DOWER
Introduction:
Dower is a sum of money or property which becomes payable by the husband to the wife as an effect of marriage. In Surah Al-Nisa, Verse 4, the Quran says:
“And give the women (on marriage) their dower as a free gift”.
According to both Sunnis and Shias, the dower may consist of anything that can be valued in money, is useful and ritually clean. Therefore, the dower may be land, building, cattle, crops, chattels etc. The property given as dower must be reasonably specified. A vague dower, e.g. “an animal” or “a house” shall not be valid, without however invalidating the marriage contract itself.
I.) Dower & Bride-Price:
Dower is a unique feature of a Muslim marriage. But contrary to a widely held misconception in the West, it is not a bride-price. Although, in the pre-Islamic period a bride price was paid to the bride’s father, but the requirement of dower itself is one of the most significant reforms effected by the Quran. According to the Hanafi Jurist Al Kamal, dower is there to underline the prestige of the marriage, it is not a consideration like a price, and otherwise it would have been set as a prior condition.
Dower is not a precondition to marriage. It is mentioned in Surah Baqara, Verse 236, that:
“It is no sin for you if ye divorce woman while yet ye have not touched them nor appointed unto them a portion (dower)”. This means that there is no sin if no dower is paid and the woman is divorced, before consummation. Since divorce can only occur after a valid marriage contract, this shows that dower is not a precondition to marriage.
It is also different from a bride price because a bride price was paid to the father of the bride, but dower, on the other hand, is an inalienable and imprescriptible right of the wife. It is inalienable in that it is taken for granted even if it is not expressly stated in the contract. If the husband makes a condition in the marriage contract that no dower will be paid, this shall be void but not the remaining contract. It is imprescriptible in that the wife shall not lose her entitlement to it through prescription alone.
II.) Quantity of Dower:
Classical jurists set no higher limit for the dower. But there is no such unanimity on the minimum dower. The Shafis, Hanbalis and the Shias maintain that there is no such limit. However, the Malikis set a quarter dinar of gold or three dirhams of silver as the minimal dower, by analogy with the Sharia limit for punishable theft. A dirham weighs 2.97 grammes. The Hanafi doctrine maintains that the minimal dower shall be 10 dirhams, citing the authority of a tradition of the Prophet to that effect, a tradition whose authenticity is disputed by other schools. The Shia’s say that what was given to Bibi Ayesha should be the minimum limit.
III.) Types of Dower:
The parties may stipulate an amount to be paid as dower in the marriage itself. This is called specified dower, and it may be reduced or increased by mutual consultation. Provided that the husband is sane and major, the addition shall be binding on him under three conditions:
• It has to be determinate, i.e. if a husband says to his wife,
“I have added to your dower” without further specification, no addition shall be valid.
• It occurs while they still live together, i.e. no divorce or separation.
• That it is accepted, at the same sitting where it has been offered.
Likewise, a wife possessing full legal capacity may discharge her husband, subsequent to the marriage contract, of all or any part of her specified dower. It shall be valid if the husband accepts it or keeps silent, and void if rejected. However, if waiving off occurred due to pressure, i.e. threat or on husband’s death bed, then it will not be valid. Unlike increase, no guardian of the minor wife has the power to reduce her specified dower.
But if no dower is specified or if the contract expressly states that there shall be no dower payable, the wife is nevertheless entitled to receive dower, i.e. the proper dower. The Sunni and Shias agree that the proper dower is to be calculated by taking into account the amount of dower received by comparable members of the wife’s family such as her sisters or cousins. Her personal attributes are also relevant: her virginity, age, education, beauty and so on.
The specified dower is further sub-classified into
“prompt” or
“deferred” dower. The parties may agree between themselves when the dower shall be paid. If it is payable immediately at the conclusion of the marriage contract marriage it is called prompt dower. Dower will be deferred if it is payable some time later, otherwise it shall become payable immediately on the earlier of two events: death or divorce. If the marriage contract is silent on the type of dower it is presumed that it will be prompt.
IV.) Entitlement to Dower:
1.) Entitlement to Whole Dower:
It is unanimously agreed by the Sunnis that the whole dower shall become due to the wife on the occurrence of either of two events:
• The actual consummation of marriage;
• The death of either spouse before consummation.
If it is the wife who dies, her heirs can claim it from the husband. All the jurists agree that the whole dower shall be due to the wife if the husband dies by natural causes or murder by a third party, or if the husband himself kills the wife. With the exception of Hanafis, all the other schools agree that the wife shall lose her entitlement to any dower if she killed her husband before consummation.
The Shias have a different view. According to them, if the husband dies before consummation without having specified a dower then nothing is payable to the wife.
2.) Entitlement to Half Dower & Mutat:
Jurists deduce the following conditions for half the dower to be paid:
• That marriage is under a valid contract and the dower is specified;
• That divorce occurs before consummation and due to an act of husband, other than his exercising the option of puberty or recovery from insanity.
It should be remembered that only the stipulated dower shall be halved and any additions which were made to it after the marriage contract shall be dropped altogether.
However, if no dower has been fixed in the contract, then the wife is entitled to a mut’at, i.e. a gift of consideration. Under Hanafi law, it consists of three articles of dress or of their value provided that the value shall not be less than 5 dirhams. The Sunnis in general hold that the mut'a is regulated by the circumstances of both husband and wife. The Shias stick to the Quranic text and consider the circumstances of the husband only.
3.) Entitlement to NO Dower:
No dower, whether specified or proper, shall be due to the wife if:
• The marriage is dissolved by the husband before consummation through exercising his option of puberty or recovery from insanity, as in such a case, the very contract of marriage is declared null and void.
• If the marriage is dissolved before actual consummation by a lawful/ unlawful act of the wife. Lawful acts include option of puberty, recovering from insanity, or taking khula. Unlawful acts include apostasy.
V.) Legal Disputes over the Payment of Dower:
There are a number of legal disputes which relate to the payment of dower. The first relates to the amount of dower. Recently, there has been a trend for very large Maher sums to be announced. There are probably three reasons for this trend:
1.) The brides’ family often demand high Mehar sums for status purpose.
2.) In many cases the bridegrooms themselves encourage the insertion of large Maher sums for their own aggrandisement.
3.) A large dower sum can be viewed as insurance for the wife against the possibility of an unjustified divorce by the husband or his early death.
However, in certain cases, apart from that publicity agreement, there is also a private agreement for a lesser sum agreed between the parties. The same dispute arose in
“Nasir Ahmad v. Asmat Jehan”, and it was held that the real dower payable would be that agreed in private because this is the only agreement really intended to be enforced by both the parties.
The second dispute relates to the refusal of conjugal relations. In Pakistan and Bangladesh, under
S.10 MFLO 1961, if no details of the mode of payment of dower are specified, then the dower would be presumed prompt and payable on demand. Therefore, can a Muslim wife whose prompt dower has not been paid is entitled to refuse consummation of the marriage?
This question was answered in
“Abdul Kadir v. Salima”, where a Muslim wife refused conjugal relations on non-payment of dower after consummation had earlier occurred. The court found that the wife has lost her right to refusal once consummation had earlier occurred. The decision was based on the views of Hanafi Disciples rather than on the view of Abu Hanifa.
The same issue arose in a recent Indian case of “Rabia Khatoon v. Muhammad Ahmad”. The court did acknowledge that under the classical Hanafi law, the wife may refuse to live with her husband on non-payment of dower even after consummation. However, due to policy and social grounds, the court still stuck to their old position of Hanafi Disciples. Thus, the husband was granted his claim of restitution of conjugal relations in addition to the order of paying his wife the outstanding dower.
However, the position in Pakistan changed with the case of
“Rahim Jan v. Muhammad”. Here, the High Court had to decide whether, in Hanafi law, the wife is entitled, even after consummation, to refuse to live with her husband when her prompt dower has not been paid. It was said that “Abdul Kadir’s case” comments are obiter. It was, therefore, firmly held that even after consummation the wife retains the right to refuse the performance of marital obligations till the prompt dower is paid.
The third dispute relates to the remission of dower by the wife. It is obvious that remission would only be valid if it is made by free consent and not due to coercion. In “Shah Banu Begum v. Iftikhar Muhammad”, the wife had remitted the dower so as to prevent the husband form taking a lover. It was held that the waiver was void and of no effect.
The fourth dispute relates to unpaid dower. Generally, an unpaid dower represents an unpaid debt and the wife may sue to enforce payment. The widow has a right to retain possession of the deceased husband’s property until the dower debt is paid to her. In
“Maina Bibi v. Chaudhri Vakil”, a widow remained in possession of certain property that was claimed by the deceased’s heirs. The wife defended on the ground of her unpaid dower. The judge found that the wife has the right to possession unless the heirs pay her the unpaid dower.
PS: Remaining notes will be posted after my law exams InshaAllah ..
Regards ..