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Thread: Dower

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    Dower

    1. Introduction:
    The dower is the financial gain which the wife is entitled to receive from her husband by the virtue of marriage. It is also called Mahr. It may be settled before marriage, or at the time of marriage or even after the marriage. The right of wife to dower becomes complete on the consummation of marriage. The amount of Dower may be increased after the marriage.
    2. DEFINITION OF DOWER
    • Fatawa-e-Almgiri
    It is an obligation imposed by the law on the husband, as mark of respect for the wife.
    • Mulla
    Dower is a sum of money or other property which the wife is entitled to receive from the hung and in consideration of the marriage.
    Mr justice Mahmood
    Dower, under the Muhammadan law, is some 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 or mentioned at the marriage ceremony, the law confers the right of dower upon the wife. Hedays says: The payment of dower is enjoined by the law merely as a token of respect for its object (the woman)
    3. IMPORTANNCE OF DOWER IN ISLAMIC LAWDower provides protection to the wife against the Arbitrary dower of the husband to pronounce Divorce. It is a mark of respect to the wife and a check on the power of husband to divorce.
    4. CAPACITY TO MAKE A CONTRACT FOR DOWERThe parties who are sound mind and have attained the age of puberty may enter into the contract of dower.
    5. PERSONS WHO ARE ENTITLED TO MAKE CONTRACTFollowing persons can make contract of dower.
    i. The parties of the marriage.
    ii. Their agents.
    iii. Guardian
    iv. Agent of guardian.
    6. SUBJECT OF DOWER

    i. Fixed sum of money.
    ii. Any thing in the category of property having value.
    iii. Property must be in existing.

    7. AMOUNT OF DOWERThere is no maximum limit of amount of the dower but the amount can not be less than prescribed by the law.
    The amount of mahr may either be fixed or not; if it is fixed, it cannot be sum less than the minimum laid down by the law.
    o Minimum dower
    i. Hanafi law: 10 derhams
    ii. Maliki law: 3 dirhams
    iii. Shafi’i law: No fixed minimum
    iv. Shiite law: No fixed minimum
    8. FIXATION OF DOWER:Dower may be fixed before the marriage at the time of Marriage and after the marriage.
    9. CONFIRMATION OF DOWER:The amount of Dower becomes confirm:
    i. By consummation of marriage of
    ii. By a failed retirement khalwat-e-sahira or
    iii. By the death of either party i.e. husband or wife
    10. KINDS OF DOWERDower may be either specified or unspecified.
    a Specified Dower (al-mahru’l-musamma)
    An amount settled by the parties at the time of marriage or after is called specified dower. It is also known as Mahr-I-Musmma. Usually the mahar is fixed at the time of marriage and the Qazi performing the ceremony enters the amount in the register; or else there may be a regular contract called Kabin-nama.
    In syed sabar Hussain v. Frazand Hussan , a Shiite father had made himself surety for the payment of the mahar of his minor son. Thereafter he died , and it was held that the estate of the deceased was liable for the payment of his son’s mahar.
    Where the amount has been specified, the husband will be compelled to pay the whole of it, however excessive it may seem to the court, having regard to the husband’s means.
    There are two kinds of specified dower in Islam:
    i. Prompt Dower (Mu’ajjal)
    It is derived from a root meaning ‘to hasten, to precede’. Prompt dower is payable immediately on demand. It may also be demanded before the consummation of the marriage the wife may refuse to live with him unless he pays the prompt dower.
    ii. Deferred Dower (Muw’ajjal)
    Deferred dower is payable on the dissolution of marriage either by death or by divorce.
    When dower is fixed, it is usual to split it into two equal parts and to stipulate that one shall be paid at once or on demand, and the other on the deth of the husband or divorce or the happening of some specified event. But a difficulty arises when it is not settled whether the dower is prompt of deferred.
    In Ithna Ashari Law, the presumptions that the whole of the dower is prompt, but in Hanafi law the position is different. The whole of the dower may be promptly awarded.

    b UNSPECIFIED DOWERWhere dower has not been settled at the time of the marriage or after is called unspecified dower.Unspecified dower may be classified into Proper Dower.
    • Proper Dower
    Proper dower is fixed with reference to the social status of the wife and her own personal qualification.
    • Determination of Proper Dower
    Following facts are taken into consideration while determining the amount of dower.
    i. Local custom of the society.
    ii. Personal skill and qualification of the wife.
    iii. Social position of the husband.
    iv. Social status of father of the wife.
    v. Amount of Dower fixed in case of wife’s sisters, paternal aunts and others nearest elatives.
    11. Increase or Decrease of DowerThe husband may at any time after marriage increase the dower. Likewise, the wife may remit the dower, wholly or partially and a Muslim girl who has attained puberty is competent to relinquish her mahr, although she may not have attained majority (18 years) within the meaning of the Indian Majority Act. The rmission of the mahr by a wife is called hibatu’l mahr or hiba-i-mahr.
    It has, however, been held in Karachi that in certain cases remission of dower cannot be upheld. (Shah bano vs. Iftikhar Muhammad, PLD 1956 (W.P), Kar.363)
    12. Enforcement of DowerThe claim of the wife or widow for the unpaid portion of mahr is an unsecured debt due to her from her husband or his estate, respectively. It ranks ratably with unsecured debts, and is an actionable claim. During her lifetime the wife can recove the debt herself from the estate of the wife, including the husband, become entitled to her dower.
    If a husband refuses to pay prompt dower, the guardian of a minor wife has the right to refuse to allow her to be sent to the husband’s house; and similarly, the wife may refuse the husband his conjugal rights, provided no consummation has taken place. The wife is under Islamic Law entitled to refuse herself to her husband until the prompt dower is paid; and if in such circumstances she happens to reside apart from him, the husband is bound to maintain her.
    This right of refusing herself is, however, lost on consummation. Thus if the husband files a suit for restitution of conjugal rights before cohabitation, non-payment of prompt dower is a complete defence; but after cohabitation, the proper course for the court is to pass a decree for restitution conditional on payment of prompt dower. This was laid down in the leading case of Anis Begum v. Muhammad Istafa Wali Khan.
    The non-payment of deferred doer by its very nature cannot confer any such right of refusal on the wife. The right to enforce payment arises only on death, divorce or the happening of a specified event.
    The dower ranks as a debt and the widow is entitled, along with the other creditors of her deceased husband, to have it satisfied out of his estate. Her right, however, is the tight of an unsecured creditor; she is not entitled to a charge on the husband’s property, unless there be an agreement. The Supreme Court of India had laid down (1) that the widow has no priority over other creditors, but (2) that mahr as a debt has priority over the other heirs, claims. And the heirs of the deceased are not personally liable to pay the dower; they are liable ratably to the extent of the share of the inheritance which comes to their hands.
    13. The widow’s Right of RetentionIslamic law gives to the widow, whose dower has remained unpaid, a very special right to enforce her demand. This is known as the widow’s right of retention. A widow lawfully in possession of her deceased husband’s estate is entitled to retain such possession until her dower debt is satisfied. Her right is not in the nature of a regular charge, mortgage or a lien; it is in essence a personal right as against heirs and creditors to enforce her right; and it is a right to retain, not to obtain, possession of her husband’s estate. Once she loses possession of her husband’s estate, she loses her special right and is in no better position than an unsecured creditor.
    The Supreme court of India had laid down that a Muslim widow in possession of her husband’s estate in lieu of her claims for dower, whether with the consent of the heirs or otherwise, is not entitled to priority as against his unsecured creditors.
    The right of retention does not confer on the widow any title to the property. Her rights are twofold; one, as heir of the deceased, and two, as widow entitled to her dower and, if necessary, to hold possession must, therefore, be sharply distinguished from her right as an heir. She has no right to alienate the property by salt, mortgage, gift or otherwise and if she attempts to do so, she loses her right of retention; but the widow may assign her right of mahr.
    In Maina Bibi v. Chaudhry Vakil Ahmad their Lordships expressed a doubt whether a widow could transfer the dower debt or the right to retain the estate until the mahr was paid. The Mysore High Court had decided that the right is both heritable and transferable, and not a lien, and as such, it is not transferable, Although there is a conflict of opinion, in view of Kapore Chand’s Case, the balance of authority seems to be in favour of the Patna view.
    14. REMISSION OF DOWERA wife may remit the dower or any part thereof in favour of the husband or his heirs.
    • Condition
    Remission must be made with free consent.
    15. CONCLUSION
    To conclude I can say that, the Dower is a sum of money or other property whch the wife is entitled to receive from her husband. It becomes complete on the consummation of the marriage. There is no, limit on the minimum amount of the dower. The amount of dower can be increased after the marriage.

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