This article was written by Smaranika Sen and updated by Meenakshi Kalra. This article discusses the concept of Mahr (dower) in Muslim Law. We have covered the types of dower and the rights of the wife if dower is not given to her. You will also find a comparative analysis of dower and other dowry systems and several landmark cases to show the evolution of the concept of dower.
Table of Contents
Introduction
Under Muslim law, Mahr or dower is a very important part of a marriage. Without Mahr, a marriage is not deemed valid, just like a contract is not considered valid without consideration.
The concept of mahr can vary across regions and various schools of thought in the Muslim community, but the basic idea remains the same. Mahr is a token of respect given by the husband to his wife. The husband does this to show and acknowledge her dignity as a wife. The concept of Mahr is dynamic, and with changing socio-legal situations arising out of family and gender issues, it has also evolved in the present times.
Meaning of Mahr
In the Quran and other hadiths, Mahr is also known as sadaq, nahlah, ajr, and Farida. It refers to the gift that the husband gives to his wife when they get married.
The amount of mahr to be given to the wife can be decided either by the parties through an agreement or by operation of law. Many jurists have tried to define mahr to make it more understandable.
Such as Wilson, according to whom Mahr refers to a type of consideration for the surrender of the person by the wife.
Another such person is Mulla, according to whom Mahr can be described as “a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage.
According to Ameer Ali, the dower is “the kind of consideration that belongs to the wife.
Origin of Mahr
The concept of dower is not a recent idea; it has existed since the pre-Islamic era before the advent of Islamic law. However, Islamic law is responsible for bringing this concept to the forefront and regulating it. Through Islamic law, it has now become a right of every Muslim woman at the time of marriage.
During the pre-Islamic era, women were treated like property, and they had no rights. They could be sold and bought without their consent. The guardians of the women would make deals and marry them to the highest bidder and pocket all the dower from such a marriage.
After Islam’s development and evolution in Arab countries, new ideas and practices emerged. These ideas stated that Islamic values and concepts should benefit the individual and the community. One of these concepts was the dower, which Islam rethought and reinvented.
In the present form, dower is governed by the new law of Sharῑa, which states that dower is the sole right of the woman, and no one else can decide the terms of the same for the woman.
Nature of dower in Muslim law
Prophet Mohammad himself suggested the dower, which is considered obligatory in every marriage. It is comparable to the concept of donation propter nuptias, which means a gift given before marriage. The only difference between the dower and donation propter nuptias is that the former is mandatorily given to the wife, while the latter is given voluntarily. The dower is an inalienable right given to the wife and acts as an unsecured debt for the husband.
The following points can better understand the nature of dower:
Parallel between dower and contract of sale
The Allahabad High Court, in Abdul Kadir vs. Salima (1886), stated that dower and a contract of sale share similarities. In this case, the court tried to compare giving a dower to a contract of sale. They believed that the wife was a property, and the dower given to her was the price for acquiring the property.
The wife can stop living with the husband if the dower is not given to her. This is similar to a vendor not delivering the goods without payment. After the dower is given to the wife, she cannot refuse to live with the husband. This is similar to the delivery of goods after payment.
Consideration for conjugal intercourse
According to some experts, dower can also be considered a consideration for conjugal rights. The Allahabad High Court, in the case of Smt. Nasra Begum vs. Rizwan Ali (1980) pointed out that the wife’s right of dower has to be given priority over the husband’s right to cohabit with his wife. For the husband’s right to succeed, the wife’s claim for prompt dower must be satisfied first; only then can he ask her to cohabit with him.
Essential feature of marriage
Dower is considered an indispensable feature of marriage under Muslim law and is treated as consideration for marriage. Dower cannot be refused to the wife even if the amount payable as dower has not been mentioned in the marriage contract. The validity of marriage cannot be questioned merely because the amount of dower payable was not specified; a marriage shall still be considered valid even if the amount for dower has not been specified. In the case of Hassina Bibi vs. Zubaida Bibi (1916), the Allahabad High Court ruled that if the amount of dower is not specified, then the same shall be determined by using existing principles.
Usually, the dower is payable before the consummation of marriage. Still, it can be divided into two types: prompt dower, which is payable on demand, and deferred dower, which is payable upon the dissolution of the marriage by death or divorce.
Like all the other creditors, the wife has also been given a right to claim her dower from her deceased husband’s estate. She is entitled to keep possession of the properties until her dower is paid. However, her dower shall be treated as an unsecured debt, which means that there is no collateral tied to it, and it shall be recovered from her husband’s estate.
In the case of Zobair Ahmad vs. Jainandan Prasad (1960), the Patna High Court ruled that the widow cannot transfer her late husband’s property, which she is holding to recover her dower. This is because she only has a right to enjoy the property under Section 6(d) of the Transfer of Property Act, 1882. The widow has been given a property enjoyment right, which is only personal. Hence, she cannot make a transaction to transfer the property of her deceased husband. The right given to her is limited to helping her recover her dower.
In another case of Smt. Nasra Begum vs. Rizwan Ali (1980), the Allahabad High Court clarified that the term ‘consideration’ for marriage is not to be treated in the same way as the term consideration given in the Indian Contract Act, 1872. Muslim law requires the husband to give his wife a dower upon marrying her. This dower he gives shall also act as consideration for marriage and a symbol of his respect towards her.
Object of Dower (Mahr)
Dower is one of the most important rights given to women under Muslim law. It helps provide them with financial and economic stability, and the concept of dower has existed in Muslim law for a long time. It has gained legitimacy from the Holy Quran and Sunna of the Holy Prophet itself; thus, no one can get married without providing the same to the wife.
Dower not only helps the wife feel secure and respected, but under Muslim law, Mahr has to be paid to the wife for a marriage to be considered valid. Without a dower, it would be easy for the husband to end the marriage and divorce the wife without any consequences. The dower helps the wife feel more confident as she has something to rely on in her demanding days.
The husband pays the dower to make it clear to the wife that she is not merely an object for enjoyment and sexual intercourse but also someone that the husband respects and honours. It clarifies that she is not simply the husband’s property; instead, the purpose of the dower is to place her on an equal footing and treat her as a partner in a marriage.
Importance of Dower
Dower is given such importance under Muslim law because, according to Shariah, it fulfils many aspects responsible for a healthy and long marriage. According to Fatwai-i-Quazi Khan, if a woman agrees to marry without dower or agrees to give away her right to dower before marriage, then such a marriage contract shall be considered invalid under Muslim law.
The husband has been given a lot of power under Muslim law. It creates a balance between the husband’s power and the wife’s rights by ensuring the husband does not misuse his power. The concept of dower makes the wife feel more respected and protects her from the husband’s power to divorce her arbitrarily. It places a check on the arbitrary power of the husband by restraining his ability to marry multiple wives as he will have to pay a dower to every additional wife he marries.
In the case of Abdul Kadir vs. Salima (1886), Hon’ble Justice Mahmood noted that dower places a strict obligation on the husband because, without it, the husband would have too much power, which he could use to divorce his wife randomly or engage in polygamy. Thus, giving a dower in marriage is essential because it makes the wife’s rights a central and fundamental part of the marriage contract.
Dower does not apply to marriages registered under the Special Marriage Act, 1954. Still, if the marriage was first done under Muslim law and then later registered under the Special Marriage Act, 1956, the wife shall retain her right to dower.
Quantum of Mahr
Legal consequence of dower
The amount of Mahr to be paid in a Muslim marriage may be fixed by an agreement between the parties to the marriage or determined by the provisions made by law. Usually, no minimum or maximum amount is laid down for Mahr except in the cases of Hanafi Muslims and Maliki Muslims, who have provisions for a minimum amount of Mahr but not a maximum amount that needs to be paid.
Both Hanafi and Maliki schools of the Sunni sect have set a minimal value that needs to be paid as dower. For Hanafi Muslims, the minimum amount of dower has been set as 10 dirhams. For Maliki Muslims, the minimum amount of dower has been set to 3 dirhams. The husband can give as much dower as he is capable of providing. He is obligated to meet only the minimum amount of dower that has been stated because there is no upper limit that has been set for dower. In Shia law, on the other hand, the dower shall not exceed 500 dirhams. This amount was fixed based on the dower set for the marriage of the Prophet’s daughter, Fatima.
Under Muslim law, the remedies available to the husband regarding the payment of the dower are pretty limited. If the husband promises more dower than he can afford to give, he will still be obligated to make efforts to pay the stated amount.
A seminar held by the Indian Ulema suggested that the Mahr should be given in gold and silver. This idea was suggested because it protects women from the fluctuations that occur in various currencies. If the dower is given in gold and silver, then the dower received by them would be stable, further enhancing their sense of security.
Who can change dower/Mahr?
At any given time, the husband may increase or decrease the amount of dower payable by him after the marriage. Similarly, the wife has also been given the right to give back her dower, fully or partially, but she must do this with her free consent. A Muslim girl can give up her Mahr if she has reached the age of puberty irrespective of the fact whether she has turned eighteen years old under the Indian Majority Act, 1875 or not. This act of remitting the Mahr is known as Hibe-e-Mahr.
In the case of Hasnumiya Dada Mia vs. Halimunnissa Hafiullah (1942), the Bombay High Court held that if the wife gives up her Mahr because of the anguish caused by her husband’s death, then it cannot be said that such remittance was done voluntarily. Such remittance shall not be binding upon her.
In another case of Shah Bano vs. Iftekar Mohammad (1956) it was laid down by the Karachi High Court that if the wife returns her dower because she thinks that it is the only way to make her husband love her, then by doing so, such a decision cannot be said to be made with her free consent. Thus, ruling that the dower needs to be returned in such a scenario would be unjust and unfair to the wife.
Types of dower in Muslim law
As the foregoing paragraphs have established, the concept of dower plays a vital role in marriages governed by Muslim law. The main types of dower include Muta dower, specified dower, and proper or customary dower.
Different types of dower discuss different factors in a marriage and the conditions under which the dower shall be paid. Every kind of dower comes with rules and conditions that must be followed to be valid and enforceable.
The types of dower can be classified in the following manner:
Muta dower
The literal meaning of the word “Muta” is enjoyment. Thus, Muta marriage means a marriage that has been done for enjoyment. In this type of marriage, the Muta dower is payable to the wife. Sunni law does not recognise this type of marriage as a valid marriage, as this marriage is temporary and is only done for some time.
Muta marriage was mainly practised in Arabia, and it was not recognised by any school of Muslim law in India except the Asar Shia School. Even though cohabitation between the parties to this marriage has been recognised legally, it still does not give them any right of inheritance. The wife is not given any maintenance under the personal law after the Muta marriage is dissolved. Still, she can claim it under Section 125 of the Code of Criminal Procedure, 1973 (Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023). The concept of divorce is also not recognised under a Muta marriage.
Muta dower is decided based on whether the marriage was consummated. If the muta marriage is consummated, the entire muta dower shall be paid to her. If the marriage was not consummated, then only half of the muta dower shall be given to her. No dower shall be given to her if she leaves before the time period specified for the muta marriage ends.
This is because the muta marriage is treated as a contract, and the payment depends on completing the conditions stated under the contract.
Specified dower
The wife is given the dower according to what was agreed in the marriage contract. This is referred to as the specified dower, as defined in the agreement. The parties to the marriage decide the dower to be given. This is done either before, after, or at the time of the marriage.
If the person to whom the woman is getting married is a lunatic or a minor, then it is the guardian’s responsibility to decide the dower. The guardian is also responsible for ensuring the wife gets her dower if the person remains minor or lunatic after marriage. After the boy attains the age of majority, he cannot claim that since he was not a party to the marriage contract, he would not be liable to pay the dower. The boy shall be liable to pay the dower his guardian set after he attains the age of majority.
A provision has also been made for husbands who are very poor and cannot afford to pay 10 dirhams as dower. According to the teachings of the Prophet, if the husband cannot give even the lowest amount of dower to the wife, he shall teach her the Quran instead.
Further, specified dower can be divided into:
Prompt dower
Prompt dower is also known as ‘muajjal mahr’, which can be translated to “hasten”. It is payable immediately after marriage on demand. In most circumstances, it is paid before or anytime after marriage. According to the teachings of Ameer Ali, the wife shall not be required to live with the husband if he has not paid her the prompt dower that she is entitled to. Similarly, if the prompt dower of a minor girl is not paid to her, then her guardian can refuse to let her go to her husband’s house till the dower is paid to her. Even if they live separately, the husband must maintain the wife.
In the case of Rehana Khatun vs. Iqtidar-uddin (1942), the Hon’ble Allahabad High Court stated that the dower is to be decided according to the customs being followed in the present times. If no customs are followed, the dower shall be chosen according to the financial and social status of the parties.
Prompt dower can be claimed even after the consummation of marriage. The wife cannot refuse conjugal rights to the husband even if the prompt dower has not been given to her, but the consummation of marriage has occurred once before such payment. The husband can ask the court for the restitution of conjugal rights. The court’s decision shall depend on whether the husband has paid the dower. The court shall side with the husband for restitution of conjugal rights only if he has paid the dower or in cases where the marriage has already been consummated without payment of dower. Consequently, it can be said that the dower is a crucial element that plays a vital role in establishing a conjugal relationship between the husband and the wife.
Under Muslim law, even though the prompt dower must be paid immediately on the wife’s demand, it is usually neither demanded nor paid. The husband usually does not fulfil his responsibility of paying the dower until a domestic disagreement or some financial issues arise in the marriage. The limitation period for demanding prompt dower is three years from the date of demand and refusal. The time limit for filing a suit for the payment of prompt dower shall be calculated from the date of dissolution of marriage unless a demand for payment of prompt dower had already been made during the time of the marriage.
Deferred dower
Deferred dower is also known as ‘muvajjal mahr’, which can be translated to “delayed.” It is paid after the dissolution of marriage, i.e., either by death or divorce. The teachings of Ameer Ali state that dower is a consideration that belongs entirely to the wife. He believed that the dower has a punitive nature, which means that the husband is obligated to honor the dower’s payment, as stated in the marriage contract. This type of dower is usually paid when the marriage ends, but if there has been an agreement that it has to be paid earlier, that agreement is also valid.
It is upon the husband, and if he wishes, he can treat the deferred dower as a prompt dower and pay his wife early. The wife has no right to demand the deferred dower unless it has been stated otherwise. The husband can pay the wife or transfer property in her favor as a dower. Such a transfer is valid and does not fall under fraud unless the husband is insolvent at the time of such transfer.
Further, the widow can voluntarily relinquish her right to the deferred dower after her husband’s death. She can do so by recital of a formula, and such relinquishment of her dower must be with her free consent.
A deferred dower is not dependent on a condition and is guaranteed to the wife. This means that the wife has a vested interest in the dower and not a contingent interest because it cannot be taken away on the happening of an event, and in case of her death, her heirs can claim the dower in her place.
Presumption regarding prompt and deferred dower
The dower can be divided into two parts:
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Prompt dower
This type of dower shall be paid on the demand of the wife. The wife can claim this type of dower any time she wants, before or after marriage consummation.
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Deferred dower
This dower becomes payable to the wife or her heirs when the marriage is dissolved. The dissolution of marriage can be either due to death or divorce.
The dower shall be considered a prompt dower even if it is postponed till the time the wife demands it. Just because the wife demands the payment of a deferred dower does not automatically convert the deferred dower into a prompt one. The deferred dower is mainly paid to the wife on the dissolution of marriage unless the contract of marriage specifies some other condition for the payment of the deferred dower.
If the marriage contract or Kabin-nama specifies the amount that has been fixed as the dower but does not tell how much of it has to be paid as a prompt dower or deferred dower, then it shall be decided by the courts. The Bombay and Allahabad High Courts have set various percents related to this issue wherein they have stated that the division shall be made based on:
- Position of the wife;
- Customs of the locality;
- Total amount of dower; and
- Status of husband.
As per Shia Law, if no clarification has been made under the marriage contract regarding which portion shall be treated as prompt and which as deferred dower, then the entire dower shall be regarded as prompt dower. Further, in the Madras Presidency, irrespective of whether the parties are Shia or Sunni, dower as the whole amount is treated as prompt dower.
As per Sunni Law, if no statement and family usage is stated in the marriage contract, half of the dower amount will be treated as a prompt dower and the other half as a deferred dower.
Proper or customary dower
If no dower has been set under the marriage contract or the marriage took place on the condition that she shall not claim any dower after her marriage, then the wife shall get a proper dower. The appropriate dower is decided by considering the amount of dower settled upon other female members of the father’s family. The proper dower is regulated concerning the following factors:
- Personal qualifications of the wife, i.e., her age, beauty, virtue, fortune, etc.;
- Social position of her father’s family;
- Dower given to her female paternal relations;
- Economic conditions of husband; and
- Circumstances of time.
Under Sunni law, there is no maximum limit for a proper dower, but it should not exceed 500 dirhams under Shia law.
Remedies for wife in case of non-payment of dower
All women have been given a right to claim dower during their marriage under Muslim law. Like any other law, the woman has some remedies if such a right is violated. These remedies can be used by women governed by Muslim law to claim their payment of dower in cases where no dower is given to them:
Refusal to cohabit
The wife can only refuse to cohabit with her husband if the prompt dower has not been paid to her and the marriage consummation has not occurred. The guardian of a minor or an insane girl has the right to bring her back from her husband’s house and further refuse to send her back till her dower is paid. The wife is entitled to receive maintenance from the husband even if she lives at her guardian’s house and not with the husband.
The wife cannot force the husband to pay her prompt dower if the marriage has been consummated before the payment was made to her. The wife shall only be entitled to demand a prompt dower if the marriage remains unconsummated. If the parties have consummated the marriage without receiving her dower, then she cannot make such a demand. This is because the husband can file a suit for restitution of conjugal rights. If the wife still refuses to cohabit with her husband, she is only entitled to a decree for conditional payment of dower.
In the case of Rabia Khatoon vs. Mukhtar Ahmed (1966), it was held by the Hon’ble Guwahati High Court that if consummation of marriage has taken place with the free consent of the wife, then the decree being passed in a suit shall be for restitution and not for dismissal. The court’s decision shall depend on whether or not the husband has paid the prompt dower to his wife.
In deferred dower, the payment of dower is not a contingent event. Therefore, the question arises as to whether the wife can refuse the husband’s conjugal rights. There has been a difference of opinion regarding this. Famous jurist Abu Yusuf thinks she can refuse to cohabit if a prompt dower is not paid but cannot refuse conjugal rights if the deferred dower is unpaid.
Further, according to a renowned jurist for Shia Law, Imam Mahmood, the wife does not have the right to refuse to cohabit with her husband if the type of dower payable to her is a deferred dower. The reason for this is that a deferred dower is payable at the time of dissolution of marriage (unless otherwise specified in the marriage contract), unlike a prompt dower. Hence, it cannot be used as grounds for refusing conjugal rights.
The wife does not have the right to refuse a conjugal relationship with her husband; she only has the right to recover her dower. She cannot withhold a conjugal relationship with her husband to pressure him into giving her dower if the consummation has already taken place without the payment of the dower. The wife can sue the heirs of her deceased husband if dower is not given to her. The heirs will then be required to provide the dower to the wife from the estate of the deceased that was given to them.
The wife can approach the court to practice her right to recover her dower. Still, she cannot refuse the husband’s right to a conjugal relationship to pressure him into paying the dower if the parties have already consummated the marriage. If the dower remains unpaid even after the death of her husband, then the wife has the right to sue his heirs for the same. The heirs are then responsible for paying the dower to the widow out of the deceased husband’s estate that they inherited. They shall treat the unpaid dower as a debt owed to her.
In another case Nasra Begam vs. Rizwan Ali (1980), the Hon’ble Allahabad High Court held that the dower may be claimed before cohabitation. In case of a prompt dower, the same can be claimed before cohabitation with the husband. The guardian of a minor or mentally incapacitated girl has the right to withhold sending her back to the husband until he pays the prompt dower owed to her. He can also return her from the husband’s house if the prompt dower remains unpaid.
The court further noted that if the consummation has already occurred without paying the prompt dower, then the restitution of conjugal rights cannot be denied. It is only before the consummation of the marriage that a claim for prompt dower and refusal for restitution of conjugal rights can be made before the court. The court has the right to pass a decree for the payment of prompt dower as it is a vital component for the restitution of conjugal rights in favour of the husband.
In the case of Anis Begum vs. Muhammad Istafa Wali Khan (1933), the parties involved in this suit had married each other. The parties fixed a prompt dower of Rs. 15000. They also used to live together and had a daughter together, but the prompt dower promised Anis Begum remained unpaid, so she left the husband. The husband filed a suit for restitution of conjugal rights, but the court decided he did not have an absolute right to demand his wife’s return. The Allahabad High Court noted that for the restitution of conjugal rights to have effect, the prompt dower must be paid even if the marriage has already been consummated. The court stated that for the decree of restitution to be passed in favour of the husband, he shall first pay the prompt dower to Anis Begum.
Right to retain possession in lieu of unpaid dower
The widow has the right to keep possession of her husband’s properties upon his death until her dower is fully paid. By retaining her deceased husband’s properties, she can pressure the husband’s heirs to pay her dower. This right of retention regarding the properties does not require a prior agreement between the parties, and it is automatically given to the widow in case her dower is unpaid.
She shall have this right against the creditors of the husband and his legal heirs. This means the legal heirs will not be entitled to take possession of the properties until her dower is paid. The rights given to the widow are limited; she cannot transfer the properties but can only hold on to them until her dower is given to her.
In Maina Bibi vs. Vakil Ahmad (1924), the widow gifted the properties she was holding to recover her dower. This led to a possession suit being filed against her. The Bombay High Court ruled that the widow had no right to make such a transfer as the right given to her was limited and for the recovery of her dower only.
Effects of right of retention
- The widow is required to provide a complete account of properties acquired by her;
- She cannot alienate the property acquired by her; and
- There is no bar for filling a suit of recovery for the unpaid dower
The right of retention is lost when
- The dower has been paid successfully and in whole;
- The widow, after recovering the said dower, returns the property out of her own free will; and
- The widow alienates the property and transfers it to another party. In this case, the right to possession of the property shall be given to the heirs of the deceased husband.
Dower as debt
Since dower is considered an unsecured debt because no collateral is attached, it must be paid by the husband to his wife. After the husband passes away, it must be paid to the widow from his properties. This does not make his legal heirs liable to pay the dower to the widow personally. The legal heir’s liability only extends to the share of properties that they have inherited. Where the wife passes away before the husband, her legal heirs can file a suit to recover her dower. According to Section 3 of the Muslim Women (Protection on Divorce) Act, 1986, a suit for recovery of dower is maintainable and shall be brought before a Magistrate for adjudication.
In the case of Syed Sabir Hussain vs. Farzand Hussain (1937), it was held that a Shia Muslim stood surety for his minor son’s payment of the dower. 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 deceased’s estate.
Difference between the Shia and Sunni concepts of dower
| S No. | Basis | Sunni Law | Shia Law |
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Minimum amount payable | The minimum amount of dower payable is 10 dirhams, but there is no maximum limit fixed for a proper or specified dower. | There is no minimum amount set for a specified dower. However, the maximum amount for the specified and prompt dower set is 500 dirhams. |
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Consummation of marriage | If no dower has been specified and the marriage dissolves due to the husband’s death, then the dower payable shall depend on whether the marriage has been consummated. | No dower needs to be paid if marriage consummation has not occurred. |
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Agreement relating to non-payment of dower | An agreement that no dower shall be payable to the wife after her marriage is void in Sunni Laws. If such a clause has been inserted in the agreement, the marriage shall be treated as void. | An agreement relating to the payment of no dower shall be considered valid if the parties involved in the marriage are sane and have attained the age of majority. |
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Prompt dower | If there is no specific agreement between the parties regarding the amount of dower, then a reasonable portion shall be payable as a prompt dower. | If no agreement has been made to pay the debt, the entire debt is considered to be a prompt debt. |
Effect of apostasy on dower
Apostasy means the abandonment or renunciation of one’s religious beliefs or principles. Apostasy has a significant impact on Muslim personal law. It is believed that the apostasy of man from Islam denotes the 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 retains her right to dower even after the dissolution of her marriage under this Act.
Suits for dower and limitation
The time limit for filing a suit for recovery of prompt dower is given under Article 133 of the Limitation Act, 1963. Such a suit shall be filed within 3 years from the date when the dower was demanded, refused or when the marriage was dissolved. The wife can also approach the court in cases where no prompt dower amount has been fixed. The wife can exercise her right to approach the court in this situation without making a prior demand or facing a refusal. The suit for recovery of dower may be filed directly.
In case of deferred dower, the suit must be instituted within three years from the date the marriage was dissolved by death or divorce.
Comparative analysis of Mahr with other dowry systems
Under Muslim law
The payment of a dower is required for the marriage contract and the sexual relationship between the parties to be legitimised. By paying a dower, certain rights and duties come into existence, which also makes the union between them legal and sacred. Dower and dowry are two distinct concepts under Islam. Dowry is prohibited by law in India, but dower remains a legal and recognised practice under Muslim law.
Under Hinduism
The practice of dowry did not exist in early Hindu societies. Gifts were exchanged by rich families and given to the bridegroom at the time of marriage, but this does not fall under the current and modern definition of dowry.
According to the Atharvaveda, there were 8 forms of marriage that existed in ancient Hindu society. The approved forms included Brahma, Daiva, Arsha, and Prajapatya, and the unapproved forms included Asura, Gandharva, Rakshasa, and Paisacha.
In Brahma’s marriage, the daughter is given as a gift to the groom, along with other precious items and jewellery. The groom was expected to be of good character and knowledgeable in the Vedas. These qualities would lead the bride’s father to send him an invitation for marriage to his daughter. Since these gifts were given voluntarily and out of love, they cannot be called dowry in the modern sense. Unlike dowry, these gifts were neither mandatory nor burdensome and were merely to attract the groom.
Some scholars argue that the dowry system did not originally exist in Hinduism. Instead, it was spread during the colonial era under British rule as no word in Sanskrit is equivalent to the word “dowry”. Under Hinduism, several concepts, such as the practice of “stridhan” and “kanyadan,” were present and later converted into the present-day dowry system.
Under Christianity
The practice of dowry has grown at an alarming rate among Christian communities in India. Many of the traditions followed by Christian communities resemble those in Hindu and Latin cultures, where giving large dowries to the groom and his family is considered customary. The bride is not only expected to bring jewellery and money but also furniture, a car, and other items to the household she marries.
Earlier, Christians used to practise paying a bride price. If a man paid the bride price and the bride married someone else instead, then he would not receive any refund unless it was the bride’s father who refused the marriage. Also, if the wife passed away without giving birth to a son, her father would be entitled to reclaim the dowry, but the bride would be deducted. This practice has been mentioned in both the Bible and the Old Testament.
| Aspect | Mahr (Muslim Law) | Dowry in Hinduism | Dowry in Christianity |
| Definition | The dower (Mahr) is a mandatory payment or gift from the groom to the bride as part of the marriage contract. It legitimises marriage and the sexual relationship between spouses. | Traditionally, gifts were given voluntarily to the groom. The modern dowry system in Hinduism evolved later, likely during the colonial period. | In Christian communities in India, dowry involves the bride bringing valuables (jewelry, money, etc.) to the marriage. It has roots in the bride price system found in biblical times. |
| Purpose | Secures the wife’s financial independence and safeguards her rights during marriage. | Initially to express goodwill towards the groom, not to impose a financial burden. However, modern dowry can create significant economic pressure on the bride’s family. | Often seen as a financial agreement or gift to the groom’s family to secure the marriage. |
| Nature | Mandatory under Islamic law for a valid marriage. | Historically optional, but modern dowry practices are often seen as obligatory and burdensome. | Expected in many Christian communities in India but was traditionally more about the bride price. |
Criticisms and drawbacks of Mahr
Negligible value of Mahr
There may be instances where the Mahr amount is set at a very low value even though the minimum value for dower has been set under Muslim law. This might lead to the Mahr being treated merely as a formality or symbol, which undermines the purpose of giving Mahr to the wife in the first place, i.e., for her financial security.
Non-payment of Mahr
There may be situations wherein a deferred dower is promised to the wife but it is not paid on the dissolution of marriage by death or divorce. If the husband passes away without leaving enough money or property to cover the dower it would create financial instability for the wife. The wife shall not have any other choice than to approach the court in such a situation and ask for her right to dower that was promised to her be protected.
Barrier to marriage
Dower also faces criticism regarding whether or not it acts as a barrier to marriage. It may act as a tool for manipulation and dominance in marriage. If the dower amount that has been set does not match the expectations of either of the parties, then it might lead to a strained and turbulent relationship. If the amount set is too high, the husband might struggle to fulfil his payment obligation. Whereas, if the amount is too low, the wife might find it hard to sustain herself. The wife may even use the dower to extract money from her husband, which would be against the nature of the practice. All this goes against the purpose of mahr, which is to provide financial stability and respect to the wife.
Dower, dowry, and Kharcha-i-pandan
The literal meaning of the term ‘mahr’ is dower. In Muslim law, the concept of Mahr is to ensure women’s financial security. Mahr is to be given by the husband to her wife based on the conditions agreed upon by both parties and outlined in the marriage contract.
However, dowry is a social evil and has its roots in the concept of ‘Stridhana. ’ Dowry is generally asked by the kin of the bridegroom from the bride’s family as a gift to the marriage which might include various things such as jewellery, money, furniture, electronics, etc. Under Indian law, dowry has been defined in Section 2 of the Dowry Prohibition Act, 1961. The Act also prohibits the practice of dowry, but despite the implementation of this Act since 1961, the practice of dowry is still prevalent in India. It can thus be noted that Mahr and dowry are two different concepts. One ensures security, and the other is a social evil.
Under Muslim law, “Mewakhori” or Kharcha-i-pandan are the expenses the husband pays his wife. When translated into English, the word pan means betel leaf, and Pandan means a box wherein the betel leaves are kept. Mulla describes Kharcha-i-pandan as akin to the “betel box expense,” payable to the wife. The money given to her acts as her personal allowance to meet her daily needs. This allowance given to the wife is customary and can be fixed before or after the marriage.
She can also approach the court to claim her Kharcha-i-pandan in case of non-payment. Kharcha-i-pandan is often compared to the concept of “pin money,” which is given under English common law. These allowances are given to the wife for expenses, but they differ in origin and history.
Comparative analysis of rights of wife in the husband’s property
The wife’s right to property depends on different elements such as customs and practices, religion, mode of acquisition, and personal laws of the parties.
Under the Hindu Marriage Act
Under the Hindu Marriage Act, 1955, the wife has a right to live in her husband’s house, also known as the matrimonial home, after marriage. She has been given a right to maintenance and a right to receive a share of the husband’s ancestral and self-acquired property. The wife also has certain rights relating to the properties of her deceased husband under the Hindu Succession Act, 1956, along with his other legal heirs.
Under Muslim personal law
Under Muslim personal law, the wife has limited rights on the husband’s property. While Muslim law does not directly provide for the wife to obtain a share in the husband’s property, she still has a right to receive dower from her husband. She has the right to stay in the husband’s house during the marriage and is entitled to claim maintenance.
Under Christian personal law
The wife cannot claim the right to a share in the husband’s property, but she does have a right to claim maintenance from the husband. The Christian personal law does not directly give her a right to the property of her husband; she can still claim a share for the same under the Indian Succession Act, 1925, if her husband dies without leaving a will.
| Aspect | Hindu Law | Muslim Law | Christian Law |
| Right to Matrimonial Home | Under the Hindu Marriage Act, 1955, the wife has the right to live in the matrimonial home (the husband’s house). | The wife can stay in the husband’s house during marriage. | No explicit right to the matrimonial home, but can claim maintenance during the marriage. |
| Right to Maintenance Section 125 of CRPC, 1973– Order for wives, children, and parents’ maintenance. |
Under the Hindu Marriage Act, 1955, and Section 125 Crpc, the wife has a right to maintenance from her husband. | The wife is entitled to claim maintenance during marriage under Muslim law and Section 125 Crpc. | The wife can claim maintenance from her husband under Christian personal law and Section 125 Crpc. |
| Right to Husband’s Property During Marriage | Unless a divorce occurs, the wife does not automatically share in the husband’s property during his lifetime, but she is entitled to maintenance and may have rights over jointly acquired property. | No direct right to a share in the husband’s property, but she is entitled to Mahr (dower), which can act as financial protection. | No direct right to claim a share of her husband’s property during his lifetime, but she can claim maintenance. Under the Indian Succession Act, 1925, the wife can claim a share in the husband’s property if he dies without leaving a will (intestate succession). |
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 her 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.
Dower is important because it signifies respect from the husband to his wife, and it is essential for the validity of a marriage under Muslim law. It is considered a duty or ‘farz’ of the husband to provide dower to his wives as part of the pleasure he gets from them in a marital relationship. These teachings have also been reiterated in the Holy Quran; thus, husbands are obligated to follow them.
Dower has remained a relevant practice even in today’s time and is still followed by Muslims all over the world, even after the rapid development of society. Dower ensures an equilibrium between the rights and duties arising out of a Muslim marriage. The dower allows the parties to view the marriage as a personal bond and a legally enforceable contract. A Muslim marriage is not just a financial transaction, but it also acts as a means to promote the autonomy and respect of women within the marriage.
Frequently Asked Questions (FAQs)
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. As a solution, Section 5 of the Oudh Laws Act, 1976, was enacted so that a reasonable dower is given. Therefore, the legislature was given full power to maintain the amount of dower, providing that the court would not be bound to award the amount of dower according to the marriage deed.
Can the wife waive her right to dower?
Mahr is crucial for the sustenance and well-being of a woman in a Muslim marriage and is required for the marriage to be valid under Muslim law. It ensures that the husband is obligated to provide dower to his wife at the time of marriage. While the wife cannot legally waive her right to dower under Muslim law, she can choose to remit it out of her own goodwill after receiving it from her husband.
Many scholars also hold the contrary view, believing that a Muslim marriage will still be considered valid if the wife rejects her dower during the marriage. Maliki scholars oppose this view, believing that no matter what, the wife is always required to accept a minimum amount of dower that has been set under Muslim law for a valid marriage.
Discuss the applicability of the Muslim Personal Law (Shariat) Application Act, 1937.
The Muslim population is a significant part of India, which makes the Muslim Personal Law (Shariat) Application Act, 1937, an essential piece of legislation for them. It was enacted during British colonial rule and aimed to provide a consistent framework for personal laws that applied to Muslims. It is also known as the Muslim Personal Law because it governs how Muslims’ personal matters are handled according to their religious laws.
The Muslim personal law (Shariat) Application Act, 1937, enacted on October 7, 1937, applies to the whole of India except the State of Jammu and Kashmir. Section 4 of the Act gives the State Governments the power to make laws for their respective states.
The Act covers various personal matters related to the Muslim community, such as marriage, succession, inheritance, wakf, dower, and gifts. It also promotes transparency in applying Islamic principles uniformly to all Muslims in India.
What are the essentials of a valid marriage under Muslim law?
The essentials of a valid marriage under Muslim law are:
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Proposal and acceptance
For a valid Muslim marriage, both the proposal (hijab) and acceptance (qubul) should be made by one party to another in the same meeting.
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Competency of parties
The contracting parties must be of sound mind, following Islam, and attaining the age of majority. The age of majority under Muslim law is considered to be 15 years unless something else has been specified. Further, a person of unsound mind is not supposed to be a competent party to enter into a contract. A person of the unsound mind includes a lunatic or an idiot. For marriage, sects and subsects of the Muslim community shall not be considered, and the marriages between them shall be regarded as valid.
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Free Consent
The parties’ consent must be given freely and voluntarily without any coercion, fraud, or mistake of fact. If this is not followed, the marriage shall be considered void.
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Dower
Dower, also known as Mahr, refers to the consideration given by the husband to his wife in a marriage. The dower is usually money or property, but it can also be jewelry or any other valuable gift. In certain instances, an iron ring can also be considered mahr.
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Free from legal disability
It has to be made sure that the marriage does not fall within the category legally prohibited by the provisions laid down in Muslim law. Such restrictions can be divided into absolute prohibition and relative prohibition. A marriage under the category of absolute prohibition shall be void under the Muslim law. A marriage that falls under the category of relative prohibition shall be considered an ‘irregular marriage. ’ Once the irregularity is removed, it shall be considered a valid marriage.
How is Mahr impacted in cases of divorce?
The dissolution of marriage by law is known as a ‘divorce. ’ The divorce process varies depending on the religion and community of the married couple. The process followed by Muslim communities is different from that of other communities.
If the husband gives the divorce, he will pay the deferred dower to the wife the moment he gives the divorce. The full dower shall be given to the wife even if the marriage is dissolved.
If the wife gives divorce, as in the case of Khula, then she shall give back a part or the full amount of the dower given to her as part of the divorce settlement.
In cases where both mutually give divorce, no compensation shall be given to any of the parties. No one is liable to provide Mahr with.
References
- Mohammedan Law, Aqil Ahmed.
- Principles of Mohammedan Law, Mulla D.F.
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