Dower
Dower
Dower
Nasir 1990: defined dower as: “a sum of money or other property which becomes payable by
the husband to the wife as an effect of marriage”.
Immediately, the debate is sparked that dower is something akin to consideration or bride price.
This controversy arises, and its roots can be seen in judicial decisions and writings of academics.
In Abdul Kadir v Salima, Justice Mahmood in defining dower, used the word ‘consideration’. Abu
Zahra uses the words: ‘bride price’ At the outset, Pearl and Menski seek to correct this: mahr is
not a for contracting the marriage. Dower is an affect/incident of marriage rather than
consideration for it.
Further, Doi 1984 & Hamilton’s Hedaya – it is a sum paid to the wife as a mark of respect for her.
Designed to protect her, as security.
Nature of Dower:
Kapore Chand v Kadar Unnisa: is a claim arising out of contract so has preference to bequests
and inheritance, but doesn’t have priority over other contractual debts
Hamira Bibi v Zubaida: Lord Parker of Waddington: dower.. essential incident of muslim
marriage. In theory – payable before consummation.
dower ranks as a debt – wife is entitled on his death to have it filled out of his estate just like
other unsecured creditors. She has right to possession of whole or part of his estate until the
dower is satisfied.
Tayabji : husband may at anytime after marriage, increase the dower.
Qasim Hussain v Bibi Kaniz: woman has at any time, the right to remit the dower (hibat al mahr),
who has attained puberty but still not reached age of majority.
Manan 1990: Pk – remission must have been made with free consent. If coercion proves,
remission will be void.
But held in Shahbano v Iftekhar Muhammed in certain cases the remission of dower wont be
binding as it would be against equity and justice. In this particular case the woman signed a
document foregoing her right to mahr to prevent husband taking a lover.
Classification of Dower
Unspecified dower (mahr al mithal) – Q before the court is the amount payable
Specified dower: - Q before the court is the time they payment is to be made
Prompt dower (mu’ajjal)
Deffered Dower (ghair mu’ajjal)
Specified Dower:
Syed Sabir Hussain’s Case – Privy Council: Obligation to pay dower= legal responsibility on part
of the husband. Not dependent on any contract between parties.
Called customary dower by Ameer Ali
‘Mahr is an essential incident of muslim law to the status of marriage, to such an extent that it is
so that when unspecified at the time the marriage is contracted, the law declares that it must be
adjudged on definite principles.’ Fitzgerald
Fixed dower – usual to split it into two parts, one prompt and one deffered, to be payed on
death, dissolution of marriage, or some other specified event. The greater part of it is usually
deferred: shows importance in Islam of this being a security for the woman, a token of respect
as opposed to bride price.
Difficulty arises when it isn’t settled whether dower is prompt or deffered.
Ithna Ashari – presumption that whole of the dower is prompt
Hanafi – Per Mahmood J in Abdul Kadir v Salima and Gulab Khatun – the whole of the dower
may be promptly awarded.
In Pakistan and Bangladesh: presumption is that dower is prompt. s. 10 MFLO 1961: when no
details of mode off payment are made, the entire amount shall be presumed payable on
demand.
Amount of Dower:
Enforcement of Dower
Anwarul Hassan Siddiqui v Family Judge: in case the dower is deferred its enforcement is held in
abeyance till a certain event, i.e. dissolution of marriage by death or divorce, occurs.
Even if no dower is stipulated in the contract or even if the contract expressly states no dower
shall be payable to the wife, she is nevertheless entitled to dower. (dower of the equal)
If divorced before consummation, she is entitled to half the dower, and if no dower has been
fixed then she is entitled to the ‘gift of consolation’, mutat-al-talaq.
Hinchcliffe: general view =
Shahnaz v Rizwan: dower ranks as an unsecured but actionable debt, both from husband and his
estate respectively.
If she predeceased the husband, the heirs of the wife, including the husband are entitled to
mahr. (Tayabji) again shows importance and element of respect rather than bride price.
Mohammad Sadiq v Fakhr Jahan: husband payed money throughout to wide total of which
exceeded the amount of stipulated dower, 50K, but there was no intention that these payments
were to satisfy dower debt. Held by judicial committee= payments did not satisfy dower.
Tayabji: non payment of deferred dower by its very nature cant confer any right of refusal to
wife; is actionable only on death, divorce or happening of a specified event.
Kapore Chand v Kadar Un Nissa: right of mahr is like that of an unsecured creditor: (i) Has no
priority over other creditors. (ii) mahr as a debt has a priority over other heirs claims but heirs of
deceased not personally liable to pay dower.
Hinchcliffe highlights: widows have a special right to enforce their demand for dower: called the
widows right to retention. Mirvahedalli v Rashidbeg: Widow lawfully in possession of husband’s
estate is entitled to retain it until her dower debt is satisfied. Ameer Ali: right in essence is a
personal right as against heirs and creditors. It is a right to retain, not obtain.
Sir Montagu Smith: Mussumat Hebee Bachan v Shaikh Hamid Hossein: defined right to
possession: power of a widow as a creditor for her dower to hold the prioerty of her husband …
until her debt is satisfied.
Maina Bibi v Chaudhri Vakil Ahmad – Privy Council: widow entered into possession and pleaded
that she was entitled to possession until house was paid.
1. Trial judge made a decree for possession in favour of claimants (deceased heirs) on condition
that dower debt be payed. This wasn’t paid so she was entitled to possession.
2. Later, when she tried to gift the whole of the property to certain persons, Privy Council held
that she couldn’t do that and couldn’t convey the share of the heirs away. Alienation of property
was ultra vires because she had not acquired an absolute right in property. Held that right of
retention is only till debt is payed. Widow has no estate or interest in the property as a
mortgagee has under an ordinary mortgage.
Abdul Samad v Alimuddin: personal right under Mohammaden law to safeguard the position of
the widow. Further, held in Kapore Chand v Kadar Unnisa: not entitled to priority as against his
unsecured creditors.
Fyzee submits: consent, express or implied, of the husband for this right of retention is
immaterial, so not necessary. Islamic law casts a special obligation on every debtor to pay his
debt.
Maina Bibi v Chaudhri Vakil Ahmad: doubt expressed whether widow could transfer the debt or
right to maintain the estate until mahr is paid. Zobair Ahmad v Jainandan Prasad: held that the
widows personal right is not transferrable and Kapore Chand’s case (majority verdict) followed
it. Whereas, in Zabinnusa v Nazim Hassan and Hussain v Rahim Khan held that this right is both
heritable and transferable.
Ghouse Yar Khan v Fatima Begum: right is both heritable and alienable.
Kapore Chanad v Kadur un Nisa Begum: widow is not entitled to priority against her husbands
unsecured creditors. Indian SC.
Diwan and Diwan 1991: widows interest should be of paramount consideration
Roshan Ara v Badri Kamala: husbands may give their wives property in lieu of dower
Sardar Begum v Iqbal Ahmad: on payment of dower debt, her right will be extinguished.
Can husband avoid paying dower and nevertheless enter into a binding marriage contract? Abu Zahra –
brideprice not a condition which affects the validity of the contract nor is it an essential requisite. If it
isn’t mentioned in contract, contract is still valid. Balchin (1994), for PK: muslim marriage valid even if no
dower is mentioned