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PROJECT

FAMILY LAW - I

ANALYSIS OF DOWER

NATIONAL LAW UNIVERSITY

Presented to Saroj Sharma Ma’am.


Faculty, Family Law

Submitted by: Mayank Jain

Roll no.- 410

Submitted on: 31 st
January 2008

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RESEARCH METHODOLOGY
Area: Muhammadan Law

Topic: Types of Dower and effects of Non-payment of Dower.

Objective: This project work has been designed to fulfill certain underlying objectives,
which are strategic in understanding as to what the different types of dower are and what
the effects of non-payment of dower amount are.

Research Questions:
1. Definition of Dower- A price for sale or a mark for respect.
2. Different Types of Dowers.
3. Recourses a wife can have to enforce her right to dower when it is not paid.
4. Women’s right of retention of deceased husband’s property in lieu of unpaid dower
amount- is it transferable?

Sources
 The project would look into the books, journals, texts and websites in course of
compiling this project.

Tentative Chapterization:
CHAPTER I - INTRODUCTION
CHAPTER II - DEFINITION
CHAPTER III - TYPES OF DOWERS
CHAPTER IV - NON-PAYMENT OF DOWER
CHAPTER V - CASE ANALYSIS

2
BIBLIOGRAPHY

Time Schedule- This project has been prepared in the course of the research made during
the last twenty days.

Footnoting Style: The footnoting style that would be adopted in this paper is the NLU
Uniform style based on the Harvard Blue Book Style.

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Chapterization
1. Introduction
2. Definition
3. Types of Dower
4. Non- Payment of Dower
5. Case Analysis
6. Conclusion

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CHAPTER-I

INTRODUCTION

One of the essential parts of Muslim marriage is “dower” paid or promised to be paid by
the husband to the wife. Without mahr a nikah can not be said to have been properly
solemnised. Dower money must be paid or fixed before the solemnisation of a marriage.
Dower must not, however be confused with “dowry” which consists of presents made by
father and other relations of the bride and Muslim Law does not make any provision for
payment of dowry. Dower is the sum of money or other property which the wife is
entitled to receive from the husband in consideration of marriage.1 The amount of dower
may be fixed either before or at the time of marriage of after marriage. The law does not
say anything about the quantum of dower. The amount of dower is generally split into two
parts- “prompt dower” which is payable immediately on demand by the wife and
“deferred dower” which is payable only on dissolution of marriage by death or divorce. In
this present endeavour the author would try to explain in detail the types of dower and the
effect of non-payment of dower. Some of the important cases with respect to dower would
also be analysed.

1
D.F. Mulla, Principles of Mohammedan Law, 17th Ed.P.277

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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 the
marriage, and even where no dower is expressly fixed or mentioned at the
marriage ceremony, the law confers the right of dower upon the wife.’4

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. iv, 4; Ameer Ali, II, 461-2; Fat. Law δ 70 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan
Law, (Oxford University Press, 4th Edition, 2002) p.132
4
Abdul Kadir v. Salima (1886) 8 All. 149

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It is not ‘consideration’ in the modern sense of the term; but an obligation imposed by the
law upon the husband as a mark of respect to the wife.5 This is made abundantly clear by
the author of the Hedaya when he says:

‘The payment of dower is enjoined by the law merely as a token of respect for its
object (the women), wherefore the mention of it is not absolutely essential to the
validity of a marriage; and, for the same reason, a marriage is also valid,
although the man were to engage in the contract on the special condition that
there should be no dower.’6

There is no doubt that mahr was originally analogous to sale-price, but since the inception
of Islam it is hardly correct to regard it as the price of connubial intercourse. If the authors
of the Arabic text-books on Muhammadan law have compared it to price in the law of
sale, it is simply because marriage is regarded as a civil contract in the system.
In pre-Islamic Arabia, sadaq was a gift to the wife; but mahr was paid to the wife’s father,
and could therefore be regarded as tantamount to sale-price. But when Islam insisted on
its payment to the wife, it could no longer be regarded strictly as a sale 7. Thus Islam
sought to make mahr into a real settlement in favour of the wife, a provision for a rainy
day and, socially, it became a check on the capricious exercise by the husband of his
almost unlimited power of divorce. A husband thinks twice before divorcing a wife when
he knows that upon divorce the whole of the dower would be payable immediately.
The Muslim concept of dower has no reference to the price that under some systems of
law was paid to the father of the bride when she was given in marriage. On the other
hand, it is considered a debt with consideration (for submission of her person by the
wife). The result is that dower is purely in the nature of a marriage settlement and is for
consideration. It is a claim arising out of contract by the husband and as such has

5
Abdur Rahim, 334. as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University
Press, 4th Edition, 2002) p.133
6
Hamilton’s Hedava, 2nd ed. By Grady, 44, cited by Mahmood J. in Abdul Kadir v. Salima (1886) 8 All. 149
at 157-8.
7
Robert Smith, Kinship, 92-3, 111; Ameer Ali shows how the change was effected, II, 432-4, 461-3 as cited
from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University Press, 4th Edition, 2002) p.133

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preference to (sic) bequests and inheritance, but on no principle of Muhammadan law it
can have priority over the contractual debts8

The best general observations on dower are those of Lord Parker of Waddington in
Hamira Bibi v. Zubaida Bibi9 :

‘Dower is an essential incident under the Mussulman law to the status of


marriage; to such an extent this is so that when it is unspecified at the time the
marriage is contracted the law declares that it must be adjudged on definite
principles. Regarded as a consideration for the marriage, it is, in theory, payable
before consummation; but the law allows its division into two parts, one of which
is called ‘prompt’, payable before the wife can be called upon to enter the
conjugal domicil; the other ‘deferred’, payable on the dissolution of the contract
by the death of either of the parties or by divorce…..But the dower ranks as a
debt, and the wife is entitled, along with the other creditors, to have it satisfied on
the death of the husband out of his estate. Her right, however, is no greater than
that of any other unsecured creditor, except that if she lawfully obtains possession
of the whole or part of his estate, to satisfy her claim with the rents and issues
accruing therefrom, she is entitled to retain such possession until it is satisfies.
This is called the widow’s lien for dower, and this is the only creditor’s lien of the
Mussulman law which has received recognition in the British Indian Courts and
at this Board.’

AMOUNT OF DOWER

8
Per Khaliluzzaman J. in Kapore Chand v. Kadar Unnissa, [1950] S.C.R. 747 at 751
9
(1916) 43 I.A. 294 at 300-1; also cited in Syed Sabir Husain v. Farzand Hasan (1937) 65 I.A. 119 at 127.

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The amount of mahr may either be fixed or not; if it is fixed, it cannot be a sum less than
the minimum laid down by the law.

Minimum Dower
1) Hanafi law - 10 dirhams
2) Maliki law - 3 dirhams
3) Shafii law – No fixed minimum
4) Shiite law – No minimum fixed.

A dirham (Persian, diram, a word derived from the Greek) is the name of a silver coin
2.97 gram in weight10, and is usually valued at 3-4 annnas or 20-25 paise. In India, it has
been held that the value of ten dirhams is something between Rs.3 and 411. Thus it will be
seen that the minimum doer fixed by the law can hardly be deemed to be an adequate
provision for the wife. In fact, it would be a mistake to lay too great a stress upon the
monetary value of the minimum dower. It is said that in the case of an extremely poor
man, the Prophet requested him to teach the Koran to his wife, and this was considered by
the Lawgiver to be an adequate requital of the husband’s obligation.

Among the Muslims of India two distinct tendencies are to be found in society. In some
cases, as in the Sulaymani Bohoras, the dower is Rs. 40, it being considered a point of
honour not to stipulate for a sum higher than the minimum fixed by the Prophet for his
favourite daughter Fatima, the wife of Ali, namely 500 dirhams. Among certain other
communities, there are dowers of anything between a hundred and a thousand rupees;
Ameer Ali mentions amounts between four to forty thousand rupees. An altogether
different tendency is to be found in Uttar Pradesh, and also to some extent in Hyderabad,
Deccan, where the absurd rule appears to be that the nobler the family, the higher the
mahr, regardless of the husband’s ability to pay or capacity to earn.
CHAPTER- III

10
According to Wilson’s Glossary, ‘a silver coin 45-50 grains in weight, rather heavier than six pence’.
11
Asma Bibi v. Abdul Samad (1909) 32 All. 167.

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TYPES OF DOWER

We have seen that dower is payable whether the sum has been fixed or not, Ali said:
‘There can be no marriage without mahr’. Thus, dower may, first of all, be either
specified or not specified. In the latter case, it is called mahr al-mithl, Proper Dower, or to
be strictly literal, ‘the dower of the like’. If the dower has been specified, then the
question may be whether it is prompt (mu‘ajjal) or deferred (muwajjal, strictly mu’ajjal).

Thus we have two kinds of dower in Islam:


A. Specified Dower (al-mahr al-musamma); and
B. Unspecified Dower or Proper Dower (mahr al mithl).

Specified Dower may be again be divided into-


• Prompt - mu‘ajjal, and
• Deferred - mu’ajjal.

In (A) and (B) the question before the court is the amount payable: in (I) and (II) the
question is the time when payment has to be made.

A. Specified Dower (al-mahru al-musamma)12

Usually the mahr is fixed at the time of marriage and the kazi performing the ceremony
enters the amount in the register; or else there may be a regular contract called
kabinnama, with numerous conditions. The sum may be fixed either at the time of
marriage or later, and a father’s contract on behalf of a minor son is binding on the minor.

Where a father stipulates on behalf of his son, in Hanafi law, the father is not personally
liable for the mahr; but aliter in Ithna ‘Ashari law. In Syed Sabir Husain v. Farzand
Hasan, a Shiite father had made himself surety for the payment of the mahr of his minor
son. Thereafter he died, and it was held that the estate of the deceased was liable for the
12
Also called mahr al-‘aqd.

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payment of his son’s mahr. Accordingly each heir was made responsible for a portion of
the wife’s claim in proportion to the share received by the particular heir on distribution
from the estate of the deceased. The heirs were, however, liable only to the extend of the
assets received by them from the deceased, and not personally13.

Where the amount has been specified, the husband will be compelled to pay the whole of
it, however excessive it may seem to the court, having regard to the husband’s means; but
in Oudh, only a reasonable amount will be decreed, if the court deems the amount to be
excessive or fictitous14.

B. Unspecified Dower (mahr al-mithl)15

The obligation to pay dower is a legal responsibility on the part of the husband and is not
dependent upon any contract between the parties; in other words, if marriage, then
dower16. Where the dower is specified, any amount, however excessive, may be stipulated
for. But what are the principles upon which the amount of dower is to be determined
where no agreement exits?

The customary or proper dower of a woman is to be fixed with reference to the social
position of her father’s family and her own personal qualifications. The social position of
the husband and his means are of little account. The Hedaya lays down the important rule
that her ‘age, beauty, fortune, understanding and virtue’ must be taken into consideration.
Islamic marriage, therefore, safeguards the rights of a wife and attempts to ensure her an
economic status consonant with her own social standing. Historically speaking, and on
the analogy of sale, it is permissible to ask: ‘What have the circumstances of a purchaser
to do with the intrinsic value of the thing he buys?’ The answer is that the Indian courts no

13
(1937) 65 I.A. 119.
14
This is called ‘fictitious dower’. Sometimes for the purpose of ‘glorification’ a larger mahr is announced,
but the real mahr is smaller. Such a mahr for the purposes of ‘show’ is know as sum‘a.
15
Ameer Ali calls it the ‘customary’ dower.
16
This has been emphasized by the Privy Council in Syed Sabir Husain’s Case, (1937) 65 I.A. 119

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longer consider marriage as a form of sale or barter, and do not proceed upon the analogy
that dower is the price of consortium.

In fixing the amount of the proper dower, regard is to be had to the amount fixed in the
case of the other female members of the wife’s family. ‘Mahr is an essential incident
under the Mussalman law to the status of marriage; to such an extend that is so that when
it is unspecified at the time the marriage is contracted the law declares that it must be
adjudged on definite principles’.17 The main consideration is the social position of the
bride’s father’s family, and the court will consider the dowers fixed upon her female
paternal relation such as sisters or paternal aunts who are considered to be her equals.

The Prophet once allowed the marriage of an indigent person for a silver ring; and on
another occasion, merely on the condition that the husband should teach the Koran to his
wife. In Hanafi law, where the specified dower is less than 10 dirhams, the wife is entitled
only to the minimum, namely 10 dirhams, and in Ithna ‘Ashari law, the proper dower
can never exceed 500 dirhams, the dower fixed for the Prophet’s daughter Fatima. Thus,
among the Shiites there are three kinds of mahr:
i. Mahr-e sunat, the dower supported by tradition, i.e. 500 dirhams;
ii. Mahr-e mithl, ‘the dower of the like’, or the dower of an equal, which is the
technical name for proper or unspecified dower; and
iii. Mahr-e musamma,the specified dower.

Prompt (mu‘ajjal) and Deferred (mu’ajjal) dower

When the dower is specified, the question arises: At what times and in what proportions is
the amount payable? Here two somewhat puzzling terms are used and it is necessary to

17
Syed Sabir Husain’s Case, (1937) 65 I.A. 119

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distinguish carefully between them. The technical term for ‘prompt’ dower is mu‘ajjal. It
is derived from a root meaning ‘to hasten, to preced’. The term mu‘ajjal, therefore, means
‘that which has been hastened or given a priority in point of time’. The term mu’ajjal,
however, means ‘delayed, deferred’, and comes from a root which means ‘to delay or
postpone’. Written in the original Arabic there would be no cause for confusion, but in the
usual English forms of spelling the words often puzzle those who are not familiar with the
Arabic tongue.

Prompt dower is payable immediately after the marriage, if demanded by the wife; while
deferred dower is payable on the dissolution of the marriage or on the happening of a
specified event. When dower is fixed, it is usual to split it into two equal parts and to
stipulate that one shall be paid at once or on demand, and the other on the death of the
husband or divorce or the happening of some specified event. But a difficulty arises when
it is not settled whether the dower is prompt or deferred.

In Ithna ‘Ashari law the presumption is that the whole of the dower is prompt; but in
Hanafi law the position is different. The whole of the dower may be promptly awarded 18;
but a recent Full Bench decision lays down first, that where the kabin-nama is silent on
the question, the usage of the wife’s family is the main consideration; and secondly, that
in the absence of proof of custom, the presumption is that one-half is prompt, and the
other half deferred, and the proportion may be changed to suit particular cases.

INCREASE OR DECREASE OF DOWER

The husband may at any time after marriage increase the dower. Likewise, the wife may
remit the dower, wholly or partially; and a Muslim girl who has attained puberty is
competent to relinquish her mahr, although she may not have attained majority (18 years)
18
Per J. Mahmood in Abdul Kadir v. Salima, (1886) 8 All. 149; Husseinkhan v. Gulab Khatum (sic) (1911)
35 Bom 386.

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within the meaning of the Indian Majority Act19. The remission of the mahr by a wife is
called hibat al-mahr or hiba-e mahr.

It has, however, been held in Karachi that in certain cases remission of dower cannot be
upheld. For instance, if a wife feels that the husband is increasingly showing indifference
to her and the only possible way to retain the affection of her husband is to give up her
claim for mahr and forgoes her claim by executing a document, she is not a free agent and
it may be against justice and equity to hold that she is bound by the terms of the deed20.

CHAPTER- IV

NON-PAYMENT OF DOWER

The claim of the wife or widow for the unpaid portion of the mahr is an unsecured debt
due to her from her husband or his estate, respectively. It ranks rateably with unsecured
19
Qasim Husain v. Bibi Kaniz, (1932) 54 All. 806
20
Shah Bano v. Iftekar Muhammed PLD 1956 (W.P.) Kar. 363.

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debts, and is an actionable claim. During her lifetime the wife can recover the debt herself
from the estate of the deceased husband. If she predeceases the husband, the heirs of the
wife, including the husband, become entitled to her dower. A lady, whose mahr was Rs.
50,000, received from her husband during his lifetime sums of money in the aggregate
exceeding the mahr settled on her. The largest of such payments was Rs. 3,000. There
was no evidence that these payments were intended by the husband to satisfy the doer
debt. The question arose whether these payments satisfied the husband’s obligation. The
Judicial Committee held that such payments were not to be treated as having been made
in satisfaction of the dower debt.21

Non-payment of Prompt Dower

If the husband refuses the pay prompt dower, the guardian of a minor wife has the right to
refuse to allow her to be sent to the husband’s house; and similarly, the wife may refuse
the husband his conjugal rights, provided no consummation has taken place. The wife is
under Muhammadan Law entitled to refuse herself to her husband until the prompt dower
is paid; and if in such circumstances she happens to reside apart from him, the husband is
bound to maintain her.22

This right of refusing her is, however, lost on consummation.23 Thus if the husband files a
suit for restitution of conjugal rights before cohabitation, non-payment of prompt dower
is a complete defence; but after cohabitation, the proper course is to pass a decree for
restitution conditional on the payment of prompt dower. This was laid down in the leading
case of Anis Begam v. Muhammad Istafa Wali Khan.24

21
Mohammad Sadiq v. Fakr Jahan (1931) 59 I.A. 19.
22
Nur-ud-din Ahmad v. Masuda Khanam PLD 1957 Dacca 242; Muhammadi v. Jamiluddin PLD 1960
Karachi 663.
23
In Lahore it has been held that consummation does not deprive the wife of her right to refuse conjugal
relations if the prompt dower is not paid, Rahim Jan v. Muhammad, PLD 1955 Lahore 122; per contra,
Rabia Khatoon v. Mukhtar Ahmad AIR (1966) All. 548, which, it is submitted is the correct view.
24
(1933) 55 All. 548. This case is of great importance as Sulaiman C.J. has carefully considered and
criticized certain dicta of Mahmood J. in the leading case of Abdul Kadir v. Salima (1886) 8 All. 149

15
Non-payment of Deferred Dower

The non-payment of deferred dower by its very nature cannot confer any such right of
refusal on the wife. The right to enforce payment arises only on death, divorce or the
happening of a specified event.

The dower ranks as a debt and the widow is entitled, along with the other creditors of her
deceased husband to have it satisfied out of his estate. Her right, however, is the right of
an unsecured creditor; she is not entitled to a charge on the husband’s property, unless
there be an agreement. The Supreme Court of India has laid down

i. That the widow has no priority over the creditors, but


ii. That mahr as a debt has priority over the other heirs’ claims.25

And the heirs of the deceased are not personally liable to pay the dower; they are liable
rateably to the extent of the share of the inheritance which comes to their hands.

The Widow’s Right of Retention

Muhammadan law gives to the widow, whose dower has remained unpaid a very special
right to enforce her demand. This is known as ‘the widow’s right of retention’. A widow
lawfully in possession of her deceased husband’s estate is entitled to retain such
possession until her dower debt is satisfied.26 Her right is not in the nature of a regular
charge, mortgage or a lien27; it is in essence a personal right as against heirs and creditors
to enforce her rights; and it is a right to retain, not to obtain, possession of her husband’s

25
Kapore Chand v. Kadar Unnissa [1950] S.C.R. 747.
26
Mirvahedalli v. Rashidbeg, AIR (1951) Bom. 22
27
Zaibunnissa v. Nazim Hasan, AIR (1962) All. 197

16
estate. Once she loses possession of her husband’s estate, she loses her special right and is
in no better position than an unsecured creditor.28

The nature of this right was discussed by their lordships of the Privy Council in Maina
Bibi v. Chaudhri Vakil Ahmad29 . One Muinuddin died in 1890 possessed of immovable
property leaving him surviving his widow Maina Bibi, who entered into possession. In
1902 some of the heirs filed a suit to recover possession of their share of the property. The
widow pleaded that the estate was a gift to her, or alternatively that she was entitled to
possession until her dower was paid. In 1903 the trial judge made a decree for possession
in favour of the plaintiffs on condition that the plaintiffs paid a certain sum by way of
dower and interest to the widow within six months. This sum was not paid, however, and
the widow remained in possession, in 1907 Maina Bibi purported to make a gift of the
whole of her property to certain persons. The original plaintiffs challenged this gift and
the Privy Council held that the widow had no power to make a gift of the properties, and
could not convey the share of the heirs to the donees. Their lordships, in discussing the
nature of a widow’s right of retention, said that
‘the possession of the property being once peaceably and lawfully acquired, the
right of the widow to retain it till her dower-debt is paid is conferred upon her by
Mahomedan Law’.30

They further said that it is not exactly an lien, nor a mortgage, usufructuary or other.

‘The widow who holds possession of her husband’s property until she has been
paid her dower has no estate or interest in the property as a mortgagee under an
ordinary mortgage’.31

28
Ibid
29
(1924) 52 I.A. 145.
30
Id at p. 150.
31
Id at p. 151.

17
Thus, in essence, it is a personal right given by Muhammadan kaw to safeguard the
position of the widow.32

The Supreme Court has laid down that a Muslim widow in possession of her deceased
husband’s estate in lieu of her claims for dower, whether with the consent of the heirs or
otherwise, is not entitled to priority as against his unsecured creditors.33

There is a conflict of opinion whether in order to retain possession the consent, express or
implied, of the husband or his heirs is necessary. Some judges are of opinion that such
consent is necessary; others, that it is not. It is submitted with great respect, that on first
principles, having regard to the nature of the right, the consent of the husband or his heirs
is immaterial. Muhammadan law casts a special obligation on every debtor to pay his
debt, and the right of the widow for her dower is a debt for which the widow has a good
safeguard. Thus, the question of consent appears to be immaterial.

The right to retention does not confer on the widow any title to the property. Her rights
are twofold: one, as heir of the deceased and two, as widow entitled to her dower and, if
necessary, to retain possession of the estate until her mahr has been paid. The right to
hold possession must, therefore, be sharply distinguished from her right as an heir. The
widow, in these circumstances, has the right to have the property administered, her just
debts satisfied and her share of the inheritance ascertained and paid. She has no right to
alienate the property by sale, mortgage, gift or otherwise, and if she attempts to do so, she
loses her right of mahr.

There are two other major questions on which the law is still unsettled. Can the widow
transfer her right of retention? And is this right of retention heritable? In Maina Bibi v.
Chaudhri Vakil Ahmad34 their lordships expressed a doubt whether a widow could transfer
the dower debt or the right to retain the estate until the mahr was paid. Following that
case there has been much conflict of judicial opinion on the questions as to the heritability
32
The Patna High Court has adopted this view, Abdul Samad v. Alimuddin (1943) 22 Pat. 750.
33
Supra Note 25
34
Supra Note 29

18
and transferability of this right. The Mysore and Allahabad High Coutrs have decided that
the right is both heritable and transferable35; but the Patna High Court has held that the
widow’s is a personal right, and not a lien, and as such, it is not transferable. 36 Although
there is a conflict of opinion, in view of Kapore Chand’s case, the balance of authority
seems to be in favour of the Patna view.

CHAPTER- V

ANALYSIS OF SOME CASES

1) Mohd. Ahmed Khan v. Shah Bano Begum and Ors.37

CITATION REFERED  MANU/SC/0194/1985

DECIDED ON  23.04.1985

HON’BLE JUDGES  Y.V. Chandrachud, C.J., D.A. Desai, E.S. Venkataramiah, O.


Chinnappa Reddy and Ranganath Misra, JJ.
35
Hussain v. Rahim Khan AIR (1954) Mysore 24; Zaibunnissa v. Nazim Hasan AIR (1962) All. 197.
36
Zobair Ahmad v. Jainandan Prasad AIR (1960) Pat. 147.
37
AIR 1985 SC 945

19
FACTS 

 The appellant, who is an advocate by profession, was married to the respondent in


1932. Three sons and two daughters wire born of that marriage.
 In 1975 the appellant drove the respondent out of the matrimonial home.
 In April 1978, the respondent filed a petition against the appellant under Section
125 of the Code in the court of the learned Judicial Magistrate (First Class),
Indore asking for maintenance at the rate of Rs. 500 per month.
 On November 6, 1978 the appellant divorced the respondent by an irrevocable
talaq. His defence to the respondent’s petition for maintenance was that she had
ceased to be his wife by reason of the divorce granted by him, to provide that he
was therefore under no obligation maintenance for her, that he had already paid
maintenance to her at the rate of Rs. 200 per month for about two years and that,
he had deposited a sum of Rs. 3000 in the court by way of dower during the
period the of iddat.
 In August, 1979 the learned Magistrate directed appellant to pay a princely sum of
Rs. 25 per month to the respondent by way of maintenance. It may be mentioned
that the respondent had alleged that the appellant earns a professional income of
about Rs. 60,000 per year.
 In July, 1980 in a revisional application filed by the respondent, the High court of
Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month.
 The husband thus came before the Supreme Court by Special leave.

RELEVANT ISSUE
1) Would the payment of mahr indemnify the husband from his obligation under the
provisions of Section 125 Cr.P.C?

DECISION
 The Court decided that mahr is different from a sum payable ‘on divorce’ which
occurs in Section 127(3)(b) of Cr.P.C and hence does not indemnify the husband
from his obligation under the provisions of Section 125 Cr.P.C.

20
REASONING
 In Mulla’s principles of Mahomedan Law (18th Edition, page 308), mahr or
Dower is defined in paragraph 285 as “a sum of money or other property which
the wife is entitled to receive from the husband in consideration of the marriage.”
 Dr. Paras Diwan in his book, “Muslim Law in Modern India” (1982 Edition, page
60), criticises this definition on the ground that mahr is not payable “in
consideration of marriage” but is an obligation imposed by law on the husband as
a mark of respect for the wife, as is evident from the fact that non-specification of
mahr at the time of marriage does not affect the validity of the marriage.
 Under the Muslim Personal Law, the amount of mahr is usually split into two
parts, one of which is called “prompt”, which is payable on demand, and the other
is called “deferred” which is payable on the dissolution of the marriage by death
or by divorce.
 But, the fact that deferred mahr is payable at the time of the dissolution of
marriage, cannot justify the conclusion that it is payable ‘on divorce’. Even
assuming that, in a given case, the entire amount of mahr is of the deferred variety
payable on the dissolution of marriage by divorce, it cannot be said that it is an
amount which is payable on divorce.
 Divorce maybe a convenient or identifiable point of time at which the deferred
amount has to be paid by the husband to the wife. But, the payment of the amount
is not occasioned by the divorce, which is what is meant by the expression ‘on
divorce’, which occurs in Section 127(3)(b) of the Code.
 If mahr is an amount which the wife is entitled to receive from the husband in
consideration of the marriage, that is the very opposite of the amount being
payable in consideration of divorce. Divorce dissolves the Marriage. Therefore no
amount which is payable in consideration of the marriage can possibly be
described as an amount payable in consideration of divorce.
 The alternative premise that mahr is an obligation imposed upon the husband as a
mark of respect for the wife, is wholly detrimental to the stance that it is an
amount payable to the wife on divorce. A man may marry a woman for love,

21
looks, learning or nothing at all. And he may settle a sum upon her as a mark of
respect for her. But he does not divorce her as a mark of respect.
 Therefore, a sum payable to the wife out of respect cannot be a sum payable ‘on
divorce’.

2) Md. Nayeem Khan v. Union Law Secretary, Government of India, New Delhi and
others 38

CITATION REFERED  MANU/AP/0516/2001

DECIDED ON  10.07.2001

HON’BLE JUDGES  Satya Brata Sinha, C.J. and V.V.S. Rao, J

FACTS 

 This case is based on a very complex factual matrix. However, the relevant issue
to be discussed does not require much elaboration of facts. Hence, the author is
not mentioning the facts.

RELEVANT ISSUE
38
2001 (5) ALD 145

22
1) Whether Muslim women entitled to retain possession of husband’s immovable
property even after divorce, until her dower debt is satisfied?

DECISION
 The Court decided that a Muslim widow is conferred with the right to retain
property in lieu of payment of ‘mahr’ till it is paid off, whether she is divorced or
her husband is deceased.

REASONING
 A principle of Muslim law confers a right on the widow to retain the immovable
property of her late husband in her possession in lieu of payment of Mahr till the
same is paid off.
 Possibly the same principle may be extended having regard to the rationale behind
the said principle to cases where the divorced wife is in possession of a house of
the husband or in regard to the matrimonial home where she is residing. She may
be entitled to retain possession of the house of the husband who divorced her till
the mahr amount is paid off.

23
3) Kapore Chand v. Kadar Unnisa Begum and Ors.39

CITATION REFERED  MANU/SC/0043/1950

DECIDED ON  12.10.1950

HON’BLE JUDGES  Mehr Chand Mahajan, R.C. Patnaik and Khaliluzzaman, JJ.

FACTS 

 The appellant, Kapurchand, had a money decree, amongst others; against one Mir
Hamid Ali Khan, husband of the respondent Kaderunnisa.
 In execution of the decree the house in dispute belonging to the deceased
judgment-debtor was attached.
 To the attachment the widow of the deceased raised an objection on the ground
that she was in possession of it in lieu of her outstanding dower and could not be
dispossessed her claim was satisfied.

39
AIR 1953 SC 413,

24
 The objection was allowed by the executing court and it was ordered that the
house be sold subject to the respondent’s claim, the decree-holder being entitled to
the surplus, if any, out of the sale proceeds. There was not much possibility of the
house fetching more in the execution sale than the amount due on account of
dower. The court took the view that the widow’s claim for dower had priority over
debts due to other unsecured creditors and her position was analogous to that of a
secured creditor.
 The decree-holder made an application in revision to the High Court but without
any success. He then preferred an appeal to the Judicial Committee of the State
and it is now before the Supreme Court of India.

ISSUE
1) Whether widow possessing husband’s estate in lieu of dower entitled to priority over
other creditors?

DECISION
 The Court decided that a widow possessing husband’s estate in lieu of dower is
not entitled to priority over creditors; however it is entitled priority against heirs
of the deceased husband.

REASONING
 The dower of a Muslim woman is a settlement in her favour made prior to the
marriage contract and is similar to the donatio proper nuptias of the Romans but is
of such an obligatory nature that if it is not mentioned before or at the time of the
marriage, it is presumed to exist to the extent of a proper dower amount
 The Muslim concept of dower has no reference to the price that under some
systems of law was paid to the father of the bride when she was given in marriage.
On the other hand, it is considered a debt with consideration (for the submission
of her person by the wife).
 Therefore dower is purely in the nature of a marriage settlement and is for
consideration. It is a claim arising out of contract by the husband and as such has

25
preference to bequests and inheritance, but on no principle of Muhammadan Law
it can have priority over other contractual debts.
 In our view, therefore, a dower debt cannot be given any priority over other debts
on any equitable consideration or on the ground that there is something inherent in
its very nature which entitles it to priority.

4) Zobair Ahmad and Anr. v. Jainandan Prasad Singh 40

CITATION REFERED  MANU/BH/0045/1960

DECIDED ON  05.08.1959

HON’BLE JUDGES  V. Ramaswami, C.J. and Kanhaiya Singh, J.

FACTS 
SALAMAT
______________|__________________
| | | |
Sakram Saliman Marian Tetu
| |
Bashiruddin Naffisa (defnt. 2)
_____________
| |
Zobair Ahmed Zaibunnisa
(plaintiff 1) (plaintiff 2)

40
AIR 1960 Pat 147

26
 Bashiruddin, who was admittedly the owner of the 16 annas of the property, died
in the year 1937.
 It appears that on 7-5-1945, Naffisa and Bibi Saliman executed a sale-deed (Ext.
B) in favour of defendant No. 1 in respect of the 16 annas share in the properties
in dispute. This sale-deed was executed by Bibi Naffisa on her own behalf as well
as the guardian of her two children, namely, the two plaintiffs.
 After attaining majority the two plaintiffs filed the present suit for recovery of
possession of their 14 annas share in the properties. The allegation was that their
mother had no right to convey the property to defendant No. 1.
 The suit was contested by defendant No. 1 on the ground that defendant No. 2
came in possession of the properties in lieu of her dower debt, that defendant No.
2 was appointed the executor of the properties of Bashiruddian and the legal
guardian of the plaintiffs and that the transaction was for the benefit of the
plaintiffs and it could not, therefore, be impeached.
 The trial court decreed the suit in favour of the plaintiffs but that decree has been
set aside by the lower appellate court in appeal.
 And hence this present appeal.

ISSUE
1) Whether a widow has a right to transfer her right to dower debt or any possession in
lieu it?

DECISION
 The Court decided that a widow cannot transfer her right to dower debt or any
possession in lieu it. However, she may transfer the share of the property which
has inherited as the wife of the deceased husband and not the one received in lieu
of the payment of mahr.

REASONING

27
 Precedence must be given to the decision of the Privy Council in AIR 1925 PC 63
and the view expressed by the Madras High Court in AIR 1920 Mad 666 cannot
be held to be authoritative in view of the decision of the Privy Council in AIR
1925 PC 63.

 Privy Council in Maina Bibi v. Chaudhri Vakil Ahmad41 . One Muinuddin died in
1890 possessed of immovable property leaving him surviving his widow Maina
Bibi, who entered into possession. In 1902 some of the heirs filed a suit to recover
possession of their share of the property. The widow pleaded that the estate was a
gift to her, or alternatively that she was entitled to possession until her dower was
paid.

 In 1903 the trial judge made a decree for possession in favour of the plaintiffs on
condition that the plaintiffs paid a certain sum by way of dower and interest to the
widow within six months.
 This sum was not paid, however, and the widow remained in possession,
meanwhile Maina Bibi purported to make a gift of the whole of her property to
certain persons.
 The original plaintiffs challenged this gift and the Privy Council held that the
widow had no power to make a gift of the properties, and could not convey the
share of the heirs to the donees.

41
AIR 1925 PC 63

28
5) Daniel Latifi v. Union of India15

Facts in Brief
In this case, the constitutional validity of the Muslim Women (Protection of Rights on
Divorce) Act, 1986 was challenged before the Supreme Court. The Act was passed to
appease a particular section of the society and with the intention of making the decision in
case of Mohd. Ahmed Khan v. Shah Bano Begum ineffective.
In the Shahbano’s case , the husband had appealed against the judgment of the Madhya
Pradesh High Court which had directed him to pay to his divorced wife Rs. 179/- per
month, enhancing the paltry sum of Rs. 25 per month originally granted by the
Magistrate. The parties had been married for 43 years before the ill and elderly wife had
been thrown out of her husband's residence. For about two years the husband paid
maintenance to his wife at the rate of Rs. 200/- per month. When these payments ceased
she petitioned under Section 125 of the Code of Criminal Procedure (Cr.P.C.). The
husband immediately dissolved the marriage by pronouncing a triple talaq. He paid
Rs.3000/- as deferred mahr and a further sum to cover arrears of maintenance and
maintenance for the iddat period and he sought thereafter to have the petition dismissed
on the ground that she had received the amount due to her on divorce under the Musilm
law applicable to the parties. The important feature of the case was that wife had managed

29
the matrimonial home for more than 40 years and had borne and reared five children and
was incapable of taking up any career or independently supporting herself at that late state
of her life - remarriage was impossibility in that case. The husband, a successful Advocate
with an approximate income of Rs. 5,000/- per month provided Rs. 200/- per month to the
divorced wife, who had shared his life for half a century and mothered his five children
and was in desperate need of money to survive.

Contentions
The petitioner argued, (a) that the rationale of Section 125 Cr.P.C. was to offset or meet a
situation wherein a divorced wife was likely to be led into destitution or vagrancy. It was
urged that Section 125 Cr.P.C. was enacted to prevent such a situation in furtherance of
the concept of social justice embodied in Article 21 of the Constitution. (b) That the
object of Section 125 Cr.P.C. being to avoid vagrancy, the remedy thereunder could not be
denied to a Muslim woman otherwise it would amount to violation of not only equality
before law but also equal protection of laws (Article 14) and inherent infringement of
Article 21 as well as basic human values. (c) That the Act was un-Islamic,
unconstitutional and had the potential of suffocating the Muslim women while also
undermining the secular character, which was the basic feature of the Constitution. And
thus there was no rhyme or reason to deprive the Muslim women from the applicability of
the provisions of Section 125 Cr.P.C.
Defending the validity of the enactment, it was argued on behalf of the respondents that
(a) if the legislature, as a matter of policy, wanted to apply Section 125 Cr.P.C. to
Muslims, it also meant that the same legislature could, by necessary implication,
withdraw such an application of the Act and make some other provision in that regard. (b)
Parliament could amend Section 125 Cr.P.C. so as to exclude it application and apply

30
personal law instead. (c) That the policy of Section 125 Cr.P.C. was not to create a right of
maintenance dehors the personal law and therefore could not stand in the way of the Act.
Judgement
Upholding the validity of the Act, the Supreme Court held as follows;
• A Muslim husband is liable to make reasonable and fair provision for the future of
the divorced wife which obviously includes her maintenance as well. Such a
reasonable and fair provision extending beyond the iddat period must be made by
the husband within the iddat period in terms of Section 3(1)(a) of the Act,
• Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of
the Act to pay maintenance is not confined to iddat period,
• A divorced Muslim woman who has not remarried and who is not able to maintain
herself after iddat period can proceed as provided under Section 4 of the Act
against her relatives who are liable to maintain her in proportion to the properties
which they inherit on her death according to Muslim law from such divorced
woman including her children and parents. If any of the relatives being unable to
pay maintenance, the Magistrate may direct the State Wakf Board established
under the Act to pay such maintenance.
• The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution
of India.
Analysis

It is unfortunate to note that the Court did not strike down the Act which purports to
exclude Muslim women in particular from the beneficial treatment of Section 125. The
legislature to appease the Muslim gentry may have passed the Act on political
consideration but that same has rendered an indirect classification of people of the basis
of religion, which is against the fundamental rights.

Other than the above cases, following are some case, which are there just to supplement
the effort of judiciary towards them.
In Shamim Ara v. State of U.P 16 the Supreme Court streamlined the position regarding the
requirements for a valid Talaq under the Muslim law. The Court held that the correct law

31
of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be
preceded by attempts at reconciliation between the husband and the wife by two arbiters-
one from the wife's family and the other from the husband's; if the attempts fail, talaq may
be effected.

In Savitri Pandey v. Prem Chand Pandey17 the Supreme Court held that the second
marriage by a spouse during the subsistence of an appeal by the other spouse against the
decree of divorce would be subject to the end result of the proceedings. The court further
observed: “There is no denial of the fact that right of at least one appeal is a recognised
right under all systems of civilised legal jurisprudence. If despite the pendency of the
appeal, the appellant chose to solemnise the second marriage, the adventure is deemed to
have been undertaken at her own risk and the ultimate consequences arising of the
judgment in the appeal pending in the High Court. No person can be permitted to flout the
course of justice by his or her overt and covert acts. At this stage we would like to
observe that the period of limitation prescribed for filing the appeal under Section 28(4) is
apparently inadequate which facilitates the frustration of the marriages by the
unscrupulous litigant spouses. We are of the opinion that a minimum period of 90 days
may be prescribed for filing the appeal against any judgment and decree under the Act
and any marriage solemnised during the aforesaid period be deemed to be void.
Appropriate legislation is required to be made in this regard. We direct the Registry that
the copy of this judgment may be forwarded to the Ministry of Law & Justice for such
action as it may deem fit to take in this behalf”. The legislature accepted this request of
the apex Court of India and enhanced the period of appeal from 30 days to 90 days, which
is an appropriate step in the right direction.

In Amina v. Hassn Koya18 the Supreme Court while adjudicating upon the validity of a
marriage entered into by a pregnant Muslim female observed: It is very difficult to
believe that a woman who is five months pregnant will be able to conceal the pregnancy
from the husband. Such an advanced stage of pregnancy cannot be concealed as the
pregnancy starts showing by that time. In any case the pregnancy cannot be concealed
from the husband. A husband will at least know for sure that the wife is pregnant

32
especially when the pregnancy is five months old. Therefore, we cannot accept that that
the respondent did not know at the time of marriage that the appellant was already
pregnant. If this fact was known to the respondent, the marriage cannot be said to be
illegal or void. Also, the conduct of the respondent at the relevant time is to be
considered. He went through the marriage. He did not raise any objection even after the
marriage. He was present at the time of delivery of the child. Presumably he gave his own
name as the name of the father of the child for the official record. Even thereafter, for
nearly four years he went along with the marriage and brought up the child while treating
the appellant as his wife. Any person, who learns that his newly married wife is already
pregnant for five months and who does not accept that marriage or pregnancy, will not
behave in the manner in which the respondent did. In the present case, the facts on record
show that the husband was aware of the pregnancy of the wife at the time of the marriage.
Therefore, such a marriage cannot be said to be invalid”.

In B.S. Joshi & Ors v. State of Haryana & Anr19 the Supreme Court held that the High
Court in exercise of its inherent powers can quash criminal proceedings or FIR or
complaint and Section 320 of the Code does not limit or affect the powers under Section
482 of the Code. The Court observed: “The special features in such matrimonial matters
are evident. It becomes the duty of the Court to encourage genuine settlements of
matrimonial disputes. There has been an outburst of matrimonial disputes in recent times.
Marriage is a sacred ceremony, the main purpose of which is to enable the young couple
to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt
which often assume serious proportions resulting in commission of heinous crimes in
which elders of the family are also involved with the result that those who could have
counselled and brought about rapprochement are rendered helpless on their being arrayed
as accused in the criminal case. There are many other reasons which need not be
mentioned here for not encouraging matrimonial litigation so that the parties may ponder
over their defaults and terminate their disputes amicably by mutual agreement instead of
fighting it out in a court of law where it takes years and years to conclude and in that
process the parties lose their "young" days in chasing their "cases" in different courts.

33
There is every likelihood that non-exercise of inherent power to quash the proceedings to
meet the ends of justice would prevent women from settling earlier”.

In K.A. Abdul Jaleel v. T.A. Shahida20, the Supreme Court held that the Family Court has
jurisdiction to adjudicate upon any question relating to the properties of divorced parties.
The Court observed: “The Family Courts Act was enacted to provide for the
establishment of Family Courts with a view to promote conciliation in, and secure speedy
settlement of, disputes relating to marriage and family affairs and for matters connected
therewith. From a perusal of the Statement of Objects and Reasons, it appears that the
said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family
Courts the matters relating to the property of the spouses or either of them. The Statement
of Objects and Reasons would clearly go to show that the jurisdiction of the Family Court
extends, inter alia, in relation to properties of spouses or of either of them which would
clearly mean that the properties claimed by the parties thereto as a spouse of other;
irrespective of the claim whether property is claimed during the subsistence of a marriage
or otherwise”.

34
CHAPTER – VI

CONCLUSION

In conclusion, all that can be said is that Mahr is a mandatory gift given by the groom to
the bride. Unlike a bride price, however, it is given directly to the bride and not to her
father. Although the gift is often money, it can be anything agreed upon by bride and
groom such as a house or viable business that is put in her name and can be run and
owned entirely by her if she chooses.

In today’s terms, it has taken a very wide scope and many important constitutional
questions have also cropped up. However, in my opinion, even though Dower serves as
security for the girl, it should entirely be scrapped. Infact, all personal laws should be
scrapped and a uniform civil code should be brought in. This shall make the Indian
Society live in a state of perfect harmony.

35