(DOWER)
VARIOUS
DEFINITIONS OF DOWER:
1)
ACCORDING TO FATAWA
ALAMGIRI:
“Dower is an obligation imposed
by law on the husband as a mark of
respect for the wife”.
2)
ACCORDING TO MULLA:
“ A sum of money or other property which the wife is
entitled to receive from husband in consideration of marriage”.
3)
ACCORDING TO ABDUR
RAHIM;
“Mahr” (Dower) is either a sum of money or other
form of property to which the wife becomes entitled by marriage”.
EXPLANATION:
Dower is inherent in the concept of the Muslim
marriages and it is an integral part of it also.It is a sum of money or other
property promised by the husband to be paid or delivered to the wife in
consideration of the marriage and even where no dower is expressly fixed, the
law confers it. Dower is enjoined by the law merely as a token of respect, the
mention of it is not absolutely essential to the validity of marriage.
Dower
may be fixed:
1)
Before marriage
2)
At the time of marriage, or
3)
After marriage.
Importance of Dower:
The concept of dower is important because:
1)
It imposes obligation upon husband and is regarded as a token of respect towards wife.
2)
It provides for subsistence of wife in
the event she is divorced by the husband.
3)
It puts a check on the absolute power of
husband to divorce and polygamy.
Who can fix Dower:
The parties or their agents can fix/determine the
dower, but such parties must be adult and sane. On behalf of minor or person of
unsound mind, guardians or their agents can enter into contract.
Written/oral:
The contract of dower may be in written or oral
form.
Subject matter of Dower:
Anything which is not forbidden for Muslims and
everything which comes under the category of Mal is a valid subject of dower. It
may include both money and property.
Classification of Dower:
Dower can be classified into different types as, for
the purpose of determination of amount into specified, proper or a present and
for the purpose of determining the time for is payment into prompt and
deferred. Generally speaking following are the notable kinds of dower
recognized under Islamic Law-
1)
Unspecified or Proper
Dower (Mahr- e -Misl)
It is usually
payable when dower is not specified at the time of marriage, or
when the marriage has been contracted on the
condition that the wife will not claim any dower. In such a situation, if the
marriage is dissolved, the wife is entitled to Proper Dower.
It is the dower of the equals of wife and for it,
many factors are considered such as:
1) Social position of woman's family especially her
father,
2) Local custom,
3) Personal qualifications29 of wife,
4) Dower settled on wife's female paternal relations
5)Wealth of husband etc.
This is the dower which is fixed before, after or at
the time of marriage. In case any part of specified dower is illegal, the
remaining part will be presumed to be specified and where whole specified is
illegal then proper dower will be payable. This sort of dower is further
classified into 1) fictitious and 2) excessive dowers".
Specified dower may be:
A) Prompt
Dower
B) Deferred
Dower
A) Prompt
Dower (Mehr-e-Muajjal)
It is the dower which is payable on demand and is
payable immediately after marriage, if demanded by the wife. She can demand it
before entering into conjugal relationship. The payment of dower can be
postponed with mutual consent of parties.
B) Deferred
Dower (Mehr-e-Muwajjal)
It is postponed till a specified time or dissolution
of marriage either by death or divorce. Wife cannot demand it before specified
time or during subsistence of marriage and this dower binds the husband during
his lifetime and his estate after his death. If at the time of marriage, it is
not specified which part of dower is prompt and which deferred, then Sunni Law
treats ½ as prompt and 1/2 as deferred and Shia Law regards whole as prompt.
Legal Consequences of Mahr:
(Rights of wife in case of non payment
of Mahr).
· Dower
is like a debt.
· If
the wife posses husband’s property, she has a right to retain it until the
dower is paid.
· Wife
can sue heirs of the husband for payment of dower.
· If
the dower is deferred dower, the wife is entitled to it upon the dissolution of
marriage.
· Dower
is a vested right and not a contingent right. Even after the death of wife, her
heirs can demand it.
· Wife
could refuse herself to husband and can live separate from him until prompt
dower was paid by husband to her. During such separation, held, husband was
bound to maintain wife.(PLD 1971 Lah).
Comparison of Dower:
Sunni law:
1)
Minimum 10 Dirhams for specified dower.
2)
No maximum limit for specified dower.
3)
An agreement that no dower shall be paid,
is void.
4)
In the absence of any contract, only a reasonable
part of the dower is considered to be prompt, rest is deferred.
5)
Unspecified dower shall be payable in case
of dissolution of marriage( by death) whether the marriage was consummated or not.
Shia law:
1)
No minimum limit for dower.
2)
Dower above 500 Dirhams is considered awful
but legal.
3)
An agreement by sane and adult wife, that
no dower shall be paid is valid.
4)
In the absence of any contract, whole of
dower is presumed to be prompt.
5) In case of dissolution of marriage(by death), unspecified dower shall be payable only if the marriage was consummated.
Conclusion:
Dower is a financial
gain which the wife is entitled to receive from her husband by the virtue of marriage.
It may be fixed before, after or at the time of marriage. The right of wife to dower
becomes complete on the consumption of marriage. It is regard as a token of respect
towards wife and it’s amount can be increased even after marriage.
The End.
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