India is a democratic and secular country. The term ‘secular’ means that the state has no religion. It is tolerant of all religions. The freedom of conscience and the right to profess, practice, and spread religion are guaranteed under the Indian Constitution. Hence, personal laws relating to religion exist. Marriage, dower, divorce, wills, maintenance, and other legal issues are all covered by Muslim personal law. Dower is called as’mahr’ in Muslim law. Dower is a pecuniary payment that the husband must pay to the wife upon their marriage.
In the case of Abdul Kadir v. Salima[i], Honorable Justice Mahmood held that dower is a sum of money or property promised by the husband to be paid or delivered to the wife in consideration of marriage, and that even if the dower is not expressly mentioned at the time of marriage, the wife still has the right to dower.
Rights of wife when dower is not paid to her:
Under Muslim law, every woman has the right to a dower on the happening of marriage. If a woman’s right to dower is abused, she has remedies, just like any other law. According to Muslim law, a wife or widow has the following rights to demand the payment of dower:
- Refusal to cohabit
If the marriage has not been consummated, the wife has the right to refuse to live with her husband as long as the dower is not paid on time. If the wife is a minor or insane, the guardian has the power to refuse to bring her to her husband’s house until the guardian receives prompt payment of the dower. During the time that the wife is staying with her guardian, the husband is obligated to support her. If, however, the consummation occurs after the marriage, the wife loses her absolute right to demand early dower payment. This is due to the fact that the husband has the right to file suit for restitution of conjugal rights.
- Right to retention of property
It is the most efficient approach for a wife to recover Mahr following her husband’s death. A Muslim widow has the right to keep her husband’s possessions until her Mahr is paid. However she does not have the right to sell or alienate the property. Even if there is no agreement, the Muslim widow can use this privilege.
- Right to dower as a debt
When the husband and wife have consummated their relationship, the wife cannot seek dower by refusing the conjugal rights. In such a circumstance, she might go to court and seek restitution for her underpaid Mahr. If the husband dies, the widow can sue the legal heirs of the deceased husband to recover her dower. The heirs are solely liable to the extent and share of the deceased husband’s property that they inherit. In the case of Syed David Hussain v Farzand Hussain[ii], a Shia Muslim was found to be liable for his minor son’s dower payment. Following his death, his estate was declared liable for his son’s dower, and each heir was held liable for a portion of the wife’s claim in proportion to his stake in the deceased’s wealth.
In Islamic law, the notion of dower is favorable to women. It provides financial security so that she is not left in a vulnerable position following the death of her spouse or the dissolution of the marriage. It puts an end to the husband’s arbitrary use of divorce. Dower or Mahr is a form of security offered to the wife in exchange for a secure life. As a result, it has been established a mandatory component of Muslim marriage ceremonies.
References:
- Rachit Garg, The concept of mahr under Muslim Law, Blog iPleaders, concept-mahr-muslim-law/#The_conflict_between_the_terms_mahr_and_dowry
- Anonymous, Concept of mahr in muslim law, Legal readings, https://legalreadings.com/concept-of-mahr-in-muslim-law/#RECOVERING_UNPAID_DOWER
[i] Abdul Kadir v. Salima, (1886) ILR 8 All 149.
[ii] Syed David Hussain v Farzand Hussain, (1938) 40 BOMLR 735.
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