Dower (Mahr)

Origin
In old pre- Islamic Arabia, institution of marriage was not developed and many sexual relationships
between men and women had no name. Men after ruining their wives used to throw them out
leaving no means to her for the continuation of her dignified life. In ancient customs, the concept of
providing any sum to wife after she was turned out by the husband was treated as disregarded and
there was no proper law to provide financial or moral help to those wives.

In that period, there was a concept of SHIGHAR marriage in which a man gives his sister or daughter
to latter as consideration of marriage and in return the latter gives his sister or daughter to former in
marriage. Therefore, none of the wives gets any dower. False accusation of unchastity were used at
times to disinherit the right of wife of her dower.

There was a form of marriage called Beena marriage in which husband used to visit his wife but he
did not bring her to her matrimonial home, in which the wife was called Sadiqa (female friend) and
the gift which was given to the wife was called Sadaq. In Islam Sadaq simply means dower and it is
synonymous with Mahr.

The distinction between Sadaq and Mahr was Sadaq was a gift given to the wife in Beena form of
marriage and Mahr was a gift or compensation given to the parents of wife in the Baal form of
marriage. A new form of marriage Nikah which was mentioned in Quran dissolved the ancient
customs and objected the unjust acts towards fair sex.

Definition
Mahr or dower is a sum of money which becomes payable by the husband to his wife on marriage,
either by agreement between the parties or by operation of law. Mahr can either be prompt (Mu
ajjal), or deferred (Mu wajjal).

According to Wilson, Dower is a consideration for the surrender of person by the wife.

According to Ameer Ali, Dower is a consideration which belongs 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 which is used under
this definition is not used with the same meaning as used under the Indian Contract Act. Payment of
Mahr is an obligation on the part of husband as a mark of respect to his wife.
There was an argument that marriage is a civil contract and dower is the consideration for the
contract of marriage.

Therefore, in the case Abdul Kadir v. Salima[1], Justice Mahmood stated that under Muslim Law
Dower is a sum of money or other property promised by the husband to be paid to the wife in the
consideration of marriage and if the amount of money or other property is not fixed in the marriage
ceremony then also the wife has right to demand dower. But the above opinion was considered
inaccurate, because even if the payment of dower is not specified during or before the marriage
ceremony that does not make the marriage void.

After many arguments Abdul Rahim correctly observed that Dower is an obligation made on the part
of husband as a mark of respect toward his wife and is not a consideration for marriage and it does
not affect the validity of marriage.
Nature Of Dower
The concept of Mahr was introduced by the Prophet Mohammad and he made it obligatory to
husband to pay Dower to his wife in every marriage. Dower is similar to the donatio propter nuptias
in Roman Law. But in Roman Law it was voluntary and in Muslim Law it is obligatory in nature.

The nature of dower can be defined as follows:

1. Contract of dower and contract of sales is frequently compared and wife is considered as
property and mahr as her price.
In the case Abdul Kadir v. Salima[2], Justice Mahmood compared marriage with contract for
sales and dower as the consideration for such contract and said, Dower may be regarded as
consideration for connubial intercourse by way of analogy to the contract for sale. The right
to resist her husband so long as the Dower remains unpaid is analogy to the lien of a vendor
upon the sold goods while they remain in his possession and so long as the price or any part
of it is unpaid and her surrender to husband resembles the delivery of the goods to the
vendee

2. According to some well-known authorities Dower is regarded as a consideration for conjugal

intercourse. In the case, Smt. Nasra Begum v. Rizwan Ali[3], Allahabad High Court held that
right to claim prompt dower proceeds cohabitation.

3. Dower is an essential incident and fundamental feature of marriage and even though
payment of dower is not fixed during or before marriage wife is still entitled to some dower
from her husband.
In the case Hamira Bibi v. Zubaida Bibi[4], Judicial Committee held that Dower is an essential
incident under the Muslim Law 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.

As Dower is regarded as consideration for marriage, therefore in theory it becomes payable before
the consummation of marriage but the law divides it into two parts:
i. Prompt dower, which becomes payable before the wife starts living in her matrimonial
house.
ii. Deferred dower, which becomes payable when demanded by the wife dissolution of
marriage either by death of any of the parties or on divorce. But after the death of the
husband dower is considered as a debt and the widow is entitled for that debt along with
other creditors of her deceased husband, which is to be satisfied on his death from his
estate.
If the property of the deceased husband is under the possession of the widow, she is entitled to
retain the possession until the amount of dower is satisfied from that property and heirs can recover
the property after the amount of dower is satisfied by the widow.

Importance Of Dower
According to Fatwa-i-Quazi Khan:
Mahr 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.

Right To Make A Legislation In Respect Of Reasonable Dower

According to Muslim Law, the wife can claim for dower on the dissolution of her marriage and the
amount can be very high or very low. In many cases it was found that the husband was having
sufficient income but the amount of dower was very less that it was impossible for the wife to
maintain herself from such amount, therefore, Legislature was given full power to make laws and
the Courts will not be bound to award the amount of dower which was mentioned in the marriage
deed.

Section 5 of the Oudh Laws Act, 1876 provided that Court will award the amount of dower which is
reasonable according to the income of husband and iddat of the wife and not according to the
amount mentioned in the marriage deed.

Object Of Dower
The object of Dower are:
i. to enforce an obligation on husband as a mark of respect towards his wife,
ii. to place a check on the misuse of power to give divorce by the husband,
iii. 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 s 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.

Classification Of Dower
Dower can be classified into two:
i. Specified Dower (Mahr-i-Musamma)- This type of Dower is further divided into two:
a. Prompt Dower
b. Deferred Dower
ii. Customary (Proper) Dower (Mahr-i-Misl).
i. Specified Dower
When the amount of dower is specified in the marriage contract, then that dower is known
as Specified Dower. The amount of dower may be settled before or during, even after the
marriage ceremony. If the marriage is contracted by the guardian due to minority or lunacy
of husband, then guardians can fix the amount of dower and the amount fixed by the
guardian is binding in nature on boy, after attaining puberty he cannot take plea that he was
not a part of the contract when it was made and even after the marriage of minor or lunatic
boy guardians can fix the amount of dower if the boy is still minor or lunatic.
 Husband can fix any amount of dower as per his will even if it doesn t leave anything for the
heirs after the payment of dower but according to Hanafi School the amount of dower in no
case should be less than 10 dirhams and 3 dirhams according to Maliki School. In Shia Law
there is no minimum amount fixed for the amount of dower.

But if there are any Muslim husbands who are unable to give 10 dirhams to their wives due
to poverty then in such cases Prophet Mohammad has directed them to teach Quran to their
wives in exchange for the payment of dower. At present there is no maximum amount of
dower and minimum amount is no longer in practice as it is very low according to the
present situation.
Specified Dower if further classified into:
a. Prompt Dower (Muajjal Mahr)
Prompt dower becomes payable immediately after the marriage ceremony. According to
Ameer Ali, if the payment of prompt dower is not made by the husband, then wife can
refuse to enter into the conjugal domicile until the amount of prompt dower is paid.
Following points of Prompt Dower are:
i. Prompt Dower becomes payable immediately during or after the marriage
ceremony and it must be paid on demand, unless the other parties have agreed for
the delay. If the dower is not paid then wife can refuse to live with her husband until
the amount is paid and in case the wife is minor then her parents can refuse to send
her to her husband s house and husband has to give maintenance to her wife even if
she is not living with him.

ii. If the marriage has been consummated that does not convert the prompt dower
into deferred dower. After consummation, wife cannot refuse to live with her
husband on the ground of non-payment of dower, but she can sue her husband for
the payment of dower. And if the wife refuses to live with her husband after
consummation due to non-payment of dower, then Court can pass the decree of
restitution of conjugal Rights on the condition of payment of dower by husband.

iii. Husband can only file petition for the restitution of conjugal Rights if the amount of
dower is not paid when the marriage has been consummated.

iv. Prompt Dower should be paid on demand, the limitation period of filing the suit for
non-payment of dower is three years. The time would begin from the date when the
demand was made and was refused by the husband during the subsistence of
marriage. If the wife does not make any demand, then the limitation period will
begin from the date of dissolution of marriage either by death or divorce.

b. Deferred Dower (muwajjal Mahr)

Deferred Dower becomes payable after the dissolution of marriage either by death or
divorce.
Following points of Deferred Dower:
i. Deferred Dower is generally paid after the dissolution of marriage but any
agreement in which it is mentioned that deferred dower will be paid before the
dissolution marriage, then that kind of agreement will be binding and will not be
considered as void.
ii. Wife cannot claim for the payment of deferred dower during the lifetime or during
the subsistence of marriage but husband can treat it as prompt dower and can pay
or transfer property, and that payment will be valid and will not be considered as
fraudulent preference unless there is actual insolvency of husband involved.
 iii. In case of death of husband, widow can waive off her right to claim for the payment
of deferred dower, but this act must be done on her free consent.
iv. The interest of wife in deferred dower is vested and it is not contingent. Deferred
dower does not depend upon the happening of certain contingencies not even on
the death of wife, in case of death of wife her legal heirs can claim for the money
payable under deferred dower.
Presumption regarding prompt and deferred dower
In case where in the marriage contract (Kabin-nama), it is not specified that which portion of the
amount decided for the payment of dower will be prompt and which portion will be deferred,
according to Allahabad and Bombay High Courts held that the proportion of amount to be paid will
be specified according to the:
a. position of wife,
b. custom of locality,
c. total amount of dower,
d. status of husband.
Shia Law:
If the amount of dower is specified in the marriage contract but it is not mentioned that which
portion will be prompt and deferred, then according to Ithna Ashari Shia Law the whole amount of
dower will be regarded as prompt. In Madras Presidency, the whole amount to be paid will be
regarded as prompt no matter the person is Shia or Sunni.

Sunni Law:
According to Sunni Law, half of the amount will be regarded as prompt and the other proportion will
be regarded as deferred.

Proper (Customary) Dower

When the amount of dower is not specified in the marriage contract and even if it is agreed that the
wife will not claim for dower, then also wife is entitled to proper dower. Amount of proper dower is
decided on the basis of the amount of dower paid on the marriage of female members of father s
family.

Determination of Proper Dower- The amount of proper dower is decided on the basis of following factors:
a. Personal qualification of wife, her age, her beauty, fortune, understanding and virtue.
b. Social Position of her father s family.
c. Amount of dower given on her female paternal relations marriages.
d. Economic condition of her husband.
e. Circumstances of time.
Wife s Rights And Remedies On Non-Payment Of Dower
Under Muslim Law, wife or widow have following rights on non-payment of dower:
i. Refusal to Cohabit:
Under Muslim law, wife has a right to refuse to live with her husband when the amount of
prompt dower is not paid, if the marriage has not been consummated. If the wife is minor or
a lunatic then her guardians can refuse to send her to her matrimonial home until the
payment of prompt dower is done and during that time husband is bound to maintain his
wife.
In the case Abdul Kadir v. Salima, it was held that wife can refuse to cohabit or to live with
her husband and if before the consummation of marriage husband files petition for
restitution of conjugal rights, then such appeal will be dismissed.
 Similarly in the case of Nasra Begum v. Rizwan Ali, it was held by the Allahabad High Court
the wife can refuse to cohabit or to live with her husband until the amount of dower is paid
by him. Any suit for restitution of conjugal rights will be void before the consummation of
marriage. In case the wife is minor or lunatic then her guardian can refuse to send her to her
matrimonial home until the amount of dower is paid by her husband and if the minor wife is
already in the custody of husband, then her guardians can take her back on the ground that
the amount of dower is not paid.

In the case Rabia Khatoon v. Mukhtar Ahmed[5], it was held that if the suit for restitution of
conjugal rights is brought up after the consummation of marriage with the free consent of
wife, then the decree will be passed on the condition of payment of prompt dower.

ii. Right to dower as a debt:

The Privy Council has held that dower is ranked as a debt which must be paid to the widow
along with the other creditors out of the estate of the husband on account of his death. If
the husband is alive, then wife can claim for dower debt by filing a suit against him. After the
death of husband, widow can claim for dower by filing suit against the other heirs of the
property from which the amount of dower has to be recovered.

Heirs of deceased husband are not personally liable for the payment of dower debt; they are
liable to the extent in which they inherit the property of the deceased. If the property of the
deceased husband is already in the possession of the widow, then the other heirs of the
deceased are entitled to recover their shares according to the payment of the debt
proportionate to their shares.

In the case of Syed Sabir Hussain v. Farzand Hussain[6], a Shia Muslim took legal
responsibility for the payment of dower of his minor son that if he fails to do pay then he will
pay instead of the son, after the death of the father payment of dower was done from his
estate as he was liable to pay his son s dower and every heir was responsible to pay for the
dower proportionate to their share.

iii. Right to retain possession in lieu of unpaid dower:

Widow has right to retain the possession of the property of her deceased husband which she
has already obtained lawfully and without any force or fraud against other heirs and
creditors of the property until the amount of dower is paid. The right to retain the property
does not her the owner of the property, therefore she cannot alienate the property. The
right to retain the property also arises in case of divorce.

Right to retain the possession of the property by the widow is for special purpose, so she has
to satisfy the amount of dower as soon as possible from that property. If the widow is not in
possession of the property or has lost it then she cannot claim for the possession of the
property.

Features of right to retain the possession are:

a. No right to retain the possession during the continuance of marriage:
Wife cannot retain the possession of her husband s property during the continuance
of marriage. This right only arises after the dissolution of marriage either by death or
divorce.

b. Actual possession:
The right of retention means to continue the possession of the property until the
 dower debt is paid. Therefore, the wife or widow must be in actual possession of the
property after the dissolution of the marriage and if the wife or widow is not in
actual possession of the property then she cannot retain the possession.

c. Right of retention not analogous to a mortgage:

The wife or widow do not have interest in the property, she has retained the
property as a mortgage. But in case of mortgage, the mortgagee retains the
property under an agreement made between him and the owner of the property
and in case of retention by wife or widow, that right has conferred upon him by law.

d. Not a charge:
The right to retention does not create a charge on the property as the wife or widow
is not a secured creditor. And if the property has been mortgaged to someone by
the husband when the wife/widow was having the possession of that property, then
the mortgagee can sell the property and dispose the possession of wife/widow.

e. A possessory lien on property is no title:

Wife or widow can only satisfy the amount of dower through rents and profits from
the property, she does not get the title of the property. The title goes to the heirs of
the husband including widow. She has no right to sell or mortgage the property to
satisfy the amount of dower, she can only alienate her share in the property not the
share of other heirs. And if she alienates the whole property then the other heirs
become entitled to recover the possession of their shares, and that share will be
given to them without the payment of dower proportionate to their shares. Widow
can acquire the possession of the property if she has been dispossessed by the heirs
under Section 9 of the Specific Relief Act, within the period of 6 months, and if she
fails to do so, then she loses her possession over the property and if the
dispossession is caused by the trespasser, then she can file case under Article 12 of
Indian Limitation Act within 12 years.

In the case of Maina Bibi v. Chaudhary Vakil Ahmad[7], Muinuddin died in 1890
leaving immovable property. In 1902, respondent who were the heirs of the
property filed case against the widow (Maina Bibi) claiming immediate possession of
the property. Widow pleaded that the property was gifted to her by her husband
and therefore she is entitled to retain the possession of the property until the
amount of dower is satisfied from the property.

Trial Judge held that the heirs can acquire the possession of the property on the
condition that they pay the widow Rs. 25,357 within the period of 6 months and the
decree also included that if the respondents fail to pay the amount, then the suit will
be dismissed. The respondents did not pay and the widow continued her possession
over the property. Later in year 1907, the widow executed two deeds of transferring
the possession of her husband s property to the donees and from the terms of the
deeds it was obvious that the widow was giving the title of the property to the
donees. In 1915, the respondents again filed suit against the widow claiming the
possession of the property unconditionally because under Muslim Law, she cannot
transfer the title of the property for which she has only right of retention for the
payment of dower.

The appellant pleaded that the suit filed was res judicata and the claim should not
be entered entertained by the court as it has limitations. Their Lordship of the Privy
 Council has held that the possession retained by the widow is lawful and the right to
retain the property extends till the payment of dower is satisfied and this right is
conferred upon her by Muslim Law. They further observed that the right to retain is
only to satisfy the amount of dower, she has no estate or interest on the property as
an ordinary mortgagee, she has no right to alienate the property through sell, gift,
mortgage, etc.

f. Widow in possession liable to account:

Widow is bound to account the profits and rents received out the property to the
other heirs of her deceased husband while she is entitled to charge interest on the
dower which is due to her and to set it off against the net profit.

g. Can sue heirs:

widow can sue the heirs of her deceased husband for the recovery of the amount of
dower out of their shares.

h. Right of retention whether heritable or transferable:

There is a difference in the judicial opinion on the widow s right of retention is
whether heritable or transferable.
1. One view is that the right to retention is a personal right and is not a lien,
therefore it cannot be transferred through sale, gift or otherwise and it
cannot be transferred to the widow s heirs on her death.
2. The second view is by Mysore High Court that the right to retention is both
heritable and transferable as the right to retention can be exercised by the
heirs of the widow on her death. In the case Azizullah v. Ahmad, it was held
that the right to retention is heritable without expressing any opinion
whether it is also transferable.
3. Allahabad High Court held in a case that the right to retention is both
transferable and heritable.
Difference Between Sunni And Shia Law Relating To Dower
Sunni Law Shia Law
The minimum amount of specified dower is 10 dirhams. There is minimum amount
of specified dower.
There is no maximum amount of proper dower. The maximum amount of
proper dower is 500
dirhams.
There is maximum amount of specified dower. The maximum amount of
specified dower is also 500
dirhams.
In case the marriage is dissolved by death of husband, and the Payment of dower will not
payment of dower is not specified or it has been agreed that no be due if the marriage has
payment of dower will be done by the husband, in such case the not been consummated.
amount will be due whether the marriage has been consummated or
not.
Any agreement which states that no dower shall be due is void. Such agreement will be
valid if the agreeing party
are sane and adult.
In the absence of agreement, a reasonable part of dower will be The whole amount of
considered as prompt. dower will be considered as
prompt dower.

Effect Of Apostacy On Dower

The effect of dissolution of marriage through the decree of court is under a statute. According to
Section 5 of the Dissolution of Muslim Marriage Act, 1939, a married Muslim woman whose
marriage has been dissolved through Act shall have equal right in respect of dower as her marriage
has been dissolved through talaq, fasqh, etc.

Amount Of Dower And Condition Of Payment

• When the amount of dower is specified in the marriage deed and the marriage has been
consummated or any of the party dies, then the whole amount of Mahr will be paid to the
wife.
• When the amount of dower is not specified and the marriage has been consummated or any
of the party dies, then the wife will receive proper dower.
• When the marriage is irregular and has been consummated, then any of the party dies, then
the wife will receive specified or proper dower, whichever is less.
• When the marriage has been dissolved through divorce and the marriage has not been
consummated, then the wife is entitled to receive:
a. Half the amount of specified dower.
b. A present of three articles of dresses or of their value
If the wife has taken divorce, then she is not entitled to receive any dower.

End-Notes:
1. (1886) ILR 8 All. 149
2. (1886) ILR 8 All. 149
3. AIR 1980 All. 118
4. AIR 1916 P.C. 46
5. AIR 1996 All. 548
6. AIR 1934 All. 52
7. AIR 1925 P.C.