About this topic
Mahr (dower) is the wife's own right under Muslim law. These notes answer five questions in order:
- What is mahr?
- How much is it?
- When does it become payable?
- What protects the wife if it is not paid?
- Can it change after the marriage?
Three women seek legal advice on the same morning:
- Zoya: her marriage contract promises her ₹3 lakh as mahr, ₹1 lakh payable on demand and ₹2 lakh payable later. When she asks for the ₹1 lakh, her husband says she will see it only if he divorces her.
- Neha: her mahr was never fixed. After 12 years of marriage her husband has divorced her, saying nothing is owed.
- Hansa: she was made to sign away her mahr on the day of her husband's funeral, and now his heirs refuse to pay.
The answers to all three are worked out at the end of these notes.
Meaning of mahr (dower)
▶ Watch this part of the lecture (8:22)
Definition
Mahr, called dower in English, is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage.
Note the direction: mahr flows from the husband to the wife, and it belongs to her alone.
Mahr distinguished from dowry
The direction of the payment is exactly what separates mahr from dowry.
| Point | Mahr (dower) | Dowry |
|---|---|---|
| Direction | From the husband to the wife | Usually from the bride's family towards the groom |
| Dowry Prohibition Act, 1961 | Expressly excluded from the definition of dowry | Defined in Section 2 |
Section 2 of the Dowry Prohibition Act, 1961 defines dowry and then adds that it "does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies."
Calling mahr a "Muslim form of dowry" is a serious mistake. Mahr goes to the wife; dowry travels towards the groom, and the statute itself keeps mahr out of the definition of dowry.
Historical background
- Before Islam: an Arab bridegroom commonly paid the bride's father or guardian, almost as a price.
- Islam redirected that payment into the bride's own hands.
"Consideration" is not used in the Contract Act sense
Because mahr is no longer a price, the word "consideration" in its definition is not used in the Contract Act sense, as if the wife were being bought. Mulla's Principles of Mahomedan Law explains that dower is "an obligation imposed upon the husband as a mark of respect to the wife."
Purpose of mahr
Classical Muslim law gave the husband a very wide power of divorce. A substantial mahr, falling due when the marriage ends:
- makes the husband think twice before divorcing; and
- secures the wife.
Statutory basis in India
Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 provides that, "Notwithstanding any custom or usage to the contrary", in matters including dower, "the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."
Amount of dower: specified and proper dower
▶ Watch this part of the lecture (10:55)
Specified dower
Specified dower is the amount fixed by the parties. It may be fixed before the marriage, at the marriage, or even after it.
Dower contracted by the father of a minor husband
If the husband is a minor, his father may contract the dower on his behalf, and the son is bound by it. Whether the father himself becomes liable depends on the school:
| School | Is the father personally liable? |
|---|---|
| Sunni law | No, not merely because he contracted the dower, unless he has guaranteed payment as a surety. |
| Shia law | Yes, where the minor son has no means of his own. |
Proper (customary) dower
If no amount was fixed, the wife receives proper dower, also called customary dower. She is entitled to it even if the marriage took place on the express condition that she would claim none, because dower is an essential incident of a Muslim marriage.
How proper dower is valued
The court values proper dower much as a valuer prices a flat by comparing similar flats in the same building. It looks at the dower settled on other women of her father's family, such as her father's sisters, and also weighs:
- her age;
- her beauty;
- her fortune;
- her understanding;
- her virtue;
- the social position of her father's family;
- the economic condition of the husband; and
- the circumstances of the time.
Minimum and maximum dower
The schools draw lines at both ends.
| School | Minimum dower |
|---|---|
| Hanafi | 10 dirhams; any smaller specified sum is raised to 10 |
| Maliki | 3 dirhams |
| Shafi | No minimum |
| Shia | No minimum |
At the top, Shia law caps proper dower, though not specified dower, at 500 dirhams, the dower of Fatima, the daughter of Prophet Muhammad.
When dower is payable: prompt and deferred dower
▶ Watch this part of the lecture (12:30)
Specified dower is usually split into two parts.
| Point | Prompt dower | Deferred dower |
|---|---|---|
| When payable | On demand | When the marriage is dissolved by death or divorce, or on an event the parties agreed upon |
| Comparison | A savings account the wife may draw on any day | A fixed deposit that matures only when the marriage ends |
Prompt dower never becomes deferred just because the wife waits, or because the marriage is consummated.
Where the contract is silent on the split
| Shia law | Sunni law |
|---|---|
| The whole dower is treated as prompt. | Looks to custom; failing custom, to the status of the parties and the amount. |
Effect of divorce on the dower due
| Situation | What the wife gets |
|---|---|
| Divorce after consummation | The whole unpaid dower, prompt and deferred, becomes payable at once. |
| Divorce before consummation, dower specified | Half the specified amount. |
| Divorce before consummation, no dower specified | Only a present of three articles of dress. |
Protection of the wife's right to dower
▶ Watch this part of the lecture (13:32)
During the marriage: the right to refuse
The wife's strongest shield during the marriage is the right to refuse. Until prompt dower is paid, she may refuse:
- to live with her husband; and
- to admit him to conjugal relations.
Defence to a suit for restitution of conjugal rights
If the husband sues for restitution of conjugal rights, asking the court to order her back, the result depends on consummation:
| Situation | Effect of non-payment of prompt dower |
|---|---|
| Marriage not consummated | A complete defence; the suit fails. |
| Marriage consummated with her free consent | The proper course is a decree for restitution conditional on payment of the prompt dower. |
On the husband's death: dower as a debt
- Dower ranks as a debt, but an unsecured one.
- The widow stands with his other creditors and is paid from the estate before the heirs divide it.
- Each heir is liable only in proportion to his share of the estate.
Right of retention
A widow who has "lawfully and without force or fraud" obtained possession of her husband's property in lieu of her dower may keep it until her dower is paid. This is her right of retention.
After divorce: the 1986 Act
Statute adds a direct remedy after divorce.
- Section 3(1)(c) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 entitles a divorced woman to "an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law."
- Section 3(2): if it is not paid, she, or anyone duly authorised by her, may apply to a Magistrate for an order for payment.
If the wife dies first
Her claim to dower passes to her heirs. The husband, being one of her heirs, has his own share set off against it.
Limitation for a suit for dower
- Every suit for dower has a time limit.
- The Limitation Act, 1963 has no separate entry for dower, so these suits fall under the residuary Article 113.
- Article 113 allows 3 years from "when the right to sue accrues."
- For deferred dower, the right to sue ordinarily accrues on the dissolution of the marriage.
Change in dower after marriage
▶ Watch this part of the lecture (15:29)
Increase by the husband
The husband may increase the dower at any time after marriage, but he cannot reduce it on his own.
Think of the dower as a lift that the husband can send only upward.
Remission by the wife
The only way down is through the wife herself, by remission. She may give up the whole dower or any part of it in favour of her husband or his heirs.
Because she is only releasing a debt already owed to her, she needs nothing in return. Two safeguards apply.
- Puberty: she must have attained puberty. The age of 18 does not govern this choice, because Section 2 of the Majority Act, 1875 provides that nothing in it shall affect "the capacity of any persons to act in the following matters (namely), marriage, dower, divorce and adoption".
- Free consent: her consent must be free. A remission does not bind her if it is:
- extracted by coercion or fraud; or
- signed while she is in great mental distress over her husband's death.
Increase: by the husband, at any time, alone. Reduction: never by the husband alone; only by the wife's remission, made after puberty and with free consent.
The three problems solved
- Zoya: her ₹1 lakh is prompt dower, payable on demand. She may sue for it, and until it is paid she may decline to live with her husband.
- Neha: she is entitled to proper dower, since none was fixed. Because her marriage was consummated, the whole of it is payable now on divorce.
- Hansa: the paper she signed does not bind her, because grief at her husband's death left no room for free consent. Her unpaid dower is a debt on the estate, and she should sue within 3 years of his death.
Quick revision
- What is mahr? Money or property the wife is entitled to receive from the husband in consideration of the marriage; it belongs to her alone and is not dowry.
- How much? Specified dower if fixed; otherwise proper (customary) dower, valued by comparison with the women of her father's family and other factors.
- When payable? Prompt dower on demand; deferred dower on dissolution by death or divorce, or on the agreed event.
- Protection? Right to refuse cohabitation until prompt dower is paid; unsecured debt on the husband's estate; right of retention; Section 3 of the 1986 Act; 3 years under Article 113 of the Limitation Act, 1963.
- Change? The husband may only increase it; the wife may remit it after puberty with free consent.
- Principle: mahr is the wife's own right, and the law guards it at every stage of the marriage.
