Dower is an important subject matter under the Islamic Law. It is a unique
concept of Islamic matrimonial Law and different from other systems of law
because no other law prescribes anything about dower. 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
 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
In the case Sayed Sabir Hussain v. Farsand Hussain
 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.
 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. 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
 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
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.
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
In the case of Sayed Sabir Husain v. S. Farzand Hasan 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.
Prompt (muajjal) dower & Deferred (muvajjal) dowerThe 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
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
In the case of Mirza Bedar v Mirza Khurrum 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 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 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.
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.”
In the case of Najmoodeen v Beebee Husseinnie, 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
, 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, 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 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
On the other hand, contrary to this rule in the case of Mir Vaheed
Ali v Rashid Beg, it was held that the right of retention of the property is
heritable. Further Mysore High court in the case of Hussain v Rahim
 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
 held that it is not transferable.
According to the Supreme Court in Kapore Chand v Kedar Unnissa
 the right to
possession of the property is not a transferable right.
In Ghouse Yar khan v
, 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
 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.
 Abdul Kadir v. Salima,  8 All 149.
 Paras Diwan, Law of Marriage & Divorce (7th ed. Universal Law Publishing
 Abdul Kadir v. Salima,  8 All 149.
 Paras, supra note 2, at 4.
 Sayed Sabir Hussain v. Farsand Hussain, AIR 1938 PC 80.
 Anis Begam v. Mohd. Istafa, ILR 1933 ALL 743.
 Moslay Uddin & Md.Ayatullah, Muslim Law: Judicial And Legislative Changes
Around The World (4th ed. Universal Law Publishing 2014).
 Hamira Bibi, Amina Bibi And Ors. v. Zubaida Bibi And Ors.,  ILR ALL
 M. Hidayatullah & Arshad Hidayatullah, Mulla: Principles of Mahomedan
Law (19th ed. Lexis Nexis 2013).
 Sayed Sabir Husain v. S. Farzand Hasan,  40 BOM LR 735.
 Rehnana Khatun v. Iqtidar Uddin,  ALL LJ 98.
 Paras Diwan, Law of Marriage & Divorce (6th ed. Universal Law Publishing
 Mirza Bedar v. Mirza Khurram,  19 WR 315 (PC).
 Sheikh Mohammad v. Ayesha, AIR 1938 Mad 107.
 Nasiruddin v. Amatul, AIR 1948 Lah 135 (FB).
 Nasiruddin v. Amatul, AIR 1948 Lah 135 (FB).
 Amir Ali, Mohammendan Law (5th ed. Universal Law Publishing 2012).
 Najmoodeen v. Beebee Husseinnie,  4 WR 110.
 Hamira Bibi v. Zubaida Bibi,  43 IA 294.
 Babee Bachum v. Hamid Hussain,  14 MIA 377.
 Mania Bibi v. Chaudhri Vakil Ahmed,  52 IA 145.
 Muzzaffar Ali Khan v. Parbati,  ILR 29 ALL 640.
 Mir Vaheed Ali v. Rashid Beg, AIR 1951 BOM 22.
 Hussain v. Rahima Khan, AIR 1954 MYS 24.
 Zobair Ahmad v. Jainandon Prasad, AIR 1960 Pat 147.
 Kapore Chand v. Kedar Unnissa,  SCR 747.
 Ghouse Yar Khan v. Fatim Begham, AIR 1988 AP 354.
 Mst. Shahana Bibi v. Nadeem Shah and Ors.,  MLD 1623.