Dower under Muslim Law

In Muslim Law, Dower means sum of money paid by husband to his wife at the time of marriage. It is different from Dowry as dowry is social evil. Dowry is given from wife's side to her husband or given when demanded by husband or husband family. Dower is security given by husband to his wife so that she can maintain herself after divorce.

Dower is followed among Muslim whereas dowry is followed among Hindu. In both cases Dower and dowry as well could also be given before or after the marriage .In case husband is minor at the time of marriage in Muslim, his parents or guardian would be liable to pay it. In this article we will discuss about Dower under Muslim Law.

Meaning and Definition

Dower is derived from the word Mahr means sum of money or property paid by husband to his wife at the time of marriage or before the marriage or after the marriage. It is considered as remark of respect of husband towards her wife or as a token of love. In case of minor, his parents or guardian would be liable to pay it. Dower money could not be reduced but it could be increased.

Definitions
There are some definitions related to Dower:
According to Justice Mahmood, Dower under Muslim law is a sum of money or other property promised by the husband to be paid of.

According to Wilson, "Dower is a consideration for the surrender of person by the wife."

According to Ameer Ali, "Dower is kind of consideration belongs to wife."

According K.P. Saxena, "Dower is a sum of money or any property promised by the husband to be paid or delivered to the wife as a mark of respect for the surrender of her person after the marriage contract but generally said to be consideration for marriage."

According to Mulla, "Dower is a sum of money or a property which wife is entitled to receive from her husband in consideration of marriage."

Thus from the above definitions we can understand that Dower is sum of money paid by husband to his wife in consideration of marriage at the time of marriage, before or after the marriage.

Origin of this concept

Before Islamic law the condition of wife was very miserable. There were some forms of marriage existed which indicates condition of women. These marriages were Shighar, Beena, Bala. In form of Shighar, father of the bride gave his daughter to other in marriage in consideration of the latter giving his daughter in marriage to the former. In form of Beena, husband could contract his marriage to whom he wants but could not allow to bring his wife with him.

Wife was knoun as Sadiqa and gift which was given to her considered as Sadaq. In Bala marriage, husband had to pay Dower to bride's parents in consideration of marriage. After time evolved, era of Prophet Mohammad began these forms of marriages was abolished and new form of marriage introduced by Prophet i.e. Nikah. In this marriage, husband has to pay Dower to his wife in consideration of marriage. It was followed by Prophet, his daughter Fatima married Ali and in consideration of marriage he paid her 500 drihams .

Object of Dower

The object of Dower is to preserve the rights of women and to protect her from the husband's abuse. The purpose of Dower is that when husband gives divorce to his wife, she will be able to maintain herself after divorce. Even husband will think twice before giving divorce to her. Dower is a security against husband for his wife so that she will never face any problem in future.

Kinds of Dower

There are two kinds of Dower specified Dower and unspecified Dower:

1. Specified Dower:
   Specified Dower is a fixed Dower. It is paid by the husband to his wife at the tiome of marriage, before or after the marriage. In Hanifi school of Muslim law, 10 drihams is fixed for Dower whereas in Maliki school of Muslim law, 3 drihams is fixed for Dower. Specified Dower is also known as Mahr- i- mussama.
   
   It is of two types prompt Dower and deferred Dower.
   
   1. Prompt Dower:
      Prompt Dower is paid immediately after the marriage.
   2. Deferred Dower:
      Deferred Dower is paid after happening of a particular event like after divorce, death of husband, adultery, cruelty , matrimonial offences etc.
2. Unspecified Dower:
   Unspecified Dower is not a fixed Dower. It is not specified in kabinama a deed at the time of marriage, before or after the marriage but it could be demanded by the wife anytime. When she refused to take Dower she will still entitle to get it. It is fixed by the court after observations like:
   
   1. Social status of women's father
   2. Economic status of husband
   3. Dower which was given to her female ancestors
   4. Women qualification like her beauty, fortune, age etc.
   In the case of Abdul Kadir vs. Salima [i]Justice Mahmood said that husband has to pay Dower to his wife in consideration of marriage and if she has not mentioned Dower in deed she is still entitled to get it.

Remedies of unpaid Dower

Rights of women when her Dower is not paid to her:

1. Refusal to cohabit:
   When Dower is not paid to her after marriage she can refuse to cohabit with her husband if no consummation takes place. She can live her parents or guardian until her Dower s not paid. If consummation takes place between them she can not refuse to cohabit with her husband. But if she is still refusing to live with him then she is not entitled to proper Dower, but a conditional Dower.
   
   In the case of Wilayat Hussain v. Allah Rakhi [ii], The court held in this case that even after consummation of marriage the husband failed to pay mahr to his wife and on this ground, she can refuse to fulfil her marital obligation.
   
   In the case of Rabia Khatoon vs. Muktat Ahmad [iii], sexual intercourse takes place with wife's consent, so it was held that proper Dower is of dismissal and she is entitled for conditional Dower.
    
2. Debt against husband:
   Dower is an unsecured debt against husband. Husband is liable to pay Dower to his wife if she has not mentioned about Dower in kabinama. If husband is died, she is still entitled to claim it from his deceased husband's legal heirs.
   
   In the case Syeed David Hussain vs. Farzand Hussain [iv] it was held that 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.
   
   Bano Begum v. Mir Aun Ali [v] In this case, the Bombay High Court held that as per Muslim law if a widow has never received the amount of Haq Mahr by her deceased husband when she was divorced, then in such a situation she can approach the court for the payment of Dower money. Thus, the court will be under an obligation to pass an order for the recovery of the entire amount mentioned in the nikahnama.
    
3. Possession of property:
   If no Dower is paid to her she can retain his husband's property in lieu of Dower. She is entitled to get the possession of property only not the ownership of that property. She has no title to that property so she cannot alienate the property of her husband.
   
   In the case Mama Bibi vs. Chaudhary Vakil Ahmed[vi] , a widow after the death of her husband, retained her husband's property. In 1902, her husband's legal heirs challenged it in the court. In 1903, the decision came in favour of legal heirs. In 1907, Mma Bibi gifted the property to one of her relative. Again legal heirs of husband challenged it before Privy council and it decided the case in favour of legal heirs of husband.

Remission of Dower:

Wife can remit the Dower in favour of her husband. She can remit it if she wants to relieve stress of her husband. Remission of Dower is solely on discretion of wife.

For this purpose some conditions must be fulfilled:

1. If wife attains the age of majority
2. If she is of sound mind
3. Dower is remitted by free consent, no undue influence.
4. Remission can be done after the marriage whether before or after the consummation of marriage. No remission can take place before the marriage.
5. Remission can takes place even without the consideration.

Rights of Dower

These are the following rights of Dower given to wife:

1. Even after Apostasy she can claim her Dower.
2. After matrimonial offences like divorce, cruelty, adultery etc. she can claim it.
3. Under unspecified Dower, the court can fix her Dower amount.
4. It is an unsecured debt against husband. Even after the death of her husband she can claim it from his husband's legal heirs.
5. If no Dower paid by her husband she can attach her husband's property until her Dower paid.

Limitation period of Dower

Dower is an unsecured paid against husband. If no Dower is paid to wife , she can claim it within 3 months from the date of Dower refusal. If her husband is died she is still entitled to claim it from her husband's legal representatives within 3 months from the date of death. If she is divorced she is entitled to claim it within 3 months from the date of divorce.

Conclusion
In the end we can conclude that before Islam the condition of women was miserable. After introduction of Islam, many changes took place. One of the drastically change was Dower which was introduced in favour of Muslim wife. The purpose of Dower is to preserve the rights of wife. The purpose is that when husband divorces his wife, she can maintain herself after divorce. Even husband could think twice before utterance of these words.

End-Notes:

1. AIR 1886
2. AIR 1880
3. AIR 1966
4. AIR 1937
5. AIR 1907
6. AIR 1925