Muslim Personal Law

Topic# 2

Dower
Question:
What are the kinds of dower?
1. INTRODUCTION:
“And give your wife their dower happily”
(Surah Nisa:4)
Dower is one of the most essential ingredient of a marriage contract. It is
not a consideration but an obligation imposed upon the husband as a mark
of respect to the wife under Muhammadan law. It is a right of a wife that
she can claim it anytime and husband has to pay it.
Mulla defines it:
“A sum of money or other property which the wife is entitled to receive
from husband in consideration of marriage”
2. RELEVANT PROVISION:
Section 10 of Muslim Family Law Ordinance, 1961
Cross Reference:
Chapter XV, Sec 285-290 of Principles of Muhammadan Law
3. MEANING OF DOWER:
i. Baillie:
“ Dower is a sum of money or property which the wife is entitled to
receive from her husband in consideration of marriage”
ii. Tayabji:
“ It is a sum that becomes payable by husband to the wife on
marriage, either by agreement between the parties, or by operation
of law”
4. IMPORTANCE OF DOWER:
 “And there is no blame on you if you marry them on the payment of
their dower to them”
 (AL-MUMTAHINA:10)
 “There can be no marriage without dower”
(Hazrat Ali R.A.)
5. NATURE OF DOWER:
It is a token of respect. It cannot be regarded as a price of a wife as it is paid
to the wife and not to her father or a guardian.
6. OBJECT OF DOWER:
The payment of dower is enjoined by the law merely as a token of respect.
The object of dower is as follows:
a. To impose an obligation as mark of respect to wife
b. To place a check on the arbitrary power of divorce on the part of
husband
7. SUBJECT MATTER OF DOWER:
Anything which is not forbidden for Muslims can be a valid subject of
dower. This may include:
a. Money
b. Property ( Both Moveable and Immoveable)
c. Any specified thing which has some value
d. Must be in existence
8. AMOUNT OF DOWER:
a. Maximum Limit:
It depends on social position of parties and conditions of society.
 Shia Law:
Proper dower should not exceed 500 Dirhams.
b. Minimum Limit:
 Sunni Law:
Minimum Limit of dower is 10 Dirhams.
 Hanfi Law:
Minimum limit is 10 Dirhams.
 Maliki Law:
Minimum limit is 3 Dirhams.
 Shia Law:
Minimum limit is not fixed or specified.
9. LIABLILITY TO PAY:
Husband is liable to pay, even after dissolution of marriage
  Liability upon Guardian:
In case, where minor got married through guardian, then;
 Sunni Law:
Minor will pay dower when he becomes major.
 Shia Law:
Guardian is liable to pay dower.
10. KINDS OF DOWER:
I. As to Amount:
a. Specified Dower
b. Proper Dower
II. As to Payment:
a. Prompt Dower
b. Deferred Dower
A. As to Amount:
i. Specified Dower (Mehr-e-Musamma)
When the amount of dower is fixed by contract between the parties
to the marriage, it is called specified dower.
 If dower is specifies by guardian:
o Sunni Law:
AIR 1927 ALL 364
“Only Son is liable to pay”
o Shia Law:
If son is not liable to pay then guardian will pay.
 Time for fixation of specified dower:
Time for fixation is either before or at time of marriage or after
marriage. A wife should not fix dower more than proper dower.
 Addition in amount of dower:
Amount of dower can be increased at any time.
ii. Proper Dower (Mehr-e-Misl):
Where amount of dower is not fixed in contract of dower, wife is
entitled to proper dower, even if the marriage contract has been
conditioned that she should not claim any dower.
 Determination of Proper Dower:
  Personal qualification of wife (Her age, beauty, education, position in
society)
 Status and social position of her father
 Status and social position of her husband
 Dower given to her female paternal relations
 Local Custom
 Confirmation of Dower:
The dower becomes confirmed:
 By consummation of the marriage; or
 By a valid retirement (Khalwat-e-sahiba); or
 By the death of either the husband or wife
B. As to Payment:
a. Prompt Dower (Mehr-e-Muajjal)
It is payable on demand.
AIR 1933 Pat 281
“Prompt Dower must be paid to wife immediately on demand”
 Features of Prompt Dower:
 Payable immediately on demand
 Recovery after marriage
 Wife can file a suit for payment
 Limitation:
Limitation begins on demand or refusal and for this purpose
time limitation is “3 Years”
b. Deferred Dower (Mehr-e-Muwajjal)
Deferred dower is payable on the dissolution of marriage either by
death or by divorce.
 Payment:
 On the dissolution of marriage by divorce, husband is
liable to pay
 On the dissolution of marriage by death of a husband,
wife has a right to get dower from the estate of the
deceased (apart from her share of inheritance)
 Relinquishment of dower:
 Widow may relinquish her dower at the time of her
husband’s funeral. It must be her voluntary act.
11. REMEDIES FOR NON-PAYMENT:
a. Right of dower as unsecured debt:
A wife can recover unsecured debt herself during her husband’s life or
after his death from the estate of deceased.
b. Payable before distribution of assests:
The heirs or the creditors cannot disturb the possession of wife unless
they satisfy the dower debt
c. Recovery of debt:
If the dower is not paid, wife is entitled to file a suit for recovery of
dower.
d. Suit for dower:
Shahbano Vs. Iftikhar Muhammad Khan (1957)
“ Wife has a right to bring a suit in the court for dower”
e. Heritable:
Even if both husband and wife dies, her heirs can recover it from his
heirs out of the portion of property they inherit of deceased.
12. DIFFERENCE BETWEEN PROMPT AND DEFERRED DOWER:
i. Time of Payment:
 Prompt Dower:
It is payable on demand.
 Deferred Dower:
Payable after the dissolution of marriage.
ii. Recovery of Dower:
 Prompt Dower:
It can be recovered after consummation of marriage
 Deferred Dower:
It can be recovered after dissolution of marriage.
iii. Consumation:
 Prompt Dower:
Marriage must be consummated for its recovery.
 Deferred Dower:
There is no need of consummation of marriage, it can be
recovered after the dissolution of marriage.
iv. Specified Event:
  Prompt Dower:
There is no need of any event to occur for its recovery
 Deferred Dower:
Marriage must be dissolved for its recovery.
v. As a right of wife:
 Prompt Dower:
It is a contingent right of wife
 Deferred Dower:
It is a vested right of a wife
13.DIFFERENCE BETWEEN SUNNI AND SHIA LAW:
i. No contract of Dower:
 Sunni Law:
When the payment of dower is not mentioned in a contract of
Nikah, then husband has to pay half prompt and half deferred
dower
 Shia Law:
Husband has to pay full prompt dower
ii. Dower not mentioned in a contract:
 Sunni Law:
Contract of marriage is void
 Shia Law:
If both are major and sound mind, then it is a valid contract of
marriage.
iii. Limit of customary dower:
 Sunni Law:
There is no limit.
 Shia Law:
500 Dirham
iv. Minimum Limit of specified Dower:
 Sunni Law:
10 Dirham
 Shia Law:
No limit
v. Maximum Limit of specified Dower:
  Sunni Law:
There is no Limit
 Shia Law:
500 Dirham
vi. No specified Dower:
 Sunni Law:
Wife cannot demand more than mehr-e-missal
 Shia Law:
Wife cannot demand, it is on the discretion of husband
vii. Conditions of valid Nikah:
 Sunni Law:
It is compulsory for the validity of nikah
 Shia Law:
It is not necessary for the validity of nikah, but for
consummation it is necessary
14.CONCLUSION: