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Q. Mahr is an integral part of Muslim Marriage: Discuss.

 Unique feature of muslim marriage


 Requirement of dower is one of the most significant reforms effected by the Quran. It enjoins
“give women their dower” whereas in pre-Islamic period a bride price was paid to the father of
the bride.
 Kor: in Islamic law Mahr belongs absolutely to the wife
 Historically speaking, the idea of sale price is latent in the law of mahr. Analogous to sale price in
pre-islamic era, when it was payed to the bride’s father.
Fyzee (1974) outlines financial and social benefits it brings the wife: Since the inception of islam,
it can hardly be regarded as the price for conjugal intercourse since islam sought to make it into
a real settlement by making it payable directly to the wife,
a provision for a rainy day, and socially, as a fetter to the otherwise seemingly uncontrolled right
of divorce (as he would have to think about it and pay upon divorce)
Any comparison to the price of sale in Islamic law books now is simply because marriage is
regarded as a civil contract in this system.

 Nasir 1990: defined dower as: “a sum of money or other property which becomes payable by
the husband to the wife as an effect of marriage”.
 Immediately, the debate is sparked that dower is something akin to consideration or bride price.
This controversy arises, and its roots can be seen in judicial decisions and writings of academics.
In Abdul Kadir v Salima, Justice Mahmood in defining dower, used the word ‘consideration’. Abu
Zahra uses the words: ‘bride price’ At the outset, Pearl and Menski seek to correct this: mahr is
not a for contracting the marriage. Dower is an affect/incident of marriage rather than
consideration for it.
Further, Doi 1984 & Hamilton’s Hedaya – it is a sum paid to the wife as a mark of respect for her.
Designed to protect her, as security.

Nature of Dower:

 Kapore Chand v Kadar Unnisa: is a claim arising out of contract so has preference to bequests
and inheritance, but doesn’t have priority over other contractual debts
 Hamira Bibi v Zubaida: Lord Parker of Waddington: dower.. essential incident of muslim
marriage. In theory – payable before consummation.
dower ranks as a debt – wife is entitled on his death to have it filled out of his estate just like
other unsecured creditors. She has right to possession of whole or part of his estate until the
dower is satisfied.
 Tayabji : husband may at anytime after marriage, increase the dower.
 Qasim Hussain v Bibi Kaniz: woman has at any time, the right to remit the dower (hibat al mahr),
who has attained puberty but still not reached age of majority.
 Manan 1990: Pk – remission must have been made with free consent. If coercion proves,
remission will be void.
 But held in Shahbano v Iftekhar Muhammed in certain cases the remission of dower wont be
binding as it would be against equity and justice. In this particular case the woman signed a
document foregoing her right to mahr to prevent husband taking a lover.
Classification of Dower

 Unspecified dower (mahr al mithal) – Q before the court is the amount payable
Specified dower: - Q before the court is the time they payment is to be made
Prompt dower (mu’ajjal)
Deffered Dower (ghair mu’ajjal)

Specified Dower:

 Mahr fixed at the time of marriage – or can be fixed later


 Mulla: suggests that a father’s contract on behalf of a minor son is binding on the minor. Can
judge the importance Islam places on this right of muslim wives, since in other circumstances a
civil contract would not be binding on a minor.
Hanafi law – father is not personally liable for dower
Shia law – Sabir Hussain v Farzand Hassan – on death of shite father who made himself surety
for mahr payment of his minor son, the amount was taken out of his estate. His heirs were not
however personally liable, only in that which they received from his estate.
 Where amount is specified, husband will be compelled to pay by court, however extraneous it
may seem, according to his means.

Unspecified Dower: (mahr al mithal)

 Syed Sabir Hussain’s Case – Privy Council: Obligation to pay dower= legal responsibility on part
of the husband. Not dependent on any contract between parties.
 Called customary dower by Ameer Ali
 ‘Mahr is an essential incident of muslim law to the status of marriage, to such an extent that it is
so that when unspecified at the time the marriage is contracted, the law declares that it must be
adjudged on definite principles.’ Fitzgerald

At what time is the Dower payable:

 Fixed dower – usual to split it into two parts, one prompt and one deffered, to be payed on
death, dissolution of marriage, or some other specified event. The greater part of it is usually
deferred: shows importance in Islam of this being a security for the woman, a token of respect
as opposed to bride price.
 Difficulty arises when it isn’t settled whether dower is prompt or deffered.
Ithna Ashari – presumption that whole of the dower is prompt
Hanafi – Per Mahmood J in Abdul Kadir v Salima and Gulab Khatun – the whole of the dower
may be promptly awarded.
 In Pakistan and Bangladesh: presumption is that dower is prompt. s. 10 MFLO 1961: when no
details of mode off payment are made, the entire amount shall be presumed payable on
demand.

Amount of Dower:

 Mahmood (1982): minimum value of dower = controversial issue


 Diwan and Diwan 1991: no hard and fast rule
 Principles for determining dower: fixed according to circumstances of the wife. Husband’s
means and position are generally of little account. Hedaya: “age, beauty, fortune, understanding
and virtue’ must be taken into consideration. Court will consider the dowers fixed upon her
female paternal relations, such as sisters or paternal aunts who are considered her equals.
Islamic marriage therefore, safeguards the rights of a wife and attempts to ensure her an
economic status consonant with her own social standing.
 Prophet (pbuh) allowed marriage of an indigent person for mahr of a silver ring, teaching of
Quran was also above.
 If fixed, cannot be less than minimum set by law.
 Hanafi – 10 dirhams
Maliki – 3 dirhams
Shafi - no minimum
Shia – mehr-e-sunnat (500 dirhams, traditionally supported dower)
mahr-e-mithal (dower of the like or equal)
mahr – e- musamma (the specified dower)
 Dirham: 2.97g of silver, currently equal to
Rs. 3 – 4 (Asma Bibi v Abdul Samad) 1 pound = 85 indian rs. This minimum = V. inadequate!
 Ameer Ali notes: mistake to lay too great a stress on monetary value of the minimum dower. In
the case of an extremely poor man, the Holy Prophet (pbuh)requested that teaching the Quran
to his wife was enough dower.
 Ithna Ashari’s in some Indian societies= an honor not to stipulate above that stipulated by the
Prophet (pbuh) for his daughter Fatima – 500 dirhams
 Ameer Ali – notes amount between 4 and 40,000 rupees.
 Maximum limits on dower: no maximum limits laid down. South Asian, middle eastern and now
trends in Britian show very large amounts of mahr set, for reason of social prestige and
extravagance. On the contrary, large sum could be seen as insurance for wife against unfettered
and unilateral rights of divorce by husband.
 Unfortunate result of lack of minimum dower: large sums in public eye being set, while privately
a smaller sum is agreed. Problem is in enforcement, in which case the court may upon proof
uphold the privately agreed smaller sum. Pakistani Commission on Marriage and Family Laws
1995: recommendation that husband should pay the fixed Mahr, no matter how high it was set
in the actual nikkahnama, was criticized by the Daud Khan J in Nasir Ahmad Khan v Asmat Jehan
Begum, which reitherated the position that if proved, private agreement should be enforced.

Enforcement of Dower

 Anwarul Hassan Siddiqui v Family Judge: in case the dower is deferred its enforcement is held in
abeyance till a certain event, i.e. dissolution of marriage by death or divorce, occurs.
 Even if no dower is stipulated in the contract or even if the contract expressly states no dower
shall be payable to the wife, she is nevertheless entitled to dower. (dower of the equal)
 If divorced before consummation, she is entitled to half the dower, and if no dower has been
fixed then she is entitled to the ‘gift of consolation’, mutat-al-talaq.
 Hinchcliffe: general view =
 Shahnaz v Rizwan: dower ranks as an unsecured but actionable debt, both from husband and his
estate respectively.
 If she predeceased the husband, the heirs of the wife, including the husband are entitled to
mahr. (Tayabji) again shows importance and element of respect rather than bride price.
 Mohammad Sadiq v Fakhr Jahan: husband payed money throughout to wide total of which
exceeded the amount of stipulated dower, 50K, but there was no intention that these payments
were to satisfy dower debt. Held by judicial committee= payments did not satisfy dower.

 1. Refusal of conjugal rights


2. Debt from estate
3. Widow’s right of retention

 Wife is entitled to refusal of conjugal rights until prompt dower is paid.


If minor – guardian has right to refuse her to be sent to his house,
or wife may herself refuse, provided no consummation has taken place.
Nur – ud- din Ahmad v Masuda Khanam: if in such circumstances she is living away from
husband he is bound to maintain her.
 Tayabji: right to refusal is lost on consummation. ,(Rabia Khatun v Mukhtar Ahmad) Fyzee
submits this to be the correct view
but, Rahim Jan v Muhammad says: consummation doesn’t deprive the wife of her right to refuse
conjugal relations if the prompt dower isn’t paid.
 Professor Manan (1990): Pk: proper decree to pass is one for restitution conditional on payment
of dower
 SA: Mahmood J in Abdul Kadir v Salima (1886): muslim wife has no right to refuse herself if
marriage has been consummated with her consent. View based on discipled of Abu Hanifa
rather than Abu Hanifa himself.
 Anis Begum v Muhammad Istafa Wali Khan: if husband files for restitution of conjugal rights
before cohabitation, non-payment of prompt dower is a complete defence. But followed Salima
case in that once marriage had been consummated, wife had lost right to deny her company to
her husband, as otherwise this would ‘dislocate domestic life’ by giving wives freedom for
refusal to live while acquiring maintenance allowance
 Rabia Khatoon v Mohd Mukhtar Ahmad: India: confirmed decision of lower court to grant
degree for restitution of conjugal rights, on the condition of payment of prompt dower. Court
acknowledged that “under Hanafi law the right to refuse her husband even after consummation
is granted if dower remains unpaid” but that it would presently be dangerous to upturn the law
having regard to prevalent practice and modern life conditions.
 Rahim Jan v Muhammad: PKHC: to decide, whether in Hanafi law, wife is to refuse
consummation after dower has been paid to her. Kaikus J recognized that the comments in
Abdul Kadir v Salima were obiter, dissented from Anis Begam, and adopted the view of Abu
Hanifa rather than that of his disciples. Husband being in default is not entitled to the exercise
of conjugal rights and failure of wife to live with him cannot be a wrong. In that particular case
however, fatal to her case = wife had never demanded for her dower.
 Noor-ud-din Ahmad v Masuda Khanam: Rahman J held: wife under Muhammadan Law is
entitled to refuse herself to husband until dower is paid to her.
 Muhammadi v Jamil-ud-din: held, relying on Masuda Khanum, that husband’s failure to pay
prompt dower entitled the wife to stay away from him without penalty.
after cohabitation, court should pass a decree for restitution conditional on payment of dower.
 Further cases in PK support view that wife is entitled to refusal of consummation:
 Muhammad Ishaque v Rukhsana Begum: even after consummation, wife may refuse to live with
husband unless he pays prompt dower.
 Chanani Begum v Muhammad Shafiq: wife cannot claim maintenance unless she stays away
from husband but it is equally true that wife can live separate from him until prompt dower is
paid.
 Bangladeshi law:Hosne Ara Begum v Rezaul Karim: rich persons case. Court said that contrary to
the archaic concept of absolute dominion of husband over wife and children, under muslim law
a wife had the right to deny herself to the husband if he was cruel to her, or if, on demand, her
prompt dower was not paid.
 Mansoor (1994):Study on the district of Dhaka: 88% of muslim wives didn’t actually receive
prompt dower, in rural areas it must be worse.
 Balchin 1994: various amounts paid by husband to wife during marriage should not be
presumed to be in lieu of dower.

 Tayabji: non payment of deferred dower by its very nature cant confer any right of refusal to
wife; is actionable only on death, divorce or happening of a specified event.
 Kapore Chand v Kadar Un Nissa: right of mahr is like that of an unsecured creditor: (i) Has no
priority over other creditors. (ii) mahr as a debt has a priority over other heirs claims but heirs of
deceased not personally liable to pay dower.

 Hinchcliffe highlights: widows have a special right to enforce their demand for dower: called the
widows right to retention. Mirvahedalli v Rashidbeg: Widow lawfully in possession of husband’s
estate is entitled to retain it until her dower debt is satisfied. Ameer Ali: right in essence is a
personal right as against heirs and creditors. It is a right to retain, not obtain.

 Sir Montagu Smith: Mussumat Hebee Bachan v Shaikh Hamid Hossein: defined right to
possession: power of a widow as a creditor for her dower to hold the prioerty of her husband …
until her debt is satisfied.
 Maina Bibi v Chaudhri Vakil Ahmad – Privy Council: widow entered into possession and pleaded
that she was entitled to possession until house was paid.
1. Trial judge made a decree for possession in favour of claimants (deceased heirs) on condition
that dower debt be payed. This wasn’t paid so she was entitled to possession.
2. Later, when she tried to gift the whole of the property to certain persons, Privy Council held
that she couldn’t do that and couldn’t convey the share of the heirs away. Alienation of property
was ultra vires because she had not acquired an absolute right in property. Held that right of
retention is only till debt is payed. Widow has no estate or interest in the property as a
mortgagee has under an ordinary mortgage.
 Abdul Samad v Alimuddin: personal right under Mohammaden law to safeguard the position of
the widow. Further, held in Kapore Chand v Kadar Unnisa: not entitled to priority as against his
unsecured creditors.
 Fyzee submits: consent, express or implied, of the husband for this right of retention is
immaterial, so not necessary. Islamic law casts a special obligation on every debtor to pay his
debt.
 Maina Bibi v Chaudhri Vakil Ahmad: doubt expressed whether widow could transfer the debt or
right to maintain the estate until mahr is paid. Zobair Ahmad v Jainandan Prasad: held that the
widows personal right is not transferrable and Kapore Chand’s case (majority verdict) followed
it. Whereas, in Zabinnusa v Nazim Hassan and Hussain v Rahim Khan held that this right is both
heritable and transferable.
 Ghouse Yar Khan v Fatima Begum: right is both heritable and alienable.
 Kapore Chanad v Kadur un Nisa Begum: widow is not entitled to priority against her husbands
unsecured creditors. Indian SC.
 Diwan and Diwan 1991: widows interest should be of paramount consideration
 Roshan Ara v Badri Kamala: husbands may give their wives property in lieu of dower
 Sardar Begum v Iqbal Ahmad: on payment of dower debt, her right will be extinguished.

Can husband avoid paying dower and nevertheless enter into a binding marriage contract? Abu Zahra –
brideprice not a condition which affects the validity of the contract nor is it an essential requisite. If it
isn’t mentioned in contract, contract is still valid. Balchin (1994), for PK: muslim marriage valid even if no
dower is mentioned