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RESEARCH METHODOLOGY:

Area: Muhammedan law.

Topic:the concept of dower.Objective: the main objective of this project topic is to criticallyanalyze the concepts underlying the Islamic concept of dower (mahr)and to focus on the intricacies of the topic vis-à-vis religious andsocial 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 thelast 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: introductionChapter 2: definition.

Chapter 3: types of dower.

Chapter4: nonpayment of dower .

Chapter 5: nature of dowerConclusion.





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 ma hr 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 wife‟s 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

2 Robert Smith, Kinship, 93 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (OxfordUniversity Press, 4th Edition, 2002) p.132

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



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 Mussu lman 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 widow‟s lien for dower, and this is the only creditor‟s lien of the

Mussulman law which has received recognition in the British Indian Courts and

at this Board.‟

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

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

at 127



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 stressupon 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 husband‟s obligation .

Furthermore various sources of muhammedan law has recognized other forms of

dower such as:

1) A handful of dates(abu daud).2) A pair of shoes(tirmizi).3) If husband is slave then services to wife(mohit sarkshee).4) 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 (mu„ajjal) or deferred (muwajjal, strictly mu‟ajjal).

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 - mu„ajjal, 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 father‟s 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 son‟s mahr. Accordingly each

heir was made responsible for a portion of the wife‟s 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 father‟s 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.

8 Ameer Ali calls it the „customary‟ dower.

9 This has been emphasized by the Privy Council in Syed Sabir Husain‟s 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 (mu„ajjal) 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 mu„ajjal. It is derived from a root meaning „ to hasten, to precee d‟. The term

mu„ajjal, therefore, means „ that which has been hastened or given a priority in point oftime‟. The term mu‟ajjal, however, means „delayed, deferred‟, and comes from a root

which means „to delay or postpone‟. Written in th e 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 andto 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 awarded11

but a recent Full Bench decision lays down first, that where the kabin-nama is silent onthe question, the usage of the wife‟s family is the main consideration; and secondly, that

10 Syed Sabir Husain‟s Case, (1937) 65 I.A. 119

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



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

husband‟s obligation. T he 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 husband‟s 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 promptdower 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 thehappening 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 husband‟s 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.

13 Nur-ud-din Ahmad v. Masuda Khanam PLD 1957 Dacca 242; Muhammadi v. Jamiluddin PLD 1960 kar663

14 Lahore it has been held that consummation does not deprive the wife of her right to refuse conjugalrelations 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.

15 1933) 55 All. 548. This case is of great importance as Sulaiman C.J. has carefully considered andcriticized certain dicta of Mahmood J. in the leading case of Abdul Kadir v. Salima (1886) 8 All. 149

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 Salima 17. 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.Istefa 18 and in Wajid ali khan case: 19

He observed:” it is quite o bvious 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 Court‟s

have decided that the right of dower is both heritable and transferable; 20 but the Patna

High Court has held that the widow‟s is a personal right, and not a lien, and as such, i t

is not transferable 21. Although there is a conflict of opinion, in view of Kapore Chand‟s

case, the balance of authority seems to be in favour of the Patna view.

17 (1886)8 ALL 149.18 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. 19721 Zobair Ahmad v. Jainandan Prasad AIR (1960) Pat. 147



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 andgroom 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 today‟s terms, it has taken a very wi de 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.

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