Right of the widow
to inherit the property
of
the husband in lieu of dower
Submitted by
Devyani Pradhan
BA LLB, 2017-19
14040141018
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Table of Content
1.0.0 Introduction 3
1.0.1 History of Mehr 3
1.0.2 Types of Mehr 4
1.0.3 Right of the widow to inherit the property of the husband 5
1.1.0 Research Question 1 7
1.2.0 Research Question 2 9
1.2.1 Right to dower or Mehr as a debt 9
1.2.2 Illustration 10
1.3.0 Critical analysis 11
1.4.0 Conclusion 12
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1.0.0 Introduction
And marry the unmarried among you and the righteous among your male slaves and female
slaves. If they should be poor, Allah will enrich them from His bounty, and Allah is all-
Encompassing and knowing. 1
(Aayah No. 32, Surah An-Nur, Chapter No. 24, Holy Quran).
Marriage is not just a legal contract between two people, it is a command from Allah, the
almighty.
To complete an Islamic marriage Dower is must. The dower amount is fixed before the
marriage and by the families of both parties, this process is called mehr bandhwana. The
dower amount is fixed before or at the time of marriage. It is also very essential to
distinguished between dower and bride price, dower is paid to the wife by the husband
directly, whereas, bride price is paid to the parents of the wife. Dower is the right of each and
every Muslim women. It is mainly to protect the women from the arbitrary power of the
husband to divorce. 2
1.0.1 History of Mehr (Dower)
According to the sociologist human being in the pre historic times lead a savage life, they
lived together in tribal groups and marriage among blood relations were considered taboo.
In the earlier days man did not know that sexual relationship with a women would
amount to a birth of a child. They never considered the child to be their own child but
they considered them to be the child of their wife. Therefore this led to the upliftment or
the emergence of matrilineal society. During those days men were needed only for their
physical strength.
It was after a very long time man became aware of that even the father were the real
person to whom his children were to be attributed. Therefore after this the man began to
bring women under his control, and took the position of being the head of the family.
Therefore the patrichal began. Therefore, in this male dominated society where there was
no special status for women and where the women were treated like objects, in order to
bring equity and justice to the society dower was given to the women by the husband as a
1
www.quran.com( Aayah No. 32, Surah An-Nur, Chapter No. 24, Holy Quran)
2
http://www.quranandhadith.com
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sign of respect. This was very important because it gave financial right to each and every
Muslim women so that they could sustain themselves in the male dominated society. It
was a huge security for the wives and as well for their children.3
Quran (4:20) says if you have given the wife a whole treasure for dower take not the least of
it back.
1.0.2 Types of Mehr
Mehr in simple words is the payment payable by the husband to the wife during the time
of marriage or before marriage. There are two types of mahr,
a. Mahr i Musamma: When translated it means Specified Dower. This type of
dower is agreed upon by both parties of families before the marriage, at the time
of marriage or even after the marriage. This type of dower can be sub categorized
into two parts,
i. Mu Ajjal: Meaning prompt. It is a kind of dower which is payable
immediately after the marriage on demand.
ii. Mu Wajjal: Meaning deferred. This particular dower is paid on
dissolution of marriage either by divorce or death.4
b. Mahr i Misl: When translated it means Customary or Proper dower. The amount
of dower is not fixed in the marriage contract. The amount of dower will be fixed
after looking after the amount of Mahr other women in family had received or in
reference of various factors such as age, beauty, social status of family, etc.
This research is based on Mu Wajjal or the deferred mehr, in depth this research paper is all
about right of the widow to inherit the property of the husband in lieu of dower.5
1.0.3 Right of the widow to inherit the property of the husband in lieu of dower
3
http://www.al-islam.org/rights-women-islam-ayatullah-murtadha-mutahhari/part-eight-dowry-and-
maintenance
4
Mohammedan law, 23rd edition, (Central Law Agency, Allahabad-2, 2010) Page no. 155
5
http://hanumant.com
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"And if any of you die and leave behind wives, they bequeath thereby to their widows (the
right to) one year's maintenance without their being obliged to leave (their husband's
home), but if they leave (the residence) of their own accord, there is no blame on you for
what they do with themselves in a lawful manner." [Noble Quran 2:234]
After the death of a husband, a widow has to sustain and live on with her life. She needs
some security to take care of herself and her children. The widow is not deprived of rights of
leading an honourable life. The life of the widow does not end with the death of the husband
and does not have to live her life with the title Widow. There is surely going to be
loneliness but the society is going to treat her well with compassion, sympathy, and mercy
and give out full support to her in the times of need. After the waiting period of four months
ten days they, can re-marry and live a happy life again. The widow and children may get
some monetary support after the death of her husband but the best thing is that the Muslim
society is there to support her along with the children.
The widow will retain the property after the death of her husband. But there may be some
complexity during the process of inheriting the property. There may be a lot of problem like
the proper distribution of the property among the family. There are some complex situation
such as divorce and death at the same time, in this kind of situation the distribution is really
not simple and may face a lot of problems and solutions to find out the right way to distribute
the property equally and in fair manner between the family and wife after the death of the
husband. It would be simple to go according to the will of the husband who has passed away
but life is unpredictable and there may not a written will which makes it even harder to
continue with the distribution process of the property. The importance of dower can be
further explained with this case Kapore Chand v. Kidar Nissa6.
This case is about a husband who is dead and he owes a lot of debt too many other creditors
and the husband owes the dower toward the widow too. He had a house which was in dispute
between the widow and the creditors.
The supreme laid down that the mehr ranks as a priority debt and the widow is entitled along
with the other creditors of the deceased husband to be satisfied out of his property. The
Supreme Court has laid down that the widow has priority over other creditors, mehr or dower
6
1950 SCR 747
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as a claim for debt has priority over other heirs claims. This right is known as widows right
to retention.
No Quranic text talks about widow having a superior footing but sur-al-nisa says widow is
entitled to get the state of the deceased husband in lieu of dower or Mehr and it is also said
that widows and minors should be given a favourable treatment.
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1.1.0 If the husband divorces his wife during his illness and dies before the expiry of 12
lunar months, does she inherit the property of the husband?
In this scenario, the wife will be able to inherit the property of the husband in satisfaction of
the following three conditions:
i. If she has not married any other person during that period, when we say that
period it means the iddat period7 which is three months and ten days for divorce
and four months and ten days for death of the husband respectively. Basically this
period is to maintain a balance so that the wife can mourn for the death of the
husband and along with that she does not have to face any sort of criticism from
the society for getting married too early after the divorce or death of the husband.
ii. If she did not sought the divorce herself, of her own consent. Irrespective of
whether she paid any sort of consideration to obtain the divorce or not.
If an official marriage end with an irrevocable one. In this case the women has the
right to demand alimony from the husband but here if unfortunately the husband
dies then the widow cannot demand for alimony because the one who is supposed
to pay the alimony is already dead. The property which he has left behind
according to the inheritance rule will belong to the heirs of the deceased husband.
iii. If the husband dies during the illness in which he divorced the wife as the result of
that illness or some other cause, the divorced wife will not inherit from the
husband. 8
In this case apart of Imams other schools speak of the divorce by a sick person
only when it is irrevocable. But the Imams have observed;
If the husband divorces his wife while he is sick the wife will inherit the property
from the husband, irrespective of the divorce being revocable or irrevocable on
the realisation of the following four conditions;
7
http://en.islamtoday.net/node/1647
8
http://www.sistani.org/english/book/48/2387/
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Firstly, if the husband dies before the completion of one year from the date of the
divorce. But if he dies after a year of the divorce, example, even if an hour later,
the wife will not inherit the property of the husband.
Secondly, if she does not marry before the death of the husband. But she does not
marry and the husband dies within a year of the divorce.
In this case she will not inherit the property of the husband.
Thirdly, if the husband recovers from his illness and then dies within a year she
will not be entitled to inherit from the deceased husbands property.
Fourthly, if the divorce does not take place on the demand of the wife then the
wife is entitled to inherit the property of the husband.9
9
http://fiqh.huquq.com/2012/02/waiting-period.html#.VwpKCfl97IU
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1.2.0 If the deceased husband has more than one wife, how will they inherit the
property?
In this case an illustration would be;
If a man dies leaving behind his mother, four wives, two daughters, and two sons,
then the estate will be divided as follows;
i. The share of the mother will be one sixth. The Holy Quran says for parents a
sixth share of inheritance o each if deceased left children.
ii. Regarding the wives each wife is entitled to inherit one eighth of the deceased
husbands property which would be divided equally among them10.
The Holy Quran says wives are entitled to get a fourth if you leave no child,
but if you leave a child then wives will inherit one eighth of which you leave.
Ibn Katheer said; whether the share is one quarter or one eighth it should be
divided equally among the wives because Allan doesnt discriminate or
differentiate between one wife and several wives in this matter.
iii. Both the male and the female children will inherit from the property of the
father, but the only difference is that the male child will inherit share of two
female. This is because AlNisa 4:11 it is written that Allah commands you
as regards your male children to make a portion equal to that of two females.
iv. The grandchildren will inherit anything till their father and paternal uncles are
surviving or alive.
1.2.1 Right to dower or Mehr as a debt
In Hamira Bibi v. Zubaida Bibi11, in this case it was laid down by the lordships of Privy
Council that the dower ranks as a debt and the widow can inherit along with the other
creditors to have her debt satisfied on the death of the husband from the deceased husbands
estate. If the husband has not paid the dower and he is still alive the wife can institute a suit
against him. But after the death of the husband, if the dower debt is unpaid the widow can
institute a suit against the heirs of the deceased husband. But here the heirs of the deceased
husband is not personally liable for the dower debt. But they will be held liable to the extent
to which and in proportion in which they inherit the property of the deceased husband. If the
10
Principles of Mahomedan Law 19th edition (Lexis Nexis, Nagpur, 2009), Page no: 49
11
ILR (1916) 38 AII 581
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widow is possessing the deceased husbands property under a claim of her dower, the other
heirs of the husband are also severally entitled to recover their amount of share upon payment
of a quota of the dower debt proportionate to those shares.
1.2.2 Illustration
If a Mohammadan dies leaving behind his wife, a son and two daughters. The widow is
entitled to get a dower debt of Rs.3200; the share the widow is entitled to get into the estate is
1/8th and she is liable to contribute 1/8th of Rs.3200 = Rs.400 the son is entitled to get a share
of 7/16 and he is liable to 7/16 of Rs.3200= Rs.1400. Each daughters share is 7/32 and she is
liable to pay 7/32 of Rs.3200= Rs.700 and if the widow is in possession to recover her share
on payment of Rs.700. however she is not entitled to any charge on her husbands property,
even if such a charge may be created by an agreement.12 Even if a father makes a contract on
behalf of his minor son it is binding upon the minor and if the minor fails to pay the amount
the father will be liable to pay the amount.
In the case Syed Sabir Hussain v. Farzand Hussain, a Shia Muslim stood surety for the
payment of dower by his minor son. After the death of the surety his estate was held liable for
the payment of the deceased suretys sons Mehr and each heir was made responsible for the
portion of the wifes claim. In portion of wife claims in deceased suretys estate.13
12
Hamira Bibi v. Zubaida Bibi, ILR (1916) 38 AII 581
13
Syed Sabir Hussain v. Farzand Hussain, 65 IA 119
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1.3.0 Critical analysis
In the Muslim law no one can deny from paying dower. Even the prophet has had
been told O Prophet, we have made permissible for your wives whose dower you
have paid.
The main purpose of why the widow should be entitled to get the property of the
husband is to secure herself from the unforeseen event and as a form of security.
Therefore, the Islamic law of inheritance is divine justness and equitability. Even
though there are several wives each of them are entitled to inherit equally. Therefore,
it is an equitable method of distributing the property. It is basically a mark of respect
which is paid to each and every Muslim women.
In the Holy Quran we come across a word Sadaqah (4:4) meaning the gift which has
been given in good faith and also given out of generosity. In the Holy Quran we also
find a word ajr (33:50), the meaning of this word ajr is also used to denote wages as
reward. Therefore it is a gift which is given to the women who is leaving her paternal
home and going to reside at the residence of her husband, where she is going to adjust
in a new and unknown set up. Therefore these are mainly done to give financial
support and security to the Muslim women.
In surah-al-nisa it is said give to the women their agreed dower [willingly] (4:4), and,
as an obligation. (4:24)
Some of the imams have said that without paying the dower the marriage or nikah
will be invalid. But whereas, some of the imams like Abu Hanafi, has said that the
marriage or nikah would be valid but the dower would be valid. But the mehr is still
an obligatory payment.
Dower for widow is actually a right in action until assigned. The right is not an
interest in the estate of the husband but it is a right to sue for an interest in the real
estate of the husband. The widow can get the amount either through apportionment,
the sale of the property etc.14
Nothing can stop a widow from inheriting her dower. A verbal agreement will not
stop the widow from claiming her dower.
14
http://www.dawn.com/news/726611/the-importance-of-mehr
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1.4.0 Conclusion
Therefore, the widows claim for dower from the deceased husbands property does
not entitled her to get a share from the property of the deceased husband. But if she is
in possession of the deceased husbands property to satisfy the claim of her unpaid
dower without any force or fraud (that is on the ground of her claim for the unpaid
dower, to satisfy her claims out of the rents and profits and with liability to account
for the balance), the widow is entitled to get her dower and her right has a superior
footing over the claims of the heirs and the creditors of the husband. And she can
retain the possession of the property of the deceased husband till her dower is
satisfied.
Regarding dower Islam has maintained a balance between male and female in this
male dominated society. With the very help of dower a man cannot leave his wife at a
first sign of unhappiness, not only that the dower or Mehr also provides security for
the widow and children during an unforeseen event example death of the husband. In
this contemporary world a man can pay any amount of dower to the wife. Therefore
the dower has been more and more about ostentation. But the very practice of dower
acts like a life insurance for their wife when the husband is not around or not in this
world. 15
15
Principles of Mahomedan Law 19th edition (Lexis Nexis, Nagpur, 2009), Page no. 251
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