MAHR AND DOWER
Dower or Mahr is a unique concept of law of Islam. It is an essential, incident to the status of marriage to such an extent that when it is unspecific at the time of the marriage is contracted, the law declares that it must be adjudged on definite principles. It is a consideration for marriage, payable before consummation.
|Type of Mahr||When it can be Claimed||Rights|
|prompt||whenever the wife demands||Wife can refuse to consummate the marriage or to continue living with husband until it is paid. She can go to court to seek payment up to three years after husband refuses to pay. This is the best form of mehr as it gives the wife the greatest flexibility and control over her mehr.|
|deferred||on death of husbandon talaq or dissolution of marriageat an agreed date specified in the nikahnama or any written agreement with the husband||On husband’s death, mehr is a debt that has to be paid before his property is divided among his heirs. Can be claimed in a court within three years of divorce or death of husband.|
Mahr is either a sum of money or other form of property to which the wife becomes entitled by marriage. It is not a consideration, proceeding from the husband for the contract of marriage but it is an obligation, imposed by the law on the husband as a mark of respect for the wife as is evident from the fact that non-specification of dower at the time of marriage does not affect the validity of marriage.
Mahr may be settled before or at the time of marriage. It may even be settled subsequent to the marriage. When Mahr is settled by mutual consent of the parties after marriage, it is known as mahr-i-tafweez. When the amount is settled by arbitration or by kazi (judge), it is known as mahr-i-takkin. Under Muslim law by mutual consent, the amount of dower may be increased after the marriage.
Specified Dower: When dower is fixed by mutual consent, it is known as specified dower. When the bridegroom is a minor or of unsound mind, the dower is usually specified by his father on his behalf. Among the Sunnis, the dower fixed by the father of the bridegroom is binding on the son, but he is not personally liable for it. He is not liable as surety either. On the other hand, among the Shias, if the son has no means to pay it, the father is liable.
The Hanafi law mandates that the wife is, in all circumstances, entitled to receive a minimum amount of mahr, which has been traditionally fixed at ten dirhams, regardless of her agreement to receive less.
Under all schools of Muslim law, the husband has power, at anytime during the subsistence of marriage, to increase the amount of mahr.
Proper Dower: There is no estoppel against the right of mahr because dower is not stipulated in the marriage contract- it is implied by law. This is known as proper dower or customary dower or mahr-i-misl. The proper dower has to be ordinarily the same as has been settled for women in her father”s family, such as her sister, paternal aunt or paternal parallel cousin, who are more or less equal to her in regard to age, beauty, virginity, education, character, financial status, etc.
In fixing the amount of proper dower regard must be paid to women who are equal to her in knowledge, lineage, wealth and understanding etc. The Muslim authorities do not favour taking into consideration the husband”s social position or status.
Minimum and Maximum amount of Mahr: It is only the Hanafis and the Malikis, who lay down minimum amount of dower. No other schools of Muslim Law fixes any minimum or maximum amount of dower. A husband is free to fix any amount of mahr, even much beyond his means or ability to pay or earn and he cannot wriggle out by saying that amount is beyond his means or unconscionable.
Under an Oudh statute and a statute of Jammu & Kashmir, the courts have been empowered to reduce the amount of dower if they find it excessive or beyond the means of the husband. Both the statutes apply to the specified dower.
LIABILITY OF A MUSLIM TO MAINTAIN
Liability to maintain wife: Under Muslim Law, a husband is bound to maintain his adult wife. Accordingly, a husband is required to maintain his wife in a manner suitable to his financial position. Even though the wife has her own enough means and the husband is poor, he cannot escape his liability of maintaining his wife. However, the right of a wife to claim maintenance from her husband is subject to the following conditions:
- She is obedient to her husband and carries out his reasonable orders.
- She does not refuse herself to him without reasonable cause
- She is a major i.e. she has attained the age of puberty
Even after divorce, the husband is bound to maintain his wife during the period of iddat. Declaration of divorce becomes operative from the date of filing a written statement in the proceedings for maintenance.
However, during widowhood, the wife cannot claim maintenance even during the iddat. This means that she can enforce her right of maintenance against the husband as long as he is alive.
As regards arrears of maintenance, it cannot be claimed by anyone other than wife herself. Arrears can be claimed by the wife only when she either sues the husband in a court or proceed against him under the provisions of Criminal Procedure Code.
An agreement may be made between a Muslim and his prospective wife for the payment of maintenance with the object of securing the wife against ill-treatment. Such an agreement is void as being against the public policy. Likewise, agreement between a Muslim and his second wife allowing her to live with her parents and yet paying maintenance is not considered as opposed to public policy.
MUSLIM WOMEN RIGHT TO MAINTENANCE U/S 125 OF CRPC
The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum and others, has held that if the divorced woman is able to maintain herself, the husband’s liability ceases with the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to maintenance under section 125 of the Code of Criminal Procedure. This led to controversy as to the obligations of the Muslim husband to pay maintenance to the divorced wife. The Muslim Women (Protection of Rights on Divorce) Act was passed to dilute the judgment given in this decision the Shahbano case.
Option to Be Governed By Code of Criminal Procedure
If a divorced woman and her former husband declare, by affidavit or any other declaration in writing, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.
COMPARATIVE CHART – BROAD OUTLINE
|Muslim Women(Protection of Rights on Divorce) Act 1986||Section 125 Code of Criminal Procedure|
|Jurisdiction||Application is filed in the area where divorced woman resides||Application where the husband is, or resides or where he last resided with his wife|
|Relief available||Reasonable and fair provision and maintenance, or the amount of mahr or dower paid, all properties given at the time of marriage or after marriage. If unable to maintain herself, after Iddat period relatives ordered to pay maintenance and if no relatives exist then Warf board pays.||Allowed a monthly allowance, not exceeding Rs.500. No provision for maintenance by children, relatives or Wakf Board after Iddat period.|
|Punishment on failure to pay||Imprisonment which may extend to one year.||Imprisonment which may extend to one month.|
|Applies to||Only to divorced woman||To every married or divorced woman.|
|Alteration /allowance||No such Provision.||On change of circumstances Alteration maybe made.|
|Maintenance after Iddat||Woman to be maintained by her children or parents or relatives or the Warf board.|