CHAPTER THIRTEEN

THE DOWER

Th e dower is a specifi c sum of money or other property which it has been agreed between the parties shall be payable by the man to the woman simply as an eff ect of their marriage. It is neither an essential nor a condition for the validity or eff ectiveness of the marriage con- tract, nor to make it binding, nor is it mentioned as being so in any modern Islamic legislation. According to the Hanafi Jurist Kamaluddin ibn al-Hammam “Dower has been ordered to underline the prestige of the marriage contract and to stress its importance . . . It has not been enjoined as a consideration like a price or a wage, otherwise it would have been set as a prior condition.” Th e Qur’an ordains “And give to the women [whom you marry] their Mahr [obligatory bridal-money given by the husband to his wife at the time of marriage] with a good heart . . .” (4:4) “. . . We have made lawful to you your wives, to whom you have paid their Mahr . . . We know what We have enjoined upon them about their wives . . .” (33:50). So although a marriage contract is deemed valid without any mention of the dower, it is a fi tting gift to be given by the man to show the woman that he honours both her and the institution of marriage. Th e dower is defi ned by the Moroc- can legislator as “. . . the property given by the husband to indicate his willingness to contract marriage, to establish a family, and to lay the foundations for aff ection and companionship.” (Art. 16). Indeed, here we have another of those misconceptions widely held in the West, that the dower is a “bride price”. In fact, under Moroccan law it is expressly prohibited for the bride’s guardian, whether he is her father or not, to receive anything at all for himself from the suitor in consideration of marriage to his daughter or ward. It is the same under Jordanian law, where the woman’s family are prohibited from receiving any form of gift in consideration of the marriage, and were it to be later discovered that something of that nature had been handed over, the husband would be entitled to its return. I think at this point, readers, particularly if non-Muslim, will gather from the above paragraphs that the Muslim “dower” has no relationship whatsoever with the Western concept of a “dowry” within the context 88 chapter thirteen of marriage. A dowry (although now very much an outmoded concept) was money, property, or both, which any family with a daughter, no matter what their circumstances, would have been expected to provide in order to literally make the bride more attractive to prospective suitors, and indeed, to achieve the best match possible! Th is is most obviously completely opposite to the dower. Classical jurists infer that no sin is committed by those who divorce their wives before consummation of the marriage or agreement on the dower has been reached, citing the Qur’anic verse “Th ere is no sin on you, if you divorce women while yet you have not touched [had sexual relations] with them, nor appointed unto them their Mahr . . .” (2:236). Th e inference is that since divorce can only occur aft er a valid marriage, then the verse proves that a marriage contract can be valid without any mention of dower. However, to qualify the dower as an eff ect or a consequence of the marriage contract, rather than as an essential or validating condition of it, does not in any way weaken the wife’s entitlement to it. Even if it is not explicitly contained within the contract, her right to it is taken for granted, and indeed, the Shi’ahs maintain that should the husband include any condition in the marriage contract that he pays no dower, that condition is null and void, although the contract itself remains valid (Ref. al-Hilli, Ja’fari Provisions on Personal Status, p. 6). Under Article 52 of the Kuwaiti law, the provision is that the dower is due to the wife by the very fact of a valid marriage contract. Th e provision of Article 53 of the Syrian law agrees, and goes on to add in Article 61 that whether the dower is specifi ed in the contract, or remains unspecifi ed, or is left out altogether, the husband only becomes free of his obligation to pay the dower to his wife once he has actually paid it! Under sub-section 1 of Article 61, the Syrian legislator rules that if the dower is not speci- fi ed, then the dower of the equal applies, and this is also the case in the event of an irregular specifi cation, (an irregular specifi cation being a dower of some forbidden commodity such as wine). Iraqi law (Art. 19) contains the same provision. Jordanian law rules that the wife, because the dower becomes her property, cannot be compelled to buy furniture or domestic appliances with it (Art. 61), and Tunisian law states that she can dispose of her dower in any way she chooses (Art. 12). Under Article 18 of Moroccan law, the last two provisions are similarly ruled. Th e wife cannot lose her entitlement to the dower through prescription (any kind of rule, law or direction) alone. Th is basic Shari’ah provision is contained expressly in the Syrian law. “Th e deferred dower shall not be subject to prescription provisions even if a promissory note was