WIDOW’S RIGHT TO HOLD
POSSESSION OF HER HUSBAND’S PROPERTY ON NON-PAYMENT OF DOWER IS HERITABLE &
TRANSFERABLE-CRITICALLY ANALYSE WITH THE HELP OF JUDICIAL PRONOUNCEMENTS.
 |
| WIDOWS RIGHT |
Research Methodology.
[A] Aims and Objectives.
Before going into the details of
the project topics, it is necessary to understand its objectives. The
objectives of my projects are its core. In order to achieve the objectives
principles are prescribed and then mandates are formulated to serve the
principles. If mandates are given without comprehending the objectives, there
is a possibility of the mandate being applied to particular issue in a way that
forfeits the very essence of the law. In the same way, a person, who is unaware
of the objectives of a law, will not be able to follow it in the true spirit of
the law. So, we begin with the explanation of the objectives for which Islam
has laid down its marital law. My objectives is to make the actual concept of
Mahr or Dower because in
Islam has unfortunately been much misunderstood and is sometime misinterpreted
since it is either understood as a consideration made by the man to the women
as bride-price or dower, but in reality, is none of these. A close definition
has been forwarded by the Kifayah and Hedayah in the Fatawa-i- Alamgiri as not the exchange or
consideration given by the man to the women, but an effect of the contract
imposed by law on the husband as a taken of respect for its subject, the women. It is the token of respect for its subject of
the husband for his wife. Other objectives are to impose an
obligation on the husband as a mark of respect of the wife; to place a check on the capricious use of divorce on the part of
husband; and 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 .And my aim is that what Muslim Law
confers upon a wife or a widow the following rights to compel the husband for
payment of her dower:
[B]
Statement of Problem.
The main problem is
fixation of Mahr or Dower i.e. Muslim law givers
do not fix any minimum or maximum amount of Mahr or Dower. The Indian Ulama recommended in a seminar that Mahr (dower) should be fixed in terms of
gold or silver so that the rights of women are fully protected in the event of
fall in the values of currencies. The Indian Ulama recommended in a seminar that Mahr (dower) should be fixed in terms of
gold or silver so that the rights of women are fully protected in the event of
fall in the values of currencies. In India, the value of ten dirham’s is between Rs. 3-4. Thus, the minimum
of Mahr in both schools is nominal. The
peculiar feature of Muslim law of Mahr is that no maximum amount of Mahr is prescribed, and, therefore,
a husband is free to fix any amount of Mahr, even though
it is beyond his means or ability to pay or earn. Whenever a claim is made to
enforce the payment of the amount of the dower, the Court ordinarily awards the
entire amount stipulated in the contract. It is surprising that under either
statute, the Court has no power of raising the amount of Mahr if it finds it to be too low,
 |
| QUESTION & ANSWER |
[C] Research Questions.
This research work is
done on the topic of “ Widow’s Right to Hold Possession of Her Husband’s
property on Non-Payment of Dower is Heritable & Transferable- Critically
analyses with the help of Judicial Pronouncement “The basic object behind
making this paper on this topic is to get knowledge in regard to trace out the
historical background of the issue. The question that comes to mind is that.
(1) What is Personal Law?
(2) What is the Personal Law Applicable in Our Country?
(3)What is Mahr or Dower? What is the importance of Dower?
(4) What is Prompt Dower? When Dower is payable?
(5) What are the Rights of the Wife when her Dower is not payable by her
Husband?
[D] Method of Research.
“Methodology”
implies more than simply the methods the researcher used to collect data. It is
often necessary to include a consideration of the concepts and theories which
underlie the methods. The methodology opted for the study on
the topic may be Doctrinal or Empirical.
Doctrinal research in law
field indicates arranging, ordering and analysis of the legal structure, legal
frame work and case laws by extensive surveying of legal literature but without
any field work.
Empirical research
in law field indicates field visit and collection of surveys and other
materials by various means which include some questionnaires and other
interaction based methods which the researcher is free to adopt.
ANNEXURE – V
TABLE OF CASES
ü Maina
Bibi v. Chaudhary Vakil Ahmad AIR 1924 52 IA 145
ü Adul
Kadir vs. Salima ILR 1886 8 ALL 149
ü Rabia
Khatoon vs. Mukhtar Ahmed AIR 1966 ALL 548
 |
| CHAPTER ONE |
CHAPTER
– I
INTRODUCTION
INTRODUCTION
Muslim Law
confers upon a wife (or widow) the following three rights to compel payment of
her dower and they are (1) Refusal to cohabit (2) Right to dower as a debt and (3) Right to retain her deceased husbands’
property. Under the Muslim Law, Mahr
(dower) means money or property which the wife is entitled to receive from
the husband in consideration of the marriage but this consideration is not the
same as that of the civil contract. Dower is an obligation imposed upon the
husband as a mark of respect for the wife. The major object of the dower is to
provide wife 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. Mahr has also been considered as the part of maintenance
while fixing the amount of maintenance under Section 125 of Criminal Procedure Code, 1973.
Since there
is no clear cut definition as per Muslim Personal Laws regarding the dower
(Mahr) amount, different High Courts and Supreme Court of India in different
cases rendered different conceptions relating to Mahr. "Dower in the present form was introduced by the Prophet Mohammad and made obligatory by him in the case of every
marriage. According to Muhammadan law, marriage is a civil
contract, and dower is a necessary result of it, being a part of the consideration of her agreement to
become her husband’s wife by consummating the marriage. The right to dower is an inherent right of every Muslim wife. But,
unless this right is effectively enforced, it is of no use to her.
Right of retention means that the woman, whose marriage has been
dissolved, by death or divorce, has a right to continue to hold the possession
of her husband’s property till her dower-debt is satisfied. The right of
retention of the possession of her husband’s estate is not available to a wife
during the subsistence of the marriage, unless she proves a contract under
which she has acquired a right of lien or possession over her husband’s
property.
The right of retention only entitles her to
remain in possession, and, if dispossessed, she can sue for the recovery of
possession. In such a case, in respect of immovable property, the period of
limitation is six months from the date of dispossession, and in respect of
movable property, three years from the date on which she first learnt in whose
possession the property was.
The title in the property vests in the
heirs, including the widow. The widow’s right as heir should not be confused
with her right of retention which is different and distinct from the former.
As an heir, she has the rights and remedies
of an heir, which are distinct from the rights and remedies of a widow whose
dower has not been paid. India being a secular country entitles each citizen to
be governed by her Rights of Women under the Personal Laws in India n his Personal Laws based on the religion that she/he
follows inter alia in the matter of marriage and divorce, maintenance, adoption, custody of children and inheritance.
These laws are ‘Personal Laws.’
 |
| CHAPTER TWO |
Chapter
II:
PERSONAL LAW
[2.1] what is Personal Law
It is a distinct set of
laws that reflect different religious laws, customs and traditions of the
community to which the law in question applies. In a larger perspective
Personal Law relates to family matters. These laws may be codified or
un-codified and govern all family relationships such as marriage, divorce, maintenance, guardianship, adoption, custody of children, inheritance and succession. Till today,
marriage is regulated by customs and traditions to a large extent.
[2.2] Where are the Personal Law Applicable in our country
Laws governing Hindus
• The Hindu Marriage
Act, 1955
• The Hindu Adoptions
and Maintenance Act, 1956
• The Hindu Minority and Guardianship Act,
1956
• The Hindu Succession Act, 1956
Laws
governing Muslims
• The Kazis Act, 1880
• The Muslim Personal
Law (Shariat) Application Act, 1937
• The Dissolution of Muslim Marriages Act,
1939
• The Muslim Women (Protection of Rights on
Divorce) Act, 1986
• The Muslim Women (Protection of Rights on
Divorce) Rules, 1986
Laws
governing Christians
• The Indian Christian
Marriage Act, 1872
• The Divorce Act, 1869
(Prior to the amendment in 2001, this Act was called the Indian Divorce Act,
1869)
• The Indian Succession Act, 1939
Laws
governing Parsis
• The Parsis Marriage
and Divorce Act, 1936
• The Indian Succession Act, 1939
Secular/Universal
Laws governing all citizens irrespective of the religion they follow
• Special Marriage Act, 1954
• Guardians and Ward act, 1860
• The Protection of Women against Domestic
Violence Act, 2005
• Section 125, Code of Criminal Procedure,
1973
2.3] what is Mahr or Dower? & what is the importance of Dower?
Dower is the sum of
money or property, which a Muslim wife is entitled to get as a token of respect
towards her Muslim marriage, is like a contract of sale in which wife is the
property and dower is the price. It is the portion of deceased husband’s real
property allowed to his widow for her life time.
The
Object of Dower- The object of Dower is as under-
• To impose an
obligation on the husband as a mark of respect to the wife.
• To play such check on
the careless use of divorce by the husband.
• To provide
subsistence after the dissolution of her marriage either by the death of the
husband or by divorce.
(MAHR)
Mahr, a payment that a husband is required to make to his
wife at the time of an Islamic marriage or, failing that, in the event of a divorce.
(IMPORTANCE
OF DOWER IN MARRIAGE)
Dower/Mahr
in Islam is necessary for a lawful marriage that if it were not mentioned at
the time of the marriage the law will presume that the marriage did not take
place. It is an essential ingredient under Muslim Law to such an extent that
even when it is unspecified at the time the marriage is contracted it must be
adjudged on definite principles. If there is an agreement between husband and
wife that the wife will not claim dower/Mahr such an agreement is void and the
right to dower remains in spite of such an agreement. If the wife dies before
the payment of the dower, her legal representatives are entitled to the dower
amount.
[2.4] what is prompt Dower? When is Dower Payable?
Prompt Dower-
prompt dower is payable on demand. It may be demanded by the wife even before
the consummation of marriage takes place.
*If
the husband sues the wife for restitution of conjugal rights (the rights, especially to sexual
relations, regarded as exercisable in law by each partner in a marriage.)
before the consummation of marriage the non-payment of prompt dower is a
complete defense to the suit.
WHEN DOWER IS PAYABLE -In
the case of prompt dower, the husband has to pay the dower amount as the wife
makes a demand for it whether the marriage has consummated or not. If any delay
is caused in the payment of the dower, the wife is entitled to get interest for
the period during which the dower has been unpaid. The wife may also refuse
consummation till the husband pays the prompt dower. In deferred dower, the
husband pays the dower after the occurrence of a particular event i.e. either
on dissolution of marriage or upon the death of husband. The husband in either
case has to pay the amount soon.
The
dower amount may or may not be forfeited by the wife against her husband.
 |
| CHAPTER THREE |
Chapter
III
RIGHT
OF THE WIFE IF NON – PAYMENT OF DOWER
[3] what is the Right of the Wife if Non – Payment of Dower?
The Muslim Law confers
upon a wife or a widow the following rights to compel the husband for payment
of her dower:
· Right
to dower as debt: Unpaid dower is like
an unpaid debt. It is enforceable by the wife by filing a suit in the Court of
Law. If the husband is not alive, the wife is allowed to recover this amount
from the legal heirs of the husband.
· Refusal
to co-habit: If the marriage has not been
consummated, the wife has a right to refuse to cohabit with her husband so long
as the prompt dower is not paid. In the case of a wife who is a minor or an
insane, her guardian has right to refuse to send her to her husband’s house
till payment of prompt dower. During her such a stay in her guardian’s house
the husband is bound to maintain her. The absolute right of the wife to insist
on payment of the prompt dower, before giving him the access to her, is lost
after the consummation of the marriage. After consummation the husband in his
suit for restitution of conjugal rights upon her refusal can secure only a
decree conditional on payment of dower. It was held in Adul Kadir v. Salima
ILR 1886 8 ALL 149, that the effect of non-payment of prompt dower is that
the wife can refuse to cohabit or refuse to live with husband.
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. If the minor wife is already in the custody of her
husband, such guardian can take her back on the ground of non-payment of prompt
dower. It was held in Rabia Khatoon v. Mukhtar Ahmed AIR 1966 ALL 548.
· Right to retain: After the death of husband the most
effective method of enforcement of dower is the exercise of ‘right of retention’. A widow, whose
dower remains unpaid, has a right to retain the properties of the husband till
her dower debt is satisfied. This right is termed as the right of retention in lieu of
unpaid dower and it is available to a widow, whether there is any
agreement between the parties for this right or not. Under this right if a wife
has taken possession of her husband’s properties lawfully (with free consent of
the husband) in lieu of unpaid dower, then she is entitled to retain that
possession after the death of her husband, until her dower is paid out of the
properties retained by her. This right is exercised against the creditors, if
any, of her deceased husband, and his legal heirs. The legal heirs of the
husband cannot get possession (and benefit) of the properties of the deceased
until they make payments towards unpaid dower in proportion of their respective
shares. Thus, this may be said to be a coercive method of recovery of unpaid
dower from husband’s legal heirs.
[3.1] The Following Features of Right
to Retain Possession Must Be Noted.
(1) No right of retention during continuance of marriage – The right
comes into existence only after the death of her husband, or if the marriage is
dissolved by divorce, immediately on such divorce, but not before.
Thus, if a creditor of the
husband obtains a decree against him and the husband’s property is sold in
execution in his lifetime, the wife has no right of retention against a
purchaser in execution of the decree and she must deliver possession to him.
(2) Actual Possession – The right of
retention means the right to continue in the possession of the husband’s
property after termination of marriage (either by divorce or by death) until
the satisfaction of the dower debt. It is, therefore, necessary for the
exercise of this right that the wife or widow must be in actual possession of
the property at the time of the termination of marriage. It she was not in
actual possession of the property at this time, she cannot afterwards acquire possession of the
husband’s property in lieu of this right.
The right of retention is the right to retain possession of the
property which was acquired by her during the subsistence of marriage. It is,
therefore, not a right to obtain possession.
It is also necessary that
the wife should have obtained possession of the property lawfully and without
force or fraud.
(3) The right of retention not analogous to a mortgage – The woman has
no interest in the property, as mortgagee has under an ordinary mortgage. 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 retention does not arise from any such
agreement but is conferred on her by law.
(4) 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.
[5] A
possessory lien on property is no title. –
[1]
She is to satisfy her claim for dower with the rents and profits accruing from
the property.
[2]
The right of retention does not give her any title to the property. The title
to the property is in the heirs, including, of course, the widow.
[3]
She cannot alienate the property by sale or mortgage to satisfy her dower. If
she alienates the property, it is valid to the extent of her own share and not
of the shares of other heirs of her husband.
If she delivers possession
thereof to the alienee, the other heirs become entitled to recover immediate
possession of their shares unconditionally, that is, without payment of their
proportionate share of the dower-debt. The widow is not entitled on the
alienation being set aside, to be restored back possessions. By giving up
possession thereof and whether she loses her right to the dower. However, if
the widow is disposed by the heirs of the husband or their transferees, she can
recover possession only by instituting a suit under Section 9 of the Specific Relief
Act, that too within 6 months of dispossession, failing which she would
lose her right to recover possession. In case she is dispossessed by a
trespasser, she can sue with 12 years
under Article 12 of the Indian Limitation Act.
In the leading case of Maina Bibi v.
Chaudhary Vakil Ahmad [1924] 52 IA 145
The 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.
[6] Widow in possession liable to account
A widow in possession of
her husband’s estate is bound to account the other heirs of her husband for the
rents and profits received by her out of the estate while she is herself
entitled to charge interest on the dower due to her and to set it off against
the net profits. It was held in Shaikh Salma vs. Mohammad Abdul Kadar, AIR
1961 A.P 428 , that “widow in possession of her husband’s property in lieu
of dower debt is liable to account to other sharers of income from such property,
in her possession”.
[7] Can Sue Heirs.
The widow is not
disentitled to sue her husbands’ heirs for the recovery of her dower out of his
assets on the ground that she is retaining the property.
[8] The Right of Retention
whether heritable or transferable.
There is a conflict of
judicial opinions whether the widow’s right to hold possession is transferable
and heritable.
1. One view is that the
right is personal right and not a lien and it cannot therefore be transferred
by sale , gift or otherwise, nor can it pass to her heirs on her death.
2. The other view is of the
Mysore High Court that the right to hold possession is the right both heritable
and transferable. Such right to retain possession can also be exercised by her
heirs without expressing any opinion whether it is also transferable.
3. In another case of the
Allahabad High Court it has been held that it is both transferable and
heritable.
[3.2]
Difference between Sunni & Shia Laws Relating to Dower.
Sunni
Law –
1. A minimum limit of 10 dirham’s is
prescribed for specified dower.
2. There is no limit to proper dower.
3. There is no maximum limit for specific
dower.
4. If marriage is dissolved by death and
dower has not been specified, or it is agreed that no dower shall be payable,
proper dower would be due whether the marriage was consummated or not.
5. An agreement that
no dower shall be due is void.
6. In the absence of an agreement only a
reasonable part of the dower is presumed to be prompt.
Shia
Law –
1. No minimum limit is prescribed.
2. Proper dower cannot exceed 500 dirham’s.
3. Fixing of dower exceeding 500 dirham’s
is considered abominable (Unequivocally detestable) though not illegal.
4. In such case no dower would be due if
the marriage was not consummated.
5. Such agreement by sane and adult wife is
valid.
6. The whole dower is presumed to be
prompt.
[3.3]
Effect of Apostasy on Dower.
The effect of dissolution of marriage under
a decree of the Court is regulated by statute. According to Section 5 of the
Dissolution of Muslim Marriage Act, 1939, a married Muslim woman shall have
same rights in respect of Doer after dissolution of marriage under the Act as
she may after dissolution of marriage by way of talaq, fasqh etc. Under Muslim
Law. Hence a Muslim woman whose marriage is dissolved under the aforesaid Act
not the ground of apostasy of the husband is entitled to dower. The dissolution
of marriage under the Act, even though made after apostasy of the wife, does
not take away her right to dower and she is entitled to half dower even if the
marriage is not consummated.
[3.4]
Suits for Dower and Limitation.
If the dower is not
paid, the wife and after her death, her heirs may sue for it. The period of
limitation, according to Article 113 of the Limitation Act, for a suit to
recover prompt dower is three years from the date when the Dower is demanded,
refused; or where during the continuance of the marriage no such demand has
been made, when the marriage is dissolved by death or divorce, In case of
deferred dower, the period of limitation is three years, from the date when the
marriage is dissolved by death or divorce, Where, however, prompt dower has not
been fixed, a demand and refusal is not a condition precedent for filing a suit
for the recovery.
[3.5] Amount of Dower
& Condition of Payment
1. (A) Where the amount of the Mahr has
been fixed by agreement, and the marriage has been consummated or either party
has died - the whole of the 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).
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.
[3.6] Kharche-i- pandan.
The Kharchi-i-pandan literally means betel
box expenses and is a personal allowance to the wife customary among f Muslim
families of rank especially in upper India. It is also called an allowance for
mewakhori (eating fruits. When the parties are minors, the contract is made
between the respective parents and in such a case the wife as beneficiary is
entitled to enforce it. Moreover this is fixed either before or after marriage
and according to the means and position of the parties Muslim jurist have
compared Kharche-i-pandan to ‘pin money’ found in English Law. But there is
some difference in the two. The Kharche-i-pandan is payable to the wife so long
as she lives with her husband and she can spend the same without any control of
the husband. The ‘pin money’, however, is spent during covertures with the
advice and at the instance of the husband.
 |
| CHAPTER FOUR |
Chapter IV
CASE STUDY
Case
Study
[4] Sikandar Ara vs. Hussan Ara. AIR 1916 Oudh 136.
[A]
Provision of Law
Possession
of the husband’s property can continue after husband’s death or divorce until
the Mahr is recovered.
[B]
Fact of the Case
One Muinuddin died in
1890 leaving immovable property, Maina Bibi was his widow. In 1902 the
respondents instituted a suit against the widow for immediate possession of
their shares of the estate. The widow pleaded that the estate was gifted to her
by her husband and alternatively that she was entitled to possession until her
dower was paid.
[C]
Issues Involved
In 1907 Maina Bibi executed two deeds of
gift of her husband’s estate in favor of some donees to whom she gave
possession. The terms of the deeds showed that the widow purported to convey an
absolute title to the donees. The respondents filed the present suit in 19515
against the widow, Maina Bibi and her alinees, the appellants. The respondents
claimed that the widow, could not, according to Muslim Law, transfer the
properties over which she had only right or retention until 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
[D] Judgment Referred by the Court
The
Trial Judge in 1903 passed a decree for possession in favour of the respondents
on condition that they paid to the widow Rs. 25357 within six months and the
decree provided that in default of payment the suit should be dismissed. The
respondent did not pay the money and the widow continued in possession.
[E] Maxim Used – res judicata - a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties.
[F] Judgement
Their Lordship
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 (The right to take another's property if an
obligation is not discharged), nor a mortgage, usufructuary (Someone who holds
property by usufruct) - A legal
right to use and derive profit from property belonging to someone else provided
that the property itself is not injured in any way or other.
[G] Own Observation
The
widow who holds possession of her husband’s property until she has been paid
her dower has no estate or interest in the property as has mortgagee under an
ordinary mortgage. She has no right to alienate the property by sale, mortgage,
gift or otherwise.
[4.1] Abdul Kadir vs. Salima ILR
1886 8 ALL.149
[A]
Provision of Law
The absolute right of
the wife to insist on payment of the prompt dower before giving him the access
to her, is lost after the consummation the of the marriage.
[B]
Fact of the Case
The effect of non-
payment of prompt dower is that the wife can refuse to cohabit or refuse to
live with the husband. If the husband sues her for restitution of conjugal
rights before sexual intercourse takes place, non payment of dower is a
complete defence to the suit, and the suit will be dismissed.
[C] Judgments
The judge ruled that
the payment of dower is not a pre-condition to husband’s right to cohabit with
the wife. Both the rights (of dower and cohabitation) come into existence
simultaneously once a marriage contract is concluded.
[D]Own Observation
“The right of dower
does not precede the right of cohabitation which the contract of marriage
necessarily involves but that the two rights come into existence simultaneously
and by reason of the same incident of law. The right of the wife to claim
maintenance from her husband arises in the same manner as one of the legal
effect of marriage
[4.2]
Rabia Khatoon vs. Mukhtar Ahmed AIR 1966 ALL 548
[A]
Provision of Law
Whether a Mohammedan
wife has a right to refuse to go to her husband if her prompt dower is not paid
even though the marriage had been consummated with the consent of the wife
before the date of the refusal.
[B]
Fact of the Case
Two suits were filed,
one by Rabia Khatoon against her husband for dissolution of marriage and the
other by Mukhtar Ahmad against the wife for restitution of conjugal rights. The
marriage took place in 1948 and was consummated with the consent of the wife.
In 1951, a child was born to them after which the wife went to live in her
father’s house. The respondent went to bring his wife back but she refused to
come back. No maintenance allowance was paid by the husband to the wife since
1951 and the suits giving rise to the present appeal were filed in 1956. In the
suit filed by the wife it was alleged that the husband had not paid her prompt
dower which was settled at Rs. 5000; that she continued to perform her marital
relations with her husband for over two year and a child was born to them; that
the husband treated her cruelly compelling her to take shelter in her father’s
house. She alleged that her husband had failed to maintain her during all these
years and had not paid her prompt dower. The husband denied that he had treated
his wife with cruelty. He alleged that the dower payable to the wife was
deferred dower and it was only Rs. 500. Similar pleas were raised by the
parties in the counter suit filed by the husband for restitution of conjugal
rights.
[C] Judgments
The lower courts held
that it was not established that the husband committed physical cruelty upon
his wife or that she was forced to leave her husband’s house due to his ill
treatment. They further found that the dower was prompt dower and it was Rs.
5000 and that the husband had not paid the dower amount to the wife. On the
question whether the husband had neglected to maintain his wife, it was found
as a fact that the husband had not paid any maintenance amount to the wife ever
since she had left his house.
The lower appellate Court was of the
opinion that the wife having admitted the husband to sexual intercourse she was
not entitled to refuse to live with him and that non-payment of dower could not
be a good defense to the suit for restitution of conjugal rights. Thus, the
Court decreed the husband’s suit for restitution of conjugal rights subject to
the payment of Rs. 5000 as prompt dower, while the suit of the wife for
dissolution of marriage was dismissed on the ground that she could not deny herself
to the husband after consummate
 |
| CHAPTER FIVE |
Chapter
V
CONCLUSION
Conclusion
The
dower rights have been existed in any nations in one form or the other
including Arabs. However, the concept of dower rights was refined by God and
his prophet Muhammad. Islam makes
dower obligatory whether written in the marriage certificate or not. A dower
may be specified or proper. However, dower rights become payable on divorce or
death of husband if not paid immediately after marriage. Dower rights of women are mandatory in any Muslim marriage. In Arabic
language it is called Mahr, or Meher. It is a gift which becomes payable to
wife immediately after marriage but before sexual intercourse. It is not
essentially to be money but can be any valuable thing like property, ornaments
or anything else which is agreed between the Muslim marriage partners. It is in
fact a financial gain which the wife receives as a respect by virtue of the
marriage contract itself.
However, it is not a ‘bride price’ in any sense.
The main difference between a dower and bride price is that former is paid to
the wife while the later is paid to the parents. You can understand that the
wife is not selling anything to the husband. It is just a token of respect and
a part of financial rights of the women in Islam.
It is generally supposed that the main object of
dower in Muslim marriage is to offer protection to the wife against the
arbitrary powers of the husband in exercising the right of divorce. However, it
was neither goal of the dower nor intended by Quran. When procedure of Quran
for divorce is followed the arbitrary powers assumed by husband in exercising
the right of divorce become minimal. On the other hand the dower rights are
always obligatory.
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