PROJECT

FAMILY LAW - I

ANALYSIS OF DOWER

NATIONAL LAW UNIVERSITY

Presented to Saroj Sharma Ma’am.

Faculty, Family Law

Submitted by: Mayank Jain

Roll no.- 410

Submitted on: 31st January 2008

1

RESEARCH METHODOLOGY

Area: Muhammadan Law

Topic: Types of Dower and effects of Non-payment of Dower.

Objective: This project work has been designed to fulfill certain underlying objectives,

which are strategic in understanding as to what the different types of dower are and what

the effects of non-payment of dower amount are.

Research Questions:

1. Definition of Dower- A price for sale or a mark for respect.

2. Different Types of Dowers.

3. Recourses a wife can have to enforce her right to dower when it is not paid.

4. Women’s right of retention of deceased husband’s property in lieu of unpaid dower

amount- is it transferable?

Sources

The project would look into the books, journals, texts and websites in course of

compiling this project.

Tentative Chapterization:

CHAPTER I - INTRODUCTION

CHAPTER II - DEFINITION

CHAPTER III - TYPES OF DOWERS

CHAPTER IV - NON-PAYMENT OF DOWER

CHAPTER V - CASE ANALYSIS

2

BIBLIOGRAPHY

Time Schedule- This project has been prepared in the course of the research made during

the last twenty days.

Footnoting Style: The footnoting style that would be adopted in this paper is the NLU

Uniform style based on the Harvard Blue Book Style.

3

Chapterization

1. Introduction

2. Definition

3. Types of Dower

4. Non- Payment of Dower

5. Case Analysis

6. Conclusion

4

CHAPTER-I

INTRODUCTION

One of the essential parts of Muslim marriage is “dower” paid or promised to be paid by

the husband to the wife. Without mahr a nikah can not be said to have been properly

solemnised. Dower money must be paid or fixed before the solemnisation of a marriage.

Dower must not, however be confused with “dowry” which consists of presents made by

father and other relations of the bride and Muslim Law does not make any provision for

payment of dowry. Dower is the sum of money or other property which the wife is

entitled to receive from the husband in consideration of marriage.1 The amount of dower

may be fixed either before or at the time of marriage of after marriage. The law does not

say anything about the quantum of dower. The amount of dower is generally split into

two parts- “prompt dower” which is payable immediately on demand by the wife and

“deferred dower” which is payable only on dissolution of marriage by death or divorce.

In this present endeavour the author would try to explain in detail the types of dower and

the effect of non-payment of dower. Some of the important cases with respect to dower

would also be analysed.

1 D.F. Mulla, Principles of Mohammedan Law, 17th Ed.P.277

5

CHAPTER-II

DEFINITION

PRIOR to Islam, two kinds of material gifts were prevalent. In a certain type of marriage,

the so-called beena marriage, where the husband visited the wife but did not bring her

home, the wife was called sadiqa or female friend, and a gift given to the wife on

marriage was called sadaq. ‘In Islam sadaq simply means a dowry and is synonymous

with mahr. But originally the two words were quite distinct: sadaq is a gift to the wife

and mahr to the parents of the wife.’2 The latter term belongs to the marriage of

dominion, which is known as the baal marriage, where the wife’s people part with her

and have to be compensated.

Now mahr in the baal form of marriage was used by the Prophet to ameliorate the

position of the wife in Islam, and it was combined with sadaq, so that it became a

settlement or a provision for the wife. In Islamic law, mahr belongs absolutely to the

wife.3 Thus, historically speaking, the idea of sale is latent in the law of mahr (dower).

Justice Mahmood defines dower as follows:

‘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.’4

2 Robert Smith, Kinship, 93 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford

University Press, 4th Edition, 2002) p.1323 Kor. iv, 4; Ameer Ali, II, 461-2; Fat. Law δ 70 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan

Law, (Oxford University Press, 4th Edition, 2002) p.1324 Abdul Kadir v. Salima (1886) 8 All. 149

6

It is not ‘consideration’ in the modern sense of the term; but an obligation imposed by the

law upon the husband as a mark of respect to the wife.5 This is made abundantly clear by

the author of the Hedaya when he says:

‘The payment of dower is enjoined by the law merely as a token of respect for its

object (the women), wherefore the mention of it is not absolutely essential to the

validity of a marriage; and, for the same reason, a marriage is also valid,

although the man were to engage in the contract on the special condition that

there should be no dower.’6

There is no doubt that mahr was originally analogous to sale-price, but since the

inception of Islam it is hardly correct to regard it as the price of connubial intercourse. If

the authors of the Arabic text-books on Muhammadan law have compared it to price in

the law of sale, it is simply because marriage is regarded as a civil contract in the system.

In pre-Islamic Arabia, sadaq was a gift to the wife; but mahr was paid to the wife’s

father, and could therefore be regarded as tantamount to sale-price. But when Islam

insisted on its payment to the wife, it could no longer be regarded strictly as a sale7. Thus

Islam sought to make mahr into a real settlement in favour of the wife, a provision for a

rainy day and, socially, it became a check on the capricious exercise by the husband of

his almost unlimited power of divorce. A husband thinks twice before divorcing a wife

when he knows that upon divorce the whole of the dower would be payable immediately.

The Muslim concept of dower has no reference to the price that under some systems of

law was paid to the father of the bride when she was given in marriage. On the other

hand, it is considered a debt with consideration (for submission of her person by the

wife). The result is that dower is purely in the nature of a marriage settlement and is for

5 Abdur Rahim, 334. as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University

Press, 4th Edition, 2002) p.1336 Hamilton’s Hedava, 2nd ed. By Grady, 44, cited by Mahmood J. in Abdul Kadir v. Salima (1886) 8 All.

149 at 157-8.7 Robert Smith, Kinship, 92-3, 111; Ameer Ali shows how the change was effected, II, 432-4, 461-3 as

cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (Oxford University Press, 4th Edition, 2002)

p.133

7

consideration. It is a claim arising out of contract by the husband and as such has

preference to (sic) bequests and inheritance, but on no principle of Muhammadan law it

can have priority over the contractual debts8

The best general observations on dower are those of Lord Parker of Waddington in

Hamira Bibi v. Zubaida Bibi9 :

‘Dower is an essential incident under the Mussulman law to the status of

marriage; to such an extent 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 domicil; 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 wife is entitled, along with the other creditors, to have it satisfied on

the death of the husband out of his estate. Her right, however, is no greater than

that of any other unsecured creditor, except that if she lawfully obtains possession

of the whole or part of his estate, to satisfy her claim with the rents and issues

accruing therefrom, she is entitled to retain such possession until it is satisfies.

This is called the widow’s lien for dower, and this is the only creditor’s lien of the

Mussulman law which has received recognition in the British Indian Courts and

at this Board.’

8 Per Khaliluzzaman J. in Kapore Chand v. Kadar Unnissa, [1950] S.C.R. 747 at 7519 (1916) 43 I.A. 294 at 300-1; also cited in Syed Sabir Husain v. Farzand Hasan (1937) 65 I.A. 119 at 127.

8

AMOUNT OF DOWER

The amount of mahr may either be fixed or not; if it is fixed, it cannot be a sum less than

the minimum laid down by the law.

Minimum Dower

1) Hanafi law - 10 dirhams

2) Maliki law - 3 dirhams

3) Shafii law – No fixed minimum

4) Shiite law – No minimum fixed.

A dirham (Persian, diram, a word derived from the Greek) is the name of a silver coin

2.97 gram in weight10, and is usually valued at 3-4 annnas or 20-25 paise. In India, it has

been held that the value of ten dirhams is something between Rs.3 and 411. Thus it will be

seen that the minimum doer fixed by the law can hardly be deemed to be an adequate

provision for the wife. In fact, it would be a mistake to lay too great a stress upon the

monetary value of the minimum dower. It is said that in the case of an extremely poor

man, the Prophet requested him to teach the Koran to his wife, and this was considered

by the Lawgiver to be an adequate requital of the husband’s obligation.

Among the Muslims of India two distinct tendencies are to be found in society. In some

cases, as in the Sulaymani Bohoras, the dower is Rs. 40, it being considered a point of

honour not to stipulate for a sum higher than the minimum fixed by the Prophet for his

favourite daughter Fatima, the wife of Ali, namely 500 dirhams. Among certain other

communities, there are dowers of anything between a hundred and a thousand rupees;

Ameer Ali mentions amounts between four to forty thousand rupees. An altogether

different tendency is to be found in Uttar Pradesh, and also to some extent in Hyderabad,

Deccan, where the absurd rule appears to be that the nobler the family, the higher the

mahr, regardless of the husband’s ability to pay or capacity to earn.

10 According to Wilson’s Glossary, ‘a silver coin 45-50 grains in weight, rather heavier than six pence’.11 Asma Bibi v. Abdul Samad (1909) 32 All. 167.

9

CHAPTER- III

TYPES OF DOWER

We have seen that dower is payable whether the sum has been fixed or not, Ali said:

‘There can be no marriage without mahr’. Thus, dower may, first of all, be either

specified or not specified. In the latter case, it is called mahr al-mithl, Proper Dower, or

to be strictly literal, ‘the dower of the like’. If the dower has been specified, then the

question may be whether it is prompt (mu‘ajjal) or deferred (muwajjal, strictly mu’ajjal).

Thus we have two kinds of dower in Islam:

A. Specified Dower (al-mahr al-musamma); and

B. Unspecified Dower or Proper Dower (mahr al mithl).

Specified Dower may be again be divided into-

Prompt - mu‘ajjal, and

Deferred - mu’ajjal.

In (A) and (B) the question before the court is the amount payable: in (I) and (II) the

question is the time when payment has to be made.

A. Specified Dower (al-mahru al-musamma) 12

Usually the mahr is fixed at the time of marriage and the kazi performing the ceremony

enters the amount in the register; or else there may be a regular contract called

kabinnama, with numerous conditions. The sum may be fixed either at the time of

marriage or later, and a father’s contract on behalf of a minor son is binding on the minor.

Where a father stipulates on behalf of his son, in Hanafi law, the father is not personally

liable for the mahr; but aliter in Ithna ‘Ashari law. In Syed Sabir Husain v. Farzand 12 Also called mahr al-‘aqd.

10

Hasan, a Shiite father had made himself surety for the payment of the mahr of his minor

son. Thereafter he died, and it was held that the estate of the deceased was liable for the

payment of his son’s mahr. Accordingly each heir was made responsible for a portion of

the wife’s claim in proportion to the share received by the particular heir on distribution

from the estate of the deceased. The heirs were, however, liable only to the extend of the

assets received by them from the deceased, and not personally13.

Where the amount has been specified, the husband will be compelled to pay the whole of

it, however excessive it may seem to the court, having regard to the husband’s means; but

in Oudh, only a reasonable amount will be decreed, if the court deems the amount to be

excessive or fictitous14.

B. Unspecified Dower ( mahr al-mithl ) 15

The obligation to pay dower is a legal responsibility on the part of the husband and is not

dependent upon any contract between the parties; in other words, if marriage, then

dower16. Where the dower is specified, any amount, however excessive, may be

stipulated for. But what are the principles upon which the amount of dower is to be

determined where no agreement exits?

The customary or proper dower of a woman is to be fixed with reference to the social

position of her father’s family and her own personal qualifications. The social position of

the husband and his means are of little account. The Hedaya lays down the important rule

that her ‘age, beauty, fortune, understanding and virtue’ must be taken into consideration.

Islamic marriage, therefore, safeguards the rights of a wife and attempts to ensure her an

economic status consonant with her own social standing. Historically speaking, and on

the analogy of sale, it is permissible to ask: ‘What have the circumstances of a purchaser

13 (1937) 65 I.A. 119.14 This is called ‘fictitious dower’. Sometimes for the purpose of ‘glorification’ a larger mahr is announced,

but the real mahr is smaller. Such a mahr for the purposes of ‘show’ is know as sum‘a.15 Ameer Ali calls it the ‘customary’ dower.16 This has been emphasized by the Privy Council in Syed Sabir Husain’s Case, (1937) 65 I.A. 119

11

to do with the intrinsic value of the thing he buys?’ The answer is that the Indian courts

no longer consider marriage as a form of sale or barter, and do not proceed upon the

analogy that dower is the price of consortium.

In fixing the amount of the proper dower, regard is to be had to the amount fixed in the

case of the other female members of the wife’s family. ‘Mahr is an essential incident

under the Mussalman law to the status of marriage; to such an extend that 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’.17 The main consideration is the social position of the

bride’s father’s family, and the court will consider the dowers fixed upon her female

paternal relation such as sisters or paternal aunts who are considered to be her equals.

The Prophet once allowed the marriage of an indigent person for a silver ring; and on

another occasion, merely on the condition that the husband should teach the Koran to his

wife. In Hanafi law, where the specified dower is less than 10 dirhams, the wife is

entitled only to the minimum, namely 10 dirhams, and in Ithna ‘Ashari law, the proper

dower can never exceed 500 dirhams, the dower fixed for the Prophet’s daughter Fatima.

Thus, among the Shiites there are three kinds of mahr:

i. Mahr-e sunat, the dower supported by tradition, i.e. 500 dirhams;

ii. Mahr-e mithl, ‘the dower of the like’, or the dower of an equal, which is the

technical name for proper or unspecified dower; and

iii. Mahr-e musamma,the specified dower.

Prompt (mu‘ajjal) and Deferred (mu’ajjal) dower

17 Syed Sabir Husain’s Case, (1937) 65 I.A. 119

12

When the dower is specified, the question arises: At what times and in what proportions

is the amount payable? Here two somewhat puzzling terms are used and it is necessary to

distinguish carefully between them. The technical term for ‘prompt’ dower is mu‘ajjal. It

is derived from a root meaning ‘to hasten, to preced’. The term mu‘ajjal, therefore, means

‘that which has been hastened or given a priority in point of time’. The term mu’ajjal,

however, means ‘delayed, deferred’, and comes from a root which means ‘to delay or

postpone’. Written in the original Arabic there would be no cause for confusion, but in

the usual English forms of spelling the words often puzzle those who are not familiar

with the Arabic tongue.

Prompt dower is payable immediately after the marriage, if demanded by the wife; while

deferred dower is payable on the dissolution of the marriage or on the happening of a

specified event. When dower is fixed, it is usual to split it into two equal parts and to

stipulate that one shall be paid at once or on demand, and the other on the death of the

husband or divorce or the happening of some specified event. But a difficulty arises when

it is not settled whether the dower is prompt or deferred.

In Ithna ‘Ashari law the presumption is that the whole of the dower is prompt; but in

Hanafi law the position is different. The whole of the dower may be promptly awarded 18;

but a recent Full Bench decision lays down first, that where the kabin-nama is silent on

the question, the usage of the wife’s family is the main consideration; and secondly, that

in the absence of proof of custom, the presumption is that one-half is prompt, and the

other half deferred, and the proportion may be changed to suit particular cases.

INCREASE OR DECREASE OF DOWER

18 Per J. Mahmood in Abdul Kadir v. Salima, (1886) 8 All. 149; Husseinkhan v. Gulab Khatum (sic) (1911)

35 Bom 386.

13

The husband may at any time after marriage increase the dower. Likewise, the wife may

remit the dower, wholly or partially; and a Muslim girl who has attained puberty is

competent to relinquish her mahr, although she may not have attained majority (18 years)

within the meaning of the Indian Majority Act19. The remission of the mahr by a wife is

called hibat al-mahr or hiba-e mahr.

It has, however, been held in Karachi 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 for 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

deed20.

CHAPTER- IV

19 Qasim Husain v. Bibi Kaniz, (1932) 54 All. 80620 Shah Bano v. Iftekar Muhammed PLD 1956 (W.P.) Kar. 363.

14

NON-PAYMENT OF DOWER

The claim of the wife or widow for the unpaid portion of the mahr is an unsecured debt

due to her from her husband or his estate, respectively. It ranks rateably with unsecured

debts, and is an actionable claim. During her lifetime the wife can recover the debt

herself from the estate of the deceased husband. If she predeceases the husband, the heirs

of the wife, including the husband, become entitled to her dower. A lady, whose mahr

was Rs. 50,000, received from her husband during his lifetime sums of money in the

aggregate exceeding the mahr settled on her. The largest of such payments was Rs. 3,000.

There was no evidence that these payments were intended by the husband to satisfy the

doer debt. The question arose whether these payments satisfied the husband’s obligation.

The Judicial Committee held that such payments were not to be treated as having been

made in satisfaction of the dower debt.21

Non-payment of Prompt Dower

If the husband refuses the pay prompt dower, the guardian of a minor wife has the right to

refuse to allow her to be sent to the husband’s house; and similarly, the wife may refuse

the husband his conjugal rights, provided no consummation has taken place. The wife is

under Muhammadan Law entitled to refuse herself to her husband until the prompt dower

is paid; and if in such circumstances she happens to reside apart from him, the husband is

bound to maintain her.22

This right of refusing her is, however, lost on consummation.23 Thus if the husband files a

suit for restitution of conjugal rights before cohabitation, non-payment of prompt dower

is a complete defence; but after cohabitation, the proper course is to pass a decree for

21 Mohammad Sadiq v. Fakr Jahan (1931) 59 I.A. 19.22 Nur-ud-din Ahmad v. Masuda Khanam PLD 1957 Dacca 242; Muhammadi v. Jamiluddin PLD 1960

Karachi 663.23 In Lahore it has been held that consummation does not deprive the wife of her right to refuse conjugal

relations if the prompt dower is not paid, Rahim Jan v. Muhammad, PLD 1955 Lahore 122; per contra,

Rabia Khatoon v. Mukhtar Ahmad AIR (1966) All. 548, which, it is submitted is the correct view.

15

restitution conditional on the payment of prompt dower. This was laid down in the

leading case of Anis Begam v. Muhammad Istafa Wali Khan.24

Non-payment of Deferred Dower

The non-payment of deferred dower by its very nature cannot confer any such right of

refusal on the wife. The right to enforce payment arises only on death, divorce or the

happening of a specified event.

The dower ranks as a debt and the widow is entitled, along with the other creditors of her

deceased husband to have it satisfied out of his estate. Her right, however, is the right of

an unsecured creditor; she is not entitled to a charge on the husband’s property, unless

there be an agreement. The Supreme Court of India has laid down

i. That the widow has no priority over the creditors, but

ii. That mahr as a debt has priority over the other heirs’ claims.25

And the heirs of the deceased are not personally liable to pay the dower; they are liable

rateably to the extent of the share of the inheritance which comes to their hands.

The Widow’s Right of Retention

Muhammadan law gives to the widow, whose dower has remained unpaid a very special

right to enforce her demand. This is known as ‘the widow’s right of retention’. A widow

lawfully in possession of her deceased husband’s estate is entitled to retain such

possession until her dower debt is satisfied.26 Her right is not in the nature of a regular

24 (1933) 55 All. 548. This case is of great importance as Sulaiman C.J. has carefully considered and

criticized certain dicta of Mahmood J. in the leading case of Abdul Kadir v. Salima (1886) 8 All. 14925 Kapore Chand v. Kadar Unnissa [1950] S.C.R. 747.26 Mirvahedalli v. Rashidbeg, AIR (1951) Bom. 22

16

charge, mortgage or a lien27; it is in essence a personal right as against heirs and creditors

to enforce her rights; and it is a right to retain, not to obtain, possession of her husband’s

estate. Once she loses possession of her husband’s estate, she loses her special right and

is in no better position than an unsecured creditor.28

The nature of this right was discussed by their lordships of the Privy Council in Maina

Bibi v. Chaudhri Vakil Ahmad29 . One Muinuddin died in 1890 possessed of immovable

property leaving him surviving his widow Maina Bibi, who entered into possession. In

1902 some of the heirs filed a suit to recover possession of their share of the property.

The widow pleaded that the estate was a gift to her, or alternatively that she was entitled

to possession until her dower was paid. In 1903 the trial judge made a decree for

possession in favour of the plaintiffs on condition that the plaintiffs paid a certain sum by

way of dower and interest to the widow within six months. This sum was not paid,

however, and the widow remained in possession, in 1907 Maina Bibi purported to make a

gift of the whole of her property to certain persons. The original plaintiffs challenged this

gift and the Privy Council held that the widow had no power to make a gift of the

properties, and could not convey the share of the heirs to the donees. Their lordships, in

discussing the nature of a widow’s right of retention, said that

‘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 upon her by

Mahomedan Law’.30

They further said that it is not exactly an lien, nor a mortgage, usufructuary or other.

‘The widow who holds possession of her husband’s property until she has been

paid her dower has no estate or interest in the property as a mortgagee under an

ordinary mortgage’.31

27 Zaibunnissa v. Nazim Hasan, AIR (1962) All. 19728 Ibid29 (1924) 52 I.A. 145.30 Id at p. 150.31 Id at p. 151.

17

Thus, in essence, it is a personal right given by Muhammadan kaw to safeguard the

position of the widow.32

The Supreme Court has laid down that a Muslim widow in possession of her deceased

husband’s estate in lieu of her claims for dower, whether with the consent of the heirs or

otherwise, is not entitled to priority as against his unsecured creditors.33

There is a conflict of opinion whether in order to retain possession the consent, express or

implied, of the husband or his heirs is necessary. Some judges are of opinion that such

consent is necessary; others, that it is not. It is submitted with great respect, that on first

principles, having regard to the nature of the right, the consent of the husband or his heirs

is immaterial. Muhammadan law casts a special obligation on every debtor to pay his

debt, and the right of the widow for her dower is a debt for which the widow has a good

safeguard. Thus, the question of consent appears to be immaterial.

The right to retention does not confer on the widow any title to the property. Her rights

are twofold: one, as heir of the deceased and two, as widow entitled to her dower and, if

necessary, to retain possession of the estate until her mahr has been paid. The right to

hold possession must, therefore, be sharply distinguished from her right as an heir. The

widow, in these circumstances, has the right to have the property administered, her just

debts satisfied and her share of the inheritance ascertained and paid. She has no right to

alienate the property by sale, mortgage, gift or otherwise, and if she attempts to do so, she

loses her right of mahr.

There are two other major questions on which the law is still unsettled. Can the widow

transfer her right of retention? And is this right of retention heritable? In Maina Bibi v.

Chaudhri Vakil Ahmad34 their lordships expressed a doubt whether a widow could

transfer the dower debt or the right to retain the estate until the mahr was paid. Following 32 The Patna High Court has adopted this view, Abdul Samad v. Alimuddin (1943) 22 Pat. 750.33 Supra Note 2534 Supra Note 29

18

that case there has been much conflict of judicial opinion on the questions as to the

heritability and transferability of this right. The Mysore and Allahabad High Coutrs have

decided that the right is both heritable and transferable35; but the Patna High Court has

held that the widow’s is a personal right, and not a lien, and as such, it is not

transferable.36 Although there is a conflict of opinion, in view of Kapore Chand’s case,

the balance of authority seems to be in favour of the Patna view.

CHAPTER- V

ANALYSIS OF SOME CASES

1) Mohd. Ahmed Khan v . Shah Bano Begum and Ors. 37

CITATION REFERED MANU/SC/0194/1985

DECIDED ON 23.04.1985

35 Hussain v. Rahim Khan AIR (1954) Mysore 24; Zaibunnissa v. Nazim Hasan AIR (1962) All. 197.36 Zobair Ahmad v. Jainandan Prasad AIR (1960) Pat. 147.37 AIR 1985 SC 945

19

HON’BLE JUDGES Y.V. Chandrachud, C.J., D.A. Desai, E.S. Venkataramiah, O.

Chinnappa Reddy and Ranganath Misra, JJ.

FACTS

The appellant, who is an advocate by profession, was married to the respondent in

1932. Three sons and two daughters wire born of that marriage.

In 1975 the appellant drove the respondent out of the matrimonial home.

In April 1978, the respondent filed a petition against the appellant under Section

125 of the Code in the court of the learned Judicial Magistrate (First Class),

Indore asking for maintenance at the rate of Rs. 500 per month.

On November 6, 1978 the appellant divorced the respondent by an irrevocable

talaq. His defence to the respondent’s petition for maintenance was that she had

ceased to be his wife by reason of the divorce granted by him, to provide that he

was therefore under no obligation maintenance for her, that he had already paid

maintenance to her at the rate of Rs. 200 per month for about two years and that,

he had deposited a sum of Rs. 3000 in the court by way of dower during the

period the of iddat.

In August, 1979 the learned Magistrate directed appellant to pay a princely sum of

Rs. 25 per month to the respondent by way of maintenance. It may be mentioned

that the respondent had alleged that the appellant earns a professional income of

about Rs. 60,000 per year.

In July, 1980 in a revisional application filed by the respondent, the High court of

Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month.

The husband thus came before the Supreme Court by Special leave.

RELEVANT ISSUE

20

1) Would the payment of mahr indemnify the husband from his obligation under the

provisions of Section 125 Cr.P.C?

DECISION

The Court decided that mahr is different from a sum payable ‘on divorce’ which

occurs in Section 127(3)(b) of Cr.P.C and hence does not indemnify the husband

from his obligation under the provisions of Section 125 Cr.P.C.

REASONING

In Mulla’s principles of Mahomedan Law (18th Edition, page 308), mahr or

Dower is defined in paragraph 285 as “a sum of money or other property which

the wife is entitled to receive from the husband in consideration of the marriage.”

Dr. Paras Diwan in his book, “Muslim Law in Modern India” (1982 Edition, page

60), criticises this definition on the ground that mahr is not payable “in

consideration of marriage” but is an obligation imposed by law on the husband as

a mark of respect for the wife, as is evident from the fact that non-specification of

mahr at the time of marriage does not affect the validity of the marriage.

Under the Muslim Personal Law, the amount of mahr is usually split into two

parts, one of which is called “prompt”, which is payable on demand, and the other

is called “deferred” which is payable on the dissolution of the marriage by death

or by divorce.

But, the fact that deferred mahr is payable at the time of the dissolution of

marriage, cannot justify the conclusion that it is payable ‘on divorce’. Even

assuming that, in a given case, the entire amount of mahr is of the deferred variety

payable on the dissolution of marriage by divorce, it cannot be said that it is an

amount which is payable on divorce.

Divorce maybe a convenient or identifiable point of time at which the deferred

amount has to be paid by the husband to the wife. But, the payment of the amount

is not occasioned by the divorce, which is what is meant by the expression ‘on

divorce’, which occurs in Section 127(3)(b) of the Code.

21

If mahr is an 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 alternative premise that mahr is an obligation imposed upon the husband as a

mark of respect for the wife, is wholly detrimental to the stance that it is an

amount payable to the wife on divorce. A man may marry a woman for love,

looks, learning or nothing at all. And he may settle a sum upon her as a mark of

respect for her. But he does not divorce her as a mark of respect.

Therefore, a sum payable to the wife out of respect cannot be a sum payable ‘on

divorce’.

2) Md. Nayeem Khan v . Union Law Secretary, Government of India, New Delhi and

others 38

CITATION REFERED MANU/AP/0516/2001

DECIDED ON 10.07.2001

38 2001 (5) ALD 145

22

HON’BLE JUDGES Satya Brata Sinha, C.J. and V.V.S. Rao, J

FACTS

This case is based on a very complex factual matrix. However, the relevant issue

to be discussed does not require much elaboration of facts. Hence, the author is

not mentioning the facts.

RELEVANT ISSUE

1) Whether Muslim women entitled to retain possession of husband’s immovable

property even after divorce, until her dower debt is satisfied?

DECISION

The Court decided that a Muslim widow is conferred with the right to retain

property in lieu of payment of ‘mahr’ till it is paid off, whether she is divorced or

her husband is deceased.

REASONING

A principle of Muslim law confers a right on the widow to retain the immovable

property of her late husband in her possession in lieu of payment of Mahr till the

same is paid off.

Possibly the same principle may be extended having regard to the rationale behind

the said principle to cases where the divorced wife is in possession of a house of

the husband or in regard to the matrimonial home where she is residing. She may

be entitled to retain possession of the house of the husband who divorced her till

the mahr amount is paid off.

23

3) Kapore Chand v . Kadar Unnisa Begum and Ors. 39

CITATION REFERED MANU/SC/0043/1950

DECIDED ON 12.10.1950

HON’BLE JUDGES Mehr Chand Mahajan, R.C. Patnaik and Khaliluzzaman, JJ.

FACTS

39 AIR 1953 SC 413,

24

The appellant, Kapurchand, had a money decree, amongst others; against one Mir

Hamid Ali Khan, husband of the respondent Kaderunnisa.

In execution of the decree the house in dispute belonging to the deceased

judgment-debtor was attached.

To the attachment the widow of the deceased raised an objection on the ground

that she was in possession of it in lieu of her outstanding dower and could not be

dispossessed her claim was satisfied.

The objection was allowed by the executing court and it was ordered that the

house be sold subject to the respondent’s claim, the decree-holder being entitled

to the surplus, if any, out of the sale proceeds. There was not much possibility of

the house fetching more in the execution sale than the amount due on account of

dower. The court took the view that the widow’s claim for dower had priority

over debts due to other unsecured creditors and her position was analogous to that

of a secured creditor.

The decree-holder made an application in revision to the High Court but without

any success. He then preferred an appeal to the Judicial Committee of the State

and it is now before the Supreme Court of India.

ISSUE

1) Whether widow possessing husband’s estate in lieu of dower entitled to priority over

other creditors?

DECISION

The Court decided that a widow possessing husband’s estate in lieu of dower is

not entitled to priority over creditors; however it is entitled priority against heirs

of the deceased husband.

REASONING

25

The dower of a Muslim woman is a settlement in her favour made prior to the

marriage contract and is similar to the donatio proper nuptias of the Romans but is

of such an obligatory nature that if it is not mentioned before or at the time of the

marriage, it is presumed to exist to the extent of a proper dower amount

The Muslim concept of dower has no reference to the price that under some

systems of law was paid to the father of the bride when she was given in

marriage. On the other hand, it is considered a debt with consideration (for the

submission of her person by the wife).

Therefore dower is purely in the nature of a marriage settlement and is for

consideration. It is a claim arising out of contract by the husband and as such has

preference to bequests and inheritance, but on no principle of Muhammadan Law

it can have priority over other contractual debts.

In our view, therefore, a dower debt cannot be given any priority over other debts

on any equitable consideration or on the ground that there is something inherent

in its very nature which entitles it to priority.

4) Zobair Ahmad and Anr . v . Jainandan Prasad Singh 40

CITATION REFERED MANU/BH/0045/1960

DECIDED ON 05.08.1959

40 AIR 1960 Pat 147

26

HON’BLE JUDGES V. Ramaswami, C.J. and Kanhaiya Singh, J.

FACTS SALAMAT

______________|__________________ | | | | Sakram Saliman Marian Tetu | | Bashiruddin Naffisa (defnt. 2) _____________ | | Zobair Ahmed Zaibunnisa (plaintiff 1) (plaintiff 2)

Bashiruddin, who was admittedly the owner of the 16 annas of the property, died

in the year 1937.

It appears that on 7-5-1945, Naffisa and Bibi Saliman executed a sale-deed (Ext.

B) in favour of defendant No. 1 in respect of the 16 annas share in the properties

in dispute. This sale-deed was executed by Bibi Naffisa on her own behalf as well

as the guardian of her two children, namely, the two plaintiffs.

After attaining majority the two plaintiffs filed the present suit for recovery of

possession of their 14 annas share in the properties. The allegation was that their

mother had no right to convey the property to defendant No. 1.

The suit was contested by defendant No. 1 on the ground that defendant No. 2

came in possession of the properties in lieu of her dower debt, that defendant No.

2 was appointed the executor of the properties of Bashiruddian and the legal

guardian of the plaintiffs and that the transaction was for the benefit of the

plaintiffs and it could not, therefore, be impeached.

The trial court decreed the suit in favour of the plaintiffs but that decree has been

set aside by the lower appellate court in appeal.

And hence this present appeal.

ISSUE

27

1) Whether a widow has a right to transfer her right to dower debt or any possession in

lieu it?

DECISION

The Court decided that a widow cannot transfer her right to dower debt or any

possession in lieu it. However, she may transfer the share of the property which

has inherited as the wife of the deceased husband and not the one received in lieu

of the payment of mahr.

REASONING

Precedence must be given to the decision of the Privy Council in AIR 1925 PC 63

and the view expressed by the Madras High Court in AIR 1920 Mad 666 cannot

be held to be authoritative in view of the decision of the Privy Council in AIR

1925 PC 63.

Privy Council in Maina Bibi v. Chaudhri Vakil Ahmad41 . One Muinuddin died in

1890 possessed of immovable property leaving him surviving his widow Maina

Bibi, who entered into possession. In 1902 some of the heirs filed a suit to recover

possession of their share of the property. The widow pleaded that the estate was a

gift to her, or alternatively that she was entitled to possession until her dower was

paid.

In 1903 the trial judge made a decree for possession in favour of the plaintiffs on

condition that the plaintiffs paid a certain sum by way of dower and interest to the

widow within six months.

This sum was not paid, however, and the widow remained in possession,

meanwhile Maina Bibi purported to make a gift of the whole of her property to

certain persons.

41 AIR 1925 PC 63

28

The original plaintiffs challenged this gift and the Privy Council held that the

widow had no power to make a gift of the properties, and could not convey the

share of the heirs to the donees.

5) Daniel Latifi v. Union of India 15

Facts in Brief

In this case, the constitutional validity of the Muslim Women (Protection of Rights on

Divorce) Act, 1986 was challenged before the Supreme Court. The Act was passed to

29

appease a particular section of the society and with the intention of making the decision

in case of Mohd. Ahmed Khan v. Shah Bano Begum ineffective.

In the Shahbano’s case , the husband had appealed against the judgment of the Madhya

Pradesh High Court which had directed him to pay to his divorced wife Rs. 179/- per

month, enhancing the paltry sum of Rs. 25 per month originally granted by the

Magistrate. The parties had been married for 43 years before the ill and elderly wife had

been thrown out of her husband's residence. For about two years the husband paid

maintenance to his wife at the rate of Rs. 200/- per month. When these payments ceased

she petitioned under Section 125 of the Code of Criminal Procedure (Cr.P.C.). The

husband immediately dissolved the marriage by pronouncing a triple talaq. He paid

Rs.3000/- as deferred mahr and a further sum to cover arrears of maintenance and

maintenance for the iddat period and he sought thereafter to have the petition dismissed

on the ground that she had received the amount due to her on divorce under the Musilm

law applicable to the parties. The important feature of the case was that wife had

managed the matrimonial home for more than 40 years and had borne and reared five

children and was incapable of taking up any career or independently supporting herself at

that late state of her life - remarriage was impossibility in that case. The husband, a

successful Advocate with an approximate income of Rs. 5,000/- per month provided Rs.

200/- per month to the divorced wife, who had shared his life for half a century and

mothered his five children and was in desperate need of money to survive.

Contentions

The petitioner argued, (a) that the rationale of Section 125 Cr.P.C. was to offset or meet a

situation wherein a divorced wife was likely to be led into destitution or vagrancy. It was

urged that Section 125 Cr.P.C. was enacted to prevent such a situation in furtherance of

the concept of social justice embodied in Article 21 of the Constitution. (b) That the

30

object of Section 125 Cr.P.C. being to avoid vagrancy, the remedy thereunder could not

be denied to a Muslim woman otherwise it would amount to violation of not only

equality before law but also equal protection of laws (Article 14) and inherent

infringement of Article 21 as well as basic human values. (c) That the Act was un-

Islamic, unconstitutional and had the potential of suffocating the Muslim women while

also undermining the secular character, which was the basic feature of the Constitution.

And thus there was no rhyme or reason to deprive the Muslim women from the

applicability of the provisions of Section 125 Cr.P.C.

Defending the validity of the enactment, it was argued on behalf of the respondents that

(a) if the legislature, as a matter of policy, wanted to apply Section 125 Cr.P.C. to

Muslims, it also meant that the same legislature could, by necessary implication,

withdraw such an application of the Act and make some other provision in that regard.

(b) Parliament could amend Section 125 Cr.P.C. so as to exclude it application and apply

personal law instead. (c) That the policy of Section 125 Cr.P.C. was not to create a right

of maintenance dehors the personal law and therefore could not stand in the way of the

Act.

Judgement

Upholding the validity of the Act, the Supreme Court held as follows;

A Muslim husband is liable to make reasonable and fair provision for the future of

the divorced wife which obviously includes her maintenance as well. Such a

reasonable and fair provision extending beyond the iddat period must be made by

the husband within the iddat period in terms of Section 3(1)(a) of the Act,

Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of

the Act to pay maintenance is not confined to iddat period,

A divorced Muslim woman who has not remarried and who is not able to

maintain herself after iddat period can proceed as provided under Section 4 of the

Act against her relatives who are liable to maintain her in proportion to the

properties which they inherit on her death according to Muslim law from such

divorced woman including her children and parents. If any of the relatives being

unable to pay maintenance, the Magistrate may direct the State Wakf Board

established under the Act to pay such maintenance.

31

The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution

of India.

Analysis

It is unfortunate to note that the Court did not strike down the Act which purports to

exclude Muslim women in particular from the beneficial treatment of Section 125. The

legislature to appease the Muslim gentry may have passed the Act on political

consideration but that same has rendered an indirect classification of people of the basis

of religion, which is against the fundamental rights.

Other than the above cases, following are some case, which are there just to supplement

the effort of judiciary towards them.

In Shamim Ara v. State of U.P 16 the Supreme Court streamlined the position regarding

the requirements for a valid Talaq under the Muslim law. The Court held that the correct

law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause

and be preceded by attempts at reconciliation between the husband and the wife by two

arbiters- one from the wife's family and the other from the husband's; if the attempts fail,

talaq may be effected.

In Savitri Pandey v. Prem Chand Pandey17 the Supreme Court held that the second

marriage by a spouse during the subsistence of an appeal by the other spouse against the

decree of divorce would be subject to the end result of the proceedings. The court further

observed: “There is no denial of the fact that right of at least one appeal is a recognised

right under all systems of civilised legal jurisprudence. If despite the pendency of the

appeal, the appellant chose to solemnise the second marriage, the adventure is deemed to

have been undertaken at her own risk and the ultimate consequences arising of the

judgment in the appeal pending in the High Court. No person can be permitted to flout

the course of justice by his or her overt and covert acts. At this stage we would like to

observe that the period of limitation prescribed for filing the appeal under Section 28(4)

is apparently inadequate which facilitates the frustration of the marriages by the

unscrupulous litigant spouses. We are of the opinion that a minimum period of 90 days

32

may be prescribed for filing the appeal against any judgment and decree under the Act

and any marriage solemnised during the aforesaid period be deemed to be void.

Appropriate legislation is required to be made in this regard. We direct the Registry that

the copy of this judgment may be forwarded to the Ministry of Law & Justice for such

action as it may deem fit to take in this behalf”. The legislature accepted this request of

the apex Court of India and enhanced the period of appeal from 30 days to 90 days,

which is an appropriate step in the right direction.

In Amina v. Hassn Koya18 the Supreme Court while adjudicating upon the validity of a

marriage entered into by a pregnant Muslim female observed: It is very difficult to

believe that a woman who is five months pregnant will be able to conceal the pregnancy

from the husband. Such an advanced stage of pregnancy cannot be concealed as the

pregnancy starts showing by that time. In any case the pregnancy cannot be concealed

from the husband. A husband will at least know for sure that the wife is pregnant

especially when the pregnancy is five months old. Therefore, we cannot accept that that

the respondent did not know at the time of marriage that the appellant was already

pregnant. If this fact was known to the respondent, the marriage cannot be said to be

illegal or void. Also, the conduct of the respondent at the relevant time is to be

considered. He went through the marriage. He did not raise any objection even after the

marriage. He was present at the time of delivery of the child. Presumably he gave his own

name as the name of the father of the child for the official record. Even thereafter, for

nearly four years he went along with the marriage and brought up the child while treating

the appellant as his wife. Any person, who learns that his newly married wife is already

pregnant for five months and who does not accept that marriage or pregnancy, will not

behave in the manner in which the respondent did. In the present case, the facts on record

show that the husband was aware of the pregnancy of the wife at the time of the marriage.

Therefore, such a marriage cannot be said to be invalid”.

In B.S. Joshi & Ors v. State of Haryana & Anr19 the Supreme Court held that the High

Court in exercise of its inherent powers can quash criminal proceedings or FIR or

complaint and Section 320 of the Code does not limit or affect the powers under Section

33

482 of the Code. The Court observed: “The special features in such matrimonial matters

are evident. It becomes the duty of the Court to encourage genuine settlements of

matrimonial disputes. There has been an outburst of matrimonial disputes in recent times.

Marriage is a sacred ceremony, the main purpose of which is to enable the young couple

to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt

which often assume serious proportions resulting in commission of heinous crimes in

which elders of the family are also involved with the result that those who could have

counselled and brought about rapprochement are rendered helpless on their being arrayed

as accused in the criminal case. There are many other reasons which need not be

mentioned here for not encouraging matrimonial litigation so that the parties may ponder

over their defaults and terminate their disputes amicably by mutual agreement instead of

fighting it out in a court of law where it takes years and years to conclude and in that

process the parties lose their "young" days in chasing their "cases" in different courts.

There is every likelihood that non-exercise of inherent power to quash the proceedings to

meet the ends of justice would prevent women from settling earlier”.

In K.A. Abdul Jaleel v. T.A. Shahida20, the Supreme Court held that the Family Court has

jurisdiction to adjudicate upon any question relating to the properties of divorced parties.

The Court observed: “The Family Courts Act was enacted to provide for the

establishment of Family Courts with a view to promote conciliation in, and secure speedy

settlement of, disputes relating to marriage and family affairs and for matters connected

therewith. From a perusal of the Statement of Objects and Reasons, it appears that the

said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family

Courts the matters relating to the property of the spouses or either of them. The Statement

of Objects and Reasons would clearly go to show that the jurisdiction of the Family Court

extends, inter alia, in relation to properties of spouses or of either of them which would

clearly mean that the properties claimed by the parties thereto as a spouse of other;

irrespective of the claim whether property is claimed during the subsistence of a marriage

or otherwise”.

34

CHAPTER – VI

CONCLUSION

35

In conclusion, all that can be said is that Mahr is a mandatory gift given by the groom to

the bride. Unlike a bride price, however, it is given directly to the bride and not to her

father. Although the gift is often money, it can be anything agreed upon by bride and

groom such as a house or viable business that is put in her name and can be run and

owned entirely by her if she chooses.

In today’s terms, it has taken a very wide scope and many important constitutional

questions have also cropped up. However, in my opinion, even though Dower serves as

security for the girl, it should entirely be scrapped. Infact, all personal laws should be

scrapped and a uniform civil code should be brought in. This shall make the Indian

Society live in a state of perfect harmony.

36