Dower is not the exchange or consideration given by the man to the woman for entering into the contract; but an effect to the contract imposed by the law on her husband and as a token of respect to its subject, the woman.
Under the Muslim Law, Mehr (dower) implies cash or property which the wife is entitled to get from the husband in consideration of the marriage but this consideration is not same as that of the civil contract. Dower is a obligation which is imposed upon the husband as a mark of respect for the wife. The significant object of the dower is to give 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. Mehr has additionally been considered as the part of maintenance while fixing the amount of maintenance under Section 125 of Criminal Procedure Code, 1973.
Since there is no obvious definition according to Muslim Personal Laws in regards to the dower (Mahr) amount, different High Courts and Supreme Court of India in various cases rendered various conceptions relating to Mahr.
CLASSIFICATION OF DOWER
Dower may be either specified or unspecified. If the dower is specified then, again, it may be asked that when it is payable.There are following kinds of dower in Islam.
Specified dower may again be divided into:
Prompt dower &
Specified dower (al-Mahr al–Musamma):
The dower which the parties to a marriage may fix by stipulation is called specified dower. Usually the dower is fixed at the time of marriage and the Qazi performing the ceremony enters the amount in the register; or else there may be a regular contract with numerous conditions. The sum may be fixed either at the time of marriage or later. The amount of dower may be fixed by the father if the son is minor or of unsound mind and a father’s contract on behalf of a minor son is binding on the minor. In the Hanafi School the rule is that the dower as fixed by the father is binding on the son and the father has no personal liability to pay it. But among the Shias the rule is that if the son has no means to pay it, the father is liable.
where the amount has been specified the husband will be compelled to pay whole of it, however excessive it may seem to the court, having regard to husband’s means. But in the Oudh and Jammu and Kashmir due to local legislation’s, only a reasonable amount will be decreed if the court deems the amount to be excessive or fictitious.
At what time and in what proportion is the amount payable. On this basis dower has been classified as:
Prompt Dower: Prompt dower is payable immediately after the marriage, if demanded by the wife. The prompt dower may be realised by the wife at any time before or after the consummation of the marriage. The consummation of marriage or living with the husband is not necessary condition for claiming it. The demand should be specified and not conditional or ambiguous; the payment of prompt dower may be postponed until there is an actual demand by the wife. The wife may refuse to live with her husband so long as the prompt dower is not paid.
Deferred Dower: The technical term for deferred dower is Muwajjal. The term Muwajjal Means delayed or deferred and comes from a root which means to delay or postpone. The deferred dower is payable on the termination of marriage by death or divorce. It has not become prompt by the demand of the wife during the continuation of marriage. But if there is any agreement as to the payment of deferred dower earlier than the dissolution of marriage, such an agreement would be valid and binding.
The wife, though not entitled to demand payment of deferred dower (unless otherwise stipulated), 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 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 happening of any event, not even on her own death and as such her heir can claim the money if she dies.
Unspesified Dower (Mahr- Al- Mithal):
Where the dower is specified, it has to be paid accordingly. But where the dower has not been settled at the time of marriage or after, what are the principles upon which the amount of dower is to be determined?
The customary or proper dower of woman is to be fixed with reference to the social position of her father’s family and her own personal qualification. The Hedaya lays down the importance of the rule that her age, beauty, fortune, understanding and virtue must be taken into consideration. The Islamic law, therefore, safeguards the rights of a wife and attempts to ensure her an economic status consonant with her own social standing. Therefore, the circumstances which have to be taken into consideration in determining the amount of proper dower are:
the position of the wife’s family ; .
the personal qualifications of the wife ; and
the dower settled on her female paternal relations.
By concluding this Mahr is a consideration for marriage only if marriage under Islamic law is purely a civil contract. However, if nikah purely is not a civil contract than dower cannot regarded as consideration for marriage. Nikah is not a pure civil contract because if dower is consideration for nikah that means without specification of dower nikah is not valid. However, that is not correct dower (mahr) is not an essential condition of marriage. Even if dower is not specified wife is entitled to proper dower under Islamic law. The object of it is to restraint a muslim husband from using his arbitrary power of talaq against his wife. It is a kind of token of respect to wife from her husband. Dower is also a kind financial support to wife. Mahr is absolute right of a wife. She can claim her mahr in court of law also. If mahr is not paid to her she has right to retain her husband’s property. The concept of dower strengthens the position of a Muslim wife in the society.
Khan Iqbal Ali,2016 Mohammedan Law, 26th Edition by Central Law Agency, Law publishers, 30D/1, Moti Lal Nehru Road, Allahabad-2.
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