Under the Islamic law or Islamic legal system, Mehr or dower means money or property which the wife is entitled to receive from the husband in consideration of the marriage. It is basically an obligation imposed upon the husband as a mark of respect for the wife. The reason for giving dower is to provide the wife with subsistence if the situation like the dissolution of marriage, death of husband or termination of a marriage by divorce arises. This is given to give assistance to wife in such a situation so that she doesn’t feel helpless after these misshaping. Under Section 125 of Criminal Procedure Code, 1973, Mehr or dower is considered to be a part of maintenance while fixing the amount of maintenance.
This article delves into the Muslim law to understand the meaning of dower, the importance of dower in marriage and when one is liable to pay the dower. This article further helps to analyse the effect of non-payment of dower with the help of relevant case laws.
Dower is the amount of money or property which a woman is entitled to receive from the husband in consideration of marriage. The significant reason for this payment of dower is to refrain the capricious use of divorce.
Muslim marriage is like a contract in which the woman is held and the amount or consideration of Mahr is paid to her. Dower/Mahr in Islam is necessary for a lawful marriage and if it were not mentioned at the time of the marriage the law will presume that the marriage did not take place. It is an essential ingredient under Muslim Law to such an extent that even when it is unspecified at the time of marriage is contracted then also it must be adjudged on definite principles. If there is an agreement between husband and wife that the wife will not claim dower/Mahr such an agreement is void and the right to dower remains in spite of such an agreement. If the wife dies before the payment of the dower, her legal representatives are entitled to the dower amount.
What is Prompt Dower?
Prompt Dower– Prompt dower is payable on demand. It may be demanded by the wife even before the consummation of marriage takes place.
If the husband sues the wife for restitution of conjugal rights (the rights, especially to sexual relations, regarded as exercisable in law by each partner in a marriage.) before the consummation of marriage the non-payment of prompt dower is a complete defense to the suit.
When is Dower Payable?
When is dower payable -In the case of prompt dower, the husband has to pay the dower amount as the wife makes a demand for it whether the marriage has consummated or not. If any delay is caused in the payment of the dower, the wife is entitled to get interest for the period during which the dower has been unpaid. The wife may also refuse consummation till the husband pays the prompt dower. In deferred dower, the husband pays the dower after the occurrence of a particular event i.e. either on dissolution of marriage or upon the death of husband. The husband in either case has to pay the amount soon. The dower amount may or may not be forfeited by the wife against her husband.
Analysis of Non-Payment of dower:
Abdul Kadir vs. Salima ILR 1886 8 ALL.149  is one of the most important cases on Muslim marriages in India. It is a matrimonial dispute case. In this case Abdul Kadir was married to Salima. After three months of living together, the wife went to visit their parents. After sometime the husband asked her to come back to their home but her father decided to not let her go. According to the provision of Islamic law the absolute right of the wife to insist on payment of the prompt dower before giving him the access to her, is lost after the consummation the of the marriage.
Few days later the dispute land in the judicial forum as a suit for restitution of conjugal right that was initiated by the husband against the father and the wife. The father and the wife claimed on the non-payment of dower and cruelty that they want the marriage to end. Subsequently they filed for divorce. The court asked the husband, in the case of non-payment, that he was obliged to disburse some of its amount as prompt dower.
After the deposit of Dower, the court pronounced a conditional judgement for restitution of conjugal rights on payment of dower. Both parties appealed against the decision before the appellate court. While dismissing the appeal of the husband, it was held that since the dower was not paid before the initiation of suit the husband did not have any cause of action to see judicial relief. The decision further bought the parties before Allahabad High Court.
The final judgement was ruled, and it was held that the payment of dower is not a precondition for the husband’s right to cohabit with the wife. Both the rights of payment of dower and the cohabitation comes into existence simultaneously once a marriage contract is concluded
In compliance with Muslim law, the institution of marriage acquires unique status. Marriage forms an integral part of society and is the foundation of a Muslim family.
Marriages that happens in accordance with the Islamic law involves a sum of money called dower. It is paid to the wife by the husband in consideration of marriage. It is rather considered to be an obligation imposed upon the husband as a mark of respect for the wife. The reason behind the payment is to refrain the capricious use of divorce. Although, the mahr is not purely a consideration for the marriage as the non-payment of Mahr does not void the marriage.
The right to dower does not necessarily precede the right to cohabitation, but instead the fact that these two are maintained at the same time and on the grounds of the same legal incident of law. The wife’s right to claim assistance from her husband is equivalent to one of the substantive consequences of marriage
1. What is Dower in Islam?
Under the Muslim Law, Mehr (dower) means money or property which the wife is entitled to receive from the husband in consideration of the marriage but this consideration is not the same as that of the civil contract. Dower is an obligation imposed upon the husband as a mark of respect for the wife.
2. Is Dower a debt?
Dower is a debt like all other debts and must be paid before the heirs are entitled to take anything. It is a debt chargeable against the general estate of the deceased husband. The dower is due from the whole estate; both partible and impartible properties are liable for it.
3. Is Dower mandatory or optional?
However, mahr is distinct from dower in two ways:
1) mahr is legally required for all Islamic marriages while dower was optional, and
2) mahr is required to be specified at the time of marriage (when a certain amount is promised, if not paid immediately), while dower is not paid until the death of the husband.
4. How can Dower be fixed?
The amount of proper dower is generally fixed by the Court taking the following factors into consideration: personal qualifications of the wife. wife’s age, beauty, fortune, understanding, and virtue. the social position of the wife’s father’s family.
5. Is Mehr mandatory?
Many terms and conditions in the marriage contract are obligatory, while others can be set and agreed to at the time of marriage. The gift or dower given as a mark of respect to the wife at the time of marriage by the husband is obligatory and is referred to as Mehr.