Dower under Muslim Personal Law

Dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage. The custom as to dower originated in ancient times, where the husband made payment to their wives as means of support in their old age, or when turned out by them. In Muslim law of marriage, Mehr is essential. It may be money or immoveable property

CLASSIFICATION OF DOWER:

Dower may be classified into two kinds as under:-

1. Specified Dower:

If the dower amount is stated in the marriage contract, the dower is called specified dower. Dower is settled by the parties to the marriage either before the marriage or at the time of marriage or even after the marriage. The amount of specified dower stipulated in the contract may be:

a. Minimum:

The specified dower amount should not be less than minimum, i.e., 10 Darham.

b. Fictitious:

The dower amount is fixed as per the position of husband and that whether he will be able to pay or not. It is always a fantastic amount.

c. Excessive Dower:

Both Shia and Sunni law of schools regarded excessive dower as improper, though not illegal. The only difference between fictitious and excessive dower is that the object of former is to guard against capricious exercise of divorce and not to realize the sum actually, whereas in the latter case the parties are serious about its realization.

d. Proper Dower:

It is the dower of the equals of the wife. It is at the discretion of the court to which amount it considers proper for the

woman.

Kinds of Specified Dower:

Specified Dower can further be divided into following:

a. Prompt Dower:

The Arabic term equivalent of prompt dower is Mehar-e-Muajjil. It is payable on demand. A wife can refuse to enter into conjugal domicile of husband until the payment of the prompt dower.

b. Deferred Dower:

The Arabic term equivalent of deferred dower is Mehar-e-Muwajjal. It is payable on dissolution of marriage either by death or divorce. The wife is not entitled to demand payment of deferred dower. Incase of husband’s death or divorce, the deferred dower become payable and the wife may sue for its recovery. If wife dies, her heirs may claim the mehar. It is a kind of penalism, with the object to compel husband to fulfill marriage contract in its entirety. However, the widow may relinquish her dower at the time of her husband’s funeral. In Shia law, the whole amount will be presumed as prompt dower. Whereas, in Sunni law, the rule is partly prompt and partly deferred.

2. Customary Dower:

When the amount of dower is not fixed in the marriage contract or even if the marriage has been contracted on the condition that she should not claim any dower, the wife is entitled to a proper dower. The amount of proper dower is to be determined by taking into consideration the amount of dower settled upon other female members of the father’s family, such as father’s sister.

Determination of Proper Dower:

The proper dower is regulated with reference to the following factors:-

i. Personal qualification of wife, her age, beauty, fortune, understanding and virtue;

ii. Social position of her father’s family;

iii. Dower given to her female paternal relations, such as father’s sister;

iv. Economic condition of her husband;

v. Circumstances of the time.

LEGAL STATUS OF DOWER:

Dower is not only the right of wife but it adds to her prestige and saves her in times of distress, or on divorce or death of husband. According to Muslim law on the dissolution of marriage, the wife can claim her dower money. It may be higher, lower and depends upon the source of income of the husband. It also acts as a check on husband’s right to divorce.

WIDOW’S RIGHT TO RETENTION:

Widow’s right to retention refers to hold her right to mehar until she is fully paid. The leading case is Mina Bibi Vs. Chowdri Ahmad: “H died leaving his wife W who took possession of H's property. After a few years, some heirs of H filed a suit for their share in the property. The trial court decreed possession of property to the heirs, but fixed certain sums to be paid by them to W towards her mehr. No money was paid. W gifted the property to K. Held gift was bad. But, W had the right to retain the property until the mehr amount was fully paid. As she had gifted, she has no possession, Hence, heirs need not pay”.