Dower (mahr)

1. Meaning

Mulla defines dower (mahr) as a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. The Quran directs men to give women their dower as a free gift (Sura 4, verse 4). Dower is not a bride-price paid to the wife's family: it is the wife's own property, and she may deal with it as she likes. It is also distinct from dowry, which is given by the bride's family and is prohibited by the Dowry Prohibition Act, 1961.

Its purposes are usually stated as: to impose an obligation on the husband as a mark of respect for the wife, to give her financial security, and to act as a check on the husband's power of divorce.

2. Nature: consideration or obligation?

In Abdul Kadir v. Salima (1886, Allahabad High Court, Full Bench), Mahmood J. compared dower to the price in a contract of sale: marriage is a civil contract, dower is the consideration for the husband's right of cohabitation, and the wife's right to refuse herself until prompt dower is paid resembles a seller's lien on goods until the price is paid. He also held that once the marriage has been consummated, non-payment of dower is not a defence to the husband's suit for restitution of conjugal rights.

The comparison has limits, and the better answer notes them. A contract without consideration is void, but a marriage without any fixed dower is perfectly valid: the law then implies proper dower. For that reason many writers treat dower as an obligation imposed by law on the husband as a mark of respect for the wife, rather than consideration strictly so called. Both views agree on the consequence: dower is a debt owed to the wife.

3. Kinds of dower

Specified dower (mahr-ul-musamma) is the amount fixed by agreement, before, at or after the marriage. A guardian may fix it for a minor husband, and it binds the husband, not the guardian personally. The husband may increase it at any time; the wife may remit it in whole or part (hiba-e-mahr), but a remission must be her free act and courts have set aside remissions made by a minor or by a widow in mental distress at her husband's death.

• Minimum and maximum. No maximum: the husband may fix any sum, even one he cannot pay, and he is bound by it. Hanafi law fixes a minimum of ten dirhams and Maliki law three; Shia law has no minimum.
• Prompt dower (muajjal) is payable immediately on marriage, on demand. The wife may demand it at any time, and may refuse to live with the husband until it is paid.
• Deferred dower (muwajjal) is payable on dissolution of the marriage by death or divorce, or on a date or event fixed in the contract. Interest on it is not payable, but the wife may sue for it on dissolution.
• Where the contract is silent on prompt or deferred: in Shia law the whole is prompt; in Sunni law part is prompt and part deferred, the proportion being fixed by custom or by the court having regard to the status of the parties and the amount.

Proper dower (mahr-ul-misl) is due where no dower is specified, or the marriage was contracted on condition that no dower would be paid. It is fixed having regard to the dower settled on other female members of her father's family, such as her sisters and paternal aunts, and to her own age, beauty, character, education and social position and the husband's means. In Shia law proper dower may not exceed five hundred dirhams.

4. When dower is confirmed

The whole specified dower (or proper dower) becomes payable in full on:

• consummation of the marriage;
• valid retirement (khilwat-us-sahiha): the spouses being alone together in circumstances in which there is no legal, moral or physical bar to intercourse (Hanafi law; Shia law requires actual consummation); or
• the death of either spouse.

If the husband divorces the wife before consummation or valid retirement, she is entitled to half the specified dower; where no dower was specified, she gets only a present of three articles of dress (mutat). In an irregular marriage dower is due only if consummated, and then the lesser of specified and proper dower.

5. The widow's right of retention

A widow (or a divorced wife) whose dower is unpaid and who has lawfully obtained possession of her husband's property, with the consent of the husband or his heirs, is entitled to retain it until her dower is paid. The leading case is Maina Bibi v. Chaudhri Vakil Ahmad (Privy Council, 1925). The features of the right:

• possession must be obtained lawfully and peaceably; the right does not let her take possession by force;
• it is a right to retain, not a title: she cannot sell, mortgage or gift the property;
• she must account to the heirs for rents and profits, which go to reduce the debt;
• the heirs may recover possession on paying the dower, each to the extent of his share;
• the better view is that the right passes to her heirs along with the debt.

The right does not make her a secured creditor. In Kapore Chand v. Kadar Unnisa Begum, 1950 INSC 22, AIR 1950 SC 140, the widow in possession objected to the sale of the property in execution of other creditors' decrees. The Supreme Court held that her objection had no substance: the property should be sold and the proceeds distributed rateably among the decree-holders and the widow. Her dower ranks as an unsecured debt with the husband's other debts.

6. Remedies for unpaid dower

• Refusal of cohabitation. Before consummation, the wife may refuse to live with the husband until prompt dower is paid, and his suit for restitution will fail. After consummation, restitution may be decreed, but conditional on payment of prompt dower: Anis Begum v. Muhammad Istafa Wali Khan (Allahabad, 1933).
• Suit for recovery. Dower is a debt, recoverable by suit within three years. The old Limitation Act, 1908 had specific articles: prompt dower ran from demand and refusal (or dissolution of the marriage), deferred dower from dissolution by death or divorce (Articles 103 and 104). The Limitation Act, 1963 has no article naming dower, and the three-year residuary Article 113 is generally applied; check the current case law before quoting an article number.
• Against the estate. After the husband's death the widow recovers from his estate. The heirs are not personally liable; each is liable only to the extent of his share in the estate.
• Right of retention, as above.
• On divorce, section 3(1)(c) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 entitles a divorced woman to the amount of mahr agreed, and the magistrate may order its payment. Section 5 of the 1939 Act preserves dower rights on a judicial dissolution.

7. Problem

Salim married Farida fixing a dower of Rs 5 lakh, without saying whether it was prompt or deferred. Salim died a year later. Farida, who was living in Salim's house with his family's consent, refuses to leave it until her dower is paid. Salim's brothers sue for possession.

Issue. Whether Farida can retain the house, and how much dower she can claim.

Law. Death confirms the whole dower; where the contract is silent, Sunni law splits it into prompt and deferred, Shia law treats it as prompt, but on death both parts are due in any case. A widow in lawful possession may retain the property until paid (Maina Bibi), subject to accounting, and without priority over other creditors (Kapore Chand).

Application. Salim's death confirms the full Rs 5 lakh. Farida obtained possession lawfully, with the consent of the family. She may retain the house until the heirs pay, but must account for any rents, cannot sell it, and shares rateably with other creditors if the estate is sold.

Conclusion. The brothers' suit will fail unless they pay or deposit their share of the dower; Farida can also sue the estate for the balance within three years of Salim's death.

How this is examined

Dower is set in almost every paper, as an essay (“Define dower and explain its kinds” or “Discuss the nature of dower and the remedies of the wife”) or as a short note on prompt and deferred dower or the widow's right of retention. The order of the answer: definition, nature with Abdul Kadir, kinds, confirmation, retention with Maina Bibi and Kapore Chand, remedies with the Limitation Act articles. The problem above, or a variant where the widow is in possession of land, is the usual problem.