INTRODUCTION
Dower in English Law is defined as the portion which a
widow hath of the lands of her husband at his decease, for
the sustenance of herself and the education of her children.
In Mohammedan law, this term is explained as the money
paid by the intended husband to wife at the time of marriage
and in consideration of marriage.
To know about dower, at first we must know about marriage
and conditions of marriage in Mohammedan Law.
MARRIAGE AND ITS CONDITIONS IN
MOHAMMEDAN LAW
Section 250 of the Mohammedan Law defines marriage as a
contract that has for its object the procreation and legalizing
of children.
In the landmark case Abdul Kadir v. Salima, it was
observed that marriage in Islam is a civil contract and not a
sacrament.[2]
CONDITIONS OF A MUSLIM MARRIAGE
1. There must be a proposal made by or on behalf of one of
the parties.
2. There must be an acceptance of that proposal by the
other party.
3. The parties must be competent, i.e.,
4. The parties must not be minor.
5. They must be of sound mind.
6. They must be Muslims.
• There must be free consent for marriage.
• Dower
• Presence of witnesses during such proposal and
acceptance.
From the above-mentioned decisions and conditions laid
down to constitute a valid marriage among Muslims, it can
be said that marriage among Muslims is a contract and not a
sacred union.
DOWER
So, from the above-mentioned conditions, it is clear that to
constitute a valid marriage, a Muslim man must give the
consideration amount or Dower to his wife.
Now, Section 285 of the Mohammedan Law states dower as
a sum of money or other property which the wife is entitled
to receive from her husband in consideration of marriage.
CLASSIFICATION OF DOWER
There are 2 classifications of Dower-
• Specified Dower
• Proper Dower
SPECIFIED Dower
When the sum of that same dower is determined by the
members either during or once nikah is over, it shall be
referred specified dower. The agreement of the dower can be
rendered by the parent (always males) in the stated dower.
Among the Sunnis, the father is not personally liable for the
dower debt even if he consented to the marriage.[3]
This is a settled principle in Muslim Law that the husband
can settle for any amount for Mahr but it must not be less
than 10 Dirhams.
PROMPT DOWER
When the dower is payable immediately after the marriage
or at any time when demanded by the wife. So, a prompt
dower is payable on demand. A prompt dower can be
realized before or after the consummation. It doesn’t get
deferred after the consummation of the marriage. In a prompt
dower, the wife can sue the husband for recovery of the
dower even after the consummation of the marriage. Unless
the marriage is consummated, the husband is entitled to
enforce conjugal rights only after the payment of prompt
dower.
In Rabia Khatoon v. Mukhtar Ahmed, the Hon’ble
Allahabad High Court held that the wife may refuse to live
with her husband and admit to sexual intercourse till the
prompt dower is paid. It further held that the prompt dower
is payable on demand and no proof of sexual intercourse is
necessary between the parties for the claim of payment.[4]
DEFERRED DOWER
When a dower is not payable immediately after the
consummation of marriage and becomes payable only after-
1. The occurrence of a certain incident.
2. After the expiration of a particular period.
• After the dissolution of marriage either-
• By death
• By divorce.
SHIA LAW
The Court in Masthan Sahib v. Assan Bibi says that when it
is not settled whether the dower shall be prompt or deferred,
then the whole dower shall be regarded as a prompt
dower.[5]
SUNNI LAW
The rule is to regard one part as prompt and another as
deferred. Such proportion is preferable to each class by the
customs in which they are regulated. However, the Court
in Husein Khan v. Gulab Khatun, held that it has the
power to award the entire dower as a set-off.[6]
Section 336 of the Mohammedan Law speaks of the rights
and obligations of parties in a divorce. Sub-section (2) of the
said section states that if the marriage was consummated,
then during divorce the whole unpaid dower becomes
immediately payable, whether prompt or deferred.
In Tajbi v. Nattar Sherif, the Court held that the woman is
entitled to half of such amount.[7]
If no amount is specified in the contract then all she is
entitled to be a present of three articles of dress.
If the dissolution of marriage is due to apostasy of the wife,
then she is entitled to receive the whole amount, if the
consummation of marriage took place.
PROPER DOWER
The wife can demand payment of proper dower. Generally, it
is given taking into consideration such as qualification of
wife, wife’s age, beauty, the social position of the family, the
economic status of the husband. Under Shia law, the
maximum amount of proper dower is 500 Dirhams.
REMISSION OF DOWER BY WIFE
After the marriage, the right to dower immediately vests
upon the wife. However, after such rights vests on the wife,
it is up to her whether she enforces it on her husband or not.
She has the power to remit or relinquish such right to the
husband. So, a wife may be out of love or to gain the
affection of her husband can remit such right to the husband.
Therefore, a wife in Muslim law can remit back her right to
dower to her husband but while doing so, there must be
some conditions fulfilled-
• The wife must be sane and must have attained the
majority at the time of such remission of dower. A minor
cannot remit her right to dower. The High Courts of
Madras and Patna in cases Ali Dhunimsa v.
Mahommad[8]&Najmunissa v. Serajuddin
Ahmed[9] respectively, were of opinion that remittance
of the right of dower by a wife who is minor according
to the Indian Majority Act is invalid, even if in
Mohammedan Law she has attained majority.
• However, the Allahabad High Court dissented with this
judgment in the case of Qasim Hussain v. Bibi
Kamiz[10] and held that since the Indian Majority Act
doesn’t affect a minor in view of the Indian Majority
Act.
CONCLUSION
Therefore, from the above study, it may be concluded that a
Dower or Mahr is one of the conditions to constitute a valid
marriage. Though marriage among Muslims is a civil
contract, the practice of dower is not entirely essential in a
Muslim marriage. Even if there are conditions specified in
the marriage contract that the wife shall not demand dower,
she still is entitled to demand for dower. Dower can also be
interpreted as financial support to the wife and she has an
absolute right over the entitlement of dower. It can also be
claimed by her in a Court of law. The concept of Dower
strengthens the position of a Muslim woman in society.