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Dower
Dower, known as Mahr in Muslim law, is a sum of money or property promised by the husband to the wife as consideration for the marriage. Even if not expressly fixed, the law confers the right of dower upon the wife. It is seen as a nuptial gift or marriage settlement, not a bride price or dowry.
Dower is an invaluable right for the wife and serves as a deterrent to arbitrary divorce. It can be fixed before, at, or after marriage, and if not fixed, is implied in every marriage, often determined by courts.
While there is no maximum limit, Hanafi law sets a minimum of 10 dirhams, and Malikis at 3 dirhams; Shia law does not specify a minimum. Dower can be in the form of money or property, and no writing is required, though a dower-deed is common.
Kinds of Dower
(a) Specified and Proper Dower
Specified dower, determined by mutual agreement, can be settled before, during, or after marriage. Proper dower, on the other hand, arises by law when no amount is specified, ensuring the wife receives a reasonable sum considering her status and circumstances.
For Shia Muslims, proper dower should not exceed 500 dirhams, following the precedent set by the Prophet Muhammad for his daughter, Fatima. In the case of specified dower, the court must decree the entire amount, even if the husband lacks the means to pay it. The husband can increase the dower amount after marriage.
(b) Prompt and Deferred Dower
Prompt dower, payable immediately upon marriage, must be paid on demand and can be realized before or after consummation. Non-payment of prompt dower after consummation cannot be used by the wife as a defense against a suit for restitution of conjugal rights.
Deferred dower is payable upon dissolution of the marriage, either by death or divorce, unless otherwise agreed upon. The wife's interest in deferred dower is vested, and her heirs can claim it. In the absence of a specific agreement, Shia law regards the entire dower as prompt, while Hanafi law may allocate part as prompt and part as deferred, based on custom or usage.
Upon dissolution of a consummated marriage, the wife is entitled to the full unpaid dower, while in an unconsummated marriage, she receives only half. This applies to muta marriages as well. The Dissolution of Muslim Marriages Act, 1939, does not affect the wife's rights to dower.
Wife's rights and remedies if dower is not paid
If the prompt dower remains unpaid, the wife has the right to refuse to live with the husband or engage in sexual intercourse. If the wife is a minor or mentally incompetent, her guardian can withhold her from going to her husband's house until the prompt dower is paid.
Both prompt and deferred dower can be sued for by the wife during her lifetime, and her heirs can do so after her death. However, if the dower is deferred and payable at a future date or upon the occurrence of an event, and there is no contrary contract, the wife cannot exercise the option of denial.
Mode of Enforcement of Dower (Nature of Wife’s/ Widow's Right to Dower)
(i) Dower: A Debt
Dower is considered an ordinary unsecured debt, and upon the death of her husband, the widow is entitled to have it satisfied from his estate before other debts or inheritances are distributed. It is not merely a right to sue but an actionable claim that can be assigned and executed upon by the widow's creditors like any other debt.
However, dower is not given preferential treatment and does not hold priority over other creditors' claims. Once dower is confirmed, typically upon valid retirement or the death of either party, it becomes vested in the widow, and its forfeiture cannot occur, even in cases of gross misconduct such as adultery or apostasy.
In Kapoor Chand v Kadarussia (1950) SCR 747, it was established that the widow cannot claim priority over other creditors for her dower-debt, but her claim does hold precedence over the claims of heirs. Although heirs are not personally liable for the dower-debt, the amount can be collected proportionately from their shares in the husband’s estate.
(ii) Remission or Relinquishment of Dower:
While the wife cannot waive her right to receive dower at the time of marriage, she can choose to remit all or part of the dower after marriage, provided she has reached puberty at the time of relinquishment.
(iii) Right of Retention:
The Muslim wife possesses the right to retain her husband's property if her dower remains unpaid. However, this right is only enforceable if she has lawfully acquired possession with the husband's or heirs' consent. It doesn't grant her ownership but allows her to hold the property until the dower is paid.
The nature of this right's heritability and transferability remains uncertain, with differing legal interpretations. Some argue it's a personal right, while others consider it inheritable and transferable. Notably, legal precedent suggests it can be inherited by the widow's heirs.
Distinction between Sunni and Shia Law Relating to Dower
Sunni Law:
- Sunni Muslims set the minimum amount at 10 dirhams for specified dower.
- There is no limit to proper dower under Sunni law.
- In case of marriage dissolution by death without specified dower, proper dower is due, regardless of consummation.
Shia Law:
- No minimum dower is prescribed in Shia law.
- Proper dower in Shia law should not exceed 500 dirhams.
- Dower is not payable if either party dies before marriage consummation.
- In the absence of specific agreement, the entire dower is regarded as prompt in Shia law.
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