paid in case of regular form of marriage, was approved by Islam.
The Holy Quran says, “And give women their dowers freely.” Abdur Rahim (on the basis of Hedaya) refers to Mahr as:
“It is either a sum of money or other forms of property to which the wife becomes entitled by marriage….It is an obligation imposed by law on the husband as a mark of respect for the wife…”
Some jurists treat Mahr as a consideration of the obligation imposed upon the husband as a check on the capricious exercise of his almost unlimited power to divorce and some jurists treat Mahr as a mark of respect towards the wife.
Types of Dower
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.
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 customary in the community or in the respective society or what is proper in each case. What is proper in each individual case will be determined under?
- With reference to the social position of her father’s family.
- Her own personal qualifications.
- Social position of the husband. But the means of husband are of little account.
- 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).
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 marriage’s dissolution or on 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 the position is different in Hanafi Law.
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 the absence of proof of custom, the presumption is that one half is prompt. However, the proportion may be changed to suit particular cases.
Widow’s 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.
The right to the dower of a woman can be exerted before cohabitation. The Allahabad High Court has said in the Nasra Begum v. Rizwan Ali, AIR 1980 All 118, case that a woman’s family can refuse to send her to her matrimonial home if a dower is not given. Once the dower is accepted by the woman, she, in return, agrees to marry the man. Therefore, the contract is complete.
