Tuesday, 31 May 2022

Dower

 Dower


Mahr originally meant “ gifts given to the parents of the wife” and dower which was known as ‘sadka’ meant, “ a gift to the wife herself”, it was given in case of regular marriages and was approved by Quran. However, in modern times, both the terms have become synonymous and the term ‘sadka’ has been subdued. 

Dower is one of the important components of marriage under Muslim Law. One of the salient features of Muslim Marriages is the right of the wife to receive, and the liability of the husband to make available to her, what is known as dower. In the case of Abdul Kadir v. Salima, Justice Mahmood held that dower is a sum of money or other property promised by the husband to be paid to the wife in the consideration of marriage and if the amount of money or other property is not fixed in the marriage ceremony then also the wife has right to demand dower.

Islam insists that dower should be paid to the wife herself. It is a tool to protect the wife against the arbitrary divorce powers that are given to the husbands under Muslim Law. It puts a restraint on this power of the husband as at the time of divorce, a husband has to pay the remaining amount of the dower immediately. According to Muslim jurists, anything which comes under the definition of ‘maal’ can be a subject matter of dower such as- a pair of shoes, husband’s servants’ services to the wife etc. 


The object of Dower are:

  1. to enforce an obligation on husband as a mark of respect towards his wife,

  2. to place a check on the misuse of power to give divorce by the husband,

  3. to provide for her livelihood on the dissolution of her marriage, so that she can lead her dignified life after the death of her husband or divorce.


Dower can be categorised into two broad categories:

  1. Specified: it is the amount which is fixed by the parties at the time or after the marriage. The husband is bound to pay the specified amount irrespective of how unreasonable it might be. 

    1. Prompt (Muajjal Mahr): it is the amount which is payable to the wife on demand, it may be demanded by the wife any time before or after the consummation. Under customary law, if prompt dower is not paid to the wife on demand, she has a right to refuse conjugal rights. If the marriage has not been consummated, she can successfully refuse the suit for conjugal rights but in cases where the marriage has been consummated, this refusal can only extend till the prompt dower has been paid. The wife has a right to recover her prompt dower even after the death of the husband from his estate ( Hamira Bibi V. Zumaida Bibi, 1916).

    2. Deferred (muwajjal Mahr): it is the amount which is payable to the wife only on dissolution of marriage by death or divorce.

  2. Unspecified: In this, the dower amount is not fixed by the parties at the time or after the marriage. However, even if the amount remain unspecified, the husband remains under an obligation to pay it. 


Dower is very essential for Muslim women, as under the Muslim Law even if there is an agreement made by the wife before marriage stating that she will revoke her right of dower and will not claim for dower in future or she agrees to marry without any dower, that agreement will be invalid according to law. This has been done to safeguard the right of the wife against the power of husband to give divorce and to prevent its misuse. It also helps in preventing polygamy. 


Section 2 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 talks about the iddat period i.e. when a marriage is dissolved by separation or death, a woman is prohibited to remarry for a certain period of time, this predetermined time is known as iddat. If a woman remarried during the iddat period, it leads to cancellation of the second marriage. 


During the iddat period, a muslim wife is not entitled to claim maintenance out of her husband’s estate as she is herself an heir to it. This is because the liability of maintaining the wife lies only on the husband and not on the other heirs. If she did not receive her dower nor did she renounces it, she would be entitled to receive it as a first charge from his estate.


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