Nature and Definition of Dower (Mahr)
Meaning and Significance of Mahr
A right of the wife
Mahr (also known as dower) is a mandatory gift or sum of money or property that the husband agrees to give to the wife in consideration of the marriage. It is not a bride price but rather a right of the wife under Islamic law.
Legal Basis: It is recognized as an essential element of Muslim marriage. The Quran (4:4) commands: “And give the women (on marriage) their dower as a free gift.”
Key Points:
- It is an obligation on the husband whether specified in the marriage contract or not.
- The wife has absolute right to refuse conjugal rights until the prompt mahr is paid.
- Even in the absence of agreement, the law provides for Mahr-i-Misl (customary dower).
Consideration for marriage
Mahr acts as a form of consideration (ajr) in the civil contract of marriage (nikah). It symbolizes respect, dignity, and financial security for the wife and is a precondition for legitimizing conjugal relations.
It is not:
- A condition for the validity of the marriage (though its mention is preferred).
- A price paid to the wife or her family.
Mahr upholds the financial independence and empowerment of women in Islamic society.
When does Mahr become Payable?
Prompt Mahr
Prompt Mahr (Muajjal) is that portion of mahr which becomes immediately payable after the marriage contract is concluded. The wife can refuse cohabitation until it is paid.
Features:
- Payable on demand by the wife at any time after marriage.
- If not paid and the husband dies, it becomes a debt against his estate.
- Prompt mahr may be in cash, property, or any agreed asset.
Example: If a Muslim woman is promised ₹50,000 as prompt mahr and her husband dies without paying, what can she do?
Answer:
She can claim ₹50,000 from her deceased husband’s estate, even before the distribution of shares among legal heirs.
Deferred Mahr
Deferred Mahr (Muwa’jjal) is the portion of dower that is payable on dissolution of marriage either by death or divorce. It is not payable during the subsistence of marriage unless agreed or demanded under certain conditions.
Features:
- Acts as a security for the wife’s future.
- Becomes due upon death of husband or divorce.
- Recoverable as a debt even if not mentioned in the contract.
Example: A woman is promised ₹2,00,000 as deferred mahr. Her husband divorces her without paying. Is she entitled?
Answer:
Yes, she can legally recover ₹2,00,000 from her husband as deferred mahr since it becomes due on divorce.
Types and Amount of Dower
Proper Mahr vs. Specified Mahr
Mahr (dower) under Muslim law is broadly classified into two types:
1. Specified Mahr (Musamma)
This is the amount mutually agreed upon by the parties at the time of marriage or before its consummation. It may be prompt or deferred.
- It is binding on the husband.
- Can be in cash, property, or any material possession of value.
- Once fixed, the wife cannot be compelled to accept less than the agreed sum.
2. Proper Mahr (Mahr-i-Misl)
This applies when no specific amount is fixed at the time of marriage. The court or society determines a reasonable amount based on the wife's social status.
Derived from:
- Customary practice in the wife’s family
- Dower of female relatives (e.g., sisters or paternal aunts)
- Wife’s age, beauty, intellect, and social standing
Proper mahr ensures that the wife is not deprived of her due just because an amount was not stipulated.
Minimum and Maximum Amount of Mahr
Sunni Law: 10 dirhams minimum
According to the Hanafi School of Sunni Law, the minimum amount of mahr is fixed at 10 dirhams (silver coins). This is derived from traditions (Hadith) and classical juristic writings.
However, in practice today, even a nominal amount (like ₹1) is valid under Indian Muslim law.
Shia Law: 3 dirhams minimum
In Shia Law, particularly the Imami school, the minimum mahr is considered to be 3 dirhams.
No maximum limit: Both Sunni and Shia schools agree that there is no upper limit to the amount of mahr. It can be exceedingly high as long as the husband agrees and can afford it.
Example: A man agrees to pay ₹50 lakh as mahr. Is it valid?
Answer:
Yes. There is no maximum ceiling on mahr in either Sunni or Shia law. The agreed amount, even if excessive, is valid and enforceable.
Factors determining Proper Mahr
When mahr is not fixed by contract, the court or parties rely on Mahr-i-Misl (customary dower) based on several criteria:
Key Determinants:
- Family precedent: What other female members in the wife’s family received as mahr (especially sisters or cousins).
- Wife’s personal attributes: Age, beauty, intelligence, education, and character.
- Husband’s economic status: His ability to pay is considered to ensure fairness.
- Social and cultural background: Customs prevalent in the community or locality of the wife.
Example: If no mahr is fixed and the wife belongs to an affluent family where her sister received ₹5 lakh, what is she entitled to?
Answer:
She will be entitled to ₹5 lakh as Mahr-i-Misl (proper mahr) based on her family standard and social equivalence.
Enforcement and Revocation of Dower
Wife's Right to Refuse Consortium
Under Muslim law, a wife has the right to refuse conjugal relations with her husband until the prompt mahr (also called "mu'ajjal") is paid.
Legal Implications:
- This right is absolute and independent of her willingness to live with the husband.
- If the mahr remains unpaid, the wife can lawfully refuse cohabitation, and such refusal does not amount to desertion or disobedience.
- She is also entitled to maintenance during this period.
Example: If a man has not paid the prompt mahr of ₹25,000, can his wife refuse to live with him?
Answer:
Yes. The wife can legally refuse conjugal rights until ₹25,000 is paid. This is a recognized right under Muslim personal law.
Remission of Dower
Under Islamic jurisprudence, a wife has the right to voluntarily remit (waive) her dower either in full or in part, before or after marriage.
Conditions for Valid Remission:
- The remission must be made freely and voluntarily without coercion or undue influence.
- If done under pressure or during quarrels, courts may set it aside.
- Once remitted, the husband is released from that portion of the obligation.
Types of Remission:
- Express Remission: Clearly declared by the wife.
- Implied Remission: Arises from conduct, e.g., taking a gift in return for waiving dower.
Example: A wife, after 5 years of marriage, verbally declares she doesn't want the remaining ₹10,000 of her mahr. Is it valid?
Answer:
Yes. If the remission was voluntary and without pressure, it is valid, and the husband is no longer liable to pay the ₹10,000.
Dower on Dissolution of Marriage
Dissolution of marriage—whether by divorce or death—triggers the obligation to pay mahr. The payable amount depends on the circumstances:
Case 1: Dissolution by Divorce
- Before consummation: Wife is entitled to half of the specified mahr.
- After consummation: Wife is entitled to full mahr, whether prompt or deferred.
Case 2: Dissolution by Death
- Death of husband or wife (even before consummation): Wife is entitled to full mahr.
- The dower becomes a debt against the estate of the deceased husband.
Priority in Estate:
The unpaid mahr is treated as a secured debt and must be paid before distribution of inheritance to heirs.
Example: If a husband dies and has not paid the deferred mahr of ₹2 lakh, can the wife claim it?
Answer:
Yes. She can claim ₹2 lakh from his estate before any distribution is made to other legal heirs.