Statutory and Islamic Provision on Determination and Payment of Dower in

Bangladesh: A Comparative Study

Md. Anamul Haque*
Abstract
Under the Muslim Law and Statutory Law, Dower or mahr indicates a mandatory payment, in the
form of money or possessions paid by the husband, or by husband's father, to the bride during
marriage which is considered as the lawful property of the wife. As marriage is a civil contract the
mahr is considered as consideration. The mahr Includes money, jewelry, home goods, furniture, a
dwelling or some land. Mahr is typically specified in the marriage contract signed during
marriage. Importance of dower is found in the holy Quran which states: “Give women their dower
with no stings attached. If they themselves give some of it back to you, then consume it with good
cheer” In this paper, I have discussed the concept of ‘dower’ both under Islamic Law and under
the different statutory laws of Bangladesh. I have tried to express some situations which may
manipulate the Muslim women’s right of dower. In this context, I have examined some cases
relating to dower which clearly show how the right of dower in case of Muslim women has been
reduced in practice and prove the arbitrariness of Bangladeshi society. In practice, often a woman
in Bangladesh is deprived from receiving her legal right of dower from husband due to various
grounds, such as: dower is controlled by husband and social custom, unregistered marriage, non
specification of the mode of payment of dower in the Kabinnama, lack of awareness of laws on
dower, fixation of a smaller amount of dower by the groom's party, the traditional concept of
usool (paid) by jewellery and so on. Finally, I have tried to give a number of essential
recommendations to recover the existing circumstances.

Keywords: Prompt, Deferred, Obligation, Custom, Al- Quran, Sunnah, Unsecured debt, Talaq-
e- Tafweed.

1. Introduction
The dower means some money or any property, in which there have right of wife from her
husband depend on their marriage contract. In the case of Abdul Kadir Vs Salima gives the best
description of the nature of dower by Mahmood J. Actually, women’s rights of dower made by
husband depend on two reasons, 1st is for Islamic right and 2nd is for husband’s responsibility to
his wife.1 And for those reasons, it is said as Haque- e-Mahar in natural language. The Quran

*Lecturer, Department of Law, EXIM Bank Agricultural University Bangladesh. Chapainawabganj.

 EBAUB Journal of Law, Volume-I, 2019

always order in paying off dower to his wife. The husband is bound to pay off dower; even wife
will be slave-woman. The dower is considered a right exclusively for the wife and obligation to
the husband. Islam has directed to give the dower by the husband to the wife in order to satisfy
the woman’s heart and to respect her. It is the possession for the wife and none of her guardians
or relatives may distribute any part of it. She may transfer it as a gift, or lend it to others or she
may provide it in charity or do any other permitted acts she wishes with it and no one can
interfere it, transfer it as a gift, or lend it to others or she may provide it in charity or do any other
permitted acts she wishes with it and no one can interfere it.
The right of dower becomes due on divorce or death of husband if not paid instantly after
wedding ceremony. No Muslim husband is allowed to take return the dower amount whether
specified or proper in any situation. The Quran protects the rights of women as: ‘And give the
women (on marriage) their dower as a free gift’2.

2. Methodology
In preparing this paper the method of documentary analysis has been mostly used. Moreover,
historical and analytical have been used. Primary Data has been collected basically from the
Quran, Sunnah, the Muslim Family Laws Ordinance, 1961; the Family Court Ordinance, 1985;
Muslim Marriages and Divorces (Registration) Act, 1974; Muslim Marriages and Divorces
(Registration) Rules, 1975; and the Limitation Act, 1908 of Bangladesh. Secondary data sources
such as books, articles, journals, case materials, Internet sources have been used so that the
analysis is taken with a multidisciplinary approach.

3. Definition of Dower or Mahr or Sadka

Mahr or dower indicates any type of money or property which a Muslim wife is entitled to
acquire from her husband on marriage as a token of respect. It can be said in another way that
mahr or dower is an amount that becomes payable by the husband to the wife on marriage either
by agreement between the parties or by operation of law. It may either be prompt or deferred.

1
Abdul Kadir v.Salima, I.L.R (1886) 8All 149, as cited by Aqil Ahmed, Mohammedan Law, 21st ed. ( Allahabad:
Central Law Agency, 2004), p.148.
2
Al Quran, Surah an-Nisa,(4:4).

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 EBAUB Journal of Law, Volume-I, 2019

Dower also means sum of money which is given to a wife by her husband in respect of her
marital status.3
Mr Justice Mahmood defines dower as follows: ‘Dower, under the Muhammadan law, is a sum
of money or other property promised by the husband to be paid or delivered to the wife in
consideration of the marriage, and even where no dower is expressly fixed or mentioned at the
marriage ceremony, the law confers the right of dower upon the wife’4
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.5
According to Wilson, “Dower” is a consideration for the surrender of person by the wife. It is the
technical Anglo- Mohammedan term for its equivalent “Mahr” in Arabic.
According to Ameer Ali, “Dower” is a consideration which belongs absolutely to the wife.6
According to Dr. Jung, “Dower” is the property or its equivalent, incumbent on the husband
either by reason of being agreed in the contract of marriage or by virtue of a separated contract,
as special consideration for the right of enjoyment itself.7
According to Baillie, “the property which is incumbent on a husband, either by reason of its
being named in the contract of marriage, or by virtue of the contract itself. Dower is not the
endanger or consideration given by the man to the women for entering into the contract; but an
effect to the contract imposed by the law on the husband as a token of respect for its subject, the
women. 8
In order to constitute a valid marriage, the Islamic law requires that there should always be a
consideration either prompt or deferred given by the husband in favour of the wife, for her sole
and exclusive use and benefit. This consideration is called mahr or sadaka in legal treatise and in
common parlance dain mahr. The principle of ante nuptial settlements is not peculiar to the
Mohammedan law. Sautayra thinks that the custom originated in ancient times with the payments

3
Rashid’s, Khalid, (2009), Muslim Law, 5th edn, Eastern Book Company Lucknow: 34, Lalbag, Lucknow-226001,
p.83
4
Hamilton’s Hedava, 2nd ed. by Grady, 44, cited by Mahmood J. at 8 AII. 157-8; Cases, loc.cit.(italics mine)
5
M. Hidayatullah and Arshad Hidayatullah, Mulla’s principles of Mahommedan Law, 1st ed.
6
Kor. Iv, 4; Ameer Ali, II,461-2; Fat. Law 70.
7
Aqil Ahmed, Mohammedan Law, 21st ed. ( Allahabad: Central Law Agency, 2004), p.148.
8
Baillie, at p. 91.

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 EBAUB Journal of Law, Volume-I, 2019

which the husbands often made to their wives as a means of support and as a protection against
the arbitrary exercise of the power of divorce. 9
The above opinions are based on the argument that marriage is a civil contract and dower is a
consideration for the contract. But it is submitted that the above opinions are erroneous, because
even in those cases where no dower is specified at the time of marriage, marriage is not void on
that report, but the law requires that some dower should be paid to the wife.

3.1. Root or Custom of Dower

The Prophet Mohammad (PBUH) introduced Dower in the present form and made it obligatory
in the case of every marriage. The demotion proper nuptial used in Roman law is parallel to
Dower in Muslim law. The important difference between them is that the demotion proper
nuptial under the Roman was voluntary, and Dower under the Muslim law is absolutely
obligatory. The following points may be noted with respect to the nature of Dower.
In Abdul Kadir v. Salima,10 Mahmood. J., comparing the marriage and dower with contract for
sale and consideration, says “Dower may be regarded as consideration for connubial intercourse
by way of analogy to the contract for sale. The right to resist her husband so long as the Dower
remains unpaid is analogous to the lien of a vendor upon the sold goods while they remain in his
possession and so long as the price or any part of it is unpaid and her surrender to husband
resembles the delivery of the goods to the vendee.
It is regarded by some eminent authorities as a consideration for conjugal intercourse. In the case
of Smt. Nasra Begum v. Rigwan Ali, Allahabad High court expressed the view that the right to
claim prompt dower proceeds cohabitation.11
Regarded as a consideration for the marriage, it is in theory payable before consummation but
the law allows its division into two parts, one of which is called “Prompt” payable before the
wife can be called upon to enter the conjugal domicile or demanded by the wife, the other
“deferred” payable on the dissolution of the contract by the death of either of the parties or by

9
Syed Amer Ali, Mohammadan Law, 6th ed. vol.II, (Dhaka: Shams Publication, 2002), p.432.
10
I.L.R (1886) 8All 149, as cited by Aqil Ahmed, Mohammedan Law, 21st ed. ( Allahabad: Central Law Agency,
2004), p.148.
11
AIR 1980 All:119, as cited by Aqil Ahmed, Mohammedan Law, 21st ed. ( Allahabad: Central Law Agency,
2004), p.148.

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 EBAUB Journal of Law, Volume-I, 2019

divorce. But the dower ranks as a debt and the widow is entitled along with other creditors of her
deceased husband, to have it satisfied on his death out of his estate”. If the property of her
deceased husband is in her possession, she is entitled to retain the possession, until her dower is
satisfied. Heirs may recover that property after they have paid up her debt. Dower-debt is not a
charge and widow cannot prevent another creditor or of her husband from recovering his debt
from his estate. Dower-debt is an unsecured debt ranking equally with other debts.12
A husband should think seriously before divorcing a wife when he knows that upon divorce the
whole of the dower would be payable immediately.
If dower be regarded as sale price, it must be paid to the father or the guardian of the wife, since
it is paid to the wife herself, it cannot be the price. It is a token of respect.13

4. Classification of Dower
The basis of the classification of dower under Muslim Law is:
a) Whether it has been fixed by parties or is fixed by operation of law, and
b) Whether the dower may be claimed by wife any time or only upon the dissolution of
marriage.
If the parties do not specify the dower during marriage, it is called Un- specified or
Proper Dower.
Broadly, there are two types of dower:
(i) Specified Dower and
(ii) Unspecified Dower.

4.1. Specified Dower (al-mahr al-masamma)

Specified dower is that dower which is fixed at the time of marriage or later on. There are
provisions relating to dower under sections 13, 14, 15, 16 and 20 of the Kabinnama [Form-E]
according to the Muslim Marriages and Divorces Rule 1975. When a husband agrees to pay to
his wife a residential building or one lakh taka as mahr, it is an example of specified mahr.14

12
Aqil Ahmed, Mohammedan Law, 21st ed. ( Allahabad: Central Law Agency, 2004), pp.148-49.
13
Syed Khalid Rashid, Muslim Law, 3rd ed. (Lucknow: Eastern Book Company, 2002), p.84.
14
Muhammed Faiz-ud-din, Islamic Law,1st ed., (Dhaka: Shams Publication, 1998), p.102.

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The specified dower has been further divided into-

(a) Prompt Dower (Mu‘ajjal) and
(b) Deferred Dower (Mu’ajjal).

4.1.1. Prompt Dower (Mu‘ajjal)

Prompt dower is payable instantly after marriage on demand. The wife can refuse conjugal rights
if the prompt dower is not paid on demand. In such case, the wife can effectively resist the suit
for restitution of conjugal rights of the husband provided that no consummation took place. But
if consummation has taken place, the wife can refuse this right on condition of payment of
prompt dower. If there is no mention in the Kabinnama about prompt dower, then court may
consider half of the total dower as prompt dower.15 Of course the court may fix it depending on
the circumstances of the case, the status of the wife, the economic condition of the husband and
the total amount of dower.
According to Ameer Ali, a wife can refuse to enter into conjugal domicile of husband until the
payment of the prompt dower. The following point must be noted regarding prompt dower:
Prompt dower is payable immediately on the marriage taking place and it must be paid on
demand unless delay is stipulated for or agreed. It can be realized any time after the marriage. It
was held in Rehana Khatun v. Iqtider Uddin, the prompt portion of the dower may be realized by
the wife at any time before or after consummation.16

4.1.2. Deferred dower (Mu’ajjal)

Deferred dower indicates that dower which is payable in case of dissolution of marriage by death
or divorce. In case of an agreement regarding the payment of deferred dower earlier, then such
an agreement would be valid and binding. If there is no specification of dower either prompt or
deferred and then according to sunni law, it should be split into prompt and deferred.

15
Nasiruddin Shah VS Amatul Mughni Begum II.R (1947) Lah. 565.
16
1943, All LJ 98, as cited by Obaidul Huq Chowdhury, Muslim Law, 6th ed. (Dhaka: Al-Yakub Press), p.16.

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 EBAUB Journal of Law, Volume-I, 2019

4.2. Unspecified or Proper Dower: (Mahr al Mithl).

In case of non fixing the amount of dower during marriage or later on, the wife is entitled to
proper dower, though the marriage was contracted on the condition that the wife cannot claim
any dower. Proper dower varies according to the social position of the woman’s family, the
wealth of her husband, her own personal qualifications and circumstances of time and social
conditions surrounding her. According to Hedaya, a renowned book on Islamic law, proper
dower is to be determined depending on the personal qualifications of the wife like her age,
beauty fortune understanding and virtue. The amount of dower fixed of other female members of
the wife’s family like her sister and paternal aunts is also to be considered. Above all social
position and economic capability should be taken into consideration at the time of determining
proper dower. Factors to be considered for the determination of proper dower are summarized:
 The personal qualifications of the wife- beauty, virginity, personality, age,
education and wealth.
 The status of the family.
 The amount of mahr settled upon the female members of her father’s family like
her sister and paternal aunts.
 The financial capacity of the husband.17

5. The Object and The subject matter of dower

Dower indicates monetary gain which is received by a wife from her husband by the virtue of the
marriage contract. Dower in fact, is the name of that monetary gain, that saved
(collect/gather/deposit/credit/income) in marriage to woman, in exchange of the pleasure to be
enjoyed of her, though the marriage be either valid or irregular. The object of dower is three fold:
 To impose an obligation on the husband as a mark of respect to the wife.
 To place a check on the whimsical/moody use of divorce on the part of husband and
 To provide for her existence after dissolution of her marriage, so that she may not
become feeble after the death of the husband or termination of marriage by divorce.

17
Muhammed Faiz-ud-din, Islamic Law,1st ed., (Dhaka: Shams Publication, 1998), p.103.

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 EBAUB Journal of Law, Volume-I, 2019

The subject matter of dower includes not only a sum of money or property but also personal
services and other things. According to a tradition, Amir- bin- Rabia said, “that a woman of the
tribe of Bani Fazarah married on a settlement of a pair of shoes, and the prophet said to her ‘Are
you pleased to give yourself and your property for these two shoes: she said, ‘Yes’. Then the
prophet approved of the marriage.’’
The followings were recognized as the subject of dower:
 A handful of dates (Abu Daud).
 A pair of shoes (Tirmizi).
 If the husband is a slave, his services to his wife (Mohit Sarkhsee).
 The services of the husband’s slaves to the wife (Fatawa-i Alamgir)
 Husband’s services rendered to the guardian of a minor wife (Durrul Muktar).
 Teaching the Quran to the wife (Tradition).

In fact, the main contention of the Muslim Jurists is that anything which comes within the
definition of mal can be the subject matter of dower. Thus, apart from the personal services of
the husband, any profits arising from land or business, debts due to the husband, insurance
policies, chooses-in-action, the sale proceeds of something, may constitute valid dower.
If the subject matter of dower be “an animal” or “cloth”, then the wife is entitled to mahr-ul-misl,
proper dower because such dowers are invalid for uncertainty. Similarly, “a land” without
specifying the exact location and description are not fit subjects of dower, and the court will have
to fix proper dowers in such cases.

6. Contract of Dower made by Father

The amount of dower may be fixed either before or after marriage18 and can be increased after
marriage. It was held in Basir Ali v. Hafiz that the amount of dower may be entered into by the
father of the bride.19

18
Kumar-un-nissa v. Husaini Bibi, (1880), 3 All 266 FB, as cited by Obaidul Huq Chowdhury, Muslim Law, 6th ed.
(Dhaka: Al-Yakub Press), p.16.
19
Jahuran Bibi v. Soleman Khan, (1933) 58 Cal LJ 251, as cited by ibid, p.16.

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 EBAUB Journal of Law, Volume-I, 2019

The father of a minor son may make a contract on dower on his behalf and it would be binding
on the son even if it was made after his marriage during the minority of the son. The father, if he
acts as guardian for the marriage of his infant son, is not personally liable unless he expressly
becomes a surety for the dower stipulated. Otherwise the father only acts on behalf of the minor
son and binds the latter and not him personally. When a father enters into a contract of dower on
behalf of his son, he makes himself a surety for due payment of dower in case his minor son who
has no means of paying it.20

7. Standard of Dower and Conditions or Terms of Payment

This may be divided into two-

7.1. If the marriage is consummated, and is dissolved by death

 Whole of the specified dower in case of regular marriage.
 Proper dower if unspecified in case of regular marriage.
 Specified or proper dower, whichever is less, in the case of irregular marriage.

7.2. If the marriage is not consummated, and is dissolved by the act of party
When divorced by the husband-
Half of the specified dower, in case of regular marriage.
A present of three articles if unspecified: in case of regular marriage.
When divorced by the wife: No dower.
If the marriage is irregular: No dower.

8. Amount of Dower
There is no minimum or lower limit of dower fixed by law, though some jurists opine that it
should not be less than ten dirhams. It may be in the form of cash or in kind. The Prophet
(PBUH) did not fix any minimum. According to the well reported Traditions of the Prophet of
Islam, even a handful of barley or dates or even an iron ring may be sufficient provided the bride

20
Shaukt Mahmood, Principles and Digest of Muslim Law, 6th ed., (Lahore: Legal press Centre, 2002), pp.52-3.

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 EBAUB Journal of Law, Volume-I, 2019

agrees to accept it. The Messenger of Allah himself married Hazrat Safiyyah and her
emancipation was her dower. Omme Solaim agreed to marry Abu Talha on the condition that he
should accept Islam. Abu Talha fulfilled the condition and his acceptance of Islam was declared
to be mahr or dower of Omme Solaim. In another case, the teaching of one or two verses of the
Holy Qur'an by the husband to the wife was declared to be an adequate Mahr for the bride.21
These minimums have become obsolete and it is now customary in different countries to fix the
amount of dower entirely by a consideration of the circumstances of the husband and wife.22
Among Sunnis there is no maximum; any amount may be fixed. According to Some sects of
Shias, “not to stipulate for a sum higher than the minimum fixed by the Prophet for his favorite
daughter Fatima, the wife of Ali, namely 500 dirham.’’ 23

8.1. Increase or Decrease of Dower

The husband may increase the dower at any time after marriage. Similarly, the wife may remit
the dower wholly or partly in favor of her husband. The Quran says “Dower, once fixed can be
increased by the husband and decreased by the wife.”24 A Muslim girl who has attained puberty
is competent to relinquish her Mahr although she may not have attained majority (18 years)
under the Bangladesh Majority Act. The remission of the Mahr by a wife is called Hibe-e-Mahr.
But the remission made by the wife should be with free consent. It was held in the case of
Nurunnessa v. Khaje Mahomed25 that where the wife was subject to the mental distress, on
account of her husband’s death, the remission of dower was considered as against her consent
and not binding on her.

21
http://www.muslimtents.com/shaufi/b2/b2_06.htm. Last visited 29 October, 2018.
22
Syed Amer Ali, Mohammadan Law, 6th ed. vol.II, (Dhaka: Shams Publication, 2002), p.434.
23
Syed Khalid Rashid, Muslim Law, 3rd ed. (Lucknow: Eastern Book Company, 2002), p.87.
24
Al Quran, Surahan-Nisa, (4:4)
25
(1920) 47 Cal 537, as cited by Obaidul Huq Chowdhury, Muslim Law, 6th ed. (Dhaka: Al-Yakub Press), p.17

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 EBAUB Journal of Law, Volume-I, 2019

9. Difference between Sunni & Shia Law Regarding Dower

9.1. Sunni Law

A minimum limit of 10 dirhams is prescribed for specified dower. There is no limit to proper
dower. There is no maximum limit for specific dower. If marriage is dissolved by death and
dower has not been specified, or it is agreed that no dower shall be payable, proper dower would
be due whether the marriage was consummated or not. An agreement that no dower shall be due
is void. In the absence of an agreement only a reasonable part of the dower is presumed to be
prompt.
9.2. Shia Law
No minimum limit is prescribed. Proper dower cannot exceed 500 dirham’s. Fixing of dower
exceeding 500 dirhams is considered abominable though not illegal. In such case, no dower
would be due if the marriage was not consummated. Such agreement by sane and adult wife is
valid. The whole dower is presumed to be prompt.26

10. Obstacles in Claiming the Right of Dower by Wife

10.1. Remission of Dower by Wife:

The wife who has attained puberty can remit the full portion of dower or any part of it in favor of
the husband or his heirs. The reduction would be valid although made without consideration. But
only a written instrument is considered as valid. A Muslim girl who has attained puberty is
competent to relinquish her Mahr although she may not have attained majority (18 years) within
the Bangladesh Majority Act.

10.2. Dower Payable after Consummation of Marriage:

If he divorces her before touching her and after fixing the amount of dower for her, he is bound
to give half of the fixed of dower. However, if the wife agrees to forgo her rights of accepting

26
Aqil Ahmed, Mohammedan Law, 21st ed. (Allahabad: Central law Agency, 2004), pp.160-61.

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 EBAUB Journal of Law, Volume-I, 2019

this half dower or the man shows generosity in giving her full dower, such an accord is
permitted.27
Consummation confirms or perfects the dower. So after consummation or valid retirement a
woman has a right to her dower if a separation takes place and it does not matter whether the
cause of separation originates from the husband or the wife.28

10.3. Death before Consummation:

In case of death before consummation, the wife is entitled to her full dower. It necessarily
follows that if no dower has been fixed she would get her full proper dower.

10.4. Right of widows about dower

Dower is like a debt and it is an unsecured debt. If any Muslim husband died leaving his wife
(widow) then she will have the right to get the property of her husband in two ways. She will
inherit as sharer as well as she will receive the dower from the property of the deceased husband
which is considered as debt. An illustration is given for proper understanding of the position of
the widow.
A Muslim, for example, died leaving a widow, a mother, and father. The widow’s dower debt
is 60000/- from her husband. The valuation of left property by the deceased is 200000/-. In
this case inheritance opens after repaying dower of widow. Here part of Widow’s ¼, as sharer
Mother ¼, as sharer
Father ½, as residuary
So, there the widow will contribute 1/4 of 60,000= 15000
Mother’s contribution is 1/4 of 60000 = 15000
And Father’s contribution is 1/2 of 60000 = 30000
After deduction of mahr (15000+15000+30000) Tk 60000,
There remains tk. 140000 (200000-60000)

27
Al-Qur'an, Surah Al –Baqarah ( 2:237) http://www.muslimtents.com/shaufi/b2/b2_06.htm. Last visited 29
October, 2018.
28
David Pearl & Werner Menski, Muslim Family Law, 3rd ed. (London: Sweet& Maxwell,1998), p.180.

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 EBAUB Journal of Law, Volume-I, 2019

Now wife gets ¼ of 140000 = 35000+60000(mahr)=95000 tk.

Mother takes ¼ of 140000 = 35000 tk.
Father takes ½ of 140000 = 70000 tk.

10.5. Divorce before Consummation of Marriage

If a person divorces his wife before touching her and before appointing any amount of dower for
her, he has been directed to make provision for her according to his means.29 In case of divorce,
the right to dower is confirmed only when the cause of the separation lies with the husband, as
when he divorces his wife or a separation takes place on account of his impotency, but the
husband would not be liable to pay dower when the cause of separation lies with the wife when
she exercises the option of puberty.30

10.6. Dissolution of Marriage by Talaq

If the husband dissolved the marriage by giving talaq then the wife will get full dower and
maintenance from the husband. But in practice, we will see later, this is rarely observed.

10.7. Dissolution of Marriage by Talaq-e- Tafweed

Talaq-e-tafweed is one of the most effective legal weapons in Muslim women’s possession in
case of delegated divorce. The Muslim Family Laws Ordinance, 1961 has provided the option of
Talaq-e-tafweed as the right of divorce in the prescribed form of the kabinnama. If a marriage is
dissolved by exercising it, then the wife will not be deprived from getting the dower money as
she has exercised the delegated power which was given by her husband.

10.8. Dissolution of Marriage by khula

Dissolution by khula indicates the agreement between the parties to dissolve the marriage. In
khula cases wife sacrifices her right of dower. But the husband tries to take the advantages of it.
Sometimes the husband forced the wife to divorce through khula so that he can be benefited.

29
Al-Qur'an, Surah Al –Baqarah, (2:236), http://www.muslimtents.com/shaufi/b2/b2_06.htm. Last visited 29
October, 2018.
30
Shaukt Mahmood, Principles and Digest of Muslim Law, 6th ed., (Lahore: Legal press Centre, 2002), pp.52-3.

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10.9. Dissolution of Marriage by Mubara’at

In Mubara’at, the marriage is dissolved by an agreement between the parties and here the desire
for being separated is mutual for a consideration to be paid by the wife to the husband.31

11. Wife’s Right of Dower under Islamic Law and Statutory Laws

11.1. The Quran

The form of the dower described above in connection with the fifth stage is not an invention of
the Quran. All that the Qur’an did was to restore it to its natural and pristine form. The Quran in
its incomparably elegant style says: “Give to the women a free gift of their marriage portions”.32
This means that the dower belongs to women exclusively and it is a gift to be paid directly to
them. It has nothing to do with their fathers or brothers.

The Holy Quran did away with this custom also. It says:
‘0 you who believe! It is not lawful for you to inherit women forcibly” 33
In another verse, the holy Quran has totally banned a marriage with one’s father’s wife
(stepmother) even if she be willing. It says: “Marry not those women whom your father married”
34

The Holy Quran did away with every custom which deprived woman of her dower. One of such
customs was that when a man lost interest in his wife, he harassed her with a view to making her
agree to a divorce on the condition that she would return, wholly or partly, the dower which she
had received. The Holy Quran says: “Nor should you put constraint on them (women) so that
you take away part of what you have given.’’35
Surah Nisa Chapter 4, Verse 34 (4:34) states:
“Give the women (on marriage) the dower as a free gift”.36

31
Taslima Monsoor, From Patriarchy to Gender Equity, 1st ed. (Dhaka: The University Press Limited, 1999), pp.180, 186 & 190.
32
Al Quran, Surah an-Nisa, (4 : 4), http://www.muslimtents.com/shaufi/b2/b2_06.htm, Last visited 31 October, 2018.
33
Al Quran, Surah an-Nisa,(4 : 19).
34
Al Quran, Surah an-Nisa,(4 : 22).
35
Al Quran, Surah an-Nisa, 4: 19
36
Al Quran, Surahan-Nisa,(4 : 34), https://www.islamawareness.net/Women/naik_women.html, Last visited 31 October, 2018.

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 EBAUB Journal of Law, Volume-I, 2019

11.2. Sunnah/Hadith
A hadith of the Prophet Muhammad (PBUH) on the rights of woman regarding dower are as
under: -
Omme-Habibah reported that she was the wife of Abdullah‑b‑Jahash who died in the land of
Abyssinia, and then the Negus gave her in marriage to the Prophet and took from him a dower of
4000. Then he sent her to the Prophet with Shurahbil‑b-Hasanah.37
Anas retorted that the Messenger of Allah emancipated Safiyyah and married her and made her
emancipation a dower… (Bukhari and Muslim)
Anas reported that Abu Talhah married Omme Solaim and the dower between them was Islam.
Omme Solaim had accepted Islam before Abu Talhah who sought her in marriage. She said: I
have surely accepted Islam; but if you accept Islam, I shall marry you. So Abu Talhah accepted
Islam and it was their dower between them. (Nisai)
Hazrat Umar once addressed the people in the Mosque of the Prophet: O People! Why have you
started fixing the dowers of women at fantastically higher amounts, while the Messenger of
Allah had never fixed the dower of any of his wives at an amount exceeding four hundred
Dirhams. Beware! I should not hear in future that any of you has fixed dower exceeding 400
dirhams. He then descended from the pulpit. Then came a woman of Quraish and said: O Umar!
Have not you heard the word of God (in Al‑Qur’an 4:20)38. Allah says, even if you have given a
big treasure to a woman, don’t take back anything out of that. Hazrat Umar at once returned,
withdrew his order and announced: Any one of you can fix as much dower as he pleases: I can’t
stop him. (Tafsir Ibn Kathir).39

11.3. Muslim Family Laws Ordinance, 1961

Section 10 of the Muslim Family Laws Ordinance makes it absolutely necessary that the
marriage solemnized under the Muslim Law shall be registered. Where no details about the mode

37
Abu Daud; Nisai, http://www.muslimtents.com/shaufi/b2/b2_06.htm, Last visited 31 October, 2018.
38
Al Quran, Surahan-Nisa,(4 : 20)
39
http://www.muslimtents.com/shaufi/b2/b2_06.htm, Last visited 31 October, 2018.

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 EBAUB Journal of Law, Volume-I, 2019

of payment of dower are specified in the nikah nama, or the marriage contract, the entire amount
of the dower shall be presumed to be payable on demand.40

11.4. The Family Courts Ordinance, 1985

Subject to the provisions of the Muslim Family Laws Ordinance, 1961, a family court shall have
exclusive jurisdiction to entertain, try and dispose of any suit relating to dower.41 It was held in
Shafiqul Huq (Md) v. Mina Begum,42 that Family Court has got every jurisdiction to decide as to
whether the kabinnama in question is a genuine and valid document or not and whether any
marriage between the petitioner and opposite party was ever solemnized or not before it decides
to grant any decree for dower. It was further stated in the case of Jesmin Sultana v. Md. Elias43
that the court has no right to reduce the prompt dower unless the wife remits it voluntary.44

11.5. Muslim Marriages and Divorces (Registration) Act, 1974

Dower in a Muslim marriage forms an inseparable part of the terms of the kabinamah and thus as
the kabinnamah is intended to be registered under the 1974 Act, so is the dower. The Act of 1974
is in force relating to the registration of Muslim marriages including dower. (Atiqul Huque
Chowdhury vs Shahana Rahim and another 47 DLR 301)45

12. 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 is three years from the date when the dower is
demanded and refused, or, where during the continuance of the marriage no such demand has
been made, when the marriage is dissolved by death or divorce.46 The period of limitation for a
suit to recover “deferred” dower is three years from the date when the marriage is dissolved by

40
Muslim Family Laws Ordinance, 1961, s.10.
41
The Family Courts Ordinance, 1985, s.5.
42
54 DLR 481.
43
2 BLC 233.
44
The Family Courts Ordinance, 1985, s.5.
45
Obaidul Huq Chowdhury, Muslim Law, 6th ed. (Dhaka: Al-Yakub Press, 2005). p.128.
46
The Limitation Act, 1908, Sch. I, Art. 103.

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 EBAUB Journal of Law, Volume-I, 2019

death or divorce.47 Where, however, prompt dower has not been fixed, a demand and refusal is
not a condition precedent for filing a suit for its recovery, it was decided in Muhammad Taqi
Khan v. Farmoodi Begum.48

12.1. Non-payment of Prompt Dower and Restitution of Conjugal Right

The wife may refuse to live with her husband and admit him to sexual intercourse so long as the
prompt dower is not paid. If the husband sues her for restitution of conjugal right before sexual
intercourse takes place, non-payment of the dower is a complete defence to the suit, and the suit
will be dismissed. If the suit is brought after sexual intercourse has taken place with her free
consent, the proper decree to pass is not a decree of dismissal, but a decree for restitution
conditional on payment of prompt dower, Abdul Kadir v. Salima.49

12.2. Liability of Heirs for Dower Debt

The heirs of a deceased Muslim are not personally liable for the dower debt. As in the case of
other debs due from the deceased, so in the case of a dower debt, each heir is liable for the debt
to the extent only of a share of the debt proportionate to his share of the estate. Where the
widow, is in possession of her husband’s property under a claim for her dower, the other heirs of
her husband are severally entitled to recover their respective shares upon payment of quota of the
dower debt proportionate to those shares, Hamira Bibi v. Zubaiada Bibi.50

12.3. 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 profits received by her out of the estate. But she is entitled
in that case to compensation for forbearing to enforce her right to the dower debt, Hamira Bibi v.
Zabaida Bibi.51

47
Ibid Art. 104.
48
(1941) All, 326, as citied by Obaidul Huq Chowdhury, Muslim Law, 6th ed. (Dhaka: Al-Yakub Press, 2005),
p.17.
49
(1886) 8 All 149, as sited by Obaidul Huq Chowdhury, ibid, p.18.
50
(1916) 43 IA 294, as sited by Obaidul Huq Chowdhury, ibid, p.18.
51
(1916) 43 AI 294, as citied by Obaidul Huq Chowdhury, Muslim Law, 6th ed. (Dhaka: Al-Yakub Press, 2005),
p.19.

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 EBAUB Journal of Law, Volume-I, 2019

12.4. No Right of Widow to alienate Property to satisfy Dower Debt

The right of a widow to retain possession of her husband’s property under a claim for her dower
does not carry with it the right to alienate the property by sale, mortgage, gift or otherwise, Chuhi
Bibi v. Shams-un-nisa.52

12.5. Suit for Possession by Widow who is Dispossessed

If a widow, who is in possession of her husband’s property under a claim for her dower, is
wrongfully deprived of her possession, she may bring a suit for recovery of possession.
Majidmian v. Bibisahad.53

12.6. Widow’s Possession no Bar to a Suit for Dower

The fact that a widow is in possession of her husband’s property under a claim for her dower, is
no bar to a suit by her against the heirs of her husband to recover the dower debt. But she must in
such a suit offer to give up possession of the property. She cannot both retain possession and
have a decree for her dower debt, decided in Ghulam Ali v. Saqir-ul-nissa.54
If the widow is in possession of her husband’s property under a claim for her dower the proper
course for her to follow is to bring an administration suit in which the property can be placed in
the hands of the Court for the satisfaction of her claim by sale of the asset or otherwise, Mirza
Mohammad v. Shazadi Wahida. 55
As the Holy Quran and Hadith of Allah’s Apostle (SM) prescribe for giving dower the Court has
no right to reduce the prompt dower unless the wife remits it voluntarily, Jesmin Sultana vs Md.
Elias.56

13. Problems Faced by Muslim Wives in case of Recovering Dower in Practice

Although there are sufficient laws and enforcing agencies in Bangladesh but the Muslim women
are not getting dower properly. Sometimes they do not receive any dower at all. It is an alarming

52
(1894) 17 All 19, as citied by Obaidul Huq Chowdhury, ibid, p.19.
53
(1916) 40 Bom, 34, as citied by Obaidul Huq Chowdhury ibid, p.19.
54
(1901) 23 All 432, as citied by Obaidul Huq Chowdhury ibid, p.19.
55
(1914) 19 CMN 502: 28 IC 191, as citied by Obaidul Huq Chowdhury ibid, p.20.
56
2 BLC 233.

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 EBAUB Journal of Law, Volume-I, 2019

situation in cities and the rural remote areas. There are some reasons for happening this situation.
Those are given below:
Firstly, in Bangladesh though Registration of marriage is mandatory according to Marriages and
Divorces (Registration) Act, 1974 but most of the people do not follow it strictly. The people are
not aware regarding this matter. Sometimes the people deprive the bride from legal or religious
right intentionally. As a result, no kabinnama of marriage is existed. In the absence of
kabinnama, it is impossible to trace the amount of dower properly without testifying by the
witnesses. So, nonappearance of Kabinnama is the most important reason for the deprivation of
the women’s right of dower in Bangladesh.
Secondly, generally the parties should mention the dower specifically whether it is prompt or
deferred, but they do not mention it. Although the law of Bangladesh specifically states that if
any dower is not fixed then that is considered as prompt dower. Due to lack of awareness, the
women are being deprived from getting the dower in time.
Thirdly, the wife may remit the dower wholly or partially in favour of her husband or his heirs.
A Muslim girl who has attained puberty is competent to relinquish her Mahr although she may
not have attained majority (18 years) within the Bangladesh Majority Act. The remission of the
Mahr by a wife called Hibe-e-Mahr. But the remission made by the wife should be with free
57
consent. It was held in the case of Nurunnessa v. Khaje Mahomed that where the wife was
subject to the mental distress, on account of her husband’s death, the remission of dower was
considered as against her consent and not binding on her.
In has been held in (Karachi case) Shah Bano v. Iftekar Mohammed,58 that in certain cases
remission of dower cannot be upheld. For instance, if a wife feels that the husband is
increasingly showing indifference to her and the only possible way to retain the affection of her
husband is to give up her claim of Mahr and forgoes her claim by executing a document, she is
not a free agent and it may be against justice and equity to hold that she is bound by the terms of

57
(1920) 47 Cal 537, as cited by Obaidul Huq Chowdhury, Muslim Law, 6th ed. (Dhaka: Al-Yakub Press, 2005),
p.17.
58
P.L.D 1956 (P.W). Kar. 363, as cited by, Asaf. A. Fyzee, Outliness Of Muhammadan Law, 4th ed. (Oxford:
Oxford University Press, 1974), p.140.

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 EBAUB Journal of Law, Volume-I, 2019

the deed.59 But for lack of knowledge women are unable in exercising their right of dower as
they believe that they have already relinquished their right.
Fourthly, the people of the society think that if husband give divorce only then the wife will get
the full amount of dower. There is a misconception that if a wife dissolves the marriage by
exercising talaq-e-tafweed then the wife will not get any amount from the dower money. But
actually the wife is entitled to the dower money as she has exercised the delegated power of
talaq-e-tafweed which was conferred on her by her husband.
Fifthly, sometimes the kabinnama is prepared in accordance with law where the groom’s part
tries to fix a lower amount of dower. They do it so that they can be able to divorce or remarry
easily. The amount of dower is fixed with the free consent of the parties
Sixthly, sometimes the parties fix a high amount of dower to show off their status but they have
no intention to pay it. Sometimes it suffers the parties. When a party wants to dissolve the
marriage, they could not do it due to inability to pay the dower.
Seventhly, generally the women of Bangladesh use their right to divorce by khula, where they
sacrifice their right of dower in replace for a divorce. Sometimes the husband pressurizes the
wife to give khula divorce to avoid the pressure of dower money in case of giving talaq. Thus the
women are being deprived from getting dower.
Eighthly, the cases reveal that whether any portion of dower is actually paid or not, if it is
mentioned in the registered kabinnama, the courts tend to reduce the amount of dower by the
60
alleged usool. Thus, in Mst. Razia Akhter v. Abul Kalam Azad, the Family Court gave
preference to documentary evidence. In the registered kabinnama it was mentioned that a part of
the dower had been paid as usool at the time of marriage. The court did not further inquire
whether it had actually been paid. The same situation arose also in Mst. Ilafi’za liihi v. Md.
Shafiqid Alam case,61 where the Family Court only allowed the claim for dower after reducing
the total amount by the usool as specified in the registered kabinnama.
Ninthly, It was found in a study of the metropolitan city of Dhaka that 88% of Muslim wives did
not receive any dower at all. If this is the situation in the capital city, one can anticipate an

59
Ibid, p.140.
60
Taslima Monsoor, From Patriarchy to Gender Equity, 1st ed. (Dhaka: The University Press Limited, 1999), p.204
61
Ibid, p.204

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 EBAUB Journal of Law, Volume-I, 2019

alarming situation in the rural remote areas. Why are women not receiving their legal right of
dower? To inquire into this one has to probe into the causes for not giving dower. Here the same
causes for which the women in Bangladesh are being subordinated come in, as women are
dominated in the patriarchal family and in the wider socio-religious arena. What needs to be
ascertained here, in particular, seems to be whether the women's right to dower is being enlarged
or reduced by local customary conventions.62
The cases on dower in Bangladesh highlight the contrast between theory and practice. In dower
cases, the payment is a legal obligation, whereas in social practice the question of payment arises
only at the instance of divorce. For example, in khula cases, the right of dower is relinquished to
end an undesired marriage. The fact remains that in social reality women rarely get any portion
of their dower unless the husband is adamant to give talaq. Sometimes the social position of
female litigants who are economically dependent influences the claim for dower as the last
financial support. Thus, the theoretical right of women’s potential power of demanding dower
does not exist in practice. It was already mentioned earlier that in Dhaka itself 88% of the
Muslim wives did not receive any dower.63

14. Recommendations
In the previous chapter I have tried to discuss elaborately regarding the problems in case of
recovering dower money by the women in Bangladesh. From there it is clear that most of the
Muslim wives do not receive any dower at all in the cities as well as in rural areas.
Generally, the husband forced the wife to give talak through khula talak. By this system the
wives are deprived from getting the dower properly. Then the wives cannot see any point to
challenge this situation. It may be noticed by the court that a fewer cases are available regarding
talaq cases as the husbands are trying to avoid giving divorce, thus forcing wives to go for
judicial dissolution. To solve this problem the court should take proper steps for the protection of
the women and should ensure their rights of dower.

62
Dr. Taslima Monsoor, Dower and Dowry: Its Affect on the Empowerment of Muslim Women (Available at July
27, 2003) Available at https://www.thedailystar.net/law/200307/04/index.htm (Accessed 31October, 2018)
63
Taslima Monsoor, From Patriarchy to Gender Equity, 1st ed. (Dhaka: The University Press Limited, 1999),
pp.209

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 EBAUB Journal of Law, Volume-I, 2019

In rural area, most of the women are illiterate. So, they are not aware about their rights. They can
be aware through social awareness program. The chairman of Union Parishad can take some
measures to aware them. The different NGOs and organization can make the people aware
through their activities regarding women’s right of dower. The syllabus of primary and
secondary education can be changed and some social awareness program can be included, such
as women’s right of dower. And the government should take the necessary steps to solve such
problem.
Sometimes the women feel shy to claim their rights because of their social status, lack of power
and lack of social support in a male dominated society. Women will have to be bold and free
from shyness because the Quran itself has given the right to them.
In the country especially in the rural areas, some marriages are taking place without kabinnama.
Sometimes in kabinnama the portion of prompt or deferred dower is not mentioned. So it is not
enough to make marriage registration mandatory. The government should be constructive for
ensuring registration of marriage by monitoring cell. Moreover, the government should be
effective regarding enquiry as to what portion of dower money has been really paid by the
groom’s part and what has been stated in the kabinnama, so that the husband cannot deprive the
bride from her dower by deducing the fake price of jewellery.
Again, sometimes the parties announced a large amount of dower in public but later the parties
agree to a smaller amount. This should be discouraged. The amount which has been stated in the
kabinnama as dower money will have to be paid by the husband and in no circumstances the
court should reduce the amount. By doing this the divorce can be decreased and the women will
get the dower properly. Legal aid services should be more accessible for the women so that they
can bring their action within the proper time.
If we want to solve these problems and want to ascertain women’s right in the society, then the
people have to be more conscious and aware about the women’s right of dower under Islamic
and statutory laws of Bangladesh and we all have to extend our hands for the women to ensure
their right of whole amount of dower money.

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 EBAUB Journal of Law, Volume-I, 2019

15. Conclusion
The dower is a part and parcel of marriage under both the Islamic and Statutory Law. To give
dower to the wives is a custom which is derived from the pre-Islamic Period. Dower is
unavoidable in case of marriage and it should be given at the time of marriage which is clearly
said in the holy Quran, Sunnah as well as the Statutes of Bangladesh. There are two ways to give
the dower either prompt or deferred. In case of prompt dower, husband is bound to give the
dower at the time of dissolution of marriage either by divorce or by death. If any person denies
giving the dower to his wife, then he can be bound by law and the wife can deny continuing
conjugal life with the husband.
The cases on dower in Bangladesh highlight the disparity between theory and practice. Different
sceneries are existing in our society. Most of the cases relating to dower indicate that the
payment of dower is a legal obligation but the people of the society think that the question
regarding payment of dower should arise only at the time of divorce. In this paper attention has
been given on the person who can make contract for the dower at the time of marriage, and
when, and how he will be bound to pay the dower to the wife. If someone denies paying dower,
then the wife can claim it under the statutory law of Bangladesh and within a limitation period.
In this present paper I have discussed the problems facing by women in recovering the dower
money in practice and finally I have tried to give necessary solutions for ensuring women’s right
of dower from the male dominated society. The amount of dower is not only a check for
unreasonable exercise of talaq but also the only financial security the wife might have after the
dissolution of her marriage.

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