The Concept of Mahr under Muslim Law

 The Constitution of India guarantees the freedom of conscience and the right to profess, practice, and propagate religion as a fundamental right. The creation and the continued existence of personal laws for respective religious groups have their basis in this fundamental right. As things stand now, with respect to cases arising out of family matters, all persons professing the Muslim faith are governed by Muslim personal law. It consists of provisions regarding marriage, dower, divorce, will, and, maintenance, etc.

Under Muslim law, the dower is referred to as ‘Mahr’. It is a stipulated amount that the husband must pay to his wife at the time of marriage. In the following, we will explore the concept of ‘Mahr’ in detail.

Historical origins of ‘Mahr’

In pre-Islamic Arabia, the institution of marriage is said to have been chaotic and oppressive to women. Men could denounce their marriages without providing for the maintenance of their wives. Typically, as per the custom of the time, women lacked independent sources of income. An unjust divorce could reduce a woman and her children to desperate penury.

A variety of transactional sexual practices existed, which treated women like objects and afforded them no security in the instance of a divorce. One such practice was Shighar- a man would give one of his daughters or sisters to another in exchange for his daughter or sister. There was no provision for a dower for women under such an arrangement.

Another form of marriage in existence in pre-Islamic Arabia was Beena. In this form of marriage, the husband visited his wife, who continued to stay with her parents. It was customary to give a gift to the wife at the time of marriage, referred to as Sadiq. It has been argued that Sadaq may have been the first form of a ‘Mahr’/dower to have existed in ancient Arabia.

In what was referred to as the Baal form of marriage, the concept of ‘Mahr’ was first introduced. It was a gift or compensation given to the wife’s parents. The proprietary right over it rested with the father or her legal guardian.

After the promulgation of Islam, these older forms of marriage were gradually abolished. A form of legal marriage, now referred to as Nikah came into being. The custom of giving a ‘Mahr’/gift was retained, and the proprietary right over it was reserved for the wife. It was also stipulated now that if a man took the decision to separate himself from his wife, he was obligated to treat her with dignity and generosity and was forbidden from taking back the gifts given to her at the time of the marriage. As per Islamic law, ‘Mahr’ solely belongs to the wife.

The Concept of ‘Mahr’

We have seen in the foregoing that ‘Mahr’ is the Arabic word for dower.

Some of the definitions offered by jurists are as follows

As per Wilson, ‘Mahr’ or dower is a kind of consideration that a man must pay to his wife before he can obtain a divorce

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.

In Abdul Kadir v Salima (1886), it was held by Justice Mahmood that under Muslim law, a dower 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 the concept of consideration in Contract Law and Muslim Law

In the past questions have been raised as to whether the word ‘consideration’ in ‘Mahr’ has the same legal meaning as ‘consideration’ in the law of contract. Successive court judgments have conclusively settled this dispute- in the absence of a consideration a contract is void, however, a Muslim marriage is not rendered void if there is no mention of ‘consideration’ or ‘Mahr’ at the time of the marriage. Though, this does not imply that paying ‘Mahr’ may be deemed to be optional.

The Difference between ‘Mahr’ and ‘Dowry’

The two concepts are poles apart- while dowry is a social evil that is illegal, ‘Mahr’ is a legal and social institution meant to lend financial protection to women; the two should not be confused. Dowry is illegal as per Dowry Prohibition Act, 1961.

Various Types of ‘Mahr’

The dower may be classified into two types

Specified dower and Proper/Customary dower

Specified dower- when the amount of dower is stated in the marriage contract. This amount may be settled between the parties either before the marriage or at some time after it. If the woman to be married is a minor or mentally challenged, then the amount of dower may be negotiated by her legal guardian.

The amount may be mutually settled by the two parties. However, it cannot be less than ten dirhams according to the Hanafi law or no less than three dirhams according to the Maliki law. Shia law does recommend a minimum amount. In case the husband is too poor to afford any dower whatsoever, as per the advice of the Prophet, he is directed to teach the Quran to his wife in lieu of a dower.

Specified dower is of two kinds

Prompt dower- payable immediately after the marriage on demand

Deferred dower- to be paid after the dissolution of the marriage- either through death or divorce

Proper or Customary dower- Sometimes marriages occur without any amount of dower being fixed. In such instances, the wife becomes entitled to what is referred to as a ‘proper dower’.

The amount of ‘proper dower’ is fixed by taking the following factors into account-

The amount of dower settled upon other female members of the family

The social and economic standing of the wife’s father’s family

Dower received by her female paternal relations

Her husband’s economic condition

Any other circumstances which may have a bearing

Sunni law does not prescribe any upper limit for a dower, however, as per Shia law its value may not exceed 500 Dirhams.

When the Dower amount is intentionally low, and the wife cannot maintain herself

In the past, it was common for some husbands to pay a very low amount of dower, despite their healthy economic condition. Such abuse threatened to render the concept of ‘Mahr’ useless and futile. The government has passed legislation to overcome these problems. To determine an adequate amount of dower, now the courts need not be bound by the marriage deed.

 

Rights of a Wife if the ‘Mahr’ is refused to her

If a Muslim woman’s right to receive a ‘Mahr’ is violated, the following remedies are available to her

Refusal to Cohabit

If the marriage has not been consummated yet, a married woman has the right to refuse cohabitation with her husband till her dower is paid to her.

In case the wife is a minor or mentally challenged, her legal guardian has the right to refuse to send her to her husband’s house until the dower is paid. There is an added proviso that during this period, the cost of maintaining her at her legal guardians’ house would have to be borne by the husband.

However, cohabitation may not be refused if the marriage has already been consummated. And, if it is refused by a wife, the husband is entitled to file a suit for the restitution of conjugal rights.

In Rabia Khatoon v Mukhtar Ahmed, 1966, it was held that if a suit for the restitution of conjugal rights is brought up after the consummation of the marriage with the free consent of the wife, then a decree may be given on the condition of prompt payment of the dower.

In cases of deferred dower, a legal question that arises is whether a wife is still entitled to refuse cohabitation on the ground that her ‘Mahr’ is unpaid. Jurist Abu Yusuf opined that she may refuse to cohabit if the deferred dower is not paid on being demanded. However, Imam Mahmood argued that in Shia law such refusal to cohabit is not permissible.

Dower as a debt

The Privy Council had held that the dower enjoys the legal status of a debt. Further, it stated that a widow has the right, along with other creditors to have her claim satisfied out of her husband's estate following his death. If the husband is alive, a Muslim woman may recover it by instituting a suit against him. In case the dower remains unpaid during her husband’s lifetime, she is entitled to file a suit against her husband’s heirs. However, the heirs would not be liable to pay it from their own estate. Their liability may be realized only from the estate they inherit from their deceased father.

In Syed David Hussain vs Farzand Hussain (1937) it was held that a Shia man bears the legal status of a surety for his minor son’s dower. Consequently, after his death, his estate is made liable for the payment of his son’s ‘mahr’.

Right to retain possession in lieu of unpaid Dower

As we saw above, the legal status of a dower is that of a debt. A wife has the right to have it satisfied from her husband’s estate after his death. Even though her right is no greater than that of an ordinary creditor, she is lawfully entitled to obtain possession of the whole or a part of his estate following his death; and realize its income till her claim is satisfied. However, she does not have the right to alienate such property.

Effect of Apostasy on Dower

Apostasy is considered debilitating for a Muslim marriage. Usually, serious legal consequences result from it. The apostasy of a man from Islam usually denotes the dissolution of the marriage. However, apostasy on the part of the wife does lead to immediate termination of the marriage. In addition to this, as per Section 5, Dissolution of Muslim Marriage Act, 1939, a married Muslim woman does not lose the right over her dower on the dissolution of her marriage.

Limitation on a suit for dower

If the dower is not claimed by a wife during her life, then following her death, her heirs may claim it. The period of limitation as per the Limitation Act is three years, counting from the date when the dower was first demanded and refused. In the case of a deferred dower, the period of limitation is three years as well, counting from the date when the marriage was dissolved by death or divorce.

The concept of ‘Mahr’ is a useful one to ensure financial security for a married woman and her children following the death of the husband or the dissolution of the marriage. It may be deemed to be one of the pivotal customs of an Islamic wedding.