Report on The Concept and Importance of Dower - Assignment Point
Report on The Concept and Importance of Dower
Subject: Law | Topics:

Introduction

The dower rights have existed in many nations in one form or the other including Arabs. However, the concept of dower rights was refined by God and his prophet Muhammad (PBUH). Islam makes dower obligatory whether written in the marriage certificate or not.

A dower may be specified or proper. However, dower rights become payable on divorce or death of husband if not paid immediately after marriage. No Muslim is allowed to take back the dower amount whether specified or proper in any condition. The Quran protects the rights of women as: ‘And give the women (on marriage) their dower as a free gift’ (Quran 4:4.)

And “If ye had given the latter (wife) a whole treasure for dower, take not the least bit of it back: Would ye take it by slander and manifest wrong?” (Quran 4:20 Abdullah Yusufali).

A species of life estate that a woman is, by law, entitled to claim on the death of her husband, in the lands and tenements of which he was seized in fee during the marriage, and which her issue, if any, might by possibility have inherited. The life estate to which every married woman is entitled on the death of her husband, intestate, or, in case she dissents from his will, one-third in value of all lands of which her husband was beneficially seized in law or in fact, at any time during overture.

The real property must be inheritable by the wife’s offspring in order for her to claim dower. Even if, however, their marriage produces no off spring, the wife is entitled to dower as long as any such progeny of her husband would qualify as his heirs at the time of his death. Prior to the death of the husband, the interest of the wife is called an inchoate right of dower, in the sense that it is a claim that is not a present interest but one that might ripen into a legally enforceable right if not prohibited or divested. It is frequently stated that an inchoate right of dower is a mere expectancy and not an estate. The law governing dower rights is the law in existence at the time of the husband’s death and not the law existing at the time of the marriage.

The courts, however, protect the inchoate right of dower from a fraudulent conveyance—a transfer of property made to defraud, delay, or hinder a creditor, or in this case, the wife, or to place such property beyond the creditor’s reach—by the husband in contemplation of, or subsequent to, the marriage. Protection is also available against the claims of creditors if the claims arose after the marriage. The posting of security can be required to protect the interest if oil, gas, or other substances are removed from the land, which thereby results in a depreciation—a reduction of worth—with respect to the value of the estate. Decisions supporting a contrary view take the position that a wife cannot interfere with her husband’s complete enjoyment of the land during his lifetime.

A wife can relinquish her inchoate right of dower by an ante nuptial agreement—which is a contract entered into by the prospective spouses prior to the marriage that resolves issues of support, division of property, and distribution of wealth in the event of death, separation, or divorce—or by a release, that is, the relinquishment of a right, claim, or privilege.

The claim of dower is based upon proof of a legally recognized marriage, as distinguished from a Good Faith marriage or a De facto marriage—one in which the parties live together as Husband and Wife but that is invalid for certain reasons, such as defects in form. A voidable marriage, one that is valid when entered into and which remains valid until either party obtains a lawful court order dissolving the marital relationship, suffices for this purpose if it is not rendered void—of no legal force or binding effect—before the right to the dower arises.

Most states have varied the dower provisions. The fraction of the estate has frequently been increased from one-third to one-half. The property affected has been expanded from realty only to both realty and personality. The time of ownership has sometimes been changed from “owned during marriage” to “own at death.” The type of interest given to the surviving spouse has been expanded from a life estate to outright ownership of property.

In many states, a widow is entitled to a statutory share in her husband’s estate. This is often called an elective share because the surviving spouse can choose to accept the provisions made for her in the decedent’s will or accept the share of the property specified by law of Descent and Distribution or the particular law governing the elective share. In many jurisdictions, dower has been abolished and replaced by the elective share. In others, statutes expressly provide that a spouse choose among the elective share, the dower, or the provisions of the will.

Definition of Dower or Mahr

Mahr or dower is a sum of money or offer property which the wife is entitled to receive from the husband in consideration of the marriage.

Mahr or dower is a sum that becomes payable by the husband to the wife on marriage either by agreement between the parties or by operation of Law. It may either be prompt or deferred.

According to wolson, “Dower” is a consideration for the surrender of person by the wife. It is the technical Anglo- Mohammedan term for its equivalent “Mahr” in Arabic.

According to Ameer Ali, “Dower” is a consideration which belongs absolutely to the wife.

According to Dr. Jung defines, “Dower” as the property or its equivalent, incumbent on the husband either by reason of being agreed in the contract of marriage or by virtue of a separated contract, as special consideration of Buza, the right of enjoyment itself.[3]

According to Baillie, “the property which is incumbent on a husband, either by reason of its being named in the contract of marriage, or by virtue of the contract itself. Dower is not the endanger or consideration given by the man to the women for entering into the contract; but an effect to the contract imposed by the law on the husband as a token of respect for its subject, the women.[4]                                In order to constitute a valid marriage, the Mohammedan law requires that there should always be a consideration moving from the husband in favuors of the wife, for her sole and exclusive use and benefit. This consideration is called mahr or sadak in legal treatises and in common parlance dain mahr.

The principle of ante nuptial settlements is not peculiar to the Mohammedan law. Sautayra thinks that the custom originated in ancient times with the payments which the husbands often made to their wives as a means of support and as a protection against the arbitrary exercise of the power of divorce.

The above opinions are based on the argument that marriage is a civil contract and dower is a consideration for the contract. But it is submitted that the above opinions are erroneous, because even in those cases where no is specified at the time of marriage, marriage is not void on that recount, but the law requires that some dower should be paid to the wit. Abdur Rahim correctly observes, “It is not a consideration preceding from the husband for the contract of marriage, but it is an obligation imposed by the law on the husband as mark of respect for the wife as is evident from the fact that the non- specification of dower at the time of marriage does not affect the validity of marriage.[6]

Classification of Dower

Broadly, there are two kinds of dower: (i) specified and (ii) unspecified.

Specified Dower

Specified dower is that dower which is fixed at the time of marriage or later on. There are provisions relating to dower under sections 13, 14, 15, 16 and 20 of the kabinnama [Form-E] according to the Muslim Marriages and Divorces Rule 1975. When a husband agrees to pay to his wife a residential building or one lakh taka as mahr, it is an example of specified mahr.[7]

The specified dower has been further divided into- (a) prompt and (b) deferred.

Prompt Dower (Muajjal Mahr)

It is payable immediately after marriage on demand. According to Ameer Ali, a wife can refuse to enter into conjugal domicile of husband until the payment of the prompt dower. The following point must be noted regarding prompt dower:    Prompt dower is payable immediately on the marriage taking place and it must be paid on demand unless delay is stipulated for or agreed. It can be realized any time before or after the marriage. The wife may refuse herself to cohabit with her husband, until the prompt dower is paid. If the wife is minor, her guardian may refuse to allow her to be sent to the husband’s house till the payment of prompt dower. In such circumstances, the husband is bound to maintain the wife, although she is residing apart from him.

It was held in Rehana Khatun v. Iqtider Uddin, that the prompt portion of the dower may be realized by the wife at any time before or after consummation.[8] In the case of Mahadev Lal v. Bibi Maniran[9] it was decided that prompt dower does not become deferred after consummation of marriage, and a wife has absolute right to sue for recovery of prompt dower even after consummation. Dower which is not paid at once may, for that reason, be described as deferred dower, but if it is postponed until demanded by the wife it is in law prompt dower.

It is only on the payment of the prompt dower that the husband becomes entitled to enforce the conjugal rights unless the marriage is already consummated. The right of restitution arises only after the dower has been paid.

As the prompt dower is payable on demand, limitation begins to run on demand and refusal. The period of limitation for this purpose is three years. If during the continuance of marriage, the wife does not make any demand, the limitation begins to run only from the date of the dissolution of marriage by death or divorce.

Although prompt dower, according to Muslim law, is payable immediately on demand, yet, in a large majority of cases it is rarely demanded and is rarely paid, in practice a Muslim husband generally gives little thought to the question of paying dower to his wife save when there is domestic disagreement, or when the wife presses for payment upon the husband’s embarking upon a course of extravagance and indebtedness without making any provision for the lapse of time since marriage raises no presumption in favour of the payment of dower.

Deferred dower

It is payable on dissolution of marriage either by death or divorce. According to Ameer Ali generally in India dower is a penal sum with the object to compel husband to fulfill marriage contract in its entirety. The following points must be noted regarding deferred dower:

Deferred dower is payable on dissolution of marriage by death or divorce. But if there is any agreement as to the payment of deferred dower earlier then such an agreement would be valid and binding.

The wife is not entitled to demand payment of deferred dower, but the husband can treat it as prompt and pay or transfer the property in lieu of it such a transfer will not be void as a fraudulent preference unless actual insolvency is involved. The widow may relinquish her dower at the time of her husband’s funereal by the recital of a formula. Such a relinquishment must be a voluntary act of the widow.

The interest of the wife in the deferred dower is a vested one and not a contingent one. It is not liable to be displaced by the hampering of any event, not even on her death; as such her heirs can claim the money if she dies.

If the kabinnama, the marriage contract deed, fixes the amount of dower but fails to show what portion of it will be prompt and what deferred dower, according to Allahabad and Bombay High courts the proportion between the two should be fixed on the basis of (i) position of the wife, (ii) custom of locality, (ii) total amount of dower, (iv) status of the husband.

Shia law- Under Ithna Ashari shia law if the kabinnama fixes the total amount of dower but does not specify as to what portion of it will be prompt and what deferred, the whole of the dower is regarded as prompt.

In the Madras presidency, unless otherwise stipulated the entire dower is prompt no matter the parties are Shia or Sunni.

Sunni law- According to Sunni law, in the absence of any family usage and statement in kabinnama, half of the total amount is regarded as prompt and half as deferred.

Proper dower (mahr-i-mithl)

Its size is to be determined in view of the socio-economic conditions of the parties involved.

If no mahr has been agreed or expressly stipulated by the parties, the contract of marriage is still valid. This also means that if no mahr sum is specified in the marriage contract, the husband is not thereby released from his liability to pay a dower. Even a statement that no dower shall be paid does not change the position. In these circumstances, what is known as the ‘proper dower’ becomes due. It is worked out on the basis of the mahr agreed for women of a similar social status to the wife. Particularly relevant will be the mahr paid to other female members of the wife’s family, for instance sisters, paternal aunts and female cousins.[11]

There is no limit to the maximum amount of proper dower under the Sunni law, but under the Shia law the proper dower should not exceed 500 Dirham. 500 Dirham was the amount of dower which was fixed in the marriage of Fatima, the prophet’s daughter. In the Shia Muslims it is, therefore, considered a point of honour not to stipulate for a sum higher than the sum of dower fixed by the prophet for his daughter, Fatima.

Subject matter of Dower

The subject matter of dower is not only confined to a sum of money or property; it includes personal services and other things. According to a tradition, Amir- bin- Rabia said, “that a woman of the tribe of Bani Fazarah married on a settlement of a pair of shoes, and the prophet said to her ‘Are you pleased to give yourself and your property for these two shoes: she said, ‘Yes’. Then the prophet approved of the marriage.’’ The followings were recognized as the subject of dower: A handful of dates (Abu Daud). A pair of shoes (Tirmizi). If the husband is a slave, his services to his wife (Mohit Sarkhsee). The services of the husband’s slaves to the wife (Fatawa-i Alamgir) Husband’s services rendered to the guardian of a minor wife (Durrul Muktar). Teaching Koran to the wife (Tradition).

In fact, the main contention of the Muslim Jurists is that anything which comes within the definition of meal can be the subject matter of dower. Thus, apart from the personal services of the husband, any profits arising from land or business, debts due to the husband, insurance policies, chooses-in-action, the sale proceeds of something, may constitute valid dower.

If the subject matter of dower be “an animal” or “cloth”, then the wife is entitled to mahr-ul-misl, proper dower because such dowers are invalid for uncertainty. Similarly, “a have” or “the land” without specifying the exact location and description are not fit subjects of dower, and the court will have to fix proper dowers in such cases.

Contract of amount of dower in marriage & contract of dower made by father

The amount of dower may be fixed either before or after marriage and can be increased after marriage. It was held in Basir Ali v. Hafiz that the amount of dower may be entered into by the father of the bride.

The father of a minor son may make a contract on dower on his behalf and it would be binding on the son even if it was made after his marriage during the minority of the son. The father, if he acts as guardian for the marriage of his infant son, he is not personally liable unless he expressly becomes a surety for the dower stipulated. Otherwise the father only acts on behalf of the minor son and binds the latter and not himself personally. When a father enters into a contract of dower on behalf of his son, he makes himself a surety for due payment of dower in case his minor son has no means of paying it.

Amounts of Dower and Conditions of Payment

This may be divided into two-

  1. If the marriage is consummated, and is dissolved by death:

(a)    Whole of the specified dower in case of regular marriage.

(b)   Proper dower if unspecified in case of regular marriage.

(c)    Specified or proper dower, whichever is less, in the case of irregular marriage.

  1. If the marriage is not consummated, and is dissolved by the act of party:

1. When divorced by the husband-

  1. Half of the specified dower, in case of regular marriage: in case of regular marriage.
  2. A present of three articles if unspecified: in case of regular marriage.
  3. When divorced by the wife: No dower.
  4. If the marriage is irregular in the wises and above: No dower.

Maximum & Minimum Amounts of Dower

The amount of dower or mahr varies in different countries; there is no fixed rule as to the maximum (mus’ab Settled a dower of 500,000 dirham or the granddaughter of Abu Bakre. The Prophet did not enunciate any fixed rule as to the amount of dower. He expressly left it to custom and local usages but as he appears to have settled 500 dirham upon Maimuna, the Shias consider that amount to be the mahr-i-sunnat. The Radd-ul-Muhtar says the dower of “our lady” Fatima was 400 dirham). It depends on the social position of the parties and the conditions of society in which they live. The Radd-ul-Muhtar lays this down with considerable distinctness. “Whatever amount exceeding the minimum the man agrees to pay he will be liable therefore”.

The Shiah Shara’ya says: “there is no limit either to the maximum or the minimum of dower,” it being a matter of contract between husband and wife; So long as the article given or assigned by way of dower possesses any definite value, the assignment is considered valid. There is no distinction so far as this principle is concerned between the Shias and the Sunnis. Both schools, however, regard excessive dower as improper though not absolutely illegal; but, as will be seen, this recommendation is totally disregarded by the Indian Musulmans, for reasons which have been explained in the Introduction.

The early Hanafi lawyers fixed ten dirham, as the minimum for dower. The Malikis inhabiting a poorer and less populous country than that in which the early Hanafi lawyers flourished, considered even a smaller sum as permissible.

These minimums have become obsolete and it is now customary in different countries to fix the amount of dower entirely by a consideration of the circumstances of the husband and wife.

Among Sunnis there is no maximum; any amount may be fixed. Some of the sects of Shias, however, there is a tendency “not to stipulate for a sum higher then the minimum fixed by the Prophet for his favorite daughter Fatima, the wife of Ali, namely 500 dirham.’’

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 in favor of her husband or his heirs. A Muslim girl who has attained puberty is competent to relinquish her Mahr although she may not have attained majority (18 years) within the Bangladesh Majority Act.  The remission of the Mahr by a wife called Hibe-e-Mahr.

But the remission made by the wife, should be with free consent. It was held in the case of Nurunnessa v. Khaje Mahomed[19] that where the wife was subject to the mental distress, on account of her husband’s death the remission of dower, was considered as against her consent and not binding on her.

In has been held in a (Karachi case) Shah Bano v. Iftekar Mohammed, 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 of Maher 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 deed.

Historical Background of Dower

It is said that during pre-historic times man lived a barbaric life, which had the tribal form. For unknown reasons mrriage was prohibited between a male and a female of the same blood. Hence the young men of a tribe, who wanted to marry, were compelled to choose their wives from some other tribe. They often visited other tribes for this purpose. At that time man was not aware of his role in begetting children. He thought that the children belonged exclusively to their mother. Though he often found that the children closely resembled him, he did not know the cause of that resemblance. Naturally the children also thought that they belonged to their mother and not to their father. At that time ancestry was traced through the mothers. Men were considered to be barren and sterile. After marriage they stayed with their wife’s tribe as a mere adjunct of it, because the wife required her husband’s company. This period is known as the period of matriarchy.

It was not long before man discovered his role in procreation and came to believe that the children in reality belonged to him. From then onwards, he dominated over woman and assumed the role of the head of the family. Thus, the so called period of patriarchy began.

During this period also a marriage between the people having the same blood was prohibited. Man had to choose his wife from some other tribe, and bring her to his own tribe. As there was constant warfare among the tribes, the only way to get a wife was to kidnap a young girl from some other tribe.

Gradually peace took the place of warfare and the different tribes were able to achieve peaceful coexistence. During this period the custom of kidnapping the girls was abolished. In order to get the girl of his choice the man went to her tribe, became a hired worker of her father and worked for him for some time. In consideration of the services rendered by him the girl’s father gave her hand to him and he took her to his own tribe.

When money became common, man discovered that instead of serving the bride’s father for years, it was better to present a suitable gift to him and take the girl immediately. That was the origin of the dower (mahr).

According to this account, in the early days man lived as an adjunct of woman and served her. During this period woman ruled over man. In the next stage, when power passed into man’s hands, he kidnapped women from some other tribe. During the third stage, in order to win a woman, man went to woman’s father and served him for years. During the fourth stage man presented a sum of money to the woman’s father. And that is how the custom of dower originated.

It is said that since the time man abolished the system of matriarchy and laid the foundation of patriarchy, he gave woman the status of a slave, or at the most, of an employee or a servant of his. He looked upon her as an economic tool, which, by the way, could satisfy his lust also. He did not give her social or economic independence. The fruits of woman’s labour belonged either to her father or to her husband. She did not have the right to choose her husband, nor could she carry out any economic activity for her own sake. The money which man paid as dower and the expenses which he bore as maintenance (nafaqah) were in consideration of the economic gains which he derived from her during the period of conjugal relations.

Importance or Significance of Dower

According to our belief, the dower has come into being as the result of skilful arrangements, put into the very design of creation, to balance the relations between man and woman. The dower has come into being, because, by nature, the respective roles of man and woman are different from each other. According to the Gnostics the law of love and attraction prevails everywhere in the Universe. As everything is designed to perform a definite function, its role is different from that of all other things.

While discussing the disparities between man and woman, we have already pointed out that their feelings and sentiments, with regard to each other, are not the same. The law of creation has ordained that woman should have the qualities of beauty, pride and indifference, whereas man should have those of courting and pursuit. That is how the physical weakness of woman, as compared to man, has been counterbalanced, and for this very reason it has always been man who has sought women hand and proposed to her. As we have already seen, according to the sociologists, during the periods of both matriarchy and patriarchy, it has been man who has sought after woman.

The scientists say that man is more lustful than woman. Certain Islamic traditions say that man is not more lustful. Actually the case is the reverse, but woman has a better sense of self-restraint. Practically, both the views come to the same thing. Anyway, it is certain that man has less self-control. This feature has enabled woman not to run after man, nor to submit to him easily. Man’s instinct compels him to approach woman, and he takes steps to gain her favour. One of these steps is to present her with a gift.

Members of the male sex have always vied with each other to win a female. They have even fought each other to achieve this end. But the members of the female sex have never shown the same keenness to win a male. This is so, because the roles of the male and the female are not the same. The male always pursues a female whereas the female shows a sort of indifference to him.

The dower is closely related to woman’s modesty and chastity. She knows by instinct that her self-respect demands that she should not submit herself freely.

That is how woman, in spite of her physical weakness, has been able to bring men to their knees, to compel them to vie with each other, and to make Romeos run after Juliet. When she agrees to marry a man, she receives a present from him as a sign of friendship, cordiality and goodwill.

It is said that among some barbaric tribes, when a girl had more than one suitor, she used to persuade them to fight a duel. Whoever won the duel or killed his rival was considered fit to secure the hand of the girl.

There was a newspaper report that a girl in Tehran persuaded two boys to fight a duel in her presence. From the point of view of those who think that power means only brutal force and maintains that the history of man-woman relations contains nothing but cases of cruelty and exploitation, it is unbelievable that the fair and weaker sex should be able to set on two members of the stronger sex to attack each other. But for those who have some knowledge of the wonderful and mysterious power which nature has granted to woman there is nothing strange in this.

Woman has had much influence over man. Her influence over man has been greater than man’s influence over her. Man is indebted to woman and to her chastity and charming modesty for his many achievements of art and feats of bravery. The credit for the building of many a personality and the developing of many a genius goes to her. Woman has built man and man has built the society. If woman loses her qualities of chastity, modesty and restraint, and tries to play the role of man, first she may be debased, then man may lose his manhood, and in the end the society may be ruined.

That faculty of woman, has enabled her to maintain her personality throughout history; to compel man to come to her door-step as a suitor; to lead man to rivalry and even to fight for her sake; to maintain her modesty and chastity as her hallmark; to keep her body hidden from the gaze of man; to inspire man to love to perform feats of bravery, as a sacred asset; to excel in intellectual and creative deeds; to sing amorous songs and to submit to the weaker sex in humility. Hence this tendency has impelled bridegroom to offer his bride a present at the time of marriage as the dower.

The dower is a part of the natural law, which has been promulgated by nature itself.

Difference between Sunni & Shia Law Regarding Dower

Sunni Law

A minimum limit of 10 dirham’s is prescribed for specified dower.

There is no limit to proper dower.

There is no maximum limit for specific dower.

If marriage is dissolved by death and dower has not been specified, or it is agreed that no dower shall be payable, proper dower would be due whether the marriage was consummated or not.

An agreement that no dower shall be due is void.

In the absence of an agreement only a reasonable part of the dower is presume to be prompt.

Shia Law

No minimum limit is prescribed. Proper dower cannot exceed 500 dirham’s. Fixing of dower exceeding 500 dirham’s is considered abominable though not  Illegal. In such case no dower would be due if the marriage was not consummated. Such agreement by sane and adult wife is valid. The whole dower is presumed to be promp

The Quran

The form of the dower described above in connection with the fifth stage is not an invention of the Quran. All that the Qur’an did was to restore it to its natural and pristine form. The Quran in its incomparably elegant style says: “Give to the women a free gift of their marriage portions”. (Surah an-Nisa, 4 : 4) This means that the dower belongs to women exclusively and it is a gift to be paid directly to them. It has nothing to do with their fathers or brothers.

In this short sentence the Holy Quran has referred to three basic points:  Firstly it has used for marriage portion or the dower the word, saduqatehinna meaning truthfulness and sincerity and not the word mehr. Thus, the dower is a symbol of the cordiality of the man paying it. This point has been expressly mentioned by a number of the commentators of the Holy Quran, such as Zamakhshari, the author of the well-known commentary, the Kashshaf Similarly, the famous philologist, Raghib Isfahani says in his lexicon of the Quran that the dower has been called saduqah because it is a symbol of the sincerity of faith. Secondly, it is clear from the above verse of the Quran that the dower is to be paid directly to the woman, and her parents have no claim to it. It is not a compensation for the efforts made by them to bring up their daughter.

The Holy Quran abolished many pre- Islamic Arab customs connected with dower and restored it to its natural and deserving pristine form.

According to the Islamic traditions not only a father has no claim to any part of the dower of his daughter, but it is also not permissible to include, in the marriage agreement, a condition that apart from dower anything additional would be paid to him. In other words, a father is not allowed to derive any financial gain out of the marriage of his daughter.

Islam also abolished the custom according to which a man worked for his prospective father-in-law when money had not yet become a medium of exchange. This custom did not come into existence simply because the fathers wanted to benefit through their daughters. There were other reasons also, which were characteristic of the age and were not necessarily unfair. Anyhow, there is no doubt about the existence of such a custom in the ancient world.

Anyhow, Islam has done away with this custom, and now the father of the woman has no claim to the dower, even if he wants it for spending it on his daughter. Only the woman herself has full rights to spend it as she likes.

During the pre-Islamic period there existed other customs also, which practically deprived the woman of her dower. One of them was the custom of inheriting conjugal rights. If a man died, his son or brother inherited his conjugal rights, in respect of his wife, in the same way as he inherited his property. The son or the brother of the deceased had a right, either to give the widow in marriage to another man or take her dower, or to declare her his own wife against dower already paid to her by the deceased.

The Holy Quran did away with this custom also. It says:

‘0 you who believe! It is not lawful for you to inherit women forcibly” (Surahan-Nisa,4 : 19)

In another verse, the holy Quran has totally banned a marriage with one’s father’s wife (stepmother) even if she be willing. It says: “Marry not those women whom your father married” (Surahan-Nisa,4 : 22).

The Holy Quran did away with every custom which deprived woman of her dower. One of such customs was that when a man lost interest in his wife, he harassed her with a view to making her agree to a divorce on the condition that she would return, wholly or partly, the dower which she had received. The Holy Quran says: “Nor should you put constraint on them (women) so that you take away part of what you have given.’’ (Surahan-Nisa, 4: 19).

Sunnah

A hadith of the Prophet Muhammad (may peace be upon him) on the rights of woman regarding dower are as under:‑

Omme-Habibah reported that she was the wife of Abdullah‑b‑Jahash who died in the land of Abyssinia, and then the Negus gave her in marriage to the Prophet and took from him a dower of 4000 (in another narration 4000 dirhams). Then he sent her to the Prophet with Shurahbil‑b­Hasanah. (Abu Daud; Nisai)

Anas retorted that the Messenger of Allah emancipated Safiyyah and married her and made her emancipation a dower… (Bukhari arid Muslim)

Anas reported that Abu Talhah married Omme Solaim and the dower between them was Islam. Omme Solaim had accepted Islam before Abu Talhah who sought her in marriage. She said: I have surely accepted Islam; but if you accept Islam, I shall marry you. So Abu Talhah accepted Islam and it was their dower between them. (Nisai)

Oqbah‑b‑‘Amer reported that the Messenger of Allah said: The most equitable of the conditions (of marriage) is that you should fulfil that (Dower) with which you have made private parts lawful. (Bukhari and Muslim)

Jaber reported that the Messenger of Allah said: whoso gives two handful of barley or dates as dower of his wife has rendered (marriage) lawful. (Abu Daud)

Sahl‑b‑Sa’ad reported that a woman came to the Messenger of Allah and said: O, Messenger of Allah, I offer myself to you. She then kept standing for a long time. A man got up and said; O, Messenger of Allah! marry her to­(me)…The Prophet said: Have you got with you anything which we may give to her as dower? He said; I have nothing but this trouser of mine. The Prophet said: Seek, though it be a ring of iron. Then he searched but did find nothing. The Prophet asked: Have you got any portion of the Qur’an with you? ‘Yes’, said he ‘such and such a verse.’ He said: I give her in marriage to you for what is with you from the Qur’an (So teach her something from the Qur’an). (Bukhari, Muslim)

Hazrat Umar once addressed the people in the Mosque of the Prophet: O People! Why have you started fixing the dowers of women at fantastically higher amounts, while the Messenger of Allah had never fixed the dower of any of his wives at an amount exceeding four hundred Dirhams. Beware! I should not hear in future that any of you has fixed dower exceeding 400 dirhams. He then descended from the pulpit. There and then came a woman of Quraish and said: O Umar! Have not you heard the word of God (in Al‑Qur’an 4:20). Allah says. Even if you have given a big treasure to a woman, don’t take back anything out of that. Hazrat Umar at once returned, withdrew his order and announced: Any one of you can fix as much dower as he pleases: I can’t stop him. (Tafsir Ibn Kathir).[25]

The Sunnah has laid down the following rules and regulations regarding Hag Mohr or dower the payment of which by the husband to the wife is obligatory.

Payment of the Mahr (dower) to his wife is obligatory on the husband. It is an essential part of marriage. The Qur’an says: “O Prophet! We have made lawful to thee thy wives to whom thou has paid their dowers”‑(33:50). At another place the Qur’an says:….And there is no blame on you to marry them when you give them their dowries”‑ (60:10). However, the marriage is not invalid if dower is not paid or contracted or fixed before marriage. It is apparent from verse No. 236 of chapter 2 of Al‑Qur’an which reads: “There is no blame on you if ye divorce women before consummation or the fixation of their dower; but bestow on them a suitable gift.” Even in such case something is to be paid.

The amount of dower which the bridegroom has to give to his bride has not been fixed by the Qur’an or Sunnah. It depends entirely on the agreement of the contracting parties The Qur’an says:” ….The wealthy according to his means and the poor according to his means; a gift of a reasonable amount, is due from those who wish to do the right things”‑ (2:236)

There is no minimum or lower limit of dower fixed by law, though some jurists opine that it should not be less than ten dirhams. It may be in the form of cash or in kind. The Prophet (PBUH) did not fix any minimum: According to the well reported Traditions of the Prophet of Islam, even a handful of barley or dates or even an iron ring may be sufficient provided the bride agrees to accept it. The Messenger of Allah himself married Hazrat Safiyyah and her emancipation was her dower. Omme Solaim agreed to marry Abu Talha on the condition that he should accept Islam. Abu Talha fulfilled the condition and his acceptance of Islam was declared to be mahr or dower of Omme Solaim. In another case, the teaching of one or two verses of the Holy Quran by the husband to the wife was declared to be an adequate Mahr for the bride.

No maximum or upper limit of mahr or dower has been fixed by Islam either. The Quran says: “But if ye decide to take one wife in place of another, even if ye had given the latter a whole treasure for dower, take not the least bit of it back”‑ (4:20). From this verse the jurists of Islam have deduced that the right of a woman to demand any amount of dower as a condition of her agreeing to marriage is not restricted by the Islamic Law. Hazrat Umar, the second pious caliph of Islam, once thought of fixing the upper limit of dower on the complaint of the men that the women were demanding fantastic amounts; but he was dissuaded by a woman who drew his attention to verse of the Holy Quran quoted above.

If a person divorces his wife before touching her and before appointing any amount of dower for her, he has been directed to make provision for her according to his means (Al‑Quran 2:236). But if he divorces her before touching her and after fixing the amount of dower for her, he is bound to give half of the amount of dower which has been fixed. However, if the woman agrees to forgo her rights of accepting this half dower or the man shows generosity in giving her full dower, such an accord is permitted. (Al‑Quran 2:237)

The men should give to their wives their dower willingly. But if the women of their own accord agree to remit the whole or part of their dower, the husbands are welcome not to pay it (Al‑Quran 4:4). Hazrat Umar and Qazi Shuraih have decreed that if a wife remits the dower but later on demands it, the husband shall be compelled to pay it because the very fact that she demands it’ is a clear proof that she did not remit it of her own free will.

According to verse no. 24 of Surah Al‑Nisa, dower has to be paid as a duty.

Remission of Dower by Wife

The wife who has attained puberty may remit the dower or any part of it in favour of the husband or his heirs. The remission would be valid although made without consideration. But it is valid only when made by a written instrument.

The remission should be made when the woman is acting as a free agent and the court must be satisfied that she realized what she was doing and the consequences of it. A remission mode by the wife when she is in great mental distress on account of the death of her husband is not valid. When a wife remitted her dower thinking that, it was the only way to win or retain the affection of the husband, it was held she was not acting as a free agent.

It has been held by Allahabad High court that a woman who has attained puberty can remit her dower. She can therefore do so even before she has attained the age of eighteen.

The High Courts of Madras and Patna have held that a remission made by a wife who has not attained majority under the Majority Act, 1875, is invalid, though she may have attained majority by Muslim law. A stipulation in a contract of dower that the wife should not be competent to remit her dower without the consent of her relations is valid. Where a woman feels that the possible way to win or retain the affection of the husband is to remit the dower amount, and forgoes her claim, she is not a free agent and it would be inequitable to hold that she is bound by such remission of dower.

Dower Payable after Consummation of Marriage

Consummation confirms or perfects the dower. So that after consummation or valid retirement a woman has a right to her dower if a separation should take place

and it does not matter whether the cause of separation his in the husband or the wife.

Death before Consummation

Death before consummation, the wife is entitled to her full dower. It necessarily follows that if no dower has been fixed she would get her full proper dower. Muhammadan law gives to the widow, whose dower has remained unpaid, a   very special right to enforce her demand. This is known as ‘the widows’ 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. Her right is not the nature of a regular charge, mortgage or a lien; it is in essence a personal right as against heirs and creditors to enforce herrights and it is a right to retain, not to obtain, possession of her husband estate.

Divorce before Consummation of Marriage

In case of divorce the right to dower is confirmed only when the cause of the separation lies with the husband, as when he divorces his wife or a separation takes place on account of his impotency, but the husband would not be liable to pay dower when the cause of separation lies with the wife as when she exercises the option of puberty.

 Dissolution of Marriage by Talaq

If the marriage is dissolved by exercising the right of talaq by the husband then the wife is entitled to the full dower and Iddat money. But in practice, we will later see that this is rarely observed.

Dissolution of Marriage by Talaq-e- Tafweed

One of the most potent legal weapons in Muslim women’s possession is the right of delegated divorce or talaq-e-tafweed. This is a conscious effort of the female spouse or her guardian to balance the male matrimonial power. This right has been regarded by the British Indian judge as conditional and not an absolute option, depending on being reasonable and not opposed to public policy. However, conditional delegation was always recognized to be perfectly valid if the condition or contingency specified in the kabinnama was fulfilled. The Muslim Family Laws Ordinance of 1961 has provided the option to delegate the right of divorce in the form of the kabinnama. If a marriage is dissolved by the exercise of talaq-e-tafweed then the wife is not deprived from the dower money as she has exercised the delegated power which was conferred on her by her husband.

Dissolution of Marriage by khula

Dissolution of marriage by khula is defined as an agreement between the parties to dissolve the marriage by the wife’s foregoing of dower. In khula cases women are sacrificing their right of dower in exchange for a divorce. But the case law reveals that the higher courts are turning other cases of dissolution into a case of khula to deprive women of their right to dower and to protect the financial interest of men.

Moreover, from the practical point of view, a woman may be pressurized by her husband to give khula to avoid the payment of dower which he has to give when using talaq. Thus the dissolution of marriage by khula potentially operates against women as it deprives them of their right of dower for their freedom from an undesirable marriage. It is yet to be clarified why the courts are encouraging ‘judicial khul’ more than any other grounds of dissolution.

Muslim Family Laws Ordinance, 1961

Section 5 of the Muslim Family Laws Ordinance   makes it absolutely necessary that the marriage solemnized under the Muslim Law shall be registered. Where no details about the mode of payment of dower are specified in the nikah nama, or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand. High dower is fixed to prevent the husband from divorcing the wife capriciously.  This rule was followed in Zakeri Begum v. Sakina Begum.

The Family Courts Ordinance, 1985

Subject to the provisions of the Muslim Family Laws Ordinance, 1961, a family court shall have exclusive jurisdiction to entertain, try and dispose of any suit

relating to dower. It was held in Shafiqul Huq (Md) v. Mina Begum, that Family Court has got every jurisdiction to decide as to whether the kabinnama in question is a genuine and valid document or not and whether any marriage between the petitioner and opposite party was ever solemnized or not before it decides to grant any decree for dower. It was further stated in the case of Jesmin Sultana v. Md. Elias that the court has no right no right to reduce the prompt dower unless the wife remits it voluntary.

Islamic law does not fix any maximum amount of dower, but makes it obligatory for the husband to pay whatever amount has been specified and whatever amount is assessed if not specified.Fixing of excessive amounts of dower is being used in South Asia as a means to control and check the husband’s unilateral and unlimited power of divorce, as he has to pay the full amount of dower at the time of divorce.   But it also acts as a status matter, in which case there is no intention to pay the stipulated amount in full.Attempts have been made to curb the fixation of excessive amounts of dower in India which go against the interests of Muslim women, but no similar provision has been made in Pakistan or later in Bangladesh. There has been some confusion over dower and dowry after the Dowry and Bridal Gifts (Restriction) Act of 1976 in Pakistan, but this has now been clarified.

Muslim Marriages and Divorces (Registration) Act, 1974

Dower in a Muslim marriage forms an inseparable part of the terms of the kabinamah and thus as the kabinnamah is intended to be registered under the 1974 Act, so is the dower. The Act of 1974 is in force relating to the registration of Muslim marriages including dower.

Muslim Marriages and Divorces (Registration) Rules, 1975

A nikah Registrar shall charge for registration of a marriage a fee at the rate of taka ten for the dower of every one thousand taka or part there of, subject to a minimum of taka fifty and a maximum of taka four thousand.

Judicial Determination of Dower Rights in Bangladesh

In this chapter, I want to discuss about some dower cases of Bangladesh. Discuss some cases of dower in Bangladesh are given below:

Case: 1

Shafiqual Haq   v. Mina Begum.In this case “kabinnama” in question is a genuine and valid document. The opposite party Mina Begum file a Family suit before the family court for dower against the petitioner Shafiqual Haq.

Facts

On 12.10.2000 opposite party No.1 instituted the family suit before the family court for dower and maintenance. The petitioner has already appeared and fileda written statement denying his marriage with her. He has   got every opportunity challenge “Kabinnama” and the solemnization of the marriage on the every somegrounds on which he  on 22.10.2000 filed title suit No.196 of 2000 before a subordinate judge.

Judgment

Family court has got every jurisdiction to decide as to whether the “Kabinnama” in question is a genuine and valid document or not and whether any marriage between the petitioner and opposite party No:1 was ever solemnized or not before it decides to grant any decree for dower, no declaration in respect of the “Kabinnama” or cancellation of the “Kabinnama” is at all necessary.

Lastly we say that, where the Family Court only allowed the claim for dower after reducing the total amount by the usool as specified in the registered “Kabinnama”.Wheather any portion of dower is actually paid or not, if it is mentioned in the registered “Kabinnama”the courts tend to reduce the amount of dower by the alleged usool.

The Family Court Ordinance 1985, section 5 define clearly “Family court has got every jurisdiction to decide as to whether the “Kabinnama” in question is a genuine valid document or not and whether any marriage between the petitioner and opposite party was ever solemnized or not before it decides to grant any decree for dower and maintenance.

Case: 2

Hefzur Rahman v. Shamsun Nahar

In these case, the petitioner Hefzur Rahman filed a suit against the two parties Shamsun Nahar Begum and Shaon Mia, a minor. The petitioner married the first opposite party on 25.3.1985, the dower money was fixed at tk: 50,001/00,second opposite party, a son was born out of this wed lock on 15.12.1987 subsequently, the petitioner divorced the first opposite party on 10.8.1988 and on 2.11.88 first opposite party for herself and behalf of her minor son, instituted family court suit No.60 0f 1988 in the family court claiming the said dower money at taka 1,000.00.

Facts

The petitioner and the two opposite parties, No.1 and 2, in this Rule are respectively named Md.Hefzur Rahman, Shamsun Nahar Begum and Shaon Mia, a minor. The petitioner married the first opposite party on 25.3.85,The dower money was fixed at tk:50,001/00.second opposite party, a son, was born out of  this wed lock on 15.12.87 subsequently, the petitioner divorced the opposite party on 10.8.88, on 2.11.88 first opposite party for herself on behalf of her minor son, the second opposite party, instituted family court suit No. 60 of 1988 in the family court and the court of Assistant Judge, Daudkandi, claiming they said dower money at taka,1,000.00 per month for each of them.

Judgment

The family court decreed the directing the petitioner to pay taka 48,000,00 as the balance dower money, to pay tk,3,ooo.oo to the first opposite party as the maintenance for the iddat-period of three month and to pay tk,1,000.00 each month for the maintenance of the opposite party.On appeal preferred by the petitioner being family Appeal No: 2 of 1991 the learned District Judge, Comilla reduced the amount of maintenance of tk.60, 000 per month for each of the opposite party.

Considering all the aspects we finally hold that a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period of iddat for an indefinite period that is to say till she loses the statute of divorce by remarrying another person.

Case: 3

Atiqul Huque Chowdhury v Shahana Rahim and Another

In this cases, the opposite party  No.1 as plaintiff instituted the above mentioned suit for recovery of dower amounting to taka 70,001,00 and also for maintenance and guardianship of plaintiff No.2___

Facts

The opposite party-plaintiff’s case, as stated in the petition, is that the plaintiff No.1 Shahana Rahim was married to the defendant, Atiqul Huque Chowdhury, on 1, 10, 82 by a registered kabinnama and dower was fixed at taka 70, 001, 00 half of which was prompt and the other half was deferred after living together for some months the plaintiff No.1. Became pregnant. Unfortunately the defendant indulged in extra martial affairs and very often returned home late and drunk. Sometimes he also abused her and treated her cruelly. The plaintiff soon became anemic which prompted her elder brother to take her to her father’s   house where a daughter, plaintiff No.2, was born on 07.05.1984; but neither the defendant    nor any member of his family cared to visit her or bear any medical expenses. On 15.04.1985 in order to marry for the second time the petitioner defendant sent a notice of divorce to the plaintiff. On receiving the said notice the plaintiff No.1 claimed dower and also the maintenance of plaintiff No.2 on 05.05.1984. But the defendant on one pretext or another delayed the payment of dower and finally on 10.12.1988 refused to pay it.

Judgment

Moreover, the whole purpose of the 1974 Act, as derived from the preamble, is to consolidate the registration of Muslim marriages and divorces under one   Act and not to diversity the registration of different parts of marriage contract under different Acts, e.g. dower under some other Act. The dower in a Muslim marriage forms an inseparable part of the terms of the terms of the Kabinnama and thus as the Kabinnama is intended to be registered under the 1974 Act, so is the dower.The Act of 1974 is, in our opinion in force relating to the registration of Muslim marriage including dower.

Case:4

Muhammad Taqui khan v. Farmodi Begum

In the present case, we have found that the plaintiff had asked her husband for the payment of her entire dower and the husband had definitely refused to entertain her claim in any shape or form and had referred her to a suit. In these circumstances it was not necessary for the plaintiffs to make a fresh demand later on when she decided to file the suit and under advice received decided to reduce her claim to half the amount of dower.

Facts

The plaintiff, Mt. Farmoodi Begam, a Pathan lady of Shajahanpur, was married to Mohammad Taqi Ahmad Khan, a Pathan, resident of Shajahanpur, on 24th June 1908. By this union a number of children were born and two grown-up daughters are now living. In April 1934 some differences, apparently of a trivial nature, arose between the husband and wife and, after a married life of over 25 years, the plaintiff left her husband’s home and has brought this suit for recovery of Rs. 40,000 against him. Her case, shortly stated, is that at the time of marriage her dower was fixed, “without any specification, at a sum of Rs. 80,000 and two dinars” and that by a custom prevailing in the family and amongst the Pathans of Shajahanpur half of this is to be treated as prompt and. half as deferred. Her husband refuses to pay this sum or any other sum and she is entitled to recover the same by an action at law against him. The defendant denied the lady’s dower to be Rs. 80,000 and he alleged that it was only Rs. 15,000. He further alleged that the lady had agreed to remit the whole of her dower and while leaving the defendant’s home she had taken a large amount of cash and ornaments and had thus paid herself off if she had any claim for dower. The custom pleaded by the lady was also denied and it was further contended that no valid demand for the payment of dower had been made and the lady had no cause of action for the suit. The trial Court found against the plaintiff on the issue of custom. It found against the defendant on the issue of the amount of dower, remission of dower and of its payment. On the issue whether a demand had been made previous to the suit or not it expressed no decided opinion, having taken the view that the present plaint itself could be treated as a demand. It further found that 1/5th of the dower should be treated as prompt and the remaining deferred. Accordingly it granted the plaintiff a decree for Rs. 16,000 with interest from the date of the suit. Against this    judgment and decree, the plaintiff and the defendant have appealed and these two appeals are now before us for consideration.

Some matters were in controversy in the Court below which are no longer in dispute before us. It is now conceded that the dower of the lady fixed at the time of marriage was “RS. 80,000 and two dinars without any specification,” that no portion of it has been remitted or paid off and that there exists no custom according to which a proportion could be fixed as to bow much of it was prompt and how much deferred and it is for the Court to determine the amount of prompt dower according to law. The questions which have been argued before us are largely questions of law, namely whether the plaintiff has got any cause of action and whether any portion of the lady’s dower can be treated as prompt and, if so, how much.

The defendant contends that previous to the filing of the suit the plaintiff had in fact made no demand for payment of her dower and the demand set up by her is invalid in law. Further, that the plaintiff has no right to recover prompt dower after consummation of marriage and that the amount awarded to her by the trial Court as prompt dower is unduly excessive. The plaintiff, on the other hand, contends that the amount awarded to her by the trial Court is unduly inadequate and 1/3rd of her dower should be treated as prompt. At the very outset it is necessary to determine the question of fact whether a demand for payment of dower was in fact made by the lady before she raised the action. In Para1 of the plaint inters alia the plaintiff alleged:

Since about a month the plaintiff has been compelled to demand repeatedly her prompt dower debt from the defendant. But he always put forward excuses and ultimately he refused to pay, hence this suit.

 In Para 2 the plaintiff alleged:

The cause of action for this suit arose on or about 23rd September 1934 when the defendant refused to pay for the last time in Shajahanpur.

1. In her sworn statement in the suit dated 23rd January 1935 she stated as follows:

I demanded my dower debt Rs. 80,000 and two surkh dinars through my cousin Fazal Ahmad Khan. In reply to the same he (the defendant) asked me to file the suit.

2. The lady was not cross-examined on this point. The husband gave evidence and did not controvert this statement. At the same time, Fazal Ahmad Khan was not called at the trial, nor was any further evidence tendered, oral or documentary, in support of this demand. The learned Counsel for the defendant contends that this is all interested testimony and wholly unreliable and legally inadmissible. We do not think so. At the time of filing of the plaint the plaintiff and her advisers were fully conscious of the fact that a demand and refusal was necessary for the purposes of the claim. They say so in the plaint that demand was repeatedly made and refused. There was absolutely no reason to invent this false statement. Time was not running out, there were no other compelling reasons and it would have been the easiest thing in the world if this statement had been untrue to issue a written demand and to file the action a few days later. The defendant, as we have noted above, did not admit the amount of dower and did not further admit that any dower was due and not paid off. In the circumstances, it is very natural that he would not be in a mood to entertain any claim for dower on the part of the lady and would naturally refer her to a suit. We therefore are of opinion that there is no good reason why the lady’s Statement on this part of the case should not be accepted in its entirety.

3. The next matter is whether this demand was sufficient and valid in law. The dower of the lady at the time of marriage was fixed at Rs. 80,000 and two dinars without any specification. There was no agreement between the parties and no custom exists under which it can be determined how much of it was to be treated as prompt and how much deferred and this apportionment has to be made by a decree of Court after a trial. Where the amount of dower to be treated as prompt is to be assessed by a decree of Court after contest, is it absolutely essential for the success of the claim to make a previous demand and if so in what terms? Whether the demand should be wholly dispensed with or whether it should be of a general nature for settlement of the claim without fixing or specifying any amount or whether an exaggerated and extravagant demand is permissible even up to the entire amount of the dower or whether the demand should be a reasonable and bona fide one? These were some of the questions which were debated at great length before us.

4. The defendant contends that in a claim for prompt dower under Mahomedan law, a previous demand and refusal by the plain, tiff is a part of the plaintiff’s cause of action. A dower debt is one of those obligations in which a creditor has to seek his debtor and not the debtor his creditor and if a valid and proper demand has not been made antecedent to the suit the action is bound to fail for want of a cause of action. The defendant further contends that in a case where prompt dower is not fixed by agreement under custom and has got to be fixed by Court no valid and proper demand can be made till the amount is fixed and therefore an action would not lie at all for the recovery of prompt dower and a dower therefore in such a case must be taken to be a deferred dower. Alternatively, he contends that a plaintiff must, before raising the action, fix up a bona fide and reasonable amount as her prompt dower and demand the same before filing a suit to recover it and an exaggerated demand embracing the entire amount of dower can never be a valid demand for a claim of half the amount of dower which later on the plaintiff decides to bring in Court. The plaintiff, on the other hand, contends that dower debt is like any other money, a debt with a promise to pay an demand, and in a case like this the demand is not an essential part of a cause of action. An action for recovery of debt would lie without making a previous demand. The basic principles which govern these contentions have been the subject of discussion by high judicial authority. In a Full Bench decision in Nawab Bahadoor Jung Khan v. Mt. Uzeez Begum (1843-46) S.D.N.W.P. 180 (F.B.) the nature of prompt dower is explained as follows:

Judgment

Nevertheless the Court consider the nature of the eligible dower to be that of a debt payable generally on demand after the date of the contract, which forms the basis of the obligations and payable at any period during the life of the husband, on which that demand shall be actually made, and therefore until the demand be actually made and refused, the ground of an action at law cannot properly be said to have arisen, nor the law of limitation become applicable. The Court remark that in an ordinary bond for debt, the lender has stipulated or demanded to be repaid on the particular date specified in the bond, and there is an actual infraction of the agreement equivalent to refusal of the requirement to repay should the debtor fail to liquidate the loan on the stipulated date ; and here clearly commences the ground of an action in Court for recovery of that which is due; but in the case of an obligation to pay on demand, such as the Court regard the obligation to pay the exigible dower to her, there is no infraction of the obligation until the demand be made and refused, and consequently no cause of legal suit has arisen.

The previous demand of this lesser sum and refusal in this case is not an integral part of the plaintiff’s cause of action. Her real cause of action is the refusal on her husband’s part to co-operate in determining the amount of prompt dower and such a suit, in our opinion, cannot fail simply because a previous demand had not been made for the payment of the precise sum which was claimed in the plaint. In our opinion, the demand which we have found above the plaintiff to have made was quite sufficient to satisfy the condition if demand be taken to be an essential part of the cause of action. In this view, it is not necessary to express an opinion upon a point decided in the plaintiff’s favor by the trial Court, namely that the plaint in the present action can be treated as a demand and whether the rule laid down in Simpson v. Routh (1824) 2 B & Cr. 682 at p. 537 is applicable to the case. The other matter for consideration is what is the effect of  consummation of marriage on the right of the wife to recover her prompt dower.

Case:5

Moulana Md.Zakaria Khan v Mst.Momtaz Khanam and another

In this cases, the plaintiff petitioner Md.Zakaria Khan filed a suit on 9.9.1967

being other suit No 119 of 1967 against the defendants opposite parties for

restitution of conjugal rights payment of prompt dower to the wife is a condition precedent to husbands claim for restitution of conjugal rights.

Fact

The plaintiff petitioner filed a suit on 9.9.67 being other suit No.119 against the Defendants opposite parties for restitution of conjugal rights along with a prayer Of injunction against defendant opposite party No.2 salamat Ali directing him not to interfere with their conjugal life and also not to give the opposite party no:1 is the legally married wife of the plaintiff petitioner. The marriage ceremony took place in March,1965 and a son was born to them on 25.3.1966.The opposite party No.1 along with the minor son was taken to her father’s house for Naiyor with a promise to send her back to the petitioner house within 15 days. On the expiry of this period, however, the opposite party No.1 did not come back. Thereafter various attempts were made to bring her back to her husband’s house. Thereafter on 25.8.67 the petitioner sent a pleader’s notice requesting her to come to his house within seven days. But she did not comply with that notice on 13.9.67 claiming Rs.5520/ on account of her dower, maintenance etc.So the plaintiff petitioner filed the present suit on 9.9.67 for restitution of his conjugal rights.

Judgment

The trial court is therefore directed to proceed with the suit and try the same in

Accordance with law. The trial court will however, be not debarred in pronouncing a judgment and decree as is unusually done in similar case by observing that the decree if any for restitution of conjugal rights will be operative on deposit of payment of the unpaid prompt dower money, if any is due. Both the parties including the defendants opposite parties also will not be debarred in paying for analogous hearing of both the suits before the appropriate court in case they succeed in registering the proposed suit for which the application in forma paupers is pending in the 1st court of Munsiff, sadder Chittagong which numbered as Miscellaneous case No.179 of 1967 and order accordingly.

Lastly we say that, this case focus clearly that payment of prompt dower to the  wife  is a condition precedent to husband’s claim for restitution of conjugal.

Conclusion:

The legal position as regards the issue of dower remains the same in Bangladesh as it was after independence from Pakistan. It has been argued that the division of dower into prompt and deferred creates anomalies and sometimes reduces the amount of dower if the husband can falsely prove that the prompt dower has been paid. In the Pakistan period, the dowers which were not specified were regarded as to be realized in full on demand under the Muslim Family Laws Ordinance of 1961. This is still the law in Bangladesh.

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