Principles of Muhammadan Law. Page 437 to 441

DOWER

1. INTRODUCTION:

Dower is an obligation imposed on the husband and a right which is given to a wife. It  is not the consideration or price for bridegroom but it is a token of respect for the wife which she is entitled to receive from her husband at the time of marriage, after marriage or even at the time of dissolution of marriage by divorce or death of husband. Before going to discuss the whole concept of dower, it is very important to go through its origin.

1. HISTORICAL BACKGROUND:

In pre-Islamic Arabia two forms of marriages were prevalent. Beena Form and Baal Form, in the Beena Form of marriage, the wife did not accompany her husband to his home, but continued to stay in her own home and the husband visited her there. In this way, there was a custom to give his wife, a gift at the time of marriage, which was known as SADAQ and the wife was known as SADAQA. In the Baal Form of marriage the wife accompanied her husband to his home and the husband, in consideration of wife’s leaving her parent’s home, used to pay some amount to her parents and this amount was known as MAHR or in other words as price of bride or consideration for marriage. Both the payments of Sadaq and Mahr were to be made to bride but not to the father of the bride. In Islam the whole payment of Mahr is to be made to the bride.

After the promulgation of Islam in Arabia, the Prophet (peace be upon him) Muhammed improved the position of the wife in Islam and Mahr was combined with Sadaq and entitled the women to get Mahr as a token of respect for Nikah.

The basis of the law is given in Sura-tun-Nisa and Sura al Baqra which contemplates,

وَاٰتُوا النِّسَاۗءَ صَدُقٰتِهِنَّ نِحْلَةٍ ۭ فَاِنْ طِبْنَ لَكُمْ عَنْ شَيْءٍ مِّنْهُ نَفْسًا فَكُلُوْهُ هَنِيْۗــــــًٔـا مَّرِيْۗـــــــًٔـاٰٰالنساء،4

“And give the women [upon marriage] their [bridal] gifts graciously. But if they give up willingly to you anything of it, then take it in satisfaction and ease.”

لَاجُنَاحَ عَلَيْكُمْ اِنْ طَلَّقْتُمُ النِّسَاۗءَ مَالَمْ تَمَسُّوْھُنَّ اَوْ تَفْرِضُوْا لَھُنَّ فَرِيْضَةً ښ وَّمَتِّعُوْھُنَّ ۚ عَلَي الْمُوْسِعِ قَدَرُهٗ وَعَلَي الْمُقْتِرِ قَدَرُهٗ ۚ مَتَاعًۢا بِالْمَعْرُوْفِ ۚ حَقًّا عَلَي الْمُحْسِـنِيْنَ۔ البقرہ.236

اگر تم عورتوں کو بغیر ہاتھ لگائے اور بغیر مہر مقرر کئے طلاق دے دو تو بھی تم پر کوئی گناہ نہیں، ہاں انہیں کچھ نہ کچھ فائدہ دو۔ خوش حال اپنے انداز سے اور تنگدست اپنی طاقت کے مطابق دستور کے مطابق اچھا فائدہ دے بھلائی کرنے والوں پر یہ لازم ہے

There is no blame upon you if you divorce women you have not touched nor specified for them an obligation. But give them [a gift of] compensation - the wealthy according to his capability and the poor according to his capability - a provision according to what is acceptable, a duty upon the doers of good.

وَاِنْ طَلَّقْتُمُوْھُنَّ مِنْ قَبْلِ اَنْ تَمَسُّوْھُنَّ وَقَدْ فَرَضْتُمْ لَھُنَّ فَرِيْضَةً فَنِصْفُ مَا فَرَضْتُمْ اِلَّآ اَنْ يَّعْفُوْنَ اَوْ يَعْفُوَا الَّذِيْ بِيَدِهٖ عُقْدَةُ النِّكَاحِ ۭ وَاَنْ تَعْفُوْٓا اَقْرَبُ لِلتَّقْوٰى ۭ وَلَا تَنْسَوُا الْفَضْلَ بَيْنَكُمْ ۭ اِنَّ اللّٰهَ بِمَا تَعْمَلُوْنَ بَصِيْرٌ۔ البقرہ.237

اور اگر تم عورتوں کو اس سے پہلے طلاق دے دو کہ تم نے انہیں ہاتھ نہیں لگایا ہو اور تم نے ان کا مہر بھی مقرر کر دیا تو مقررہ مہر کا آدھا مہر دے دو یہ اور بات ہے وہ خود معاف کر دیں  یا وہ شخص معاف کردے جس کے ہاتھ میں نکاح کی گرہ ہے  تمہارا معاف کر دینا تقویٰ سے بہت نزدیک ہے اور آپس کی فضیلت اور بزرگی کو فراموش نہ کرو یقیناً اللہ تعالٰی تمہارے اعمال کو دیکھ رہا ہے۔

And if you divorce them before you have touched them and you have already specified for them an obligation, then [give] half of what you specified - unless they forego the right or the one in whose hand is the marriage contract foregoes it. And to forego it is nearer to righteousness. And do not forget graciousness between you. Indeed Allah, of whatever you do, is Seeing.

The Hadith enjoins “That a person, who gives two hand of dates or meal, a settlement on his wife, has made her lawful to him.

The dower is paid by the husband to the wife, firstly to acquire secondly, to discharge an obligation or duty towards his wife that’s why in common parlance we call it Haq-e-Mahr. In case titled “Saleem Mh vs Kaleem" it is held that dower is a token of respect for the wife.

According to Abdur Rahim "Mahr is either a sum of money or other form of property to which the wife becomes entitled by marriage. It is not a consideration proceedings from the husband for the contract of marriage, but it is an obligation imposed by Islamic law on the husband as a mark of respect for the wife as is evident from the fact that non specification of dower at the time of marriage does not affect the validity of marriage."

“The payment of dower is enjoined by the law merely as a token of respect for its object (Woman)."

1. MEANINGS AND DIFINITIONS :

Under Mohammedan Law, Dower or Mahr is any amount or property which has some monetary value and the wife is entitled to get it from her husband.

Mulla defines it as “a sum of money or other property which the wife is entitled to receive from the husband in “consideration of marriage". The expression “consideration” is used almost by all Mohammedan Law givers.

According to K.P.Sexena, “Dower is a sum of money or any property promised by the husband to be paid o delivered to the wife as a mark of respect for the surrender of her person after the marriage contract but generally said to be consideration for marriage.”

Baillie Defines

the property which is incumbent on a husband, either by reason of its being named in the contract of marriage, or by virtue of the contract itself... Dower is not the exchange or consideration given by the man to the woman for entering into the contract ; but an effect to the contract imposed by the law on the husband as a token of respect for its subject, the woman."