CHANAKYA NATIONAL LAW UNIVERSITY

FINAL DRAFT OF FAMILY LAW-I

ON

DOWER

Submitted to: Submitted by:

MS. POOJA SRIVASTAVA SUMAN KUMARI

(Faculty of Family Law-I) Roll no.- 1857

Semester- 3 rd

DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A., LL.B (Hons.) Project Report entitled

“Dower” submitted at Chanakya National Law University is an authentic record of my work

carried out under the supervision of Ms. Pooja Srivastava. I have not submitted this work

elsewhere for any other degree or diploma. I am fully responsible for the contents of my Project

Report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE: SUMAN KUMARI

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA.

ACKNOWLEDGEMENT

I am very thankful to everyone who has supported me, for I have completed my project effectively and
moreover on time. I am equally grateful to Ms. Pooja Srivastava . She gave me the support and guided
me in different matters regarding this topic. She has been very kind and patient while suggesting me the
outlines of this project and correcting my doubts I thank her for her overall support. I am thankful to my
friends who have helped me find out relevant materials for my project.

Last but not the least, I would like to thank my parents as they have helped me a lot in gathering
different information, collecting data and guiding me. I also thank my friends who were there with their
suggestions and comments for my project.

THANK YOU,

NAME: SUMAN KUMARI

COURSE: B.B.A., LL.B. (Hons.)

ROLL NO: 1857

SEMESTER: 3rd

CONTENTS

INTRODUCTION ….…………………………………………………………pg. 5

* AIMS AND OBJECTIVES

* HYPOTHESIS

* RESEARCH METHODOLOGY

* SOURCES OF DATA

* METHOD OF WRITING

* MODE OF CITATION

* LIMITATION

1. HISTORICAL BACKGROUND OF DOWER ……………………………………………...pg.08

2. DEFINITION OF DOWER………………...……………………………………………….pg.09
3. SUBJECT MATTER OF DOWER…………………………..……………….……………...pg11
4. CLASSIFICATION OF DOWER…………………………………………….………...……pg12
5. CAPACITY TO ENTER INTO CONTRACT OF DOWER…………………………...…....pg16
6. AMOUNTS OF DOWER AND CONDITIONS OF PAYMENT………………………..…..pg17
7. SIGNIFICANCE OF DOWER…………….…………………………..…………………….pg18
8. DIFFERENCE BETWEEN SUNNI AND SHIA LAW REGARDING DOWER…………….pg19

9. RELEVANT CASE LAWS……………….……...………………..…………………..…..…pg20

10.CONCLUSION ………………….……………..……....………….....…..………...…..….pg25

11.BIBLIOGRAPHY………………………………………….……..………….…………….....pg26

INTRODUCTION

The dower rights have existed in many nations in one form or the other including Arabs. However,
the concept of dower rights was refined by God and his prophet Muhammad (PBUH). Islam
makes dower obligatory whether written in the marriage certificate or not.

Under the Muslim Law, Mahr (dower) means money or property which the wife is entitled to
receive from the husband in consideration of the marriage but this consideration is not the same as
that of the civil contract. Dower is an obligation imposed upon the husband as a mark of respect
for the wife. The major object of the dower is to provide wife 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. Dowerr has also been considered as the part of maintenance
while fixing the amount of maintenance under Section 125 of Criminal Procedure Code, 1973. The
Mahr (Dower) belongs to wife and she can deal with it in the manner she likes it and neither her
husband nor husband’s relations nor even her relations can dictate her in matter of using the dower
money or property.

The claim of dower is based upon proof of a legally recognized marriage, as distinguished from a
Good Faith marriage or a De facto marriage—one in which the parties live together as Husband
and Wife but that is invalid for certain reasons, such as defects in form. A voidable marriage, one
that is valid when entered into and which remains valid until either party obtains a lawful court
order dissolving the marital relationship, suffices for this purpose if it is not rendered void—of no
legal force or binding effect—before the right to the dower arises.

AIMS AND OBJECTIVES:

1. The researcher tends to study dower and its nature under Muslim law.

2. The researcher tends to study kinds of dower and its importance.

3. The researcher tends to study and analyze the amount of dower to be paid and the mode of
payment..

HYPOTHESIS:

The researcher tends to presumes that dower is an effective measure in order to impose obligation
on husband in consideration of marriage.

SOURCES OF DATA:

The researcher has relied on both primary and secondary sources to complete the project.
1. Primary Sources: Acts.
2. Secondary Sources: Books, newspapers and websites.

RESEARCH METHODOLOGY:

For the purpose of research, the researcher has used the Doctrinal Method of Research. The
Research is entirely a Library-based Research, where the researcher has made use of books, law
journals, magazines, law reports, legislations, internet websites, etc., for the purpose of research.

METHOD OF WRITING:

The method of writing followed in the course of this research paper is primarily analytical.

MODE OF CITATION:

The researcher has followed the bluebook method of citation throughout the course of this
research paper.

HISTORICAL BACKGROUND OF DOWER

It is said that during pre-historic times man lived a barbaric life, which had the tribal form. For
unknown reasons mrriage was prohibited between a male and a female of the same blood. Hence
the young men of a tribe, who wanted to marry, were compelled to choose their wives from some
other tribe. They often visited other tribes for this purpose. At that time man was not aware of his
role in begetting children. He thought that the children belonged exclusively to their mother.
Though he often found that the children closely resembled him, he did not know the cause of that
resemblance. Naturally the children also thought that they belonged to their mother and not to their
father. At that time ancestry was traced through the mothers. Men were considered to be barren
and sterile. After marriage they stayed with their wife’s tribe as a mere adjunct of it, because the
wife required her husband’s company. This period is known as the period of matriarchy.1

It was not long before man discovered his role in procreation and came to believe that the children
in reality belonged to him. From then onwards, he dominated over woman and assumed the role of
the head of the family. Thus, the so called period of patriarchy2 began.

During this period also a marriage between the people having the same blood was prohibited. Man
had to choose his wife from some other tribe, and bring her to his own tribe. As there was
constant warfare among the tribes, the only way to get a wife was to kidnap a young girl from
some other tribe.

Gradually peace took the place of warfare and the different tribes were able to achieve peaceful
coexistence. During this period the custom of kidnapping the girls was abolished. In order to get
the girl of his choice the man went to her tribe, became a hired worker of her father and worked
for him for some time. In consideration of the services rendered by him the girl’s father gave her
hand to him and he took her to his own tribe.

When money became common, man discovered that instead of serving the bride’s father for years,
it was better to present a suitable gift to him and take the girl immediately. That was the origin of
the dower (mahr).

According to this account, in the early days man lived as an adjunct of woman and served her.
During this period woman ruled over man. In the next stage, when power passed into man’s

1 a system of society or government ruled by a woman or women.

https://en.wikipedia.org/wiki/Matriarchy, last accessed on 2nd september 2018.
2 a system of society or government in which the father or eldest male is head of the family and
descent is reckoned through the male line: https://en.wikipedia.org/wiki/Patriarchy, last accessed
on 2nd september2018.
8


hands, he kidnapped women from some other tribe. During the third stage, in order to win a
woman, man went to woman’s father and served him for years. During the fourth stage man
presented a sum of money to the woman’s father. And that is how the custom of dower
originated.

It is said that since the time man abolished the system of matriarchy and laid the foundation of
patriarchy, he gave woman the status of a slave, or at the most, of an employee or a servant of his.
He looked upon her as an economic tool, which, by the way, could satisfy his lust also. He did not
give her social or economic independence. The fruits of woman’s labour belonged either to her
father or to her husband. She did not have the right to choose her husband, nor could she carry
out any economic activity for her own sake. The money which man paid as dower and the
expenses which he bore as maintenance (nafaqah) were in consideration of the economic gains
which he derived from her during the period of conjugal relations.3

DEFINITION OF DOWER
Mahr or dower is a sum of money or offer property which the wife is entitled to receive from the
husband in consideration of the marriage.

Mahr or dower is a sum that becomes payable by the husband to the wife on marriage either by
agreement between the parties or by operation of Law. It may either be prompt or deferred.

According to Wolson, “Dower” is a consideration for the surrender of person by the wife. It is
the technical Anglo- Mohammedan term for its equivalent “Mahr” in Arabic.

According to Ameer Ali, “Dower” is a consideration which belongs absolutely to the wife.

According to Dr. Jung defines , “Dower” as the property or its equivalent, incumbent on the
husband either by reason of being agreed in the contract of marriage or by virtue of a separated
contract, as special consideration of Buza, the right of enjoyment itself.

According to Baillie, “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
endanger or consideration given by the man to the women for entering into the contract; but an

3 of marriage or the relation between husband and wife: http://www.yourdictionary.com/conjugal,

last accessed on 2nd september 2018.
9


effect to the contract imposed by the law on the husband as a token of respect for its subject, the
women. In order to constitute a valid marriage, the Mohammedan law requires that there should
always be a consideration moving from the husband in favuors of the wife, for her sole and
exclusive use and benefit. This consideration is called mahr or sadak in legal treatises and in
common parlance dain mahr.4

The principle of ante nuptial settlements is not peculiar to the Mohammedan law. Sautayra thinks
that the custom originated in ancient times with the payments which the husbands often made to
their wives as a means of support and as a protection against the arbitrary exercise of the power of
divorce.

The above opinions are based on the argument that marriage is a civil contract and dower is a
consideration for the contract. But it is submitted that the above opinions are erroneous, because
even in those cases where no is specified at the time of marriage, marriage is not void on that
recount, but the law requires that some dower should be paid to the wit. Abdur Rahim correctly
observes, “It is not a consideration preceding from the husband for the contract of marriage, but it
is an obligation imposed by the law on the husband as mark of respect for the wife as is evident
from the fact that the non- specification of dower at the time of marriage does not affect the
validity of marriage.

4mahr refers to the payment from the husband or his family to the wife, especially to support her
in the event of his death: https://en.wikipedia.org/wiki/Mahr, last accessed on 2nd september 2018.

10


SUBJECT MATTER OF DOWRY

The subject matter of dower is not only confined to a sum of money or property; it includes
personal services and other things. According to a tradition, Amir- bin- Rabia said, “that a woman
of the tribe of Bani Fazarah married on a settlement of a pair of shoes, and the prophet said to her
‘Are you pleased to give yourself and your property for these two shoes: she said, ‘Yes’. Then the
prophet approved of the marriage.’’ The followings were recognized as the subject of dower5:

1. Teaching Quran;
2. Teaching Islamic rules and regulation, if the wife is non Muslim;
3. A pair of shoes;
4. A handful of dates;
5. The duty of the husband is to serve his wife, if he is a slave;
6. Husband’s services rendered to the guardian of a minor wife;
7. Slavery to the wife by the husband; etc.

In fact, the main contention of the Muslim Jurists is that anything which comes within the
definition of meal can be the subject matter of dower. Thus, apart from the personal services of
the husband, any profits arising from land or business, debts due to the husband, insurance
policies, chooses-in-action, the sale proceeds of something, may constitute valid dower.
If the subject matter of dower be “an animal” or “cloth”, then the wife is entitled to mahr-ul-misl,
proper dower because such dowers6 are invalid for uncertainty. Similarly, “a have” or “the land”
without specifying the exact location and description are not fit subjects of dower, and the court
will have to fix proper dowers in such cases.

5 https://legalblogge.blogspot.com/2016/07/what-are-subject-matter-of-dower.html, last accessed

on 2nd september 2018.
6 a widow's share for life of her husband's estate: https://en.wikipedia.org/wiki/Dower,
last accessed on 2nd september 2018

11


CLASSIFICATION OF DOWER

Many of the Muslim jurists have divided dower into two on the basis of fixation or specification of
dower at the time of marriage or after the marriage. So, under Muslim law there are two types of
Dower. Those are described as follows-

1. Specified dower (Mehr-e-Musamma or Mehr-e-Tafweez )

2. Unspecified dower (Mahr-I-Misl or Mahr-Ul-Misl)
(1) SPECIFIED DOWER-

Specified dower is one that’s amount of money or property is fixed by parties, by their own wills,
at the time of marriage or afterwards, is called the specified dower.7 This dower creates an
obligation on the husband to give that amount of money or property to the wife. If the Husband is
a minor, it is settled by the Guardian. Mahr fixed by the father on behalf of his minor son is binding
on the minor son on his majority. However, under Hanafi Law, the father is not personally liable for
the Mahr but in Ithna Ashari Law, father is also held liable. The Specified dower must not be less
than 10 dirhams(the basic monetary unit of Morocco and the United Arab Emirates). There are
provisions relating to dower under sections 13, 14, 15, 16 and 20 of the kabinnama [Form-E]
according to the Muslim Marriages and Divorces Rule 1975.8 When a husband agrees to pay to his
wife a residential building or one lakh taka as mahr, it is an example of specified mahr.

The specified dower has been further divided into-

(a) Prompt dower (Mehr-e-Muajjal)

(b) Deferred dower (Mehr-e-Mawajjal)

7dower which is usually fixed at the time of marriage but it is also fixed after the marriage:
https://www.legalbites.in/dower-mahr-muslim-law/,last accessed on 2nd september 2018
8An Act to consolidate and amend the law relating to Registration of Muslim marriages and
divorces: http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=476, last accessed on 3rd
september 2018.

12


(a) PROMPT DOWER (Mehr-e-Muajjal)-

It is payable immediately after marriage on demand. According to Ameer Ali, a wife can refuse to
enter into conjugal domicile of husband until the payment of the prompt dower. The following
point must be noted regarding prompt dower:

➔ Prompt dower is payable immediately on the marriage taking place and it

must be paid on demand unless delay is stipulated for or agreed.
➔ It can be released any time before or after the marriage.
➔ The wife may refuse herself to cohabit with her husband, until the prompt
dower9 is paid.
➔ If the wife is minor, her guardian may refuse to allow her to be sent to the
husband’s house till the payment of prompt dower. In such circumstances,
the husband is bound to maintain the wife, although she is residing apart
from him.

It was held in Rehana Khatun v. Iqtider Uddin, that the prompt portion of the dower may be
realized by the wife at any time before or after consummation.10 In the case of Mahadev Lal v.
Bibi Manira, it was decided that prompt dower does not become deferred after consummation of
marriage, and a wife has absolute right to sue for recovery of prompt dower even after
consummation. Dower which is not paid at once may, for that reason, be described as deferred
dower, but if it is postponed until demanded by the wife it is in law prompt dower.

It is only on the payment of the prompt dower that the husband becomes entitled to enforce the
conjugal rights unless the marriage is already consummated. The right of restitution arises only
after the dower has been paid.

9 dower payable immediately after marriage on demand:

http://www.assignmentpoint.com/arts/law/report-on-the-concept-and-importance-of-dower.html,
last accessed on 3rd september 2018.
10the action of making a marriage or relationship complete by having sexual intercourse:
https://en.wikipedia.org/wiki/Consummation, last accessed on 3rd september 2018
13


As the prompt dower is payable on demand, limitation begins to run on demand and refusal. The
period of limitation for this purpose is three years. If during the continuance of marriage, the wife
does not make any demand, the limitation begins to run only from the date of the dissolution of
marriage by death or divorce.

Although prompt dower, according to Muslim law, is payable immediately on demand, yet, in a
large majority of cases it is rarely demanded and is rarely paid, in practice a Muslim husband
generally gives little thought to the question of paying dower to his wife save when there is
domestic disagreement, or when the wife presses for payment upon the husband’s embarking
upon a course of extravagance and indebtedness without making any provision for the lapse of
time since marriage raises no presumption in favour of the payment of dower.

(b) DEFFERED DOWER (Mehr-e-Mawajjal) -

It is payable on dissolution of marriage either by death or divorce. According to Ameer Ali

generally in India dower is a penal sum with the object to compel husband to fulfill marriage
contract in its entirety. The following points must be noted regarding deferred dower:

➔ Deferred dower is payable on dissolution of marriage by death or divorce.

But if there is any agreement as to the payment of deferred dower earlier
then such an agreement would be valid and binding.
➔ The wife is not entitled to demand payment of deferred dower, but the
husband can treat it as prompt and pay or transfer the property in lieu of it
such a transfer will not be void as a fraudulent preference unless actual
insolvency is involved.
➔ The widow may relinquish her dower at the time of her husband’s funereal
by the recital of a formula. Such a relinquishment must be a voluntary act
of the widow.

14


The interest of the wife in the deferred dower is a vested one and not a contingent one. It is not
liable to be displaced by the hampering of any event, not even on her death; as such her heirs can
claim the money if she dies.

If the kabinnama, the marriage contract deed, fixes the amount of dower but fails to show what
portion of it will be prompt and what deferred dower,11 according to Allahabad and Bombay High
courts the proportion between the two should be fixed on the basis of-

(i) position of the wife

(ii) custom of locality

(ii) total amount of dower

(iv) status of the husband.

Shia law- Under Ithna Ashari shia law if the kabinnama fixes the total amount of dower but does
not specify as to what portion of it will be prompt and what deferred, the whole of the dower is
regarded as prompt.12
Sunni law- According to Sunni law, in the absence of any family usage and statement in
kabinnama, half of the total amount is regarded as prompt and half as deferred.

In the Madras presidency, unless otherwise stipulated the entire dower is prompt no matter the
parties are Shia or Sunni.

11dower payable on dissolution of marriage either by death or divorce:

http://www.assignmentpoint.com/arts/law/report-on-the-concept-and-importance-of-dower.html,
last accessed on 3rd september 2018
12dower payable immediately after marriage on demand:
http://www.assignmentpoint.com/arts/law/report-on-the-concept-and-importance-of-dower.html,
last accessed on 3rd september 2018.

15


(2) UNSPECIFIED DOWER-

If the sum of dower has not fixed or settled by the parties at the time of marriage or after the
marriage, it is called unspecified dower. This is not specified by the parties at the time of marriage
but such dower is fixed by the social positions and personal status of the wife. Unspecified dower
is fixed during the time of dissolution of marriage and basically settled by the court of law. There is
no limit to the maximum amount of proper dower under the Sunni law, but under the Shia law the
proper dower should not exceed 500 Dirham. 500 Dirham was the amount of dower which was
fixed in the marriage of Fatima, the prophet’s daughter. In the Shia Muslims it is, therefore,
considered a point of honour not to stipulate for a sum higher than the sum of dower fixed by the
prophet for his daughter, Fatima.

CAPACITY TO ENTER INTO CONTRACT OF DOWER

The amount of dower may be fixed either before or after marriage and can be increased after
marriage. It was held in Basir Ali v. Hafiz that the amount of dower may be entered into by the
father of the bride.

The father of a minor son may make a contract on dower on his behalf and it would be binding on
the son even if it was made after his marriage during the minority of the son. The father, if he acts
as guardian for the marriage of his infant son, he is not personally liable unless he expressly
becomes a surety for the dower stipulated. Otherwise the father only acts on behalf of the minor
son and binds the latter and not himself personally. When a father enters into a contract of dower
on behalf of his son, he makes himself a surety for due payment of dower in case his minor son
has no means of paying it.13

13 http://www.assignmentpoint.com/arts/law/report-on--concept-and-importance-of-dower.html’
last accessed on 3rd september 2018.
16


AMOUNTS OF DOWER AND CONDITIONS OF PAYMENT

This may be divided into two-
1. If the marriage is consummated, and is dissolved by death
(a) Whole of the specified dower in case of regular marriage.
(b) Proper dower if unspecified in case of regular marriage.
(c) Specified or proper dower, whichever is less, in the case of irregular marriage.
2. If the marriage is not consummated, and is dissolved by the act of party:
When divorced by the husband-
(a) Half of the specified dower, in case of regular marriage: in case of regular marriage.
(b) A present of three articles if unspecified: in case of regular marriage.
When divorced by the wife- No dower

Maximum and minimum amounts of dower

The amount of dower or mahr varies in different countries; there is no fixed rule as to the
maximum.The Prophet did not enunciate any fixed rule as to the amount of dower. He
expressly left it to custom and local usages but as he appears to have settled 500 dirham
upon Maimuna, the Shias consider that amount to be the mahr-i-sunnat. The
Radd-ul-Muhtar says the dower of “our lady” Fatima was 400 dirham). It depends on the
social position of the parties and the conditions of society in which they live. The
Radd-ul-Muhtar lays this down with considerable distinctness. “Whatever amount
exceeding the minimum the man agrees to pay he will be liable therefore”.
The Shiah Shara’ya says: “there is no limit either to the maximum or the minimum of
dower,” it being a matter of contract between husband and wife; So long as the article
given or assigned by way of dower14 possesses any definite value, the assignment is
considered valid. There is no distinction so far as this principle is concerned between the
Shias and the Sunnis. Both schools, however, regard excessive dower as improper though
not absolutely illegal; but, as will be seen, this recommendation is totally disregarded by the

14a widow's share for life of her husband's estate: https://en.wikipedia.org/wiki/Dower,

last accessed on 3rd september 2018
17


Indian Musulmans, for reasons which have been explained in the Introduction.
The early Hanafi lawyers fixed ten dirham, as the minimum for dower. The Malikis
inhabiting a poorer and less populous country than that in which the early Hanafi lawyers
flourished, considered even a smaller sum as permissible.
These minimums have become obsolete and it is now customary in different countries to
fix the amount of dower entirely by a consideration of the circumstances of the husband
and wife.
Among Sunnis there is no maximum; any amount may be fixed. Some of the sects of
Shias, however, there is a tendency “not to stipulate for a sum higher then the minimum
fixed by the Prophet for his favorite daughter Fatima, the wife of Ali, namely 500 dirham.’’

SIGNIFICANCE OF DOWER
According to our belief, the dower has come into being as the result of skilful
arrangements, put into the very design of creation, to balance the relations between man
and woman. The dower has come into being, because, by nature, the respective roles of
man and woman are different from each other.
The law of creation has ordained that woman should have the qualities of beauty, pride and
indifference, whereas man should have those of courting and pursuit. That is how the
physical weakness of woman, as compared to man, has been counterbalanced, and for this
very reason it has always been man who has sought women hand and proposed to her.
According to the sociologists, during the periods of both matriarchy and patriarchy, it has
been man who has sought after woman.
The dower is closely related to woman’s modesty and chastity. She knows by instinct that
her self-respect demands that she should not submit herself freely. To prevent women
from being acquired very easily for marriage (without any struggle or sacrifice), or to be
cheapened, undermined, abused, and discarded at will by men, Allah made it obligatory
upon the latter to pay something to them (anything of value, small or large), when they get
married to them, even after obtaining their guardians’ consent for the marriage.Along the

18


same lines, Allah also obligated Muslim men to financially provide for their wives’ basic
food, clothing, shelter, and maintenance needs on a continuous basis after the marriage.
The contract of Mahr gives the woman a relative amount of peacefulness and ease of
mind, so that she may perform the duties that genesis has placed upon her. The divine
legislation of dower is to foster in women a reasonable amount of security and ease as
regards such likelihoods.
In short, dower may be described as an instrument of assurance and backup for marriage.

Difference between Sunni & Shia Law Regarding Dower

● SUNNI LAW
A minimum limit of 10 dirham’s is prescribed for specified dower. There is no limit
to proper dower. There is no maximum limit for specific dower.15 If marriage is
dissolved by death and dower has not been specified, or it is agreed that no dower
shall be payable, proper dower would be due whether the marriage was
consummated or not. An agreement that no dower shall be due is void.
In the absence of an agreement only a reasonable part of the dower is presume to
be prompt.

● SHIA LAW
No minimum limit is prescribed. Proper dower cannot exceed 500 dirham’s. Fixing
of dower exceeding 500 dirham’s is considered abominable though not Illegal. In
such case no dower would be due if the marriage was not consummated. Such
agreement by sane and adult wife is valid. The whole dower is presumed to be
prompt.

15 dower which is usually fixed at the time of marriage but it is also fixed after the marriage:
https://www.legalbites.in/dower-mahr-muslim-law/,last accessed on 2nd september 2018
19


CASE LAWS
● Shafiqual Haq v. Mina Begum
In this case “kabinnama” in question is a genuine and valid document. The opposite party
Mina Begum file a Family suit before the family court for dower against the petitioner
Shafiqual Haq.

FACTS- On 12.10.2000 opposite party No.1 instituted the family suit before the family
court for dower and maintenance. The petitioner has already appeared and fileda written
statement denying his marriage with her. He has got every opportunity challenge
“Kabinnama” and the solemnization16 of the marriage on the every some grounds on which
he on 22.10.2000 filed title suit No.196 of 2000 before a subordinate judge.

JUDGMENT- Family court has got every jurisdiction to decide as to whether the
“Kabinnama” in question is a genuine and valid document or not and whether any marriage
between the petitioner and opposite party No:1 was ever solemnized or not before it
decides to grant any decree for dower, no declaration in respect of the “Kabinnama” or
cancellation of the “Kabinnama” is at all necessary. Whether the Family Court only allowed
the claim for dower after reducing the total amount by the usool as specified in the
registered “Kabinnama” and wheather any portion of dower is actually paid or not, if it is
mentioned in the registered “Kabinnama”the courts tend to reduce the amount of dower by
the alleged usool.
The Family Court Ordinance 1985, section 5 define clearly “Family court has got every
jurisdiction to decide as to whether the “Kabinnama” in question is a genuine valid
document or not and whether any marriage between the petitioner and opposite party was
ever solemnized or not before it decides to grant any decree for dower and maintenance.

16 the public performance of a sacrament or solemn ceremony with all appropriate ritual,
https://www.thefreedictionary.com/solemnisation, last accessed on 2nd september 2018
20


● Hefzur Rahman v. Shamsun Nahar

FACTS- The petitioner and the two opposite parties, No.1 and 2, in this Rule are
respectively named Md.Hefzur Rahman, Shamsun Nahar Begum and Shaon Mia, a minor.
The petitioner married the first opposite party on 25.3.85,The dower money was fixed at
tk:50,001/00.second opposite party, a son, was born out of this wed lock on 15.12.87
subsequently, the petitioner divorced the opposite party on 10.8.88, on 2.11.88 first
opposite party for herself on behalf of her minor son, the second opposite party, instituted
family court suit No. 60 of 1988 in the family court and the court of Assistant Judge,
Daudkandi, claiming they said dower money at taka,1,000.00 per month for each of them.

JUDGMENT- The family court decreed the directing the petitioner to pay taka 48,000,00 as
the balance dower money, to pay tk,3,ooo.oo to the first opposite party as the maintenance
for the iddat-period of three month and to pay tk,1,000.00 each month for the maintenance
of the opposite party.On appeal preferred by the petitioner being family Appeal No: 2 of
1991 the learned District Judge, Comilla reduced the amount of maintenance of tk.60, 000
per month for each of the opposite party.
Considering all the aspects we finally hold that a person after divorcing his wife is bound to
maintain her on a reasonable scale beyond the period of iddat for an indefinite period that is
to say till she loses the statute of divorce by remarrying another person.

● Atiqul Huque Chowdhury v Shahana Rahim and Another

In this cases, the opposite party No.1 as plaintiff instituted the above mentioned suit for
recovery of dower amounting to taka 70,001,00 and also for maintenance and guardianship
of plaintiff No.2.
FACTS- The opposite party-plaintiff’s case, as stated in the petition, is that the plaintiff
No.1 Shahana Rahim was married to the defendant, Atiqul Huque Chowdhury, on 1, 10, 82
by a registered kabinnama and dower was fixed at taka 70, 001, 00 half of which was
prompt and the other half was deferred after living together for some months the plaintiff

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No.1. Became pregnant. Unfortunately the defendant indulged in extra martial affairs and
very often returned home late and drunk. Sometimes he also abused her and treated her
cruelly. The plaintiff soon became anemic which prompted her elder brother to take her to
her father’s house where a daughter, plaintiff No.2, was born on 07.05.1984; but neither
the defendant nor any member of his family cared to visit her or bear any medical
expenses. On 15.04.1985 in order to marry for the second time the petitioner defendant
sent a notice of divorce to the plaintiff. On receiving the said notice the plaintiff No.1
claimed dower and also the maintenance of plaintiff No.2 on 05.05.1984. But the defendant
on one pretext or another delayed the payment of dower and finally on 10.12.1988 refused
to pay it.

JUDGMENT- Moreover, the whole purpose of the 1974 Act, as derived from the preamble,
is to consolidate the registration of Muslim marriages and divorces under one Act and not
to diversity the registration of different parts of marriage contract under different Acts, e.g.
dower under some other Act. The dower in a Muslim marriage forms an inseparable part
of the terms of the terms of the Kabinnama and thus as the Kabinnama is intended to be
registered under the 1974 Act,17 so is the dower.The Act of 1974 is, in our opinion in
force relating to the registration of Muslim marriage including dower.

● Muhammad Taqui khan v. Farmodi Begum

FACTS- In the present case, the plaintiff had asked her husband for the payment of her
entire dower and the husband had definitely refused to entertain her claim in any shape or
form and had referred her to a suit. In these circumstances it was not necessary for the
plaintiffs to make a fresh demand later on when she decided to file the suit and under
advice received decided to reduce her claim to half the amount of dower.

17 An Act to consolidate and amend the law relating to Registration of Muslim marriages and
divorces: http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=476, last accessed on 3rd
september 2018.
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JUDGMENT- Nevertheless the Court consider the nature of the eligible dower to be that of
a debt payable generally on demand after the date of the contract, which forms the basis of
the obligations and payable at any period during the life of the husband, on which that
demand shall be actually made, and therefore until the demand be actually made and
refused, the ground of an action at law cannot properly be said to have arisen, nor the law
of limitation become applicable. The Court remark that in an ordinary bond for debt, the
lender has stipulated or demanded to be repaid on the particular date specified in the bond,
and there is an actual infraction of the agreement equivalent to refusal of the requirement to
repay should the debtor fail to liquidate the loan on the stipulated date ; and here clearly
commences the ground of an action in Court for recovery of that which is due; but in the
case of an obligation to pay on demand, such as the Court regard the obligation to pay the
exigible dower to her, there is no infraction of the obligation until the demand be made and
refused, and consequently no cause of legal suit has arisen.

The previous demand of this lesser sum and refusal in this case is not an integral part of
the plaintiff’s cause of action. Her real cause of action is the refusal on her husband’s part
to co-operate in determining the amount of prompt dower and such a suit, in our opinion,
cannot fail simply because a previous demand had not been made for the payment of the
precise sum which was claimed in the plaint. In our opinion, the demand which we have
found above the plaintiff to have made was quite sufficient to satisfy the condition if
demand be taken to be an essential part of the cause of action. In this view, it is not
necessary to express an opinion upon a point decided in the plaintiff’s favor by the trial
Court, namely that the plaint in the present action can be treated as a demand and whether
the rule laid down in Simpson v. Routh (1824) 2 B & Cr. 682 at p. 537 is applicable to the
case. The other matter for consideration is what is the effect of consummation of
marriage on the right of the wife to recover her prompt dower.

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● Moulana Md.Zakaria Khan v Mst.Momtaz Khanam and another In this cases, the
plaintiff petitioner Md.Zakaria Khan filed a suit on 9.9.1967 being other suit No 119 of 1967
against the defendants opposite parties for restitution of conjugal rights payment of prompt
dower to the wife is a condition precedent to husbands claim for restitution of conjugal
rights.
FACTS- The plaintiff petitioner filed a suit on 9.9.67 being other suit No.119 against the
Defendants opposite parties for restitution of conjugal rights along with a prayer Of
injunction against defendant opposite party No.2 salamat Ali directing him not to interfere
with their conjugal life and also not to give the opposite party no:1 is the legally married
wife of the plaintiff petitioner. The marriage ceremony took place in March,1965 and a son
was born to them on 25.3.1966.The opposite party No.1 along with the minor son was
taken to her father’s house for Naiyor with a promise to send her back to the petitioner
house within 15 days. On the expiry of this period, however, the opposite party No.1 did
not come back. Thereafter various attempts were made to bring her back to her husband’s
house. Thereafter on 25.8.67 the petitioner sent a pleader’s notice requesting her to come
to his house within seven days. But she did not comply with that notice on 13.9.67
claiming Rs.5520/ on account of her dower, maintenance etc.So the plaintiff petitioner filed
the present suit on 9.9.67 for restitution of his conjugal rights.

JUDGMENT- The trial court is therefore directed to proceed with the suit and try the same
in accordance with law. The trial court will however, be not debarred in pronouncing a
judgment and decree as is unusually done in similar case by observing that the decree if any
for restitution of conjugal rights will be operative on deposit of payment of the unpaid
prompt dower money, if any is due. Both the parties including the defendants opposite
parties also will not be debarred in paying for analogous hearing of both the suits before the
appropriate court in case they succeed in registering the proposed suit for which the
application in forma paupers is pending in the 1st court of Munsiff, sadder Chittagong
which numbered as Miscellaneous case No.179 of 1967 and order accordingly.

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Lastly we say that, this case focus clearly that payment of prompt dower to the wife is a
condition precedent to husband’s claim for restitution of conjugal.18

CONCLUSION

The mahr is one of the wife’s rights that is sincerely given by the husband to the wife, without
exception, as an expression of his love and responsibility. In Islam, the concept of mahr is more
effective, comprehensive, vital and sacred than any other religions. It is one of the fundamental
rights of every woman. Mahr is not only considered to be a trust, a sacred responsibility, which is
to be performed in conformity with the provisions of the Qur‘an and Sunnah; but the dispensation
of mahr also constitutes one of the most important acts of devotion. It is intended to please the
wife, so that she feels appreciated and more willing to bring and share a new life with the husband.
Nevertheless, Islam recommends moderation and not setting a rate that is too high or low. The
Prophet has encouraged us to simplify the giving of mahr.

18 https://www.legalbites.in/restitution-conjugal-rights/, last accessed on 4th september 2018

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BIBLIOGRAPHY

Websites:

1. http://www.assignmentpoint.com/arts/law/report-on-the-concept-and-importance-of-dowe
r.html
2. https://www.legalbites.in/dower-mahr-muslim-law/
3. https://www.iilsindia.com/blogs/2017/04/04/concept-mahr-dower/
4. https://en.wikipedia.org/wiki/Mahr
5. http://www.shareyouressays.com/knowledge/what-is-the-concept-of-dower-under-muslim
-law/117526

Books:

1. Family law in India by K.B. Agrawal

2. Law of marriage and divorce by Paras Diwan

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