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The term mahr was originally used to signify gifts given to the parents of the wife while Sadka was a gift to the wife herself. The Sadka or dower which was paid in case of regular form of marriage was approved by Islam.
Nature of dower
"Dower, under the Muhammadan Law, is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage, and even where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the wife as a necessary effect of marriage."
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 difficult circumstances and a check on the capricious exercise by the husband of his almost unlimited power of divorce.
Kinds of dower
Broadly, there are two kinds of dower: (i) specified, and (ii) unspecified. But the specified dower has been further divided into: (a) Prompt, and (b) Deferred.
(i) Specified dower.- An amount settled by the parties at the time of marriage or after, is called specified dower. If the bridegroom is minor, his father may settle the amount of dower. Hanafi Law says that the father is not personally liable for the dower, but according to Shia Law, he will be so liable.
The husband is bound to pay the amount of the specified dower, however excessive or beyond the reach it may be. In Oudh, however, the excessive amount may be curtailed to a reasonable amount.
Prompt and deferred dower. - Prompt dower (Mahr-i-muajjal) is payable on demand, and deferred dower is payable on the dissolution of marriage by death or divorce. The prompt portion of the dower may be realised by the wife at any time before or after consummation, but the deferred dower could not be so demanded.
In the case where it is not settled how much of the dower is prompt and what part of it is deferred, the Shia Law holds that the whole of dower is prompt; the Sunni Law, however, holds that only a part is prompt. This part is to be fixed with reference to (i) custom, or (ii) the status of the parties; and (iii) the amount of settled dower.
There are two aspects of the prompt dower; the time factor and the quantum factor. Prompt means immediately on demand or at the time of marriage, or at any time before consummation, or after consummation when demanded.
Under the customary law, if the prompt dower is not paid on demand, the wife has a right to refuse conjugal rights. In cases where the marriage has not been consummated, she can successfully resist the suit for restitution of conjugal rights; but where consummation has taken place, her refusal extends to the point of payment of the prompt dower. Prompt dower in full amount can be recovered by the wife even after the death of her husband.
As regards the quantum of the prompt dower, it may be divided into specified and unspecified, with the latter customarily being half of the total amount of dower settled at the time of marriage as the portion referable to prompt Mahr.
(ii) Unspecified dower. - Where dower has not been settled at the time of the marriage or after, it is fixed with reference to the social position of the wife's family and her own personal qualifications. The amount of dower fixed in case of wife's sisters, paternal aunts, etc., and the wife's age, beauty, intellect are taken into account.
One aspect of dower beneficial to the Muslim woman is that even where the parties to the marriage have not stipulated any dower, the husband remains under an obligation to pay it. It is called proper dower, or customary dower (mahr-ul-misl).
Subject-matter of dower
The fitting subject-matter of dower is not only confined to a sum of money or property; it includes personal services and other things.
Amounts of dower and conditions of payment
(1) If the marriage is consummated, and is dissolved by death:
(a) whole of the specified dower,
or in case of regular marriage.
(b) proper dower if unspecified,
(c) specified or proper dower, whichever is less, in the case of irregular marriage.
(2) If the marriage is not consummated, and is dissolved by the act of party:
(i) When divorced by the husband -
(a) half of the specified dower, or
(b) a present of three articles, if unspecified in case of regular marriage.
(ii) When divorced by the wife: No dower.
(iii) If the marriage is irregular in the cases No dower.
(i) and (ii) above.
Widow's right to retain possession of her husband's estate in lieu of unpaid dower
The widow's right of retention does not create any right of the widow on the property. She can simply retain the possession and appropriate the usufruct until her dower debt is satisfied. She has thus no right to alienate the property by sale, mortgage, gift or otherwise, and if she attempts to do so, she loses her right of retention.
The widow cannot be made to account for the profits of the estate without being allowed reasonable compensation; this compensation may be allowed in the form of interest on the dower.
The possession of the husband's estate should have been acquired by the wife without force or fraud, that is, it should be "peaceably and lawfully acquired."
It is on the dissolution of marriage that the widow's right of retention comes into existence. Where widow is already in possession of the property, it is presumed that it was lawfully and peacefully obtained, unless otherwise proved.
The widow has no legal right to enter into possession of the property of her deceased husband. She is only entitled to retain it after once getting it.
Widow's right to retain and enjoy her husband's property in lieu of unpaid dower is not analogous to mortgage, usufructuary or other. The possession of the property being once peaceably and lawfully acquired, the right of the widow to retain it till her dower debt is paid is conferred on her by the Muslim Law.
Where a Muslim widow gets into possession of her deceased husband's property which is already mortgaged with another person, and if the mortgagee brings a suit on the basis of which the property is sold, the purchaser can dispossess the widow and she cannot set up the right to retain possession until her dower debt is satisfied.
Dower divorced from divorce and mated with maintenance
Section 125(1) CrPC, 1973 obliges a person (irrespective of his religion) having sufficient means, to maintain his wife, inter alia, including the one divorced by him, who is unable to maintain herself. Furthermore, Section 127(3)(b) ordains the magistrate to cancel such order on proof that the divorcee has received from her husband the whole of the sum which under customary or personal law was payable on such divorce.
Though the Supreme Court did connect dower with the "sum" envisaged by Section 127(3) (b), the Court did not hold dower to be a compensation or a consideration for divorce. In the Fuzlunbi case, the court observed:
"Dower may be prompt, which is payable during marriage and cannot therefore be a recompense for divorce... Mahr as understood in Muslim Law cannot under any circumstances be considered as consideration for divorce or a payment made for loss of connubial relationship."
It was however in Mohd. Ahmed Khan v. Shah Bano Begum that the court divorced dower from divorce.
"If Mahr is the amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the marriage. Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce."
The mere fact of payment of dower on divorce could not lock out the considerations of the human aspects of the divorced woman's financial condition:
The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. Section 125 envisages the situation where the wife is unable to maintain herself and provides her the recourse for adequate relief. There is no conflict between the provisions of Section 125 and those of Muslim Personal Law on the question of Muslim husband's obligation to provide maintenance to her.
Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 strikes a consonant note with Shah Bano ruling that dower is not an amount payable on divorce. i.e., for divorce, which reads as follows:
"Mahr or other properties of Muslim woman to be given to her at the time of divorce:
(1) Although anything contained in any other law for the time being in force, a divorced woman shall be entitled to-
(c) an amount equal to the sum of Mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law."
According to sub-clause (a) a divorced Muslim woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband, and if he fails, she can make an application to a Magistrate for an order for payment of such provision and maintenance, Mahr or dower or the delivery of properties, as the case may be, under clause (2). It may further, be carefully noted that Section 3 enumerates four kinds of rights besides Mahr to which she is entitled (including maintenance), and the Act nowhere absolves the husband of "making and paying" her properties and rights on the ground of having paid her dower.