Dower in English Law is defined as the portion which a widow hath of the lands of her husband at his decease, for the sustenance of herself and the education of her children.
In Mohammedan law, this term is explained as the money paid by the intended husband to wife at the time of marriage and in consideration of marriage.
To know about dower, at first we must know about marriage and conditions of marriage in Mohammedan Law.
MARRIAGE AND ITS CONDITIONS IN MOHAMMEDAN LAW
Section 250 of the Mohammedan Law defines marriage as a contract that has for its object the procreation and legalizing of children.
In the landmark case Abdul Kadir v. Salima, it was observed that marriage in Islam is a civil contract and not a sacrament.
CONDITIONS OF A MUSLIM MARRIAGE
- There must be a proposal made by or on behalf of one of the parties.
- There must be an acceptance of that proposal by the other party.
- The parties must be competent, i.e.,
- The parties must not be minor.
- They must be of sound mind.
- They must be Muslims.
- There must be free consent for marriage.
- Presence of witnesses during such proposal and acceptance.
From the above-mentioned decisions and conditions laid down to constitute a valid marriage among Muslims, it can be said that marriage among Muslims is a contract and not a sacred union.
So, from the above-mentioned conditions, it is clear that to constitute a valid marriage, a Muslim man must give the consideration amount or Dower to his wife.
Now, Section 285 of the Mohammedan Law states dower as a sum of money or other property which the wife is entitled to receive from her husband in consideration of marriage.
CLASSIFICATION OF DOWER
There are 2 classifications of Dower-
- Specified Dower
- Proper Dower
When the sum of that same dower is determined by the members either during or once nikah is over, it shall be referred specified dower. The agreement of the dower can be rendered by the parent (always males) in the stated dower. Among the Sunnis, the father is not personally liable for the dower debt even if he consented to the marriage.
This is a settled principle in Muslim Law that the husband can settle for any amount for Mahr but it must not be less than 10 Dirhams.
When the dower is payable immediately after the marriage or at any time when demanded by the wife. So, a prompt dower is payable on demand. A prompt dower can be realized before or after the consummation. It doesn’t get deferred after the consummation of the marriage. In a prompt dower, the wife can sue the husband for recovery of the dower even after the consummation of the marriage. Unless the marriage is consummated, the husband is entitled to enforce conjugal rights only after the payment of prompt dower.
In Rabia Khatoon v. Mukhtar Ahmed, the Hon’ble Allahabad High Court held that the wife may refuse to live with her husband and admit to sexual intercourse till the prompt dower is paid. It further held that the prompt dower is payable on demand and no proof of sexual intercourse is necessary between the parties for the claim of payment.
When a dower is not payable immediately after the consummation of marriage and becomes payable only after-
- The occurrence of a certain incident.
- After the expiration of a particular period.
- After the dissolution of marriage either-
- By death
- By divorce.
The Court in Masthan Sahib v. Assan Bibi says that when it is not settled whether the dower shall be prompt or deferred, then the whole dower shall be regarded as a prompt dower.
The rule is to regard one part as prompt and another as deferred. Such proportion is preferable to each class by the customs in which they are regulated. However, the Court in Husein Khan v. Gulab Khatun, held that it has the power to award the entire dower as a set-off.
Section 336 of the Mohammedan Law speaks of the rights and obligations of parties in a divorce. Sub-section (2) of the said section states that if the marriage was consummated, then during divorce the whole unpaid dower becomes immediately payable, whether prompt or deferred.
In Tajbi v. Nattar Sherif, the Court held that the woman is entitled to half of such amount.
If no amount is specified in the contract then all she is entitled to be a present of three articles of dress.
If the dissolution of marriage is due to apostasy of the wife, then she is entitled to receive the whole amount, if the consummation of marriage took place.
The wife can demand payment of proper dower. Generally, it is given taking into consideration such as qualification of wife, wife’s age, beauty, the social position of the family, the economic status of the husband. Under Shia law, the maximum amount of proper dower is 500 Dirhams.
REMISSION OF DOWER BY WIFE
After the marriage, the right to dower immediately vests upon the wife. However, after such rights vests on the wife, it is up to her whether she enforces it on her husband or not. She has the power to remit or relinquish such right to the husband. So, a wife may be out of love or to gain the affection of her husband can remit such right to the husband.
Therefore, a wife in Muslim law can remit back her right to dower to her husband but while doing so, there must be some conditions fulfilled-
- The wife must be sane and must have attained the majority at the time of such remission of dower. A minor cannot remit her right to dower. The High Courts of Madras and Patna in cases Ali Dhunimsa v. Mahommad&Najmunissa v. Serajuddin Ahmed respectively, were of opinion that remittance of the right of dower by a wife who is minor according to the Indian Majority Act is invalid, even if in Mohammedan Law she has attained majority.
- However, the Allahabad High Court dissented with this judgment in the case of Qasim Hussain v. Bibi Kamiz and held that since the Indian Majority Act doesn’t affect a minor in view of the Indian Majority Act.
Therefore, from the above study, it may be concluded that a Dower or Mahr is one of the conditions to constitute a valid marriage. Though marriage among Muslims is a civil contract, the practice of dower is not entirely essential in a Muslim marriage. Even if there are conditions specified in the marriage contract that the wife shall not demand dower, she still is entitled to demand for dower. Dower can also be interpreted as financial support to the wife and she has an absolute right over the entitlement of dower. It can also be claimed by her in a Court of law. The concept of Dower strengthens the position of a Muslim woman in society.
Author(s) Name: Arka Ray (Surendranath Law College, University of Calcutta)
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