INTRODUCTION
India is a diverse country and is often considered as a country of unity in diversity wherein the people of different religions and sects leave together peacefully. There is no religion of the state and the state respects and recognizes all the religions and even keeps people on the same pedestal as those who don’t believe in any of the religions. It guarantees through fundamental right that every person has the freedom of conscience and the right to profess, practise, and propagate religion[1] which leads to the implementation of different personal laws for different religions. Similarly, for Muslims, there is Muslim personal law that contains different legal provisions regarding marriage, dower, divorce, will, maintenance, etc.
Under Muslim law, Dower or Mahr is a sum of money that the husband has to pay to the wife on marrying her. The article focuses on the concept of Mahr under Muslim law.
GENESIS OF THE CONCEPT OF MAHR
The institution of marriage has gone through a transformation over the time. In the time of old pre-Islamic Arabia, there were a number of sexual relationships that were prevalent between the spouses. There was a culture of deserting the women by men wherein the latter were usually the victims of abuse. Thereafter, men used to refuse any monetary help to the wife and there was no proper legal mechanism to regulate the monetary support to the wife. That time shighar form of marriage was very prevalent and in this form of marriage a man would give his daughter or sister in marriage to another in consideration of the latter giving his daughter or sister in marriage to the former and there was no concept of dower in this form of marriage.
There is another form of marriage which is known as Beena marriage in which the husband visit the wife but do not bring her home. In this form of marriage, the wife was called Sadiqa and a gift was given to the wife on marriage which was known as Sadaq and it is believed that the same was the first form of dower.
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There was another form of marriage known as Baal marriage wherein Mahr was introduced and it usually belonged to the wife’s parents or guardians. Thereafter, the promulgation of Islam gave a new form of nikah to marriage wherein if a man separates himself from his wife, then he should send her away with generosity.
DEFINITION OF MAHR
Wilson[2] defines Mahr or dower as a form of consideration for the surrender of a person by the wife. Mulla[3] further defines it as either a sum of money or property which the wife is entitled to receive in the consideration of marriage from the husband.
In the case of Abdul Kadir v. Salima(1886)[4] it was held that a dower under Muslim law that it is a sum of money or property which is promised by the husband to be paid or delivered to the wife in consideration of marriage and even if the dower is not expressly mentioned at the time of marriage, the wife still has the right of dower.
PURVIEW OF CONSIDERATION IN MUSLIM MARRIAGE
We know that there is a contractual form of marriage in the Islamic religion. However, the term of consideration is different from that used in the contract. Without consideration, a contract is generally void but if the dower or the consideration is not mentioned during the time of marriage, the term of marriage does not become void.
MAHR VIS-À-VIS DOWRY
There is a difference between the term Mahr and Dowry as the form is to ensure the financial security of the women while the latter is a social evil. Dowry is asked by the kin of the bridegroom from the bride’s family as a gift to the marriage under section 2 of the Dowry Prohibition Act, 1961[5].
CLASSIFICATION OF DOWER
The dower may be characterized into the following classes:-
- Specified dower: This is a kind of dower wherein the amount of dower is stated in the marriage contract and the settlement can be done either before the marriage or at the time of marriage or after the marriage. In this case, the husband can set any amount of dower but it should not be less than 10 Dirhams according to Hanafi law and 3 Dirhams according to Maliki law. If the husband is not able to pay the requisite amount of dower then they are directed to teach the Quran to the wife instead of paying Dower. This kind of dower can be further classified into prompt dower & deferred dower.
- Proper or customary dower: This is a kind of dower wherein the amount of dower is completed without the amount of dower fixed in the contract. The amount of the same is decided by taking into consideration the amount of dower settled upon other female members of the father’s family. The proper dower is regulated in reference to the following factors:
- Qualifications of the wife
- Social status of her father’s family
- Dower deposited to her paternal’s family.
- Financial conditions of the husband
- Circumstances.
AMOUNT OF DOWER
Sometimes, few husbands intentionally give a low amount of dower even when their financial condition is very sound. The amount of the above-mentioned dower is so less that the wife becomes unable to maintain herself. This issue was making the object of dower futile and to overcome this problem legislation was created so that a reasonable dower is given. Henceforth, the legislature has been bestowed with full liberty to maintain the amount of dower providing that the court will not be bound to award the amount of dower according to the marriage deed.
RIGHTS OF WIFE IN REFERENCE TO DOWER
Every woman has the right to claim a dower under Muslim law on the commission of marriage. However, if they are not fulfilled with the same then they can ask for certain kinds of remedies provided in the personal law of the Islamic religion. Muslim law bestows certain rights upon a wife or a widow to compel to get the payment of dower.
REFUSAL OF COHABITATION
Under Muslim law, if the marriage has not been consummated then the wife has a right to refuse to cohabit with her husband if the requisite dower is not paid to her and in the case of insanity the guardian has the right to refusal of cohabitation.
However, in the case of the consummation of marriage then the wife loses the absolute right to cohabit with the husband and insist on the payment of prompt dower and that is for the very simple reason that the husband can file a suit for restitution of conjugal rights. In this case, the wife can only be entitled to a decree conditional payment of dower. The decree of restitution is a proper decree rather than a decree of dismissal is the suit is brought after sexual intercourse with free consent as held in the case of Rabia Khatoon v. Mukhtar Ahmed,[6] (1966)
In the deferred form of dower, the payment of dower is always a contingent event and henceforth, in this case, there is a difference of opinion between the jurists i.e. some have an opinion that wife cannot refuse to cohabit in case of deferred dower while some have an opinion that wife can’t do the same.
DOWER AS A DEBT
It was held in the decision of the Privy council that the dower is a kind of debt and the widow is entitled along with other stakeholders to have it satisfied on the death of the husband out of his estate. The wife can also recover the debt by filing a suit against the husband and in cases wherein the dower debt is remaining unpaid, the widow can enforce her claim for the dower debt from his heirs. A Shia Muslim stood surety for the payment of the dower by his minor son. After his death, his estate was held liable for the payment of his son’s mahr and each heir was made responsible for a portion of the wife’s claim in proportion to his share in the estate of the deceased as held in the case of Syed David Hussain v Farzand Hussain [7]
CONCLUSION
The concept of Mahr in Muslim law is necessary for the women as it ensures financial security so that the wife is not left deserted without any financial support in any of the scenarios comprising the death of the husband or after the termination of the marriage. It also keeps a check on the malicious use of divorce by the husband and it is also believed that the mahr is an essential custom in the marriages of the Islamic religion.
[1] Constitution of India, art. 25
[2] http://www.legalserviceindia.com/legal/article-5105-mahr-under-muslim-law.html (last visited on 14th March 2022)
[3] https://www.lawnn.com/meaning-of-dower/ (last visited on 14th March, 2022)
[4] Abdul Kadir vs Salima And Anr. (1886) ILR 8 All 149
[5] Dowry Prohibition Act, sec. 2
[6] Rabia Khatun And Ors. vs Moinuddin Ahmed And Ors. (2005) 3 GLR 194
[7] Sabir Husain vs S. Farzand Hasan (1938) 40 BOMLR 735
YLCC would like to thank Utkarsh Sharma for his valuable insights in this aricle.
