Introduction: What is Dower, its Purpose and Importance
In the Islamic legal system, marriage is a civil ‘contract’, which means that it is a secular bond of two competent individuals, where the groom makes the proposal (ijab) and the bride accepts (qubul) it in the presence of two witnesses, in exchange for consideration (in the form of an obligation), called mehr or dower. However, unlike a civil contract, it cannot be time-limited. The contract of marriage is thus, entered into by a man and a woman, who are adults and of sound mind.
In case of lunatics, their guardians may enter into a marriage contract on behalf of them. Furthermore, if a Muslim who is of sound mind and has reached puberty is married without his or her ‘consent’, the marriage is deemed invalid. As evident, the bride’s ‘consent’ is a pre-condition for marriage, and both the sexes are accorded equal importance and endowed with certain rights and duties.
The consideration, i.e., mehr or dower, refers to the money, property or asset that the bride is entitled to receive as a present from the groom in good faith. For the purpose, a written mehr deed called as mahr-nama is usually executed. The mehr is the wife’s exclusive possession, and neither her parents nor any other relatives have any claim to it.
However, it is not ‘consideration’ in the same sense as defined under the Indian Contract Act, 1872. Baillie in his Digest of Mohammaden Law says:
“Dower is not the exchange or consideration given by the man to woman for entering into the contract; but an effect of the contract, imposed by the law on the husband as a token in respect, for its respect the woman”
Dower is a courtesy owed by the husband to his wife. It’s important to emphasize that dower isn’t bride-price thrown to purchase the bride; rather, it’s a mark of respect for the bride. Islam does not treat women as property, rather confers upon them this legal right, with the purpose to provide them financial security and to create a sense of responsibility in man. It also checks upon the power of the husband to divorce or practice polygamy.
It must also be noted that the practice of dowry, which flows from the bride to the groom is considered ‘improper’ in Islam. This means that the very concept bride’s family providing tons and tons of household goods and presents, does not exist. Unfortunately, the haram practice of dowry (instead of dower) is widely practiced by Muslims in South Asia, especially India, and has resulted in mental and physical harassment of brides and their families, and even forced some to suicide and death.
In the mainstream Islamic practice, however, if the husband or his family demands dowry, they are regarded no less than ‘thieves’ and are legally punishable under the Dowry Prohibition Act.
Islamic sources on the ‘duty’ to pay dower
The main provisions on the subject are mentioned in the Quran, Hadiths and Ijma.
In a hadith (sayings and practices of the Prophet), Abu Huraira (R.A) narrated the Prophet (ﷺ) said: ❝The one who gets married with the intention not to pay dowry to his wife is a fornicator. And the one who borrows money with the intention not to pay back is a thief. ❞ (Ibn Hibban in ‘al-Majruheen’ (2/261) No. 941) So, without dower, there is no marriage per se.
In Surah al-Nisa (of the Quran), it is said, “Give to the women their agreed dowers [willingly]….” (4:4) and, “…as an obligation….” (4:24). According to Imam Malik, if the parties agreed that there would be no mehr then the nikah would not be valid. But according to Imams Abu Hanifa, Shafi’i and Ahmed the nikah would be valid, but the mehr would still remain an obligation.
It is an obligation even in the case of the women of the “…People of the Book….” (5:5). According to Maulana Umar Ahmed Usmani, the labour of the groom cannot be accepted as mehr, because the mehr has to be an amount paid to the bride.
Amount of Dower
Because the dower or mahr is an important element of a Muslim marriage, its amount can be agreed upon by the parties; if not, it can be determined by the law. Specified dower is the term used in the first situation, and proper dower is used in the second.
The amount of dower which the bridegroom has to give to his bride has not been determined by the Qur’an or Sunnah. Nevertheless, the upper limit of dower fixed in the Shia sect is 500 dirhams (1 dirham equals to 3.0618 grams of silver), whereas, in the Sunni sect, there is no upper limit, but the lower limit is 10 and 3 dirhams in the Hanafi and Maliki schools of Muslim law respectively.
In Kukkiya Begum v. Radha Kishan, the Allahabad H.C. held that amount of dower fixed previously may be increased after the marriage by mutual consensus.
Extravagance and exaggeration in seeking hefty Mehr are certainly undesirable, if not overtly forbidden. In general, the amount must be reasonable and adequate, neither too low, nor too high. As per the Quran, “….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)
If any Muslim husbands are unable to provide their wives 10 dirhams owing to poverty, Prophet Mohammad (p.b.u.h.) has instructed them to educate their wives on the Quran in lieu of the payment of dower.
Thus, the mehr can be mutually decided by the parties, or given reasonably according by the groom according to his capacity. In case, there is no agreement upon the amount, the court of law may determine a proper amount.
Islamic Provisions on the amount of Dower
The Prophet (peace be upon him) said: “The best of mahrs is the simplest (or most affordable).” (Narrated by al-Haakim and al-Bayhaqi, classed as Saheeh by al-Albaani in Saheeh al-Jaami’, 3279. )
Ibn Taymiyyah states in Majmoo’ al-Fatawa, 32/194: “…With regard to one who is poor, he should not give a Mahr greater than he can afford to pay without any hardship.”
Even an iron ring can be Mahr as can be deduced from the following Hadith: The Prophet (peace be upon him) said to a man who wanted to get married: “Look (for something to give as a Mahr), even if it is a ring of iron.”
Remission of Dower
Because dower is so important in Muslim law, a clause in the marriage contract before its validation stating the woman forfeits all her dower rights is null and void, and the wife will still be entitled to adequate dower. However, the wife may choose to ‘waive’ off the debt wholly or partly. The remission of Mahr by wife with ‘free consent’ is called Hibe-e-Mahr. The verse on remission of dower is as follows:
“Give women ‘you wed’ their due dowries (Mahr) graciously. But if they waive some of it willingly, then you may enjoy it freely with a clear conscience.” (Quran 4:4)
To remit the amount, the wife must be an adult (above 18 years of age) and of sound mind, and freely consent to it, without any coercion or undue influence. The Karachi High Court heard a case in which a woman waived her Haq Mahr in order to catch her husband’s attention and win him back. The court determined that the remission of mahr was made without her ‘fee consent’ and so was not binding on her.
While in Ali v. Md. the Madras High Court have opined the age of majority to be determined as per the Indian Majority Act, the Allahabad High Court in Qunissa v. Kaniz was of the view that it must be according to Muslim Law, where the age of majority is upon attaining puberty.
Types of Dowers
Dower can be classified into two categories:
(1) Specified Dower (Mahr-i-Musamma)
(2) Unspecified or Proper Dower (Mahr-i-Misl)
Specified Dower (Mahr-i-Musamma)
The amount of dower is known as Specified Dower when it is stipulated in the marriage contract. The dower payment might be negotiated before, during, or even after the wedding ceremony.
Husband or guardian (in case of lunatics) can fix any amount of dower as per their will, in line with the upper and lower limits specified in their school of law or sect.
According to Sunni law, the dower established by the father is obligatory on the son, and the father has no personal responsibility to pay it. He is not accountable in any manner, even as a surety. However, among Shias, if the son is unable to pay, the father is held responsible.
It can be further bifurcated into:
a) Prompt Dower – It is payable on demand before the consummation of marriage. Only upon prompt payment of the dower does the husband become entitled to enforce his conjugal rights. Under Shia Law, the whole is regarded as prompt, whereas in Sunni law, some portion is deferred. However, in Huseinkhan v. Gulab Khatun, it was held that the Court has, the power to award the whole as prompt, irrespective of whether the parties are Shias or Sunnis. The same was stated in Sheikh Md. V. Ayesha.
b) Deferred Dower – Deferred dower is due when the marriage is dissolved, either (i) by the death of one of the parties, or (ii) by divorce.
In case of the death of the husband, the widow can either insist the dower agreed upon in the contract, or if no specified amount is mentioned, demand the amount decided by her. She can also waive the dower debt.
If the marriage is not consummated, the woman has a right to half the dower specified (in mehr-nama or kabil-nama). Upon divorce by the husband, the woman can claim the whole dower.
Unspecified or Proper Dower (Mahr-i-Misl)
The phrase “proper dower” refers to a customary dower that may be determined by a court of law by bringing a claim. Even if the amount of dower is not mentioned in the marriage contract and it is agreed that the woman would not claim dower, the wife is nevertheless entitled to adequate dower. The amount of suitable dower is determined by the amount of dower paid when female relatives of the father’s family marry. This is done to ensure fairness. Other factors that are taken into consideration include economic status of the husband, social position of the wife’s father, and personal qualifications and traits of the wife.
Under Shia Law, the dower can be fixed on the basis of tradition, the mahr-i-sunnat, i.e., the amount of dower was fixed for the prophet’s daughter Fatima. This is also called sharh fatimi. In Indian currency, it comes to the value of Rs. 32.32.
Rights and Remedies
Entitlement to the debt of dower
Ideally, the dower must be paid before the marriage is consummated. However, in some sects and schools of Islamic Law (Hanafi and Shafi’i), it may be paid after the marriage, or after divorce.
In Kapoor Chand v. Kadar Unnissa, it was held that the amount of mehr may be settled before marriage, or at the time of the marriage; it may even be settled after the marriage. If not paid before the marriage is consummated, throughout his life, the mehr is an unsecured ‘debt’ owed to his wife.
After his death, his heirs inherit the loan and are obligated to repay it. Likewise, even upon divorce, the woman is entitled to hold or claim her ‘haq-mehr’. In case of the death of the wife, the husband is indebted to pay the dower, which is a contingent right, to her legal representatives. It must be noted that the debt may be given without any interest (riba) upon it, as taking as well as paying interest is forbidden in Islamic Law.
Refusal to Cohabit
In Wilayat Hussain v. Allah Rakhi, the court ruled that if the husband failed to pay prompt dower to his wife even after the consummation of marriage, she could refuse to cohabit or fulfill her marital obligations. In addition, if on account of non-payment of dower, the wife refuses to cohabit, the husband is bound to maintain her. The amount given for maintenance is distinct from dower.
Right of Retention
A widow or divorcee can exercise her right of lien over the property and continue to hold the possession of her husband’s property till her debt is fulfilled. However, this right of retention does not confer on her any title (other than possession) in the property (save the property over which she has right as heir). In Ghouse Yar Jang v. Kenur Fatima the right of retention was held to be alienable and to that extent, heritable.
Period of Limitation
Normally, the statute of limitations for dower-debt recovery is three years from the date after the marriage is dissolved by divorce or death. However, if she has custody of her husband’s property, she can keep it until her dower is paid and the period of limitations has expired. The three-year rule does not apply.
Suit for Recovery of Dower
The suit for recovery of the amount of dower is maintainable in the Magistrate’s Court under section 3, Muslim Women (Protection of Rights on Divorce) Act, 1986. It can be filed at the place where the marriage contract has been signed, or the place where the husband resides.
Islam does not endorse wasting lakhs on lavish wedding ceremonies as they seldom serve any purpose in the long-run; preferably, marriages are required to be regular ‘nikahs’. It rather, makes it obligatory for the groom to gift the bride an amount or property, proportionate to his income or property before the consummation of marriage, on which the bride will have absolute control over. This nuptial gift not only provides ‘financial security’ and Individuality to the bride, but is presented as token of respect and love to a woman who is leaving her family and the comfort of her home to face the challenges of adjusting to a new and unknown environment. The concept of joint-family is not the norm among Muslims, so ideally this ‘environment’ refers to the house where only the husband and wife would reside.
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