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CONCEPT OF DOWER

Arka Ray1

INTRODUCTION

Dower in English Law is defined as the portion which a widow hath of the lands of her
husband at his decease, for the sustenance of herself and the education of her children.

In Mohammedan law, this term is explained as the money paid by the intended husband to
wife at the time of marriage and in consideration of marriage.

Section 285 of Mohammedan Law defines dower as a sum of money or other property which
the wife is entitled to receive from the husband in consideration of marriage.

To know about dower, at first we must know about marriage and conditions of marriage in
Mohammedan Law.

MARRIAGE AND ITS CONDITIONS IN MOHAMMEDAN LAW

Section 250 of the Mohammedan Law defines marriage as a contract which has for its object
the procreation and legalizing of children.

In the landmark case Abdul Kadir v. Salima, it was observed that marriage in Islam is a
civil contract and not a sacrament. 2

Hon’ble Rajasthan High Court in Hasina Bano v. Alam Noor3 made a clear observation that
unlike a Hindu Marriage, where marriage is a sacrament, in Muslim law marriage or nikah is
a permanent and unconditional civil contract between two persons of opposite sexes with a
view of mutual enjoyment and procreation and legalizing of children.

CONDITIONS OF A MUSLIM MARRIAGE

1. There must be a proposal made by or on behalf of one of the parties.

2. There must be an acceptance of that proposal by the other party.

1
BA LLB, THIRD YEAR, SURENDRANATH LAW COLLEGE, UNIVERSITY OF CALCUTTA,
KOLKATA.
2
(1886) 8 All. 149
3
A.I.R. 2007 Raj 49

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3. The parties must be competent, i.e.,

a. The parties must not be minor.
b. They must be of sound mind.
c. They must be Muslims.
 There must be free consent for marriage.
 Dower
 Presence of witnesses during such proposal and acceptance.
 The proposal and acceptance must be expressed in one meeting.

From the above-mentioned decisions and conditions laid down to constitute a valid marriage
among Muslims, it can be said that marriage among Muslims is a contract and not a sacred
union.

DOWER

So from the above-mentioned conditions, it is clear that to constitute a valid marriage, a

Muslim man must give the consideration amount or Dower to his wife.

Now, Section 285 of the Mohammedan Law states dower as a sum of money or other
property which the wife is entitled to receive from her husband in consideration of marriage.

The term ‘consideration’ here is not used in the same sense as it is used in the Contract Act.
In Mt. Fatima Bibi v. Lal Din4, it was stated that under Muslim Law, dower is an obligation
imposed on the husband, which he is bound to give as a mark of respect to the wife.

This consideration is also called as ‘Mahr’ or ‘Sadak’ in legal treaties, and in common
parlance ‘Dain Mahr’, dower debt.

CLASSIFICATION OF DOWER

There are 2 classifications of Dower-

 Specified Dower
 Proper Dower
1. Specified Dower

4
(1937) A.L. 345

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If the amount of dower is fixed by the parties before the marriage or during the marriage, it is
called as Mahr-i-Musamma or specified dower. In specified dower, a contract of dower may
be made by father. In Basir Ali v. Hafiz, it was stated that a contract of dower made by a
father on behalf of his minor son is binding on the son and such contract maybe even made
after marriage, provided that the son was a minor during the making of the contract. 5
Among the Sunnis, the father is not personally liable for the dower debt even if he consented
to the marriage.6
This is a settled principle in Muslim Law that the husband can settle for any amount for Mahr
but it must not be less than 10 Dirhams. (The money value of 10 Dirhams is between 3 and 4
Rupees)

OBJECTIVE

In Zakeri Begum v. Sakina Begum, it was stated by the Privy Council that Dower is often
high among Mohammedans. This is done to prevent the husband from divorcing his wife, in
which case he will have to pay the amount stipulated.7
Amount of Dower
In Kukkiya Begum v. Radha Kishan, the Hon’ble Allahabad High Court held that if the
amount of dower is fixed before the marriage, it may be increased after the marriage by
mutual consent.8
Therefore, a husband can increase the amount of Dower after the marriage if both husband
and wife mutually agree with such an increase. But in Mahomed Sultan Begum v.
Sarajuddin Ahmad, it is said that an amount stipulated is excessive or beyond the means of
the husband is no defence to the wife’s claim. 9
Under Shia law, there is no legal fixed legal minimum for dower. Under Sunni law, the
amount of dower cannot be less than 10 Dirhams.
Specified Dower is of 2 types-
 Prompt Dower
 Deferred Dower

5
(1909) 13 Cal W.N. 153
6
(1938) A.P.C. 80, reversing (1934) 56 All. 401
7
(1892) 19 I.L.R. Cal 689
8
A.I.R. 1944 All 241
9
(1936) A.L. 183

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 PROMPT DOWER
When the dower is payable immediately after the marriage or at any time when demanded by
the wife. So, a prompt dower is payable on demand. A prompt dower can be realized before
or after the consummation. It doesn’t get deferred after the consummation of the marriage.
In a prompt dower, the wife can sue the husband for recovery of the dower even after the
consummation of the marriage. Unless the marriage is consummated, the husband is entitled
to enforce conjugal rights only after the payment of prompt dower.
In Rabia Khatoon v. Mukhtar Ahmed, the Hon’ble Allahabad High Court held that the
wife may refuse to live with her husband and admit to sexual intercourse till the prompt
dower is paid. It further held that the prompt dower is payable on demand and no proof of
sexual intercourse is necessary between the parties for the claim of payment. 10
 DEFERRED DOWER
When a dower is not payable immediately after the consummation of marriage and becomes
payable only after-
i. The occurrence of a certain incident.
ii. After the expiration of a particular period.
iii. After the dissolution of marriage either-
a. By death
b. By divorce.

Deferred dower is also called Mahr-i-Muwajjal.

The wife here is not entitled to demand for payment of such deferred dower unless otherwise,
it agreed upon by the parties.

SHIA LAW

The Court in Masthan Sahib v. Assan Bibi says that when it is not settled whether the dower
shall be prompt or deferred, then the whole dower shall be regarded as a prompt dower. 11

SUNNI LAW

In Mangal Rai v. Mt. Sakina Begum, the Court said that if at the time of marriage the
dower is not settled to be prompt or deferred then the rule is to regard one part as prompt and

10
A.I.R. 1966 All 548
11
(1899) 23 Mad 371 F.B.

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another as deferred. Such proportion is preferable to each class by the customs which they are
regulated. In absence of such custom, the status of the parties and the amount of the dower
settled.

However, the Court in Husein Khan v. Gulab Khatun, held that it has the power to award
the entire dower as a set-off. 12

Section 336 of the Mohammedan Law speaks of the rights and obligations of parties in
divorce. Sub-section (2) of the said section states that if the marriage was consummated, then
during divorce the whole unpaid dower becomes immediately payable, whether prompt or
deferred.

If the marriage was not consummated and the amount of dower is specified in the contract,
then in Tajbi v. Nattar Sherif, the Court held that the woman is entitled to half of such
amount.13

If no amount is specified in the contract then all she is entitled to is a present of three articles
of dress.

If the dissolution of marriage is due to apostasy of wife, then she is entitled to receive the
whole amount, if the consummation of marriage took place.

PROPER DOWER

If the dower amount is not settled by the parties either before marriage or during the
marriage, the wife is entitled to receive a reasonable amount from husband as proper dower.
It is also called as Mahr-i-Misl. The wife can demand payment of proper dower. Even if the
marriage was contracted with a condition that she should not claim any dower, the wife is
still entitled to claim proper dower from her husband. Generally, the amount of proper dower
is set by taking into considerations such as qualification of wife, wife’s age, beauty, the social
position of the family, the economic status of the husband. It is generally settled upon the
female members of father’s family such as her father’s sister.

Under Shia law, the maximum amount of proper dower is 500 Dirhams.

12
(1911) I.L.R. 35 Bom 386
13
(1940) 2 M.L.J. 345

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REMISSION OF DOWER BY WIFE

After the marriage, the right to dower immediately vests upon the wife. However, after such
rights vests on wife, it is up to her whether she enforces it on her husband or not. She has the
power to remit or relinquish such right to the husband. So, a wife may be out of love or to
gain the affection of her husband can remit such right to the husband.

Therefore, a wife in Muslim law can remit back her right to dower to her husband but while
doing so, there must be some conditions fulfilled-

 The remission must be made with free consent. In Hasnumiya Dadamiya v.

Halimunnissa Hafizulla 14, the Bombay High Court held that a remission made when
the wife is in great mental distress owing to her husband’s death is not one made with
free consent and is not binding on her.
 The wife must be sane and must have attained the majority at the time of such
remission of dower. A minor cannot remit her right to dower. The High Courts of
Madras and Patna in cases Ali Dhunimsa v. Mahommad15 & Najmunissa v.
Serajuddin Ahmed16 respectively, were of opinion that remittance of the right of
dower by a wife who is minor according to the Indian Majority Act is invalid, even if
in Mohammedan Law she has attained majority.
 However, the Allahabad High Court dissented with this judgment in the case of
Qasim Hussain v. Bibi Kamiz17 and held that since the Indian Majority Act doesn’t
affect the capacity of any person to act in the matter of marriage and dower, a Muslim
girl who has attained the age of puberty is competent to relinquish her dower even if
she is a minor in view of the Indian Majority Act.

CONCLUSION

Therefore, from the above study, it may be concluded that a Dower or Mahr is one of the
conditions to constitute a valid marriage. Though marriage among Muslims is a civil contract,
the practice of dower is not entirely essential in a Muslim marriage. Even if there are
conditions specified in the marriage contract that the wife shall not demand dower, she still is

14
(1942) 44 Bom. L.R. 126
15
(1918) 41 Mad 1026
16
(1938) 17 Pat 303
17
54 All 806

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entitled to demand for dower. It is a mark of respect given to the wife. Dower can also be
interpreted as financial support to the wife and she has an absolute right over the entitlement
of dower. It can also be claimed by her in Court of law. The concept of Dower strengthens
the position of a Muslim woman in society.

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