May 18, 2022

What is dower (Mahar)?

If we say in two lines, Mahar is that money and possession given or promised to be given at the time of Nikah by the bridegroom to bride.

Meaning of mahar

It is neither dowry nor price for marriage. As explained in an old judgment by Justice Syed Mahmood, mahar is “not the exchange or consideration given by the man to the woman, but an effect of the contract imposed by law on the husband as a token of respect for its subject: the woman“.

Giving a correct appraisal of the concept of mahar, the Privy Council once described it as “an essential incident to the status of marriage“. On another occasion it explained that mahar was a ‘legal responsibility’ of the husband.

The nature of Dower (Mahar)

Baillie in his Digest of Mohammaden Law says:

“Dower is not the exchange or consideration given by the man to woman for entering into the contract; but an effect of the contract, imposed by the law on the husband as a token in respect, for its respect the woman… Dower being, as already mentioned, opposed to the usufruct of the woman’s person, the right to either is not completed without the other. Hence on the one hand, dower is said to be confirmed and made binding on the husband by consummation, or by its substitute, a valid retirement, or by death, which by terminating the marriage, puts an end to all the contingencies to which it is exposed; and on the other hand the woman becomes entitled to it as soon as she has surrendered her person.”

Justice Mahmood has described the nature of Meharin Abdul Kadir v. Salima and Anr. According to him:

“Dower, under the Muhammadan law, is the 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 as a necessary effect of marriage.

To use the language of the Hedaya, the payment of dower is enjoined by the law merely as a token of respect for its subject (the woman), 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 was to engage in the contract on the special condition that there should be no dower”…

Even after the marriage the dower may be increased by the husband during coverture…. In this sense and in no other can dower under the Muhammadan law be regarded as the consideration for the connubial intercourse, and if the authors of the Arabic Text-books of Muhammadan law have compared it to price in the contract of sale, it is simply because marriage is a civil contract under that law… Such being the nature of the dower, the rules which regulate its payment are necessarily affected by the position of a married woman under the Muhammadan law.

Why Mahar is given at the time of Marriage?

Under Mohammaden law marriage does not make her property the property of the husband, nor does coverture impose any disability upon her as to freedom of contract. The marriage contract is easily dissoluble, and the freedom of divorce and the rule of polygamy place a power in the hands of the husband which the lawgiver intended to restrain by rendering the rules as to payments of dower stringent upon the husband.

When Mahar may be given?

No limit as to the amount of dower has been imposed, and it may either be prompt, that is, immediately payable upon demand, or deferred, that is payable upon the dissolution of marriage, whether by death or divorce. The dower may also be partly prompt and partly deferred; but when at the time of the marriage ceremony no specification in this respect is made, the whole dower is presumed to be prompt and due on demand.

In Tyabji’s Muslim Law (4th Edn) it is stated:

Mahar is an essential incident to the status of marriage. Regarded as a consideration for the marriage it is in theory payable before consummation; but the law allows its division in two parts, one of which is called ‘prompt’ payable before the wife can be called upon to enter the conjugal domicile, the other ‘deferred’ payable on the dissolution of the contract by the death of either of the parties or by divorce. When the Kabin nama does not specify the portion that is prompt and that which is deferred, evidence may be given of the custom or usage of wife’s family’.

Reference

Fuzlunbi vs K. Khader Vali and Anr., AIR 1980 SC 1730

Abdul Kadir vs Salima And, (1886) ILR 8 All 149