This article has been written by Smaranika Sen from Kolkata Police Law Institute. This article exhaustively deals with the concept of mahr under Muslim personal law.
Table of Contents
Introduction
India is a secular country. The term ‘secular’ is interpreted as that there is no religion of the State. It treats all religions equally. The Indian Constitution guarantees that every person has the freedom of conscience and the right to profess, practise, and propagate religion. This leads to the creation of different personal laws with respect to religion. All Muslims are generally governed by Muslim personal law. The Muslim personal law contains different legal provisions regarding marriage, dower, divorce, will, maintenance, etc.
As already stated above, the concept of dower for all Muslims are governed by Muslim personal law. Under Muslim law, dower is known as ‘mahr’. Mahr is a sum of money that the husband has to pay to the wife on marrying her. Through this article, we will be understanding the concept of mahr under Muslim law.
Origin of Mahr
In the old pre-Islamic Arabia, the institution of marriage was way different than today it is. At that time, different forms of sexual relationships were prevalent between men and women. The women were usually the victims of abuse. Men used to leave their wives after despoiling them. There was no such proper system of law regarding marriage, thereby men used to refuse to give any monetary help to the wife after leaving them. Shighar form of marriage was observed during those times. In this form of marriage, a man would give his daughter or sister in marriage to another in consideration of the latter giving his daughter or sister in marriage to the former. In this form of marriage, the wives would not get any dower.
Another form of marriage was Beena marriage. In this form of marriage, the husband visited the wife but did not bring her home, the wife was called Sadiqa and a gift was given to the wife on marriage known as Sadaq. It is believed that in Islam Sadaq was the very first form of dower.
In the Baal marriage, the concept of mahr was introduced. Mahr was a kind of gift or compensation which was given to the parents of the wife in the Baal form of marriage. The mahr usually belonged to the wife’s parents or guardians. However, over time, the ancient form of marriage was slowly abolished. Promulgation of Islam gave a new form of nikah to marriage. This form of marriage stated that if a man separates himself from his wife, then he should send her away with generosity, and also so the man cannot take back the goods which were once given to the wife. This custom of marriages in Islam originated the concept of the husband giving payment to the wife on marriage as a means of support in her old age. In Islamic law, Mahr solely belongs to the wife.
Meaning of mahr
In the literal sense, the Arabic term ‘mahr’ means dower. It is a sum of money that becomes payable by the husband to the wife on marriage. The mahr is executed either by agreement between the parties or by operation of law. Various jurists have tried to define mahr.
According to Wilson, mahr or dower was a form of consideration for the surrender of a person by the wife.
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.
According to Ameer Ali, a dower is a kind of consideration that belongs to the wife.
In the case of Abdul Kadir v. Salima,(1886), honourable Justice Mahmood held that dower under Muslim law is a sum of money or property which is promised by the husband to be paid or delivered to the wife in consideration of marriage and even if the dower is not expressly mentioned at the time of marriage, the wife still has the right of dower.
Difference between consideration in contract and consideration in Muslim Law
From the above definitions, we have observed the term ‘consideration’. The ambiguity which arises is whether the term ‘consideration’ is similar to that in contract or is different from it. From various cases, and observations in real life, it has been affirmed that the term ‘consideration’ is different from that used in the contract. Without consideration, a contract is generally void but if the dower or the consideration is not mentioned during the time of marriage, the marriage does not become void. However, the law requires dower to be paid to the wife on marriage. Under Islamic law, regarding mahr, consideration means an obligation imposed upon the husband by the law as a mark of respect for the wife.
The conflict between the terms ‘mahr’ and ‘dowry’
The literal meaning of the term ‘mahr’ is dower, however, the two terms have some distinct differences. In Muslim law, the concept of mahr is to ensure women’s financial security. However, dowry is a social evil. Dowry is generally asked by the kin of the bridegroom from the bride’s family as a gift to the marriage. Under Indian law, dowry has been defined in Section 2 of the Dowry Prohibition Act, 1961. It is thus to be noted that mahr and dowry are two different concepts. One ensures security and the other is a social evil.
Classification of dower
The dower may be classified into:
- Specified dower: In this kind of dower, the amount of dower is stated in the marriage contract. The dower may be settled between the parties either before the marriage or at the time of marriage or after the marriage. If the marriage takes place of a minor or lunatic boy then the amount of dower can be fixed by the guardian. The husband can settle any amount of dower. However, he cannot settle the amount of dower less than ten Dirhams according to Hanafi law and three Dirhams according to Maliki law. Shia law does not state any minimum amount of dower. In the case of those husbands who are very poor and are not in a position to pay ten Dirhams, then according to the Prophet, they are directed to teach the Quran to the wife instead of the dower. There is no maximum limit on the amount of dower. The specified dower can be classified into:
- Prompt dower: It is payable immediately after marriage on demand.
- Deferred dower: It is paid after the dissolution of marriage either by death or divorce.
- Proper or customary dower: If a marriage is completed without the amount of dower fixed in the marriage contract or marriage is completed on the condition that the wife should not claim any dower, then the wife is entitled to proper dower. The amount of proper dower is decided by taking into consideration the amount of dower settled upon other female members of the father’s family. The proper dower is regulated with reference to the following factors:
- Personal qualifications of the wife. Like her age, beauty, virtue, fortune, etc.
- Social position of her father’s family.
- Dower given to her female paternal relations.
- Economic conditions of husband.
- Circumstances of time.
Under Sunni law, there is no maximum limit for a proper dower but under Shia law, the proper dower should not exceed 500 Dirhams.
What to do if the amount of dower is intentionally given low and the wife cannot maintain herself
At times, it has been observed that few husbands intentionally give a low amount of dower, even when their economic condition is well. The amount of the dower is observed to be so low. that the woman becomes unable to maintain herself. This problem was eventually making the object of dower futile. To overcome this problem, legislation was made so that a reasonable dower is given. Therefore, the legislature was given full power to maintain the amount of dower providing that the court will not be bound to award the amount of dower according to the marriage deed.
Rights of wife when dower is not paid to her
Every woman under Muslim law has the right to claim a dower on the commission of marriage. Like any other law, if such a right is violated, then the woman has some remedies. Muslim law confers upon a wife or a widow to some rights to compel to get the payment of dower:
Refusal to cohabit
If the marriage has not been consummated then the wife has a right to refuse to cohabit with her husband as long as the prompt dower is not paid. If the wife is minor or insane, then the guardian has a right to refuse to send her to her husband’s house until the payment of a prompt dower is given. During the period, the wife stays in her guardian’s house, the husband is bound to maintain her.
However, if consummation has taken place after marriage, then the wife loses the absolute right to insist on the payment of prompt dower. This is because the husband can file a suit for restitution of conjugal rights. If the wife still refuses to cohabit with her husband, then she is only entitled to a decree conditional payment on dower. In the case of Rabia Khatoon v. Mukhtar Ahmed, (1966), it was held that if the suit is brought after sexual intercourse has taken place with her free consent, the proper decree to pass is not a decree of dismissal, but a decree for restitution, conditional on payment of prompt dower.
In deferred dower, the payment of dower is a contingent event. Therefore, the question which arises is whether the wife can refuse to the husband is conjugal rights or not. There has been a difference of opinion regarding this. Famous jurist, Abu Yusuf is of the opinion that she can refuse to cohabit if a deferred dower is not paid. However, famous jurist Imam Mahmood, Shia Law is of the opinion that the wife cannot refuse to cohabit in cases of deferred dower.
Right to dower as a debt
According to the lordships of Privy Council, it was held that the dower ranks as a debt and the widow is entitled along with other creditors to have it satisfied on the death of the husband, out of his estate. If the husband is alive, then the wife can recover the dower by instituting a suit against him. In cases where the dower debt is remaining unpaid, the widow can enforce her claim for the dower debt by filing a suit against the husband’s heirs. However, the heirs are only liable to the extent to which and in proportion to which they inherit the property of the deceased husband.
In the case of Syed David Hussain v Farzand Hussain (1937), it was held that a Shia Muslim stood surety for the payment of the dower by his minor son. After his death, his estate was held liable for the payment of his son’s mahr and each heir was made responsible for a portion of the wife’s claim in proportion to his share in the estate of the deceased.
Right to retain possession in lieu of unpaid dower
Dower ranks as a debt and the wife is entitled along with the other creditors to have it satisfied on the death of her husband out of his estate. Her right is however no greater than that of any other unsecured creditor except that if she lawfully obtains the position of the whole or part of his estate, to satisfy her claim with the rents and issues accruing therefrom she is entitled to retain such position until it is satisfied. The right to retention does not give her any title to the property. Therefore, she cannot alienate the property.
A widow’s right to retain possession of her husband’s estate in lieu of a dower is a photo special purpose. It is by a way of compulsion to obtain speedy payment of the dower which is an unsecured debt.
Effect of apostasy on dower
Apostasy has a huge impact on Muslim personal law. It is believed that the apostasy of man from Islam denotes immediate dissolution of marriage. On the other hand, apostasy by the wife from Islam does not denote immediate dissolution of marriage. As per Section 5 of the Dissolution of Muslim Marriage Act 1939, a married Muslim woman shall have the same rights in the respect of the dower under the dissolution of marriage under this Act. The dissolution of marriage under the Act, even though made after the apostasy of the wife does not take away her right to dower.
Suit for dower and limitation
If the dower is not paid to the wife while she is alive, then after her death, her heirs can claim it. The period of limitation as per the Limitation Act, 1963, for a suit to recover prompt dower is three years from the date when the dower is demanded, or refused. In the case of deferred dower, the period of limitation is 3 years, from the date when the marriage is dissolved by death or divorce.
Conclusion
The concept of mahr in Islamic law is beneficial for the woman. It ensures financial security so that she is not left helpless after the death of the husband or after the termination of the marriage. It also places a check on the capricious use of divorce by the husband. It is also believed that the mahr is a pivotal custom in the marriages of Muslims.
References
- Mohammedan Law, Aqil Ahmed.
- https://www.myadvo.in/blog/difference-between-mahr-and-dowry/
- http://www.legalserviceindia.com/legal/article-5105-mahr-under-muslim-law.html
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