The Concept of Dower Under Muslim Law

The Concept of Dower

The concept of dower (mahr) in Muslim law is unique. It refers to a sum of money or property that the husband promises to give the wife in consideration of the marriage. Even when no dower is explicitly mentioned at the marriage, the wife is still entitled to it under the law. The absence of a specified dower does not invalidate the marriage.

As Ameer Ali explains, in India, dower often acts as a penal provision to ensure the husband fulfills the obligations of the marriage contract. A Muslim marriage is fundamentally a civil contract, and dower is a legal consequence of it. However, the term ‘consideration’ in this context differs from its use in the Indian Contract Act.

Dower is considered a nuptial gift or marriage settlement for the wife, symbolizing respect for her rather than a bride price or dowry. The common misconception that dower is only payable on divorce is incorrect, as demonstrated in the Mohd. Ahmad Khan v. Shah Bano Begum[1].

Dower is a significant right for a Muslim wife, potentially serving as a deterrent against the husband’s absolute power to divorce. It is a vital part of the marriage and can be set before, during, or after the wedding. If not specified by the parties, it is implied by law and may be determined by courts.

In cases involving minor sons, a father can contract dower on behalf of his son, and under Hanafi law, this arrangement binds the son without making the father personally liable for the mahr.

There is no upper limit to the amount of dower in Muslim law, allowing couples to agree on any amount, even beyond the husband’s means. However, Hanafi law prescribes a minimum dower of 10 dirhams, while Maliki law sets it at 3 dirhams, and Shia law does not impose a minimum. Dower is commonly expressed in monetary terms but may also consist of other forms of property. While no formal writing is required, a dower deed (mahr nama) is often prepared.

Types of Dower

1. Specified and Proper Dower

This classification arises from how the dower amount is determined.

Specified dower (mahr-i-musamma) refers to the amount mutually agreed upon by the parties, either before, during, or after the marriage.

In cases of specified dower, the court is bound to decree the entire amount, even if it exceeds the husband’s capacity to pay, or if paying it would deplete the husband’s estate. The husband can increase the amount of dower after the marriage.

Proper (unspecified) dower (mahr-i-misi), also called customary dower, is determined by the law when no specific dower is mentioned during the marriage ceremony. In such cases, the wife can claim a reasonable dower, even if the marriage contract expressly states she would not claim any dower. A proper dower is typically determined by comparing it to the dower given to other female members of the wife’s paternal family, while the husband’s financial situation is of less relevance. The Hedaya emphasizes that the wife’s age, beauty, fortune, understanding, and virtue must be considered when setting the proper dower. In Shia law, a proper dower should not exceed 500 dirhams, and in the event of a spouse’s death before consummation, the dower is not payable. For Shia Muslims, it is a point of honor to limit dower to the amount fixed by the Prophet for his daughter, Fatima.

2. Prompt and Deferred Dower

This distinction pertains to the timing of dower payment.

Prompt dower (muajjal) is payable immediately upon marriage and must be paid on demand unless delayed by mutual agreement. Prompt dower may be claimed before or after consummation, but the husband cannot enforce conjugal rights until it is paid, unless the marriage is already consummated. However, after consummation, non-payment of dower cannot serve as a defense against the husband’s claim for restitution of conjugal rights, as was held in Abdul Kadir v. Salima[2]. In this case, the court observed that marriage creates reciprocal rights and obligations between both spouses, and the condition that dower must be paid before marital rights vest does not align with the spirit of marriage law.

Deferred dower (muwajjal), is payable either upon the dissolution of marriage by death or divorce, unless an earlier payment is agreed upon. Though the wife is not entitled to demand deferred dower before the dissolution of marriage, the husband may choose to pay it earlier.

The wife’s interest in deferred dower is vested, meaning her heirs can claim it after her death.

In the absence of a specific proportion of prompt and deferred dower in the marriage agreement, the entire dower is considered prompt under Shia law.

Under Hanafi law, however, the amount is usually divided equally between prompt and deferred dower unless customary practice dictates otherwise.

Upon the dissolution of a consummated marriage, the wife is entitled to the entire unpaid dower, both prompt and deferred. If the marriage has not been consummated, she is entitled to half the specified dower. The same rule applies in muta marriages. Importantly, under the Dissolution of Muslim Marriages Act, 1939, a woman’s right to dower remains intact even if she obtains a dissolution of the marriage herself.

Wife’s Remedies for Non-Payment of Dower

If the prompt dower remains unpaid, the wife has the right to refuse cohabitation or intercourse with her husband. In the case of a minor or mentally incapacitated wife, her guardian may also refuse to send her to her husband’s home until the prompt dower is paid.

If either the prompt or deferred dower is not paid, the wife (or her heirs) may sue for its recovery. In the event of deferred dower, the wife cannot refuse cohabitation unless it is expressly stipulated in the marriage contract, as established in Abdul Kadir v. Salima[3].

Mode of Enforcement

1. Dower as a Debt

Dower is treated as an unsecured debt, and the widow can claim it from her husband’s estate before any legacies are paid or the inheritance is distributed. As a claimable debt, it can be assigned or even pursued by the widow’s creditors. Once confirmed, a dower debt becomes vested in the wife, and it cannot be forfeited even in cases of her gross misconduct, such as adultery or apostasy, as observed in Kapoor Chand v. Kadar Unnisa[4]. The case laid out that the widow’s dower debt does not take priority over other creditors but it does take priority over the heirs’ claims. Heirs are not personally liable for the dower debt, which must be recovered from the husband’s estate in proportion to the heirs’ shares.

2. Remission or Relinquishment of Dower

While a wife cannot contract out of receiving dower at the time of marriage, she can remit all or part of it in favor of her husband after marriage, provided she has attained puberty at the time of remission.

3. Right of Retention

A Muslim widow has the right to retain possession of her deceased husband’s property if her dower has not been paid. This right is not available during the subsistence of the marriage unless the wife has a lien or possession rights over the husband’s property through a contract. To enforce this right, the widow must lawfully acquire possession of the property with the consent of the husband or his heirs.

As held in Hamira Bibi v. Zubidabibi[5], the Privy Council clarified that the right of retention is not akin to a lien or mortgage, and the widow does not acquire title to the property. She is merely entitled to retain it until the dower is paid, and she cannot alienate the property. During her possession, she must account for the profits and income derived from it. It remains unclear whether this right is heritable or transferable, with legal opinions divided on the matter.

Distinction between Sunni and Shia Law Relating to Dower

S.No.	Sunni Law	Shia Law
1.	Minimum amount at 10 dirhams for Specified dower.	No minimum dower has been prescribed.
2.	No limit to Proper dower.	The Proper dower should not exceed 500 dirhams.
3.	If marriage is dissolved by death and dower has not been specified, proper dower would be due whether the marriage was consummated or not.	If either party dies before the consummation of marriage, dower is not payable.
4.	In the absence of an agreement the whole may be awarded as Prompt or	In the absence of agreement, a reasonable part of dower will be considered as prompt.

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[1] AIR 1985 SC 945.

[2] (1886) ILR 8 ALL 149

[3] Supra at 2.

[4] (1950) SCR 747.

[5] (1916) 43 I.A. 294.