Concept of Dower – its need, objective and Importance.

concept-of-dower

According to Mulla, “Dower is a sum of Money or other property which the wife is entitles to receive from the husband in consideration of the marriage.”
The Work’ Consideration’ is not used in the sense in which the word is used in Indian Contract Act. It is a duty imposed upon the Husband as a mark of respect to the Wife.
Even when No, Dower is Expressly Decided, the law confers the Right of Dower upon the wife as necessary Effect of Marriage.

Need Of Dower

Before the arriving of Islam in Arabia, a Marriage was generally Contracted by Purchasing the girl from her Guardian. A person who wanted to marry a girl used to Approach her Guardian and after giving some Consideration (money or property) to him, used to take the girl with him as his Wife. Such a Marriage was nearly a Sale of the Girl by the Guardian.

         Consideration (Money or Property) Given by Husband to the Guardian was “compensation” or “ Price” of the Girl and was Known as ‘Mahr’. This Type of Marriage was Known as “ Baall Marriage” . The other Form of Marriage was “ Beena Marriage”. In this Girl Receive some Gifts from the Husband. The Gift was called “ Sadaq” and she was called Sadeeqa (Girl-Friend)

Although historically speaking it is more akin to Bride’s price than gift or anything else.

        When Islam Propulgated the Prophet prescribed a definite form of Marriage, he Retained the practice of payment of something by the husband to throw out the evils in the Marriages the definition of Mahr was changed and it become obligatory on Husband to pay Dower which encouraged the abolition of Exploitation of Woman.

        Thus Marriage under Muslim Law Confers a Respectable Status to a Woman and it is necessary that something is given to her in order to acknowledge her dignity.

Objective of Dowe

  1. To place a check upon the unpredictable use of the right of Talaq by the Husband.
  2. To Provide the livelihood to the wife after Dissolution of Marriage.

Types of Dower

There are two Types of Dower :-

(a) Unspecified Dower (b) Specified Dower.

Dower Types

(a) Unspecified Dower (Mahr-i-Misl):- When a Dower is Unspecified in a Marriage, the wife is entitled to get the proper Dower which is fixed by Court of law. Dower is an integral part of every Muslim Marriage and it must be specified by the parties themselves either at the time of Marriage or thereafter. But if the parties have not specified it either Negligently or Intentionally, a proper some of Money or property is settled in their marriage by operation of law.

In Hamira Bibi Vs. Zubaida Bibi (1916) ILR 38 All 581

The Privy Council observed: “ Dower is an essential incident under Musalman law to the status of Marriage, to such an extent this is so that when it is unspecified at the time of Marriage is Contracted the law declared that it must be adjusted on Definite Principles.”

There is no fixed Amount which may be said as a Proper Dower in all the cases. The Amount of Dower differs from Case to Case. But the Principles in the basis of which the Proper Dower as ascertained are definite. While fixing the Proper Dower , Following Principles/ Condition/ Criteria are taken into Consideration;

  • The Personal Qualifications of the Wife e.g. Age, Beauty, Education etc.
  • The Social Position of Wife’s Father.
  • The Custom or the Tradition which prevails in the Wife’s Paternal Family in respect to the Amount of Dower. It means the Examples of Dower Which had been Fixed in the Earlier Marriages either of her sisters or her Father’s Sister.
Us Dower

(b) Specified Dower: – The Sum of Money or any Property which is Fixed as Dower is called Specified Dower (Mahr-i- Maussama). Dower may be specified before the Marriage Contract, at the time of Marriage Contract or even after the Completion of the Marriage. A Dower can be settled orally as well as in a written Agreement (Mahr-nama)

S Dower

(i) Prompt Dower:- When Dower is specified in a Marriage that wife can demand the Dower at any Time, the Dower is Prompt Dower.

Characteristics: –

  • It may be Demanded by the Wife any time she likes to demand, whether the Consummation has taken place or not.
  • As soon as it has been Demanded by the Wife, the Husband Must pay it Promptly or Immediately. If any Delay is caused in the Payment, the wife is entitled to get also the interest for the period during which it remained unpaid.
  • The wife may refuse cohabitation till the Husband does not Pay the Prompt dower on Demand Provided the Marriage is not Consummated.

However, it is not necessary that Wife should Demand the Prompt Dower Immediately after the Marriage. It may be Demanded any time. The Wife may demand it Immediately after Completion of Marriage or after several years. It does not become Deferred only because it has been demanded very late. The Promptness of Dower is not in demand but in Payment after the Demand.

(ii) Deferred Dower: – A deferred Dower is Payable-

(A) On the Dissolution of Marriage; or

(B) Upon the happening of a specified event, if so agreed.

Importance Of Dower

Fatwai-i- Quazi Khan says ,” Mahr is so necessary to marriage that if it was not mentioned at the time of the marriage, or in its Contract, the law will presume it by virtue of Contract Itself.”

In Abdul Kadir V. Salima (1886) 8 All 149

Mehmood J. has Observed: “ The Marriage Contract is easily Dissoluble and the freedom of Divorce and the the rule of Polygamy place the Power in the Husband which the law Giver intended to Restrain by Rendering the rules as to payment of dower Stringent on the Husband. That is why the Right of Wife to her Dower its a Fundamental Feature of the marriage Contract; It has a Pivotal place in the scheme of the Domestic Relation affecting the Mutual Rights of the Spouses at more than one Point.”

From the Above Judgment and Statement, we can Conclude that Mahr is an Integral Part of Marriage Without Which Marriage must not be Solemnized.

Conclusion:-

The Dower is a necessary Part of a Marriage which aims at Providing safety to the Wife and helps in maintenance to the Wife. Dower was accepted by the Prophet to stop the unlimited Polygamy prevailing at that time.

Related Post

what is dower ?

According to Mulla, “Dower is a sum of Money or other property which the wife is entitles to receive from the husband in consideration of the marriage.”

Objective of Dower ?

1. To place a check upon the unpredictable use of the right of Talaq by the Husband.
2. To Provide the livelihood to the wife after Dissolution of Marriage.

Reference Books

  • Muslim Law by Syed Khalid Rashid, 1970
  • Principles of Mahomedan law by Dinshah Fardunji Mulla, 1905
  • Muslim law in modern India by Paras Diwan, 1991
  • Textbook on Muslim Law by Rakesh Kumar Singh
  • Muslim Law of Marriage, Dower, Divorce and Maintenance by Kahkashan Y. Danyal, 2015
  • Muslim law of India by Tahir Mahmood, 2002

Sources


Discover more from THE LAW JOURNEY

Subscribe to get the latest posts to your email.

Leave a Reply