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Marriage (Nikkah)
Introduction:
The central institution around which whole family life revolves is the “marriage” as family starts
with marriage. Before the advent of Islam, many types of sexual relations were prevailing in
Arab society.

Marriage (Arabic term Nikkah) is a civil contract made between two persons of opposite sexes
with the object of legalizing sexual intercourse, the procreation and legitimation of children and
preservation of the human race. The parties in marriage are known as husband and wife.

There are three aspects of Muslim Marriage;

1. Legal (legalizing sexual intercourse),

2. Social (preservation of human race),
3. Religious (nature of ibadat and devotional acts).

Definitions of Marriage:
1. According to Baillie, “it is a contract which has for its design or objects the right enjoyment
and the procreation of children”.

2. According to Hedaya, “Marriage (Nikkah) in its primitive sense means carnal conjunction.
Some have said that it signifies conjunction generally. In the language of the law it implies a
particular contract used for the purpose of legalizing generation”.

3. According to All India Muslim Personal Law Board, “marriage (Nikkah) is an agreement
between a man and a woman, based on the Shari’at principles, as a result of which mutual
sexual relation becomes legitimate, paternity of offspring is legally established and mutual
rights and obligations become enforceable”.

Purpose and Objects of Marriage:

The main purpose of marriage is the preservation of human race. Following are the purpose
and objects of Marriage;

1. Protection of normal family life,

2. Avoidance from foulness and immorality,
3. Legalization of children,
4. Legalization of sexual intercourse,
5. Preservation of human race,
6. Systematization of domestic life.
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Nature of Marriage:
In Islam marriage is a contractual relationship between spouses. The conditions which make it
civil contract are;

1. Necessity of proposal and acceptance,

2. Consent of parties,
3. Consideration in form of dower.

Essentials of Marriage:
Following are the essentials of a valid marriage;

1. Offer and Acceptance (Aijab-o-Qabool):

The proposal must be from one party and its acceptance from other side for the validity of
marriage, because it shows the consent of parties, as marriage without consent is voidable. The
Aijab-o-Qabool must be expressed either by parties themselves or through their Vakils. The
proposal and acceptance must be in unequivocal terms and may be made by words, signs or in
writing.

2. Capacity (Ahliat):

The capacity for entering independently into contract of marriage depends upon two
conditions;

a) Age of Majority (Baligh): The age of majority according to Sunni Law; male=12 years and
female= 9 years and in case no evidence is available it will be 15 years in each case. According
to Shia Law; male=15 years and female=9 years. According to Pakistani Law; male= 18years and
female=16 years.

b) Soundness of mind (Aagil):

However minors and persons of unsound mind can also be given in marriage tie through
guardians. The marriage through guardian is known as “Jabr”. According to Shafais and Malikis
a girl even major cannot enter into a valid marriage without the consent of her guardian.

3. Free Consent (Raza):

The consent of parties must be there for the validity of Muslim marriage. It is unlawful to
oppress or coerce a woman into marriage or to obtain her consent by force or coercion or to
compel her to marriage. Hence marriage of a Muslims of sound mind and who has attained
puberty is void if it is brought about without his/ her consent.

According to Hanafis marriage is voidable at the option of party whose consent was so taken
under coercion, fraud.

All other Schools consider a marriage void if consent is taken under compulsions.
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Consent is so necessary that even if a guardian has contracted a minor or a person of unsound
mind into a valid contract of marriage, ratification of the contract is essential when the minor
attains puberty or when the person of unsound mind regains sanity.

4. One Sitting (Majlis):

The proposal and acceptance must be in one sitting. If proposal is made at one meeting and an
acceptance at another meeting, there will not be a valid marriage. The words with which the
marriage is contracted must be clear and unambiguous.

5. Dower (Mehr):

Dower in marriage is so essential that even if it is not mentioned at the time of solemnization of
marriage, law will presume it.

6. Presence of Witnesses:

Under Sunni Law two competent witnesses are mandatory for the validity of marriage
otherwise marriage will be irregular. According to Shafi Law both must be male.

According to Hanafis, a female may act as witness to a marriage, but that the presence of at
least one male witness is compulsory; according to this view therefore a marriage with only
four female witnesses would not be valid.

Under Shia Law a marriage without witnesses will be valid one as according to them the
purpose of having witnesses is simply to advertise the union and does not constitute an
essential of the marriage contract.

7. Absence of Prohibitions/ Impediments:

These are the restrictions imposed by Islamic Law which makes a marriage either void or
regular depending upon the nature of restriction. If any prohibition arises after the entering
into valid marriage such as change of religion etc. it is called “supervenient illegality”.

Under Sunni Law, in case of supervenient illegality the marriage is treated as irregular and
under Shia Law the marriage is treated as void. These impediments may be classified into these
2 broad heads;

a. Permanent Impediments:

These are the impediments which make the marriage void ab initio and the marriage is not
allowed in any case. They cannot be cured. These include following;

i. Polyandry: A woman marrying more than one man at the same time.
ii. Consanguinity: Blood relations i.e. mother, daughters, sisters, paternal and maternal aunts,
brother’s daughters, your sister’s daughters etc.
iii. Fosterage: Relationship due to suckling of milk i.e. foster-mothers, foster-sisters etc.
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iv. Affinity: Relationship due to marriage i.e. mothers-in-law, stepdaughters under ones
guardianship if one have consummated marriage with their mothers.

b. Temporary Impediments:

These are temporary prohibitions in nature.

According to Hanafi Jurists, these make the marriage irregular and can be cured at any time
converting it to a valid marriage. These include following;

i. Polygamy: A man marrying more than one woman at a time. In Islam limited polygamy is
allowed i.e. 4 women at a time can be in Nikkah to a man.
ii. Iddat: Marriage with a woman observing iddat is not allowed.
iii. Unlawful Conjunction: A man cannot marry two women who are related to each other in
prohibited degrees of relationship i.e. two sisters at the same time.
iv. Difference of Religion: A Muslim woman cannot marry a non-Muslim man.
v. Absence of Witnesses: Two witnesses must be present at the time of solemnization of
marriage as per Sunni law.

Classification/ Types of Marriages:

A Muslim marriage can be classified into following heads according to the nature of duration
involved;

1. Permanent Marriages and their Legal Effects:

The permanent marriages are recognized by both Shia and Sunni Schools. A Muslim marriage
can be sub-divided into three categories on the basis of existence of prohibitions;

i. Valid Marriage (Sahih Nikkah), ii. Void Marriage (Batil Nikkah), iii. Irregular Marriage (Fasid
Nikkah).

i. Valid Marriages (Sahih Nikkah):

These are the marriages which fulfill all the requirements as prescribed by the Shari’at. It must
be noted that there should be no prohibition in these marriages. They create all sorts of legal
rights provided and protected under Islam, such as;

a. Sexual relationship becomes lawful.

b. Children born as a result of wedlock are legitimate.
c. Wife has right to receive dower.
d. Wife has right to maintenance and residence.
e. All prohibitions of affinity apply.
f. Wife has to observe iddat on dissolution of marriage.
g. Both spouses have mutual rights of inheritance.
h. However wife remains subject to her own sect.
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ii. Void Marriages (Batil Nikkah):

An agreement between a prospective bride and a groom which does not meet all the essential
conditions of a Muslim marriage is a void agreement and any marriage that takes place in
furtherance of a void agreement is called a void marriage or Batil Nikkah. These ate treated as
void ab initio and the defect due to which they are not validated cannot be cured. Hence they
create no legal effects whatsoever and relationship amounts to zina.

A marriage is void in those cases in which the prohibition is perpetual and absolute, while a
marriage which is defective only by reason of a relative or temporary prohibition or for want of
some formality is only irregular. When one or more of the pre-requisites to a valid marriage are
not fulfilled by the spouses before marriage, the marriage is void and not binding. The following
are certain situations in which a Muslim marriage is void.

a. When a marriage takes place between persons who are absolutely incapable.
b. When a person marries to the wife of another man when the marriage of the lady was
subsisting.
c. Marrying more than four wives. In such a case, the fifth marriage and so on becomes void.
d. Marriage with a Non-Muslim.

The above-mentioned list is mere examples and not an exhaustive list of void marriages. The
essential social and legal implications of void marriage are:

a. The marriage is void-ab-initio, i.e. void from the very first day of the marriage even if the
marriage is consummated.
b. A void marriage does entitle the parties to any legal right or bestow any legal duties upon
them.
c. If the marriage turns out to be void, the right to receive maintenance after divorce is lost.
d. The kids, if any, born from the consummation of a void marriage are considered illegitimate
and have not right of succession or inheritance.
e. The spouses do not require obtaining a decree of divorce in case of void marriages. They can
simply part without any legal formalities.

iii. Irregular Marriages (Fasid Nikkah):

These are not void and are midway between valid and void; however there exist some defects
which can be negated. Upon curing these defects these marriages become valid. Irregular
marriages exist only in case of Sunni Muslims whereas an irregular marriage, under Shia law, is
void marriage. When a marriage is conducted by violating certain or partial conditions of a valid
marriage, it is called an irregular marriage. Following marriages are considered to be irregular;

a. A marriage without witnesses.

b. A marriage with a woman undergoing iddat.
c. A marriage prohibited by reason of difference of religion.
d. A marriage with two sisters.
e. A marriage with fifth wife in the presence of existing four wives.
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f. A marriage of unlawful conjunction.

Their legal effects can be studied into two steps;

A. Before consummation: No legal consequences arise.

B. After consummation: There are many effects which are recognized by Islamic Law, such as;

a. Children will be legitimate.

b. Dower whichever is less (proper or specified) will be payable.
c. Iddat will be three courses in all cases. Otherwise, period of iddat varies in cases of divorce
and death of the husband.
d. Children will inherit from both parents.
e. Spouses will not inherit from each other.
f. Such marriage can be terminated at any time by either party.

2. Temporary Marriages or Muta:

Literal meaning of muta is “enjoyment” or “pleasure”. Temporary marriage is called “muta” and
these are the marriages for fixed duration or for a definite period. Muta marriage is the fourth
kind of marriage that occurs only in Shia Muslims and not Sunni sect of Muslims as they
consider it void.

Background of Muta: Most of the Arabs that were involved in the business of exporting used to
do business agreements for which they were required to travel far places and stay there for
several days, even months or years. During this period, they used to fulfill their sexual need and
desires by marrying temporarily. During the Khilafat of Hazrat Umar (R.A), strict restrictions
were imposed on muta marriages but this concept of marriage was recognized in Muslim
personal law by the Shia sect and is called Muta marriage. Therefore, the Shia’s used to marry
the women for a temporary period till they were in that town and at the time of leaving, they
get divorced and the dower was paid as the consideration for marrying. However, Islam does
not allow cohabitation with any woman other than a person’s own wife, that is why the Sunni
Sect does not recognize this type of marriage.

General description of Muta:

i. A Shia male may contract a muta with a Muhammedan or Kitabia (Jew or Christian).
ii. There is no restriction on number of muta to be contracted by a person.
iii. A Shia female can only enter into muta with a Muhammedan.
iv. Consent of Wali is must for minor female bat not required in case of a major girl.
v. All formalities of permanent marriages are necessary to be fulfilled such as offer and
acceptance etc.
vi. It is must that duration is fixed, this may range from a year to a day or so.
vii. The parties are called muta husband and muta wife.
viii. Parties are always entitled to enter into another muta or a permanent marriage, once first
muta is terminated.
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Dower:

i. The dower must be specified at the time of solemnization, otherwise marriage will void.
ii. In case, wife leaves husband before termination of time fixed for muta、she wil get only
proportionate dower.
iii. In case marriage is consummated, the wife will get full dower.
iv. In case marriage is not consummated, the wife will get half of the dower.

Inheritance and Maintenance:

i. Children born are legitimate and have the right to inherit.

ii. There is no mutual right of inheritance between parties unless an express agreement is there
to that effect.
iii. There is no right of maintenance for wife, unless an express agreement is there.

Dissolution of Marriage:

i. Marriage is dissolved by expiry of time specified or death of either party.

ii. Husband can repudiate marriage before expiry of time, through Hiba-e-Muddat.
iii. Parties are free to terminate the contract through mutual consent before expiry of time
specified.

Iddat:

i. In case marriage is dissolved due to death of husband, wife will have to observe iddat for 4
months and 10 days or till delivery if she is pregnant.
ii. In case of consummation of marriage of a menstruating wife iddat will be for a period of 2
menstruations.
iii. In case of consummation of marriage of a non-menstruating wife iddat will be for 45 days.
iv. In case marriage is not consummated, no iddat is required.

Comparison of Muta and Regular Nikkah:

Muta Regular Nikkah
Nature: Temporary. Permanent.
Recognition: Shias only. Both Shia and Sunni.
Minimum No Minimum amount specified. Hanafi keeps minimum at 10
amount of Dirhams.
Dower:
Hibba-e- By paying Hiba-e-Muddat, earlier termination is No such possibility.
Muddat: possible.
Limit on No. No limit. Maximum upto 4 wives at a
of Wives: time.
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Polygamous Marriage:
In Islam limited polygamy is allowed. A Muslim male may marry 4 wives at a time and a fifth
marriage in the presence of four wives will be void under Shia law and irregular under Sunni
law. This rule does not apply in case of muta marriages and there is no restriction on number of
muta marriages on Muslim male. However, a Muslim female cannot enter into another
marriage in the presence of first one, as polyandry is not allowed. The state law in many
Muslim jurisdictions has tried to regulate and restrict this right.

Pakistani Law:
Right from promulgation, the Muslim Family Laws Ordinance, 1961 has faced stiff opposition
both inside and outside the legislature on account of conditions it places on polygamy.
Opponents of MFLO contended that Islam permits a man to be simultaneously married to up to
four wives, and no earthly power can revoke this privilege. Others contend that if the spirit of
Islam and its progressive stand on women’s rights is taken into account, this passage of Quran
[Sura Nisa: verse 3] only permits polygamy under certain circumstances; it neither enjoins nor
even permits it unconditionally. Few have argued that since permission for polygamy arose out
of particular circumstances which may recur now and then, it is not right to prohibit polygamy
by legislation; but equally that since the Quran has made polygamy conditional on the just and
equitable treatment of wives, it is open to the state to prescribe conditions under which
polygamy will be allowed.

Presumption of Marriage and its Proof:

The existence of a marriage can be proved either directly or through implied means. The
implied modes are known as presumptions as to marriage but there must not be permanent
impediment in that marriage. These presumptions may be in following ways;

i. Consummation of marriage as it cures many irregularities.

ii. Valid Retirement (Khilawat-e-Sahiha): It is the presumption of consummation which arises
out of retirement both of spouses in a separate place, where there is no hindrance in the eyes
of law for the parties in entering into sexual relationship. It is recognized under Hanafi and
Maliki Law and for Shia and Shafi’i Law valid retirement does not amount to actual
consummation. A valid retirement is equivalent to actual consummation for the following
purposes.
a. For confirmation of dower.
b. For establishment of paternity.
c. For observance of iddat.
d. For the right of maintenance and residence during period of iddat.
e. For prohibiting marriage of husband with wife's sister and fifth marriage.
f. In rendering marriage with a bonds-maid prohibited.
g. In (the matter of) selecting (proper) time for divorcing a wife.

For some cases it is not presumed to be equal to actual consummation and for following
purposes actual consummation is necessary;
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a. For making a person mohsan.

b. For impairing virginity.
c. For prohibiting the daughter of the woman.
d. In rendering the wife lawful to her former husband.
e. On the matter of revoking the divorce and retaining the wife.
f. In the right of inheritance.
g. In the matter of remarriage of a woman being performed in accordance with the rules
prescribed for the marriage of a virgin.
h. In case of irregular marriages, valid retirenment has no effects as for that purposes actual
consummation is must.

iii. Acknowledgement of marriage by the husband.

iv. Acknowledgement of paternity.
v. Continuous and prolonged cohabitation as husband and wife.
It should be noted that where a woman is a known prostitute, the presumption of marriage
cannot be drawn.

Comparative Study of Different Schools:

1. Delay in acceptance of marriage offer:
Shias, Shafi’is and Malikis hold that offer to marry must be accepted at once, without delay,
even Malikis state that slightest delay will lapse the offer. However, Hanafis do not impose such
condition and here delay does not terminate offer.
2. Language of Nikkah:
All are agreed that where it is impossible to solemnize Nikkah in Arabic, it can be in any other
language. But there is difference of opinion as to when Nikkah in Arabic is possible and is
solemnized in any other language. In such a case, Hanafis, Malikis and Hanbalis treat it valid,
whereas Shias and Shafi’is do not allow it.
3. Witnesses:
According to Hanafis, Hanbalis and Shafi’is, two witnesses are mandatory at the time of Nikkah;
Malikis say that absence of witnesses will have no effect on validity, but before consummation,
two witnesses must be arranged. For Shias, absence of witnesses does not affect the validity of
Nikkah.
4. Coercion or undue influence in Nikkah:
Except Hanafis, a Nikkah under coercion and undue influence is void.
5. Nikkah in joke:
According to Hanafis, Malikis, Shafi’is and Hanbalis, a Nikkah with mockery and joke becomes
valid, which is not the case with Shias.
6. Nikkah with wife’s daughter:
It is agreed that where a person marries a woman, he cannot marry her (already) daughter.
However, Shias, Shafi’is and Hanbalis say that only actual consummation will prohibit marriage
with such daughter, while Hanafis and Malikis think, such daughter becomes prohibited even
after marriage/ Nikkah.
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7. Nikkah in Ahraam (Pilgrimage Dress):

According to Shias, Shafi’is, Malikis and Hanbalis, a marriage while in pilgrim dress is illegal,
while Hanafis treat it as Valid.
8. Equality in Nikkah:
A man should be of equal status (Al Kaffa) of that of woman is an accepted view. Shias and
Malikis only require equality in religion. However, Hanafis, Shafi’is and Hanbalis think this
equality must be;
i. In religion.
ii. Man must be free from slavery.
iii. In blood.
iv. In financial terms.
9. Entering into Nikkah independently:
Shafi’is, Malikis and Hanbalis emphasize on marriage of an adult and sane girl through wali,
while Shias and Hanafis think such girl can independently enter into marriage tie.
10. Types of marriage by Schools:
Only Hanafis follow three fold classification of marriages i.e. valid (Sahih), void (Batil) and
irregular (Fasid) as for others Shias, Hanbalis, Malikis and Shafi’is, they are either void or valid.

Comparison of Shia and Sunni Law:

Shia Law Sunni Law
Witnesses: No witnesses required for Two witnesses required for
validity of marriage. validity marriage.
Temporary Marriages: Temporary marriages (muta) Temporary marriages are void
are recognized. ab initio.
Irregular Marriages: Irregular marriages are not Irregular marriages are
recognized. recognized with certain legal
effects.
Valid retirement: Valid retirement does not For many purposes valid
amount to actual retirement amounts to actual
consummation. consummation.
Form of Offer and Offer and acceptance must be They need not be in any
Acceptance: made by use of the terms particular form.
“tazweef” or “nikah” or their
grammatical variations.

__________________________________________________
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Dower (Mehr)
Historical Background of Dower:
Dower is known by several names, mehr, suduk, nuhlah, akr, sadakat, nihlat and atiya. The
system of payment of dower in one form or other has existed among many nations of the
world. In pre-Islamic Arabia, two forms of marriages were prevalent i.e. (i) Beena and (ii) Baal.

i. Beena form of Marriage:

In Beena form of marriage, woman did not use to accompany her husband to his home, but
continued to stay in her own home and the husband visited her there. In this way, there was a
custom to give her a gift at the time of marriage, which was known as Sadaq and the wife was
known as Saadaqa.

ii. Baal form of Marriage:

In Baal form of marriage, wife accompanied her husband and he in consideration of wife’s
leaving her parent’s home used to pay some amount to her parents and this amount was called
Mehr.

Definitions of Dower:
Dower is inherent in the concept of the Muslim marriages and it is an integral part of it.

Mullas defines it as, “A sum of money or other property which the wife is entitled to receive
from husband in consideration of marriage”.

Tayabji declares it as, “a sum that becomes payable by husband to the wife on marriage either
by agreement between the parties, or by operation of law.

Nature of Dower:
It 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, the law
confers it. It is a token of respect. Mentioning of it is not absolutely essential to the validity of
marriage; and for the same reason, a marriage is also valid although a man were to engage in
the contract on the special condition that there should be no dower. Islam puts a great
emphasis on dower that it must be paid to wife herself and if dower be regarded as sale-price,
it must be paid to father or the guardian of the wife. Since, it is paid to the wife herself, it
cannot be the price, rather as a token of respect.

Objects of Dower:
As a fundamental feature of Muslim marriage, it is so important that if it is not mentioned at
the time of marriage, the law will presume it. The objects of dower are as following;
i. To impose an obligation upon husband.
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ii. Subject of respect towards wife.

iii. To offer protection to wife,
iv. As a deterrence upon the husband’s absolute power of pronouncing divorce upon wife.

Capacity to Enter into Dower Contract:

i. Parties:
The parties or their agents can enter into contract of dower.

ii. Age of majority and Soundness of mind:

Both the spouses, parties and their agents must be adult and sane.

iii. Minor and Unsound mind:

On behalf of minor or person of unsound mind, guardian can enter into contract.
According to Sunni Law, the dower fixed by father is binding on the son and father is not
personally liable to pay it.
According to Shia Law if the son has no means to pay specified dower, father is liable to pay it.

Form of Contract:
The contract of Dower can be;
i. In written form (Written in the Nikkhah-Nama).
ii. Or oral form.

Subject Matter of Dower:

a. Valid subject matter of Dower:
Everything coming within the definition of mal is a valid subject matter of dower. Dower can be
anything which is not forbidden for Muslims. Therefore, can be a valid subject of dower. This
may include;
i. Money.
ii. Property (both moveable and immovable).

b. Non-Valid subject matter of Dower:

The things not in existence are not valid subject matter of dower. However, these things are not
valid subject of dower;
i. Future property.
ii. Wine.
iii. Pork.
iv. Personal services of husband.

Exception for invalid subject matter of dower in Shia Law:

Under Shia Law usufruct of property not in existence and contingent benefits may be valid
subject of dower. Where dower’s subject matter is uncertain such as “an animal” or “cloth” it
will be invalid and wife will get Mehr-e-Misl (Proper Dower). Similarly “a house” or “a land”
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without specifying the exact location and description are not fit subjects of dower and the court
will have to fix proper dowers in those cases.

c. Recognized subject matters of Dower:

Recognized subject matters for dower are;
i. Handful of dates (Abu Daud).
ii. A pair of shoes (Tirmizi).
iii. Teaching Quran to wife (Tradition).
iv. The services of husband’s slaves to wife (Fatawa-e-Alamgiri).
v. Husband’s services rendered to the guardian of a minor wife (Durr-ul-Mukhtar).

Classification of Dower:
Following are the notable kinds of dower recognized under Islamic Law;

1. Specified Dower (Mehr-e-Musamma):

This is the dower which is fixed at the time of marriage. This fixation can also be either before
or after marriage. In case any part of specified dower is illegal, the remaining part will be
presumed to be specified and where whole specified is illegal then proper dower will be
payable.

Hanafis approach: Hanafis decide minimum amount of specified dower at ten dirhams.
Malikis approach: Malikis fix it at three dirhams.
Hence, if the dower is less than that specified amount, the dower must be made up to the
prescribed limit. However, no maximum amount is fixed by the Sunni law.

Shia Law: Under Shia Law moderation is commendable and the fixing of dower exceeding 500
dirhams is considered to be abominable but not illegal. This dower can be fixed either by
husband or his father if he is minor or insane. An addition to specified dower may be made at
any time after marriage.

Specified Dower has further two types which are as follow;

a. Prompt Dower (Mehr-o-Muajal):
Prompt Dower known in Arabic as “Mehr-o-Muajal” is the dower which is payable on demand
and is payable immediately after marriage, if demanded by the wife. She can demand it before
entering into conjugal relationship. The payment of dower can be postponed with mutual
consent of parties.

b. Deferred Dower (Mehr-e-Muwajal):

Deferred Dower known in Arabic as “Mehr-e-Muwajal” is that dower which is postponed till a
specified time or dissolution of marriage either by death or divorce. Wife cannot demand it
before specified time or during subsistence of marriage and this dower binds the husband
during his lifetime and his estate after his death.
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Sunni Law: If at the time of marriage, it is not specified which part of dower is prompt and
which deferred, then it is treated as half or ½ as prompt and half or ½ as deferred.
Shia Law: If at the time of marriage, it is not specified which part of dower is prompt and which
deferred, then the whole is treated as prompt.

Distinction between Prompt and Deferred Dower:

Prompt Dower Deferred Dower
Due time: It becomes due at once after It becomes due only after
solemnization of marriage. happening of specified event
of dissolution of marriage.
Demand by wife: It becomes payable Demand by wife does not
immediately after demand by make it prompt.
wife at any time.
Entitlement to recover: Wife is entitled to recover it at Cannot be recovered before
any time during subsistence dissolution or stipulated time.
of marriage.

2. Proper Dower (Mehr-e-Misl):

Proper Dower also known as “Customary Dower” is the dower of the equals of wife and for it
many factors are considered such as;
i. Social position of woman’s family especially her father.
ii. Local custom.
iii. Personal qualifications of wife i.e. age, beauty, fortune, understanding and virtue etc.
iv. Dower settled on wife’s female paternal relations such as consanguine sister, cousins,
paternal aunts etc.
v. Wealth of husband etc.

Shia Law approach on Proper Dower: Under Shia Law, proper dower is regulated as per nobility
of birth of wife i.e. the custom and dower of wife’s relations but such dower must not exceed
Mehr-e-Sunnat (i.e. above 500 Dirhams). It is usually payable when dower is not specified at
the time of marriage.

Confirmation of Dower:
Upon happening of any of the following conditions dower becomes confirmed upon wife and
she becomes entitled to receive it. Such are the following conditions;
i. On consummation.
ii. On valid retirement.
iii. On death of either party, irrespective of consummation.

For Valid Marriages:

1. Valid MarriageDissolved before consummationWife will get one half of the Specified
Dower.
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2. Valid MarriageDissolved after consummationWife is entitled to receive full Specified

Dower.
For Dower not specified at the time of Marriage:
1. Dower not specified at the time of marriageDissolved before consummationWife will get
a gift/ present.
2. Dower not specified at the time of marriageDissolved after consummationWife is
entitled to get Proper Dower.

For Irregular Marriages:

1. Irregular MarriageDissolved before consummationWife will get nothing.
2. Irregular MarriageDissolved after consummationIf dower is Specified then whichever is
less (either specified or proper dower) will be payable to wife.
3. Irregular MarriageDissolved after consummation If dower is not specified then Proper
Dower will be payable to wife as per rules stated regarding valid marriages.

Sunni Law: If at the time of marriage, it is not specified which part of dower is prompt and
which deferred, then it is treated as half or ½ as prompt and half or ½ as deferred.
Shia Law: If at the time of marriage, it is not specified which part of dower is prompt and which
deferred, then the whole is treated as prompt.

Satisfaction of Dower:
The claim of dower can be satisfied in any of the following ways;
i. By payment to wife.
ii. By payment to her guardian, if she is minor.
iii. Relinquishment by wife known as Hiba-e-Mehr.
iv. By transfer of property to wife in lieu of dower (known as Bai’ Mukasa).
v. By recovery through court.
vi. By mutual agreement.
vii. By family arrangement.

Wife’s Rights on Non-Payment of Dower:

Wife’s rights on non-payment of dower are as under;
1. She can refuse to cohabit (if dower is prompt, not in case of deferred one).
2. She can recover dower as debt from the husband (if alive) or from husband’s assets (if dead)
through suit for recovery of dower amount. But it must be kept in mind that dower is an
unsecured debt and wife’s position is just like other creditors.
3. She can retain husband’s property, if that be in her possession, till the satisfaction of her
dower debt and such lien is personal in nature.
4. She (or her legal heirs) can file a suit for recovery of dower.
5. She can remit the dower or any part of it in favour of her husband or his heirs, even without
consideration.
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Pakistani Law:
There is no restriction upon the maximum or minimum amount of dower to be fixed at the time
of marriage. However the MFLO, 1961 states that in case amount is mentioned but no mode of
payment is prescribed, whole dower will be presumed to be prompt (like Shia Law).

Comparative Study of Different Schools:

1. Wife murders her husband:

According to Shafi’is, Malikis and Hanbalis, if wife murders her husband before consummation,
she loses her right to dower.
According to Hanafis and Shias, if wife murders her husband before consummation, her right to
dower will not be lost, however she will lose her right to inheritance from husband.

2. Determination of Proper Dower (Mehr-e-Misl):

There is difference of opinion on determination of Mehr-e-Misl (Proper Dower).
a. According to Hanafis, it will be estimated keeping in view the dower of females related to
bride from paternal side.

b. According to Malikis, they base it upon bride’s physical and mental capabilities.

c. According to Shafi’is, they equate it with the dower of wives of bride’s male relatives.

d. According to Hanbalis, they give this right to Qadi, who will see the dower of bride’s mother
or maternal aunts.

e. According to Shias, they estimate the same keeping in view status of wife, family background
of wife etc. but declare that such dower should not exceed Mehr-e-Sunnat (Above 500
Dirhams).

3. Without the preconditioning of Mehr:

a. According to Hanafis, Hanbalis, Shafi’is and Shias, they all agree that a Nikkah with
stipulation of no Mehr is valid one.

b. According to Malikis, that without consummation such Nikkah will be void, but after
consummation Mehr-e-Misl will be payable.
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Comparison of Shia Law and Sunni Law:

Shia Law Sunni Law
Minimum amount of Dower: No minimum amount of Hanafis fix it at 10 dirhams
dower fixed. and Malikis fix at 3 dirhams.
Dower when not specified: If amount is fixed and not In such a case, half will be
mentioned whether it is prompt and half will be
prompt or deferred, whole deferred.
shall be considered prompt.
Relinquishment of Dower: An adult and sane wife can A wife cannot forego her
forego her dower. dower at the time of Nikkah.
Maximum amount of Dower: Proper dower should not No such restriction under
exceed the amount of Mehr- Sunni Law.
e-Sunnat.

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