Dower in Islam (Mulla’s Muhammadan Law)


CHAPTER XV

Dower

275: Dower Defined: Mahr or Dower is a sum of money or other property which the wife is entitled to receive from husband in consideration of the marriage.

(see Baillie, p, 91,)

Meaning and Scope:

                                         Mahr or Dower is that financial gain which the wife is entitled to receive from her husband by virtue of the marriage contract itself whether named or not in the contract of marriage, in which case proper Dower (Mahr Mithl) becomes due. The dower, therefore, is a right which comes into existence with the marriage contract itself except that in case the dowwer is deffered its enforcement is held in abeyance till a certain event, i.e., dissolution of marriage by death or divorce, occurs.

Dower money is a debt payable to a wife and she is within her legal right to even press for its payment.

Consideration:

                              The word “consideration” is not used in the sense in which the word, is used in the Contract Act. Under Islamic law dower is an obligation imposed upon the husband as a mark of respect to the wife.  in the case of mahmood j in  abdul kadir v. salima (1886 8 all 149). said that it  had been compared to the price in a contract of sale because marriage is a civil contract and sale is a typical contract to which Muslim jurists are accustomed to refer by way of analogy. If dower were the  bride price a post-nuptial agreement to pay dower would be void for want of consideration, but such an agreement is valid and enforceable.

Anything over which the dominion or the right of property may be exercised, or anything, which may be reduced into possession, either in-praesenti or in futuro anything, in fact which comes within the meaning of the word ‘mal‘ and has a value , may according  to the Hanafi doctrines, form the subject of dower.

Mahr is distinguishable  from dower as is understood in the European countries and also from presents given at the time of marriage and jahez.

276. Specified Dower:

                                            (1) The husband may settle any amount he likes by way of dower upon his wife, though it  may be beyond his means, and though nothing may be left to his heirs after payment of the amount. But he cannot in any case settle less than ten dirhams.

(2) Where a claim is made under a contract of dower, the Court should award the entire sum provided in the contract.

(Hedaya, p, 44 Baillie, p, 92).

Dirham: The money value to 10 dirhams is between three and four rupees.

Dower may be either in cash or kind or in form of rendition of personal service.

“Dower is often high among Muslims, to prevent the husband from divorcing his wife, in which case he would have to pay the amount stipulated”. and the mere fact that the amount stipulated is excessive or beyond the means of the husband is no defence to the wife’s claim. If the husband transfers a field to his  wife as dower she is entitled as against him to a decree for possession. If there are other sharers in the field they are not necessary parties to her suit and the decree does not affect their rights.

Transfer of land in lieu of dower would not be sale but would have element of gift and thus immune from right of pre-emption even though the price was mentioned in deed of transfer.

Shia Law: Under the Shia law, there is no fixed legal minimum for dower. Baillie ll, pp, 67, 68.)

277. Dower may be fixed after marriage:

                                                                                  The amount of dower may be fixed either before or at the time of marriage or after marriage; and can be increased after marriage.

278: Contract of dower may be made by Father:

                                                                                A contract of dower made by a father on behalf of his minor son is binding on the son. Such a contract may be made even after marriage, provided the son was then a minor. Among Sunnis the father does not, by entering into such a contract, become personally liable for the dower debt, nor is he liable for it merely because he consents to the marriage. But by a recent decision of the Judicial Committee the rule is otherwise among Shias when the minor son has no means of his own. (See Baillie, ll,p.80)

A person who guarantees the payment of dower by the husband is liable to the wife as surety. The husband and surety are necessary parties for the determination of question relating to liability to pay dower.

Minor” in this section means one who has not attained puberty.

279: Proper Dower:          If the amount of dower is not fixed (S.276), the wife is entitled to “proper” dower (mahr-i-misl), even if the marriage was contracted on the express condition as she should not claim any dower. In determining what is “proper” dower, regard is to be had to the amount of dower settled upon other female members of her father’s family such as her father’s sisters.

Shia Law: The proper dower under the Shia Law should not exceed 500 dirhams :Baillie ll,p,71)

280: Confirmation of Dower: The dower becomes confirmed—

(a) By consummation of the marraige ; or

(b) By a valid retirement (khalwat -e- sahia) ; or

(c) By the death of either the husband or the wife. (Baillie p 96)

Shia law: The right to dower is established by consummation or by death of either party, but not by valid retirement. Baillie ll,pp 73.,74. If the husband divorces the wife before consummation, the dower is renduced by half, (a) but if the husband dies before consummation, the full dower is payable to the wife.

To be continued…… Stay tuned

13 thoughts on “Dower in Islam (Mulla’s Muhammadan Law)”

  1. We would like to thank you again for the stunning ideas you offered Jeremy when preparing a post-graduate research plus, most importantly, regarding providing the many ideas in one blog post. If we had known of your blog a year ago, i’d have been rescued from the needless measures we were having to take. Thanks to you.

  2. Nice read, I just passed this onto a colleague who was doing some research on that. And he just bought me lunch since I found it for him smile Therefore let me rephrase that: Thank you for lunch! “Life is a continual upgrade.” by J. Mark Wallace.

  3. Mene Muslim ladke se Nikah kiya h hum dono ki margi se ab wo mujhe rakh nhi Raha h or dusri shadi ki bol rha h to wo bina mujhe talak diye bina dusri shadi kr sakta h ya nhi

    1. Ji Wo Ap ko bhi rakhte hove dosri shadi kar sakta hai. Lekin Indian or Pakistani Muslim marriage act ke tehet usko Dosri shadi karne se pehle apni Pehli Bewi se ijazat lena zarori hai. Baz oqat zahir hai pehli begam ijazat nahi deti to phir aksar log talaq de kar dosri shadi karte hain. Lekin Laws ajkal bohat sakht hain. Isliye Union Council faisla kar sakti hai. Ap kisi Lawyer se raabta kejiye. Sharayee taur par usko haq hasil hai 2nd shadi karne ka. but jese mene pehle kaha keh Ijazat ki shart bhi mojood hai

    1. Jub mard apni Bewi ko bain ya Rej’ee talaq de de ya talaq ke bagher in main judai yani furqat waqia ho jai awr wo aurat Azad ho or usay Haiz bhi ata ho to uski iddat 3 Haiz hai.

      Bila talaq furqat waqia hone ki kai Suraten hain maslan eela, laan, Khula (i think jo apka issue hai) ghair kafi main nikah ho jana, or Khayar baloogh waghera. Yad rahe keh Alehdgi jub bila talaq ho to wo bhi idat ke silsilay main talaq he ki tarha khayal ki jaigi Baaz fuqaha ne 3 haiz ki muddat ko 3 mah qarar diya hai lekin jise haiz ata ho to usay 3 haiz mukamal aanay tak iddat guzarni chahiye.

      Masla: Agar aurat ko nabalaghi ke bais yaa Bari Umar ki waja se haiz na ata ho to uski iddat 3 maah hai. Kionkeh irshad e Ilahi hai keh tumhari aurton main jo haiz se naa umeed hon or tumko shak ho to unki iddat ki mudat 3 maheene hai. Or ye Allah ka hukam hai.

      Aur isi tarha wo aurat jo umar ke hisab se to baligh ho chuki hai lekin usey haiz nahi ata. Uski bhi muddat 3 maah hai. Agar kisi larki ko talaq mil gayi us ne maheeno ke hisab se iddat shuru ki. Phir iddat ke andar he aik ya 2 maheene baad haiz agaya to ab pooray 3 haiz anay tak bethi rahe. Jub tak 3 haiz pooray naa hon Iddat khatam na hogi (DurreMukhtar)

      Masla: Agar kisi ne haiz ke zamanay main talaq de di to jis haiz main talaq di hai us haiz ka kuch aitbar nahi usko chor kar 3 haiz pooray kare (Fatawa e Alamgeeri)

      Or agar Haamla hon to bachay ki paidaish tak . or agar kisi ko haml hai or usi zamanay main talaq mil gayi to bacha paida hone tak bethi rahe yahi iski idat ki muddat hai. Jub bacha paida ho gaya to iddat khatam ho gayi. Or talaq milne ke baad thori he dair main agar bacha paida hogaya to usi waqt iddat ki mudat khatam ho jaigi.

      Further

      Talaq ki iddat us aurat par hai jisko Suhbat ke baad talaq mili ho ya Sohbat to abhi nahi hovi magar miyan bewi main Tanhai wa Yakjai ho chuki hai tab talaq mili. Chahe wesi tanhai hui ho jis se poora meher dilaya jaata hai ya waisi tanhai hovi ho jis se poora meher wajib nahi hota. Baharhaal iddat bethna wajib hai. Aur agar Bilkul kisi qisam ki tanhai na hui ho to iddat wajib nahi (Aaalamgeeri)

      I hope apko apka jawab mil chuka hoga

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