Principles of Muhammadan Law. Page 437 to 441

1. NATURE AND CHARACTER OF DOWER (MAHR):

Dower is a denomination of property, consideration or Mall which is paid, fixed or prescribed or undertaken to be paid to wife by husband at the time of marriage.[1] Dower (Haq Mahr) is sine qua non of a valid marriage. Union between spouses cannot be legal without haq mahr but would rather need to self destroying and hazardous legal consequence.[2] Dower is a precondition and pre requisite of a valid matrimonial contract. Relationship between husband and wife could not be legitimize and would be regarded as a sinful union in absence of dower.

In an appeal from a full bench decision of the Allahabad High Court, the Privy Council in Humera Bibi vs Zubaida Bibi, summed up the nature and character of Mahr in these words:

“Dower is an essential incident under the Muslim law to the status of marriage; to such an extent that is so that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged on definite principles. Regarded as a consideration for the marriage, it is in theory, payable ‘before consummation: but the law allows its division into two parts one of which is called “prompt" payable before the wife can be called upon to enter the conjugal domicile; the other deferred”, payable on the dissolution of the contract by the death of .either of the parties or by divorce."

1. COMPETENCY TO  MAKE A CONTRACT FOR DOWER

The parties who are of sound mind and have attained puberty, may enter into a contract of dower themselves or through

(i)       Agents.

(ii)      The guardian or his agent also may make a contract of dower on behalf of a minor or of unsound person.

1. SUBJECT OF DOWER (MAHR):

Dower can be either monetary (i.e. a sum of money) or non-monetary that is any kind of property subject to the following conditions,

1. The thing contemplated must have value
2. In Hanafi law a personal service to be rendered by husband cannot be a dower.
3. In Ithna Ashari and Ismailia Laws husband’s personal services may form the dower.
4. Where dower is non-monetary the thing to be given should be reasonably certain; and
5. A mere promise to do or to abstain from doing something (which cannot be enforced by the courts) cannot form dower.

1. LEGAL SIGNIFICANCE OF DOWER IN MUSLIM LAW:

The following are the legal significance of Dower in Muslim Law:- 

1.    The reason of its significance lies in the protection that it imparts to the wife against the arbitrary exercise   of the power of divorce by the husband.

2.    Dower is a right of the wife is fundamental feature of marriage contract and has a pivotal place in the domestic relation affecting the mutual rights.

3.    According to Muslim Law on the dissolution of marriage the wife can claim her dower money. It may be higher or it may be low depends upon on the source of income of the husband.

4.    To impose an obligation on the husband as a mark of respect of the wife.

5.    To provide for her subsistence after the dissolution of her marriage so that she may not become helpless after the death of the husband or termination of marriage by divorce.

1. KINDS OF DOWER:

Dower or Mahr is of two kinds:-

(a)      Specified Dower

(b)      Proper Dower

(A)     SPECIFIED DOWER (Mahr-i-Mussamma):

(i)      Meaning and Nature of Specified Dower:

Specified dower is also known as Mahr-i-Musamma or Mahr-i- Tafweez. When the amount of dower is fixed by a contract between the parties to the marriage, it is called Specified Dower. Such amount may also be fixed by the father if the son is minor or insane. According to the Sunni Law, the dower fixed by the father is binding on the son, and the father is not personally, liable to pay it, but according to the Shia Law, if the son has no means to pay the specified dower, the father is liable to pay it.

(ii)     Time for Fixation:

Specified dower may be, fixed either before marriage or at the time of marriage or even after marriage. If at the time of marriage fixation of dower has been left the discretion of the husband, then he may fix any amount. But the specified dower would not be less than the proper dower. And if it is left to the discretion of the wife, the specified dower would not be more than the proper dower. In certain cases if the dower is left to be fixed by any other person, the wife would be entitled to her proper dower unless the parties agree.

But under Shia Law, if at the time of marriage fixation of Dower has been left to discretion of the husband, then he may fix any amount but if it is left to the discretion of the wife, she cannot fix it at more than 500 Dirhams.

(iii) Amount of Dower:

Except the Hanafis and the Malikis, no minimum or maximum amount of specified Dower is fixed. The Hanafis fix the minimum amount at ten Dirhams and the Malikis at three Dirhams. Because no maximum amount of dower is prescribed, then a husband can fix any amount, even though it is beyond his means or ability to pay or earn. With a view to preventing the husband from divorcing his wife, the amount of Dower is generally fixed very high. When the question of enforcing the payment of the amount of dower arises, the Court (though has a reasonable amount) awards the entire amount prescribed in the contract and the husband cannot plead in equity and say by way of his defence, that the amount is too excessive and beyond his means. Amount of dower also depends on considerations of financial circumstances of husband and wife, position of woman’s family, her intellectual attainments or personal attractions and qualification.