India is a secular country. The term 'secular' is interpreted as that there
is no religion of the State. It treats all religions equally. The Indian
Constitution guarantees that every person has the freedom of conscience and the
right to profess, practice, and propagate religion. This leads to the creation
of different personal laws with respect to religion. All Muslims are generally
governed by Muslim personal law. The Muslim personal law contains different
legal provisions regarding marriage, Dower, divorce, will, maintenance, etc.
As already stated above, the concept of Dower for all Muslims are governed by
Muslim personal law. Under Muslim law, Dower is known as 'Mahr'. Mahr is a sum
of money that the husband has to pay to the wife on marrying her. Through this
article, we will be understanding the concept of Mahr under Muslim law.
Meaning of Mahr
In the literal sense, the Arabic term 'Mahr' means Dower. It is a sum of money
that becomes payable by the husband to the wife on marriage. The Mahr is
executed either by agreement between the parties or by operation of law.
Various jurists have tried to define Mahr various jurists have tried to define
In the case of Abdul Kadir v. Salima, (1886),
- According to Wilson, Mahr or Dower was a form of consideration for the
surrender of a person by the wife.
- According to Mulla, a Dower is either a sum of money or property which
the wife is entitled to receive in the consideration of marriage from the
- According to Ameer Ali, a Dower is a kind of consideration that belongs
to the wife.
honorable Justice Mahmood held that Dower under Muslim law is a sum of money or
property which is promised by the husband to be paid or delivered to the wife in
consideration of marriage and even if the Dower is not expressly mentioned at
the time of marriage, the wife still has the right of Dower.
Origin of Mahr
In the old pre-Islamic Arabia, the institution of marriage was way different
than today it is. At that time, different forms of sexual relationships were
prevalent between men and women. The women were usually the victims of abuse.
Men used to leave their wives after despoiling them.
There was no such proper system of law regarding marriage, thereby men used to
refuse to give any monetary help to the wife after leaving them. Shighra form of
marriage was observed during those times. In this form of marriage, 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. In this form of
marriage, the wives would not get any Dower.
Another form of marriage was Beena marriage. In this form of marriage, the
husband visited the wife but did not bring her home, the wife was called Sadiqa
and a gift was given to the wife on marriage known as Sadaq. It is believed that
in Islam Sadaq was the very first form of Dower.
In the Baal marriage, the concept of Mahr was introduced. Mahr was a kind of
gift or compensation which was given to the parents of the wife in the Baal form
of marriage. The Mahr usually belonged to the wife's parents or guardians.
However, over time, the ancient form of marriage was slowly abolished.
Promulgation of Islam gave a new form of Nikah to marriage. This form of
marriage stated that if a man separates himself from his wife, then he should
send her away with generosity, and also so the man cannot take back the goods
which were once given to the wife. This custom of marriages in Islam originated
the concept of the husband giving payment to the wife on marriage as a means of
support in her old age. In Islamic law, Mahr solely belongs to the wife.
Difference Between Consideration In Contract And Consideration In Muslim Law
From the above definitions, we have observed the term 'consideration'. The
ambiguity which arises is whether the term 'consideration' is similar to that in
contract or is different from it. From various cases, and observations in real
life, it has been affirmed that the term 'consideration' is different from that
used in the contract.
Without consideration, a contract is generally void but if the Dower or the
consideration is not mentioned during the time of marriage, the marriage does
not become void. However, the law requires Dower to be paid to the wife on
marriage. Under Islamic law, regarding Mahr, consideration means an obligation
imposed upon the husband by the law as a mark of respect for the wife.
The conflict between the terms 'Mahr' and 'dowry'
The literal meaning of the term 'Mahr' is Dower, however, the two terms have
some distinct differences. In Muslim law, the concept of Mahr is to ensure
women's financial security. However, dowry is a social evil. Dowry is generally
asked by the king of the bridegroom from the bride's family as a gift to the
marriage. Under Indian law, dowry has been defined in Section 2 of the Dowry
Prohibition Act, 1961. It is thus to be noted that Mahr and dowry are two
different concepts. One ensures security and the other is a social evil.
Classification of Dower
The Dower may be classified into:
Specified Dower: In this kind of Dower, the amount of Dower is stated in the marriage
contract. The Dower may be settled between the parties either before the
marriage or at the time of marriage or after the marriage. If the marriage
takes place of a minor or lunatic boy, then the amount of Dower can be fixed
by the guardian.
The husband can settle any amount of Dower. However, he cannot settle the
amount of Dower less than ten Dirhams according to Hanafi law and three
Dirhams according to Maliki law. Shia law does not state any minimum amount
of Dower. In the case of those husbands who are very poor and are not in a
position to pay ten Dirhams, then according to the Prophet, they are
directed to teach the Quran to the wife instead of the Dower. There is no
maximum limit on the amount of Dower.
The specified Dower can be classified into:
Prompt Dower: It is payable immediately after marriage on demand.
Deferred Dower: It is paid after the dissolution of marriage either by death or
Proper or customary Dower: If a marriage is completed without the amount of
Dower fixed in the marriage contract or marriage is completed on the condition
that the wife should not claim any Dower, then the wife is entitled to proper
Dower. The amount of proper Dower is decided by taking into consideration the
amount of Dower settled upon other female members of the father's family.
The proper Dower is regulated with reference to the following factors:
- Personal qualifications of the wife. Like her age, beauty, virtue,
- Social position of her father's family.
- Dower given to her female paternal relations.
- Economic conditions of husband.
- Circumstances of time.
Under Sunni law, there is no maximum limit for a proper Dower but under Shia
law, the proper Dower should not exceed 500 Dirhams.
What to do if the amount of Dower is intentionally given low and the wife cannot
At times, it has been observed that few husbands intentionally give a low amount
of Dower, even when their economic condition is well. The amount of the Dower is
observed to be so low. that the woman becomes unable to maintain herself. This
problem was eventually making the object of Dower futile.
To overcome this
problem, legislation was made so that a reasonable Dower is given. Therefore,
the legislature was given full power to maintain the amount of Dower providing
that the court will not be bound to award the amount of Dower according to the
Rights of wife when Dower is not paid to her
Every woman under Muslim law has the right to claim a Dower on the commission of
marriage. Like any other law, if such a right is violated, then the woman has
some remedies. Muslim law confers upon a wife or a widow to some rights to
compel to get the payment of Dower:
- Refusal to cohabit
If the marriage has not been consummated, then the wife has a right to refuse to
cohabit with her husband as long as the prompt Dower is not paid. If the wife is
minor or insane, then the guardian has a right to refuse to send her to her
husband's house until the payment of a prompt Dower is given. During the period,
the wife stays in her guardian's house, the husband is bound to maintain her.
However, if consummation has taken place after marriage, then the wife loses the
absolute right to insist on the payment of prompt Dower. This is because the
husband can file a suit for restitution of conjugal rights. If the wife still
refuses to cohabit with her husband, then she is only entitled to a decree
conditional payment on Dower.
In the case of Rabia Khatoon v. Mukhtar Ahmed, (1966):
It was held that if the suit is brought after sexual intercourse has taken place
with her free consent, the proper decree to pass is not a decree of dismissal,
but a decree for restitution, conditional on payment of prompt Dower.
In deferred Dower, the payment of Dower is a contingent event. Therefore, the
question which arises is whether the wife can refuse to the husband is conjugal
rights or not. There has been a difference of opinion regarding this. Famous
jurist, Abu Yusuf is of the opinion that she can refuse to cohabit if a deferred
Dower is not paid. However, famous jurist Imam Mahmood, Shia Law is of the
opinion that the wife cannot refuse to cohabit in cases of deferred Dower.
- Right to Dower as a debt
According to the lordships of Privy Council, it was held that the Dower ranks as
a debt and the widow is entitled along with other creditors to have it satisfied
on the death of the husband, out of his estate. If the husband is alive, then
the wife can recover the Dower by instituting a suit against him. In cases where
the Dower debt is remaining unpaid, the widow can enforce her claim for the
Dower debt by filing a suit against the husband's heirs. However, the heirs are
only liable to the extent to which and in proportion to which they inherit the
property of the deceased husband.
In the case of Syed David Hussain v Farzand Hussain (1937),
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.
- Right to retain possession in lieu of unpaid Dower
Dower ranks as a debt and the wife is entitled along with the other
creditors to have it satisfied on the death of her husband out of his
estate. Her right is however no greater than that of any other unsecured
creditor except that if she lawfully obtains the position of the whole or
part of his estate, to satisfy her claim with the rents and issues accruing
therefrom she is entitled to retain such position until it is satisfied. The
right to retention does not give her any title to the property. Therefore,
she cannot alienate the property.
A widow's right to retain possession of her husband's estate in lieu of a
Dower is a photo special purpose. It is by a way of compulsion to obtain speedy
payment of the Dower which is an unsecured debt.
Effect of apostasy on Dower
Apostasy has a huge impact on Muslim personal law. It is believed that the
apostasy of man from Islam denotes immediate dissolution of marriage. On the
other hand, apostasy by the wife from Islam does not denote immediate
dissolution of marriage.
As per Section 5 of the Dissolution of Muslim Marriage Act 1939, a married
Muslim woman shall have the same rights in the respect of the Dower under the
dissolution of marriage under this Act. The dissolution of marriage under the
Act, even though made after the apostasy of the wife does not take away her
right to Dower.
Suit for Dower and limitation
If the Dower is not paid to the wife while she is alive, then after her death,
her heirs can claim it. The period of limitation as per the Limitation Act,
1963, for a suit to recover prompt Dower is three years from the date when the
Dower is demanded or refused. In the case of deferred Dower, the period of
limitation is 3 years, from the date when the marriage is dissolved by death or
The concept of Mahr in Islamic law is beneficial for the woman. It ensures
financial security so that she is not left helpless after the death of the
husband or after the termination of the marriage. It also places a check on the
capricious use of divorce by the husband. It is also believed that the Mahr is a
pivotal custom in the marriages of Muslims.