Friday, 4 February 2022

Dower

 DOWER


INTRODUCTION: 

Mahr or dower is a sum, which is payable by the husband to the wife on marriage, either by agreement between the parties or by operation of law. In case Abdul Kadir v. Salima [I.L.R. (1886) 8 All. 149 (157)] justice Mahmood defines 'Dower under the Mohammedan Law, is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage and even where no dower is expressly fixed, the law confers the right of dower upon the wife as necessary effect of marriage. According to Ameer Ali “Dower is a consideration which belongs absolutely to the wife”. According to Hedaya, “the payment of mahr is enjoined by the law, merely as a token of respect for its object(the woman), wherefore the mention of it is not absolutely essential to the validity of a marriage, and for the same reason, a marriage is also valid although the man were to engage in the contract on the special condition that there should be no mahr”. 

OBJECT OF DOWER:

  • To impose an obligation on the husband to give something as a mark of respect of the wife.

  • To place a check on the capricious use (unrestricted right) of divorce on the part of husband

  • To provide a wife help or subsistence after the dissolution of her marriage, so that she may not be come helpless after the death of the husband or termination of marriage by divorce.

CLASSIFICATION OF DOWER:

The basis of classification of dower is–

  1. Whether it has been fixed by parties or is fixed by operation of law, and

  2. Whether the dower may be claimed by wife any time or only upon the dissolution of marriage.

SPECIFIED DOWER:

  • The sum of money or any property which is fixed at the time of the marriage, is called the specified dower.

  • It may be fixed by the parties either before the marriage or at the time of marriage or even after the completion of the marriage. 

  • A dower may be settled either orally or may be specified in a written agreement called (Mahr-nama).

  • If any marriage of a minor or lunatic is contracted by a guardian, such guardian can fix the amount of dower and it is binding on the minor and on attaining the age of puberty he cannot take plea that he was not a party to it.

  • Dower may be fixed even after the marriage of such minor or lunatic, provided that at the time of settlement, the boy is still minor or lunatic.

  • Any kind of property, movable or immovable, tangible or intangible, and of any value may be settled, but that money or property should be in existence. 

  • The minimum amount of the specified dower under Sunni Law is 10 Dirhams (between 3 and 4 Rupees) while in Shia Law no minimum amount of specified. Those Muslims who are not in position to pay even 10 Dirhams, the prophet has directed them to teach Quran to the wife in lieu of dower. Now no limit to the maximum, minimum has become obsolete. 

  • The amount of the dower may be increased subsequently by the husband and the wife is entitled to claim this additional amount, but the husband cannot reduce the amount. However, the wife can herself reduce or re-mither claim to the whole or a part of the specified dower. This is called remission of dower. 

  • Specified dower is a gain sub-divided into- (i)Prompt dower(ii)Deferred dower.

PROMPT DOWER:

  • Prompt dower is payable immediately after marriage on demand, unless delay is stipulated for or agreed.

  • The wife may refuse to cohabit with her husband.

  • If the wife is minor, her guardian has a right to not to send her to her husband's house till the payment of prompt dower. In such conditions, the husband is bound to maintain the wife, although she is living apart from him. 

  • A husband becomes entitled to enforce the conjugal rights only after the payment of prompt dower unless the marriage is already consummated. 

  • If any delay is caused in the payment, the wife is entitled to get a simple interest on that amount. 

  • The period of limitation for the suit 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:

  • It is to be paid on dissolution of marriage either by death or divorce or upon the happening of a specified event, if so agreed.

  • If the specified dower has been fixed as deferred, the wife cannot claim it before the termination of marriage. 

  • If the marriage is dissolved by the death of wife, her legal heirs are entitled to claim the deferred dower. The widow may relinquish her dower at the time of her husband's funeral. 

  • If the amount of dower does not show, what portion is prompt and what is deferred, under Shia law the whole of the dower is regarded as prompt while in Sunni law half of the totalis regarded as prompt and half as deferred.

REMISSION OF DOWER:

Just after the completion of a marriage the right to mahr is immediately vested in the wife. After getting this right she may or may not enforce it against her husband.

She may relinquish or remit her right to mahr in favour of her husband. 

She may do so either out of natural love or to gain affection from her husband. This act is termed as remission of mehr by the wife.

The wife may remit the whole or only a part of her specified mehr. 

After a lawful remission, the husband is under no legal obligation to pay the remitted part of mehr to the wife. 

It may be noted that if before the marriage a woman agrees that after marriage she would not demand any mahr or she would not exercise her right to mehr, the agreement is void because mehr is inseparable from a Muslim marriage. But, after the marriage, the right to mehr‟ comes in her hands and becomes her own property. She is then free to deal with this property as she likes. 

Therefore, she may surrender or make a gift of the whole or a part of the mehr in favour of her husband. However, remission of mehr by the wife must be lawful.


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