DOWER (MAHR)

SYNOPSIS
8. Classification of dower.
Oryn
Detinition 9. Wife's Rights and remedies on non
paymentof dower.
Nature of dower
10. Difference between Sunni and Shia
Importance of dower
Law.
Legislature's right to make a legislation
in respect of reasonable dower. 11. Effect of Apostacy on dowe.
6. The objcct of dower 12. Suits for dower and Limitation.
7. Increase or decrease of dower. 13. Kharch-i-Pandan.

1. Origin.-In old pre-Islamic Arabia, when the institution of marriage as

we know it today was not developed, many forms of sex relationships between
better than
uen and woman were in vogue. Some were temporary and hardly
prostitution. Men, after despoiling their wives, often turned them out,
absolutely helpless and without any means, The ancient custom to settle certain
was often
Suns for subsistence of the wife in the event she was turned out
iregarded, as there was no organised system of law. A device was in vogue
u der the name of SHIGHAR marriage in which a man would
give his
ciaughter or sister in marriage to another in consideration of the latter giving
the wives
his daughter or sister in marriage to the former. Thus neither of
could get a dower. False accusation of unchastity were frequently used to
dprive the wife of her dower.
In the so-called Beena marriage, where the husband visited the wife
female friend,
but did not bring her homne, the wife was called Sadiga or
Sadag
and a gift given to wife on marriage was called , Sadag. In Islam But
simply means a dowry and is synonymous with Malr (sale price).
originally the two words (Sadag and Malr) were quite distinct. Sadag was a
gift to the wife in the Beena form of marriage and mahr was a gift or
compensation to the parents of the wife in the baal form of marriage. Mahr
elongs to the marriage of dominion, which is known as the baal marriage,
where the wife's parents (guardian) part with her and have to be
compensated. Promulgation of Islam gave a new form of nikal1 to marriage,
abolished this ancient custom and forbade unjust acts towards the fair sex, as is
evident from the Quran. "If you separate yourself from your wives, send them
away with generosity : it is not permitted to you to appropriate the goods you
times with the
have once given to them". Thus the custom originated in ancient
Davment which husbands often made to their wives as means of support in
their old age or when turned out by them. Mahr in the baal form of marriage
in
was also recongnised by the prophet to ameliorate the position of wife
Islam, and it was combined with Sadag, so that it became a settlement or a
provision for the wife. In Islamic law Mahr belongs absolutely to the wife,
although historically speaking it is more akin to bride's price than gift or
anything else
(149)
150 MOHAMMEDAN LAW

2. Definition,- Mahr or dower is a sum that becomes payable by th

husband to the wife on marriage, eitlher by agreement between the parties or t
operation of law It may either be pronpt (Mu' ajul), or leferred (Mu' uaijal).
According to Wilson, "Dower" is a consideration for the surrender of personm
by the wife. It is the technical Anglo-Mohammedan term for its equivalent
'Mahr' in Arabic.

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' is not used in the sense in which the word is used in
the Indian Contract Act. It is an obligation imposed upon the husband as a mark
of respect to the wife.
Hon'ble Justice Mahmood has said in Abdul Kadir v. Salima,' that Dowe
under the Muslim law is a sum of money or other property promised by the
husband to be paid or delivered to the wife in consideration of marriage, ani
even where no dower is expressly fixed or mentioned at the marriage ceremony,
the law confers the right of dower upon the wife'.
The above opinions are based on the argument that marriage is a civil
contract and dower is a consideraiion for the contract. But it is submitted that
the above opinions are erroneous, because even in those cases where no dower is
specified at the time of marriage, marriage is not void on that account, but the
law requires that some dower (proper dower) should be paid to the wife. Abdu
Rahim correctly observed, "It is not a consideration proceeding from the
husband for the contract of marriage, but it is an obligation imposed by the law
on the husband as mark of respect for the wife as is evident from the fact that
the non- specification of dower at the time of marriage does not affect the
válidity of marriage".
3. Nature of Dower.--Dower in the present form was
introduced by the
Prophet Mohammad and made obligatory by him in the case of every
marriage. Dower in Muslim Law is some what similar to the donatio propier
nuptias,in Roman Law. The important difference, however, is that while under
the Roman Law it was voluntary, and under the Muslim Law it is absolutely
obligatory.
The following points may be noted with respect to the nature of Dower :
(1) Analogy is often drawn between a contract for dower and one for sale.
The wife is considered, to be the property and the dower her price.
In Abdul Kadir. v. Salima,3 Mahmood, J.,
and dower with contract for sale and comparing the marriage
consideration, says
be regarded as consideration for connubial intercourse by way "Dower
may
of analogy to
1 Tyabji : Muslim Law, 4th Ed., p. 102.
2 l.LR. (1886) 8 All 149 (157).
I.L.R. (1886) 8 All 149.
 DOWER (MAHR) 151

the the contract for sale. The right to resist her husband so long as the Dower
remains unpaid is analogous to the lien of a vendor upon the sold goods while
2al). they remain in his possessicn 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
éperson
arv alent vendee.

(2) It is regarded by some eminent authorities as a copsideration for

conjugal intercourse. In a case, Smt. Nasra Bequm v. Rizwan Ali,4
Allahabad High Court expressed the view that the right to cam
n the prompt dower procceds cohabitation.
arriage. (3) Dower is an essential incident and fundamental feature of marriage
sd in with the result that even if no dower is fixed the wife is entitled to
nark Some dower from the husband. The marriage is valid even though no
mention of dower made by the contracting party. In Hassina Bibi v.
Dower Zubaida Bibi,5 the Judicial Committee held that-
by the "Dower is an essential incident under the Muslim Law the status of
E, and marriage, to such an extent this is so that when it is unspecified at the
ony, time the marriage is contracted, the law declares that it must be
adjudged on definite principles.
civil
Regarded as a consideration for the marriage, it is, in theory payable
d that
er is before consummation but the law allows its division into two parts, one of
t the which is called 'prompt' payable before the wife can be called upon to euter
the conjugal domicile or demanded by the wife the other 'deferred', payable on
bdur
the 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 widow is entitled along with
law other creditors of her deceased husband, to have it satisfid on his death out of
: that his estate". If the property of her deceased husband is in her possession, she is
the entitled (as against other heirs of her husband and as against other creditors or
her husband) to retain the possession, until her dower is satisfied. Heirs may
the recover that property after they have paid up her debt. Dowet-debt is not a
very charge and widow cannot prevent another creditor or of her husband fron
opter recovering his debt from his estate. Dower-debt is an unsecured debt ranking
nder equally with other debts.
itely
In Zobair Ahmad v. Jainandan Prasad,6 their Lordships of the Patna lgl
Court held "The dower debt of a Mohammedan widow is not properly speaking,
in the
a charge upon the property of her husband; the interest which she has
sale. property in her possession in lieu of dower-debt is an interest restricted iun its
enjoyment to her personally within the meaning of Section 6 (d), Transfer of
Property Act, and as such is not capable of alienation".
iage In Smf. Nasra Begum v Rizvan Ali, Allahabad High Court observed:
mav

y to
4 AIR 198) All119,
5 (1916) 43IA 294
A.LR. 1960 lat.147.
A.LR. 1980 All 11,
 MOAMA1EDAN LAV
152

Milstnlor the Monamnedan Law Mahr o dower neans noreiny

to receve from the husvand
or property which the wife is entitled 'consideration is
consideration of the marriage. However, the expression Contract Act. In
it is used in the
not to be understood in the sense in which
respect
effect dower is an obligation imposed upon the husband as a mark of
tor the wife".
necessd
4. Importance of dower.-Fatvai-i-Quazi Khan says, "Mahr is so
inarriage, or in t
to marriage that if it were not mentioned at the time of the
contract, the law will presume it by virtue of the contract itself".
It is essentially an incident of the Muslimn Law of Marriage that even i
there is stipulation on the part of the woman before marriage to forego all her
right to dower, or even if she agrees to marry without any dower, t
stipulation or agreement will be invalid.
The reason of its importance lies in the protection that it invparts t
the wife against the arbitrary exercise of the power of divorce by the husbaic.
In Muslim Law; the husband can divorce his wife at his whim and so th:
object of dower is to check upon the capricious exercise of the husband of
his power to terminate the marriage at will. lt not only protecls iron1 .
unbridled power to divorce but also from his extravagance in having ime
than one wife. A stipulation to charge a huge dower on the occasion of
his another marriage is enough to deter him from enjoying the luxury of hav1ng
two, three or four wives. In Abdul Kadir v. Salina,8 Mahmood, J., has
observed: "The marriage contract is easily dissoluble, and the ireedon
divorce and the rule of polygamy place the power in the hands of the husbard
which thè law-giver intended to restrain by rendering ihe rules as to'payme it
of dower stringent on the husband. That is why the right of the wife to 1r
dower is a fundamental feature of the marriage contract; it has a pivotal plae
in the scheme of the domestic relation affecting the mutual righis of le
spouses at more than one point."
The question iwith regard to dower does nof ar:se in case of marriag s
solemnized under the Special Marriage Act, 10E4. Bu th right to Malr t.d
in a marriage first centracted under Muslin1 Law will not be forieite áB i
by the fact of registration of the marriage uider the Special Marri,e
Act, 1954.

5. Legislature's right to make a legislation n respect of re asonable

dower.--According to Muslim law, on the dissolution of marriage, the wife c
claim her dower money. It is possible that the amount of dower may be ery
high or it may be very low. There were cases vhere the husband was havia
sufficient source of income but the amount of dower was so meagre, that it was
not possible for thhe wife to maintain herself without that and, theelor th
Legislature was given full power to make law providin; that the Court wvill ot
be bound to award the anmount of dower according to marriage
the Oudh Iaws At, 1876 provided that the Court is no to
deed. Sction 5or
ward the amou io1
ILR 0 86) 8 AI! 149
 DOWER (MAHR) 153

Oey
dower stipulated in the contract of marriage but only sUch sum as shall be
and in reasonable witl: refercc to the means of the husbard d the lddut of the
tion 1S
wife.
Act In 6. The object of Dower.-The object of dower is thrcc-fold:
respect (i) to impose an obligation on the husband as a mark of respect of the wife,
ii) to place a check on the capricious use of divorce on the part of husband,
ess.iry and
tn the (ii) to provide for Iher subsistence after the dissolution of her marriage, so
that she may not become helpless after the death of the husband or
ven if termination of marriage by divorce.
! her Fixation of Mahr
, the The Indian Ulema recommended in a seminar that Mahr (dower) should be
fixed in terns of gold or silver so that the rights of women are fully protected in
the event of fall in the values of currencies.
ts to
and. 7. Increase or decrease of Dower.--The husband may at any time after
the marriage increase the dower. Likewise, the wife may remit the dower wholiy
d of
or partially. A Muslim girl who has attained puberty is competent to
2 his relinquish her Malir although she may not have attained majority (18 years
nore
within the Indian Majority Act). The remission made by the wife, should be
of
with free consent. The remission of the Mal1r by a wife is called Hibe-e-^lahr.
ing
In a case where the wife was subject to mental distress, on account of her
has husband's death the remission of dower, was considered as against her consent
n of
and not binding on her.!!
and It has been held in a Karachi case,12 that in certain cases remission u!
ent dower cannot be upheld. For instance, if a wife feels that the husband is
her increasingly showing indifference to her and the only possible way to retain
ace the affection of her husband is to give up her claim of Mahr and forgues he
the claim by executing adocument, she is not a free agent and it may be against
justice and equity to hold that she is bound by the terms of the deed.
ges 8. Classification of dower.-The dower may be classified into:
ed (i) Specified dower (Mahr-i-Musanma).--3pecified dower is agair.
ely divided into:
ge (a) prompt dower, and
(b) deferred downer.
ole (ii) Customary ('roper) dower (Mahr-i-Misl).
an
(i) Specified duwer.-II the amount of dowwer is stated in the m.rriag
ry
contract, it is called lhe specified dower. Dower may be settled by :l
as parties to the r arriage either before the inarriage or at the time of th:
or iunatie
he marriage or even after the marriage. If a marriage of a minor
n fix the amount «f
boy is Contrecd by a guardian, such guardian
See Abdul Ralan v. nati Bbi, (1931) A.C. 631.
10. Social Issues Decision of lndian Ulema, p. 14 IFA Publication.
11 H.:umiya Dadautia v. Halimwznissa Hafiullalt, A..R. 1942 Bonn. 128.
12. Shah Bano v. lftekar Molummad, P.L.D., 1950 ('.VW) Kar. 363.
 4 MOiAMMEDA NLAW

dower. Dower fixed by the guardian is binding on the munor boy and ie
cannot on attaining the age of puberty take the plea that he was not
party to it Even after the marriage of such minor or lunatic boy, the
guardiant can sette the amount of dower, proriddtnat at the time ot
settlement of dower, the bov is still minor or lunati:.
The husband may settle any amount he likes by way ot dower upon his
wite, though it may leave nothing to his heirs after paynent of the amour.t.
But he cannot in any case settle less than ten dirha ns (the money value of
airans is between 3 and + rupees) according to Hanafi Law and 3 dirhans
a00rding to \aliki Law Shia Law does not fix any minmum amount f:
dower.
For those Muslim husbands who are very p00r and not in a position tO piy
even 10 d:rhans to the wife as dower, the Prophet has directed them to tea
Qurar to the wife in lieu of dower. At present there is no limit to the maxinun
amount of dower. The minimumhas now become obsolete.
As already stated, spe ied dower is again subdivided into;-
() Prompt Dower (muajjal mahr).
( ) Deferred Dewer (muwajjal mahr).
Prompt Dower.It is payable immediately after marriage on demand.
According to Ameer Ali a wife can refuse to enter into coniugal domicile of
husband untilthe payment of the prompt dower.
The folowing point must be noted regarding prompt dower:
(E) Prompt dower is pavabie immediately on the arria ge taking pla ce
and it nust be paid on demand, unless delay is stipulatd for or agreed.
It can be realised any time before or after the marriage. The wife may
refuse herselí to her husband, until the Prompt Dower is paid. If the
wife is minor her guardian may refuse to allow her to be sent to tne
husbard's house till the payment of Prompt Dower. In such
ircumstarces the h:sband is bound to maintain the ife although ih
1S eSiding apart IrOm huni.
(::) Prompt dwer coes not become deferred after cunsummation of
marriage, and a wife has absclute right to sue for recovery of pror pt
dower even after consurimation. After consummation, she cannot resist
the conjugal rights of the husband if the prompt dower has not been
paid by him. Instead of refusing to decree the suit for restitution of
conjugal rights to which the husband is entitled, if marriage is
consunmated, the court may pass a decree corditional on payment of
dower.
(i1) It is only on the payment of the prompt dower that the husband
becomes entitled to enforce the conjugal rights unless the marriage is
already consummated. The right of restitution arises only after the
dower has been paic.
(iD) As the prompt dowe is pavable on derand, limitation begins to run on
demand and refusa. The period o: linitat.on tor this purpose is thre
years. If curing :he corinuance of inarriage, the w: does not mak:
any demand, the Iimitation begins to run on!y irn the date of h:
dissolu:ion of marringe by death or divorce.
 156 MOHANIMEDAN LAW

it has beern held in Rehana Khaluut's case,l" hat the proportion of rompt
dower is regulated by custom, and, in absence of custon, the total atount of
dower is to be settled on the baàsis of the status of the parties.
Shia Law.-Under Ithna Ashari Shia law if the kabin-nana fixes the
total amount of dower but does not specify as to what portion of it will be
prompt and what deferred, the whole of the dower is regarded as prompt. In
the Madras Presidency, unless otherwise stipulated the entire dower is
prompt
no matter the parties are Slia or Sunni.
Sunni Law.-According to Sunni Law, in the absence of any fanily usage
and statement in Kabin-lama, half of the total amount is regarded as prompt
and half as deferred.
(i1) Proper (Customary) Dower.-When the amount of dower is not fixed in
the marriage contract or even if the marriage has been contracted on
the condition that she should not claim any dower, the wife is entitled
to Proper dower. Proper dower is to be determined by takirg inte
consideration the amount of dower settled upon other female neinbers
of the father's family such as her father's sisters.

Determination of Proper Dower.,-The proper dower (niahr-i-1:sl) is

regulated with reference to the following factors :
(a) Personal qualifications of wife; her age, beauty, fortune, understatnding
and virtue.
(b) Social position of her father's family.
(c) Dower given to her female paternal relations.
(d) Economic condition of her husband.
(e) Circumstances of time.
There is no limit to the maximum amount of proper dower under the Sunni
Law, but under the Shia law the proper dower should not exceed the 500
Dirhams. 500 Dirhams was the amount of dower which was fixed in the
marriage of Fatima, the Prophet's daughter. In the Shia Muslins it is,
therefore, considered a point of honour not to stipulate for a sum higher ihan
the sum of dower fixed by the Prophet for his daughter, Fatima.
9. Wife's rights and remedies on non-payment of Dower.- iMuslin Law
confers upon a wife (or widow) the following three rights to compel pa.:ntei
her dower:
1. Refusal to cohabit;
2. Right to dower as a debt; and
3. Right to retain her deceased husband's property.
(1) Refusal to cohabit.- If the marriage has not been consummated, the
wife has a right to refuse to cohabit with her husband so long as the prompt
dower is not pail. In the case of a wile who is a minor or an insane, er
guardian has right to refuse to send her to her husba d's house till pay ent ot
17. Rahana Klattun v. lgtidar-uddian. (1943) ALJ 98.
 DOWER (MAHR)
Although prompt dower, according to Muslim Law, is paabl
immediately on demand, yet, in a large majority of cases it is rarely dena ded
and is rarely paid; in pracice a Muslim husband enerally gives
to the uestion of paying dower to his wife save when lttle tiuçht
there is loaestic
disagrecment, or when the wife presses for pavment upon the husbnl's
embarking upon a course of extravagance and indebtedness without maki,, ay
provision for her.Lapse of time since marriage raise% no
of the payment of dower.!3 presuniption in lcur
(b) Deferred dower.- It is payable on
death or divorce. dissolution of marriage either by
According to Ameer Ali generally in India dover is a penal sun with the
object to compel husband to fulfil marriage contract in its entirety.
The following points must be noted regarding deferred dower:
(i) Deferred dower is payable on dissolution of marriage by deah or
divorce. But if there is any agreement as to the payment of dferred
dower earlier than the dissolution of marriage such an agreennl
would be valid and binding.
(ii) The wife is not entitled to demand payment of deferred dower (unless
otherwise stipulated), but the husband can treat it as prompt and pay
or transfer the property in lieu of it. Such a transfer will not be void as
a fraudulent preference unless actual ins lvecy is involved.
(iii) The widow may relinquish her dower al the time of her husb.ul:
funera! by the recital of a formula. Such a relinquishnent must be a
voluntary act of the widow.
(iv) The interest of the wife in the deferred dower is a vested one and not a
contingent one. It is not liable to be displaced by the happening of any
event, not even on her own death and as such her heirs can cla1n1 the
money if she dies.
Presumption regarding prompt and deferred dowet.--The amount of dower
is split into two parts : (1) one is called 'prompt' which is payable on demand,
and (2) other is called 'deferred', which is payable on dissolution of marriage
by death or divorce. The prompt portions of the dower may be realised by the
wife at any time before or after consummation.!" Dower which is not paid at
once may for that reason be described as deferred dower but if it is postoned
until demanded by wile, it is in law prompt dower. But deferred dower does
not become prompt merely because the wife denmands it. l6
1f the Kabin-nana, the nuarriage contract deed, fixes the amount of lower
but fails to show what portivn of it will be pronpl and what defered uewer,
according to Allalhabad and Bombay High Courts the proportion between the
twoshould be fixed on the basis of (i) position of wife, (ü) custom of locality
(iii) total amount of dower, (iv) sta!us of husband"
13. A.J.R. 1941 Ouih. 457.
14. Rahana Klattun v. lqtidar-uddin. (943)A!l.LJ 98.
15. Maladeo Lalv. Bili Maniram, AIR 1933 PAt. 281.
16. Manoiar Bibi v. Rakha Singh, AIR 1954 Manipur 1,
 DOWEE(11AHR)

htustar 1S
propt lower. Durin: Iher sucstay 1er seal nhoue the
bound to naint.in her.
pronpt7
The absolue right o lhe wife o insist o ) l Dt of the tione
consurnr
before iving him the access to her, is lost aíter the stitu' c ot
marriage. After consummation the Ihusban in lis suit for
conditional on pa ent
conjugal rights Ipon her refusal can secure only adecree
Salinu.,that the efiect o!on
of dower. It was held in Abdul Kadir v.
refus to cohabit or rofuse ai e
payment of pronpt dower is that the wife can conjuga! rit>
with the husband. If the husband sues her for restitution of
of dower is a Conplete
before sexual intercourse takes place, non-payment
defence to the suit, and the suit will be dismissed.
Similarly, In Nasra Begitnt
High Court that the wife can
v. Rizwan Ali,20 it was held by the Allahabad sexual intercourse so long
refuse to live with her husband and refuse to him the
restitution of co:njugai 1ts
as the prompt dower is not paid to her. In a suit for before consunnatio, is a
by the husband, the non-payment of prompt dower vife is minor or insar: her
complete defence and the suit must fail. Where the
his wife with lin i! he
guardian can refuse to allow the husband to take
already in the custody f her
prompt dower has been paid. If the minor wife is
of nonpaynt ut of
husband, such guardian can take her back on the round
Al tkitar Alzed, 'l tha: : te
prompt dower. It was held in Rabia Khatoon v.
lace with he: frec cosI
suit is brought after sexual intercourse has taBeniisnissal, but : dec í0r
of
the proper decree to pass is not a decree
restitution, conditiona! on payment of prompt dwr
date or o:n the
When dower is deferred and is payable at a future
contract to the contrari, the
contingency of an event, and liiere is n0 other
his conjugal riglts or
question is whether she can refuse to the husband Abu Yusuf is o op inion
whether her guardian can detain her till it is paic,
Shia Law, slh: carnot
that she can but according to Imam Muhamn.ad and the
and it appears from the
have such option of denial in cases of deferred dower, tlhat the latter
learned decision of Mahmood J. in Abdul Kadir v. Salima,"
opinion has been followed in India.
of the Privy Council held
(2) Right to dower as a debt.- Their LordsBhipsentitled along with other
that "the dower ranks as a debt and widow i: t " If
creditors to have it satisfied on the death of the I.ushand, out of bis
iluting . stit
the husband is alive, the wife can recover the do:ver debt hy ins
1paid,
against him. After the death of the husband, doier debt rema.nin:
agaiisi his
the widow can enforce her claim for the dower debt by filing a suit
heirs. The heirs of the deceased husband are however, not personally inale tor
the dower debt. They are liable to the extent to wlhicBh and in the prop ron in
widoy :s in
which they inhcrit the property of the deceased lhusband. If tle
the:
possession of her husband's property undei icin for her deer,

18. Humidunissa Biliv. Zuleer-Sheik, 17 Cal 670).

19. ILIR (1886) 8 Al. 149.
20. AIR (1980) All 118.
21. AIR 1966 All 548.
22. ILR (1886) 8 AI 149.
 158 MOAMMEDANIAW

hers of her husband ate seeally enitled to reover ther tt share

upon payment of aquota ttled ordbtppotionate totho* J
A Mohamndan dies lcaving awidow, a sorand two datughters ile widow
is entitled to adower debt of Rs. 3,200; the widow's share in the estate is 1/8
and she is liable to contribute 1/8 of Rs. 3,200=Rs. 400. The son's slure is 7/16
and he is liable to 7/16 of Rs,3,200 =Ps. 1,400. The share of cach daughter is
7/32 and she is liable to pav 7/32 of Rs. 3, 200 =Rs. 700 and if the wilow is in
pOSsessIon to recover her share on payment of Rs. 700. She is ot, however,
entilled to any charge on Iher husband's property, though sucli a chalge inay be
Crealed by agreement.24 Even a father's contract on behalf of his m:nor son is
binding upon the minor and upon the father if the ninor tails to pay.
In Syed Sabir Hussain v. Farzanl HuSsuin," a Shia Muslin stood surety for
payment of the dower by his nin or so:. After his duath lus :stat was held
liable for the pavment of his so's naby and eacl heir was niade ieponsible
the
tor a portion of the wife's clain1 in proportion to his share in the esttte of
deceased.
of
In Mohammad Tusabuddin y. Yasin Begu 26 it was helt that the claim
a widow for dower was in the nature of a secured debt.
There is no doubt that it is within the competence of a Cort to Create a
clharge by its decree for a dower debt so that ifsuch acharge is creaiel and the
decree has been appealed against and has become final, effect will be given to
the charge in other words, a decree creating a charge is not a nullity for want of
jurisdiction. But though it is not beyond the power of a court to pass a decree
creating acharge, it will not ordinarily do so. To pass such a decree is to give
the dewer debt a priority over other debt due from the deceascd. The proper
decree to make is simple noney decree and no charge is created merely because
the decree directs execution by sale of properties mentioned. If a decree is
passed creating a charge the proper course ot the Appellate Ceur! would be io
set it aside to that extent7
In Anjum Hassan Siddiqui v. Salma Bi28 the Allahabad High Court held
that an application by the divored woman for sum of Malr or dower under
Section 3 of Muslim Women (Protc ction of Risçhts on Divorce) Act, i93E} can lie
only before the Magistrate conceraed. Ihe Family Co:rt est atb.hder the
1934 Act cannot. exercise juris tictior unless the sane hàd e e:tfically
Conferred upon the family Court nder the provis1or o Sator 2 o .134Act.
The family Court in this case was therefore, no! conpetert to dea: with the
application moved by the respondent for want of jurisdictior:.
(3) Right to Retain Possession in 1ieu of unpaid Dower.--Dower ranks as a
debt, and the wife is entitled, along with the other creitors, to have it
satisfied on the death of the hushand out oi his estaie. IHer it, iowever, is
23. Hamia Bibi v. Zubaida Bibi, ILR (1916) 38 A: 581.
24. Hamiua Bibi v. Zübaidu Bilbi ILR (1916)33 All 581.
25. 65 1A 119.
26. 17 DLR. 224.
27. Annmeeroon-nissa v. Moorad-un niss(I855) 6 MIA 211.
28 AIR 1992 AlI. 322.
 DOWER (MAH)

no greater than that of auIy ofher ccuredcredto ceplt if she law.ully

obtains possession of the whole or parl of hus estate, io a y her lai t
the rents and is uesaung therefr slhe s entitled t o n sLcli po:.0
until it is satisicd 0 the vidotw has lawtully anl wit:ut force or ac
obtained in lieu of her dover actual possession of lie po ty of the dect
husband, she is entitled to retain that possession as aj;ot other heirs d. a
against other creditors ot her husband, until her do we i This ry t o
retention does not give her any title to the property. terelore sie Caitot
alienate the property. Tilhe right to retain posscssi 0:N of isband's esta tl!
payment of dower also arises after divorce. In no ca se it arises durins lhe
continuance of marriage.
A widow's right to retain possession of her husband's estate in lieu of her
dower, is for a special purpose. It is by way of compulsion to obtain spedy
in
payment of the dower which is an unsecured debt. Were she is rot
possession or has lost possession, she cannot clain to obtain it. Becaus her
right to retain is not in the nature of a charge on the property like mortgag but
husband.
a personal right against the heirs and creditors of her deceased
The following features of right to retain possession must be noted:
(i) No right of retention during continuance of marriaye--The right CoDmes
into existence oniy after the death of her husbarnd,r if the marriage is
dissolved by divorce, inmeciately on such divorce, Dat not betore.

Thus, if a creditor of the husband obtains a decre iainst him ard th

husband's property is sold in execution in his lifetine, :h: wife has no ri;int of
retention against a purchaser in execution of the decree and slhe must d. !iver
possession to him,3!
(ii) Actual Possession.,--The right of retention neans ilhe right to continue
in the possession of the husband's propert ailer terminaticn of
marriage (either by divorce or by death) until the satisfaction ci the
dower debt. It is, therefore, necessary for thc exercise of this riglt that
the wife or widow must be in actual possession o the property t th
time of the termination of marriage. If she was not in actual posse ssion
of the property at this time, she cannot afterwards acquire possession
of the husband's property in lieu of this right. The right of retention is
the riglht to relain possess0on o: the propery yhtch iv as acquied b,
her during the subsisternce of marringe. It is, ther'ore, iot a rizhi t
obtain possession.
It is also necessary that the wife should have obtinod possession f th
propertyy lawfully and without force or fraud.
(iii) The right of retention not analogous to a morty,age.-The woman hs no
interest in the roperty, as nortgago has uDC inary norg
There is no truc analogv between her rigl1t of ro n nd morty. !
29. Hanira Bibi v. Zubaida Bibi, ILR (1916) 38 Al 581.
30. See iabee Bachum v. Hamid Hlussain,(1871) 14 MIA 377 and Main: Bibi v. Chaulery Vakil 1hmad
(1924) 521A 145.
31. 51IA 145.
 the ase of 1 orcag
agrecnentw h ad te th0k
by law.
(iv) Not a charge.-Ihe right does not constatute acharge on
the
and as such she is not a secuei credito. lf the pvN, whach sopert
held by her in lieu of dower under her .a:
mortgaged by her deceasi husband, th. ean ell i! 1ne
her ri;ht nd an oust her
imOSeSSON
(V) A possessOr lien on poperty is no title -- She is to s
claim tor dower witu the rents ard oits a : n thep t )
(b) The right o: etention does n0: give her ann i o he
properir h
title to the propertv is in he hei, ldin: t
(c) She cannot 2ienate the rrertr slee t Slis
dower. It she a.ens the roert it :sah et ofher
share and oo'the u n : her sC
If she delivers possession the:eof te the alien other h S i
entitled to recover immediate possession of their shas ucnditina: th.
1S, without payment oi their proportionate share i e iowel Th
widow is not ent.tle.: on he alienation ben, St i
possessions. By giving upposssion of the propert, U her rght i 0
possession thereof ard vheher she loses her right to t: dver. Horer, :
the widow is dispossessed bv the heirs of the husha o r r trarsteres i
can recover possession oly by instituting a suit tunirS 9 o f theeil
Relief Act, that too withu1 6 months of disp ssessior xhich she i u
lost her ight to recover pOSsession. In case she is s
she can sue with 12 vearsunder Article 12 e the lrdiu l tion dcu
In the lea ding cas of Main: Btliv Cut ay
Muinuddin dicd in 50 leaving innor:ble pr y
widow. In 1902 the espondents institu: d i si 3 the n . :
immediate possessio: of thei: shes of the stae.h w pleit
the estate was gite t her by h0r hushd i . l vtha
entitled to oes ic i s !
a decree for pOSSeSSIC1 ntaOUrlne N s $
to the widow Rs. 25 35 hin sx onth, and !: ONt
defauit of pav nent te suit shouid be isr iased. I rNnts dd n
the money anc the widow eatuued i poss sSiON.
In 1907 Maina Biriexeruted two deecsof gif: ei herhusbant's esate
favour of sone donees to whom she ave possess. Tie ns of tecv
showed that the widow purpoted to conyan al ol::s te tiot e a
The respondents filed the resent suit in 915 3yai t dw Ms F
and her alienees, the eppellants The resondents La! ne. that t!
ould not, according to Musn Lav. anstr p
the e r w h i }i
only right or retention until the pavment ot doI Ik

32. (1924) 52 1A 145

 DOWIK(I\HR

. conditionally, or aliernativ l upnpayent of the prpor' ore ntnt tn

e dower debt, atter deuL1: the profit, of the proerty. Te aopeilant
aded ameng other l n taed e e of 102 opeatd Judcata
tarther that the clain was trod lv linntation.
possCSsion of the
Their Lordships of the l'rivy Council observed that the the widow
acquired, the ri:htof
operty being once peacefully and lawfully
conterred up on r l he Musim
retain it tl her dower d e ,sutficd, is
aw. TIhey further said thtt it is not
exactly a lien, i0r i nortgae,
possession of er husband's
Lutructuary or other. The widow who holds
has no cstate or interest in the
property until she has been paid her dower right to
ordinary mortgage. Slhe has no
PrOperty as has morlgagee under an
alienate the property by sale, mortgage, gift or otherwise. Ihe
Meher Ally v. Mst. A uanee.33 it was said tlhat the lien of
In Meer legal
the property in her possession is not a lien in fhe ordinary
widow over claim for dower is in the sane
o3tiOn as that of
sense of the term and that a other
creditor and ranks ari passi! With then ti like
any other ordinary
cntitled to take inythiny:
iebts has to be paid before the heirs are pessCsion of her
Widow in possession liable to account.-A widow in for
(vi) the other heirs of her busband
husband's estate is botund lo account statle she i
rents and prófits received by her ou! of the
the lo se it
entitled to charge interest on the dower due to h Cnd
herself Slai1 Sihn s case, ti
against the iet profits. It was held in
off property in le.to: dower debl is
"widow in possession of her husband's
income (rom suipropety, in itei
liable to account to other siarerS of
possession".34
heirs
sue heirs,-The widoy is not disentitled to sue her usband's
(vii) Can got:d hal she i
out of his assets on the
for the recovery of her dower
retaining the property.
or transerail-There is
(viii) The right of retention whcther heritable
whetler the wiow's rigit to holc
conflict of judicial opinions heritable,3$
possession is transferable and
right and 1ot a Jien nd it cannot
1. One view is that the right is personal Cai il ; ass to
therefore be transferred by sale, gift or otlhewise, a
heirs on her death. '
Court ilal h h t to hoii
2. The other view is of the iysore High transte: 11 Sch righ!
possession is the ri;ht botn heritable and hcins tter ik. death. it
retain possession can also be exercised by her
p.cssin8 ny
has been held in a case that it is heritable w1tho it
opinion whether il is also ransfotab!. 9
13. 11 W R212.
128.
34. Shaikh Salua v. Molu:nal Abdui Kadar. AIR 1961 AP.
33. Zubair Almed v. lainadan lrasu.l AIR 1900 Pat. 147.
S6. Hadi Ali v. Akbar Ali, (1898) 22 Al 262.
37. Hussain v. Ralhim Klan, AIR 1951 Afys 4.
Haliman v. Molamma.l Moin, AIR 1971 Pat. 385.
Azízullalt v. Al1mal (1885) 7 A! 333.
162 MOHA\MMEDANTAV

3. In another case of the Allahabad High (ourt it has been held hat ti
both transterable and heritable.
ithout transferring also t
If it is transfeable, can it be transferred
In sone c s
dower debt.-Here again there is a conflict of Judi ial decisions.
ot be severed fror tir
it has been held that the right to hold possession cav Maina Bibi's cose.
dower-debl and ransferred as àseparale interest as i
translerre i
other cases it has een held that it can be so
does nol S. to the tratsferec t
But a transfer merely of the dower debt doubt, wheth r
Council exprssed
right to hold possession and the Privy right to hold possession.4.
widow can transfer either the dower debt and the
can now be said with certainty, is lnat the right to iold
All that
s.aid vit cortainty, wlether t i
possession is herilable. Thouglh it cannot be is i favour of the V.ew
transferable but the balance of authority in India
it is also transferable,43
Following illustrations may make the position clear. i
Muslim dies leaving awidow and a brollier. The widow is in la Iot
A of her dower. The brother ca
possession of her husband's property in lieu I
share until he pays his proportionate slae of the dovvel eb:
claim his the widow Sels the whole piopEr.
i
dower debt remains unsatisficd, and t
thereof to Ie purcha er. Vov
satisfy the debt, and delivers p0ssession The sale
question is--what is the effect of the sale? Of that s les
e.
the widow'% share and the right to the po se0
only pOsessio to the p t i t r ? Ihe
what will be the effect of the deliverv of not nui ed, before ivero
was
effect will be that the brother, wvho hare of ih e
until he paiu h
possesSiOn, to possession of his share ot ins ithoutavn
becomes entiiled to im1nediate possession SSession of the bro:lCrs
relun
share of debt. The prchaser is not entilled to
dower deu. The reason is thal tlic
share until the brother pays his share of
dewer or the right to iol
deed does not purport to transfer to him either the
possession restored back to
possession. Nor is the widow entitled to have the
to hold possession.+1
her, for by giving up possession, she lost her right
iower:
9. Difference between Sunniand Shia Laws relaliny to
Sunni Law ihia Lav

A minimum limit of 10 dirhams is 1. No ninimum imit is prescrib

1.
prescribed for specified dower.
2 There is no linit to proper dnwer. P'roper dower cannol eree 50
dirhan1
3 There is no naxinum limit for 3. Fixin o ower exc dine 5 )
specific dower. dnh s Cnsidered atcmp d
thoyi ot lle;a.

40 ZubumISsu V. Nm HuSsn AlR 1962 AII 197.

Amir H!assan v. Mohmed, (1932) 54 AIl. 499, Slhwiklh A. Rat thih . Saiklt Veli, (1 23)
41
42 Ab.tul x. Shumsu! !lag, (19 1) All?62
43 Muna lBibi v. Cudry akil Aud 19,25) 21A 14,
44 See Mulla, I'rinuplesof ohtmrdan Lavw, I i1 l | 2
 Sunni Law Shia Law
l: nariage is dosolv y dathh 4 Iu such case nolowes vould be due
WaS not
and dower has not been peiicd, the
or it is agred tl:at no dower shll COnSU!OLate.
be payable, proper dover vould be
due wlhether tlhe marriage was
cOnsummated or not.

An agreement hat no dover shall 5. Such agreenent by sane and adult

be due is void. wife is valid.

o. In the absence of an agreement only 6. The whole dowe is presumed to

a reasonable part of the dower is be prompt.
presumed to be pronpl.
issolution of marriaye
10. Effect of Apostacy on Dower.-- The effect of
under a decree of tlhe Court is regulated loy statute. According to e tion 5 of the
tvoman shall
Dissolution of Muslin1 Mrriage Act, 1939, a arried Mlaslim unde: l:
dissolutior 0 nriage
have same rights in respet of dower after
wvay of taiaq sql: etc. Under
Act as she may after dissolution of marriage bynmarriage is issolved under the
Muslimn Law. ience a Mu:ln woman whose
entitied to dower.
aforesaid Act not the yround of apostacy of the husband is
The dissolution of marriage under the Act, even thougi1 nade alter apostacy of
and she i ontitled to half
the wife, does not take away her right to dower
dower even if the marriage is not consumnmaled.
paid, the wife and
11. Suits for dower and Limitation.- If tle dower iinotlinitation, according to
after her death,lher heirs may sue for it. The period of
dower is thrc
Article 113 of tlhe Limitation Act, for a suit to recover prompl
refused: or where during te
vears from the date when the dower is demanded, hade, when the
continuance of the marriage no such denend has t
deteired dower, t'e
marriage is dissolved by deatii or divorce, ln case of
when he marriage i
period of limitation is three vears from he dat
dissolved by death or divorce. Where, howvever, prompt dower has 1not been
for its
fixed, a demand and retttsal is not a condition precedent ior iliug a suit
recovery.
Amount of Dower and Condition of Paynment.--This aav be divided uto
two-
1.(a) Where the amouit of the Mir has been fix ed yeenent, and Ie
whole of the
marriage has lbeen consunmaled or either p.arty has died -the
mahr is payable to the vile.
(b) Where the Mahr is unspecified, and if the marriage has becn
consummated or either party lhas died, the wife is entitled to proper dower
(Mahr-ul-mishl.)
(c) Where the narriage is irregular and it has been unconsummated but
dissolved by death of the party, tlhen the wifc is entitled to specified or proper
dower whichever is less.

45. See Tayabji, op Citp l16

 MOHAMI!'AN LAW
64

1 usband wi bott UI
Wicrc l : vile is divorced by
jer eive:
val: ret:rer en, the wife is entitlec i
e Hl of tlhe specified dover, or
s r o f their vail ivOr
/pOs0! of theo ricii
the ithen she 1s t i r ny lot.
ui-paida1 Ii.era.
12.Kharcie-i-pani n.--] he
io the wife cu ston.
exenses and is a personal allowance
Iliia. It is also call
fanulies of rank specialiy in pper are minors, ti: cn.rac
ie:mkhori (eating fruits). When the parties beni :.
i Such a case the w.ie as
between he respective parents and m:.
<eu either be.ure 0
enitled to enforce it. Mureover tnis is :i
posiicu of the paiti.:
accordin: to the means and Law. "
Kharcne-i-pandan to 'pin ther found i:: 1
cOnpared h-i-j-0r d.t.. pi
some difference in the wo. The sredn ici t:
husba l
long as she Iives with Fer
iluy' 'oweve, :» o
L.

control of the husband. The pin te usban!

dvice and at ihe insta!
M'idh the