Author is Senior lecturer at KCEF Law College Pulwama
Lessons From The Law
Introduction
India is a secular country. The term ‘secular’ is interpreted as that there is no religion of the State. It treats all religions equally. The Indian Constitution guarantees that every person has the freedom of conscience and the right to profess, practise, and propagate religion. This leads to the creation of different personal laws with respect to religion. All Muslims are generally governed by Muslim personal law. The Muslim personal law contains different legal provisions regarding marriage, dower, divorce, will, maintenance, etc.
As already stated above, the concept of dower for all Muslims are governed by Muslim personal law. Under Muslim law, dower is known as ‘mahr’. Mahr is a sum of money that the husband has to pay to the wife on marrying her. Through this article, we will be understanding the concept of mahr under Muslim law.
Origin of Mahr
In the old pre-Islamic Arabia, the institution of marriage was way different than today it is. At that time, different forms of sexual relationships were prevalent between men and women. The women were usually the victims of abuse. Men used to leave their wives after despoiling them. There was no such proper system of law regarding marriage, thereby men used to refuse to give any monetary help to the wife after leaving them. Shighar form of marriage was observed during those times. In this form of marriage, a man would give his daughter or sister in marriage to another in consideration of the latter giving his daughter or sister in marriage to the former. In this form of marriage, the wives would not get any dower.Another form of marriage was Beena marriage. In this form of marriage, the husband visited the wife but did not bring her home, the wife was called Sadiqa and a gift was given to the wife on marriage known as Sadaq. It is believed that in Islam Sadaq was the very first form of dower.In the Baal marriage, the concept of mahr was introduced. Mahrwas a kind of gift or compensation which was given to the parents of the wife in the Baal form of marriage. The mahr usually belonged to the wife’s parents or guardians. However, over time, the ancient form of marriage was slowly abolished. Promulgation of Islam gave a new form of nikah to marriage. This form of marriage stated that if a man separates himself from his wife, then he should send her away with generosity, and also so the man cannot take back the goods which were once given to the wife. This custom of marriages in Islam originated the concept of the husband giving payment to the wife on marriage as a means of support in her old age. In Islamic law, Mahr solely belongs to the wife.
Meaning of mahr
In the literal sense, the Arabic term ‘mahr’ means dower. It is a sum of money that becomes payable by the husband to the wife on marriage. The mahr is executed either by agreement between the parties or by operation of law. Various jurists have tried to define mahr.According to Wilson, mahr or dower was a form of consideration for the surrender of a person by the wife.According to Mulla, a dower is either a sum of money or property which the wife is entitled to receive in the consideration of marriage from the husband.According to Ameer Ali, a dower is a kind of consideration that belongs to the wife.In the case of Abdul Kadir v. Salima,(1886), honourable Justice Mahmood held that dower under Muslim law is a sum of money or property which is promised by the husband to be paid or delivered to the wife in consideration of marriage and even if the dower is not expressly mentioned at the time of marriage, the wife still has the right of dower.Difference between consideration in contract and consideration in Muslim Law. From the above definitions, we have observed the term ‘consideration’. The ambiguity which arises is whether the term ‘consideration’ is similar to that in contract or is different from it. From various cases, and observations in real life, it has been affirmed that the term ‘consideration’ is different from that used in the contract. Without consideration, a contract is generally void but if the dower or the consideration is not mentioned during the time of marriage, the marriage does not become void. However, the law requires dower to be paid to the wife on marriage. Under Islamic law, regarding mahr, consideration means an obligation imposed upon the husband by the law as a mark of respect for the wife.The conflict between the terms ‘mahr’ and ‘dowry’. The literal meaning of the term ‘mahr’ is dower, however, the two terms have some distinct differences. In Muslim law, the concept of mahr is to ensure women’s financial security. However, dowry is a social evil. Dowry is generally asked by the kin of the bridegroom from the bride’s family as a gift to the marriage. Under Indian law, dowry has been defined in Section 2 of the Dowry Prohibition Act, 1961. It is thus to be noted that mahr and dowry are two different concepts. One ensures security and the other is a social evil.
Classification of dower
The dower may be classified into:
- Specified dower: In this kind of dower, the amount of dower is stated in the marriage contract. The dower may be settled between the parties either before the marriage or at the time of marriage or after the marriage. If the marriage takes place of a minor or lunatic boy then the amount of dower can be fixed by the guardian. The husband can settle any amount of dower. However, he cannot settle the amount of dower less than ten Dirhams according to Hanafi law and three Dirhams according to Maliki law. Shia law does not state any minimum amount of dower. In the case of those husbands who are very poor and are not in a position to pay ten Dirhams, then according to the Prophet, they are directed to teach the Quran to the wife instead of the dower. There is no maximum limit on the amount of dower. The specified dower can be classified into:
- Prompt dower: It is payable immediately after marriage on demand.
- Deferred dower: It is paid after the dissolution of marriage either by death or divorce.
- Proper or customary dower: If a marriage is completed without the amount of dower fixed in the marriage contract or marriage is completed on the condition that the wife should not claim any dower, then the wife is entitled to proper dower. The amount of proper dower is decided by taking into consideration the amount of dower settled upon other female members of the father’s family. The proper dower is regulated with reference to the following factors:
- Personal qualifications of the wife. Like her age, beauty, virtue, fortune, etc.
- Social position of her father’s family.
- Dower given to her female paternal relations.
- Economic conditions of husband.
- Circumstances of time.
Under Sunni law, there is no maximum limit for a proper dower but under Shia law, the proper dower should not exceed 500 Dirhams.What to do if the amount of dower is intentionally given low and the wife cannot maintain herself. At times, it has been observed that few husbands intentionally give a low amount of dower, even when their economic condition is well. The amount of the dower is observed to be so low that the woman becomes unable to maintain herself. This problem was eventually making the object of dower futile. To overcome this problem, legislation was made so that a reasonable dower is given. Therefore, the legislature was given full power to maintain the amount of dower providing that the court will not be bound to award the amount of dower according to the marriage deed.
Rights of wife when dower is not paid to her
Every woman under Muslim law has the right to claim a dower on the commission of marriage. Like any other law, if such a right is violated, then the woman has some remedies. Muslim law confers upon a wife or a widow to some rights to compel to get the payment of dower
