Concept of MAHR [dower]

1. Concept of MAHR [dower] • Two kinds of marriage prevailed in Pre-Islamic arabia. • Beena form-wife[sadaqa] after Nikah did not accompany her husband to his home. • Gift [Sadaq] was given to wife. • Baal marriage [As asura marriage under hindu law] –wife accompanies-husband pays some amount to her parents. • This amount was known as Mahr [consideration for marriage]

2. Concept of Mahr [dower] • Dower/morning gift-object is to support in the event that she survives her husband. • It is integral part of Muslim Marriage. • Generally no writing is required-but Mahr-nama can be prepared. • A/c to Mulla, it is a sum of money or other property • Which the wife is entitled to receive from the husband in consideration of marriage.

3. Concept of Mahr [dower] • When the groom gives his bride the dower, it becomes her property. • In case of a divorce, she won't have to give up her dower unless she is the one who requested the divorce . • The amount promised or paid to the bride forms part of her personal property and is of assistance to her in times of financial need, such as a divorce or desertion by the husband . • While the Mahr is usually in the form of cash, it may also be a house or viable business that is put in her name and can be run and owned entirely by her if she so chooses.

4. Concept of Mahr [dower] • Now it is given to wife-a provision for rainy days. • It may put a check on the capricious exercise of his unlimited power of divorce. • Because at divorce whole dower becomes payable immediately. • It is not consideration as used in contract act but obligation imposed upon husband as a mark of respect to the wife.

5. Kinds of dower • There can be no marriage without Mahr. • It may be either specified or unspecified. • Specified-husband and wife may settle any amount they like . • Unspecified/proper/customary dower-if not settled.[age, beauty, understanding and virtue are kept in mind while fixing proper dower] • Major husband is obliged to pay. • Minor husband-his father has power to make contract of dower but contract is binding on husband.

6. Kinds of dower • On attaining the age of puberty-he can take the plea that he was not party to contract.[privitiy of consideration] • Stranger to consideration is allowed but stranger to contract is not allowed. • This above is exception to the general rule of contract. • Sunni law –father in such case is not a surety[Not liable in case son is avoiding] • Shia law-he is liable personally if son avoids.

7. Kinds of dower • Specified dower may be prompt or deferred. • Prompt-payable immediately after marriage if demanded by wife. • She may demand before or after consummation. • Wife may refuse to stay with husband so long as dower remains unpaid.

8. Kinds of Mahr • Non payment of dower is good defence in a suit for RCR by Husband. • She may assign the whole or any part of dower to any person. • Once it is confirmed[by consumation ] , no forfeiture even if on gross misconduct or adultery on part of women. • Not Even when she kills her husband or husband kills her[heirs will get it] • If dower is not confirmed by consummation, and they want to separate then half dower or only a present[if dower not specified] • If prompt dower is not paid, wife and after her death—heirs may sue within 3 years. • Limitation commences when demand is made and refused or marriage is dissolved by death or divorce.

9. Kinds of Mahr • Mahr which is payable on the dissolution of marriage by death or divorce or happening on specified event. • Deferred does not become prompt merely because wife demands it. • Shia law-if it is not fixed at time of marriage, whole amount is considered as prompt. • Sunni-part is regarded as prompt and part is deferred.

10. Kinds of Mahr • On dissolution of marriage- wife is entitled to the immediate payment of whole/half unpaid dower if marriage was consummated/unconsummated. • In case of her death, heirs can claim within 3 years. • If amount of dower is has not been settled or even if there is stipulation that wife will not claim • Wife is still entitled to proper/customary dower. • The amount is fixed by court at the discretion of the court.

11. Kinds of Mahr • Amount of Mahr-it may be fixed or not. • If fixed then it can not be less 10 dirham in sunni but not minimum fixed in shia law. • Shia says proper dower can not exceeds 500 dirhams [dower fixed for prophet’s daughter] • Dower-if husband promises to teach koran to his wife [Prophet allowed once]

12. Kinds of marriage • Husband at any time after marriage increase it but can not decrease it . • He can decrease with consent of wife. • Wife may remit the dower wholly or partially. • It must be with free consent. • Age will be governed by IMA[confusion exists till today] • Wife can also reduce the amount voluntarily. • Mahr remitted- Wife was in great mental distress owing to her husband’s death.[No free consent.

13. Kinds of Mahr • Wife thinks she is not getting affection due to claim of Mahr-Not good. • Enforcement of dower— • The claim of wife [divorce] or widow [death] is unsecured debt due to her from her husband or his estate, on his death. • In case she dies, her heirs including husband become entitled to her dower.

14. Kinds of Mahr • Wife ‘s right is no greater than that of any other unsecured creditor but bigger if compare with rights of heirs except • If she obtains possession of deceased husband’s property lawfully , she is entitled to hold it until her debt is satisfied. • This right is an actionable claim. • It can be recovered not only from husband but also from heirs in case of death of husband.

15. Dower as a debt • If husband is not paying prompt dower, she can live separetely and demand maintenance. • If wife is minor, guardian may refuse to send minor to matrimonial home till the dower is paid. • Wife can file a suit against husband for recovery of her dower debt. • The heirs of are not personally liable for payment of dower-debt. • They are liable to the extent only of share of debt proportionate to his share of estate.

16. Widow right of retention • Maina Bibi V Vakil ahmed 1924 IA • When this right is lost? • When the income and profits of property her dower debt is satisfied. • Where she alianates property and possession.[generally not allowed] • Where she voluntarily hands over possession to heirs. • Heirs can also file a suit for share in retained property by widow/divorcee, court will grant decree subject to condition that share should be given to her proportionally.

17. Kharch-i-pandan • Mewa khori • This is enforceable by court . • Right of retention is transferrable or not? • Different courts , different views • Personal right or right attached to property. • If property , it is transferrable. • Confusion still exists.

18. Kinds of Mahr • Right of retention • This right comes into existence only after the husband’s death or upon divorce. • She can retain only where possession is in her hands in Lieu of her unpaid dower. • She can not obtain its possession after death of husband. [she should already have possession] • This right gives no title to her. She can not alienate the property. • If property is mortgage property-compensation is allowed.