TOPIC - WIDOWS RIGHT TO RETENTION IN MUSLIM LAW

- By Surima Singh

Introduction

India could be a various nation, and its residents, no matter their sex, caste, religion, or color,
have a chance for huge growth as a result of the fundamental rights granted to people partly
of the Constitution. Muslim women's rights are a subject of discussion since the 1950
Constitution went into force. Despite many constitutional safeguards, the standing of Muslim
girls has not improved as a result of spiritual proclamations and also the government's
conservative stance. Muslim girls have very little rights in terms of wedding, polygamy,
divorce, and inheritance as a result of the centuries-old beliefs of Islam still being valid.
Muslim women's rights are injured by the patriarchic nature of Muslim personal law,
prompting a prolonged battle by Muslim girls for gender equality in wedding, divorce, and
property rights. moreover, the dearth of totally outlined Muslim personal laws has created
substantial challenges for girls because of uncertainty in various rights interpretations of the
sacred text. moreover, unnumerable incorrect "fatwas" are declared against Muslim women's
rights. As a result, Muslim girls square measure systematically the poorest and most
marginalized members of the Muslim community. The objective of this document is to
educate readers on Muslim women's rights, particularly their entitlement to receive Dower
and to lien the property of a deceased spouse in lieu of Dower.

Historical Background

Islam was the world's first faith to acknowledge girls as legal people with equal rights to men.
Women's freeing from oppression could be a priority for Islam, that strives to produce them
with equal rights and therefore the dissolution of wedding. Women's identity as men square
measure recognised in Muslim personal law. Men and girls square measure equal within the
Koran, and women's rights square measure capable their duties. Women's commands within
the Koran, on the opposite hand, were met with resistance in several communities since they
directly challenged male dominance and created girls’ capable men in each side. The absence
of correct written legislation in Muslim personal law has been an enormous challenge for
Muslim ladies, golf stroke them during a precarious position as a result of the paradox around
various rights and sacred writing interpretations.
Muslim students should begin formulating a comprehensive and well-codified legislation that
exemplifies the Quranic spirit as shortly as potential. Polygamy, as an example, was at one
time authorized within the Quran to assist ladies in distress, like widows and orphans. Similar
behaviors, however, have resulted in severe imbalance for girls in today's globe. thanks to the
uncodified Muslim Personal Law, Muslim ladies still battle for elementary rights despite
worldwide advancements in women's rights.

Personal laws in Bharat, significantly Muslim personal laws, are a tough diplomatic topic that
has caused impassioned discussion. However, many statutory measures are developed to
ensure that Muslim women's rights are safeguarded, so as to satisfy the fundamental right to
equality enshrined in Article fourteen of the Indian Constitution. The Muslim Personal Law
(Shariat) Application Act of 1937, The Dissolution of Muslim Marriages Act of 1939, and
therefore the Dissolution of Muslim Marriages Act of 1939 make sure the security of married
women's rights beneath Muslim law with reference to Dower on the dissolution of their
marriages, also because the rights of Muslim girls United Nations agency are single by, or
have obtained a divorce from, their husbands.
The conception of a lady as a dependent UN agency transition from her fathers to her
husband's duty is established within the problems that ladies encounter within the sphere of
wedding. wedding could be a contract between two people for the goal of replica and kid
raising, in step with Muslim law. below Muslim law, an adult female or widow incorporates a
few rights that enable her to compel her husband or in-laws to pay her dower. The woman's
right to refuse inhabitancy, her right to dower, and her right to preserve her deceased
husband's belongings square measure among these rights.
Muslim jurisprudence colleges regard the Dower to be a significant a part of the wedding.
though it's not constant as a civil contract, Mahr (dower) could be a term utilized in Muslim
Personal Law to talk to cash or property that the girl is entitled to receive from the husband in
exchange for the wedding. Dower is just a mark of respect for the married woman that the
husband is needed to pay. the key purpose of imposing the dower condition is to confirm the
wife's support within the event of her husband's death or divorce. The construct of dower has
conjointly received legal authority, since it's enclosed within the calculation of maintenance
underneath Section a 125 CrPC 1973.

Rights of women in Muslim Personal laws

Property Rights of Muslim Women

Property rights for Muslim girls, like all alternative rights, area unit the end result of a
protracted battle between conservative and liberal forces. In terms of property rights, Muslim
girls in Republic of India have traditionally had fewer rights than their male counterparts.
Men area unit entitled to a much bigger share and title within the property and estate since
they're perpetually needed to cater for the wants of women.
Dower, on the opposite hand, is a necessary notion in Islamic law that's directly tied to the
property rights of Muslim ladies. Dower could be a gift given by a Muslim husband to his
better half as a gesture of respect at the time of their wedding, indicating his sincerity and
love for the wedding and his better half. Dower may be within the type of cash or the other
valuable object, however it should be approved by the better half. once associate object or
property is obtainable as Dower, the women are given sole possession of it. what is more, the
Muslim wife's complete possession of the Dower property demonstrates Muslim personal
law's extreme approach to imposing property rights on ladies so as to market matrimonial
equality.

Dower
Dower is the amount of money or property that a Muslim woman is entitled to receive as a
token of her husband's respect for her and the marriage. In Islam, marriage is regarded as a
civil law contract that evolved from the bridegroom's purchase of the bride. Dower is an
unusual Islamic notion that has been divinely commanded and recognized by the law.

In the case of Abdul Kadir v. Salima, 1 it had been explicit that dower wasn't a financial
payment created by a person to a girl reciprocally for wedding, however rather an impression
of the contract obligatory by the law on the husband as a mark of respect for the married

1
(1886) ILR 8 All 149
person. The court determined in Sayed Sabir Hussain v. Farsand Hussain that the dower paid
by the husband to the married person planted the husband's burden. within the case of Anis
Begam v. Mohd. Istafa,2 it had been conjointly explicit that in Muslim law, dower couldn't be
viewed entirely because the wife's sale of her body in exchange for the payment of dower.
The dower is employed as a concrete kind of settlement in favor of the girl, and to confirm
that the husband doesn't have any unequal power within the event of divorce.

WIDOW’S RIGHT TO RETENTION

A Muslim widow's right to retention allows her to remain in possession of her husband's
property after his death. A widow with a pending dower debt has the right to keep the
husband's properties until her dower is paid. The privilege is known as the right of retention
in lieu of unpaid dower and applies when a marriage is dissolved by death or divorce. Unless
she has a contractual right of lien or possession, a woman does not have the right of retention
during the marriage.
It is argued in Hamira Bibi v. Zubaida Bibi 3 that, because of the character of the rights of
retention, no permission is needed, particularly given the well-established presumption that a
widow's possession should be lawful and gained while not force or fraud.

The following area unit the ramifications of the correct of retention:

1. The widow should account for all of her earnings and profits: A Muslim widow
World Health Organization retains possession of property underneath her right of
retention should account for all rentals and profits to those that area unit entitled to
them.

2. She lacks jurisdiction to sell the property: She has the correct to satisfy her dower-
debt with the property's revenue and earnings, however she doesn't have the correct to
transfer the property for profit or for worth.
3. Widows have the proper to sue to regain their dower: Her right of retention doesn't
preclude her from suing to recover her dower obligation. during this state of affairs,
she'll need to provide to present up possession in exchange for payment of her dower

2
AIR 1933 All 634
3
(1916) ILR 38 All 581
 debt. She will not be able to maintain possession of the property whereas conjointly
getting a dower-debt ruling in her favour

Response of Judiciary

The right of a widow to mortgage her late husband's property in role of unpaid dower has
been debated for a protracted time and is presently being debated.
In the case of Hamira Bibi v Zubaida Bibi, 4 the council outlined the widow's special power to
enforce her claims for unpaid dower. "Dower could be a crucial side in Muslim law to the
standing of wedding... the dower ranks as a debt, and therefore the girl is entitled to own it
consummated out of the husband's assets on his death, along with alternative creditors,"
remarked Lord Parker. Her rights, however, area unit constant as those of the other unsecured
mortal, with the exception that if she lawfully obtains possession of the total or a part of the
husband's estate to satisfy her claim with the rents and problems arising therefrom, she is
entitled to stay such possession till her claim is glad. this is often called a widow's lien for
dower, and it's the only creditor's claim recognised beneath Musalmman law by British
people Indian Courts and this Board.
In the case of Maina Bibi v Chaudhri Vakil Ahmed, 5 it absolutely was dominated that a
widow has the proper to carry a property once it's been lawfully nonheritable till her dower
obligation has been paid underneath Muslim law. The widow's right of retention doesn't
confer possession of the property on her. she will merely hold possession and take the legal
right till her dower debt is paid. She has no right to sell, mortgage, gift, or otherwise alienate
the property, and if she makes an attempt, she's going to lose her right to stay it. in step with
the Supreme Court, the widow doesn't fancy precedence over her husband's different
unsecured creditors.
In the case of Sikandar Ara vs. Hussan Ara,6 the law declared that the wife's custody of the
husband's property may continue when the husband died till the Dower was regained. in
keeping with the council, the Muslim Law provides the widow the proper to stay the property
she has peacefully and properly noninheritable till her dower due is happy. They went on to

4
(1916) ILR 38 All 581
5
(1925) 27 BOMLR 796
6
Sikandar Ara vs. Hussan Ara. AIR 1916 Oudh 136
feature that it is not a lien, a mortgage, or a usufructuary, that could be a right to use and have
the benefit of somebody else's property as long because the property is not broken in any
means.
The issue of whether or not a widow's right to lien her deceased husband's property in
function of unpaid dower is transferable and patrimonial was reviewed within the case of a
widow's right to lien her deceased husband's property in function of unpaid dower. there’re
heaps of conflicting judicial opinion on this matter.
The right to stay the property is patrimonial, in step with the Bombay tribunal in Mir Vaheed
Ali v Rashid Beg.7 The Mysore tribunal determined in Hussain v Rahim Khan 8 that the
correct to carry the property in function of unpaid dower is each patrimonial and transferable.
The province tribunal command in Ghouse Yar khan v Fatim Begham 9 that the property
maintained by the widow in position of unpaid dower beneath Muslim personal law may be
alienated and hereditary. The Patna tribunal set that the privilege isn't transferable within the
case of Zobair Ahmad v Jainandan Prasad.10 in keeping with the Supreme Court in Kapore
Chand v Kedar Unnissa,11 the proper to possession of property isn't a transferable right.

Conclusion

Islam has raised the position of girls in society by making a slew of rules designed to
safeguard them and make sure that they live respectable and dignified lives. several
privileges, like wedding preference, inheritance, and so on, are granted to Muslim girls
beneath Muslim personal norms. Muslim personal law additionally aims to ensure that girls
have an appropriate social position once wedding. The Muslim girl has the correct to select
her married person, and also the contract should have her agreement so as to be legal. it's
affordable to conclude that Muslim girls have lower property rights than men and girls of
different religions. The lack of written Muslim laws is one reason for this prejudice.
However, in Islam, there's Associate in Nursing inherent thought of Dower, that grants
Muslim girls some property rights. The notion of dower rights is alleged to possess been
developed by God and his prophet Muhammad. Dower is needed in Islam, no matter whether
or not the wedding document specifies it or not. A dower may be specific or specific and

7
Mir Vaheed Ali v. Rashid Beg, AIR 1951 BOM 22
8
AIR 1954 MYS 24.
9
AIR 1988 AP 354.
10
AIR 1960 Pat 147
11
Kapore Chand v. Kedar Unnissa, [1950] SCR 747
appropriate. If dower rights don't seem to be paid now when wedding, they become due once
the wedding ends, whether or not through divorce or the husband's death. Any Muslim
wedding should embrace dower rights as a condition.
Different Courts round the country have issued varied opinions on this matter. What must be
seen is however the jurisprudence on this subject can evolve. Islamic law is sufficiently
forward-thinking that it'd function the muse for an identical Civil Code. Conservative Muslim
cultures have elevated the Quran's statements to their own level and enforced a slew of
restrictions on women's right.