Interpretation of Muslim Law for Mahr, Dower and Maintenance
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International Journal of Research p-I SSN: 2348-6848 e-I SSN: 2348-795X Available at Volume 04 Issue 0 2 https://edupediapublications.org/journals Februa ry 2017 Interpretation of Muslim Law for Mahr, Dower and Maintenance BY: Dr.Pankaj Dwivedi( Associate Professor), HOD, School of Law and Legal Affairs, Noida International University and Annu Bahl ( Research Scholar), Noida International University Introduction to Mahr, Dower daughter or sister in marriage to the In old pre-Islamic, Arabia, former. Thus neither of the wives when the institution of marriage as we could get a dower. False accusations of know it today was not developed many unchastity were frequently used to 3 forms of sex relationships between deprive the wife of her dower. man and woman were in vogue. Some In the so called Beena were temporary and hardly better than marriage, where the husband visited prostitution. Men, after despoiling their the wife but did not bring her home, wives, often turned them out, the wife was called Sadiqa or female absolutely helpless and without any friend, and a gift given to wife on means, the ancient custom to settle marriage was called, Sadaq, In Islam certain sums for subsistence of the wife Sadaq simply means a dower and is in the event she was turned out was synonymous with Mahr (sale price). often disregarded, as there was no But originally the two words (Sadaq organized system of law.1 and Mahr) were quite distinct. Sadaq was a gift to the wife in the Beena Sometime the guardian of the form of marriage and mahr was gift or bride used to take the dower himself; compensation to the parents of the but it is not certain whether it was a wife in the baal form of marriage.4 mere violation of the usage that the Mahr belongs to the marriage of bride should take the dower, or domination, which is known as the whether it shows that dower was baal marriage, where the wife‟s originally the price paid for the bride parents (guardian) part with her and to her parents.2 have to be A device was in vogue under the name of SHIGHAR marriage in 1 Aqil Ahmad, Text Book ofMohammedan Law, p. 149 (2006) which a man would give his daughter 2 Syed Khalid Rashid, Muslim law, p. 88 (2009), or sister in marriage to another in revised by Prof. V. P. Bharatiya 3 Aqil Ahmad, Mohammedan Law, p. 149 (2006). consideration of the latter giving his 4 Ameer Ali, Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 3065 International Journal of Research p-I SSN: 2348-6848 e-I SSN: 2348-795X Available at Volume 04 Issue 0 2 https://edupediapublications.org/journals Februa ry 2017 Mohammedan Law, Vol. II p. (Mu‟ajjal), or deferred {Mu wajjal). 432-4, Vols. I-II, Calcutta 1912, 1929, new addition Concept of Dower (Mahr) by Tahir Mahmood (1985). The concept of mahr in Islam 5 compensated. Promulgation of Islam has unfortunately been much gave a new form of nikah to marriage, misunderstood and is sometime abolished this ancient custom and misinterpreted since it is either forbade unjust acts towards the fair understood as a consideration made by sex, as is evident from the Quran”. If the man to the women as bride-price or you separate yourself from your wives, dower, but in reality, is none of these. send them away with generosity: it is A close definition has been forwarded not permitted to you to appropriate the by the Kifayah and Hedayah in the goods you have once given to them”. Fatawa-i- Alamgiri as not the Thus the custom originated in ancient exchange or consideration given by the times with the payment which man to the women, but an effect of the husbands often made to their wives as contract imposed by law means of support in their old age or on the husband as a taken of respect for when turned out by them. Mahr in the its subject, the women. baal form of marriage was also The Privy Council describes it recognized by the Prophet to as an essential incident to the status of ameliorate the position of wife in marriage. Farther the in ayah defines it Islam, and it was combined with as the property which is incumbent on Sadaq, so that it became a settlement a husband, either by reason of its being 6 or a provision for the wife. In Islamic named in the contract of marriage or law Mahr belongs absolutely to the by virtue of the contract itself and it is wife, although historically speaking it known by several names such as muhr, is more akin to bride‟s price than gift sudak, nuhlah and akr.7 or anything else. Mahr Definition 5 A.A.A. Fyzee, Outlines of Mahr or dower is a sum that Muhammadan Law, p. 105 becomes payable by the husband to the (2008) edited and revised by wife on marriage, either by agreement Tahir Mahmood. between the parties or by operation of law. It may either be prompt Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 3066 International Journal of Research p-I SSN: 2348-6848 e-I SSN: 2348-795X Available at Volume 04 Issue 0 2 https://edupediapublications.org/journals Februa ry 2017 man to the woman for entering into the „Dower under the Muslim law is a sum contract; but an effect to the contract of money or other property promised imposed by the law on the husband as by the husband to be paid or delivered a token of respect for its subject, the to the wife in consideration of woman.8 marriage, and even where no dower is expressly fixed or mentioned at the According to Wilson, “Dower” marriage ceremony, the law confers is a consideration for the surrender of the right of dower upon the wife‟. person by the wife. It is the technical Anglo-Mohammedan term for its In Saburannessa v. Sabdu equivalent „Mahr‟ in Sheikh, Calcutta High Court has Arabic. observed that Muslim marriage is like According to Ameer Ali, a contract of sale in which the wife is “Dower” is a consideration which the property and dower is the price. belongs absolutely to the wife. The above opinions are based According to Mulla “Dower” is on the argument that marriage is a civil a sum of money or other property contract and dower is a consideration which the wife is entitled to receive for the contract. But it is submitted that from the husband in consideration of the above opinions are erroneous, because even in those cases where no the marriage. The word dower is specified at the „consideration‟ is not used in the sense in which the word is used in the Indian Contract Act. It is not obligation 8 N.B.E. Baillie, Digest of Moohummudan imposed upon the husband as a mark Law, Vol. I, p. 195 (1980). or respect to the wife. 3 Dr. Jung defines “Dower” as the property or its equivalent, incumbent on the husband either by reason of being agreed in the contract of marriage or by virtue of a separate contract, as special consideration of Buza, the right of enjoyment itself. Hon'ble Justice Mahmood has said in Abdul Kadir v. Salima, that Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 3067 International Journal of Research p-I SSN: 2348-6848 e-I SSN: 2348-795X Available at Volume 04 Issue 0 2 https://edupediapublications.org/journals Februa ry 2017 time of marriage, marriage is not void The following points may be noted with respect to the nature of Dower: on that account, but the law requires that some dower (proper dower) 1. Analogy is often drawn between a should be paid to the wife. contract for dower and one for sale. The wife is considered, to be the Abdur Rahim correctly property and the dower her price. observes, “It is not a consideration proceeding from the husband for the Mahmood, J., In Abdul Kadir contract of marriage, but it is an v. Salima, gives the best description of the nature of dower. He observes: obligation imposed by the law on the husband as mark of respect for the wife “Dower, under the Muhammadan Law, as is evident from the fact that the non- is a sum of money or other property specification of dower at the time promised by the husband to be paid or of marriage does not affect the validity delivered to the wife in consideration of marriage”. of the marriage, and even where no dower is expressly fixed or mentioned Nature of Dower at the marriage ceremony effect of Dower in the present from was marriage. To use the language of the introduced by the Prophet Mohammad Hedaya, the payment of dower is and made obligatory by him in the case enjoined by the law merely as a token of every marriage. Dower in Muslim of respect for its object (the woman), law is somewhat similar to the danatio wherefore the mention of it is not propter nuptias in Roman law. The absolutely essential to the important difference, however, is that while under the Roman law it was validity of a marriage; and, for the voluntary, and under the Muslim Law same reason, a marriage is also valid, it is absolutely obligatory. although a man were to engage in the contract on the special condition that Islam insists that dower should be paid there should be no dower”.9 to the wife herself.