Durjo y's research on Dower rights of bd women

1

Research Monograph

On

Dower Right of Muslim Women in Bangladesh: An Overview in

Quest of the Reality

Submitted To

Fariduddin Noman

Assistant Professor, Department Of Law

Premier University, Chittagong

Submitted by:

Student Name : Durjoy Barua

Student No : 201672516

Batch : 17th

(LL.M)

Session : 2015-2016

Submission Date : 25-09-2016

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Table of contents

Page no

Acknowledgment 5

Letter of Transmittal 6

Student Declaration 6

Abstract 7

Acronyms 8

Keywords 8

Chapter 1: Introductory chapter 9

1.2 Dower 9-10

1.3 Definition of Dower 10

1.4 Aims and Objectives of the study 11

1.5 Methodology of the study

1.6 Research Questions

3

Chapter 2: Islamic background and custom of Dower

2.2 pre-Islamic backgrounds

2.3 custom of Dower

Chapter 3: Ramification of Dower

3.2. Specified dower

3.2.1 Prompt Dower

3.2.2 Deferred Dower

3.3 Unspecified Dower

Chapter 4: legal provision regarding to the Dower

4.2 Muslim Family Laws Ordinance, 1961

4.3 The Family Courts Ordinance, 1985

4.4 Muslim Marriages and Divorces (Registration) Act, 1974

Chapter 5: Dower rights as the Muslim women in Bangladesh

5.1 Rights as wife on non- payment of dower

5.2.1 Refusal to cohabit

5.2.2 Right to dower as a debt

5.2.3 Right to retain possession in lieu of unpaid dower

5.2.4 Widow in possession liable to account

4

5.2.5 Non-payment of Prompt Dower and Restitution of Conjugal Right

5.2.6 Suit for Dower and Limitation

5.3 Dower rights under Islamic Saria law

5.3.1The Quran

5.3.2 Sunnah

Chapter 6: Reality of dower in Bangladesh

6.2 The real scenario

6.3 Problems Faced by Women in Recovering Dower in Practice

Chapter7: Concluding remarks and recommendation

7.2 Survey questions

7.1 Recommendations

7.3 Conclusions

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Acknowledgment

I would like to express my profound respect and heartiest thanks to all my teachers for their

endless support to build up my academic carrier. My profound gratefulness goes to Mr. Farid

Uddin Noman, Assistant Professor, Department of Law, Premier University Chittagong, my

supervisor of this paper whose supervision helped me in completing this paper.

My profound gratefulness and special thanks goes to Mr. Durjoy Barua, my senior elder brother

at premier university, whose inspiration always stimulated me to do this work.

Furthermore, I wish to acknowledge the personal support of many friends during recent years

through their loyal friendship. Most of all, I would like to thank my parents. Their strong and

continuous encouragement, their exceptional and tireless support and their caring love laid the

groundwork for my endeavors.

Your faithful

Mr. Durjoy Barua

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Letter of Transmittal

Dear Sir,

It is an extensive pleasure for me to submit the research monograph on the topic of “Dower

Right of Muslim Women in Bangladesh: an Overview in Quest of the Reality”. While

preparing this research paper, I have tried my level best to maintain the required standard. I hope

that this paper will fulfill your expectation.

I, therefore, pray and hope that you would be kind enough to go through this research paper for

evaluation. I am always available for any further clarification for any part of this research paper

at your convenience.

Mr. Durjoy Barua

Student Declaration

I am Durjoy Barua student of Premier University Chittagong, Chittagong, Bangladesh do hereby

solemnly declare that this research paper is prepared for fulfillment of the course “Research

Monograph”

Durjoy Barua

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Abstracts

Dower is a woman's right to marital property. In practice, often a woman in Bangladesh does not receive her legal

right of dower from husband due to various reasons, 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 or other items at the time of marriage, the customary practice to waive dower in the wedding night,

hidden intention to deprive the bride from property rights, lack of husband's sense of responsibility towards the

payment of dower, dower is being curtailed by turning a talaq case into khula where the woman has to sacrifice her

right of dower in exchange for a divorce etc. In this way, the cases of dower are influenced by social practice and

the question of payment arises only at the time of divorce. Consequently, a woman loses her property rights which

she is entitled to both under the Shariah and statutory laws.

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Acronyms

DR Dower rights

PD prompts Dower

CrPC Criminal Procedure Code (Bangladesh)

DMMA Dissolution of Muslim Marriages Act, 1939 (Bangladesh)

MMDRA Muslim Marriages and Divorces Registration Act, 1974 (Bangladesh)

MWRAF Muslim Women‟s Research & Action Forum

SMA Special Marriages Act (1872 Bangladesh)

WLUML Women Living Under Muslim Laws

WRAG Women‟s Research & Action Group

WWHR Women for Women‟s Human Rights

Keywords

Dower, rights, ramification, background, custom, Quran, reality, problem, questions,

scenario,

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Chapter 1

Introduction

“Dower” under the Muhammadan law, is a sum of money or other property promised by the

husband to be paid to the wife in consideration of the marriage, and even where no dower is

expressly fixed or mentioned at the marriage ceremony, the law confer the right of dower upon

the wife as a necessary effect of marriage. To use the language of the Hedaya, the payment of

dower is enjoyed by law merely as a token of Respect for its object wherefore the mention of it is

not absolute essential to the validity of marriage and for the same reason a marriage is also valid,

although a man were to engage in the contact on the special condition that there should be no

dower.1

There are other areas of Muslim personal law where the higher courts have given legal protection

to women against coercion, undue influence or exploitation at the hands of their male activities.

Under the pre-Islamic law of inheritance, all female relations, mothers, widows, daughter, were

excluded from succession to the estate of the deceased. The Islamic law made the females co-

inheres with the male.2

1.2 Dower

Non-payment of prompt dower on demand enables a wife to live separately from her husband

and yet claim maintenance. Subsequently, the wife petitioner for divorcee under section 2 (2) of

1 Rashid‟s syed Khalid, (2004), Muslim law, Lucknow, Eastern book company, P. 84.

2 Serajuddin Alamgir Muhammad, (2011), Muslim family law, secular courts and Muslim women of south Asia,

Karachi, Oxford university press, P. 112.

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the dissolution of Muslim marriage act, 19393 on the ground that the husband had failed to

maintain her for a period of two years. The question that the court was required to decide was

whether a wife is entitled, even after consummation of the marriage to refuse to live with her

husband on the ground that her prompt dower has not been paid. While dealing with the same

question in Smt. Rabia Khatoon ,4 an Allahabad decision, we have noticed that Imam Abu Hanif

was of the opinion of that the wife is entitled at any time to refuse to live with her husband until

her prompt dower is paid. On the other hand, his two disciples held that the wife‟s right to refuse

to live with her husband is lost on the consummation of marriage.

1.3 Definition of dower

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 Abdur Rahim, it is either a sum of money or other form of property to which the

wife becomes entitled by marriage. It‟s an obligation imposed by law on the husband as a mark

of respect for the wife.6

According to Dr. Jung defines, “Dower” as 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 of Buza, the right of enjoyment itself.7

3 Section 2(2), The dissolution of the Muslim marriage act, 1939.

4 Smt. Rabia Khatoon v Muktar Ahmed, AIR 1966 All. 548.

5 Muslim family laws ordinance, 1961


7 Aqil Ahmed, Mohammedan Law, 21

st ed. (Allahabad: Central law Agency, 2004).

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1.4. Aims and Objectives of the study

The main objective of this study is to analyze the significant role of Dower of Muslim women in

Bangladesh. In this regard my aims and objectives of the study may go through as follows:

a) To give a brief idea about Dower.

b) To give an idea about the reasons behind the Dower right.

c) To find out actual nature of dower in our society.

d) To analyze the quest of the dower in Bangladeshi women

1.5 Methodology of the study

This study is combine result of qualitative research and empirical analysis. This study is based on

both primary and secondary data. Primary data of the study are from related statutes and reported

case decisions. Related journal articles, newspapers, periodicals, text-books and training

workshop and considered as secondary data for this study. The collected data have been

processed and prepared in the present form in order to make the study more informative,

analytical and useful for the users.

I also take help from various website in internet as a secondary source. And finally I have tried to

reach the ultimate object of this study.

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1.6 Research Questions

The research is conducted to find out answers of the following research questions:

Whether Dower has significant positive consequences of Muslim women after her

divorce?

How concern as a husband dower is the right of his wife?

Is there any negative outcome of Dower?

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Chapter 2

Islamic background and custom of Dower

Dower in the present form was introduced by the prophet Mohammad and made obligatory by

him in the case of every marriage. “Dower” in Muslim law is somewhat similar to the demotion

proper nuptials in Roman law. The important difference however, is that while under the Roman

law it was voluntary, and under the Muslim law it is absolutely obligatory.

2.2 Pre- Islamic background

In the regular form of marriage, as distinguished from the marriage by capture, the fixing of

dower was in vogue. Sometimes the guardian of bride used to take the dower himself, but it is

not certain whether it was a mere violation of the usage that the bride should take the dower, or

whether is shows that dower was the originally price paid for the bride to her parents. The term

mahr was originally used to signify gift given to her parents of the wife while sadka was a gift to

the wife herself. The sadka or dower which was paid in case of regular form of marriage was

approved by Islam. The Koran says, “And gives women their dowers freely.”8

2.3 Custom of dower

Dower is an essential incident and fundamental feature of marriage with the result that even if

no dower is fixed the wife is entitled to some dower from the husband. The marriage is valid

even though no mention of dower made by the contracting party. In Hassina Bibi v. Zubaida

Bibi, the Judicial committee held that- “Dower is an essential incident under the Muslim law


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the status of marriage, to such an extend 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.9

In abdul Kadir v. Salima Mahmood. 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.10

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 prompts dower proceeds cohabitation.11

9 Hassina Bibi v. Zubaida Bibi, (1916) 43 I.A. 294

10 Abdul Kadir v.Salima, I.L.R (1886) 8All 149

11 Smt. Nasra Begum v. Rigwan Ali, AIR 1980 All:119

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Chapter 3

Ramification of Dower

Broadly, there are two kinds of dower; (1) specified and (2) unspecified. But the specified dower

has been further divided into, (a) prompt and (b) deferred dower.

3.2. Specified dower

An amount settled by the parties at the time of marriage or after is called specified dower. If the

bridegroom is minor his father my settled the amount of dower. Hanafi law says that the father is

not personally liable for the dower but according to Shia law he will be so liable.12

The husband bound to pay the specified dower, however excessive or beyond the reach it may

be. In Oudh, however, the excessive amount may be curtails to a reasonable amount.

The specified dower has been further divided into

(a) Prompt and

(b) Deferred.

3.2.1 Prompt Dower

It is payable immediately after marriage on demand. 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

12

Syed sabir Husain v. farzand hasan, (1937) 65 1A 119, where a Shia father property was attached to pay the

dower of his minor son

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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 before or after the marriage. The wife may refuse herself to

cohabit with her husband, until the prompt dower is paid. If the wife is minor, her guardian

may refuse to allow her to be sent to the husband‟s house till the payment of prompt dower. In

such circumstances, the husband is bound to maintain the wife, although she is residing apart

from him. It was held in Bibi Rehana Khatun v. Iqtidar Uddin Hassan, that the prompt portion

of the dower may be realized by the wife at any time before or after consummation.13

Under the customary law if the prompt dower is not paid on demand, the wife has a right to

refuge conjugal rights. In that case where the marriage has not been consummated, she can

successfully resist the suit for restitution of conjugal rights, but where consummation has taken

place, her refusal extends only to the point of payment of prompt dower the court will grant a

decree condition to the payment of dower. Prompt dower in full amount can be recovered by

the wife even after the death of her husband it will be charged on his estate. As regard quantum

of the prompt dower, it may be divided into specified and unspecified. The general custom

regarding the unspecified prompt dower is to consider half of the total amount of dower settled

at the time of marriage as the portion referable to prompt Mahr. Even when the Kabinnama is

silent as regard as nature of the dower, the court has considered the half of the whole dower as

prompt.14

13

Bibi rehana khatun v. Iqtider uddin Hassan, 1943 All LJ 98

14 Nasiruddin Shah v. Amatul Mughni Begum, ILR 1947 Lah 565

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3.2.2 Deferred Dower

The wife is not entitled to demand payment of deferred dower, but the husband can treat it as

prompt and pay or transfer the property in lieu of it such a transfer will not be void as a

fraudulent preference unless actual insolvency is involved. The widow may relinquish her

dower at the time of her husband‟s funereal by the recital of a formula. Such a relinquishment

must be a voluntary act of the widow. The interest of the wife in the deferred dower is a vested

one and not a contingent one. It is not liable to be displaced by the hampering of any event, not

even on her death; as such her heirs can claim the money if she dies. The deferred dower is

payable on the dissolution of the marriage by death or divorce.15

3.3 Unspecified Dower

In such cases where dower has not been settled at the time of the marriage or after it is fixed

with reference to the social position of the wife family and her own personal qualification. Help

would be taking into account of amount of dower fixed in case of wife sister, parent‟s aunt, etc,

and according to the Hedaya, the wife age, beauty, intellect and virtue will be also considered.

Such dowers are called Mahr-ul-misl.16

15

Rashid‟s syed Khalid, (2004), Muslim law, Lucknow, Eastern book company, P. 85.

16 Shaukt Mahmood, Principles and Digest of Muslim Law, 6

th ed. (Lahore: Legal Press Centre, 2002).

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Chapter 4

Legal provision regarding to the Dower

Our legal system consists of the general law and the personal or family law of various religious

communities. The diversity of this system was created by the interference from the British

colonial‟s rulers and by codification of general law. Personal laws based on religion are the

only law which is different from different communities. The general law in most instances

could be said to be based on egalitarian principle of sexual equality but the personal or family

law based on religion does not operate on the basis of post enlightenment nation of equality of

man and women.17

4.2 Muslim Family Laws Ordinance, 1961

Section 5 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 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. High dower is fixed to

prevent the husband from divorcing the wife capriciously.18

4.3 The Family Courts Ordinance, 1985

The establishment of family court ordinance, 1985 was a significance step in legal reform with

reference to the legal status of women.19

Subject to the provisions of the Muslim Family Laws

17

Monsoor taslima, Patriarchy to Gender Equity, Family law and its impact on Women in Bangladesh, University of

London, 199 4, Dhaka university Press

18 Section 5, The Muslim family laws ordinance 1961

19 Published in Bangladesh gazette on 30.3.1985

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Ordinance, 1961, a family court shall have exclusive jurisdiction to entertain, try and dispose of

any suit relating to dower. It was held in Shafiqul Huq (Md) v. Mina Begum,20

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. Elias that the court has no right no right

to reduce the prompt dower unless the wife remits it voluntary.

4.4 Muslim Marriages and Divorces (Registration) Act, 1974

Muslim marriage and divorces (registration) Act 1974 clearly describe as dower rights toward

the Muslim women. Dower in a Muslim marriage forms an inseparable part of the terms of the

kabinnama and thuse as the kabinnamas 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.21

20

54 DLR 481, ibid, p.20 21

Obaidul Huq Chowdhury, Muslim Law, 6th

ed. (Dhaka) Al-Yakub Press)1943, p.128

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Chapter 5

Dower rights as the Muslim women in Bangladesh

In the first place the present wife, whose expenses have been declared as wholly a liability of

the husband by Shariat, is as much women as the one divorcee. So the attempt to help women

who has been divorced and paid her dower and deprive the present wife of her due share is

like trying to rob peter to pay Paul. 22

5.2 Rights as wife on non- payment of dower

Muslim law confers upon a wife or (widow) the following three rights to compel payment of

her dower.23

(a) Refusal to cohabit

(b) Rights to dower as a debt

(c) And, right to retain her decreased husband property.

5.2.1 Refusal to cohabit

If the marriage has not been consummated, the wife has right to refuse to cohabit with her

husband to long as the prompt dower is not paid. In the case of a wife who is a minor or

insane, her guardian has right to refuges her sent her to husband till payment of prompt

dower. During her such a stay in her guardian husband is bound to maintain her.24

22

Serajuddin alamgir Muhammad, Muslim family law, secular courts of Muslim women in south Asia,(2011) oxford

university press, P. 112

23 Khan Prof. I.A,(2009) 23ed, Mohammedan law, Allahbad-2, central law agency, P. 156

24 Khan, Prof. A.I. abid, P. 157

21

The absolute right of the wife to insist on payment of the prompt dower before giving him to

access to her, is lost after the consummation of the marriage.25

After consummation the

husband in his suits for restitution of conjugal rights upon her refusal can secure only a decree

condition on payment of dower. It was held in Abdul kadir v. salima, that the effect of non-

payment of prompt dower is that the wife can refuse to cohabit or refuse to live with the

husband.26

5.2.2 Right to dower as a debt

The dower ranks as a debt and widow is entitled along with other condition to have it satisfied

on the death of the husband out of his estate. If the husband is alive, the wife can recover the

dower by a insisting a suit against him. After the dearth of his husband, dower debt remaining

as unpaid, the widow can enforce her claim for dower debt by filing a suit against his heirs.

The heirs of the decreased husband are however, not personally liable for the dower of debt.

They are liable to the extent to which and in the proportion in which they inherits the property

of decreased husband. If the widow is in possession of her husband property under a claim her

dower, other heirs of her husband are severally entitled to recovers their respective share upon

payment of quota of the dower debt proportionate to those share. 27

5.2.3 Right to retain possession in lieu of unpaid dower

Dower ranks as a debt, and the wife I entitled along with other creditors, to have it satisfied

on the death of the husband out of his estate. Her rights, however is not greater than that of

any other unsecured creditor except that if she lawfully obtain possession of the whole or part

25

Hamidunissa Bibi v. Zaheer sheik, 17 CAL 670

26 AIR (1886) 8 ALL.149

27 Khan Prof A.I, abid, P. 158

22

of this estate, to satisfy her claim with the rent and issues accruing therefore she is entitled to

retain such possession until it is satisfied.28

If the widow has lawful and without force or fraud obtains in lies of her dower actual

possession of the property of the decreased husband she is entitled to retain that possession

against other heirs and as against other creditor of her husband until her dower is paid.29

This

right of retention does not give her any title to the property; therefore she cannot alienate the

property. The right to retain possession of husband estate till payment of dower also arises

after divorcee. In no case it arises during the continuance of the marriage. A widow rights to

retain possession of her husband estate in lies of her dower, is for a special purpose. It is by

way of compulsion to obtain speedy possession or has lost possession; she cannot claim to

obtain it. Because her right to retain is not in the nature of a charge on the property like

mortgage but a personal rights against the heirs and creditors of her deceased husband.30

5.2.4 Widow in possession liable to account

It was held in Shaik salima case, that „widow in possession in her husband in lies of dower

debt is liable to account to other sharers in income from such property in her possession. 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

entitled in that case to compensation for forbearing to enforce her right to the dower debt.31

28

Hamira bibi v. Zubaida bibi, ILR (1916) 38 ALL 581

29 Babee Bachum v. Hamid Hossain, (1871) 14 MIA 377 and Bibi V Chaudhury Vakil Ahmad (1924) 521A 145

30 Khan Prof A.I ,Abid, P. 159

31 Sheik salma v. Muhammad abdul kader, AIR 1961 A.P 428

23

5.2.5 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 defense 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, this was held in Abdul Kadir v. Salima.

5.2.6 Suit for Dower and Limitation

If the dower is not paid to 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.32

The period of limitation for

a suit to recover “deferred” dower is three years from the date when the marriage is dissolved

by death or divorce. Where, however, prompt dower has not been fixed, a demand and refusal

is not a condition precedent for filing a suit for its recovery.33

5.3 Dower rights under Islamic Saria law

Dower rights under islamic saria law as follows

5.3.1The 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

32

Family Suit No. 193 of 1989 (Unreported), as cited by Taslima Monsoor, ibid, p.204

33 Khan Prof A.I abid, P. 163

24

portions”. (Surah an-Nisa, 4: 4)34

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.

In this short sentence the Holy Quran has referred to three basic points: Firstly it has used for

marriage portion or the dower the word, saduqatehinna meaning truthfulness and sincerity and

not the word mehr. Thus, the dower is a symbol of the cordiality of the man paying it. This

point has been expressly mentioned by a number of the commentators of the

Holy Quran, such as Zamakhshari, the author of the well-known commentary, the Kashshaf

Similarly. The dower has been called saduqah because it is a symbol of the sincerity of faith.

Secondly, it is clear from the above verse of the Quran that the dower is to be paid directly to

the woman, and her parents have no claim to it. It is not a compensation for the efforts made

by them to bring up their daughter.

The Holy Quran abolished many pre- Islamic Arab customs connected with dower and

restored it to its natural and deserving pristine form. According to the Islamic traditions not

only a father has no claim to any part of the dower of his daughter, but it is also not

permissible to include, in the marriage agreement, a condition that apart from dower anything

additional would be paid to him. In other words, a father is not allowed to derive any financial

gain out of the marriage of his daughter.

Islam also abolished the custom according to which a man worked for his prospective father-

in-law when money had not yet become a medium of exchange. This custom did not come

into existence simply because the fathers wanted to benefit through their daughters. There

were other reasons also, which were characteristic of the age and were not necessarily unfair.

Anyhow, there is no doubt about the existence of such a custom in the ancient world.

34

Surah an-Nisa, 4: 4

25

Anyhow, Islam has done away with this custom, and now the father of the woman has no

claim to the dower, even if he wants it for spending it on his daughter. Only the woman

herself has full rights to spend it as she likes.

The Holy Quran did away with this custom also. It says:

“You who believe!, It is not lawful for you to inherit women forcibly” (Surahan-Nisa, 4: 19)35

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” (Surahan-Nisa,4 : 22).

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.36

5.3.2 Sunnah

A hadith of the Prophet Muhammad May peace be upon him 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 (in another narration 4000 dirham‟s). Then he sent her to the Prophet with

Shurahbil-bHasanah. (Abu Daud; Nisai)

35

Surahan-Nisa, 4: 19

36 https://en.wikipedia.org/wiki/Women_in_Islam, (accessed on 23-9-1016)

https://en.wikipedia.org/wiki/Women_in_Islam,%20(accessed

26

Anas retorted that the Messenger of Allah emancipated Safiyyah and married her and made

her emancipation a dower. (Bukhari arid 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.

Oqbah-b-Amer reported that the Messenger of Allah said, the most equitable of the conditions

(of marriage) is that you should fulfill that (Dower) with which you have made private parts

lawful. (Bukhari and Muslim)

Jaber reported that the Messenger of Allah said: whoso gives two handful of barley or dates

as dower of his wife has rendered (marriage) lawful. (Abu Daud)

Sahl-b-Sa‟ad reported that a woman came to the Messenger of Allah and said: O, Messenger

of Allah, I offer myself to you. She then kept standing for a long time. A man got up and said;

O, Messenger of Allah! Marry her to (me) The Prophet said: Have you got with you anything

which we may give to her as dower? He said; I have nothing but this trouser of mine. The

Prophet said: Seek, though it be a ring of iron. Then he searched but did find nothing. The

Prophet asked: Have you got any portion of the Qur‟an with you? „Yes‟, said he „such and

such a verse.‟ He said: I give her in marriage to you for what is with you from the Qur‟an (So

teach her something from the Qur‟an). (Bukhari, Muslim)

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

27

dirhams. He then descended from the pulpit. There and then came a woman of Quraish and

said: O Umar! Have not you heard the word of God (in Al-Qur‟an 4:20)37

. 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.38

The Sunnah has laid down the following rules and regulations regarding Hag Mohr or dower

the payment of which by the husband to the wife is obligatory.

Payment of the Mahr (dower) to his wife is obligatory on the husband. It is an essential part of

marriage. The Qur‟an says: “O Prophet! We have made lawful to thee thy wives to whom

thou have paid their dowers”- (33:50). At another place the Qur‟an says: And there is no

blame on you to marry them when you give them their dowries”- (60:10). However, the

marriage is not invalid if dower is not paid or contracted or fixed before marriage. It is

apparent from verse No. 236 of chapter 2 of Al-Qur‟an, which reads: “There is no blame on

you if ye divorce women before consummation or the fixation of their dower; but bestows on

them a suitable gift.” Even in such case something is to be paid.

The amount of dower which the bridegroom has to give to his bride has not been fixed by the

Qur‟an or Sunnah. It depends entirely on the agreement of the contracting parties The

Qur‟an says:” The wealthy according to his means and the poor according to his means; a gift

of a reasonable amount, is due from those who wish to do the right things”- (2:236)

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

37

Al-Qur‟an 4:20

38 http://www.muslimtents.com/shaufi/b2/b2_06.htm, (accessed on, 20-9-2016)

http://www.muslimtents.com/shaufi/b2/b2_06.htm

28

(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 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 HolyQuran by the husband to the wife was declared to be an adequate Mahr for

the bride.

No maximum or upper limit of mahr or dower has been fixed by Islam either. The

Quran says: “But if ye decide to take one wife in place of another, even if ye had given the

latter a whole treasure for dower, take not the least bit of it back”- (4:20). From this verse the

jurists of Islam have deduced that the right of a woman to demand any amount of dower as a

condition of her agreeing to marriage is not restricted by the Islamic Law. Hazrat Umar, the

second pious caliph of Islam, once thought of fixing the upper limit of dower on the

complaint of the men that the women were demanding fantastic amounts; but he was

dissuaded by a woman who drew his attention to verse of the Holy Quran quoted above.

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 (Al-Quran

2:236). But if he divorces her before touching her and after fixing the amount of dower for

her, he is bound to give half of the amount of dower which has been fixed. However, if the

woman agrees to forgo her rights of accepting this half dower or the man shows generosity in

giving her full dower, such an accord is permitted. (Al-Quran 2:237)39

39

Al-Quran 2:237

29

The men should give to their wives their dower willingly. But if the women of their own

accord agree to remit the whole or part of their dower, the husbands are welcome not to pay it

(Al-Quran 4:4). Hazrat Umar and Qazi Shuraih have decreed that if a wife remits the dower

but later on demands it, the husband shall be compelled to pay it because the very fact that she

demands it‟ is a clear proof that she did not remit it of her own free will. According to verse

no. 24 of Surah Al-Nisa, dower has to be paid as a duty.40

40

http://www.islamawareness.net/Women/naik_women.html, (accessed on, 23-9-2016)

http://www.islamawareness.net/Women/naik_women.html

30

Chapter 6

Reality of dower in Bangladesh

Despite of woman's participation in the socio-economic and political development, woman has

less access to enjoy their money, especially in their property rights. Instead, woman and her

family continue to be deprive and victim of violence. The most important event in a woman's life

is marriage in our country which is surrounded by various financial transactions including dower.

6.2 The real scenario

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 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.41

6.3 Problems Faced by Women in Recovering Dower in Practice

Though we have legal instruments concerning dower and recovery of the dower still it is

noticeable that women are being deprived of their right of dower

41

Taslima Monsoor, ibid, p.209

31

First, in our country though Registration of Marriage has been made mandatory by the Muslim

Marriages and Divorces (Registration) Act, 1974 but still in many villages this is not strictly

followed. The reasons behind this are sometimes lack of awareness and sometimes a hidden

intention to deprive the bride from legal or religious right. Consequently, there exist no

Kabinnama of the marriage and it is natural that it will not be possible to trace the amount of

dower of the marriage unless it is testified by the witnesses. Absence of Kabinnama is a major

cause for the deprivation of the women‟s right of dower in Bangladesh.

Secondly, 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

alleged usool. Thus, in Mst. RaziaAkhter 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.42

The plaintiff comes from a middle class family, her father is a lecturer in a college and the

defendant is a teacher in a school. Considering the social economic structure of our society it is

very unlikely that a wedding in this background would take place without any jewellery or

ornament from the bridegroom. In these circumstances I consider that there is some truth

behind the claim of the defendant in this respect. Therefore, I would allow only half the dower

money to the plaintiff.43

Thirdly, sometimes the courts are not only regarding jewellery but also household ware and

apparels as substitutes of dower. But, how do such items give security to women as to be a part

42


43 Mst. Mahsina Tabassum Shirin v. Abdul Karim, Family Suit No. 9 of 1992 (Unreported), ibid, p.201

32

of dower? In Nasima Bilkis v. Md. Abdus Sarnad Khan,44

the Family Court regarded ware and

apparels as the usool and further reduced the amount of dower after deducting the jewellery.

Moreover, the defendant contended that the plaintiff waived the dower in the wedding night.

The court, however, held that the defendant‟s contention did not bear any truth.

Fourthly, in Ms. Shahkla Begum v. Md. Mahhuh Hossain,45

the plaintiff asked for the full

amount of dower, i.e. prompt and deferred dower. The facts of the case were that the parties

were married by a registered kabinnama on 3.2.90 and the dower was fixed at 75,001 taka, out

of which 5,000 taka were mentioned as having been paid under usool. The Family Court

granted the plaintiff‟s prayer for full prompt and deferred dower after deducting the amount

paid as usool, on the reasoning that the defendant had effectively given talaq to the plaintiff.

Fifthly, 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 consent. It was held in the case of Nurunnessa v. Khaje Mahomed46

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.

44


45 Family Suit No. 112 of 1991 (Unreported), as cited by Taslima Monsoor, ibid, p.205

46 (1920) 47 Cal 537, as cited by Obaidul Huq Chowdhury, ibid, p.17

33

There are cases where the courts are enterprising and go into detail whether the husband

actually paid the dower. Ambia Khatoon v. Md Yasin Bepar47

is a suit for the realization of

dower and maintenance. The facts of the case in a nutshell are that the parties were married on

7.7.87 and the dower was fixed at 50,000 taka, of which half was prompt and the other half

deferred.

Sometimes the courts allow the full amount of deferred dower, even when the marriage

subsists. Similarly, in Mst. Angari Begum v. Md. Iqbal Rashid,48

the Family Court granted the

wife the full amount of deferred dower from the husband when the marriage subsisted Umn this

case, while marrying for the second time, he did not marry in accordance with Section 6 (5) of

the MFLO of 1961. The Court seemed to take its reasoning from Section 6 (5) (a) of the

Muslim Family Laws Ordinance of 1961.49

47


48 Family Suit No. 52 of 1991 (Unreported), as cited by Taslima Monsoor, ibid, p.206

49 Section 6(5) of the Muslim family law ordinance 1962

34

Chapter 7

Concluding remarks and recommendation

7.2 Survey questions

For enhancing my knowledge about my research work I have visited at the Chittagong court

building on several times. I have met some senior lawyers at the court building. I questioned

them about, the dower right of Muslim women, and what are consequences of it and actual

reality of dower right in our country. On the following write dawn here the brief answers and

questions basis of my field work.

Question 01: what is dower?

Answer: Dower dedicated by law but traditionally by a husband or his family, to a wife for her

support in the event that she should survive her husband. It was settled on the bride by agreement

at the time of the wedding, or provided by law.

Question 02: what is dowering right?

Answer: dower rights are such rights as money or property which is entitled by the law, a wife

get from her husband as the security after the devolution of marriage.

Question 03: how does it effect on the society?

Answer: dower does very positive effect in our society, like as a woman gets her security when

he lost her husband by death or divorce. Moreover it may the way of give the women dignity and

respect.

35

Question 04: A woman can take legal action against the husband for unpaid dower?

Answer: yes, the Quran law and customary law gave the right to take action against unpaid

dower. Any women can sue for her unpaid dower.

Question 05: Have any negative side of dower?

Answer: there has no negative side as dower but sometimes, man has hazard by women in such

ground.

Question 06: What is the actual reality of dower in our society?

Answer: the actual reality of payment of dower is not so strong. Have some lacking and less of

strong effectiveness.

7.2 Recommendations

What need to be do I have proposed following

Needs social awareness about the dower as right to the women.

Sometimes, women do not know how to get their right as dower from their husband that

reason makes the free consulting with the women in rural as to knowing them.

The huge gap between metropolitan and rural area of education should be remove.

In rural area women are not well educated. So, they are not concern about their rights.

Social awareness regarding women‟s right of dower should be ensured by inserting basis

concepts of dower in the syllabus of primary or secondary education.

Duties should be given to the Imams of mosques or to the Chairman of Union Parishad

to aware the local people about women‟s right of dower.

36

Sometimes the women are bound to relinquish or do not claim their rights because of

their social prestige, lack of power and lack of social support in a male dominated

society. So, government should take positive action these situations.

The existing law is not enough to make marriage registration mandatory rather

monitoring cell should be constructed for ensuring registration of marriage.

The enquiry should be effective as to what portion of dower money has been really paid

by the groom‟s part and what has been stated in the kabinnama, both at the time of

marriage and at the time of dissolution of marriage.

Under Islamic law there is a concept of Assummat, where a large amount of dower may

be announced in public, whereas privately the parties agree to a smaller amount. This

should not be encouraged.

Women should be more aware about her right of dower and it is the responsibility of the

government, NGOs and civil society to disseminate the knowledge of dower.

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 overcome these problems and want to establish women‟s right in the

society with dignity then women and men all have to be more conscious and aware

about the women‟s right of dower under shariah 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.

37

7.3 Conclusions

In most marriages, dower money is rarely paid even if the wife demands payment. Though

Dower is an important aspect during marriage, it is not deemed essential to settle this issue for

divorce. The absence of any statutory obligation to pay unpaid dower money to the wife facilitate

the dishonest husband escaping the payment altogether. In case of divorce, the wife has to

recover it though court case like maintenance facing strong contest from the husband. Under the

Muslim Law, dower is an important part of marriage. The custom of giving dower was come

from Pre-Islamic time. The Quran and Sunna say that, dower must be given at the time of

marriage and the statutes of Bangladesh also confirm it. The dower is given in two ways; one is

prompt and other is deferred. The prompt dower is given when the wife claimed it and the

deferred dower is given when the marriage is dissolved by divorce or after the death of

husband‟s. If any person denies giving this dower money to his wife, then the law can force him

and the wife can decline to continue conjugal life. The cases on dower in Bangladesh highlight

the contrast between theory and practice. Although Shari‟a law contains several positive

provisions, of which dower is one to safeguard women‟s rights; these provisions have

deteriorated due to socio-cultural reasons and patriarchal subversions of a later period. The

dower has eventually ceased to be a safeguard for women against arbitrary divorce.

38

Bibliographies

Books

1. Rashid‟s syed Khalid, (2004), Muslim law, Lucknow, Eastern book company

2. Aqil Ahmed, Mohammedan Law, 21st ed. (Allahabad: Central law Agency

3. Serajuddin Alamgir Muhammad, (2011), Muslim family law, secular courts and Muslim

women of south Asia, Karachi, Oxford university press

4. Syed Ameer Ali, Mohammadan Law, 6th

ed. (Dhaka: Shams Publication

5. Obaidul Huq Chowdhury, Muslim Law, 6th

ed. (Dhaka: Al-Yakub Press, 2005).

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

7. Shaukt Mahmood, Principles and Digest of Muslim Law, 6th

ed. (Lahore: Legal Press

Centre, 2002).

8. Taslima Monsoor, From Patriarchy to Gender Equity, 1st ed. (Dhaka: The University

Press Limited, 1999).

Journals and articles

1. Section 2(2), the dissolution of the Muslim marriage act, 1939.

2. Muslim family laws ordinance, 1961

3. Section 5, The Muslim family laws ordinance 1961

4. Published in Bangladesh gazette on 30.3.1985

5. Section 6(5) of the Muslim family law ordinance 1962

Case laws

1. Smt. Rabia Khatoon v Muktar Ahmed, AIR 1966 All. 548.

2. Smt. Nasra Begum v. Rigwan Ali, AIR 1980 All:119

3. Syed sabir Husain v. farzand hasan, (1937) 65 1A 119

4. Bibi rehana khatun v. Iqtider uddin Hassan, 1943 All LJ 98

5. Nasiruddin Shah v. Amatul Mughni Begum, ILR 1947 Lah 565

6. 54 DLR 481, ibid, p.20

7. Hamidunissa Bibi v. Zaheer sheik, 17 CAL 670

8. Babee Bachum v. Hamid Hossain, (1871) 14 MIA 377 and Bibi V Chaudhury Vakil

Ahmad (1924) 521A

9. Family Suit No. 193 of 1989 (Unreported), as cited by Taslima Monsoor





39

Websites

1. https://en.wikipedia.org/wiki/Women_in_Islam, (accessed on 23-9-1016

2. http://www.islamawareness.net/Women/naik_women.html, (accessed on, 23-9-2016)

3. http://www.muslimtents.com/shaufi/b2/b2_06.htm, (accessed on, 20-9-2016)

The holy Quran

1. Surah an-Nisa, 4: 4

2. Surahan-Nisa, 4: 19

3. Al-Qur‟an 4:20

4. Al-Quran 2:237

Author

Mr. Durjoy Barua

LL.B (Hon’s), LL.M,

Pupilage of lawyer at Chittagong judge court

Consultation: 01825-138879

https://en.wikipedia.org/wiki/Women_in_Islam,%20(accessed

http://www.islamawareness.net/Women/naik_women.html

http://www.muslimtents.com/shaufi/b2/b2_06.htm