Dower or mahr is a peculiar Muslim law concept. In the pre-Islamic era, in beena form of marriage, the woman, on her marriage, did not accompany her husband but remained at her own house, where the husband visited her. As a part of the marriage contract, he made a gift to his wife. This gift was known as sadaq.
In Baal, the other prevalent form of pre- Islamic marriage, the woman accompanied her husband after her marriage, and consideration of wife’s leaving her parents home the husband paid a sum of money to her parents. This sum of money is known as mahr or dower and was likened to bride-price.
On the spread of Islam in Arabia, marriage was reformed and sadaq -mahr was combined into one and become a sort of marriage settlement for the wife.
In modern law, mahr is something in the nature of a nuptial gift which a Muslim husband undertakes to make to his wife. It is an integrated part of Muslim marriage.
Probably, it is also used as a deterrent to Muslim husband’s absolute power to pronouncing divorce on his wife.
Dower : Definition
According to Mulla, dower as a sum of money or other property which the wife is entitled to receive from husband in consideration of marriage.
Dower when fixed by mutual consent after the marriage is known as mahr-i-tafweez.
When fixed by the court, it is known as mahr-i-takkim.
When dower fixed by an agreement, it is known as specified dower and when determined by operation of law, it is known as a proper dower.
Classification of dower
Dower is usually classified under two heads:
- Specified dower that is fixed by mutual agreement of the parties.
- Proper dower or customary dower that is arising by the operation of law
The specified dower may be fixed by the parties to the marriage or if the son is minor, by the father.
The Hanafi law take the view that the amount fixed by the father is binding on the son, and the father is not liable personally or as surety for his son while under the Shia law, the father is liable if the son has no means.
Under the Hanafi law the wife is entitled to receive the minimum amount of dower, even if she has agreed to receive less.
Under the Shia law and Shafii law, the wife is entitled to receive only the amount fixed under the agreement whatever may be its quantum.
The specified dower is usually in two parts :
- Prompt dower
- Deferred dower
Prompt dower is payable and realisable at once after the solemnization of marriage on demand, the wife has a right to refuse conjugal relationship to the husband till the prompt dower is paid.
Deferred dower is payable either on the expiry of specified contingency or in every case, on the dissolution of marriage, by death or divorce.
Dower is an integral part of Muslim marriage even when dower is not stipulated in the marriage contract, the wife is entitled to what is known as a proper or customary dower, mahr-i- misl or mahrul-mithul.
The wife is entitled to proper dower even when at the time of marriage she had agreed to receive no dower.
The proper dower is fixed by the court, having regard to the nobility of her birth, the beauty of her person, and the custom of her female relations.
In other words, proper dower is fixed on the basis of custom prevailing on the side of the wife and not the husband.
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