UNIVERSITY OF PETROLEUM & ENERGY STUDIES

SCHOOL OF LAW
B. COM., LLB. (HONS.)TAXATION LAWS

SEMESTER - III

ACADEMIC YEAR: 2017 -18 SESSION: AUGUST-DECEMBER

Under the Supervision of:Mr. AshutoshTripathi

TOPIC-DOWER

NAME: NITISH KUMAR NAVEEN

SAP ID: 500054889
ROLL NO : 063
 PROJECT

DOWER

INTRODUCTION
Mahr or dower is a sum of money or offer property which the wife is entitled to receive from
the husband in consideration of the marriage. Mahr or dower is a sum that becomes payable
by the husband to the wife on marriage either by agreement between the parties or by
operation of Law. Dower in the present form was introduced by the prophet Mohammad and
made obligatory by him in the case of every marriage. “Dower” in Muslim law is somewhat
similar to the demotion proper nuptials in Roman law. The important difference however, is
that while under the Roman law it was voluntary, and under the Muslim law it is absolutely
obligatory. The Mahr (Dower) belongs to wife and she can deal with it in the manner she
likes it and neither her husband nor husband's relations nor even her relations can dictate her
in matter of using the Mahr money or property. No doubt, Mahr was originally analogous to
sale price, but since the inception of Islam, it is hardly correct to regard it as the price of
sexual intercourse. And give women their dowries willingly. But if they of themselves be
pleased to give up a portion of it then consume it with taste and pleasure. 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 (of 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. Mahr or Dower has to be given to wife however she is
vested with discretion to remit it. Mahr is non-refundable even after divorce (unless she
remits it at her sole discretion) and it becomes the property of wife in perpetuity. Payment of
Mahr is mandatory even if marriage is not consummated. But in that case, Mahr is half of the
amount fixed. In a way, Mahr provides a check on the capricious exercise by the husband of
his almost unlimited power of divorce. Even a middle class man can fix the Mahr of eleven
lakhs of Ashrafis (an ashrafi would be 15-20 rupees). This sum of money would give serious
cause for anxiety for a middle class man for giving divorce.
Nature of Dower
It is not sale price for bride. But it is part of the Muslim marriage contract where wife and
husband agree to live together, bear children and develop a family unit. Some Muslim jurists
have termed dower as usufruct of the wife. In Roman and Scot laws the usufruct is right of
enjoying the use and advantage of another’s property.
But dower in Muslim marriage is not exactly a consideration for marriage in the sense of a
consideration for any other contract. It is an obligation imposed by God and his prophet on
the husband and a mark of respect for the wife. The wife and husband may fix it before
marriage or during marriage.

The husband is bound to pay specified dower immediately after signing the Muslim marriage
contract. However, the parties are free to defer the whole or part of the dower for arising of
some event like divorce or second marriage of the husband. If the husband fails to pay or dies
without paying the dower, it shall be recovered from his property as a debt.

Mahr Amount

1) Hanafi Law, 10 Dirhams

2) Malaki Law, 3 Dirhams
3) Shafi Law, No fixed amount
4) Shariya Law, No fixed amount.

The Mahur fixed by Prophet of Islam for his favourite daughter Fatima, wife of Ali was 500
Dirhams. A dirham (derived from the Greek) is the name of Silver coin of 2.97 grammes in
weight. However, it would be a sad mistake to lay too great stress upon the monetary value of
the Mahr amount. It is said that in the case of an extremely poor man, the Prophet requested
him to teach the Quran to his wife. It is said in one Hedaya that the payment of Mahr is
enjoined by the law merely as a token of respect for the woman.

The object of Dower

The object of dower is three-fold:

(i) To impose an obligation on the husband as a mark of respect of the wife,

(ii) To ac a check on the capricious use of divorce on the part of husband, and

(iii) to provide for her subsistence after the dissolution of her marriage, so that she may not
become helpless after the death of the husband or termination of marriage by divorce.
Types of Dower

Specified dower (mahrul-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, 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 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 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.

It has two types:

Prompt (Muajjal) and deferred (Muvajjal) mahr

A technical term for Prompt is muajjal and for Deferred is muvajjal. The term muajjal is
derived from a root meaning 'hasten', 'to proceed' whereas the term muvajjal 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 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 ishna 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.
Customary (Proper) dower (Mahr-i-Misl)

The obligation to pay 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. If no mahr is fixed, wife will be entitled to receive the amount
which is customary in the community or in respective society or what is proper in each
individual case. The proper ion in each individual case will be determined as follows:
 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 fixed earlier in the family (i.e., mahr fixed for father, brother, uncle,
sister etc. of the wife's family).
Increase or decrease of dower

The husband may at any time increase the dower. Like-wise, the wife may remit the dower
wholly or partly. The remission of the Mahr by wife is called as HibatulMahr or Hiba-I-
Mahr. When a wife was being ignored by husband and thought that only way to win him back
was to waive mahr, her remission of Mahr was considered without her consent and was not
binding on her1.

Remedies of a Muslim woman to recover dower

The right to dower is an inherent right of every Muslim wife. But, unless this right is
effectively enforced, it is of no use to her. Under Muslim law, following means of
enforcement of the right to dower are available to a wife (or widow):

(1) Refusal of Conjugal Rights

Before consummation of the marriage, the wife is entitled to deny cohabitation to the
husband till he gives her Prompt Dower on demand. It is to be noted that under Muslim
law a husband has right to cohabit with his wife and she cannot refuse the same without
any reasonable excuse.

But non-payment of Prompt Dower before consummation is a lawful justification for the
wife to refuse cohabitation. A Muslim-wife can refuse to live with her husband and refuse
to him the sexual intercourse so long as the Prompt Dower is not paid to her.

Nasra Begam v. Rizwan Ali2

The Allahabad High Court held that the right to dower comes into existence before
cohabitation and Prompt Dower may be demanded even before the cohabitation. Where
the wife is minor or insane, her guardian can refuse to allow the husband to take his wife
with him till the Prompt Dower has been paid. If the minor wife is already in the custody
of her husband, such guardian can take her back on the ground of non-payment of Prompt
Dower. But, where the consummation has taken place even once, the wife’s right to
refuse consummation is lost. If the marriage has already been consummated, the
husband’s suit for restitution of conjugal right will not fail on the ground of non-payment
of Prompt Dower. However, the court has discretion, even in such a case, to pass a decree
for restitution of conjugal rights subject to the condition of payment of Prompt Dower.

1
Shah Bano v.Iftikhar Mohammad 1956 Karachi HC
2
AIR 1980 All 119
 Anis Begum v. Muhammad IstafaWali Khan3

The facts were that in the marriage of Anis Begum and Md. Istafa, the Prompt Dower was
Rs. 15,000. The husband and wife lived together for some time and a daughter was born
to them. Later on, Anis Begum left the house of her husband and refused to come back till
her Prompt Dower was satisfied. Md. Istafa, the husband, filed a suit for the restitution of
conjugal rights. It was held by Sulaiman, C.J., that there was no absolute right in a
husband to claim conjugal rights unconditionally. The courts have discretion to make the
decree of restitution of conjugal rights conditional on payment of wife’s unpaid Prompt
Dower even where the marriage has already been consummated. Accordingly, the decree
for restitution of conjugal right was passed in favour of the husband subject to his
payment of Rs, 15,000/-.

(2) Enforcement of Dower as debt

Where the marriage has been consummated, the wife cannot enforce her claim by
refusing conjugal rights to the husband. In such a situation the wife can recover her
unpaid dower by maintaining an action in a court of law. She may realise it from husband
in the same manner as a creditor recovers his loan. If the husband dies, the widow is
entitled to recover the amount by filing a suit against the legal heirs of the deceased
husband. But the legal heirs of the husband are not personally liable to pay the dower.
The dower is a debt against the estate of the deceased husband which is inherited by heirs.

Syed Sabir Hussain v. Farzand Hussain4

A shia Muslim stood surety for 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.

(3) Widow’s Right of Retention

After the death of husband the most effective method of enforcement of dower is the
exercise of ‘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 as
the right of retention in lieu of unpaid dower and it is available to a widow, whether there
is any 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 free consent of the husband)
in lieu of unpaid dower, then she is entitled to retain that possession after the death of her

3
AIR 1933 All 634
4
65 IA 119
husband, until her dower is paid out of the properties retained by her.This right is
exercised against the creditors, if any, of her deceased husband, and his legal heirs. The
legal heirs of the husband cannot get possession (and benefit) of the properties of the
deceased until they make payments towards unpaid dower in proportion of their
respective shares. Thus, this may be said to be a coercive method of recovery of unpaid
dower from husband’s legal heirs.

Maina Bibi v. ChaudiharyVakil Ahmad

Muin Uddin and Maina Bibi were lawfully married husband and wife. Upon the death of
Muin Uddin in 1890, Maina Bibi retained certain immovable properties of her deceased
husband in heu of her unpaid dower. No payment of her dower was made by the legal
heirs of the husband including Vakil Ahmad, and she continued her possession. In 1907,
Maina Bibi, the widow, made a gift of those properties and also gave possession to the
donees. After this, Vakil Ahmad and other heirs filed the present suit for getting
possession over the properties on the ground that the gift was void because during
retention widow had no right to transfer the properties. It was held by the Privy Council
that a widow who is in possession of her husband’s estate in lieu of unpaid dower is not
owner of the properties. The only right with respect to the properties is the right to
continue to hold the possession, till her dower is not paid by the heirs. The court further
observed that failure of the payment of dower by the heirs would not make her an
absolute owner of the immovable property of which she had been in possession. The non-
payment also does not confer any interest in the properties retained or any right to transfer
it. The result was that the gift was held to be void and the possession was taken from the
donees. It may be concluded therefore, that any kind of transfer of the retained property,
whether it is sale, gift or exchange etc. is void and cannot take effect.
CONCLUSION

Mahr is a mandatory gift given by the groom to the bride. Unlike a bride price, however, it is
given directly to the bride and not to her father. Although the gift is often money, it can be
anything agreed upon by bride and groom such as a house or viable business that is put in her
name and can be run and owned entirely by her if she chooses. In today’s terms, it has taken a
very wide scope and many important constitutional questions have also cropped up.
However, in my opinion, even though Dower serves as security for the girl, it should entirely
be scrapped. Infact, all personal laws should be scrapped and a uniform civil code should be
brought in. This shall make the Indian Society live in a state of perfect harmony. Mahr is
something in the form of money or some property in which wife is entitled to get from her
husband and in case of his death from his heir also. When amount dower is fixed, it is
specified or otherwise proper dower may be specified before at the time of and even after the
marriage. Dower is debt though unsecured. The wife, widow or divorce has right to retain in
possession of the property of husband till her dower debt is satisfied. The right of retention is
not charge on property. The right of dower is heritable and transferable which in possession
of the husband’s property in lieu of her dower debt the widow or divorcee can neither make
alienation of that property nor manage it.