Saturday, 29 June 2024

Dower under Islamic Law

Mahr or dower is a sum of money or other property which the wife is

entitled to receive from the husband in consideration of the marriage.
The word ‘consideration’ is not used in the sense in which the word is used in
the Indian Contract Act, 1872.
Under Mohammedan Law, dower is an obligation imposed upon the husband
as a mark of respect toward the wife.
In pre-Islamic Arbia, Sadaqah was a gift given to the wife but Mahr was paid
to the wife’s father and could, therefore, be regarded as a ‘sale price’ for
giving away one’s daughter.
But after Islam, Mahr is required to be given to the wife and not to her father.
Thus, it could no longer be regarded as ‘sale price’.
In Abdul Kadir v. Salima, (1886) 8 All 149, Mahmood, J., stated the following:
“Dower had been compared to the price in a contract of sale because
marriage is a civil contract and sale is a typical contract to which
Mohammedan jurists are accustomed to refer by way of analogy.
If dower was a bride price, a post nuptial agreement to pay dower would be
void for want of consideration, but such an agreement is valid and
enforceable.”

In HM Mondal v. DR Bibi, AIR 1971 Cal 162, the Court described that a
Mohammedan marriage was a contract with the dower acting as
consideration. It further held that the transaction was in the nature of
hiba-bil-iwaz (gift for an exchange).

Before the advent of Islam in Arabia, a marriage was generally contracted by

purchasing the girl from her guardian. A man who wanted to marry a girl used
to approach her guardian and after giving s o m e money or property to him,
used to take the girl with him as his wife. Such a marriage was almost a sale
of the girl by guardian. The money or property given by husband to the
guardian was 'compensation' or 'price' of the girl, and was known as Mahr.
This type of marriage was known as Ball-marriage. Another kind of marriage
was also very common in those days, was known as Beena-.
marriage. In the Beena-marriage, the man used to approach the girl directly,
gave her some money or property, and lived with her. The wife did not
accompany the husband. The money or property given by husband to the
wife was a 'gift for the marriage' and was called Sadaq; the wife was wife
called Sadeeqa (girl-friend). A common feature in both the forms of marriages
was that the husband has to pay something for his marriage. In the Ball-
marriage, he had to pay to the guardian of the girl, whereas in the Beena, he
had to pay to the girl herself.

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 Who can make a Contract of Dower?

The amount of dower may be xed either before or at the time of marriage;
and it can be increased after marriage.
A contract of dower made by a father on behalf of his minor son is binding
upon the minor son. Such a contract may even be made after marriage,
provided the son is still a minor.
Among Sunnis, the father does not become personally liable for the dower
debt merely by entering into such a contract. The father is also not liable for
the dower debt if he merely consents to the marriage.
Here, a minor is one who has not yet attained the age of puberty.
Shia Law: If the minor son has no means of his own, the father will be liable
for the payment of the dower debt.

Con rmation of Dower

The dower becomes con rmed if any one of the following takes place:
i. By consummation of the marriage.
ii. By khilwat-e-sahiha (valid retirement).
iii. By the death of either the husband or the wife.

Question: What is valid retirement?

The whole of the dower does not become payable merely on a marriage
contract; however, it
becomes payable after valid retirement.
‘Valid retirement’ essentially means a situation in which a husband and wife
are intimate with
each other in such a manner that consummation may be assumed.
Under Sunni Law, valid retirement is equal to cohabitation.
The Prophet has stated the following:
“The person who removes the veil of a woman and looks at her, the whole of
the dower
becomes due on him, whether the act of consummation takes place or not.”

Shia Law: ‘Valid retirement’ is not the equivalent to cohabitation.

Types of Dower:

Speci ed Dower
The husband may settle any amount he likes by way of dower upon his wife,
even if it is beyond his means.
In Mohammad Shahabuddin v. Mt. Umator Rasool, AIR 1960 Pat 511, the
Court held that the minimum amount to be settled by Sunni Muslim males as
their dower cannot be less than ten (10) dirhams.

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 Dirham is a form of currency used in the Middle East. The currencies of
Morocco and the United Arab Emirates are still called dirhams today.
In the present day, the value of 10 dirhams will be determined keeping in view
the value of the currency in Saudi Arabia.

Landmark Case Law: In Zakeri Begum v. Sakina Begum, (1892) 19 IA 157, the
Privy Council observed the following:
“Dower is often high amongst Mohammedans to prevent the husband from
divorcing his wife, in which case he would have to pay the amount stipulated
and the mere fact that the amount stipulated is excessive or beyond the
means of the husband is no defence to the wife’s claim.”

Shia Law: Under the Shia Law, there is no xed legal minimum for dower.

‘Proper’ Dower
If the amount of dower is not xed by the time of marriage, the wife will be
entitled to mahr-i-misl (proper dower).

The wife is entitled to receive the dower amount even if the marriage was
contracted on the express condition that she should not claim any dower.
In Hamira Bibi v. Zubaida Bibi, (1916) 43 IA 294, the Privy Council observed
the following:
“Dower is an essential incident under the Mussalman law to the status of
marriage; to such an extent is this so that when it is unspeci ed at the time
the marriage is contracted the law declares that it must be adjudged on
de nite principles.”

The criterion for determining the ‘proper dower’ includes the following:
i. Social position of the woman’s family.
ii. Wealth of the husband.
iii. Wife’s personal quali cations.
iv. The circumstances of society.
v. The husband’s status in society.
Where an excessive dower is promised but proved to be only for show or
where no dower is proved to have been xed at marriage, the ‘proper dower’
should be paid.
A marriage contract that doesn’t mention dower is valid only if the marriage is
not consummated.

Shia Law: The ‘proper dower’ should not exceed 500 dirhams under Shia
Law.

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 ‘Prompt’ and ‘Deferred’ Dower
The amount of dower is usually split into the following two parts:
i. The ‘prompt’ part which is payable on demand.
ii. The ‘deferred’ part which is payable on dissolution of marriage.

In Rehana Khatun v. Iqtidar Uddin, (1943) All LJ 98, the Court held that the
‘prompt’ portion of the dower may be realised by the wife at any time before
or after consummation. ‘Deferred’ dower does not become ‘prompt’ dower
just because the wife demands it.
In Fatima Bibi v. Sadruddin, (1865) 2 Bom HC 291, and Tau k-un-nissa v.
Ghulam Kambar, (1877) 1 All 560, the respective High Courts held that one-
third (1/3rd) of the dower was reasonable as ‘prompt’ dower.
In Nasiruddin Shah v. Amatul Mughni Begum, AIR 1948 Lah 135, the Court
held that in the absence of custom, the presumption is fty- fty between
‘prompt’ and ‘deferred’ dower.
Important: In all the above cases, the parties were Sunni Muslims. These
case laws do not apply to Shia Muslims.

Remedies Available to a Muslim Woman to Recover Dower

The right to dower is an inherent right of every Muslim wife. But, unless this
right is e ectively enforced, it is of no use to her.
Under Muslim law, the following means of enforcement of the right to dower
are available to a wife (or widow):
i. Suit for dower.
ii. Refusal of conjugal rights.
iii. Dower as a debt.
iv. Widow’s right to retain possession of husband’s estate.

Suit for Dower and Limitation

If the dower is not paid, the wife, and after her death, her heirs, may sue for it.
The period of limitation for a suit to recover ‘prompt’ dower may be one of the
following:
i. It is 3 years from the date when the dower is demanded and refused.
ii. During the continuance of the marriage, where no demand for payment of
dower is made, a suit for payment of ‘prompt’ dower may be maintained
when the marriage is dissolved.
The period of limitation to recover ‘deferred’ dower is 3 years from the date
on which the marriage is dissolved.
In Muhammad Taqi Khan v. Farmoodi Begum, AIR 1941 All 181, the stated
that the wife has the right to bring an action for the recovery of ‘prompt’
dower both before and after consummation of marriage. The consummation
does not have the e ect of converting the ‘prompt’ dower into‘deferred’
dower.

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Non-payment of ‘Prompt’ Dower and Restitution of Conjugal Rights

According to the Hedaya, the wife may refuse to live with the husband and
admit sexual intercourse so long as the ‘prompt’ dower is not paid.
If the husband sues for the restitution for conjugal rights before sexual
intercourse takes place, non-payment of the dower amount is a complete
defence to the suit. Such a suit will be dismissed.
In Abdul Kadir v. Salima, (1886) 8 All 149, the Court stated that if a suit is
brought after sexual intercourse has taken place with the free consent of the
wife, the suit will not be dismissed, but a decree of restitution will be passed
conditional on payment of prompt dower.
In Nasra Begum v. Rejwan Ali, 1979 All WC 722, Seth, J., stated the
following: “The wife can refuse to live with the husband and admit him to
sexual intercourse so long as prompt dower remains unpaid.”

Dower is a Debt, but an Unsecured Debt

The dower ranks as a debt, and the widow is entitled, along with other
creditors of her deceased husband, to have the debt satis ed on his death,
out of his estate.
The widow’s right is no greater than that of an unsecured creditor. The widow
is not entitled to any speci c charge on her husband’s property.
A charge of dower debt may be created by the Court; however, such a decree
will not ordinarily be passed. This is because it will give greater priority to the
dower debt even over the debts due to other secured creditors.
The heirs of a deceased Mohammedan are not personally liable for the
payment of the dower debt. Each heir will only be liable to the extent
proportionate to the share of the estate allotted to them.

Widow’s Right to Retain Possession of Husband’s Estate in lieu of Dower

The widow’s claim for dower does not entitle her to a charge on any speci c
property of the deceased husband.
In Beebee Bachun v. Sheikh Hamid, (1871) 14 Moo Ind App 377, the Privy
Council stated that when the wife is in possession of the property of her
deceased husband, she is entitled to retain the property against the other
heirs and creditors of the husband if the following three criteria are ful lled:
i. She must be in possession of the property.
ii. She must have obtained possession lawfully and without force or fraud.
iii. Such possession must have been obtained in lieu of dower (that is to
satisfy her claim out of the rents and pro ts).
The widow has the right to retain possession of such a property until the
dower is satis ed. The right to possession is extinguished upon payment of
the dower debt.

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There is a con ict of opinion as to whether the express or implied consent of
the husband and other heirs is necessary for the widow to retain possession
of property given to her in lieu of dower debt.
Some High Courts have stated that no such consent is necessary while
others have held that such consent is de nitely necessary.
In Beeju Bee v. Syed Moorthiya, AIR 1920 Mad 666, and Hasnumiya
Dadamiya v. Halimunissa Ha zulla, AIR 1942 Bom 128, the respective High
Courts have held that no such consent is necessary.
In Sabur Bibi v. Ismail, AIR 1924 Cal 508, and Mohammad Zobair v. Mt.
Bibi Sahidan, AIR 1942 Pat 210, the respective High Courts have held that
the express or implied consent of the husband or the heirs is necessary.

Right of Retention not analogous to Mortgage

In a mortgage, the owner of a property pledges his property to secure the

repayment of a debt. However, the position of a widowed Muslim wife is
essentially di erent form a mortgage.
The property in possession of a widowed wife in lieu of her dower is not
analogous with any form of mortgage.
In Beebee Bachun v. Sheikh Hamid, (1871) 14 Moo Ind App 377, the Privy
Council stated the following:
“The widow, having obtained actual and lawful possession of the estate
under a claim to hold them as lien for her dower, is entitled to retain that
possession until her dower is satis ed.”

Widow’s Liabilities under the Right of Retention

The following are some of the liabilities that may be imposed upon a widow if
she lawfully possesses the property of her husband in lieu of dower:
i. Right of retention gives no title:
◦ The widow does not own the property or the title deed. She is merely in
possession until the dower debt is paid. The actual title to the property of any
deceased will lie with the heirs.

ii. No right of retention during continuance of marriage:

◦ The right of retention only arises upon the dissolution of a marriage by
death or divorce.
◦
iii. Liability of widow in possession to account:
◦ A widow in possession of her husband’s estate in lieu of dower is bound to
account to the other heirs of her husband for the rents and pro ts received by
her out of the estate.

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iv. No right to alienate property to satisfy the dower debt:
◦ The right to retention does not include the right to alienate the property by
sale, mortgage, gift or otherwise.
◦ If the wife alienates the property and delivers possession of it to the alienee,
the other heirs become entitled to recover immediate possession of their
shares unconditionally.
◦ If the widow mortgages the property without delivering possession, the
other heirs are entitled to a declaration that the mortgage does not bind their
shares in the property.
◦ If the widow sells or gifts the property, the sale or gift is only valid to the
extent of her own share in the property.