JAMIA MILLIA ISLAMIA UNIVERSITY

FAMILY LAW
DOWER

SUBMITTED TO:- MRS.KAHKASHAN DANYAL

SUBMITTED BY:- NASIR ALAM

BALLB (HONS)(S/F)
2ND YEAR

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TABLE OF CONTENTS
S.NO. TOPIC PAGE NO.

1. INTRODUCTION 03

2. NATURE OF DOWER 06

3. OBJECTIVE OF DOWER 10

4. TYPES OF DOWER 11

5. CONCLUSION 15

6. BIBLIOGRAPHY 16

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PROJECT

DOWER

INTRODUCTION

Dowry and Mahr are often misunderstood and misusedconcepts. Actually, there is no concept
of dowry in Islam, as itis practiced in most Muslim societies. Nor is dowry theEnglish
translation of Mahr. Mahr is the ‘bride gift’. At thetime of the marriage, the groom commits to
hand over andactually hands over to the bride a sum of money called Mahror Dower which is a
token of his willing acceptance of theresponsibility of bearing all necessary expenses of his
wife.This is the original meaning of Mahr. However, in real life,Mahr has taken a back seat and
in its place, the bride groom party exacts money, fat gifts, even property, from the bridalside as
a condition for the former’s willingness to enter into the marriage relationship. So, dowry
stands Mahr on its head. The purpose of this article is to repeat the concepts of dowry and Mahr
and advocate for social practice according to Islamic Shariah. Mahr Is Essential For Nikah
According to the Islamic jurisprudence, a woman married to a Muslim man has a right to get a
property or money which is called Mahr. Declaration or commitment of Mahr at the time of
solemnizing the marriage or Nikah is advisable. But Mahr is so natural a right of woman over
her husband that even if Mahr is not negotiated or declared at the time of Nikah, the woman has
the right of having Mahr and the right isundeniable unless the bride pays all or a part of it after
marriage. Male folks in today’s Muslim societies are so preoccupied with dowry that this
divine and obligatory aspect of Mahr is often forgotten. Islam strictly commands the groom to
give a ‘bridal gift’ or ‘Mahr’ as a token of love and assurance to his would be wife at the time
of marriage. In fact, without payment of this sum, the marriage cannot get solemnized and
completed. According to a narration in Bukhari, the Mahr is an essential condition for the
legality of the marriage: 'Every marriage without Mahr is null and invalid'. The Holy Qur’an
instructs the believers in [Al-Nisa 4: "And give to the women (whom you marry) their Mahr
with a good heart, but if they, of their own good pleasure, give any part of it to you, take it, and
enjoy it without fear of any harm

(as Allah has made it lawful)." Some interpretations regard Mahr as wajib (obligatory) while
others regard it as Sunnah or desirable.

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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.

Dowry, An Un-Islamic PracticeDowry is a totally un-Islamic practice.

In Islam, women arenot 'owned' by their families and should not be traded with inthis
manner. It is an insulting practice. In the Jahiliyah society before Islam, this money was
regarded as the property of the girl's guardian. The practice of dowry among ignorant
Muslims is a result of the influence of the evil practices of the society they live in. Islam does
not put any financial burden on the father of the girl. A Muslim father is told to get her
daughter married away in a most simple Nikah ceremony solemnized by a Qazi/priest in a
mosque, witnessed by his close relatives and friends. He is not even required to throw a lunch

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to the handful of invitees gathered for this occasion. In fact, it is desirable on the part of the
groom that he offers a reception/Walima to his near and dear ones without forgetting the poor
people of his society.

Demanding Money For Household Goods

One of the problems that may occur in the later years of marriage is to demand a large
amount of money that will leave the male in a difficult situation when speaking about Mahr
for the female. Or to demand high quality goods thatwill force the budget of the man or
woman’s side when buying presents or household goods. Under these circumstances, both
sides fulfill and supply what is wanted by forcing their potentiality and financial recourses
and also if required by gaining a loan. In spite of the fact that the case has been solved and
the demands have been fulfilled, there will remain a big difficulty and a heavy burden like a
heritage either upon mother-father or upon the newly married couple. Sometimes paying this
debt lasts for years. So, the first years of the young couple while it should have been good, it
will have been with the difficulty of paying the installment of debt. Civil society groups
including feminists in India raise protests in Bangladesh and India about gender violence and
dowry deaths. Even social movements like wedding with only flowers and garlands are talked
about and show cased. But there is no let up in gender violence centering on dowry.
However, they are unable to make any dent on dowry taking because they are not informed
with religious commands.

Making Nikah Easiest

Prophet Muhammad (SAW) shows the safest and the most reasonable way in this case in his
narration which is “The most advantageous nikah (marriage) is the one which is the easiest.”
(Abu Daud, Nikah) He advised a marriage thateveryone can carry out and to spend a suitable
amount of money. Islam teaches that the dowry should be reduced and Nikah should be made
simple, and this is in the interests of both the husband and the wife. In the first era of
Islammarriage was a simple affair, without showiness or ceremony. Any expenditure
included in its performance was quite minimum, and not a burden on either family. Indeed,
the Prophet (SAW) stated: 'the most blessed marriage is one in which the marriage partners
place the least burden on each other.' (al-Haythami, Nikah) The example of such a simple
marriage was set up by none other than the Prophet Muhammad (SAW) himself. He got his
daughters married in the simplest possible manner. So he paved a way for people of all times
to come to live a life without stress and strain relating to daughters’ marriages too! One bad

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aspect of dowry-giving in recent times is that it is becoming more and more a matter of
showiness. Nothing could be more un-Islamic in motivation than this. Even the practice of
performing a marriage quietly, without any display of wealth, but afterward giving a big
dowry to enable the bride to set up her home is contrary to Islamic practice. It was certainly
not the Sunnah of the Prophet (SAW). Fatimah (RA.) was his favorite daughter, but he
neither gave her a dowry nor did he send things to her home after the wedding. As faras some
household goods are concerned that were purchased at the time of her marriage, that were
purchased by selling the coat of armour of Hazrat Ali (RA). When Fatima

(RA) made a request to him for something of a material nature, he only gave her the benefit
of his advice in line with taqwa and good a’mal. And also the amount of the Mahr which is a
right of the woman and which is to be given by the man is available in the Sunnah. It can be
seen clearly both in his personal practice and with the examples that he showed to his
excellent Sahabas. The household goods of Fatimah (RA.) were composed of only a few
goods that were needed to be in a house. Prophet (SAW) who wanted to prevent the young
companions from going wrong (who did not have any money and economically very poor) by
easing the act of Nikah and ordered them to have a family. Indeed, once he said to a
companion, “Even if you have an iron ring, give it to woman as a Mahr.” When the
companion said, “Even I have no an iron ring”, the Prophet (SAW) said to him: “I have
married you with her, as long as you teach her the chapters (surah) that you memorized from
the holy Qur’an.” (Muslim, Nikah) The saying of Hazrat Umar (RA) upon people’s asking
for extreme amount Mahr is remarkable: “O believers, do not go to extremes concerning with
the case of increasing the amount of the Mahr given to the women. Because, if exceeding in
this case were something to praise in this world life and a goodness before Allah, he would
be Prophet (SAW) who has the most right and capacity for that. Whereas he did not pay
above 12 ukiyya (500 dirham) to any of his wives as aMahr and did not demand above 12
ukiyya for any of his daughters.” (Ibn Maja, Nikah)

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.

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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.

Exaggeration Concerning The Mahr

Islamic scholars have spoken a great deal about this issue and explained the harm that results
from exaggeration concerning the Mahr. For example, Shaykh Muhammad ibn Ibrahim
issued a lengthy fatwa on this matter, in which he said: “One of the things that people have
gone too far in, until they reached the level of extravagance and excess, is the matter of
exaggerating concerning the Mahr, and being extravagant in clothing, wedding feasts, and so
on.” The knowledgeable and wise people have started to complain about this because of the
many evil results to which it leads, such as many women remaining unmarried, because many
men cannot afford the expenses of getting married, which leads to many kinds of evil results.
Research has been conducted in this matter from all angles and reached the following
conclusions: Accepting a moderate Mahr and not demanding more of the husband than he can
afford are commanded by Shariah, according to the agreement of the scholars of the earlier
and later generations. This is the Sunnah that is proven from the Prophet Muhammad (SAW).
If the husband takes on payment of a Mahr that he cannot afford and that is beyond his
means, he deserves to be condemned for that, because he has done something Makruh, even
if that Mahr is less than the Mahr given by the Prophet (SAW). Sahih Muslim narrates a
Hadith quoting Abu Hurayrah (RA.): A man came to the Prophet (SAW) and said:
"I have got married to a woman from among the Ansar." The Messenger of Allah (SAW) said
to him: "Have you looked at her? Because there may be something in the eyes of the
Ansar." He said: "(Yes) I have looked at her." He said: "For how much did you get married?"
He said: ‘For four uqiyahs." The Prophet (SAW) said: "For four uqiyahs! It is as if you are
getting this silver by digging it up from the side of this mountain. We do not have anything to
give you, but perhaps we will send you on a campaign from which you might get
something." So he sent a campaign to Bani ‘Abs, and he sent that man among them. Al-
Nawawi said in his commentary on this hadith: what this means is that it is Makruh to make
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the Mahr too much in relation to the husband’s situation. There can be no doubt that marriage
is something that is prescribed and encouraged in Shariah, and in most cases it reaches the
degree of being obligatory. Most people cannot manage to do this thing that is prescribed
when there is exaggeration concerning the Mahr. It is well known that whatever is essential to
doing something obligatory is also obligatory, from which we may understand that it is
prescribed to make people aware of the seriousness of this matter and stop them from going
to extremes in this matter which is preventing men from doing that which Allah
Almighty has commanded them (i.e., getting married), especially since the command to
reduce the Mahr will not lead to any evil results, rather it is wholly in the interests of
both the husband and the wife, and is in fact something that is liked and encouraged in Islam,
as stated above.
Accepting The Proposal Of Compatible Man
There is no Shariah justification for the woman’s guardian to refuse to marry her to a
compatible man if he proposes marriage to her and she is pleased with him, because he
cannot pay the large Mahr that the guardian demands because of his personal greed or for the
purpose of extravagance and showing off. Rather this comes under the heading of preventing
marriage for which the one who does it is regarded as a fasiq (evildoer) if he does it
repeatedly. Shaykh Ibn ‘Uthaymin said: "The scholars found a way around this obstacle when
they said that if a guardian refuses to marry his female relative under his care to a compatible
man with whom she is pleased, then that guardianship passes to another. For example, if a
woman’s father refuses to marry her to a man whose religious commitment and character are
suitable and with whom she is pleased and whom she wants to marry, then the closest of
people to her after him, among her brothers, paternal uncles or cousins, should marry her to
him."
Evil Results Of Exaggeration In Mahr
Increasing the Mahr and all excesses around it form a strong obstacle to marriage, and many
evil results follow from this. Islam came to achieve and complete people’s best interests,
and to reduce evils. Even if reducing Mahrs were to do no more than block the ways that lead
to haram things, that would be sufficient. The evil results of exaggerating concerning Mahr
are well known. How many free, faithful women have been prevented from marrying by their
guardians, who have wronged them and left them without husbands and children. How many
women has that led to respond to the calls of their own desire and the Shaytan, so they have
committed evil actions and brought shame upon themselves and their families and
tribes, because they have committed sins that anger the Most Merciful?
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How many young men have been unable to meet these demands for which no authority was
sent down by Almighty Allah, so the devils and evil companions took control of them,
until they led them astray and caused them to lose out, so they lost their families and lost their
way, and they became lost to their Ummah and homeland, and they lost out in this
world and in the Hereafter. Another harmful effect of exaggeration concerning Mahr is the
appearance of mental illness among young people of both sexes, because of the frustration
they encounter when they try to get married. Making demands of the husband that he cannot
meet may causes enmity in his heart against his wife, due to the financial difficulties that he
suffers because of her. But the aim of marriage is happiness, not hardship. Even if there is
any benefit in a large Mahr for the women or her guardians, the evil results compensate any
such benefits. The basic principle in Shariah is that warding off evil take
preference over achieving benefits. We may also mention a case narrated from Umar (RA).
When he forbade increasing the Mahr to more than four hundred dirhams, a woman from
among Quraysh objected to that and said: "O Amir al-Muminin, you have forbidden
increasing the Mahr of women to more than four hundred dirhams, have you not heard the
words of Allah (interpretation of the meaning): ‘…and you have given one of them a Qintar
(of gold, i.e. a great amount as Mahr)…’ [Al-Nisa 4: 20]?" He said: "O Allah, forgive me. All
the people have more understanding of religion than ‘Umar." Then he went back
and ascended the minbar, and said: "O people, I forbade you to increase women’s Mahr to
more than four hundred. But whoever wants to give as much as he wants of his wealth let
him do so." But this story may be understood in different ways, and cannot be used as
evidence or to oppose the proven texts referred to above, especially when there is no report of
any objection to Umar (RA) or condemnation of him on the part of any of the Sahabah apart
from this woman.
Evil Practices; Dowry & Bonnet Money
Dowry to the man is not an Islamic practice and something which goes against what a man
should do in a marriage according to the Sunnah. It is not Islamically proper to ask for
dowry or give them. If a whole group of Muslims do it generations after generations, it
automatically becomes an Islamic practice from just merely a cultural practice. When
people practice something un-Islamic for generations the origin of their knowledge is lost and
hence been looked as an Islamic practice. There are many in today’s time who says
dowry (given to the man) is actually Islamic. Any new way of worship other than what the
holy Qur’an and Sunnah says is a bidah (innovation) and any implementation of cultural
practices in Islam calling it “Islamic” is obviously also an Innovation to the religion of Islam.
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There is another concept, which is also social and cultural in origin, which is “bonnet
money”. Some mixes the Mahr with bonnet money. While Mahr is given directly to the girl
as a present from the man; in the bonnet money, the father of the girl asks for money in return
for his daughter to his account. This money that is demanded from the groom candidate
makes the marriage a material deal.
The Importance Of Mahr
Islam has legislated the giving of the Mahr by the husband to the wife in order to please the
woman’s heart and to honour her. It is also meant to bring an end to what was done in the
Days of Ignorance in which she was wronged, exploited, despised and robbed of her wealth.
The Mahr is a right especially for the wife. It is her possession and none of her guardians or
relatives may share any part of it. She has every right to use of it the way she would use, of
course, in a permissible way. The Mahr was introduced because the goal of marriage has
been establishing a long-term and stable relationship between husband and wife. Mahr
strengthens the bond because it is an expression of commitment from the groom and the bride
feels secured. Secondly, it acts as a prevention for divorce or break up of marriage because
when the groom pronounces divorce, obligation befalls on him to pay out the unpaid amount
of Mahr. Thirdly, in the undesirable event of divorce, Mahr acts as a safety net for the wife.

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:

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(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

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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.

1
Shah Bano v.Iftikhar Mohammad 1956 Karachi HC
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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.
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

2
AIR 1980 All 119
3
AIR 1933 All 634
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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
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

4
65 IA 119

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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.

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 JAMIA MILLIA ISLAMIA UNIVERSITY

BIBLIOGRAPHY

BOOKS:

1. OUTLINES OF MOHAMADDAN LAW, 4th ed. Oxford India Paperbacks - ASAF A.A.
FYZEE.

2. FAMILY LAW IN INDIA, 9th ed. S.Gogia & Co. -PROF. G.C.V.SUBBARAO

3. FAMILY LAW, 9th ed. Allahabad Law Agency -PARAS DIWAN

4. THE MUSLIM LAW OF INDIA, 3rd ed. Lexis Nexis Butterworths -TAHIR MAHMOOD

5. MUSLIM LAW, 9th ed. Lexis Nexis Butterworths –MULLA

STATUTES AND LAWS REFFERED:

1. The Indian Constitution,1950

2. The Dissolution of Muslim Marriage Act,1939

3. The Civil Procedure Code, 1908.

4. The Child Marriage Restraint Act 1929.

ONLINE SOURCES:

1. www.indiankanoon.org

2. www.moj.gov.jm

3. http://shodhganga.inflibnet.ac.in/bitstream/10603/8109/9/09_chapter%202.pdf

4. http://www.legalserviceindia.com/article/l162-Concept-of-Marriage-in-Muslim-Law.html

5. www.scconline.com

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