Table of Contents
What is Mahr / Dower?
Muslim law treats marriage not as a sacrament but as civil contract.The sum of money which the husband pays to the wife as consideration on marriage is referred as Dower. It is executed either by agreement or operation of law (Abdul Kadir v. Salima)[i]. Various jurists have defined Dower as a consideration.so, the ambiguity arises as to the term ‘consideration’ mentioned here is similar to that in contract or it is different.
Generally without consideration contract becomes void but absence of dower does not render the marriage void. It only amounts to irregularity, which can be rectified later. However, the law requires dower to be paid to the wife on marriage.
What is the difference between the terms ‘ Dower’ and ‘Dowry’?
The Muslim law allows ‘ Dower’ or ‘mahr’ since it ensures women’s financial security. However, dowry which is generally asked by the groom’s family as a gift to marriage is a social evil. Indian law, prohibits dowry under section 2 of Dowry prohibition Act 1961[ii].
What are the objects of Dower?
The following are the objects of dower:
-The main object of dower is to provide a check upon the capricious use on the part of the husband to divorce the wife or terminate the marriage at will. It affords protection of the wife against the arbitrary exercise of the power of divorce by the husband. The Muslim husband has to pay the entire dower to the wife if he wants to divorce his wife. Usually the dower amount is always higher to the capacity of the bridegroom so, before giving divorce the bridegroom thinks over his financial obligation in paying the dower amount.
-Property or money which a woman receives as Mahr is her exclusive domain, without any interference even from her parents or in-laws. Not in many cases a woman inherits from different sources and all are not of having property. The exclusive ownership of dower gives her confidence in the sense that in any eventuality, such as death of husband or separation, she could stand on her own feet and not subjected to any dependence. The dower amount helps the Muslim woman after the dissolution of marriage.
-Mahr is regarded as a mark of respect for the wife, which a friend or partner pays to another in a civilized society.
-The dower is a unique feature found in Muslim Law. The dower property of a Muslim woman cannot be touched by any one. It is intact. In society, the Muslim woman gets respect according to her own (dower) property as she is not dependent on any one.
What are the kinds of Dower?
In this kind, amount of dower is specified in the marriage contract. The husband can settle any amount of dower. Hanafi law provides that the amount settled should not be less than ten dirhams and as per Maliki law, it should not be less than 3 dirhams.
It is further classified into two:
Prompt dower: it is payable immediately after marriage on demand.
Deferred dower: it is paid after the dissolution of marriage either by divorce or death.
If a marriage is completed with the condition that the wife shouldn’t claim any dower, then the wife is entitled to proper dower. For deciding the quantum of proper dower, the amount of dower settled upon by other female members of the father’s family is taken into consideration
Every woman under Muslim laws has the right to claim a dower on the commission of marriage. For instance, if the marriage has not been consummated, then the wife has right to refuse to cohabit with her husband as long as the prompt dower is not paid.
Is the amount payable by the Husband to the wife on Divorce Mahr?
In Anjum Hasan Siddiqui v. Salma B[iii], the Apex Court has held that the Mahr is not the amount payable by the husband to the wife on divorce. The fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable ‘on divorce’. Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce which is what is meant by the expression ‘on divorce’, which occurs in Section 127(3) of CrPC[iv]. If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolve the marriage. Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mehr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce. A man may marry a woman for love, looks, learning or nothing to all. And, he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore a sum payable to the wife out of respect cannot be a sum payable ‘on divorce’.
The dower acts as a financial security to woman. It makes her financially stable even after the dissolution of marriage. It also places check on the capricious use of divorce by the husbands
[i] (1886) ILR All. 149
[ii] Section 2 of Dowry prohibition Act 1961.
[iii] [AIR 1992 All. 322]
[iv] Section 127(3) of CrPC, 1973