Dower
Definition:
Dower is a legal obligation imposed upon the husband to provide a sum of money,
property or any other valuable benefit to the wife in consideration of marriage.
Payment or promise of dower is considered as an essential element of Nikah. Even
if the amount is not fixed at the time of marriage, the wife is still legally entitled to
receive dower.
The Holy Quran says, “And give the women their dower as a free gift” (Quran
4:4).
Justice Mahmood in Abdul Kadir vs Salima (1886),
“Dower is a sum of money or other property promised by the husband to be paid or
delivered to the wife in consideration of marriage.”
Mulla,
“Dower is a sum of money or property to which the wife becomes entitled by
marriage.”
Nature of Dower:
The nature of dower has been explained in several cases. In Hamira Bibi vs
Zubaida Bibi (1916):-
“Dower is an essential incident of Muslim marriage.”
Characteristics:-
i. It is compulsory in Muslim marriage.
ii. It is not consideration in strict contractual sense.
iii. It is a system of honour to the wife.
iv. It provides economic security to women.
v. It acts as a check on arbitrary divorce by husband.
Pre-Islamic Background:
Before islam the practice of giving gifts at marriage existed in Arab society but
such gifts were often given to the bride’s father or family rather than the bride
herself. Islam reformed this practice and made dower –
Obligatory
Payable directly to the wife
Her(wife) absolute property
Thus the dower is not bride price but a right of the wife. Unlike dowry (which is
given by bride’s family), Muslim law does not require dowry.
Purpose of Dower:
The main purpose of dower are –
1. To give respect and dignity to the wife.
2. To ensure financial security of the wife.
3. To discourage arbitrary divorce.
4. To create responsibility upon the husband.
5. To provide economic protection in case of divorce or death of husband.
Types of Dower:
Dower is mainly divided into two categories –
A. Specific Dower (Mahr–ul–Musamma)
When the amount of dower is fixed by agreement between the parties at the time of
marriage or after marriage, it is called specified dower.
According to Hanafi law, the father is not personally liable for the dower but
according to Shia law, the father will also be liable.
The husband is bound to pay the amount even if it is excessive.
Specific dower is further divided into two types –
i) Prompt Dower (Mahr-ul-Muajjal)
Prompt dower is payable immediately on demanded by the wife.
There are two aspects of settled dower –
Time factor
Quantum factor
Chacracteristics:
a) Payable immediately after marriage.
b) Wife may refuse cohabitation until prompt dower is paid.
c) Can be demanded before or after consummation.
ii) Deferred Dower (Mahr-ul-Muwajjal)
Deferred dower is payable on dissolution of marriage. It becomes payable on –
Divorce
Death of husband
However, it does not become payable merely on demand of the wife. The dower is
like a debt and binds the property of the husband not only during his life but also
after his death.
If the contract doesn’t specify which part is prompt or deferred –
1. Under Sunni law, part is treated as prompt according to custom.
2. Under Shia law, whole dower is treated as prompt.
Even when the Kabinnama is silent about the nature of the dower, the court has
considered half of the whole dower as prompt. [Nasiruddin Shah vs Amatul
Mughni Begum (1947)]
B. Unspecified Dower (Mahr-ul-Misl)
When the amount of dower is not fixed at the time of marriage or after is known as
unspecified dower.
According to Hedaya, the wife’s beauty, age, intellect and virtue will also
considered. The social status and circumstances of the wife and her family will be
taken into consideration as well.
Minimum and Maximum Amount of Dower:
The Holy Quran haven’t specified the amount of dower.
According to Hanafi opinion, the amoun of dower is ten dirhams or pieces of
silver weighing seven miskals, coined or uncoined.
According to Shia and Shafi, there’s no minimum amount of dower and even a
grain of wheat may be a good dower.
Tahir Mahmood has rightly commented, “It is in fact wrong to try to ascertain the
present value of ten dirhams of Arabia over a thousand years ago and regard it as
the scale of minimum mahr in our time.”
Prophet Muhammad (SM) said,
“The best dower is that which is the easiest to pay.”
Factors determining the amount of dower –
i. Financial condition of the husband
ii. Social status of the wife
iii. Custom of the locality
iv. Educational qualification of the wife
v. Economic condition of the family
vi. Agreement between the parties.
Thus, the amount of the dower should not excessive that it becomes difficult to
pay, nor so small that it undermines the dignity of the wife.
Subject Matter of Dower:
Dower is not restricted to maney only. Under Muslim law, any lawful and valuable
benefit may contribute valid dower. Dower may consist of –
i. Money
ii. Immovable or movable property
iii. Jewellery or valuable goods
iv. Any valuable benefit capable of valuation
Islamic traditions show that even simple items may be valid dower if both parties
agree. Example –
a) A pair of shoes
b) A handful of dates
c) Personal services rendered by the husband
d) Teaching wife the Holy Quran
There the subject matter of dower must –
Have lawful value
Be capable of being possessed
Be beneficial to the wife
Legal Position of Dower in Bangladesh:
In Bangladesh, dower is recognized and enforced through Muslim personal law
and family law practices. Dower is usually recorded in the Kabinnama, which acts
as legal proof of the wife’s right.
1. Legal characteristics of dower in Bangladesh –
2. Dower is a legal debt upon the husband
3. The wife has the absolute right to claim dower
4. Dower may be recovered through Family Court
5. The obligation continues even after the death of husband
6. Non-payment of prompt dower may entitle the wife to refuse conjugal rights
until payment.