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Concept Of Meher In Islam

A Muslim matrimony is different from a Hindu one. A Hindu marriage is a sacred ceremony, however, a Muslim marriage has another aspect to it. A Muslim marriage has a contractual aspect to it. It is a civil contract between parties. Hence, a man and woman come into a contractual agreement to marry each other. Now, according to the principles of contract law we know that a contract cannot be valid unless there is a consideration. Similarly, in a Muslim marriage, the concept of consideration finds its place in the form of 'dower'. The principles of 'offer and 'acceptance' also apply. The man offers the woman to get married and she either accepts directly or someone on her behalf who has been authorised to do so. The other mode of such a proposal can be by way of offering dower. And once the woman accepts this dower, it is deemed that she has assented to the marriage.1

Islam, unlike other religions, strongly advocates marriage and treats it as a social necessity. The purpose of Islamic marriage is the creation of families which are considered as a fundamental unit of the society. Muslim law recognizes marriage as a civil contract. Since there can be no contract without consideration, a Muslim marriage cannot be contracted without consideration and the consideration which is taken in a Muslim marriage is called "Dower". However, Muslim jurists treat it as a mark of respect towards the wife. Dower is a unique concept under Muslim law.2

Origin & Definition
´╗┐In old pre-Islamic Arabia, when the institution of marriage as we know it today was not developed, many forms of sex than prostitution. Men, after despoiling their wives, often turned them out, absolutely helpless and without any means. The ancient custom to settle certain sums for subsistence of the wife in the event she was turned out was often disregarded as there was no organised system of law. A device was in vogue under the name of SHIGHAR marriage in which a man would give his daughter or sister in marriage to another in consideration of the latter giving his daughter or sister in marriage to the former.

Thus neither of the wives could get a dower. False accusations of unchastity were frequently used to deprive the wife of her dower. In the so called Beena marriage, where the husband visited the wife but did not bring her home, the wife was called Sadiqa or female friend, and a gift given to the wife on marriage was called, Sadaq. In Islam Sadaq simply means a dowry and is synonymous with Mahr (sale price). But originally the two words (Sadaq and Mahr) were quite distinct. Sadaq was a gift to the wife in the Beena form of marriage and mahr was a gift or compensation to the parents of the wife in the baal form of marriage.

Mahr belongs to the marriage of dominion, which is known as the baal marriage, where the wife's parents (guardian) part with her and have to be compensated. Promulgation of Islam gave a new form of nikah to marriage, abolished this ancient custom and forbade unjust acts towards the fair sex, as is evident from the Quran. "If you separate yourself from your wives, send them away with generosity : it is not permitted to you to appropriate the goods you have once given to them". Thus the custom originated in ancient times with the payment which husbands often made to their wives as means of support their old age or when turned out by them. Mahr in the baal form of marriage was also recongnised by the prophet to ameliorate the position of wife in Islam, and it was combined with Sadag, so that it became a settlement or a provision for the wife. In Islamic law Mahr belongs absolutely to the wife, anything else.3

Definition:
Mahr or dower is a sum that becomes payable by the husband to the wife on marriage, either by agreement between the parties or by operation of law. It may either be prompt (Mu'ajjal), or deferred (Mu' According to Wilson, "Dower" is a consideration for the surrender of person by the wife. It is the technical Anglo-Mohammedan term for its equivalent According to Ameer Ali, "Dower" is a consideration which belongs "Mahr' in Arabic. absolutely to the wife.

According to Mulla, Dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. The word 'consideration' is not used in the sense in which the word is used in the Indian Contract Act. It is an obligation imposed upon the husband as a mark of respect to the wife.

Case Law:
Hon'ble Justice Mahmood has said in Abdul Kadir v. Salima 4, that:
Dower under the Muslim law is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of marriage, and even where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the wife.

The above opinions are based on the argument that marriage is a civil contract and dower is a consideration for the contract. But it is submitted that the above opinions are erroneous, because even in those cases where no dower is specified at the time of marriage, marriage is not void on that account, but the law requires that some dower (proper dower) should be paid to the wife. Abdur Rahim correctly observed, "It is not a consideration proceeding from the husband for the contract of marriage, but it is an obligation imposed by the law on the husband as mark of respect for the wife as is evident from the fact that non-specification of dower at the time of marriage does not affect the validity of marriage"5.

Importance & Objective Of Dower
According to Fatwa-i-Quazi Khan: Maher is so necessary to marriage that if it were not mentioned at the time of the marriage, or in the contract, the law will presume it by virtue of the contract itself. Dower is so essential under the Muslim Law of marriage that even if there is an agreement made by the wife before marriage that she will revoke her right of dower and will not claim for dower in future or she agrees to marry without any dower, that agreement will be invalid according to law. This is done to protect the wife from the power of husband to give divorce and to prevent its misuse. Under Muslim Law, husband can give divorce to his wife as his will so the object of dower is to prevent the misuse of such power and also to prevent polygamy.

The object of Dower are:
  1. To enforce an obligation on husband as a mark of respect towards his wife,
  2. To place a check on the misuse of power to give divorce by the husband,
  3. To provide for her livelihood on the dissolution of her marriage, so that she can lead her dignified life after the death of her husband or divorce.
     
Increase Or Decrease Of Dower
Husband can increase the amount of dower at any time and also the wife can remit the dower wholly or partially but it should be done by her free consent. A Muslim girl who has attained puberty can relinquish her dower, it is not mandatory that she has attained majority (which is 18 years according to Indian Majority Act) or not. The remission of Mahr by wife is called Hibe-e-Mahr. In any case after the death of husband, wife suffers mental distress, then remission of dower at that condition will be considered against her free consent and will not be binding on her.
In Karachi case, it was held that in certain circumstances remission of dower will not be binding on her, for instance husband shows indifference towards his wife and he makes it obvious that the only way to resolve those indifference is when she remit the dower, and makes a document for the same, then it will be against her free consent and also against justice and equity.6


Classification of Dower
Dower is mainly classified into two types namely- (a) Specified dower i.e. dower which is fixed and (b) proper dower, which is dower that has not been fixed. Specified dower is further sub- categorized into prompt dower and deferred dower.
  1. Specified dower:
    If the amount of dower has been fixed by the parties before the marriage or at the time of marriage, it is called specified dower or Mahr-i-musamma. Execution of deed for fixing the dower is not necessary under Muslim law. If the bridegroom is a minor or a person of unsound mind, the dower is generally fixed by his father/guardian. Dower fixed by the guardian is binding on the minor who cannot, after attaining the age of puberty, take the plea that he was not a party to it. Under Sunni law, dower fixed by the father is binding on the son though he is not personally liable for it. Under Shia law, if the son has no means to pay the dower fixed by the father, the father becomes liable to pay it. Specified dower can be paid before or at the time of or anytime after the marriage.

Case Law:
In Kukkiya Begum vs. Radha Kishan, AIR 1944 All 241, the Allahabad High Court held that amount of dower fixed earlier may be increased after the marriage by mutual consent.

Specified dower is of the following types:
  1. Prompt dower:
    A specified dower which is payable immediately after the marriage or at any other time on the wife's demand is called prompt dower. It may be realized before or after consummation and it does not get deferred after consummation of the marriage.
    Wife has the right to sue for recovery of prompt dower even after consummation of the marriage. Unless the marriage has already been consummated, the husband becomes entitled to enforce conjugal rights only after the payment of prompt dower.

    Case Law:
    In Rabia Khatoon vs. Mukhtar Ahmed, AIR 1966 All 548, the Allahabad High Court held that the wife may refuse to live with her husband and to admit to sexual intercourse until prompt dower has been paid. It was further held that prompt dower is payable on demand and proof of sexual intercourse between the parties is not necessary for claiming payment.
     
  2. Deferred dower:
    If a specified dower is not payable immediately after marriage and is payable upon the happening of any event or after the expiry of a particular period or upon the dissolution of marriage, it is called deferred dower or Mahr-i-Muwajjal. The wife is not entitled to demand payment of deferred dower unless otherwise agreed upon by the parties. The wife's interest in deferred dower is a vested one and not a contingent one. On the death of the husband, the wife has the right to relinquish her dower but the relinquishment must be voluntary.
    If no period or event has been fixed for payment of the deferred dower, it shall be payable on the termination of the marriage by divorce or by the death of either party.
     
  3. Proper dower:
    If the amount of dower has not been fixed between the parties, before or at the time of marriage, the wife is entitled to get a reasonable amount from the husband as dower. This dower is called proper dower or Mahr-i-Misl. It is payable on demand by the wife. Even if the marriage has been solemnized on the condition that the wife shall not claim dower, she is still entitled to claim proper dowe from the husband. The amount of proper dower is generally fixed by the Court taking the following factors into consideration: personal qualifications of the wife.
  • wife's age, beauty, fortune, understanding, and virtue.
  • the social position of the wife's father's family.
  • economic status of the husband.
  • dower generally settled for women in wife's father's family such as her sister, paternal aunt or paternal parallel cousin, etc.7
     
Difference between Sunni and Shia Laws relating to dower:
Sunni Law:
  1. A minimum limit of 10 dirhams is prescribed for specified dower
  2. There is no limit to proper dower.
  3. There is no maximum limit for specific dower.
  4. If marriage is dissolved by death and dower has not been specified, or it is agreed that no dower shall be payable, proper dower would be due whether the marriage was consummated or not.
  5. An agreement that no dower shall be due is void.
  6. In the absence of an agreement only a reasonable part of the dower is presumed to be prompt.
Shia Law:
  1. No minimum limit is prescribed.
  2. Proper dower cannot exceed 500 dirhams.
  3. Fixing of dower exceeding 500 dirhams is considered abominable though not illegal.
  4. In such case no dower would be due if the marriage was not consummated.
  5. Such agreement by sane and adult wife is valid.
  6. The whole dower is presumed to be prompt.8
  7. Meaning of Dower, 2017
  8. Ahmad, Mohammedan Law, 2021
End-Notes:
  1. Vikas, Concept of Dower - Muslim Law, 2020)
  2. Meaning of dower, 2017)
  3. Ahmad, 2021)
  4. 1886)
  5. Ahmad, Mohammadan Law, 2021
  6. Mahr under Muslim Law legalserviceindia
Bibliography:
  1. https://www.legalbites.in > concept-of-dower
  2. https://www.lawn.com > meaning of dower
  3. Aqil Ahmad Revised by Prof. Iqbal Ali Khan, Mohammedan Law, 148-149, Central Law Agency, 2021.
  4. https://www.legalserviceindia.com /legal/article-5105-mahr-under-muslim-law.html

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