Under the Muslim Law, dower is a sum of money or other property which the wife is entitled to receive from her husband in consideration of the marriage. In this thesis, I have discussed the concept of ‘dower’ both under Islamic Sharia Law and under the different statutory laws of Bangladesh. An attempt has been made to describe some situations which may affect the Muslim women’s right of dower. In this context, I have examined some cases regarding dower which clearly show how the Muslim women’s right of dower has been curtailed in practice and prove the patriarchal arbitrariness of Bangladeshi society. Finally, I have tried to give some necessary recommendations to improve the existing situation.
The dower means some money or any property, in which there have right of wife from her husband depend on their marriage contract. In the case of Abdul Kadir Vs Salima gives the best description of the nature of dower by Mahmood J. Actually, women’s rights of dower made by husband depend on two reasons, 1st is for islamic right and 2nd is for husband’s responsibility to his wife. And for those reasons, it is said as Haque- e-Mahar in natural language. The Quran always order to paying off dower to his wife. There must will be paid off dower, even wife will be slave-woman. Islam has legslated the giving of the dower by the husband to the wife in order to please the woman’s heart and to honor her. It is also meant to bring an end to what was done in the Days of Ignorance wherein she was wronged, exploied, despised and robbed of her wealth. The dower is a right exclusively for the wife. It is her posession and none of her guardians or relatives may share any part of it. No one has any power over her concerning how she wishes to dispose of it, as long as she does so in a legally acceptable manner. She may give it away as a gift, she may lend it to others or she may give it in charity or do any other permissible acts she wishes with it.
The dower rights have been existed in any 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. Some people try to correlate dower in Muslim marriage law with ‘donation propter nuptias’ of the Roman law. However, there is main difference. The ‘donation propter nuptias’ is voluntary while the dower is obligatory.
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 or Sadka
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.
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. In order to constitute a valid marriage, the Mohammedan law requires that there should always be a consideration moving from the husband in favour 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.
Root or Custom of Dower
Dower in the present form was introduced by the prophet Mohammad and made obligatory by him in the case of every marriage. “Dower” in Muslim law is somewhat similar to the demotion proper nuptials in Roman law. The important difference however, is that while under the Roman law it was voluntary, and under the Muslim law it is absolutely obligatory. The following points may be noted with respect to the nature of Dower.
Analogy is often drawn between a contract for dower and one for sale. The wife is considered to be the property and the dower her price.
In Abdul Kadir v. Salima, Mahmood. J., comparing the marriage and dower with contract for sale and consideration, says “Dower may be regarded as consideration for connubial intercourse by way of analogy to the contract for sale. The right to resist her husband so long as the Dower remains unpaid is analogous to the lien of a vendor upon the sold goods while they remain in his possession and so long as the price or any part of it is unpaid and her surrender to husband resembles the delivery of the goods to the vendee.
It is regarded by some eminent authorities as a consideration for conjugal intercourse. In the case of Smt. Nasra Begum v. Rigwan Ali, Allahabad High court expressed the view that the right to claim prompt dower proceeds cohabitation.
Dower is an essential incident and fundamental feature of marriage with the result that even if no dower is fixed the wife is entitled to some dower from the husband. The marriage is valid even though no mention of dower made by the contracting party. In Hassina Bibi v. Zubaida Bibi, the Judicial committee held that- “Dower is an essential incident under the Muslim law the status of marriage, to such an extend this is so that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged on definite principles.
Regarded as a consideration for the marriage, it is in theory payable before consummation but the law allows its division into two parts, one of which is called “Prompt” payable before the wife can be called upon to enter the conjugal domicile or demanded by the wife the other deferred, payable on the dissolution of the contract by the death of either of the parties or by divorce. But the dower ranks as a debt and the widow is entitled along with other creditors of her deceased husband, to have it satisfied on his death out of his estate”. If the property of her deceased husband is in her possession, she is entitled to retain the possession, until her dower is satisfied. Heirs may recover that property after they have paid up her debt. Dower-debt is not a charge and widow cannot prevent another creditor or of her husband from recovering his debt from his estate. Dower-debt is an unsecured debt ranking equally with other debts.
Islam insists that dower should be paid to the wife herself. It sought to make dower into a real settlement in favour of the wife, a provision for the rainy day and socially, a cheek on the capricious exercise by the husband of his almost unlimited power of divorce.
A husband thinks thrice before divorcing a wife when he knows that upon divorce the whole of the dower would be payable immediately.
If dower be regarded as sale price, it must be paid to the father or the guardian of the wife, since it is paid to the wife herself, it cannot be the price. It is a token of respect.
Classification of Dower
Broadly, there are two kinds of dower: (i) specified and (ii) unspecified.
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.
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. In the case of Mahadev Lal v. Bibi Maniran 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.
It is payable on dissolution of mariage 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 detemined 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.
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.
Distinction between Dower & Dowry
One should not confuse between dowry and dower. Dowry payments are not a part of Muslim Legal tradition, while the dower or mahr is an integral element of Muslim matrimonial law. Dowry payments have been outlawed and criminalized in south Asia, where they still are a huge legal problem Dowry not being an element of traditional Muslim law, where it occurs, it is part of customary traditions.
A dower is a woman’s right to marital property. It is her right to receive a part of the husband’s income or estate if he dies in the course of the marriage. Dowry however, is the woman’s property that she brings into the marriage when she gets married. The dowry law no longer exists in most of the states. Dower is a sum of money receivable by the wife from the husband as a consideration for the marriage, whereas dowry is an extra dower consideration payable by one party to the marriage to another on the plea of bringing equality in marriage. Taking or paying or abetting payment of dowry has been made punishable.
Subject matter or object 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 recognised 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.
Standard of Dower and Conditions or Terms of Payment
This may be divided into two-
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.
- If the marriage is not consummated, and is dissolved by the act of party:
When divorced by the husband-
- Half of the specified dower, in case of regular marriage: in case of regular marriage.
- A present of three articles if unspecified: in case of regular marriage.
- When divorced by the wife: No dower.
- If the marriage is irregular in the weses 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 favour 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 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 marriage 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 Purposes 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 woman’s 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
A minimum limit of 10 dirhams 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.
- No minimum limit is prescribed.
- Proper dower cannot exceed 500 dirham’s.
- Fixing of dower exceeding 500 dirhams is considered abominable though not
- 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 prompt.
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.
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.
Effect if there are not paying off dower
When wife demand her dower, if t hen husband cannot pay-off her dower, wife then can refuse to make consummation with her husband before paying off dower. In that situation, husband cannot get any type of decree to recover his right about consummation.
Right of widows about dower
Dower is like a debt and it is a unsecured debt. It is not make any charge on husband property. The wife is entitled along with other creditors, to have it satisfied on the death of the husband out of his estate. There are not needed any consent of her husband and his inheritent to disposed husband’s property by widow. After disposed husband’s property peacefully, there has right of widow to live in possession before repaied her dower. Like a example, a muslim died remain a widow, a mother, and father. Widow’s get 8000/- from her husband. Value of that left property by husband 20000/-. Husband’s inherit can take their part of property after repaying dower of widow. In here part of Widow’s 1/4; Mother 1/4; Father 1/2. So, there will be cutting from property of widow 1/4 x 8,000 = 2000/-, of mother 1/4 x 8000/- = 2,000/- and of father 1/2 x 8,000/- = 4,000/-. Now as a inherit get money 3,000/- and as dower get 8,000/-, total amount 11,000/-. Mother get 5,000 – 2,000 = 3,000/- money. And Father get 10,000 – 4,000 = 6,000/-.
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.
On account of Dissolution of Marriage
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.
Dissolution of Marriage by Mubara’at
In Mubara’at, the marriage is dissolved by an agreement between the parties and here the desire for being separated is mutual for a consideration to be paid by the wife to the husband.
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 and 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).
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).
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.
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 obligator 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 (Registraton) 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.
MuslimMarriagesandDivorces (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.
No woman of any other nation except a Muslim woman has absolute rights of getting Mahr or dower from her husband. In none of the communities besides the Islamic Ummah, a husband is under legal obligation to give bridal gift or dower to his wife. It is only Islam which has conferred absolute rights on the woman to demand as much dower from her husband as she desires (there being no upper limit), to acquire it at her discretion and use and enjoy it according to her wishes.
Suit for Dower and Limitation
If the dower is not paid, the wife, and after her death, her heirs, may sue for it. The period of limitation for a suit to recover ”prompt” dower is three years from the date when the dower is demanded and refused, or, where during the continuance of the marriage no such demand has been made, when the marriage is dissolved by death or divorce. The period of limitation for a suit to recover ”deferred” dower is three years from the date when the marriage is dissolved by death or divorce. Where, however, prompt dower has not been fixed, a demand and refusal is not a condition precedent for filing a suit for its recovery, it was decided in Muhammad Taqi Khan v. Farmoodi Begum.
Non-payment of Prompt Dower and Restitution of Conjugal Right
The wife may refuse to live with her husband and admit him to sexual intercourse so long as the prompt dower is not paid. If the husband sues her for restitution of conjugal right before sexual intercourse takes place, non-payment of the dower is a complete defence to the suit, and the suit will be dismissed. If the suit is brought after sexual intercourse has taken place with her free consent the proper decree to pass is not a decree of dismissal, but a decree for restitution conditional on payment of prompt dower, this was held in Abdul Kadir v. Salima.
Liability of Heirs for Dower Debt
The heirs of a deceased Muslim are not personally liable for the dower debt. As in the case of other debs due from the deceased, so in the case of a dower debt, each heir is liable for the debt to the extent only of a share of the debt proportionate to his share of the estate. Where the widow, therefore, is in possession of her husband’s property under a claim for her dower, the other heirs of her husband are severally entitled to recover their respective shares upon payment of quota of the dower debt proportionate to those shares. Hamira Bibi v. Zubaiada Bibi.
Dower is a Debt, but an unsecured Debt
The dower ranks as a debt, and the widow is entitled, along with other creditors of her deceased husband, to have it satisfied on his death out of his estate. Her right, however, is no greater then that of any other unsecured creditor; except that she has a right of retention of possession of her husband’s property until her dower is satisfied. She is not entitled to any charge on her husband’s property though such a charge may be created by agreement. Bebee Bachun v. Sheikh Hamid.
Widow’s Right to retain possession of Husband’s Estate in lieu of Dower The widow’s claim for dower does not entitle her to a charge on any specific property of her deceased husband. But when she is in possession of the property to her deceased husband, having, ”lawfully and without force or fraud” obtained such possession ”in lieu of her dower” (that is on the ground of her claim for her dower, to satisfy her claim out of the rents ant profits and with a liability to account for the balance), she is entitled as against the other heirs of her husband. And as against the creditors of her husband, Mt. Ghafooran v. Ram Chandra Das.to retain that possession until her dower is satisfied.
Liability of Widow in possession to account
A widow in possession of her husband’s estate, in lieu of dower is bound to account to the other heirs of her husband for the rents and profits received by her out of the estate. But she entitled in that case to compensation for forbearing to enforce her right to the dower debt. Hamira Bibi v. Zabaida Bibi.
No Right of Widow to alienate Property to satisfy Dower Debt
The right of a widow to retain possession of her husband’s property under a claim for her dower does not carry with it the right to alienate the property by sale, mortgage, gift or otherwise. Chuhi Bibi v. Shams-un-nisa.
Suit for Possession by Widow who is Dispossessed
If a widow, who is in possession of her husband’s property under a claim for her dower, is wrongfully deprived of her possession, she may bring a suit for recovery of possession. Majidmian v. Bibisahad.
Widow’s Possession no Bar to a Suit for Dower
The fact that a widow is in possession of her husband’s property under a claim for her dower, is no bar to a suit by her against the heirs of her husband to recover the dower debt. But she must in such a suit offer to give up possession of the property. She cannot both retain possession and have a decree for her dower debt
If the widow is in possession of her husband’s property under a claim for her dower the proper course for her to follow is to bring an administration suit in which the property can be placed in the hands of the Court for the satisfaction of her claim by sale of the asset or otherwise.
As the Holy Quran and Hadith of Allah’s Apostle (SM) prescribe for giving dower the Court has no right to reduce the prompt dower unless the wife remits it voluntarily.
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 solemnised or not before it decides to grant any decree for dower and/ or maintenance. It was decided in Mirza Mohammad v. Shazadi Wahida.
Problems Faced by Women in Recovering Dower in Practice
Though we have legal instruments concerning dower and recovery of the dower still it is noticeable that women are being deprived of their right of dower. It was found in a study of the metropolitan city of Dhaka that 88% of Muslim wives did not receive any dower at all. If this is the situation in the capital city, one can anticipate an alarming situation in the rural remote areas. Why are women not receiving their legal right of dower? To inquire into this one has to probe into the causes for not giving dower.
First, in our country though Registration of Marriage has been made mandatory by the Muslim Marriages and Divorces (Registraton) Act, 1974but still in many villages this is not strictly followed. The reasons behind this are sometimes lack of awareness and sometimes a hidden intention to deprive the bride from legal or religious right. Consequently, there exist no Kabinnama of the marriage and it is natural that it will not be possible to trace the amount of dower of the marriage unless it is testified by the witnesses. Absence of Kabinnama is a major cause for the deprivation of the women’s right of dower in Bangladesh.
Secondly, where the Kabinnama is prepared in accordance with law, it is noticeable that there exists a tendency with the groom’s part to fix a lower amount as dower money. This is done to make their way easy to divorce the wife or to remarry.
Thirdly, sometimes, a high amount of dower is fixed by the parties to show of their status but without having any real intention to pay it. But this should not be encouraged by the courts by reducing the amount of dower in the pretext that the husband does not have the present ability to pay it. Fourthly, sometimes it is not mentioned in the Kabinnama specifically that what portion is prompt and what portion is deferred. The Commission on Marriage and Family Laws which was established in 1955, recommended that if no details about the mode of payment of mahr are given in the Kabinnama, the entire amount shall be presumed by the court to be payable on demand. However, lack of awareness deprives women from their legal right.
Fifthly, the examination of Bangladeshi cases clearly shows that where the right of dower has been specifically mentioned in the Kabinnama as to what portion is prompt and what portion is deferred, still the right has been curtailed by reducing the amount to be paid by the customary concept of usool (paid), i.e. by jewellery or other items, given to the women in the ceremony of marriage. It is significant to point out that this concept of usool in Bangladesh is different from the concept of usul or customary practice under Islamic law. The indigenous concept of usool in Bangladesh means that at the time of marriage the bridegroom’s party asserts that a portion of dower has been paid by jewellery or other valuable goods. This might be noted down in the kabinnama. However, the bride’s party usually does not ascertain at the time of marriage whether the claim is genuine because they want the ceremony to go on uninterrupted. But the claim might later prove to be false, taking away a potential right of dower of the woman. Moreover, presents given at the time of marriage in the form of jewellery or otherwise, when included as a part of the dower, are reducing it. When the presents are made in public at the time of marriage, there is clearly an element of show of status, rather than concern for the financial protection of the women.
Sixthly, the cases reveal that whether 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. Thus, in Mst. Razia Akhter v. Abul Kalam Azad, the Family Court gave preference to documentary evidence. In the registered kabinnama it was mentioned that a part of the dower had been paid as usool at the time of marriage. The court did not further inquire whether it had actually been paid. The same situation arose also in Mst. Ilafi’za liihi v. Md. Shafiqid Alam, where the Family Court only allowed the claim for dower after reducing the total amount by the usool as specified in the registered kabinnama.
Seventhly, the concept of usool can also be found in cases where the registered kabinnama did not specify that a part of dower has been paid by the husband at the marriage ceremony. In a recent case the Family Court presumed:
The plaintiff comes from a middle class family, her father is a lecturer in a college and the defendant is a teacher in a school. Considering the social economic structure of our society it is very unlikely that a wedding in this background would take place without any jewellery or ornament from the bridegroom. In these circumstances I consider that there is some truth behind the claim of the defendant in this respect. Therefore, I would allow only half the dower money to the plaintiff.
In Monawara Begum v. Hannan Hawladar, the court orthodoxy decided that the wife was no longer entitled to dower as the jewellery given by the husband constituted her dower. This concept of usool as substituting dower with jewellery and other valuables is actually reducing the right of dower of women. However, it is admitted that the Quran does not stipulate that dower should be in cash. The problem in Bangladesh is that outwardly it is shown that the dower is paid in kind, whereas actually it may not have been paid. It is rarely inquired whether the valuables are actually paid or whether it tallies with the amount reduced from the dower.
When usool is registered in the kabinnama, it is easier for the courts to reduce the dower, as found in many other cases. In Ms., Roksana Begum v. Md. Abul Khair the facts of the case show that the defendant claimed he had given talaq to the plaintiff, which he could not prove in the Family Court. The Family Court decided that the marriage subsisted. The Family Court also held that when in the registered deed it is expressed that a part of the dower money has been paid in the form of jewellery at the marriage ceremony, there is no ground not to reduce the amount of dower. The court allowed only the prompt dower.
Eighthly, sometimes the courts are not only regarding jewellery but also household ware and apparels as substitutes of dower. But, how do such items give security to women as to be a part of dower? In Nasima Bilkis v. Md. Abdus Sarnad Khan, the Family Court regarded ware and apparels as the usool and further reduced the amount of dower after deducting the jewellery. Moreover, the defendant contended that the plaintiff waived the dower in the wedding night. The court, however, held that the defendant’s contention did not bear any truth.
Ninthly, it is significant to point out that this imposed tradition to waive dower in the wedding night is another customary practice forced on women to deprive them of their right of dower. Under Islamic law, a wife can forego or gift her dower which is known as hiba al-mahr and the husband can increase the dower after marriage. The customary tradition suggests that if the wife foregoes her dower in the wedding night it is good for the couple. It is significant to point out that there is no customary tradition putting pressure on the husband to increase the dower. This confirms what we know, namely that the customary traditions have a patriarchal interpretation and restrictive effects on women. However, under Islamic law the wife making the remission must act freely and must not be influenced. In an earlier case in Pakistan, it was held that if the wife remits her dower just to retain the affection of the husband she is not allowed to forego her dower. We could not find any reported or unreported case of this kind in Bangladesh.
Tenth, in Ms. Shahkla Begum v. Md. Mahhuh llossain, the plaintiff asked for the full amount of dower, i.e. prompt and deferred dower. The facts of the case were that the parties were married by a registered kabinnama on 3.2.90 and the dower was fixed at 75,001 taka, out of which 5,000 taka were mentioned as having been paid under usool. The Family Court granted the plaintiff’s prayer for full prompt and deferred dower after deducting the amount paid as usool, on the reasoning that the defendant had effectively given talaq to the plaintiff on 21.10.91.
But in Margubater Rouf v. A.T.M. Zahurul Haq Khan the plaintiff prayed for the realisation of dower and maintenance. The facts of the case show that the parties were married in accordance with sharia on 20.10.88. The dower money was fixed in the registered kabinnama at 300,000 taka. The plaintiff stated that her marriage was duly consummated but the defendant denied it. The Family Court held that the contention of the defendant that the marriage had not been consummated did not hold good as there was no obstacle in the way of the defendant from being intimate with the plaintiff. She was, therefore, entitled to dower. Although there was no medical evidence, the court reduced the amount of dower to 100,000 taka and did not go into details on how the major portion of the dower had been paid by the defendant. Perhaps the same customary concept of paying up or usool by jewellery and other ware and apparels curtailed the amount.
This case also seems to contain evidence of another recent custom of taking dower as a status-enhancing device, which is to stipulate huge amounts of dower without any intention to pay this. Under Islamic law there is a concept of assummat, where a large amount of dower may be announced in public, whereas privately the parties agree to a smaller amount. The effect of this can be felt in another case.
In Mst. Meherunnahar v. Rahman Khondakar, the plaintiff asked for the realisation of her dower which was fixed at 90,111 taka by a registered kabinnama. The Family Court ascertained that no portion of the dower money had been paid as usool and that the plaintiff was entitled to the full amount. The facts of the case reveal that the plaintiff herself stated that the marriage had not been consummated. The Family Court, while deciding whether the plaintiff was entitled to the full amount of dower, attempted a theological discussion that in the Quran it is expressly written that the amount of dower should be that amount which the husband is able to give whenever the wife demands it. The court deduced that according to religion and the theologians, the amount should not be more than the ability of the husband warranted. It was held that it should not be more than the annual income of the husband.
The court, thus, reduced the specified amount of dower granted by the registered kabinnama to 50,000 taka on the ground that the defendant, being a lawyer who is completely dependent on his senior, would not be able to pay a higher amount. It is significant to note that the reduction of the dower money to 50,000 taka was first suggested by a few lawyers in a conciliation or shalish and the parties agreed to it. But as the defendant failed to pay anything, the suit arose. The Family Court thus accepted the compromise amount arrived at by the shalish and attempts to give it religious legitimacy.
Eleventh, the wife may remit the dower wholly or partially in favour 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 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 Mahr 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. But for lack of awareness women are being deprived of their right of dower as they believe that they have already relinquished their right.
Twelfth, it is believed in or society that if the marriage is dissolved by exercising the right of talaq by the husband only then the wife is entitled to the full amount of dower and Iddat money. In practice, this is rarely observed. But there is a misconception that if a marriage is dissolved by the wife by exercise of talaq-e-tafweed then the wife will be deprived from the dower money. But actually the wife is entitled to the dower money as she has exercised the delegated power which was conferred on her by her husband.
Thirteenth, the women’s right of dower is curtailed by turning a talaq case into 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. In Mubara’at form of dissolution of marriage, the marriage is dissolved by an agreement between the parties and here the desire for being separated is mutual for a consideration to be paid by the wife to the husband. Lack of clear idea about these forms of dissolution of marriages creates confusion and accelerates the deprivation cases.
There are cases where the courts are enterprising and go into detail whether the husband actually paid the dower. Ambia Khatoon v. Md Yasin Bepar is a suit for the realisation of dower and maintenance. The facts of the case in a nutshell are that the parties were married on 7.7.87 and the dower was fixed at 50,000 taka, of which half was prompt and the other half deferred. The defendant, to evade the payment of dower, was relying on out-of-court settlement and agreements. He contended that he had paid the full amount of dower (50,000 taka) fixed in the registered kabinnama by a compromise in a non-judicial stamp paper. The defendant also stated that he had paid a large part of the dower (30,000 taka) as usool at the time of the marriage. The Family Court rejected these claims of the defendant as being contradictory in itself and held that this showed he was attempting to evade payment. The court ascertained that as the marriage between the parties subsisted, the plaintiff was entitled only to her prompt dower, i.e. 25,000 taka.
Sometimes the courts allow the full amount of deferred dower, even when the marriage subsists. Similarly, in Mst. Angari Begum v. Md. Iqbal Rashid, the Family Court granted the wife the full amount of deferred dower from the husband when the marriage subsisted Umn this case, while marrying for the second time, he did not marry in accordance with Section 6 (5) of the MFLO of 1961. The Court seemed to take its reasoning from Section 6 (5) (a) of the Muslim Family Laws Ordinance of 1961.
This shows that this statutory enactment can be applied by the judges as a protection for wives in a polygamous marriage.
The cases in Bangladesh on the issue of dower indicate that, on the one hand, there is evidence of growing support and protection of women by allowing the wives to have their right of dower. On the other hand, there are attempts to reduce the amount of dower by different customary conventions. However, dower does act as a bar for the husbands to refrain from divorcing their wives; evidence shows there are less cases of talaq than khula. This seems to indicate also that not many talaq cases go to court because men just talaq their wives and the wives do not see any point in challenging this unfettered and unilateral right of their husbands.
On the other hand, it might be that there are not more talaq cases as the husbands refrain from giving divorce, thus forcing wives to go for judicial khul. In that case the husband will not only be freed from the payment of deferred dower but also gets in return what he might have given to the wife during the marriage. Even though this financial side of the husband’s willingness for judicial khul was clearly pointed out, it was never emphasized in Bangladesh. Moreover, dower also contributes to desertion, as husbands who cannot divorce their wives and pay for it just desert them. It must be emphasized in this context that desertion has become an acute problem in Bangladeshi society.
The cases on dower in Bangladesh highlight the contrast between theory and practice. In dower cases, the payment is a legal obligation, whereas in social practice the question of payment arises only at the instance of divorce. For example, in khula cases the right of dower is relinquished to end an undesired marriage. The fact remains that in social reality women rarely get any portion of their dower unless the husband is adamant to give talaq. Sometimes the social position of female litigants who are economically dependent influences the claim for dower as the last financial support. Thus, the theoretical right of women’s potential power of demanding dower does not exist in practice. It was already mentioned earlier that in Dhaka itself 88% of the Muslim wives did not receive any dower.
In the previous chapter I have elaborately discussed the problems in recovering dower money by the women in Bangladesh. From there it is clear that 88% of Muslim wives do not receive any dower at all in the metropolitan city of Dhaka so we can understand the real situation of rural area.
The cases in Bangladesh on the issue of dower indicate that, on the one hand, there is evidence of growing support and protection of women by allowing the wives to have their right of dower. On the other hand, there are attempts to reduce the amount of dower by different customary conventions. However, dower does act as a bar for the husbands to refrain from divorcing their wives; evidence shows there are less cases of talaq than khula. This seems to indicate also that not many talaq cases go to court because men just talaq their wives and the wives do not see any point in challenging this unfettered and unilateral right of their husbands.
On the other hand, it might be that there are not more talaq cases as the husbands refrain from giving divorce, thus forcing wives to go for judicial khul. In that case the husband will not only be freed from the payment of deferred dower but also gets in return what he might have given to the wife during the marriage. Even though this financial side of the husband’s willingness for judicial khul was clearly pointed out, it was never emphasized in Bangladesh. Moreover, dower also contributes to desertion, as husbands who cannot divorce their wives and pay for it just desert them. It must be emphasized in this context that desertion has become an acute problem in Bangladeshi society. For the protection of the women the courts will have to be more sympathetic towards them and ensure their rights of dower. The right of dower should not be reduced or curtailed by any customary
cuonventions or turning a case of Talaq to khula. For example, in khula cases the right of dower is relinquished to end an undesired marriage. The fact remains that in social reality women rarely get any portion of their dower unless the husband is adamant to give talaq. Sometimes the social position of female litigants who are economically dependent influences the claim for dower as the last financial support.
In rural area women are not well educated. So, they are not concern about their rights. Social awareness regarding women’s right of dower should be ensured by inserting basis concepts of dower in the syllabus of primary or secondary education. Duties should be given to the Imams of mosques or to the Chairman of Union Parishad to aware the local people about women’s right of dower.
Sometimes the women are bound to relinquish or do not claim their rights because of their social prestige, lack of power and lack of social support in a male dominated society. Women will have to be brave and free from shyness because it is their right conferred by the Quran itself.
In rural areas many marriages are taking place without Kabinnama, or in the kabinnama it is not mentioned about what portion is prompt or what portion is deferred, or where the amount of dower is mentioned there is a tendency to keep lees amount as dower money or women’s right of exercising the right of Talaq-e-Tafweed are curtailed or conferred on condition that in such a case she will have to waive her right of dower. In these way women are being deprived and subordinated by the patriarchal family and in the wider socio-religious arena. So it will have to be observed very minutely by the bride’s part at the time of marriage that whether the right of Talaq-e-Tafweed has been delegated by the husband unconditionally or will have to be aware about the conditions, if any. Because by having such a right the wife could be provided separate maintenance and residence if the contingencies of polygamy or cruelty arise. This would resolve many of the problems for deserted women when the husband marries again or she is to suffer the agony of difficulties of living with a co-wife.
It is not enough to make marriage registration mandatory rather monitoring cell should be constructed for ensuring registration of marriage. Moreover, enquiry should be effective as to what portion of dower money has been really paid by the groom’s part and what has been stated in the kabinnama, both at the time of marriage and at the time of dissolution of marriage. As there is a tendency to deprive the bride from her dower by deducting the fake price of jewellery on the part of the groom.
Again, there exists a recent custom of taking dower as a status-enhancing device, which is to stipulate huge amounts of dower without any real intention to pay this. Under Islamic law there is a concept of assummat, where a large amount of dower may be announced in public, whereas privately the parties agree to a smaller amount. This should not be encouraged. Whatever amount has been stated in the kabinnama as dower money will have to be paid by the husband and in no circumstances the court should reduce the amount. As this excessive amount of dower is a method to check divorces and discourage polygamy. Moreover, this excessive amount of dower is not only a check for unreasonable exercise of talaq but also the only financial security the women might have after the dissolution of her marriage.
We know that if the dower is not paid, the wife and after her death, her heirs may sue for it. The period of limitation, according to Article 113 of the Limitation Act, for a suit to recover prompt dower is three years from the date when the dower is demanded and refused; or where the marriage is dissolved by death or divorce. In case of deferred dower, the period of limitation is three years, from the date when the marriage is dissolved by death or divorce. Where, however, prompt dower has not been fixed, a demand and refusal is not a condition precedent for filling a suit for its recovery.
Here sometimes in practice it is noticeable that neither the wife has any knowledge about her right of dower nor she knows any information about the legal mechanism of getting it. Sometimes she is brining an action after expiry of the time limitation for dower money and for that she never gets dower money. So women should be more aware about her right of dower and it is the responsibility of the government, NGOs and civil society to disseminate the knowledge of dower.
Legal aid services should be more accessible for the women so that they can bring their action within the proper time.
If we want to overcome these problems and want to establish women’s right in the society with dignity then women and men all have to be more conscious and aware about the women’s right of dower under shariah and statutory laws of Bangladesh and we all have to extend our hands for the women to ensure their right of whole amount of dower money.
Under the Muslim Law, dower is an important part of marriage. The custom of giving dower was come from Pre-Islamic time. The Quran and Sunna say that, dower must be given at the time of marriage and the statutes of Bangladesh also confirm it. The dower is given in two ways; one is prompt and other is deferred. The prompt dower is given when the wife claimed it and the deferred dower is given when the marriage is dissolved by divorce or after the death of husband’s. If any person denies giving this dower money to his wife, then the law can force him and the wife can decline to continue conjugal life. The cases on dower in Bangladesh highlight the contrast between theory and practice. In dower cases, the payment is a legal obligation, whereas in social practice the question of payment arises only at the instance of divorce. In this thesis attention has been given on who can make contract for the dower money at the time of marriage, and when, and how the dower money will be paid to the wife. If someone denies paying dower money then the wife can claim it under the law and within a limitation period. In the present thesis I have discussed the problems facing by women in recovering the dower money in practice and finally I have tried to give necessary solutions for ensuring women’s right of dower from the male dominated society. The amount of dower is not only a check for unreasonable exercise of talaq but also the only financial security the women might have after the dissolution of her marriage, so they should not be deprived from getting it.