1.Introduction:
As a Muslim marriage
is a civil contract; it cannot be enter into without having consideration.
Dower is taken as the consideration to the
marriage. But most of Muslim jurists declare it a token of love and affection
to the wife or a gift from husband to wife. this is because wife or her legal
heirs can recover dower money as a debt from husband or his property. Whatever
status we give to dower the fact is that a marriage without fixation of dower
is void. “And give to the women their Mehr with a good heart.” Sura Nisa 4
2. Meaning of Dower:
Word Maher is derived from Arabic terminology “Support to wife
by husband.”
3. Definition of Dower:
Hedaya: dower means a token of respect given by husband to wife
at the time of marriage.
Fatima bibi vs. Lal Din; dower under Mohammedan law
is a consideration by husband to his wife for entering into the contract of
marriage.
4. Object of dower:
The main object of dower is to offer protection to the wife
against arbitrary power of pronouncing divorce.
5. Significance of dower:
And if you divorce them before you’ve touched them and you’ve
fixed the mehr, then pay half of that unless they agree forgo it. (2:237)And give to the women their mehr with a good heart;
but if they of their own good pleasure remit any part of it to you; take it and
enjoy it without fear of any harm. (Nisa:4)
6.
Capacity to enter into Contract of dower:
Either parties or
their representatives can enter into the contract of dower. Father on behalf of
groom can fix the amount of dower; however in case of non-payment by his son he
cannot be making liable to pay the amount. Whoever may make the contract if he
is a major and is of sound mind.
7.
Subject matter of dower:
Generally speaking
anything having value can be given as dower. It may be any movable or immovable
property, any kind of ornament or any other valuable not contrary to injunction
of Islam.
8.
Form of dower:
Groom may agree to
give dower and the some or subject matter of dower may either be write down or
it may be fixed orally.
9.
Status of dower:
A) A wedding Gift:
B) A debt:.
C) A consideration to marriage:.
10.
Classification of Marriage:
Dower is classified
under two heads;
A) Specified dower and
B) Unspecified dower or proper dower.
A) Specified dower/ Mehr-e-Musamma or Mehr-e-Tafweez:
Amount of dower when
fixed at or before the time of marriage as dower; to be payable at or after the
nikah; is called specified dower. Further divided:.
11.
Kinds of specified dower:
1. Prompt dower:(Mehr-e-Muajjal)
Every dower which
becomes due at the time of marriage is called prompt dower. The moment nikah is
completed this dower becomes payable no matter the marriage has not been
consummated yet; but if husband pronounce divorce without consummation wife
shall then have to give half of the dower back to him. Husband is required to
pay the dower at demand made from wife and in case of failure to pay wife can
knock the doors of justice to recover it.
2. Deferred dower(Mehr-e-Mawajjal):It is laid down in Hadaya that when the payment of
dower depends on the happening of some event or on the accruals of any time
this is called deferred dower. Such dower may become payable at the time of
dissolution of marriage or on the happening of some event or at the expiry of a
particular period.
Minimum amount of
dower:
According to Hanfi law dower of wife should not less than 10 dirhams,
Malikis set this
limit to 3 dirhams.
While shafi and shia
law don’t set any limit any minimum amount of dower.
Maximum amount of dower:
There is no limit on the maximum amount of dower it may be anything. But under
Shia law amount of dower can’t exceed to 500 dirhams.
B)
Unspecified or Proper dower
When the amount of
dower is not fixed at or before the time of marriage; the dower of wife is then
fixed by Court according to local customs, or position of the husband or
bride’s father etc
In case of irregular marriage the wife is entitled to proper dower only.
12.
Following facts should be considered for the determination of amount of dower;
1. Local customs
2. Position of husband;
3. Position of wife’s father;
4. Reference to dower of female paternal relations;
5. Personal qualifications.
Local custom:
According to Ameer Ali,
in fixing the amount of of Mehr-e-Misl regard must be paid to
the local customs, with
special reference to the dower of the women who are equal of the female in
question, in knowledge, linage, wealth, understanding and such like.
a)Position
of the husband:
Only a few scholars
favor considering the status of husband for fixing the amount of proper dower.
b)Position
of Wife’s father:
Social position of
wife’s father can be considered while determining the amount of dower.
c)Dower
of female paternal relations:
While determining the
amount of dower reference can be made to the dower of female peternal relations
of bride such as sisters, cousins, etc.
d)Personal
qualifications:
Bride’s personal
qualifications such as her beauty, knowledge, wisdom or education should also
be considered.
13.
Confirmation of dower:
The wife becomes
entitle to payment of dower on;
1. The consummation of marriage;
2. The death of either party;
3. Valid retirement.
14.
Remission of dower:
Wife can with her
free will remit all or any portion of dower to her husband and acceptance of
husband to such remission is not required.
15.
Recovery of dower:
Woman may file a
civil suit to recover her dower.
16. Case:
PLJ 2007 Supreme Court 340
Present to: Abdul Hameed Dogar & Mian Shakirullah Jan
IFTIKHAR AHMAD VersusMst. JEHAN ARA & 3 others.
17.
Conclusion:
To conclude I can say
that, the Dower is a sum of money or other property whch the wife is entitled
to receive from her husband. It becomes complete on the consummation of the
marriage. There is no, limit on the minimum amount of the dower. The amount of
dower can be increased after the marriage.
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