According to Muslim Law, Mehr (dower) means money or property which the wife must receive from husband in consideration of the marriage but this is not same as the civil contract. The major object of the dower is to provide wife her subsistence after dissolution of marriage so that she may not become helpless and fulfill her needs after the death or termination of marriage by divorce. Dower is a sum that becomes payable by the husband to the wife on marriage either by agreement between the parties or by the operation of law. If may either prompt or deferred. . If the dower is not paid to the wife she can refuse herself to husband and even can sue her husband for the recovery of the dower in a court. Dower is the only right of women that no one can snatch. It is totally women’s will that she utilizes it. The husband has no right to even ask about it from his wife. The term Dower is defined under section 285 as a sum or property which the wife is authorized to receive from her husband in consideration of the marriage. The word consideration is not use in the same as it is used under Contract Act. Mahmood J., in Abdul Kadir v. Salima said that it had been compared to price in a contract of sale because it is civil contract. The amount of dower may be fixed either before or after the marriage and also can be increased after the marriage. A contract by a father on behalf of his minor son is binding on the son. Such contract may be made even after marriage, provided the son was then a minor. Among Sunnis the father does not, by entering into such a contract, become personally liable for the dower debt, nor is he liable for it merely because he consents to the marriage. The husband may settle any amount he likes by the way of dower upon his wife, though it may be beyond his means, and though nothing may be left to his heirs after payment of the amount. Muslim marriage is like a contract where wife is property and Mehr is a price for the property. If Mehr is not paid that doesn’t mean that the marriage will become void, Mehr is not purely a consideration. In pre-Islamic Arabia sadqqua was a gift and Mehr was price given to wife’s fathers as a sale price. But after Islam Mehr was paid to wife to fulfill her own necessity and no longer regarded as sale price. The Mahr (Dower) belongs to wife and she can deal with it in the manner she likes it and neither her husband nor husband’s relations nor even her relations can dictate her in matter of using the Mahr money or property. No doubt, Mahr was originally analogous to sale price, but since the inception of Islam, it is hardly correct to regard it as the price of sexual intercourse. If you divorce them before you have touched them, and you’ve fixed for them the dower, pay half of of what you have fixed. According to wolson, “Dower” is a consideration for the surrender of man or woman through the wife. It is the technical Anglo- Mohammedan time period for its equivalent “Mahr” in Arabic. According to Ameer Ali, “Dower” is a consideration which belongs virtually to the wife. According to Dr. Jung defines, “Dower” as the assets or its equivalent, incumbent at the husband either with the aid of cause of being agreed within the settlement of marriage or through virtue of a separated settlement, as special consideration of Buza, the proper of enjoyment itself. There are two types of Dower Specified dower and Customary dower and specified dower is divided into two parts, prompt dower and deferred dower. In many states, a widow is entitled to a statutory proportion in her husband’s estate. This is often known as elective percentage due to the fact the surviving spouse can pick out to accept the provisions made for her in the decedent’s will or accept the share of the property specified by using regulation of Descent and Distribution or the particular law governing the elective percentage. In many jurisdictions, dower has been abolished and replaced by means of the elective percentage. In others, statutes expressly provide that a spouse select some of the elective proportion, the dower, or the provisions of the will.
• Hanafi Law, 10 Dirhams
• Malaki Law, 3 dirhams
• Shafi law, No fixed amount
• Shariya Law, No fixed amount.
The Mahr fixed by using Prophet of Islam for his preferred daughter Fatima, spouse of Ali turned into 500 Dirhams. A dirham (derived from the Greek) is the name of Silver coin of 2.97 grams in weight. However, it would be a unhappy mistake to put too high-quality strain upon the financial price of the Mahr amount. It is said that within the case of an exceptionally poor man, the Prophet asked him to teach the Quran to his spouse. It is said in one Hedaya that the fee of Mahr is enjoined by the law simply as a token of recognize for the woman.
RIGHT AND REMEDIES OF WIFE ON NON PAYMENT OF DOWER
The proper to dower is an inherent proper of each Muslim spouse. But, except this proper is efficiently enforced, it is of no use to her. Under Muslim law, following method of enforcement of the right to dower is to be had to a wife (or widow):
1.Refusal of Conjugal Right
Before consummation of the wedding, the spouse is entitled to deny cohabitation to the husband till he offers her Prompt Dower on demand. It is to be mentioned that below Muslim regulation a husband has right to cohabit together with his wife and she can’t refuse the identical with none reasonable excuse.
But non-payment of Prompt Dower earlier than consummation is a lawful justification for the wife to refuse cohabitation. A Muslim-wife can refuse to live together with her husband and refuse to him the sexual sex as long as the Prompt Dower isn’t paid to her.
Case: Nasra Begam v. Rizwan Ali
The Allahabad High Court held that the proper to dower comes into existence before cohabitation and Prompt Dower can be demanded even before the cohabitation.
Where the wife is minor or insane, her parent can refuse to allow the husband to take his wife with him till the Prompt Dower has been paid. If the minor spouse is already within the custody of her husband, such parent can take her back on the ground of non¬payment of Prompt Dower. But, in which the consummation has taken location even once, the wife’s proper to refuse consummation is lost. If the marriage has already been consummated, the husband’s suit for restitution of conjugal right will not fail on the floor of non-payment of Prompt Dower.
However, the courtroom has discretion, even in this sort of case, to skip a decree for restitution of conjugal rights difficulty to the situation of price of Prompt Dower.
Case: Anis Begum v. Muhammad Istafa Wali Khan
The records had been that within the marriage of Anis Begum and Md. Istafa, the Prompt Dower was Rs. 15,000. The husband and wife lived together for some time and a daughter turned into born to them. Later on, Anis Begum left the house of her husband and refused to come lower back until her Prompt Dower turned into satisfied. Md. Istafa, the husband, filed a fit for the restitution of conjugal rights. It changed into held through Sulaiman, C.J., that there was no absolute right in a husband to assert conjugal rights unconditionally. The courts have discretion to make the decree of restitution of conjugal rights conditional on charge of spouse’s unpaid Prompt Dower even where the wedding has already been consummated. Accordingly, the decree for restitution of conjugal right changed into exceeded in favour of the husband problem to his payment of Rs, 15,000/-.
2. Enforcement of Dower as debt:
Where the wedding has been consummated, the wife can’t implement her claim by refusing conjugal rights to the husband. In this kind of state of affairs the spouse can recover her unpaid dower by using keeping a motion in a court of regulation. She may recognize it from husband in the identical manner as a creditor recovers his loan.
If the husband dies, the widow is entitled to recover the amount with the aid of submitting a suit in opposition to the legal heirs of the deceased husband. But the legal heirs of the husband aren’t personally susceptible to pay the dower. The dower is a debt towards the property of the deceased husband that’s inherited by heirs.
3. Widows Right of Retention
After the dying of husband the best method of enforcement of dower is the workout of right of retention. A widow, whose dower stays unpaid, has a right to retain the properties of the husband until her dower debt is satisfied. This proper is called as the right of retention in lieu of unpaid dower and it is available to a widow, whether there is any agreement among the parties for this right or not.
Under this right if a wife has taken possession of her husband’s residences lawfully (with unfastened consent of the husband) in lieu of unpaid dower, then she is entitled to maintain that possession after the loss of life of her husband, until her dower is paid out of the residences retained via her. This proper is exercised in opposition to the creditors, if any, of her deceased husband, and his criminal heirs. The prison heirs of the husband can’t get possession (and benefit) of the residences of the deceased till they make payments in the direction of unpaid dower in share in their respective shares. Thus, this may be said to be a coercive approach of healing of unpaid dower from husband’s legal heirs.
DIFFERENCE BETWEEN SHIA AND SUNNI LAWS
• Minimum limit of 10 dirhams.
• No limit to proper dower.
• If the 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.
• No minimum limit is prescribed.
• Proper dower cannot exceed 500 drihams.
• In such case no dower would be due if marriage was not consummated.
The following are the legal importance of Dower in Muslim law-
1. The reason of its significance lies in the protection that it imparts to the spouse towards the arbitrary exercising of the power of divorce by the husband.
2. Dower is a right of the spouse is fundamental feature of marriage contract and has a pivotal place within the domestic relation affecting the mutual rights.
3. According to Muslim Law at the dissolution of marriage the wife can declare her dower money. It can be better or it could be low depends upon at the supply of income of the husband.
4. Legislature has given the electricity to make law imparting that, the court docket will now not be bound to award the quantity of dower in step with marriage deed (Sec. Of Oudh Law Act.1876). But simplest such sum as shall be reasonable on the subject of the method of husband and the Iddat of the wife as held in a case of Adul Rehman v/s Inayati Bibi-1931.
5. Another Significance of Dower is to place a test on the capricious use of divorce on the part of husband.
6. To impose responsibilities at the husband as a mark of appreciate of the spouse.
• Mahomedan law 19th edition
• Paras Diwan Family law 4th edition
• Nasra Begam v. Rizwan Ali
• Anis Begum v. Muhammad Istafa Wali Khan
• Adul Rehman v/s Inayati Bibi-1931
• Abdul Kadir v. Salima
• AIR 1980 All 119
• AIR 1933 All 634