ACKNOWLEDGEMENT for This Project Has Involved Over One Month Time of Researching and Writing
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ACKNOWLEDGEMENT For this project has involved over one month time of researching and writing. This project has been helpful in enriching my knowledge and clearing my concept about the topic. Many people have been extraordinarily generous with time, information and counsel. So with pleasure, I would like to dedicate a paragraph to them. But I shall hope that each of the individuals and institutions named will appreciate the extent and warmth of my gratitude to them. Institutions The library staff of Chanakya National Law University, Patna who helped me during the entire period, with books and other materials for the accomplishment of this project work. Individuals These are divided into several groups, beginning with those friends, colleagues, and mentors who supported me all through the project work. In no particular order, they are: my honourable faculty DR. SHAIWAL SATYARTHI and librarian RATNESH KUMAR and others. Last but not least I would like to thank Almighty whose blessing helped me to complete this project. 1 | P a g e RESEARCH METHODOLOGY Aims and Objectives: The aim of this research paper is to present a detailed study MAHR AND ITS SOCIAL ASPECTS Scope and Limitations: The researcher has used the doctrinal method and has relied on the secondary sources for the content of the research paper. Owing to the large number of topics that could be included in the project, the scope of this research paper is exceedingly vast. However in the interest of brevity, this paper has been limited to the topics which deal with the topic i.e MAHR. Sources of Data: The following secondary sources of data have been used in the project- • Articles • Books • Writing Method of Writing: The method of writing followed in the course of this research paper is primarily descriptive as well as analytical. Mode of Citation: The researcher has followed a uniform mode of citation throughout the course of this research 2 | P a g e CHAPTER-I INTRODUCTION In an Islamic marriage, the groom is obliged to give the bride a wedding gift, called a "mahr." This gift is meant to show his appreciation for her, and is a token of sincerity and warmth on his behalf. Often, if the bride wishes, the mahr is merely a symbol. In many cultures, however, the groom gives substantial amounts of money, land or jewelry to the bride. According to Islamic legal tradition, the mahr becomes the property of the wife. Muslims proudly consider this to be one of the many ways that Islam improved the status of women, since in pre-Islamic Arabia and much of Europe until the modern age, women were not allowed to independently own property or wealth. The purpose of mahr The right in Islam for a wife to receive Mahr and to dispose of it as she pleases is a Qur’an injunction1: “And give unto the women (whom ye marry) free gift of their marriage portions; but if they of their own accord remit unto you a part thereof, then ye are welcome to absorb it (in your wealth).” In Islam many newly wed couples are comparative strangers to each other unlike the relationships established before marriage in the vast majority of marriages of Christians from Western or Roman churches. Therefore, the process of negotiating and giving a gift to the bride, and her remittal of part or the whole of the gift offered may be considered to be an act of reciprocal altruism or the first step in the process of developing their partnership from an assumed platonic social relationship into an intimate personal partnership. The mahr given by the groom to his bride during an Islamic wedding can be interpreted as the transfer of the ownership and title to a sum of 1 Robert Smith, Kinship, 93 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University Press, 4th Edition, 2002) p.132 3 | P a g e money or property to publicly confirm his recognition of her new role in the family and society. This gift, viewed in this way, is in essence an act of empowerment and recognition of the woman’s increased social capacity that establishes her right to act more independently than an un-married woman. This recognition is not in principle affected by the value of the gift except that it can only be proven to be an actual recognition of rights when she has possession of the gift and by the degree of freedom of control she exercises over it.Upon the death of a wife her mahr, whether it has been paid to her or not, becomes the property of her heirs and they may claim its payment from her husband. If the husband dies before her she may claim it from his estate before it is divided amongst the inheritors or claim it from his heirs if it has been mixed with the deceased’s estate for any reason. The shari’ah guidance upon the value of mahr Although the mahr is an obligatory and essential element of the ‘aqd al-Nikāh the shari’ah does not set a maximum value upon the gift but its minimum value is specified as teaching the bride the verses of the Qur’an known to the groom. This value is derived from the hadith that describe a woman asking the Prophet if she could be married. The Prophet asked the men sitting with him if any of them wished to marry the woman and one man said that he would but when the Prophet asked if he had anything to give to the woman he explained that neither he nor his family had anything that they could give to her as a bridal gift. The Prophet asked what he knew of the Qur’an and to him to teach that to the woman as her gift. (Bukhari 1985:7.62.24) Versions of this hadith also appear in Muslim, al-Muwatta’, with different isnāds in Taḍ īb al-. Some schools of Islamic law do recommend minimum cash values below which the mahr is considered as “disliked” but these are on the whole very low sums although it may be of interest to consider on what basis one of these values was calculated. “I do not think that women should be married for less than a quarter of a dinar. That is the lowest amount for which cutting off the hand is obliged.” (Mālik 1980:3.11) This analogous use of amputation, adopted with differing resultant sums by Mālik and Abū Hanīfa, was criticised by Ibn 4 | P a g e Rushd (d. 1198 CE) for its weakness and its use in opposition to sound hadith. (Ibn Rushd 1996). The strength of the hadith specifying that there is no minimum value for mahr has not prevented an acceptable sum being established from the usual practice of the Prophet. Mahr al-sunnah as it is termed, is a recommended value set at not more than 500 dirhams. This sum of money is recommended because it is explicitly mentioned in several similar hadith that have been transmitted from different primary narrators and verified by scholars of both the Sunni and Shi’a schools. The following hadith is one of the versions found in Saḥ ih al-Muslim: Abū Salama b. ‘Abd al-Rahmān reported: I asked Ā’isha, the wife of Allah’s Messenger (saw): How much was the ṣadāq (mahr) of Allah’s Messenger? She said: It was twelve ūqiyya (ounces) and one nash. She said: Do you know what a nash is? I said: No. She said: It is half of an ūqiyya, so that is five hundred dirhams, and that was the ṣadāqthat Allah’s Messenger married with. (Muslim 1990: opposite p. 357) Spectorsky draws attention to hadith which indicate values of 480 and 400dirhams for mahr al-sunnah: Ibn S’ad has a chapter on the dowers of the Prophets’s wives, which contains eight traditions. Half report 500 dirhams as the amount that both the Prophet’s wives and his daughters received; the other half report 480 dirhams.” (Spectorsky, S. 1993:18) She does not give any consideration to the changing value of the dirham during the period of the reporting and collecting of hadith. Certainly the number 5 | P a g e CHAPTER-II DEFINITION PRIOR to Islam, two kinds of material gifts were prevalent. In a certain type of marriage, the so-called beena marriage, where the husband visited the wife but did not bring her home, the wife was called sadiqa or female friend, and a gift given to the wife on marriage was called sadaq. ‘In Islam sadaq simply means a dowry and is synonymous with mahr. But originally the two words were quite distinct: sadaq is a gift to the wife and mahr to the parents of the wife.’2 The latter term belongs to the marriage of dominion, which is known as the baal marriage, where the wife’s people part with her and have to be compensated. Now mahr in the baal form of marriage was used by the Prophet to ameliorate the position of the wife in Islam, and it was combined with sadaq, so that it became a settlement or a provision for the wife. In Islamic law, mahr belongs absolutely to the wife.3 Thus, historically speaking, the idea of sale is latent in the law of mahr (dower). Justice Mahmood defines dower as follows: ‘Dower, under the Muhammadan law, is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of 2 Robert Smith, Kinship, 93 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University Press, 4th Edition, 2002) p.132 3 Kor.