Q. Discuss the meaning and kinds of dower.
Explain the rights of wife in case of unpaid
dower. What is remission of dower.
Ans. Definition
According to Mulla, dower as a sum of money or other property which the wife is entitled to
receive from husband in consideration of marriage.
Hedaya defines Dower as a token of respect given by the husband to the wife at the time of
marriage. Dower is also called Mahr.
Abdul Rahim, in his book Muhammadan Jurisprudence, states that “Mahr is either a sum of
money or other form of property to which 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.”
Dower is considered to be an integral part of marriage. It may be settled before or at the time of
or even after the marriage. Non-specification of dower at the time of marriage does not affect its
validity.
Dower when fixed by mutual consent after the marriage is known as mahr-i-tafweez.
When fixed by the court, it is known as mahr-i-takkim.
Classification of dower
Dower is usually classified under two heads:
Specified dower that is fixed by mutual agreement of the parties.
Proper dower or customary dower that is arising by the operation of law
Specified dower-
If the amount of dower has been fixed by the parties before the marriage or at the time of
marriage, it is called specified dower or Mahr-i-musamma. Execution of deed for fixing the
dower is not necessary under Muslim law. If the bridegroom is a minor or a person of unsound
mind, the dower is generally fixed by his father/guardian.
Dower fixed by the guardian is binding on the minor who cannot, after attaining the age of
puberty, take the plea that he was not a party to it. Under Sunni law, dower fixed by the father is
binding on the son though he is not personally liable for it.
Under Shia law, if the son has no means to pay the dower fixed by the father, the father becomes
liable to pay it. Specified dower can be paid before or at the time of or anytime after the
marriage.
The specified dower is usually in two parts:
Prompt dower
Deferred dower
Prompt dower – A specified dower which is payable immediately after the marriage or
at any other time on the wife’s demand is called prompt dower. It may be realized before
or after consummation and it does not get deferred after consummation of the marriage.
Wife has the right to sue for recovery of prompt dower even after consummation of the
marriage. Unless the marriage has already been consummated, the husband becomes
entitled to enforce conjugal rights only after the payment of prompt dower.
Deferred dower – If a specified dower is not payable immediately after marriage and is
payable upon the happening of any event or after the expiry of a particular period or upon
the dissolution of marriage, it is called deferred dower or Mahr-i-Muwajjal. The wife is
not entitled to demand payment of deferred dower unless otherwise agreed upon by the
parties. The wife’s interest in deferred dower is a vested one and not a contingent one. On
the death of the husband, the wife has the right to relinquish her dower but the
relinquishment must be voluntary. IfIf no period or event has been fixed for payment of
the deferred dower, it shall be payable on the termination of the marriage by divorce or
by the death of either party.
Proper dower
If the amount of dower has not been fixed between the parties, before or at the time of marriage,
the wife is entitled to get a reasonable amount from the husband as dower. This dower is called
proper dower or Mahr-i-Misl. It is payable on demand by the wife. Even if the marriage has been
solemnized on the condition that the wife shall not claim dower, she is still entitled to claim
proper dowe from the husband. The amount of proper dower is generally fixed by the Court
taking the following factors into consideration:
personal qualifications of the wife.
wife’s age, beauty, fortune, understanding, and virtue.
the social position of the wife’s father’s family.
economic status of the husband.
dower generally settled for women in wife’s father’s family such as her sister, paternal
aunt or paternal parallel cousin, etc.
What are the rights of the wife in case of non-payment of Mehr?
Mehr is like a debt and the husband is liable to pay it to the wife before the
consummation of marriage. Until it is paid, the wife has a right to resist cohabitation with
the husband.
If the wife is in possession of the husband's property, she has a right to retain it until
dower is paid. She does not get a title to the property and does not get a right to alienate
it.
The wife can sue heirs of the husband for payment of dower.
If the dower is deferred, the wife is entitled to it upon dissolution of marriage either due
to divorce or due to death.
Dower is a vested right and not a contingent right. Thus, even after the death of the wife,
her heirs can demand it.
If dower has not been agreed upon at the time of marriage, courts can decide the amount
of dower by taking the financial status of the husband, age of wife, cost of living, the
property of the wife, into consideration.
REMISSION
Upon marriage, the wife is vested with the right to Dower. She may or may not enforce it. She,
out of love and affection, may even relinquish or remit her right to Dower. This is called
remission of Dower. She can remit part or whole of her Dower. After a lawful remission, the
husband does not have to pay the remitted Dower to his wife. Any agreement before marriage
not to exercise her right of Dower is void. Dower is essential for a Muslim marriage. After
marriage it is the wife’s property and she can deal with it, as she wants to.
Conditions for a valid remission
The wife has to be an adult and sane at the time of remission. While a few High Courts
take the definition of major from the Indian Majority Act, 1875, others have taken it to be the
age of puberty, i.e. 15 years of age.
The remission must have been made with free consent and not under any abnormal
circumstances, coercion or undue influence, etc.
Remission has to be in writing as it deals with the relinquishment of a right to property.
The husband can only increase the dower amount. It is called Hiba-I-Mahr.
