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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

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