Faculty of Law, University of Lucknow

Family Law

Concept of Maher

Submitted To: Dr. Richa Saxena Submitted by: Suneel Kumar Patel

Assistant Professor, Faculty of Law A-5, 3rd Semester 2019-2020

University of Lucknow LL.B.(Hons) Integrated

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 Table Of Contents

1. Definition

2. Classification of Dower

 Specified Dower

 Unspecified Dower

 Prompt and deferred

3. Increase or Decrease of Dower

4. Enforcement of Dower

5. Widow’s Right to Retention

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 DOWER

Prior to Islam two kinds of marital gifts were prevalent. In a certain type of marriage, 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 to the wife on marriage was called sadaq.
In Islam sadaq simply means a dowry and is synonymous with maher. But originally the two
words were quite distinct: sadaq is a gift to the wife, and maher to the parents of the wife1.
The latter term belongs to the marriage of dominion which is known as the baal marriage, where
the wife’s people part with her and have to be compensated.
Now maher in the baal form of marriage was used by the Prophet to ameliorate the
position of the wife in Islam, and it was combined with sadaq that it became a settlement or a
provision for the wife2. In Islamic law maher belongs absolutely to the wife3. Thus, historically
speaking, the idea of sale is latent in the law of maher (dower). Justice Mahmood defines dower
as follows:
Dower, under the Muhammadan law, 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, and even where no
dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of
dower upon the wife4.
It is not 'consideration' in the modern sense of the term but an obligation imposed by the law
upon the husband as a mark of respect to the wife5.This is made abundantly clear by the author
of the Hedaya when he says:
The payment of dower is enjoined by the law merely as a token of respect for its object (the
woman), wherefore the mention of it is not absolutely essential to the validity of a marriage; and,
for the same reason, a marriage is also valid although the man were to cngage in the contract on
the special condaion th there should be no dower6.

1
Robertson Smith, Kinship,93.
2
On maher generally see Encyclopedia of islam,III,137.
3
Quran IV:4;Ameer Ali II,461-2: Fatimid Law70
4
Abdul Kadir v. Salima (1886) 8 All.149,157.
5
Abdur Rahim334.
6
Hamilton’s Hedaya ,2nd edn by Grady ,44,cited by Mahmood J. at 8 All157-8.

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The best general observations on dower are those of Lord Parker of waddington in Hamira Bibi
v.Zubaida Bibi7;

Dower is an essential incident under the Mussulman law to the status of marriage; to such an
extent this is so that when it is unspecified at the time the marriage is contracted the law declares
that it must be adjudged on definite principles. Regarded as a consideration for the marriage it
is, in theory, pay able before consummation: but the law allows its division into two parts, one of
which is called 'prompt', payable before the wife can be called upon to enter the conjugal
domicile; the other 'deferred'. payable on the dissolution of the contract by the death of either of
the parties or by divorce. But the dower ranks as a debt and the wife is entitled, along with the
other creditors, to have it satisfied on the death of the husband out of his estate. Her right,
however. is no greater than that of any other unsecured creditor except that if she lawfulls
obtains possession 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 posses sion until it is satisfied. This is called the
widow's lien for dower, and this s the only creditor's lien of the Mussulman law which has
received recognition in the British Indian courts and at this Board.

Classification of Dower

We have seen that dower is payable whether the sum has been fixed or not. Ali said: ‘There can
be no marriage without maher8.Thus, dower may, first of all be cither specified or not specified.
In the latter case it is called mahr at –mithl, proper dower, or to be strictly literal ‘the dower of
the like'. If the dower has been specified, then the questión may be whether it is prompt or
deferred (mu’ajjal). Thus we have two kinds of dawer in Islam -(a) specified dower (b)
unspecified dower .Specified dower may again be divide; in (c) promt and (d) deferred in a and
b the question question before the court is the amount payable in (c) and (d) the question is the
time when payment has to be made.

7
(1916)43 IA 294 ;cited in Syed Sabir Husain v Farzand Hasan (1937)65 IA 119.
8
Fatimi law 69 sqq.

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  Specified dower (al-maher al-musamma)

Usually the maher is fixed at the time of marriage and the qazi performing the ceremony enters
the amount in the register, or else there may be a regulr contract called kabin-nama with
numerous conditions9. " The sum may be fixed either at the time of marriage or later, and a
father's contract on behall of a minor son is binding on the minor10 .
Where father stipulates on behalf of his minor son, in Hanafi law the father is not personally
liable for the maher; but aliter in Ithna Ashar lr In Syed Sabir Husain v. Farzand Hasan a Shia
father had made himself surety for the payment of the maher of his minor son. Thereafter he died
and it was held that the estate of the deceased was liable for the payment of his son's maher
Accordingly each heir was made responsible for a portion of the wife's claim in proportion to the
share received by the particular heir on distribution from the estate of the deceased. The heirs
were, however liable only to the extent of the assets received by them from the deceased and not
personally11.
Where the amount has been specified, the husband will be compelled to pay the whole of it,
however excessive it may seems to the court having regard to the husband's means. But in Oudh
only be decreed if the court deems the amount to be excessive or fictitious.

 Unspecified dower (mahr al-mithl)

The obligation to pay dower is a legal responsibility on the part of the husband and is not
dependent upon any contract between the parties; in other words, if marriage then dower 12"
Where the dower is specified any amount however excessive, may be stipulated for. But what are
the principles upon which the amount of dower is to be determined where no agreement exists?
The customary or proper dower of a woman is to be fixed with reference to the social position of
her father's family and her own personal qualifications. The social position of the husband and
his means are of little account The Hedaya lays down the important rule that her 'age, beauty,
fortune, understanding and virtue' must be taken into consideration. Islamic marriage, therefore,

9
Tyabji98.
10
Mulla288.
11
(1937)65 IA 119
12
Syed Sabir Hussain’s case(1937)65 IA119, 127; Fatimid Law69.

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safeguards the rights of a wife and attempts to ensure her an economic status consonant with her
own social standing. Historically speaking, and on the analogy of sale, it is permissible to ask
with Fitzgerald: what have the circumstances of a purchaser to do with the intrinsic value of the
thing he buys?13The answer is that the Indian courts no longer consider marriage as a form of
sale or barter and do not proceed upon the analogy that dower is the price of consortium.
In fixing the amount of the proper dower regard is to be had to the amount fixed in the case of
the other female members of the wife's family:
Maher is an essential incident under the Mussalman law to the status of marriage; to such an
extent that is so that when it is unspecified at the time the marriage is contracted the law
declares that it must be adjudged on definite principles.
The main consideration is the social position of the bride's father's family, and the court will
consider the dowers fixed upon her female paternal rela- tlons such as sisters or paternal aunts
who are considered to be her equals.14 The Prophet once allowed the marriage of an indigent
person for a silver ring; and on another occasion merely on the condition that the husband should
each the Qur'an to his wife15 In Hanafi law where the specified dower is less than 10 dirhams the
wife is entitled to the minimum, namely 10 dirhams; and in Ithna Ashari law the proper dower
can never exceed 500 dirhams- the dower fixed for the Prophet's daughter Fatima Thus, among
the Shias there are three kinds of maher: (i) mahr-e-sunnat, the dower supported by Traditions,
i.e. 500 dirhams; (ii) mahr-e-mithl, 'the dower of the like' or the dower of an equal which is the
technical name for proper or unspecificd dower; and (iii) maher-e- miusamma, the specified
dower.

 Prompt(mu ajjal) and defered (muwajjal) dower

When the dower is specified the question arises: at what times and in what proportions is the
amount payable? Here two somewhat puzzling terms are used and it is necessary to distinguish
carefully between them. The technical terms for prompt dower is mu ajjal .it is derived from a
root meaning to hasten, to precede. The term mu'ajjal, therefore, means that which has been
hastened or given a priority in point of time'. The term minwajjal however means 'delayed,

13
Fitzgerald 66.
14
Ameer Ali II437-8
15
Fatimid law 75.

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deferred' and comes from a root which means to delay or postpone'. Written in the original
Arabic there would be no cause for confusion, but in the usual English forms of spelling the
words often puzzle those who are not familiar with the Arabic tongue.

Prompt dower is payable immediately after the marriage if demanded by the wife; while deferred
dower is payable on the dissolution of the marriage or on the happening of a specified event.
When dower is fixed it is usual to split it into two equal parts and to stipulate that one shall be
paids or on demand and the other on the death of the husband or divorce ort happening of some
specified event. But a difficulty a whether the dower is prompt or deferred.
In Ithna Ashari law the presumption is that the whole of the dove prompt;16 but in Hanafi law
the position is different. The whole of the may be promptly awarded; but a Full Bench decision
lays down the vi the kahin-nama is silent on the question the usage of the wife's family is main
consideration, in the absence of proof of custom the presumption is t one-half is prompt and the
other half deferred, and the proportion ma changed to suit particular cases.

Increase or Decrease of Dower

The husband may at any time after marriage increase the dower. Likew the wife may remit the
dower wholly or partially" and a Muslim giri w bas attained puberty is competent to relinquish
her maher although s may not have attained majority (18 years) within the meaning of the
Majority Act. The remission of the maher by a wife is called hibat al-a or hiba-e-maher.
It has, however, been held in Karachi that in certain cases remissi dower cannot be upheld. For
instance, if a wife feels that the husbal increasingly showing indifference to her and the only
possible way to re the affection of her husband is to give up her claim for maher and forgoes her
claim by executing a document, she is not a free agent and it may be agaits justice and equity to
hold that she is bound by the terms of the deed17

16
Ameer Ali II442 ;Tyabji 97;Fatimid law 78 sq
17
Shah Bano vs Iftekhar Muhammed PLD 1956 Kar 363.

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 Enforcement of Dower

The claim of the wife or widow for the unpaid portion of maher is an unse- cured debt due to her
from her husband or his estate, respectively. It ranks rateably with unsecured debts and is an
actionable claim. During her life- time the wife can recover the debt herself from the estate of the
deceased husband. If she predeceases the husband the heirs of the wife, including the husband,
become entitled to her dower A lady whose maher was Rs 50, 000 received from her husband
during his lifetime sums of money in the aggregate exceeding the maher settled on her. The
largest of such payments was Rs 3,000. There was no evidence that these payments were
intended by the husband to satisfy the dower debt. The question arose whether these payments
satisfied the husband's obligation. The Privy Council held that such payments were not to be
treated as having been made in satisfaction of the dower debt .if a husband refuse to pay prompt
dower the guardian of a minor wife has the right to refuse to allow her to be sent to the husband's
house; and similary the wife may refuse the husband his conjugal rights provided that no
consummation has taken place. The wife is under Muslim law entitled to refuse herself to her
husband until the prompt dower is paid; and if in such crcumstances she happens to reside apart
from him the husband is bound to maintain her .This right of refusing herself is, however, lost on
consumption. Thus if the husband files a suit for restitution of conjugal rights before cohabitation
non payment of prompt dower is a complete defence; but after cohabitation the proper course for
the court is to pass a decree for restitution conditional on payment of prompt dower. This was
laid down in the leading case of Anis Begam v. Muhammad Istafa Wall Khan .

The non-payment of deferred dower by its very nature cannot confer any such right of refusal on
the wife. The right to enforce payment arises only on death, divorce or the happening of a
specified event.
The dower ranks as a debt and the widow is entitled, along with the other creditors of her
deceased husband, to have it satisfied out of his estate. Her night, however, is the right of an
unsecured creditor; she is not entitled to a churge on the husband's property unless there be an
agreement. The Supreme Court of India has laid down that the widow has no priority over other

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credi- tors but maher as a debt has priority over the other heirs' claims18" And the beirs of the
deceased are not personally liable to pay the dower, they are able rateably to the extent of the
share of the inheritance which comes to their hands.

Widow's Right of Retention

Muslim law gives to the widow whose dower has remained unpaid a very special right to
enforce her demand. This is known as the widow's right of relention. A widow lawfully in
possession of her deceased husband's estate Is entitled to retain such possession until her dower
debt is satisfied." Her right is not in the nature of a regular charge, morrgage or a lien; it is in
essence a personal right as against heirs and creditors to enforce her rights;" and it is a right to
retain, not to obtain, possession of her husband's estate. fhar busband's estate, she loses her
special right
and is in no better position than an unsecured creditor19 .
The nature of this right was discussed by the Privy Council in Maina Bibi Chundhri Vakl
Ahmad" One Muinuddin died in 1890 possessed of immoveable property leaving him surviving
his widow Maina Bibi who entered of their share of the property. The widow pleaded that the
estate was a gift to or alternatively that she was entitled to possession until her dower was paid In
1903 the trial judge made a decree for possession in faO the plaintiffs on condition that the
plaintiffs paida certain sum and the widow remained in possession. In 1907 Maina Bibi
purporied to make a gift of the whole of her property to certain persons. The oreind plaintiffs
challenged this gift and the Privy Council held that the widow no power to make a gift of the
properties and could not convey the ths of the heirs to the donees. In discussing the nature of a
widow's right retention the judges said:
The possession of the property being once peaceably and lawfully acquired the right of the
widow to retain it till her dower –debt is paid is conferred upon her by Mahomedan law... the

18
Kapore Chand V Kadar Unnisa (1950)SCR 747
19
Tyabji 110; Mulla 296sqq ;Zaibunnisa V Nazim Hasan Supra Note 52.

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widow who holds possession of her hushands property untill she has been paid her dower has no
estate or interest in the property as has a mortgage under an oridanry mortgage.
Thus, in essence, it is a personal right given by Muslim law to safeguard the position of the
widow The Supreme Court has laid down that a Maslin widow in possession of her husband's
estate in lieu of her claims for dowe whether with the consent of the heirs or otherwise, is not
entitled to prior as against his unsecured creditors20.
There is a conflict of opinion whether in order to retain possession de consent, express or
implied, of the husband or his heirs is necessary. Sone judges are of opinion that such consent is
necessary; others that it is not. Its submitted that on first principles, having regard to the nature of
the nght consent of the husband or his heirs is immaterial, Muslim law casts a spec obligation
dower is a debt for which the widow has a good safeguard. Thus the ques on every debtor to pay
his debt and the right of the widow for be of consent appears to be immaterial21.
The right of retention does not confer on the widow any title to the pr entitled to her dower and
if necessary to retain possession of the estate unl her maher has been paid. The right to hold
possession must, therefore be sharply distinguished from her right circumstances, has the right to
have the property administered. her just debts satisfied, and her share of the inheritance
ascertained and paid She has no right to alienate the property by sale, mortgage, gift or
otherwise,"and if she attempts to do so she loses her right of retrntion; but the widow may assign
her rigt of maher22 .
In Maina Bibi N. Chaudhri Vakil Ahmad23 the judges expressed doubt whether a widow could
transfer the dower debt or the right to retain the estate until the maher was paid. Following that
case there has been much conflict of judicial opinion ferability of this right The Mysore and
Allahabad High Courts have decided that the right is both heritable and transferable, but the
Patna High Courn has held that the widow's is a personal right and not a lien and as Such it is not
transferable" Although there is a conflict of opinion, in view of Kapore Chand's case the balance
of authority seems to be in favour of the Patna view.

20
Kapore Chand V Kadar Unnisa (1950)SCR 747
21
Tyabji 110
22
Tyabji 111
23
(1924)52 IA145, 159.

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 References

1. Asaf A.A. Fyzee , Outlines of Mohammadan Law,

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