RESEARCH METHODOLOGY: Area: Muhammedan law. Topic: the concept of dower.

Objective: the main objective of this project topic is to critically analyze the concepts underlying the Islamic concept of dower (mahr) and to focus on the intricacies of the topic vis--vis religious and social implications.

Research questions: 1) Dower: contract or mark of respect? 2) Types of dowers? 3) Options in the hand of wife when dower is unpaid. 4) Is dower transferable or heritable? Chapterization: Chapter 1: introduction Chapter 2: definition. Chapter 3: types of dower. Chapter4: nonpayment of dower. Chapter 5: case analysis. Conclusion.

BIBLIOGRAPHY: Time schedule: This report has been made in the course of research made during the last 10 days. Footnoting format: The format used here is the Harvard blue book style.

TABLE OF CASES:

1)Hamira Bibi v. Zubaida Bibi(1916) 43 I.A. 294 2)Abdul Kadir v. Salima (1886) 8 All. 149 3)Syed Sabir Husain v. Farzand Hasan (1937) 65 I.A. 119 4)Husseinkhan v. Gulab Khatum (sic) (1911)35 Bom 386. 5)Mohammad Sadiq v. Fakr Jahan (1931) 59 I.A. 19. 6)Nur-ud-din Ahmad v. Masuda Khanam PLD 1957 Dacca 242 7)Muhammadi v. Jamiluddin PLD 1960 kar 663 8)Rahim Jan v. Muhammad, PLD 1955 Lahore 122 9)Rabia Khatoon v. Mukhtar Ahmad AIR (1966) All. 548 10)Anis Begam v. Muhammad Istafa Wali Khan.1933) 55 All.548 11)Kapore Chand v. Kadar Unnissa [1950] S.C.R. 747. 12)Wajid ali khan v shaujat khan (1912)15 oudh cases 127. 13)Hussain v. Rahim Khan AIR (1954) Mysore 24 14)Zaibunnissa v. Nazim Hasan AIR (1962) All. 197 15)Zobair Ahmad v. Jainandan Prasad AIR (1960) Pat. 147

CHAPTERIZATION:

Chapter 1: introduction Chapter 2: definition. Chapter 3: types of dower. Chapter4: nonpayment of dower . Chapter 5: nature of dower Conclusion.

CHAPTER 1: INTRODUCTION:

"and give women their dowers freely" Koran (iv:4).this statement made by none other than Prophet himself goes to show the importance of dower in muslim marriages. One of the essential parts of Muslim marriage is dower paid or promised to be paid by the husband to the wife Without which a nikah cannot be said to have been properly solemnized. Dower money must be paid or fixed before the solemnisation of a marriage. it is the sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage.1 The amount of dower may be fixed either before or at the time of marriage of after marriage. The law does not say anything about the quantum of dower. The amount of dower is generally split into two parts- prompt dower which is payable immediately on demand by the wife and deferred dower which is payable only on dissolution of marriage by death or divorce. In this present endeavor the author would try to explain in detail the concept of dower and the effect of non-payment of dower. Some of the important cases with respect to dower would also be analyzed.

Abdur rahim: on basis of hedaya. See also : D.F. Mulla, Principles of Mohammedan Law, 17th Ed.P.277
1

CHAPTER 2: DEFINITION

PRIOR to Islam, two kinds of material gifts were prevalent. In a certain type of marriage, the so-called beena marriage, where the husband visited the wife but did not bring her home, the wife was called sadiqa or female friend, and a gift given to the wife on marriage was called sadaq. In Islam sadaq simply means a dowry and is synonymous with mahr. But originally the two words were quite distinct: sadaq is a gift to the wife and mahr to the parents of the wife.2 The latter term belongs to the marriage of dominion, which is known as the baal marriage, where the wifes people part with her and have to be compensated. Now mahr in the baal form of marriage was used by the Prophet to ameliorate the position of the wife in Islam, and it was combined with sadaq, so that it became a settlement or a provision for the wife. In Islamic law, mahr belongs absolutely to the wife.3 Thus, historically speaking, the idea of sale is latent in the law of mahr (dower). 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
Robert Smith, Kinship, 93 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University Press, 4th Edition, 2002) p.132
2

Ameer Ali, II, 461-2; Fat. Law 70 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan law, (Oxford University Press, 4th Edition, 2002) p.132
3

The best general observations on dower are those of Lord Parker of Waddington in Hamira Bibi v. Zubaida Bibi:5

Dower is an essential incident under the Mussulman law to the status of marriage; to such an extent this is so that when it is unspecified at the time the marriage is contracted the law declares that it must be adjudged on definite principles. 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 domicil; the other deferred, payable on the dissolution of the contract by the death of either of the parties or by divorce..But the dower ranks as a debt, and the wife is entitled, along with the other creditors, to have it satisfied on the death of the husband out of his estate. Her right, however, is no greater than that of any other unsecured creditor, except that if she lawfully obtains possession of the whole or part of his estate, to satisfy her claim with the rents and issues accruing therefrom, she is entitled to retain such possession until it is satisfies. This is called the widows lien for dower, and this is the only creditors lien of the Mussulman law which has received recognition in the British Indian Courts and at this Board.

Abdul Kadir v. Salima (1886) 8 All. 149

(1916) 43 I.A. 294 at 300-1; also cited in Syed Sabir Husain v. Farzand Hasan (1937) 65 I.A. 119 at 127
5

AMOUNT OF DOWER: the amount of dower as per muslim law is not specified but there is a basic minimum that has to be paid for validity of marriage. The basic limits are specified according to the different schools of Islamic law. They are as follows:

1)Hanafi law - 10 dirhams. 2) Maliki law - 3 dirhams. 3) Shafii law No fixed minimum. 4) Shiite law No minimum fixed.

A dirham (Persian, diram, a word derived from the Greek) is the name of a silver coin 2.97 gram in weight10, and is usually valued at 3-4 annnas or 20-25 paise. In India, it Has been held that the value of ten dirhams is something between Rs.3 and 411. Thus it will be seen that the minimum doer fixed by the law can hardly be deemed to be an adequate provision for the wife. In fact, it would be a mistake to lay too great a stress upon the monetary value of the minimum dower. It is said that in the case of an extremely poor man, the Prophet requested him to teach the Koran to his wife, and this was considered by the Lawgiver to be an adequate requital of the husbands obligation. Furthermore various sources of muhammedan law has recognized other forms of dower such as: 1) 2) 3) 4) A handful of dates(abu daud). A pair of shoes(tirmizi). If husband is slave then services to wife(mohit sarkshee). Teaching Koran(fatwa-I-alamgiri).

CHAPTER 3: TYPES OF DOWER

We have seen that dower is payable whether the sum has been fixed or not, Ali said: There can be no marriage without mahr. Thus, dower may, first of all, be either specified or not specified. In the latter case, it is called mahr al-mithl, Proper Dower, or to be strictly literal, the dower of the like. If the dower has been specified, then the question may be whether it is prompt (muajjal) or deferred (muwajjal, strictly muajjal). Thus we have two kinds of dower in Islam: A. Specified Dower (al-mahr al-musamma); and B. Unspecified Dower or Proper Dower (mahr al misl). Specified Dower may be again be divided into(i)Prompt - muajjal, and (ii)Deferred - muwajjal. In (A) and (B) the question before the court is the amount payable: in (I) and (II) the question is the time when payment has to be made. A. Specified Dower (al-mahr al-musamma):6 Usually the mahr is fixed at the time of marriage and the kazi performing the ceremony enters the amount in the register; or else there may be a regular contract called kabinnama, with numerous conditions. The sum may be fixed either at the time of marriage or later, and a fathers contract on behalf of a minor son is binding on the
6

Also called mahr al-aqd

minor. Where a father stipulates on behalf of his son, in Hanafi law, the father is not personally liable for the mahr; but aliter in Ithna Ashari law.

In Syed Sabir Husain v. Farzand Hasan, a Shiite father had made himself surety for the payment of the mahr of his minor son. Thereafter he died, and it was held that the estate of the deceased was liable for the payment of his sons mahr. Accordingly each heir was made responsible for a portion of the wifes claim in proportion to the share received by the particular heir on distribution from the estate of the deceased. The heirs were, however, liable only to the extend of the assets received by them from the deceased, and not personally.7

B. Unspecified Dower (mahr al-misl):8 The obligation to pay dower is a legal responsibility on the part of the husband and is not dependent upon any contract between the parties; in other words, if marriage, then dower.9 The customary or proper dower of a woman is to be fixed with reference to the social position of her fathers family and her own personal qualifications. The social position of the husband and his means are of little account. The Hedaya lays down the important rule that her age, beauty, fortune, understanding and virtue must be taken into consideration. Islamic marriage, therefore, safeguards the rights of a wife and attempts to ensure her an economic status consonant with her own social standing.
7

(1937) 65 I.A. 119.

Ameer Ali calls it the customary dower. This has been emphasized by the Privy Council in Syed Sabir Husains Case, (1937) 65 I.A. 119

Mahr is an essential incident under the Mussalman law to the status of marriage; to such an extent that is so that when it is unspecified at the time the marriage is contracted the law declares that it must be adjudged on definite principles.10

Prompt (muajjal) and Deferred (muwajjal) dower: When the dower is specified, the question arises: At what times and in what proportions is the amount payable? Here two somewhat puzzling terms are used and it is necessary to distinguish carefully between them. The technical term for prompt dower is muajjal. It is derived from a root meaning to hasten, to preceed. The term muajjal, therefore, means that which has been hastened or given a priority in point of time. The term muajjal, however, means delayed, deferred, and comes from a root which means to delay or postpone. Written in the original Arabic there would be no cause for confusion, but in the usual English forms of spelling the words often puzzle those who are not familiar with the Arabic tongue. Prompt dower is payable immediately after the marriage, if demanded by the wife; while deferred dower is payable on the dissolution of the marriage or on the happening of a specified event. When dower is fixed, it is usual to split it into two equal parts and to stipulate that one shall be paid at once or on demand, and the other on the death of the husband or divorce or the happening of some specified event. But a difficulty arises when it is not settled whether the dower is prompt or deferred. In Ithna Ashari law the presumption is that the whole of the dower is prompt; but in Hanafi law the position is different. The whole of the dower may be promptly awarded
11

but a recent Full Bench decision lays down first, that where the kabin-nama is silent on the question, the usage of the wifes family is the main consideration; and secondly, that
10

Syed Sabir Husains Case, (1937) 65 I.A. 119

Per J. Mahmood in Abdul Kadir v. Salima, (1886) 8 All. 149; Husseinkhan v. Gulab Khatum (sic) (1911) 35 Bom 386.
11

in the absence of proof of custom, the presumption is that one-half is prompt, and the other half deferred, and the proportion may be changed to suit particular cases.

CHAPTER 4: NON PAYMENT OF DOWER:

The claim of the wife or widow for the unpaid portion of the mahr is an unsecured debt due to her from her husband or his estate, respectively. It ranks rateably with unsecured debts, and is an actionable claim. During her lifetime the wife can recover the debt herself from the estate of the deceased husband. If she predeceases the husband, the heirs of the wife, including the husband, become entitled to her dower. A lady, whose mahr was Rs.50,000, received from her husband during his lifetime sums of money in the aggregate exceeding the mahr settled on her. The largest of such payments was Rs. 3,000. There was no evidence that these payments were intended by the husband to satisfy the doer debt. The question arose whether these payments satisfied the husbands obligation. The Judicial Committee held that such payments were not to be treated as having been made in satisfaction of the dower debt.12

Non-payment of Prompt Dower:

If the husband refuses the pay prompt dower, the guardian of a minor wife has the right to refuse to allow her to be sent to the husbands house; and similarly, the wife may refuse the husband his conjugal rights, provided no consummation has taken place. The wife is under Muhammedan Law entitled to refuse herself to her husband until the prompt dower is paid; and if in such circumstances she happens to reside

12

Mohammad Sadiq v. Fakr Jahan (1931) 59 I.A. 19.

apart from him, the husband is bound to maintain her.13

This right of refusing her is, however, lost on consummation.14 Thus if the husband files a suit for restitution of conjugal rights before cohabitation, non-payment of prompt dower is a complete defence; but after cohabitation, the proper course is to pass a decree for restitution conditional on the payment of prompt dower. This was laid down in the leading case of Anis Begam v. Muhammad Istafa Wali Khan.15

Non-payment of Deferred Dower: The non-payment of deferred dower by its very nature cannot confer any such right of refusal on the wife. The right to enforce payment arises only on death, divorce or the happening of a specified event. The dower ranks as a debt and the widow is entitled, along with the other creditors of her deceased husband to have it satisfied out of his estate. Her right, however, is the right of an unsecured creditor; she is not entitled to a charge on the husbands property, unless there be an agreement. The Supreme Court of India has laid down i.That the widow has no priority over the creditors, but ii. That mahr as a debt has priority over the other heirs claims.16 And the heirs of the deceased are not personally liable to pay the dower; they are liable rateably to the extent of the share of the inheritance which comes to their hands.

Nur-ud-din Ahmad v. Masuda Khanam PLD 1957 Dacca 242; Muhammadi v. Jamiluddin PLD 1960 kar 663
13 14

Lahore it has been held that consummation does not deprive the wife of her right to refuse conjugal relations if the prompt dower is not paid, Rahim Jan v. Muhammad, PLD 1955 Lahore 122; per contra, Rabia Khatoon v. Mukhtar Ahmad AIR (1966) All. 548, which, it is submitted is the correct view. 1933) 55 All. 548. This case is of great importance as Sulaiman C.J. has carefully considered and criticized certain dicta of Mahmood J. in the leading case of Abdul Kadir v. Salima (1886) 8 All. 149
15 16

Kapore Chand v. Kadar Unnissa [1950] S.C.R. 747.

CHAPTER 5: NATURE OF DOWER:

The nature of dower may best be described by justice Mahmood in the case of Abdul kadir v Salima17. He observed that in Islamic law dower is a price paid or promised to the wife and it is a price paid in relation to a contract ..hence it is a sale price only. This has a strong resemblance to the roman concept of donatio propter nuptias which also subsisted in the English common law under the name of marriage settlement. This approach was strongly criticized by Ameer Ali and Sir Sulaiman shah in anees begum v Mohd.Istefa18 and in Wajid ali khan case:19 He observed: it is quite obvious that the analogy of sale cannot be carried too far. The marriage cannot be regarded as purely a sale of the person by the wife in consideration of payment of dower. The most widely accepted nature of dower is that given in the book of fatwa-I alamgiri calling it not a sale price but also a mark of respect on the basis of Koran(iv:4)as said by prophet himself. One more important aspect of dower is that The Mysore and Allahabad High Courts have decided that the right of dower is both heritable and transferable;20 but the Patna High Court has held that the widows is a personal right, and not a lien, and as such, it is not transferable21. Although there is a conflict of opinion, in view of Kapore Chands case, the balance of authority seems to be in favour of the Patna view.
(1886)8 ALL 149. Ameer ali Mohammedan law pg 111. 19 Wajid ali khan v shaujat khan (1912)15 oudh cases 127. 20 Hussain v. Rahim Khan AIR (1954) Mysore 24; Zaibunnissa v. Nazim Hasan AIR (1962) All. 197 21 Zobair Ahmad v. Jainandan Prasad AIR (1960) Pat. 147
17 18

CONCLUSION:

In conclusion, all that can be said is that Mahr is a mandatory gift given by the groom to the bride. Unlike a bride price, however, it is given directly to the bride and not to her father. Although the gift is often money, it can be anything agreed upon by bride and groom such as a house or viable business that is put in her name and can be run and owned entirely by her if she chooses. In todays terms, it has taken a very wide scope and many important constitutional questions have also cropped up. However, in my opinion, even though Dower serves as security for the girl, it should entirely be scrapped. Infact, all personal laws should be scrapped and a uniform civil code should be brought in. This shall make the Indian Society live in a state of perfect harmony.