MAHR or Dower- Types, Remission and Its Enforcement

MAHR or Dower Muslim Law- Types, Remission and Its Enforcement

MAHR (Dower)-Types, Remission and Its Enforcement

Introduction

Marriage is the first and foremost social institution. Performance and purpose of marriage ceremonies differ from one religion to another. Hindu law treats marriage as a sacrament. On the other hand, in Mahomedan law marriage is a Contractual Agreement. An agreement without consideration is void subjected to certain exceptions as per Indian Contract act 1872.

Hence in Mahomedan law, Mahr or Dower fulfills the part of consideration in the contract between husband and wife to marry one another.

Meaning

Mahr is synonymous to a Hebrew word, Mohar or a Syriac word, Mahra which means “bridal gift”. Mahr is defined as a token of respect given to the wife by her husband. Mahr is a sum of money which is pre-determined between Husband and Wife by themselves or in the case of minor, guardian has power to do so. Mahr is an obligation of the husband to pay it to his wife and can’t demand it back.

Dower is one of the four essentials which are required to be fulfilled to form a contractual marriage. Dower is also considered as consent of girl for marriage if she agrees with the terms of Dower. Dower is decided as per the Status of woman or financial condition of man.

In Abdul Qadir v. Salima, Court held that for a valid marriage in Muslim law, it requires consideration from husband to wife for her comfort and benefit.

Definitions

Mahr or Dower is defined by various eminent jurists who are as follows:
According to Ameer Ali- Dower is a consideration which belongs absolutely to the wife.

D. F. Mulla defines dower as sum of money or other property which the wife is entitled to receive from her husband in consideration of her marriage.

Abdul Rahim in his book Muhammadan Jurisprudence defines “Mahr is either a sum of money or other form of property to which wife becomes entitled by marriage. It is not consideration proceedings from the husband for the contract of marriage but it is an obligation imposed by law as a mark of respect for wife.

Thus, Dower is the right of wife and prevent and check ill and haste mannered divorced because it creates a fear on the husband to pay dower to his wife.

Types of Dower

There are two types of Dower

1- Specified Dower (Mahr-i-Musamma)

When amount of dower is decided before marriage or at the time of marriage, then this amount of dower is known as Specified Dower. In case of minor son, father is empowered to fix the amount of Dower, though he is not personally liable by it.
Specified dower is further divided into two types
a- Prompt Dower (Muqaddam)
Prompt dower is defined as pre determined sum of money which wife can demand before or after consummation. It can be postponed until it is demanded by wife.
If it is not paid by the husband, wife is entitled to refuse conjugal relations until prompt dower is paid.

In Nasara Begum v. Rizwan Ali1, Court held that wife has right to refuse to live with her husband and refuse him to sexual intercourse till prompt dower is paid.

b- Deferred Dower (Mahr-e-Muwajjal)

Deferred dower is defined as pre determined sum of money which will be paid on the dissolution of Marriage either by

(i) death of either of the parties; or
(ii) Divorce

In Sarwar Ali Khan v. Jawahar Devi2,
Andhra Pradesh High Court held that a wife by her apostasy can not only dissolve the marriage but also claim dower from her erstwhile husband.

When dower is not specified

If dower is not specified then Sunni law divides amount of Dower into two half as one half is prompt dower another half is deferred dower
Under Shia law, if two separate kind of dower are not specified, then the whole amount would be taken as prompt dower3.

In Humaira Bibi v. Zubaida Bibi4, Privy Council held that dower is consideration for marriage and it is in theory that it would be payable before consummation but law allows its division into two, former is Prompt dower payable before wife can be called to enter in conjugal domicile, the latter is Deferred dower payable on the dissolution of contract by death of either party or divorce.
2- Unspecified or Proper Dower (Mahr-I-Misl or Mahr-Ul-Misl)
If there is no fixation of Dower at the time of Marriage, wife can claim Dower even if the marriage was contracted on the condition that she will not claim Dower. Paying reasonable amount of dower to wife which was not specified at the time of marriage is called unspecified or proper dower.
Determination factors which help to quantify proper dower are as follows:
• Personal qualifications, age, beauty of wife.
• Social position of her father’s family.
• Dower to her paternal relations i.e. wife sister.
• Economic condition of Husband.
• Conducive circumstances.
Sunni law defines no maximum limit for proper dower. Husband can pay as per the fixation of dower through determing factors whereas Shia law puts a limit of maximum 500 dihrams.

Enforcement of Dower

Wife or widow can claim for unpaid portion of dower which is an unsecured debt, due to her from her husband or his estate, respectively. Wife or widow has the right to go for an actionable claim. During her life time the wife can recover the debt herself from the estate of the deceased. The heirs of the wife including the husband become entitled to her dower of pre- deceased husband.

Widow has right vis-a-vis other creditors of her deceased husband to have it satisfied out of his estate.

In the case of Kapoor Chanad v. Kadar-un-nisa5, 1953 AIR 413, 1950 SCR 747,
Supreme Court observed: The wife is like any other creditor of the husband and cannot, therefore, claim priority for the dower debt over other creditors. The widow’s claim for dower debt has priority over the other claims of the other heirs. The heirs of the deceased husband are not personally liable for the dower debt of the widow. The liability of an heir is to be measured not by his interest in the estate but by the assets which come to his hands.

Remission of Dower

Remission means to remit or give up. Wife is empowered to remit the Dower if she wants. Remission of dower is solely on the discretion of wife.

It is open to lady to relinquish her entire dower debt in whatever claim she had on account of the dower debt against the heir of his husband6.
The Wife is entitled to relinquish her full or any portion of her dower in the favor of husband or his heirs, only if certain conditions are to be fulfilled which are as follows:
(i) Time of the remission – Remission can be done after the marriage whether before or after the consummation of marriage. No remission can take place before the marriage.
(ii) Capacity for remission- Wife who has attained the age of majority i.e. 18 years and is of sound mind can remit her dower. However, in some schools age of puberty i.e. 15 years can also constitute a valid remission of Dower.
(iii) Consideration- Remission can takes place even without the consideration.
(iv) Consent- Consent of wife should be free without any interference of undue influence or coercion.

Hence, remission of dower can only be validated if all the above mentioned conditions are followed.

Also Read: Judicial Separation under Hindu Marriage Act, 1955- Our Legal World

Rights of the Dower

(i) Right to refusal to cohabit- Wife can refuse to perform her conjugal relationship and suspend intercourse until the Prompt Dower is meant to be paid if the marriage is not consummated. If the wife is minor then guardian of the wife can refuse to send her to his husband house until the dower is paid.

If the marriage is consummated then wife can lost all her right7.

(ii) Right to dower as debt
Dower is an unsecured debt which wife or widow or divorcee can recover from husband as he is alive and after his death, they can recover their share from his estate.

In Hamira Bibi v. Zubaida Bibi8,

Privy Council held that dower ranks as a debt and widow is entitled along with other creditors to have it satisfied on death of husband out of his estate.

(iii)Right to retain possession

If the widow has the possession of estate of her deceased husband, then she can retain the position until her debt was recovered. On the contrary, retaining the possession doesn’t give any right to wife to alienate the property.

In the case Zahoor Ahmad v. Jainandan Singh9

The court was of the opinion that wife has only interest for personal enjoyment of property in her possession but she has no right to alienate the property.

Conclusion

Mahr or Dower is the right of the wife or widow or divorcee to maintain their life and create a form of deterrence force against husband to give divorce to wife. If they give divorce they have to pay the amount of Mahr also. We also witnessed several landmark cases which protect the rights of women by granting them amount of Mahr. Though there is presence of various schools in Mahomedan law, they differ in custom  usages but all of them recognize Mahr as a right of wife.

References
1- MULLA Principles of Mahomedan Law 22nd edition
2- Shodhganga
1- AIR1980 All 118
2- (1964) 1 Andh W.R. 60
3- Mirza Badar Bukht v. Mirza khurran Bhukt (1873) 19 WR315 (PC)
4- AIR 1916 P.C. 46
5- (1953) S.C. R. 413
6- Ram Prasad Singh v. Mst. Khudayatul Kubra, AIR 1948 Pat 163
7- Hamidunnissa Bibi v. Zaheer Sheik, 17 Cal 670
8- AIR 1916 P.C. 46
9- AIR 1960 Pat 147