CHAPTER 8

DOWER (MAHR)
SYNOPSIS
1 Origin 8. Classification of dower.
2. Definition
9. Wife's Rights and remedies on non-
3. Nature of dower payment of dower.
4 Importance of dower 10. Difference between Sunni and Shia
5. Legislature's right to make a legislation Law.
in respect of reasonable dower. 11. Effect of Apostacy on dower.
6 The object of dower 12. Suits for dower and Limitation.
7. Increase or decrease of dower. 13. Kharch-i-Pandan.

1. Origin.-In old pre-Islamic Arabia, when the institution of marriage as

we know it today was not developed, many forms of sex relationships between
man and woman were in vogue. Some were temporary and hardly better than
prostitution. Men, after despoiling their wives, often turned them out,
absolutely helpless and without any means, The ancient custom to settle certain
sums for subsistence of the wife in the event she was turned out was often
disregarded, as there was no organised system of law. A device was in vogue
under the name of SHIGHAR marriage in which a man would give his
daughter or sister in marriage to another in consideration of the latter giving
his daughter or sister in marriage to the former. Thus neither of the wives
could get a dower. False accusation of unchastity were frequently, used to
deprive the wife of her dower.
In 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 wife on marriage was called, Sadaq. In Islam Sadaq
simply means a dowry and is synonymous with Mahr (sale price). But
originally the two words (Sadaq and Mchr) were quite distinct. Sadaq was a
gift to the wife in the Beena form of marriage and mahr was a gift or
compensation to the parents of the wife in the baal form of marriage. Mahr
belongs to the marriage of dominion, which is known as the baal marriage,
where the wife's parents (guardian) part with her and have to be
compensated. Promulgation of Islam gave a new form of nikah to marriage
abolished this ancient custom and forbade unjust acts towards the fair sex, as is
evident from the Quran. "If you separate yourself from your wives, send them
away with generosity: it is not permitted to you to appropriate the goods you
have once given to them". Thus the custom originated in ancient times with the
payment which husbands often made to their wives means of
neir old age or when turned out by them. Mahr in the baal form of marriage
in
as support
in
Was also by the prophet to ameliorate the position of wife
recongnised
Slam, and it was combined with Sadaq, so that it became a settlement or a
POVIsion for the wife. In Islamic law Mahr belongs absolutely to the wife,
tnough historically speaking it is more akin to bride's price than gift or
anything else
[147]
 MOHAMMEDAN LAw
148
sum that becomes payahia
dower is a
2. Definition.- Mahr or the
husband to the wife on marriage,
either by agreement between the parki parties or
operationof law. It may either be prompt (Mu ajal), or deferred (Mu (Mu' wajjal)byby
consideration for the surrender o
Wilson,
to "Dower" is a
According Anglo-Mohammedan term for its
eeso
the wife. It is the technical lent
by
Mahr' in Arabic.
is consideration which heln
According to Ameer Ali, "Dower a
belongs
absolutely to the wife.
of money or other property which
Mulla, "Dower" is a sum s

According to
to receive from the husband in consideration of the mare:e
The is entitled
wife word 'consideration' is not used in the sense in which the word is used in
theIndian Contract Act. It is an obligation
imposed upon the husband as a mar
of respect to the wife.
said in Abdul Kadir v. Salima, that Dower
Hon'ble Justice Mahmood has wer
of or other property promised by the
únder the Muslim law is a sum money
to the wife in consideration of marriage, and
husband to be paid or delivered
fixed or mentioned at the marriage ceremony.
even where no dower is expressly
dower upon the wife'.
the law confers the right of
on the argument that marriage is a civil
The above opinions are based
contract and dower is a
consideration for the contract. But it is submitted that
because even in those cases where no dower is
the above opinions are erroneous,
is rot void on that account, but the
specified at the time of marriage, marriage should be
law requires that some dower (proper dower) paid to the wife. Abdur
Rahim correctly observed, "It is not a consideration proceeding from the
the law
husband for the contract of marriage, but it is an obligation imposed by
on the husband as mark of respect
for the wife as is evident from the fact that
does not affect the
the non- specification of dower at the time of marriage
validity of marriage".
3. Nature of Dower.-Dower in the introduced by the
present form was
case of every
Prophet Mohammad and made obligatory by him in the
donatio propter
marriage. Dower in Muslim Law is some what similar to the
nuptias 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
Thefollowing points may be noted with respect to the nature of Dower
(1) Analogy is often drawn between a contract for dower and one for saie
The wife is considered, to be the property and the dower her price
In Abdul Kadir v. Salima, Mahmood, J., comparing the marnas
and dower with contract for sale and consideration, says "Dower n
to
be regarded as consideration for connubial intercourse by way of anaio5

1. Tyabji; Muslim Law, 4th Ed., p. 102.

2. I.L.R. (1886) 8 All 149 (157).
3. I.L.R. (1986) 8 All 149.
 DOWER (MAHR) 149
ntract for
the contract sale. The right to resist her husband so long as the Dower
emains unpaid is analogous to the lien of a vendor upon the sold goods while
they remain
remain possession and so long as the price or
his
in his
of it is
n her surrender to husband resembles the deliveryany
and her surre of part
the goods unpaid
to the
vendee.."

(2) It is regarded by some eminent authorities as a consideration for

conjugal intercourse. In a .case, Smt. Nasra Begum v. Rizwan Ali,4
Allahabad High Court expressed the view that the right to claim
prompt dower proceeds cohabitation.

(3) 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 he husvand. 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 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 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 (as against other heirs of her husband and as against other creditors or
ner
husband) to retain the possession, until her dower is satisfied. Heirs may
Tecover that property after they have paid up her debt. Dower-debt is not a.
Cnarge and widow cannot prevent another creditor or of her husband fromn
recovering his debt from his estate. Dower-debt is an unsecured debt ranking
equally with other debts.
In Zobair Ahmad
v. Jainandan Prasad,6 their
Lordships of the. Patna High
Lourt held "The dower debt of a Mohammedan widow is not properly speaking
arge upon the property of her husbànd; the interest which she has in the
POperty in her possession in lieu of dower-debt is an interest restrictea in ts
Pent to her personally within the meaning of Section 6 (d), Transfer of
Toperty Act, and as such is not capable of alienation".
An Smt. Nasra Begum v. Rizwan Ali,' Allahabad High Court observed

AlR 1980 All 119.

5.
6.
(1916) 43 I.A. 294.
A.l.R. 1960 Pat.147.
A.I.R. 1980 All 119.
 MOHAMMEDAN LAW

150
Law Makr or dower mean.
under the
Mohammedan
eive from husb money
from the hushney
"No doubt,
is entitled to
receive
nd in
or property
which the wife the expression 'consideratio is
ne Contrac+ i s
However,
c o n s i d e r a t i o n of the
marriage.
in which it is
used in the Contract Act. In
sense
understood in the the band
husba as a mark of r
not to be upon ect
imposed
effect dower is an obligation
for the wife"
says, "Mahr is so
nea..

Khan
dower-Fatuai-i-Quazi ssary
4. Importance of
not
mentioned at
the time of the marriage,
the marriage, or in the
it contract itself".
to marriage that if
were
virtue of the
will presume
it by
contract, the law
Law of Marriage that
incident of the Muslim
essentially an before marriage to forego all er
It is the part the woman
of
there is stipulation on without any dower
she agrees to marry
if the
to dower, or even
right be invalid.
stipulation or agreement will
that it imDarha to
lies in the protection
of its importance
öf the power of divorce by the husband
The reason

the wife against the arbitrary exercise wife at his'whim and so the
husband can divorce his
In Muslim Law, the of the husband of
object of dower is to check upon the capricious exercise
will. t not only protects from his
his power to terminate the marriage at
unbridled power to' divorce but
also from his extravagance in morehaving
to charge a huge dower on the occasion of
than one wife. A stipulation
the luxury of having
his another is enough to deter him from enjoying
marriage
Salima,3 Mahmood, J., has
four wives. In Abdul Kadir v.
two, three or
observed: "The marriage contract is easily dissoluble, and the freedom of
divorce and the rule of polygamy place the power in the hands of the husband
which the law-giver intended to restrain by rendering the rules as to payment
of dower stringent on the husband. That is why the right of the wife to her
dower is a fundamental feature of the marriage contract; it has a pivotal place
in the scheme of the domestic relation affecting the mutual rights of the
spouses at more than one point."
The question with regard to dower does not arise in case of marriages
solemnized under the Special Marriage Act, 1954. But the right to Mahr fixed
in a marriage first contracted under Muslim Law will not be forfeited merely
by the fact of registration of the marriage under the Special Marriage
Act, 1954.
5. Legislature's right to make a legislation in respect of reasonable
dower.-According to Muslim law, on the dissolution of the can
claim her dower money. It is possible that the amount ofmarriage,
dower wcvery
high or it may be very low. There were cases
sufficient source of where the husband w naving
income but the amount of dower was so was
not possible for maintain herself without that meagre,
the wife to the
Legislature was given full power to make law and, therefor not
the Court ill not
be bound to award
the amount of dower providing that
5 of
to marriage deed. Sectio 5of
the according
Oudh Laws Act, 1876 provided that the Court is nt of
unt of
not to award tne
8. I.LR. (1886) 8 All. 149.
 DOWER (MAHR) 151
stipulated in the contract of marriage but only such sum as shall be
dowe le with reference to the means of the husband and the Iddat of the
reasonable

wife.
The object of Dower-The object of dower is three-fold:
6.
t o impose an obligation on the husband as a mark of respect of the wife;
to
toplace a check on the
capricious use of divorce on the part uf husband;
and
(iii) to provide for her subsistence after the dissolution of her marriage, so
that she may not become helpless after the death of the husband or
termination of marriage by divorce.
Fixation of Mahr
The Indian Ulema recommended in a seminar that Mahr (dower) should be
ed in terms of gold or silver so that the rights of women are fully protected in
fixed
the event of fall
in the values of currencies.10
7. 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. A Muslim girl who has attained puberty is competent to
relinquish her Mahr although she may not have attained majority (18 years
within the Indian Majority Act). The remission made by the wife, should be
with free consent. The remission of the Mahr by a wife is called Hibe-e-Mahr.
In a case where the wife was subject to mental distress, on account of her
husband's death the remission of dower, was considered as against her consent
and not binding on her.1
It has been held in a Karachi case,12 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.
8. Classification of dower.-The dower may be classified into:
i) Specified dower (Mahr-i-Musamma).-Specified dower is again
divided into:
(a prompt dower, and
(b) deferred downer.
ii) Customary (Proper) dower (Mahr-i-Misl).
Specified dower.-f the amount of dower is stated in the marriage
contract, it is called the specified dower. Dower may be settled by the
parties to the marriage either before the marriage or at the time of the
marriage or even after the marriage. If a marriage of a minor or lunatic
Oy 1s contracted by a guardian, such guardian can fix the amount of
9. See Abdul
Rahaman v. Inayati Bibi, (1931) A.C. 631.
oal Issues Decision of Indian Ulema, p. 14 IFA Publication.
11.
12. hahHasnumiya
Dadamia v. Halimunnissa Hafiullah, A.I.R. 1942 Bom. 128.
Bano v.
Iftekar
Mohammad, P.L.D., 1956 (P.W.) Kar. 363.
 152 MOHAMMEDAN LAW

dower. on the minor bou

Dower fixed by the guardian is bindingthe oy and he
cannot on attaining the age of puberty take plea that he was nOt
of such minor o r lunatic
party to it. Even after the marriage
provided that at thothe
guardian settle the amount of dower, lunatic.
can time
is still minor or
of
settlement of dower, the boy
of dower .
amount he likes by way
The husband may settle any is
nothing to his heirs
after payment of the
wife, though it may leave
dirhams (the money valk ount.
less than ten of
But he cannot in any case settle
to Hanafi Law and 3d10
dirhams is between 3 and 4 rupees)
according
Law does not fix any imum amount
minimui rhams
according to Maliki Law. Shia for
dower.
and not in a
position t
who are very poor
For those Muslim husbands has directed them toy
even 10 dirhams to the
wife as dower, the Prophet teach
At there is no limit to the maxi
to the wife in lieu of
dower. present
Quran become obsolete.
has n o w
amount of dower. The minimum
into:
As already stated, specified
dower is again subdivided

(i) Prompt Dower (muajjal mahr)

mahr).
(i) Deferred Dower (muwajjal
is immediately
payable marriage after on demand
Prompt Dower.-It enter into conjugal domicile of
Ali a wife can refuse to
According to Ameer
of the prompt dower.
husband until the payment
dower:
must be noted regarding prompt
The following point
immediately on the marriage taking place
(i) Prompt dower is payable for or agreed.
nd it must be paid on demand, unless delay stipulatedThe
is

before or after the marriage. wife may

It can be realised any time
until the Prompt Dower is paid. If the
refuse herself to her husband,
to allow her to be sent to the
wife is minor, her guardian may refuse
in such
husband's house till the payment of Prompt Dower.
maintain the wife, although she
circumstances, the husband is bound to
is residing apart from him.
of
deferred after consummation
(ii) Prompt dower does not become of prompt
marriage, and a wife has absolute right to sue for recovery
she cannot resist
dower even after consummation. After consummation,
the husband if the prompt dower has not been
the conjugal rights of of
paid by him. Instead refusing to decree the suit for restitution o
if marriage 1
conjugal rights to which the husband is entitled,
Consummated, the court may pass a decree conditional on payment
dower nd
(111) t is only on the payment of the prompt dower that the husDa
becomes entitled to enforce the conjugal rights unless the marria the
aureaay consummated. The right of restitution arises only a
dower has been paid.
r u n on
(10) As the prompt dower is payable on demand, limitation begins t . three
three
demand and refusal. The period of limitation for this purpose make
years. If during the continuance of marriage, the wife does notof the
the
the te
4dissolution
emand, limitation begins to run only from the dal
of marriage by death or divorce.
 DOWER (MAHR)
153
orompt dower,
Although prompt
according to Muslim Law, is
and,
diately on deman yet, in
large majority of cases it is
a payable
in practice a Muslim rarely demanded
arely paid; husband generally
when gives
there little thought
a n di s r a r

to the questic of paying ower to his wife save is domestic

or when the wit presses for
disagreemne

of
payment upon the
husband's
upon a course
extravagance and indebtedness without making
Lapse of time since marriage raises no any
e m b a r k i n g

for her.
provision

of dower,
13 presumption in favour
payment
of the
dower.- It is payable on dissolution of
(b)
Deferred

death or divorce.
marriage either by
According to Ameer Ali generally in India dower is a penal sum with the
husband to fulfil marriage contract in its entirety.
object to compel
The following points must be noted regarding deferred dower:
l 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 than the dissolution of marriage such an agreement
would be valid and binding.
not entitled to demand payment of deferred dower (uniess
(ii) The wife is
otherwise stipulated), but the husband can treat it as prompt and pay
not be void
property in lieu of it. Such a transfer will
as
or transfer the
a fraudulent preference
unless actual insolvency is involved.

The widow may relinquish her dower at the time of her husband's
(iii) a relinquishment must be a
funeral by the recital of a formula. Such
voluntary act of the widow. and not a
is a vested one
(iv) The interest of the wife in the deferred dower of any
one. It is not liable to be displaeed by the happening
contingent and as such her heirs can claim
the
event, not even on her own death
money if she dies. amount of dower
regarding prompt and deferred dower.-The
Presumption which is payable on demand,
two parts (1) one is called 'prompt'
Split into is payable on dissolution
of marriage
is called 'deferred', which realised by the
4 other of the dower may be
The prompt portions
y death or divorce. consummation.l4 Dower which is not paid
at
wIre at
any time before or after it is postponed
deferred dower but if
for that r e a s o n be described as does
nay dower.l5 But deferred dower
law prompt
emanded by wife, it is in demands it.o
E Decome prompt merely because the wife dower
amount ot
deed, fixes the
contract
Kabin-nama, the marriage dower
but ne
what deterred
fails to show what portion of it will be prompt and
Courts the proportion between
the
and Bombay High
hu ngto Allahabad of wife, (ii) custom or locally
Snould be fixed on the basis of (i) position
total amount of dower, (iv) status of husband"

13. ALR.1941 Oudh. 457.

98.
1ahana
15. Khattun v. lgtidar-uddin. (943)AlIL.LJ
PAt. 281.
1933
Viahadeo Lalv. Bidi Maniram, AIR ,
Manohar Bibi v. Rakha Singh, AIR 1954 Manipur
 MOHAMMEDAN LAw
154
It has been held in Rehana Khatun's case,that the proportion af.
prompt
dower is regulated by custom, and, in absence of custom, the total ammp
dower is to be settled on the basis of the status of the parties.

Shia Law.-Under Ithna Ashari Shia law if the kabin-nama fixer

total amount of dower but does not specify as to what portion of it w the
prompt and what deferred, the whole of the
dowerthe
1s regarded as
prompt
mpt. In
unless otherwise stipulated entire
theMadras Presidency, wer is
prompt
no matter the parties are Shia or Sunni.
Sunni Law.-According to Sunni Law, in the absence of any family u
and statement in Kabin-nama, half of the total amount is regarded as prusage
and half as deferred.
(ii) Proper (Customary) Dower.- When the amount of dower is not fixed i
the marriage contract or even if the marriage has been contracted n
the condition that she should not claim any dower, the wife is entit
to Proper dower. Proper dower is to be
determined by taking into
consideration the amount of dower settled upon other female members
of the father's family such as her father's sisters.
Determination of Proper Dower-The proper dower (mahr-i-mis) is
regulated with reference to the following factors
(a) Personal qualifications of wife; her age, beauty, fortune,
and virtue. understanding
(b) Social position of her father's
family.
(c) Dower given to her female
paternal relations.
(d) Economi condition of her husband.
(e) Circumstances of time.
There is no limit to the maximum
amount of proper dower under the
Law, but under the Shia law the
dower
Sunni
Dirhams. 500 Dirhams was the proper should not exceed the 500
amount of dower which was fixed in
marriage of Fatima, the Prophet's tne
therefore, considered a point of daughter. In the Shia Muslims it 5
honour not
by the Prophet for his stipulate Fatima.sum higher a
the sum of dower fixed to for a
9. Wife's
rights and remedies on
daughter,
confers upon a wife (or non-payment of Dower.- Muslim aw
La ot
her dower: widow) the following three rights to
compel payme
1. Refusal to cohabit;
2.
Right to dower as a debt; and
3 Right to retain her deceased
(1) Refusal to
husband's property.
cohabit.- If the
right to refuse to cohabitmarriage has not been the
wife has a
consummae
dower is not paid. In the case of a with her husband so long as the P
guardian has right to refuse to send herwife
guardianh who is a minor cz an
to her husba nsa of
d's payment house till pay
17. Rahana Khattun v. lqtidar-uddian. (1943)
ALJ 98.
 DOWER (MAHR)
155
dower.
promptdon During her such a stay in her
guardian's house the husband
maintain her. is
to
hound
right of wife to insist on
the
The absolute payment of the prompt dower,
giving him the access to her, is lost after the consummation of the
before giving
betore18
marriage.8 After consummation the husband in his suit for
restitution of
marreiohts
conjugal
upon her refusal can secure only a decree conditional on
payment
ower. It was held in Abdul Kadir v. Salima., that the effect of non
of
of
nt of prompt dower is that the wite can refuse to cohabit or refuse to live
Payn

the husband. If the husband sues her for restitution of conjugal rights
with
hefore sexual tercourse takes place, non-payment of dower is a complete
defence to the.suit, and the suit will be issed. Similarly, In Nasra Begum
w Rizwan
v. Rizwan Ali,20
Ali," it was held by the Allahabad High Court that the wife can
V
refuse
o live with her husband and refuse to him the sexual intercourse so long
as the prompt dower is not paid to her. In a suit for restitution of conjugal rights
hu the husband, the
the husband, the non-payment of prompt dower before consummation, isa
emplete deence and the suit must fail. Where the wife is minor or insane her
guardian can refuse to allow the husband to take his wife with him till the
prompt dower has been paid. Ii the minor wife is already in the custody of her
husband, such guardian can take her back on the ground of non-payment of
v. Mukhtar Ahmed,21 that if the
prompt dower. It was held in Rabia Khatoon
suit is brought after sexual intercourse has taken place with her free
consent

decree to is not a decree of dismissal, but a decree for

pass
the proper
restitution, conditional on payment of prompt dower.
on the
When dower is deferred and is payable at a future date or
other contract to the contrary, the
contingency of an event, and there is no his conjugal rights or
question is whether she can refuse to the husband
whether her guardian can detain her till it is paid, Abu Yusuf is of opinion
she cannot
that she can but according to Imam Muhammad and the Shia Law, the
such option of denial in cases of deferred dower, and it appears from
have that the latter
learned decision of Mahmood J. in Abdul Kadir v. Salima,22
opinion has been followed in India.
of the Privy Council held
(2) dower as a debt.- Their Lordships
Right to entitled along with other
"the dower ranks as a debt and widow is
nar of the husband, out of his estate." If
the death
it the wife can recover the dower debt by instituting a suit
satisfied
o r s to have
ne husband is alive, on

debt remaining upa

gainst him. After the death of the husband, dower
his
dower debt by filing a suit against for
Widow can enforce her claim for the liable
heirs. The heirs of the deceased husband are however, not p rsonally
Hthe debt. They are liable to the extent to which and in the proportion in
in
deceased husband. If the widow 15
the
DOss inherit the property of under a claim for her dower, the otner
FSession of her husband's property

. Hamidunissa Bibi v. Zaheer-Sheik, 17 Cal 670.

19. LR(1886) 8 All. 149.
20. AIR (1980) All 118.
2. AIR 1966 All 548.
2LR (1886) 8All 149.
 MOHAMMEDAN LAW
156
recover t h e i r respectiva
entitled to
heirs of her husband a r e
severally
debt proportionate
to those shares,23
to share
of the dower
upon pavment of quota
a
and two daughters. Tho
A Mohanmmdan dies leaving a widow,
a son
widow's sharere in the estate
vidow
of Rs. 3,200; the is 1/8
is entitled to a dower
debt 400. The son's share
Rs. 3,200=Rs. is
contribute 1/8 of (/16 da
and she is liable to The share of each
and he is liable to 7/16
of Rs. 3,200
Rs. 1,400.
3,200
=

the witer
=Rs. 700 and iff the widow is ghter is
of Rs.
is
how in
to pay 7/32
7/32 and she is liable he is not,
of Rs. 700. She
r e c o v e r her
share o n payment
to such a charoe e r ,
husband's property, though
possession
o n her be
entitled to
any charge o n behalf of his minor
Even a father's contract
created by agreement.24 minor fails to pay.
and upon the father if the
minor
binding upon the Shia Muslim stood e1wet
v. Farzand Hussain,25 a
In Syed Sabir Hussain his death his estate was
dower by his minor son. After
payment of the mahr and each heir
was made resnon.
his son's le
liable for the payment of to his share in the estate
for a portion of the wife's
claim in proportion the
deceased.
In Mohammad Tusabuddin v. Yasin Begum,40 it was held that the claim of

for dower was in the nature of a secured debt.

a widow
the competence of a Court to create a
There is no doubt that it is within
such charge is created and the
charge by its decree for a dower debt so that if a
decree has been appealed against and has become final, effect will be given to
the charge in other words, a decree creating a charge is not a nullity for want of
jurisdiction. But though it is not beyond the power of a court to pass a decree
creating a charge, it will not ordinarily do so. To pass such a decree is to give
the dower debt a priority over other debt due from the deceased. 1he proper
decree to make is simple money decree and no charge is created merely because
the decree directs execution by sale of properties mentioned, If a decree is
passed creating a charge the proper course of the Appellate Court would be to
set it aside to that extent27
In Anjum Hassan Siddiqui v. Salma Bi,28 the Allahabad High Court held
that an application by the divorced woman for sum of Mahr or dower under
Section 3 of Muslim Women (Protection of Rights on Divorce) Act, (1986) can lie
only before the Magistrate concerned. The Family Court es tablished under the
1984 Act cannot exercise
jurisdiction unless the same had been speciricau
conterred upon the
family Court under the provision of Section 2 (b) of 1984
The family Court in this case was
therefore, not competent to deal wiu *he
application moved by the respondent
for want of
In
jurisdiction.
Parvej Khan
State of U.P. 29 the High Court of
v.
Allahabad obse
erved

that perusal of Section

3(4) of the Muslim Women (Protection of KIg
on

23. Hamira Bibi v. Zubaida Bibi, ILR (1916) 38 All

24. Hamira Bibi 581.
v. Zubaida Bibi ILR (1916) 38 All
25 65 IA 119. 581.
26. 17 DLR. 224.
27. Ammeeroon-nissa
28. AIR 1992 All. 322.
v.
Moorad-un-nissa.(1855) 6 MIA 211.
29 MANU/UP/0766/2013.
 DOWER (MAHR)
157
Divorce) Act, A1986, showed that
the view takenby the Magistrate was
olutely correct. In he íacts of this case no order has been
Magistrate
solute onn the application by the wife passed
under Section 3(1) of the Act ofby 1986
the
*
MahT
t Mahr. and for return of her other
belongings. Thus, the Court held
fur
ice
the orde hias
a e ' i i re, "here arisns noqu1estion for
hai a fof said
on-compliance said oider. Section (4) t h
* Mu LaV .rnen (i'rotection of
Divorce) Act, 1986, shall apply where the learned Magistrate has
Rights
order anc there is non-con
assed the te sallie aud in i e ot tills,
Pass

the
sid application was rightly rejected by the trail Court. In view
of the
hove the application under ection 468, Cr. P.C. being devoid on merit and

deserves
to be disn: isse1.

(3) Right to Retain Possession in lieu of unpaid Dower-Dower ranks as a

ht and the wife is entitled, along with the bther creditors, to have it
ied 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 satisfied. lf the widow has lawfully and without force or fraud
obtained in lieu of her dower actual puSsession of the property of the deceased
husband, she is entitled to retain that possession as against other heirs and as
against other creditors of her husband, until her dower is paid.3 This right of
retention does not give her any title to the property; therefore she cannot
alienate the property. The right to retain possession of husband's estate till
payment of dower also arises after divorce. In no case it arises during the
continuance of marriage.
A widow's right to retain possession of her husband's estate in lieu of her
dower, is for a special purpose. It is by way of compulsion to obtain speedy
payment of the dower which is an unsecured debt. Where she is not in
has lost possession, she cannot claim to obtain it. Because her
Possession, or
nght to retain is not in t h e nature o f a charge o n the property like mortgage Dut

a personal right against the heirs and creditors of her deceased husband.

The following features of right to retain possession must be noted:

N o right of retention during continuance of marriage-The right comes

the marriage is
nto existence only after the death of her husband, or ifnot
dissolved by divorce, immediately on such divorece, but betore.
hiucLThu lf a creditor of the husband obtains a decree against
him and the
or
Pproperty is sold execution in his lifetime, the wife has no right
h a in
against execution and she must deliver
of the decree
Dose a purchaser in
possession to him.
c t u a l Possession.-The right of reterntion means the right to continue
*" he poSsession of the husband's property after termination O

30.
31. Hamira Bibi
See Babee
v. aida Bibi, ILR (1916) 38 All 581. Vakil Ahma"
Maina Bibi v. Chaudhry
201924)
32.
521Bach m V, Hamid Hussain, (1871) 14 MIA 377 and
51 IA
145.
 MOHAMMEDAN LAW
158

death) until the satisfaction

(either by divorce o r by
debt. It is, therefore, necessary for the exercise of this right . the
marriage
dower
the wife or widow must be in actual possession of the property a that ght
at the
time of the termination of marriage. If she was not in actual possese

of the at this time, she cannot

afterwards acquire poseon
property
of the husband's property in lieu of this rignt. Ine nght of retention i
the right to retain possession of the property which was acquired
her during the subsistence of marriage. It is, therefore, not a"righ
o
obtain possession.
It is also necessary that the wife should have obtained possession of
the
without force fraud.
property lawfully and
or

(iii) The right of retention not analogous to a mortgage.-The woman has o

interest in the property, as mortgagee has under, an ordinary mortgaoe
There is no true analogy between her right of retention and mortgage.In
the case of a mortgage, the mortgagee retains possession under an
agreement between him and the mortgagor, while her right or
rentention does not arise from any such agreement but is conferred on her
by law.
(iv) Not a charge.-The right does not constitute a charge on the property
and as such she is not a secured creditor. If the property, which is being
held by her in lieu'of dower under her right of retention has been
mortgaged by her deceased husband, the mortgagee can sell it free of
her right and can oust her from possession.
(v) A possessory lien on property is no title.-(a) She is to satisfy
her claim for dower with the rents and profits àccruing from the
property.
(6) The right of retention does give her any title to thè property.
not
The title to the property is in the heirs, including, of course, the
widow.
(c) She cannot alienate the
property by sale or mortgage to satisty net
dower. If she alienates the
property, it is valid to the extent or ne
share and not of the shares of other heirs of
her husband.
f she delivers possession thereof to the alienee, the other heirs becom
entitled to recover immediate
possession of their shares unconditionauy he
15, Without payment of their proportionate share of the
widow is not entitled
on the
alienation dowerucak ack
possessions. By giving up possession of thebeing set aside, to be restore hold ld
possession thereof and whether sheheirs
property, she loses her
er, if
the widow is dispossessed by the loses ofhertheright
husband or their t r a r
to the dower. Howev t trh e
erees,
she can recover
possession
Specific Relief Act, that too only by instituting a suit under
within 6 months of Sectio hich
she would lost her dispossession, tailinghy a
right to recover possession. In case
trespasser, she is
Article 12 of the dispossttation
she can sue with
12 years under mitation

Act. Indian L
 WER (MAHR)
159

..1eading case of Maina Bibi v.

In the
died in 1890 leaving
Chaudhary Vakil Ahmad,33 one
din died
Muinuddin
immovable property, Maina Bibi was his
Muinu 1902 the respondents instituted a suit
widow. In 1902
widow. against the widow for
ossession of their shares of the estate. The
nediate possession
widow pleaded that
immea was gifted
estate was gifted to her by her husband and
thetitled
the
estare
to ssession
alternatively
possession until her dower was paid. The Trial
that she was

enthefor DOSsession in favour of the Judge in 1903 passed

a decre respondents condition that they paidd
on
tode
the w idow Rs. 25,357 within six months, and the decree
a
default
to provided
of payment the suit should be dismissed. The respondents thatpay
did not in

the money and the widow continued in possession.

1907 Maina Bibi executed two deeds of gift of her husband's estate in
favour of some donees to
favour of some
to whom she gave possession. The terms of the deeds
hawed that the widow purported to convey an absolute title to the donees.
The Tespondents filed the present suit in 1915 against the widow, Maina Bibi
and her alienees, the appellarnts. The respondents claimed that the widow,
could not, according to Muslim Law, transfer the properties over which she had
only right or retention untl the payment of dower. They claimed possession
unconditionally, or alternatively upon payment of the proportionate amount of
the dower debt, after deducting the profits of the property. The appellants,
pleaded among other things that the decree of 1902 operated as res judicata
further that the claim was barred by limitation.
Their Lordships of the Privy Council observed that the possession of the
property being once peacefully and lawfully acquired, the right of the widow
to retain it till her dower debt is satisfied, is conferred upon her by the Muslim
Law. They further said that it is not exactly a lien, nor a mortgage,
usufructuary or other. The widow who holds possession of her husband s
interest in he
property until she has been paid her dower has no estate or to
Property as has mortgagee under an ordinary mortgage. She has no right
alienate the property by sale, mortgage, gift or otherwise.

Meer Meher Ally v. Mst. Amanee,34 it was said that the lien of the
un
wIaow over the property in her possession is not a
lien in the ordinary legal
of
he term and that a claim for dower is in the same position
as
that
them and like other
Other ordinary creditor and ranks pari passu with
DIS has to be paid before the heirs are entitled to take anything

widow in possession of her

wdow in possession liable to
account.-A
of her husband ror
estate is bound to account the other heirs
usband's of the estate while
she
is
her out
e rents and profits interestbyon the dower due to her and to ser
received

Selr entitled to charge held in Shaikh Salima's case, that

against the net profits. It was
in lieu of dower deot
in possession of her husband's property
1:OW from such property,
ln
ie
dble to other sharers of income
to account
possession".35
33.
(1924) 52 IA
34. 11WR.212. 145.
35 Shaikh Salma v. Mohammnd Abdul.Kadar, AIR 1961 A.P. 428".
 MOHAMMEDAN LAw

160
to sue her husband'.
not disentitled s
(vii) Can sue heirs.-The widow is
of his assets
on the gro heirs
round that; she
tor the recovery her dower out
of is
retaining the property.
heritable or transferable.-Tho.re is
s aa
of retention whether
(viii) The right whether the widow's right to
conflict of juudicial opinions heritable.36 hold
transferable and
pOSsession is
and not a lien and it..

One view is that the right

is personal right not
1. or otherwise, nor can it pase to
therefore be transferred by sale, gift her
heirs on her death.37
the Mysore High Court that the right to hoi.
hold
The other view is of
heritable and transferable.38 Such right
2.
possession is the right both
9

retain possession can also be exercised by her heirs after her dea oany
it
been held in a case that it
is heritable without expressing
has
transferable.40
whether it is also
opinion
it has been held that itt iis
3 In another case of the Allahabad High Court
heritable.
both transferable and
If it is transferable, can it be transferred without transferring also the
dower debt.-Here again there is a conflict of Judicial decisions. In some cases
it has been held that the right to hold possession cannot be severed from the
dower-debt and transferred as a separate interest as in Maina Bibi's case.4l In
other cases it has been held that it can be so transferred.42
But a transfer merely of the dower debt does not pass to the transferee the
right to hold possession and the Privy Council expressed doubt, whether a
widow can transfer either the dower debt and the right to hold possession.43
All that can now be said with certainty, is that the right to hold
possession is heritable. Though it cannot be said with certainty, whether it is
transferable but the balance of authority in India is in favour of the view that
it is also transferable.44

Following illustrations may make the position clear.

Muslim dies leaving a widow and a
A
brother. The widow is in
possession of her husband's property in lieu of her dower. The brother lawru
claim his share until he
his proportionate share of the canno
pays dower debt.
dower debt remains
unsatisfied, and the widow sells the whole
Ine
satisty the debt, and delivers
possession thereof
property
to the purchaser.
question is-what is the effect of the
sale? The sale passes to the
o
right to the possession of that purc Now
only the widow's share and the
36. Zubair Ahmed v.
share
Hadi Ali v. Akbar Jainadan
Prasad AIR 1960 Pat.
37. 147.
Ali, (1898) 22 All 262.
38. Husain v. Rahim
Khan, AIR 1951
39 Haliman v. Mohammad Moin, AlRMys4. 1971 Pat. 383
40. Azizullah v. Ahmad
41 (1885)7 All 353.
Zaibunnissa v. Nazim Hassan. AIR 1962
42. Amir Hassan v. All 197.
Mohammed, (1932) 54 Al. 499; Sheikh
43. Abdul v. Shamsul
Hag. (1921) All 262. Abdur Rahman v. Saikh Wali, (1925)** 2
44. Maina Bibi v.
Chaudhary Vakil Ahmad. (1925) 52 IA.. 145.
 DOWER (MAHR)
161
hat will be the effect of the
delivery of
possession to the
will be that the brother, who was not
purchaser ? The
entitled, before delivery of
session, to possession of his share until he paid his share of the
omes entitled to immediate possession of his share without dower debt,
becom

hare of debt. The paying his

purchaser is not entitled to retain
possession of the brother's
hare until the brother pays his share of dower debt. The reason is that the
deed does not purport to transfer to him either the dower or the right to hold
DOSsession. Nor is the widow entitled to have the possession restored back to
her, for by giving up possession, she lost her right to hold possession 45
10. Difference between Sunni and Shia Laws relating to dower:
Sunni Law Shia Law
1 A minimum limit of 10.dirhams is 1. Nominimum limit is prescribed.
prescribed for specified dower.
2. There is no limit to proper dower. 2. Proper dower cannot exceed 500
dirhams..
3. There is no maximum limit for 3. Fixing of dower exceeding 500
specific dower. dirhams is considered abominable
though not illegal.
4. If marriage is dissolved by death 4. In such case no dower would be due
and dower has not been specified, if the marriage was not
or it is agreed that no dower shall Consummated.
be payable, proper dower would
be due whether the marriage was
consummated or not.
5. An agreement that no dower shall 5. Such agreement by sane and adult
be due is void. wife is valid.
6. In the absence of an agreement 6. The whole dower is presumed to
only a reasonable part of the be prompt
dower is presumed to be prompt.
11. Effect of Apostacy on Dower-The effect of dissolution of marriage
under a decree of the Court is regulated by statute. According to Section 5 of the
Dhssolution of Muslim Marriage Act, 1939, a married Muslim woman shall
nave same rights in respect of dower after dissolution of marriage under the
Act as she may after dissolution of marriage by way of talaq, fasqh etc. Under
uslim Law. Hence a Muslim woman whose marriage is dissolved under the
aroresaid Act not the ground of apostacy of the husband is entitled to dower.
ne dissolution of marriage under the Act, even though made after apostacy
ne wife, does not take away her right to dower and she is entitled to halt
dower even if the
marriage is not consummated.
12. Suits for dower and Limitation.If the dower is not paid, the wife and
arter her death, her heirs may sue for it. The period of limitation, according to
Aricle 113 of the Limitation Act, for a suit to recover prompt dower is three

. See Mulla, Principles of Mohamedan Law, 16th ed, p. 284

 MOHAMMEDAN LAW

162
the dower is demanded, refused;
or where
ere d ..
durin
the date when
years from has been made, wh the
continuance of the marriage
no
such demand case of deferred d
the
death or divorce, In
marriage is dissolved by the date when the marei the
limitation is three years, from
period of dower has not
divorce. Where, however, prompt
fixed, a demand
dissolved andorrefusal
by death is not a condition precedent for filing a sui beenen
its
recovery.
of Payment.oThis may be dividedsinto
Amount of Dower and Condition
two
the Mahr has been fixed by agreement, and the
(a) Where the amount of
1.
consummated or either party has died--the whole of the
marriage has been
mahr is payable to the wife.

(b) Where the Mahr is unspecified,

and if the marriage has been
consummated or either party has died, the wife is entitled to proper dower

(Mahr-ul-mishl.)
and it has been unconsummated but
(c) Where the marriage is irregular
dissolved by death of the party, then the wife is entitled to specified or proper
dower whichever is less.
2. Where the wife is divorced by the husband without consummation or
valid retirement, the wife is entitled to receive

(a) Half of the specified dower, or

(b) A present of three articles of dress or of their value, If divorce is given

by the wife then she is not entitled for any dower.
13. Kharche-i-pandan.The Kharchi-i-pandan literally means betel box
expenses and is a personal allorance to the wife customary among Muslim
families of rank specially in upper India. It is also called an allowance t
mewakhori (eating fruits). When the parties are minors, the contract is mad
befween the respective parents and in such a case the wife as beneficiary
entitled to enforce it. Moreover this is fixed either before or after marriage anu
according to the means and position of the parties.
Muslim jur is
compared Kharche-i-pandan to 'pin money' found in English Law. But there
ome difference in the two.
The Kharche-i-pandan is to the payable wife
long as she lives with her husband and she can spend the same withou Aany
control of the husband. The
with the advice and at the 'pin money, however,
is spent during Co
instance of the husband.

46. See Tayabji, op Cit p 116

47. Sikandar Ara v. Hussan Ara. 1916 Oudh 136.