Define dower (Mahr) and explain its nature and objects. What are its importance?
Here we will define the topic Define dower (Mahr) and explain its nature and objects. What are its importance? in detail
Definition of Dower (Mahr)
The various eminent Jurists have given the different definitions of dower which are as follows-
1. According to Wilson, “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.”
2. According to Ameer Ali, “Dower is a consideration which belongs absolutely to the wife.”
3. According to Mulla, “The husband gives dower, a sum of money or other property, to the wife in consideration of the marriage. The word ‘consideration’ here does not carry the meaning that the Indian Contract Act uses. The husband bears this obligation as a mark of respect to the wife.”
4. Dr. Jung defined, “The husband must provide dower as the property or its equivalent, either because the contract of marriage agreed to it or by virtue of a separate contract, as special consideration of Buza, granting the right of enjoyment itself.”
5. According to Tyabji, “Mahr or dower is a sum that becomes payable by the husband to the wife on marriage, either by agreement between both the parties or by operation of law. It may either be prompt (Mu, ajjal), or deffered (Mu, wajjal).”
6. According to J. Mahmood, “The husband promises to pay or deliver a sum of money or other property to the wife as dower under the Muslim law in consideration of marriage, and even where the marriage ceremony does not expressly fix or mention a dower, the law grants the wife the right to dower.”
In Saburannessa Vs. Sabdu Sheikh, A.I.R. 1934, Calcutta High Court has observed that Muslim marriage is like a contract of sale in which the wife is the property and the dower is the price.
We may note that the above mentioned definitions are based on the argument that marriage is a civil contract and the dower is a consideration for the contract. But we must note that the above opinions are not correct, because even in those cases where the parties specify no dower at the time of marriage, marriage does not become void on that account, but the law requires that the husband pay some dower (proper dower) to the wife.
7. Abdur Rahim correctly observes, “Dower does not arise from the husband for the contract of marriage, but the law imposes it as an obligation on the husband as a mark of respect for the wife, which is evident from the fact that the non-specification of dower at the time of marriage does not affect the validity of marriage.” (Muhammadan Jurisprudence P.334)
If dower were a consideration, the marriage would be invalid in the absence of dower, as there is no contract without consideration. But such is not the case. In the absence of a dower, marriage does not become invalid. “If dower were the bride’s price, a post-nuptial agreement to pay the dower would be void for want of consideration. But such an agreement is valid and enforceable.” (Mst. Fatma Bibi Vs. Lal Din, 1937 Lahore 345).
According to Bailline, the word ‘consideration’ is not used in the sense in which the word is used in the Contract Act.Under Mohammedan Law, “The dower is an obligation imposed upon the husband as a mark of respect to the wife.”
We can, therefore, conclude with the definition of dower given by Hedaya- “The payment of the dower is enjoyed by the law as a token of respect for its object, the woman.”
Nature of Dower
Dower in the present form was introduced by the Prophet Mohammad and made obligatory by him in the case of every marriage. The following points may be noted with respect to the nature of dower-
1. 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 Vs. Salima, I.L.R. (1886) 8 All., 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 as 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….”
2. It is regarded by some eminent authorities as a consideration for conjugal intercourse. In Smt. Nasra Begum Vs. Rizwan Ali, A.I.R. 1980, All., Allahabad High Court said that the right to claim prompt dower procedes cohabitation.
3. In Hassina Bibi Vs. Zubaida Bibi (1916), the Juducial Committee held that, “Dower is an essential incident under the Muslim Law 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.”
One may note that the groom takes dower as a consideration for the marriage. In theory, he must pay it before consummation, but the law allows him to divide it into two parts: one called ‘prompt,’ which he must pay before the wife enters the conjugal domicile or which the wife can demand, and the other ‘deferred,’ which he must pay upon the dissolution of the contract by the death of either party or by divorce. However, dower ranks as a debt, and the widow can claim her dower from her husband’s estate along with other creditors upon his death. If the widow possesses her deceased husband’s property, she may retain possession of it (as against other heirs of her husband and as against other creditors of her husband) until she receives her dower.
Heirs may recover that property after they have paid up her debt.
In Smt. Nasra Begum Vs. Rizwan Ali, A.I.R. 1980, All.119, The Allahabad High Court observed, ‘No doubt under the Mohammedan Law, the wife receives Mahr or dower, which means money or property.
to receive from the husband in consideration of the marriage.
However, one must not understand the expression ‘consideration’ in the sense in which the Contract Act uses it. In effect, the husband must bear a dower as a mark of respect for the wife.
The Objects of Dower
The objects of the dower are as follows –
(i) To impose an obligation on the husband as a mark of respect to the wife;
(ii) To place a check on the capricious use of divorce on the par husband; and
(iii) To provide for her subsistence after the dissolution of marriage, so that she may not become helpless after the death of husband or termination of marriage by divorce.
Here we will define the topic Define dower (Mahr) and explain its nature and objects. What are its importance? in detail