DOWER UNDER SHIA AND SUNNI LAW
It is a secular nation, India. The definition of “secular” implies that the state has no official religion. It gives each faith equal treatment. The freedom of conscience and the right to publicly practice and spread one’s religion are guaranteed under the Indian Constitution. As a result, several personal laws regarding religion are developed. Muslim personal law usually governs all Muslims. Different legal clauses pertaining to marriage, dower, divorce, wills, support, etc. are included in the Muslim personal law.
As was already said, Muslim personal law governs the idea of dower for all Muslims. Mahr is the term for dower in Islamic law. Mahr is a monetary gift that the husband must give to the wife upon their union. We shall learn about the Muslim legal concept of mahr through this article.
When the concept of marriage as we know it now was not created in ancient pre-Islamic Arabia, other types of sex interactions between men and women were popular. Some of them were transient and not much better than prostitution. After plundering their spouses, men frequently turned them, but they were completely powerless and without any means. Due to the absence of a formal legal structure, the traditional custom of allocating fixed sums for the wife’s support in the event that she was put out was frequently ignored. A method known as a SHIGHAR marriage was popular at the time, when a man would wed his sister or daughter to another man in exchange for the latter wedding his sister or daughter to the first. So, neither of the spouses was eligible for a dower. False claims of immoral behavior were regularly made in an effort to deny the wife of her dower.
The Beena marriage was an additional type of marriage. In this type of marriage, the woman was known as Sadiqa and received a gift upon marriage known as Sadaq. The husband visited the wife but did not bring her home. Sadaq is thought to have been the earliest type of dower in Islam. Mahr was first mentioned in the Baal nuptials. In the Baal form of marriage, mahr was a type of gift or recompense paid to the wife’s parents. Typically, the wife’s parents or legal guardians owned the mahr. However, the traditional marital arrangement was gradually abandoned over time. Marriage received a new form of nikah with the spread of Islam. According to this type of marriage, if a man divorces his wife, he must do it charitably in order to prevent taking back any property that has previously been provided to the wife.
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 be either prompt or deferred.
In Abdul Kadir vs Salima (1886), the dower under the Muslim Law is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of marriage, and even where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the wife.
NATURE OF DOWER
Dower in the present form was introduced by the Prophet Mohammad and made obligatory by him in the case of every marriage.
The following points may be noted with respect to the nature of dower:
(1)- Analogy is often drawn between a contract for dower and one for sale. The wife is considered to be property and the dower her price.
(2)- It is regarded as a consideration for conjugal for intercourse.
(3)- Dower is an essential incident and fundamental feature of Muslim marriage with the result that even if no dower is fixed the wife is entitled to some dower from the husband.
IMPORTANCE OF DOWER
(1)- Mahr is so necessary to marriage that if it were not mentioned at the time of marriage, or in the contract, the law will presume it by virtue of the contract itself.
(2)- The reason for its importance lies in the protection that it imparts to the wife against the arbitrary exercise of power of divorce the husband. In Muslim Law, the husband can divorce his wife at his whim and so the object of dower is to check upon the capricious exercise of the husband of his power to terminate the marriage at his will.
OBJECT OF DOWER
(1)- To impose an obligation on the husband as a mark of respect to his wife.
(2)- To place a check on the capricious use of divorce on the part of the husband; or
(3)- To provide for her subsistence after the dissolution of her marriage, so that she may not become helpless after the death of her husband or termination of marriage by divorce.
DISTINCTION BETWEEN DOWER AND MAHR
Mahr literally means “dower,” however there are some key distinctions between the two words. Mahr is a legal principle in Islam that protects women’s financial security. Dowry, however, is a societal vice. The bride’s family is typically requested for dower by the bridegroom’s relatives as a present for the union. The Dowry Prohibition Act of 1961’s Section 2 defines dowry under Indian law. Therefore, it should be highlighted that dowry and mahr are two distinct ideas. One promotes security, while the other is bad for society.
FIXATION OF DOWER
Mahr or Dower should be fixed in terms of gold or silver so that the rights of women are fully protected in the event of a fall in the values of currencies.
CLASSIFICATION OF DOWER
The dower may be classified into:
(1)- Specified dower (Mahr-i-Musamma)- Specified dower is again divided into:
(i) Prompt Dower
(ii) Deferred Dower
(2)- Customary dower (Proper) (Mahr-i-Misl)
(1)- If the amount of dower is stated in the marriage contract, it is called specified dower.
(2)- Dower may be settled by the parties to the marriage either before the marriage or at the time of marriage or even after the marriage.
(3)- If a marriage of a minor or lunatic boy is contracted by a guardian, such guardian can fix the amount of dower. When a boy reaches puberty, he cannot claim he was not a party to the dower the guardian determined since it is legally obligatory on him.
It is payable immediately after marriage on demand.
It is payable on the dissolution of marriage either by death or divorce.
The woman is entitled to Proper dower when the amount of dower is not specified in the marriage contract or even if the marriage has been formed with the caveat that she should not claim any dower. Taking into account the amount of dower awarded to other female members of the father’s family, such as the father’s sister, will help calculate the appropriate amount.
DETERMINATION OF PROPER DOWER
The following considerations are used to control the appropriate dower: –
(a)- Personal qualification of wife
(b)- Social position of father’s family.
(3)- Dower given to her female paternal relations.
(4)- Economic condition of her husband.
(4)- Circumstance of time.
WIFE’S RIGHT AND REMEDIES ON NON-PAYMENT OF DOWER
Muslim Law confers upon a wife (or widow) the following three rights to compel payment of dower.
(1)- Refusal to cohabit
(2)- Right to dower as debt
(3)- Right to retain her deceased husband’s property
(1)-Refusal to cohabit
The wife has the right to decline to live with her husband if the marriage has not yet been consummated as long as the timely dower is not paid. When a woman is a juvenile or crazy, her guardian has the power to refuse to bring her to her husband’s home until prompt dower payment has been made. The spouse is required to support her throughout this time spent at her guardian’s home.
The woman forfeits her full right to demand timely dower payment, nevertheless, if consummation occurs after marriage. This is so that the husband may bring a claim for the restoration of the marriage. Only a decree conditional payment on dower is due to the wife if she continues to refuse to live with her husband. In the case of Rabia Khatoon v. Mukhtar Ahmed, (1966), it was decided that if the lawsuit is filed after sexual activity has occurred with the plaintiff’s free permission, the suitable order to be issued is a decree for restitution, subject to quick payment of dower.
The payment of dower is a contingent event in deferred dower. As a result, the question of whether or not the woman can deny the husband conjugal rights arises. There have been several viewpoints on this. She has the right to refuse to cohabit if a postponed dower is not paid, according to renowned jurist Abu Yusuf. Shia law expert and well-known jurist Imam Mahmood believes that in circumstances of delayed dower, a wife cannot refuse to cohabit.
(2)- Right to dower as a debt
The dower was seen to be an obligation by the lordships of Privy Council, and it was decided that the widow and other creditors might have it paid off from the husband’s assets upon his passing. If the husband is still living, the woman may file a lawsuit against him to recoup the ) against the husband’s heirs to assert her claim for the debt. The degree and proportion to which the heirs inherit the husband’s property, however, determines their liability.
In the 1937 case of Syed David Hussain v. Farzand Hussain, it was decided that a Shia Muslim might be held liable for the young son’s failure to pay the dower. Following his passing, his estate was held accountable for paying his son’s mahr, and each successor was deemed liable for a portion of the wife’s claim in accordance with his share of the deceased’s inheritance.
(3)- Right to retain possession in lieu of unpaid dower
Dower is considered a debt, and the wife has the right—along with the other creditors—to have it paid off from her husband’s estate upon his passing. However, she has no more rights than any other unsecured creditor, with the exception that if she legitimately assumes ownership of all or a portion of his estate, she is allowed to keep that position until her claim is paid in full using the rents and other benefits that flow from it. She has no ownership interest in the property beyond the right of retention. She is unable to alienate the property as a result.
(i)- No right of retention during continuance of marriage
The right does not become valid before her spouse dies, or, if the marriage is dissolved by divorce, it becomes valid immediately after the divorce.. Thus, if a creditor of the husband obtains a decree against him and the husband’s property is sold in execution of such decree in his lifetime, the wife has no right of retention against a purchaser in execution of the decree and she must deliver possession to him.
(ii)- Actual Possession
When a marriage is ended (by divorce or death), the right of retention refers to the ability to retain custody of the husband’s assets up until the dower obligation is paid.. It is, therefore, necessary for the exercise of this right that the wife or widow must be in actual possession or the property at the time of the termination of marriage If she was not in actual possession of the property at this time, she cannot afterwards acquire possession of the husband’s property in lieu of this right. The right of retention refers to the ability to keep possession of whatever assets she obtained throughout the course of the marriage. Therefore, the ability to acquire possession is not a right. The wife must also have acquired ownership of the property legally, without the use of force or fraud.
(iii) The right of retention not analogous to a mortgage
Contrary to what a typical mortgagee would have, the woman has no stake in the property. There is no true analogy between her right of retention and mortgage. In the case of a mortgage, the mortgagee retains possession under an agreement between him and the mortgagor, while her right or retention does not arise from any such agreement but is conferred on her by law.
(iv) Not a charge
Because there is no charge on the property as a result of the right, she is not a secured creditor. If her late husband had mortgaged the property, which she is holding in accordance with her right of retention and holding in place of dower, the mortgagee may sell the property free of her right and may evict her from possession.
(v)- Widow in possession liable to account
When a widow is in charge of her husband’s estate, she is required to account to her husband’s other heirs for the rents and profits she receives from the estate, albeit she is also allowed to charge interest on the dower she is owed and deduct it from the net profits.
(vi)- Can sue heirs
The widow is not disentitled to sue her husband’s heirs for the recovery of her dower out of his assets on the ground that she is retaining the property.
DIFFERENCE BETWEEN SUNNI AND SHIA RELATING TO DOWER
- No minimum limit is prescribed for the specified dower.
- Proper dower cannot exceed 500 Dirhams.
- Fixing of dower exceeding 500 Dirhams is considered abominable though not illegal.
- In such a case no dower would be due if the marriage was not consummated.
- A sane, mature wife’s agreement is valid.
- The promptness of the entire dower is assumed.
- A minimum limit of 10 Dirhams is prescribed for the specified dower.
- There is no limit to proper dower.
- There is no maximum limit for a specified dower.
- If the marriage is dissolved by death and dower has not been specified, or it is agreed that no dower shall be payable, proper dower would be due whether the marriage was consummated or not.
- An agreement that no dower shall be is void.
- In the absence of an agreement only a reasonable part of the dower is presumed to be prompt.
The Kharche-i-pandan literally means betel box expenses and is a personal allowance to the wife customary among Muslim families of rank specially in upper India. Furthermore, it is known as a mewakhori allowance (eating fruits). When parties are minors, their parents enter into a contract on their behalf, and the wife is then allowed to enforce it as the beneficiary. Furthermore, depending on the partners’ positions and financial capabilities, this is determined before or after marriage. Muslim jurists have compared Kharche-i-pandan to ‘pin money’ found in English Law. But there is some difference in the two. As long as the woman resides with her husband and has complete discretion over her spending, she is entitled to the Kharche-i-pandan.The ‘pin money, however, is spent during coverture with the advice and at the instance of the husband.
Islamic law’s notion of mahr is advantageous to women. In order to prevent her from being left defenseless in the event of her husband’s passing or the dissolution of their marriage, it provides financial protection. Additionally, it prevents the spouse from arbitrarily using divorce as a weapon. Additionally, it is said that the mahr is a crucial Muslim marital tradition.
Author: Animesh Nagvanshi,
ICFAI, Dehradun and 3rd Year/ Student