DEFINITION OF DOWER

WILSON- Dower is a consideration for the surrender of the person by the Wife. AMEER ALI- Dower is a consideration which belongs absolutely to Wife.

MULLA- Dower is the sum of money or other property which a wife is entitled to receive from Husband in consideration of marriage.

Justice Mahmood in case of Abdul Kadir v. Salima “Dower Under Muslim Law is a sum of money or other property promised by Husband to be paid or delivered to the Wife in consideration of marriage and even where no Dower is expressly mentioned or fixed at the time of marriage ceremony, law confers the right of Dower upon the Wife”.

ABDUL RAHIM- Dower is not a consideration proceeding from the Husband for the contract of marriage. But it is an obligation imposed by law on Husband as a mark of respect for the wife, as it is evident from the fact that non-specification of Dower does not affect the validity of marriage.

Objectives of Dower:

The primary aim of dower is to safeguard the rights of women and shield them from potential abuse by their husbands. Dower serves as a means for women to maintain themselves financially in the event of divorce, thereby acting as a deterrent for husbands contemplating divorce. It functions as a form of security for wives, ensuring their protection and well-being in the future.

Types of Dower:

Dower can be categorized into two types: specified dower and unspecified dower.

- Specified Dower:

Specified dower constitutes a fixed amount agreed upon between the husband and wife, payable at the time of marriage, either before or after the ceremony. In the Hanafi school of Muslim law, a standard of 10 dirhams is established for dower, while in the Maliki school of Muslim law, the fixed amount is 3 dirhams. Specified dower is also referred to as Mahr-i-mussama. It is further divided into two subtypes: prompt dower and deferred dower.

i. Prompt Dower: Prompt dower is paid immediately following the solemnization of the marriage.

ii. Deferred Dower: Deferred dower is disbursed upon the occurrence of a specified event, such as divorce, death of the husband, adultery, cruelty, or other matrimonial offenses.

- Unspecified Dower:

Unspecified dower, unlike specified dower, lacks a predetermined fixed amount stipulated in the marriage contract. It may be demanded by the wife at any time, even if not explicitly mentioned in the marriage deed. In cases where the dower amount is unspecified, the court determines the appropriate sum after considering various factors, including the social status of the wife's father, the economic standing of the husband, the dower granted to the wife's female predecessors, and the wife's personal attributes such as beauty, fortune, and age. In the case of Abdul Kadir vs. Salima, Justice Mahmood established that even if dower is not specified in the marriage deed, the wife remains entitled to receive it as consideration for the marriage.

Remedies for Unpaid Dower:

In circumstances where a woman's dower remains unpaid, the following legal remedies are available to her:

- Refusal to Cohabit:

Upon non-payment of dower subsequent to marriage, the wife possesses the right to decline cohabitation with her husband, provided consummation has not occurred. She may choose to reside with her parents or guardian until the dower is settled. However, if consummation has taken place, her refusal to cohabit is not permissible. In such cases, she may only be entitled to conditional dower instead of full dower.

In the case of Wilayat Hussain v. Allah Rakhi, the court ruled that failure to pay dower post-consummation permits the wife to withhold fulfillment of her marital duties.

In the case of Rabia Khatoon vs. Muktat Ahmad, where sexual intercourse occurred with the wife's consent, the court determined that the wife is entitled to conditional dower upon dismissal of the marriage.

- Debt Obligation of Husband:

Dower constitutes an unsecured debt against the husband. Thus, if the wife has not specified dower in the marriage contract (kabinama), the husband remains liable to pay it. Even upon the husband's demise, the wife retains the right to claim dower from his legal heirs.

In the case of Syeed David Hussain vs. Farzand Hussain, the court held the deceased husband's estate accountable for the payment of dower, with each heir responsible for a share proportional to their inheritance.

In Bano Begum v. Mir Aun Ali, the Bombay High Court affirmed that a widow, who had not received her haq mehr (dower) upon divorce from her deceased husband, has the right to seek the recovery of dower from the court, compelling the fulfillment of the dower amount stipulated in the nikahnama (marriage contract).

- Possession of Property:

In the absence of dower payment, the wife retains the right to possess her husband's property as a form of security for the unpaid dower. However, she does not acquire ownership of the property, retaining solely possession rights. Consequently, she cannot transfer or dispose of the property.

In the case of Mama Bibi vs. Chaudhary Vakil Ahmed, a widow retained her deceased husband's property, which was contested by the legal heirs. Despite initial rulings in favor of the widow, subsequent legal challenges resulted in the property being returned to the deceased husband's legal heirs, underscoring the wife's limited rights to possession, not ownership, of the property.

Dower Remission Clause:

The spouse, herein referred to as the Wife, reserves the right to remit the Dower in favor of her husband, herein referred to as the Husband. Such remission may be pursued at the discretion of the Wife, with the intention of alleviating the Husband's burden.

Conditions for Remission:

Remission of the Dower is contingent upon the Wife meeting the following criteria:

• Attainment of legal majority.

• Sound mental capacity.

• Voluntary consent devoid of undue influence. Remission may be effectuated post-marriage, either prior to or subsequent to consummation, but not before the solemnization of the marriage. Additionally, remission may occur without the exchange of consideration.

Dower Entitlements:

The Wife is entitled to the following rights pertaining to the Dower:

1. Retention of Dower rights notwithstanding any apostasy.

2. Claim for Dower in the event of matrimonial offenses such as divorce, cruelty, adultery, etc.

3. Determination of Dower amount by the court in cases of unspecified Dower.

4. The Dower constitutes an unsecured debt against the Husband and remains claimable by the Wife even after the Husband's demise, from his legal heirs.

5. In the event of non-payment of Dower by the Husband, the Wife reserves the right to encumber the Husband's property until the Dower is settled.

Limitation Period for Dower Claims:

Dower, being an unsecured debt owed by the Husband, necessitates that the Wife asserts her claim within three months from the date of Dower refusal. In the event of the Husband's demise, the Wife maintains the right to claim Dower from his legal representatives within three months from the date of death. Similarly, in the case of divorce, the Wife must assert her claim within three months from the date of divorce.