DOWER
A device was in vogue under the name
of SHIGHAR marriage in which 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. Thus neither
of the wives could get a dower.
Promulgation of Islam gave a new form of nikah
to marriage, abolished this ancient custom and
forbade unjust acts towards the fair sex, as is
evident from the Quran.
If you separate yourself from your wives, send
them away with generosity it is not permitted to
you to appropriate the goods you have once
given to them.
Thus the custom originated in ancient times with
the payment which husbands often made to their
wives as means of support in their old age or
when turned out by them.
In Islamic law Mahr belongs absolutely to the
wife, although historically speaking it is more
akin to brides price than gift or anything else
DEFINITION
Mahr or dower is a sum that becomes payable by
the husband to the wife on marriage, either by
agreement between the parties or by operation of
law. It may either be prompt (Mahr- i- marjjal) or
deferred (Mahr-i-muwajjal).
According to Ameer Ali, “Dower” is a consideration
which belongs absolutely to the wife.
According to Mulla “Dower” is a sum of money or
other property which the wife is entitled to receive
from the husband in consideration of the marriage
misunderstood and misinterpreted since it is
as a consideration made by the man to the
women as bride-price or dowry, but in
reality, is none of these.
A close definition has been forwarded by the
Kifayah and Hedayah in the Fatawa-i-
Alamgiri
Dower is not the exchange or consideration
given by the man to the women, but an
effect of the contract imposed by law on the
husband as a token of respect for its
subject, the women
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.
In Saburannessa v. Sabdu Sheikh, Calcutta
High Court has observed that Muslim marriage
is like a contract of sale in which the wife is
the property and dower is the price. The above
opinions are based on the argument that
marriage is a civil contract and dower is a
consideration for the contract.
But it is submitted that the above opinions are
erroneous, because even in those cases where
no dower is specified at the time of marriage,
marriage is not void on that account, but the
law requires that some dower (proper dower)
should be paid to the wife.
Is dower a consideration of marriage?
Is marriage a civil contract like sale?
Is it similar to Donatio propter nuptias?
Donatio propter nuptias is a Latin term
that means "a gift on account of
marriage." In Roman law, it refers to a
gift from a husband to his wife that is
equivalent to her dowry and subject to
similar conditions.
Abdur Rahim correctly observes, “It is
not a consideration proceeding from
the husband for the contract of
marriage, but it is an obligation
imposed by the law on the husband as
mark of respect for the wife as is
evident from the fact that the non
specification of dower at the time of
marriage does not affect the validity of
marriage.
The line of reasoning based on the
analogy of sale was criticized by Ameer Ali
and by Sir Sulaiman in Anis Begam v.
Mohd. Istafa, and in Wajid Ali Khan. Sir
Sulaiman observed: “It is quite obvious
that the analogy of sale cannot be carried
too far. The marriage cannot be regarded
as purely a sale of the person by the wife
in consideration for the payment of
Dower”.
It was observed in this case that the
similarity of dower to sale price cannot
be pushed too far, nor can the
principles governing the sales of goods
be applied in all their details. For
example, the contract of sales of goods
can be cancelled if a portion of the
price is not paid. Even if the goods
have been once delivered they may in
such a event be returned.
OBJECT OF DOWER
The object of dower is threefold:
(i) to impose an obligation on the husband as a
mark of respect of the wife;
(ii) to place a check on the unpredictable use of
divorce on the part of husband; and
(iii) to provide 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.
KINDS OF DOWER
According to the Determination of
Amount
1. Specified Dower (Mahr-i-Mussama/
Mahr-e-Tafweez)
2. Unspecified/ Proper/ Customary Dower
(Mahr-i-Misl)
According to the Time it is payable
1. Prompt Dower (Mu-Ajjal)
2. Deferred Dower (Mu-Wajjal)
(a) Specified Dower: Usually the mahr
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 called
kabin-nama with numerous conditions.
UNSPECIFIED DOWER
Dower is not stipulated in the marriage contract,
the wife is entitled to what is known as a proper
or customary dower, mahr-i- misl.
In case the amount of dower is not fixed at the
time or before the marriage then the dower of
the wife is decided by the court relying on the
various factors that are according to local
customs, position of husbands, position of wife’s
father, reference to dower of female paternal
relations, personal qualifications that dower is
known as unspecified dower.
Prompt Dower It is payable immediately
after marriage on demand. According to
Ameer Ali a wife can refuse to enter into
conjugal domicile of husband until the
payment of the prompt dower.
The right of restitution arises only after the
dower has been paid.
In Ithna Ashari (Shia) Law, the presumption
is that the whole of the dower is prompt but
in Hanafi Law, the position is different.
Whether Limitation act applies to prompt
dower?
WHETHER LIMITATION ACT APPLIES TO
PROMPT DOWER?
Prompt dower is payable on demand,
limitation begins to run on demand and
refusal.
The period of limitation for this purpose
is three years. If during the continuance
of marriage, the wife does not make
any demand, the limitation begins to
run only from the date of the dissolution
of marriage by death or divorce
DEFERRED DOWER
Deferred dower is payable on dissolution of
marriage by death or divorce. 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 widow may relinquish her dower at the
time of her husband’s funeral by the formal
recital.
vested 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 heirs can claim the money if she dies.
DOWER AMOUNT FIXED FOR DIFFERENT SCHOOL OF
THOUGHTS
Hanafi School–10 Dirhams
Maliki School – 3 Dirhams
Shafi School –No Fixed Amount
Shariya School – No Fixed Amount
For those Muslims who are poor and cannot pay even
10 Dirhams, they can teach their wife Quran instead of
paying Mahr.
Mehar-e-fatima Rs 500
WIFE’S RIGHT AND REMEDIES ON NON PAYMENT OF
DOWER
REFUSAL TO COHABIT
RIGHT TO DOWER AS
DEBT
RIGHT TO RETAIN
POSSESSION OF HER
DECEASED HUSBAND’S
PROPERTY
REFUSAL TO COHABIT
In cases of non-consummation of marriage wife has right
to refuse to cohabit with her husband till non payment of
prompt dower.
If wife is minor or insane guardians may refuse to send
her to husband’s place till non payment of prompt dower.
held in Nasra Begum vs. Riwaz Ali, AIR 1980 ALL
149.
The above right will be waived if she consummated her
marriage.
In that if she refuses husband can file suit of restitution of
conjugal rights in court of law and that can be secured
only on condition of payment of dower held in Rabia
Khatoon Vs. Mukhtar Ahmed, AIR 1996 ALL118
In cases of deferred dower she can not refuse to cohabit
was decided in Abdul Kadir Vs. Salima
RIGHT TO DOWER AS DEBT
Widow is entitled along with other creditors to
have it satisfied on death of husband, out of his
estate.
She can also file suit against heirs of husband.
Heirs will liable only to the extend and proportion
which inherited from deceased.
In cases husband is alive she can be recover it by
instituting suit against him.
Claim of dower by a widow is in nature of
secured debt priority over the claim of other heirs
held in Md. Tusabuddin Vs. Yasin Begum.
RIGHT TO RETAIN POSSESSION IN LIEU OF UNPAID
DOWER
No right to retention during
continuance of marriage
Wife or widow must have in Actual
Possession of property.
This right is not analogous to
mortgage.
This right is not a
charge in property
Its not a title on
property it is only
possessory lien
Widow’s possession
is liable to account
Women can sue heirs
Heritability and transferability
of right to retention still in
question
AMOUNT OF DOWER AND CONDITIONS OF PAYMENT
When the amount of dower is specified in the
marriage deed and the marriage has been
consummated or Husband dies, then the whole
amount of Mahr will be paid to the wife.
When the amount of dower is not specified and
the marriage has been consummated or Husband
dies, then the wife will receive proper dower.
When the marriage is irregular and has been
consummated, then husband party dies, then
the wife will receive specified or proper
dower, whichever is less.
When the marriage has been dissolved through
divorce and the marriage has not been
consummated, then the wife is entitled to receive:
Half the amount of specified dower.
A present of three articles of dresses
or of their value
If the wife has taken divorce, then she is not
entitled to receive any dower.
Sunni Law Shia Law
The minimum amount of specified There is no minimum amount of
dower is 10 dirhams specified dower.
There is no maximum amount of The maximum amount of proper
proper dower. dower is 500 dirhams.
There is no maximum amount of The maximum amount of specified
specified dower. dower is also 500 dirhams.
In case the marriage is dissolved
by death of husband, and the
payment of dower is not specified
or it has been agreed that no Payment of dower will not be due if
payment of dower will be made by the marriage has not been
the husband, in such case the consummated.
amount will be due whether the
marriage has been consummated
or not.
Any agreement which states that Such agreement will be valid if the
no dower shall be due is void. agreeing party are sane and adult.
In the absence of agreement, a
The whole amount of dower will be
reasonable part of dower will be
considered as prompt dower.
considered as prompt.
CAN THE DOWER BE INCREASED OR DECREASED?
In Kukkiya Begum v. Radha Kishan, the
Hon’ble Allahabad High Court held that if the
amount of dower is fixed before the marriage,
it may be increased after the marriage by
mutual consent. Therefore, a husband can
increase the amount of Dower after the
marriage if both husband and wife mutually
agree with such an increase.
Mahomed Sultan Begum v. Sarajuddin
Ahmad, it is said that an amount stipulated is
excessive or beyond the means of the
husband is no defence to the wife’s claim.
RIGHTS ON NON-PAYMENT OF DOWER
Rights on non-payment of dower
Right to dower as a debt
Right to retain possession in lieu
of unpaid dower
Right of retention not analogous to
a mortgage
Right to sue heirs
Whether a widow in possession of her
husband’s estate in lieu of her claim for dower
with the consent of the other heirs or
otherwise is entitled to priority as against his
other unsecured creditors?
In Hamira Bibi v. Zubaida Bibi, it was observed
that dower ranks as a debt and the wife is entitled
along with the other creditors to have it satisfied on
the death of the husband out of his estate. Her right,
however, is no greater than that of any other
unsecured creditor
Kapore chand [Link] Nissa Begum case Widow’s is
not entitled to priority as against her husband’s other
unsecured creditors
Right of retention whether heritable or
transferable
In the case of Hadi Ali v. Akbar Ali, 1898,
“One view is that the right to retention is a
personal right and is not a lien, therefore it
cannot be transferred through sale, gift or
otherwise and it cannot be transferred to
the widow’s heirs on her death.”
However, in Hussain v. Rahim
Khan,1951, Mysore High Court held
that “the right to retention is both heritable
and transferable as the right to retention
can be exercised by the heirs of the widow
on her death.”
Maina Bibi v. Chaudhary Vakil
Ahmed (1925) Allahabad High court
held the the widow has right to posses
the property but cannot convey the
share to others. opined that “All that
can now be said with certainty, is that
the right to hold possession is
heritable. Though it cannot be said with
certainty whether it is transferable, the
balance of authority in India is in favor
Mysore High Court Widow right of retention is
both heritable and transferable. Patna High
Court Held it not transferable. Kapore Chand v
Kidar Nissa Begum AIR 1953 SC held that right
is not transferable. “All that can now be said
with certainty, is that the right to hold
possession is heritable. Though it cannot be
said with certainty whether it is transferable,
the balance of authority in India is in favor of
the view that it is also transferable
But again 1987 Ghouse Yar Khan v. Fatima
Begum Andhra Pradesh High court held that
in Muslim Law a widow is entitled to
possession of the property for dower debt,
Right is alienable and heritable.
SUIT FOR DOWER AND LIMITATION
If the dower is not paid to the wife while
she is alive, then after her death, her heirs
can claim it. The period of limitation as per
the Limitation Act, 1963, for a suit to
recover prompt dower is three years from
the date when the dower is demanded, or
refused. In the case of deferred dower, the
period of limitation is 3 years, from the
date when the marriage is dissolved by
death or divorce.