Dower is inherent in the concept of Muslim marriages and it is an integral part of it also.
Dower is one of the conditions of validity of Marriage and an agreement to forgo it is not permitted because of the words of the Exalted,
“And give unto the women (whom ye marry) free gift of their marriage portion (Quran 4:4) and His words “So use them by permission of their folk and give unto them their portion in kindness (Quran 4:25).
Mahr only belongs to the wife in Islamic Law.
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Definition of Dower:
Under Mohammadan Law, Dower is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage.
Even when no dower is expressly fixed or mentioned at the marriage ceremony, the Law confers the right of dower upon the wife.
It is an obligation imposed by Law upon the Husband as a mark of respect to the wife.
Subject Matter of Dower:
The subject matter of the dower may be any of the following,
- Any specified thing which has come value.
- Must be in existence and is capable of taking possession like immovable property, Goods, and Cash.
- Not Prohibited
The Capacity of Parties to the Contract:
Any person who is a Major and sane can enter into the contract of dower either directly or through an agent. Minor whether the Husband or wife can enter into the contract of dower through a guardian or agent.
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Objects of Dower:
The payment of dower(Mahr) is enjoined by the law merely as a token of respect for its object (woman). As a fundamental feature of Muslim marriage, it is so important that it is not mentioned at the time of marriage, the law will presume it. The objects of Mahr are many such as: –
- To improve an obligation upon a husband
- The subject of respect toward the wife
- To offer protection to the wife and
- As a deterrence of the husband’s absolute power of pronouncing divorce upon the wife.
Dower(Mahr) in Islam:
In the Holy Quran, Allah Almighty says;
Kinds of Dower:
Saying of Hazrat Ali (R.A),
“There can be no marriage without dower”
According to Muslim Law, there are two kinds of dower in Islam. These dowers are as follows: –
- a). Specified dower (Al Mahrul Musamma or Mahr ul Aqd)
- b). Unspecified dower (Mahrul mithl or proper dower or dower of the like)
Specified dower may again be divided into the following: –
- i). Prompt dower (Mu, ajjal)
- ii). Deferred dower (Mu, wajjal)
Question Before Court:
In the (a) specified dower and (b) unspecified dower, the question before the court is the amount payable and in (i) and (ii) the question before the court is the time when payment has to be made.
a). Specified Dower: – (Al Mahrul Musamma or Mahr ul Aqd)
Specified Dower Meaning:
It is that in which the dower is specified at the time of the marriage contract between the parties.
Amount of Dower:
The amount of the dower may either be fixed or not if it is fixed, it can not be a sum less than the minimum laid down by the law.
According to Hanafi law, the minimum dower is ten Darahim.
According to Maliki law, the minimum dower is three Darahim.
According to Shafi law, there is no fixed minimum dower.
According to Shia law, there is no fixed minimum dower.
According to Sunni Law, there is no fixed maximum dower.
According to Shia law, if the dower is above five hundred Darahim then it is undesirable.
Prompt dower is the Mahr that is payable on demand and is payable immediately after marriage if demanded by the wife.
She can demand it before entering into a conjugal relationship. The payment of Mahr can be postponed with the mutual consent of the parties.
In simple words, a Prompt dower is that which is promptly paid at the time of the marriage contract or is payable on demand.
The term (Mu, wajjal) means delayed or deferred. Deferred dower is postponed till a specified time or dissolution of marriage either by death or divorce.
A wife cannot demand it before a specified time or during the subsistence of a marriage and this Mahr binds the husband during his lifetime and his estate after his death.
If at the time of marriage, it is not specified which part of Mahr is prompt and which deferred, then Sunni Law treats ½ as prompt and ½ as deferred and Shia Law regards the whole as prompt.
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b). Unspecified Dower: – (Mahrul mithl or proper dower or dower of the like)
A proper dower is the dower of the equals of the wife. That is the amount that the court may consider payable to the wife with due regard to the position of husband and father and the dower of other females of the father’s family.
Fixation of Amount of Proper Or Unspecified Dower:
No fixed rule is laid down to determine the proper dower. But the following factors are to be considered at the time of determination: –
- Position of father’s family
- Position of husband’s family
- Dower settled on the female paternal relations
- Wife’s personal qualifications like age, beauty, education, position in society
- Any other factor.
When No Dower Mentioned:
Being a legal requirement proper dower will be considered payable.
If the condition mentioned No dower at all:
Such condition shall be void and the dower shall be considered as proper dower.
If the Dower is not fixed and before consummation Divorce occurs:
In such a situation, the dower shall not be payable.
If the Dower is not fixed and Before consummation one of them Dies:
Under such situations;
Hanafi Law: –
According to Hanafi Law, the proper dower is payable.
Shafi Law: –
According to Shafi Law, no dower is payable.
Dower to What Extent Due: –
i). Marriage is Valid, After Consummation, Dissolved: –
If the marriage is valid and after the consummation, it is dissolved then in such situations: –
-If Specified: –
If the dower is specified then the full dower is payable.
ii). Marriage is Valid, Before Consummation, Dissolved: –
If the marriage is valid and before the consummation, it is dissolved then in such situations: –
-If Specified: –
If the dower is specified then half dower excluding addition is payable.
-If Not Specified: –
If the dower is not specified then the dower is not payable.
iii). Marriage Irregular After Consummation: –
-If Specified: –
If the dower is specified then the specified amount is payable.
-If Not Specified: –
If the dower is not specified then the proper dower is payable.
Remedies of Wife:
a). In the case of Prompt Dower:
In the case of prompt dower if it is unpaid the wife can refuse to live with the husband and it is a complete defense in a suit for restitution of conjugal rights by the husband. The wife and after her death her legal heirs can file suit.
i). Within three years from the date when the demand is made or
ii). From the date when the marriage was dissolved.
b). In the case of Deferred Dower:
Deferred dower becomes due on the dissolution of marriage either by death or divorce. If it is unpaid the wife or if she dies her legal heirs can file suit.
Such suit shall be filed within three years from the date of dissolution of the marriage.
Between Prompt and Deferred Dower:
|It becomes due at once after the solemnization of the marriage
|It becomes due only after happening of specified event or dissolution of marriage
|It becomes payable immediately after demand by the wife at any time
|Demand by wife does not make it prompt
|The wife is entitled to recover it at any time during the subsistence of the marriage
|Cannot be recovered before the dissolution or stipulated time
Between Shia and Sunni Law:
|No minimum amount of dower fixed
|Hanafis fix it at 10 dirhams and Malikis fix it at 3 dirhams
|If the amount is fixed and not mentioned whether
it is prompt or deferred, the whole shall be considered prompt.
|In such a case, half will be prompt and half will be deferred
|An adult and sane wife can forego her dower
|A wife cannot forego her dower at the time of nikkah
|Proper dower should not exceed the amount of Mahr-e-Sunnat
|No such restriction under Sunni Law
Keeping in view the above discussion it is clear that the dower may be a specified dower (Al Mahrul Musamma or Mahr Ul Aqd) or an Unspecified dower (Mahrul mithl or proper dower or dower of the like). Specified dowers may again be divided into prompt dowers (Mu, ajjal) and deferred dower (Mu, wajjal).