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. Mahr was 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.
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. 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.
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.
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.
The concept of mahr in Islamic law is beneficial for the woman. It ensures financial security so that she is not left helpless after the death of the husband or after the termination of the marriage. It also places a check on the capricious use of divorce by the husband. It is also believed that the mahr is a pivotal custom in the marriages of Muslims.
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