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Status of Unpaid Dower Under Muslim Law: A Critical Analysis

Dower is an important subject matter under the Islamic Law. It is a unique concept of Islamic matrimonial Law[1] and different from other systems of law because no other law prescribes anything about dower.[2] The Muslim/Islamic law requires specific commitments for a marriage that are needed to be satisfied keeping in mind the end goal to complete the valid marriage; one of them is the payment of dower.

It was observed in the case of Abdul Kadir v. Salima[3] that dower/Mahr was the exchange or consideration given by the man to the women, but an effect of the contract imposed by the law on the husband as a token of respect for the wife. The term consideration is explained by Mahmood J, Mahr has been compared to the price in a contract of sale because marriage is a civil contract and sale is a typical contract to which Muslim Jurists are accustomed to referring by way of analogy.[4]

In the case Sayed Sabir Hussain v. Farsand Hussain[5] the court concluded that the dower paid by the husband to wife is the legal responsibility of the husband. Further, it was observed in the case of Anis Begam v. Mohd. Istafa[6] it was held that under Muslim law it could not be treated purely as the sale of the person by the wife in consideration for the payment of dower.

The dower is used as a real settlement in favor of the wife, and to recheck whether any disproportionate power rests with the husband in relation to the divorce.[7] In what form dower should be paid, does not create any legal difference; it is the only compulsion to one party that makes a difference. But in reality, it cannot be seen in today society, in most of the cases it is seen that the dower which was specified during the marriage were due and which were unspecified that is remains unpaid lifelong.

So as to keep up the social and economic status, the husband proclaims the higher sum for dower trusting that they won't be required to pay the dower once the marriage is performed. In the case of Hammeera Bibi v Zubaida Bibi[8] it was first time in the history of dower held by the Privy Council that the amount whatever is unpaid during the marriage should be paid in accordance with Islamic law and declared the right of the women to claim the unpaid dower with the interest amount which was contrary to the Islamic rule of law (taking of interest on loan amount).

Classification of Dower

It is clear now that dower is payable whether the entirety has been attached or not. A substantial Marriage isn't conceivable without the dower. Along these lines as a matter of first importance, the dower might be determined or unspecified. Accordingly, there are basically two types of dower under Muslim Law. One is called as Specified and second one is called as Unspecified or proper dower. Specified dower further divided into two categories, prompt and deferred.

In these two-classification specified and unspecified dower, the court only deals with the issue of the amount payable during the marriage. On the other hand, in prompt and deferred dower court has to deals with the issue of time with respect to when the payment of dower has to be made.
  1. Specified dower (mahrul-musamma)

    Across the Islamic world, the dower is fixed during the time of marriage and well before the marriage. It is fixed by the mutual consent of the parties. It is the nature of the dower that at whatever point the case of dower under the agreement is made by the spouse, the Court should, unless it is generally given by any authoritative authorization, grant the whole sum given in the contract.[9]

    In the case of Sayed Sabir Husain v. S. Farzand Hasan[10] the father made himself the security for the amount of dower and in this way he dies. The court held that the home of the deceased subject to pay the child's unpaid dower.
  2. Prompt (muajjal) dower & Deferred (muvajjal) dower

    The amount of dower which is paid under the specified dower is further divided into two heads that is prompt dower, which is payable on demand of wife at the time of marriage or any point of time. On the other side, deferred dower, this is paid in case of dissolution of marriage by divorce or death. The prompt portion of the dower may be realized by the wife at any time before or after consummation.”[11]

    In general, which part of dower is prompt and deferred is decided by the contract, which is known as mahr-nama. Usually, one half of the amount is fixed as prompt, and the other half is deferred dower. But, in this regard, there is no hard and fast rule. It is the custom under Islamic law to pay the prompt dower between the marriages or in case after the marriage when the wife demands it.[12]

    In the case of Mirza Bedar v Mirza Khurrum[13] it was held that when parties have not stipulated as to which part of the dower is prompt and which part is deferred, according to Shias” the whole amount is considered as prompt. On the side of Sunnis” it is considered that one half is prompt and another one is deferred dower.

    In Sheik Mohammad v Ayesha[14] the Madras High Court concluded that in the absence of any specific contract, the entire amount should be considered as prompt dower, irrespective of the fact whether parties are Shias or Sunnis. The question for the determination of prompt and deferred dower is again examined by the High Court of Lahore, in the case of Nasiruddin v Amatul[15] it was held that issue would be determined on the basis usages and customs. But in the absence of these custom and usages, one half is presumed to be prompt and the other half is deferred. Proportion of deferred and prompt dower is varying from case to case.[16]

  3. Unspecified dower (mahrul misal)

    In case the amount of dower is not fixed at the time or before the marriage then the dower of the wife is decided by the court relying on the various factors that are according to local customs, position of husbands, position of wife’s father, reference to dower of female paternal relations, personal qualifications that dower is known as unspecified dower.

    The proper dower of women is regulated by a regard to the nobility of her birth, the beauty of her person and the custom of her female relations.”[17]

    In the case of Najmoodeen v Beebee Husseinnie[18], it was held that on deciding unspecified dower the Muslim authorities do not favor taking into consideration the husband social status and position.

Status of Unpaid Dower

The legal obligation of the husband under the Muslim Law is to pay dower to the wife. An unpaid dower resembles like a simple debt in which the husband is like a debtor, and the wife is like a creditor. In the case of Hamira Bibi v Zubaida Bibi[19], it was held that the widow has a special right to demand the unpaid dower to his husband. Further it in this regard it was coated that dower is an essential incident under the Muslim Law to the status of marriage.... the dower ranks as a debt and the wife are entitled, along with other creditors, to have it satisfied on the death of the husband out of his estate.

Now matters come into consideration that whether widow can exercise right to retain possession of her husband property in lieu of unpaid dower is debatable and still into consideration. In the case Babee Bachum v Hamid Hussain[20], it was held that the possession of the husband property could be acquired by the wife in lieu of the unpaid dower without force or fraud. The same principle lay down in the case of Mania Bibi v Chaudhri Vakil Ahmad[21] where it was held that property should be peaceably and lawfully acquired. Further, the court contended that when the possession of the husband property is peacefully and lawfully obtained, the right of the widow to retain it till her dower debt is paid is confirmed on her by the Muslim Law.

Now again matter come into the consideration that whether the widow right of retention in lieu of unpaid dower is transferable and heritable. There is a plethora of conflicting judicial opinion on this point. Some of the cases in which the court held that right of retention of the property are not heritable right.[22]

On the other hand, contrary to this rule in the case of Mir Vaheed Ali v Rashid Beg[23], it was held that the right of retention of the property is heritable. Further Mysore High court in the case of Hussain v Rahim Khan[24] held that the right is both heritable and transferable. On contrary Patna High court deciding the same issue in the case of Zobair Ahmad v Jainandon Parasad[25] held that it is not transferable.

According to the Supreme Court in Kapore Chand v Kedar Unnissa[26] the right to possession of the property is not a transferable right.

In Ghouse Yar khan v Fatim Begham[27], it was held by Andhra Pradesh High court that possession of the property by widow my retained for unpaid dower under Muslim law this right can be alienated and inherited.

Not all rights available with a mortgagee are available to a Muslim widow. Hence, in case the possession of a deceased husband’s property is obtained by his widow and it is a property that has already been mortgaged to another person, and a suit is brought about by the mortgagee on the basis of which the property under consideration is sold off, the widow can be dispossessed by the purchaser and the right to obtain possession cannot be set up by her unless the debt of dower is paid.

There are conflicting opinions of various high courts and the Supreme Court on the status of unpaid dower with regard to the rights of women when dower is unpaid. So, we can say that the court has failed to explain all the possibly existing rights of the women when dower is not to be paid by the husband.

In the case of Shahana Bibi v Nadeem Shah[28] it was held that, in case of mental cruelty, non-payment of maintenance allowance, expulsion from the house by the husband, are the ground for the dissolution of marriage and hence they are entitled to the recovery of dower that was unpaid and also maintenance.

The practices with respect payment of dower are still continuing in Islamic Marriages Law. Payment dower continues to hold essential in Islamic marriages. It was concluded from the case law that women have special rights to claim her unpaid dower and husband have a legal obligation to pay such amount. In lieu of unpaid dower, women can exercise her right to retain the property of the husband is still conflicting. In this respect, the High Courts and Supreme Court across the country have expressed different opinions. There is no single position of law that they have arrived at.

As far as unpaid dower is concerned, the majority opinion suggests that unpaid dower basically remains as a debt that must be paid by the husband to wife in case of Muslim marriages. Additionally, the general opinion on whether a widow has the right to retain possession of the property after the husband has deceased is that the women do have the right, but the same is not transferable. As said previously, different opinions on this issue have been given by different Courts across the country. What remains to be seen is how the jurisprudence on this will further develop and affect the rights with respect to the dower of women married under Muslim law.

[1] Abdul Kadir v. Salima, [1886] 8 All 149.
[2] Paras Diwan, Law of Marriage & Divorce (7th ed. Universal Law Publishing 2011).
[3] Abdul Kadir v. Salima, [1886] 8 All 149.
[4] Paras, supra note 2, at 4.
[5] Sayed Sabir Hussain v. Farsand Hussain, AIR 1938 PC 80.
[6] Anis Begam v. Mohd. Istafa, ILR 1933 ALL 743.
[7] Moslay Uddin & Md.Ayatullah, Muslim Law: Judicial And Legislative Changes Around The World (4th ed. Universal Law Publishing 2014).
[8] Hamira Bibi, Amina Bibi And Ors. v. Zubaida Bibi And Ors., [1916] ILR ALL 581.
[9] M. Hidayatullah & Arshad Hidayatullah, Mulla: Principles of Mahomedan Law (19th ed. Lexis Nexis 2013).
[10] Sayed Sabir Husain v. S. Farzand Hasan, [1938] 40 BOM LR 735.
[11] Rehnana Khatun v. Iqtidar Uddin, [1943] ALL LJ 98.
[12] Paras Diwan, Law of Marriage & Divorce (6th ed. Universal Law Publishing 2011).
[13] Mirza Bedar v. Mirza Khurram, [1873] 19 WR 315 (PC).
[14] Sheikh Mohammad v. Ayesha, AIR 1938 Mad 107.
[15] Nasiruddin v. Amatul, AIR 1948 Lah 135 (FB).
[16] Nasiruddin v. Amatul, AIR 1948 Lah 135 (FB).
[17] Amir Ali, Mohammendan Law (5th ed. Universal Law Publishing 2012).
[18] Najmoodeen v. Beebee Husseinnie, [1865] 4 WR 110.
[19] Hamira Bibi v. Zubaida Bibi, [1916] 43 IA 294.
[20] Babee Bachum v. Hamid Hussain, [1871] 14 MIA 377.
[21] Mania Bibi v. Chaudhri Vakil Ahmed, [1924] 52 IA 145.
[22] Muzzaffar Ali Khan v. Parbati, [1907] ILR 29 ALL 640.
[23] Mir Vaheed Ali v. Rashid Beg, AIR 1951 BOM 22.
[24] Hussain v. Rahima Khan, AIR 1954 MYS 24.
[25] Zobair Ahmad v. Jainandon Prasad, AIR 1960 Pat 147.
[26] Kapore Chand v. Kedar Unnissa, [1950] SCR 747.
[27] Ghouse Yar Khan v. Fatim Begham, AIR 1988 AP 354.
[28] Mst. Shahana Bibi v. Nadeem Shah and Ors., [2015] MLD 1623.   

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