Muqit Sakhi: Subject: family law

Topic: Dower

Table of content

Definition of dowry........................................................................ (1)

PENALTY FOR DEMANDING DOWRY …........................................... (2)

Transfer of dowry to the bride …………..................................... (2)

Dowry offences are partly cognizable............................. (3)

Dower ……………………............................................... (3)

Definitions …………………………......................................................................... (4)

Quantum of Dower........................................................................... (4)

Classification of dower ………………............................. (5)

Confirmation of dower........................................................................................ (7)

Remission of dower ……...................................................................................... (8)

Right of Retention …............................................................................................ (9)

Conclusion................................................................................ (10)

DEFINITION OF "DOWRY".- Under the Dowry prohibition Act, 1961-86, Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-

(a) By one party to a marriage to the other party to the marriage; or

(b) By the parents of either party to a marriage or by any other person to either party to the marriage or to any other person;

at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

It should be noticed that the act uses the word “dowry” not merely in the sense of what bride’s parents give to the bride and bridegroom but also the other way round. In other words, if property or valuable security is given by bridegroom to the bride or bride’s father in connection with the marriage of the parties, it would also covered in the definition of dowry. In the definition as laid down in the original Act the words were “as consideration for marriage” which has been substituted with words in “in connection with the marriage”. But wedding presents, whatever is their value, are excluded from the purview of dowry. It would have been better to say “whatever does not constitute wedding presents constitute dowry”.

Two safeguards against the abuse of “presents” are laid down:

(A) All presents made to the bride or bridegroom at the time of marriage (but not those given before or after marriage) are to be put in a list, and

(B) Such present should be commensurate to the financial status of the giver.

Giver, taker and demander of dowry offenders

Section 3 (2) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.

4. PENALTY FOR DEMANDING DOWRY.-If any person demands directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which may extend to ten thousand rupees:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.

Transfer of dowry to the bride

It may be that dowry has actually been received but its receiver is not the bride, but either the husband or some other person or someone from among the in laws, in such a cases the act lays down that dowry has to be transferred to the bride.[1] When any person has received dowry at before or after the marriage, he must transfer the same to the bride within three months of its receipt.[2] If dowry was received when the bride was a minor then it must be transferred to her within three months of her attaining majority. Pending such transfer, he would hold the dowry as a trustee for the benefit of the bride. The failure to transfer the dowry to the bride within the stipulated period constitutes a dowry offence, for which the offender is liable to be awarded the same punishment as the taker of dowry, and in his case the court has no discretion to reduce the punishment below the minimum under any circumstances whatever. This punishment will be in addition to the one which may be awarded to him as taker of dowry, since both are separate offences. If the bride dies before the transfer of dowry is affected, her heirs will be entitled to it.

If the woman dies within seven years of her marriage, the property will go to her children, and in their absence, to her parents.

Dowry offences are partly cognizable

Neither the original Act not the Amending Acts have made the dowry offences as cognizable, but nonetheless, these offences have been made cognizable for the purpose of investigation. This is a welcome provision, since in the case of non-cognizable offences the police makes the investigation only when a complaint is lodged. Now the police has the freedom to make investigation of its own, and if it comes to the conclusion that as offence has been committed it can approach the court. The act lays down no person accused of dowry offence can be arrested without a warrant or without an order of the magistrate, first class.

The dowry offences are non compoundable offences. This means once case goes to the court, the parties are not free to compromise.

An agreement for giving or taking dowry is void; it cannot be enforced in a court of law.

Dower

Dower or mahr is a peculiar Muslim law concept. Historically, the idea of sale is latent in the notion of mahr. In the pre-islamic era, in beena form of marriage, the woman, on her marriage, did not accompany her husband but remained at her own house, where the husband visited her. As part of the marriage contract, he made a gift to his wife. This gift was known as sadaq. In baal, the other prevalent form of pre-islamic marriage, the woman accompanied her husband after her marriage, and in consideration of wife’s leaving her parents home, the husband paid a sum of money to her parents. This sum of money was known as mahr or dower and was likened bride- price. On the spread if Islam in Arabia, marriage was reformed and sadaq-mahr was combined into one and became a sort of marriage settlement for the wife. In the modern law mahr is something in the nature of a nuptial gift which a Muslim husband undertake to make to his wife. It is an integrated part of Muslim marriage, probably; it is also used as a deterrent to Muslim husband’s absolute power to pronouncing divorce on his wife.

Definitions

Mulla defines dower as a “sum of money or other property which the wife is entitled to receive form the husband in consideration of marriage”. Explaining the reason for preference of the use of the expression “consideration” by Muslim doctors, Mahmood, J. observed, “mahr has been compared to the price in a contract of sale because a marriage is a civil contract and sale is a typical contract to which Muslim jurists are accustomed to refer to by way of analogy. It is submitted that dower is not a consideration proceeding form the husband for the contract of marriage, but it is an obligation imposed by law on the husband.

Non specification of dower doe not renders a Muslim marriage void. It is an integral of marriage, and it may be fixed either before, at or after the marriage. In case it is not fixed by the parties, it is implied an every marriage, and is usually fixed by the courts. Such importance is attached to dower that even if a wife enters into a stipulation in the marriage contract that she abandons her claim to dower, such stipulation is void and the wife will, nonetheless, be entitled to proper dower.

Dower, when fixed by mutual consent after the marriage is known as mahr-i-tafweez, when fixed by the court, it is known as mahr-i-takkim. When dower is fixed by an agreement it is known as specified dower and when it is determined by operation of law it is known as proper dower.

Quantum of Dower

The peculiarity of the Muslim concept of dower is that no school of Muslim law fixes the maximum amount of dower. Even the minimum amount of dower is not fixed except by the Hanafi and the Malikis. The Hanafis fix the minimum amount at ten dirham’s, and the Malikis at three dirhams (one dirham is equivalent to 30 to 40 paise.) since no maximum amount of dower is prescribed, Muslim couple may fix any amount of dower even an amount which is evidently much beyond the means of the husband. Sometimes, dower is deliberately fixed at a bery high figure so that it acts as a deterrent on husband’s power of divorce. And in such a case the husband is not allowed to plead equity. However, Oudh laws Act, 1876 and the jammu and Kashmir state muslim dower act, 1920 lay down that the court may not award the stipulated dower of it considers reasonable with reference to the means of the husband and the status of the wife. But Muslim law (including these statues) does not empower the court to increase the amount of dower if it is fixed at too meager a figure.

Usually dower is fixed in terms of money but it may be as well any type property, anything which falls within the meaning of mal and has value. Thus, instruction in the Koran, a prayer carpet, land or house may form the subject matter of dower. No writing is required, though usually a written deed, known as Mahr-nama (dower- deed) is executed.

Classification of dower

As has been seen, dower is usually classified under two heads:

(A) Specified dower, i.e., fixed mutual agreement of the parties;

(B) Proper dower or customary dower, i.e. arising by the operation of law

Specified dower:___ the specified dower may be fixed by parties to the marriage or if the son is minor, by the father. The Hanafis take view that the amount fixed by the father is binding on the son, and the father is not liable personally or as surety for his son[3], and the father is not liable if son has no means.[4] Under the Hanafi law, the wife is entitled to receive the minimum amount of dower, even if she has agreed to receive less. Under the Shia law and the Shafii law, the wife is entitled to receive only the amount fixed under agreement whatever may be its quantum. Under the Ithana Ashari law, an adult woman, who is not of weak or facile disposition, has power not to receive any or to forego the entire amount of dower.

Sometimes for the purpose of glorification of the husband a large sum of dower is announced in public, but, in fact a moderate amount is fixed in private. It is the amount fixed in private which is the real and realizable dower.

The specified dower is usually in two parts:

(A) Prompt dower, and

(B) Deferred dower

Prompt and deferred dower.__ ordinarily what portion of dower is prompt and what is deferred is fixed under the agreement. It is usual to fix one half as prompt and the other half as deferred. But parties are free to put it in any proportion and they may stipulate that the entire amount will be prompt or deferred. If at the time of marriage no stipulation is made as to which part is amount is prompt and which part is deferred, the Shias take the view the entire amount is prompt while the hanfis hold that one part should be treated as prompt and other deferred.

The Madras High Court has expressed the view that in the absence of any stipulation as to which part is prompt or deferred, the entire amount should be treated as prompt irrespective of the fact whether parties are Shias or Hanafis.[5]

The main distinction between the two is that the prompt dower is payable and realizable at once after the solemnization of marriage on demand, and the wife has the right to refuse conjugal relationship to the husband till the prompt dower is paid. On the other hand, deferred dower is payable either on the expiry of some specified period or on the happening of a specified contingency or in every case on the dissolution of marriage, by death or divorce.

A wife whose prompt dower has not been paid has the right to refuse to live with her husband; she may not admit him to sexual intercourse. Non- payment of prompt dower is a complete defense to husband’s suit for restitution of conjugal rights. However, if consummation of marriage has taken place with the consent of the wife, the husband’s suit for restitution of conjugal rights cannot be defeated on the ground f non-payment of dower.

Proper dower

Dower being the integral part of Muslim marriage even when dower is not stipulated in the marriage contract, the wife is entitled to what is known as proper or customary dower; Mahr-i-misl or mahrula-mithl. The wife is entitled to proper dower even when at the time of marriage she had agreed to receive no dower. The proper dower is fixed by the court, having regard to the nobility of her birth, the beauty of her person, and the custom of her female relations. In other words, proper dower is fixed on the basis of custom prevailing on the side of the wife and not husband. According to the Hanafis, the proper dower should be fixed with reference to the social position of wife’s fathers, her own personal qualifications are at par ( as far as possible) with the amount of dower given to her female paternal relations, such as consanguine sisters’ or paternal aunts. In fixing the amount of proper dower, husband’s social position or status is not taken into consideration. The Shia authorities take the view that proper dower cannot excee 500 Dirhams. The Shias hold that if either party dies before the consummation of marriage, neither any dower or present is due and payable. If at the time of the marriage contract, the fixation of the amount of dower is left to the husband, he is free to fix any amount. If, it is left to the wife, she cannot fix more than 500 dirhams. Among the Shias the property dower may be the dower of an equal, or mahr-in-sunnat, the amount of dower fixed for the prophet’s daughter Fatima which is 500 dirhams (Rs. 332.32 in Indian currency).

Confirmation of dower

According to the Hanafis law. Confirmation of dower takes place

(i) On valid retirement,

(ii) On the death of either party irrespective of the fact whether marriage has or has not been consummated. On the happening of either event dower vests in the wife. She can also assign it

Once dower is confirmed, it is vested in her and its forfeiture cannot take place, even on the basis of her gross misconduct such as adultery or apostasy. On her death, it devolves upon her heirs.

Among the Ithana Asharis and the Shafiis, the dower is confirmed either on the actual consummation of marriage or death of either party to the marriage.

In the event of parties separating without the confirmation of dower, according to the Hanafis, the wife is entitled to half of dower if it is specified, and if not specified, she is entitled to a present only and no dower, and that too if separation takes place on account of the husband. For instance, if the husband divorces an apostate or adulterine wife, since separation takes place on account of the wife, she will not be entitled to even a present. Where dower has been settled after the marriage but parties separate without consummation of marriage, the wife is entitled to a present only and to no portion of dower.

The Ithana Asharis are substantially in agreement with the Hanafis. However, they hold that if dower has been specified and separation takes place before the consummation of marriage, the wife is entitled to half of the dower, where dower is not specified and divorce takes place before consummation of marriage, the wife is entitled only to a present. The Shafiis seem to take the view that in every case of separation, where dower is not fixed, wife is entitled to a present.

According to the Hanafis, the quantum of present is to be fixed on the basis of custom of wife, while the Ithana Asharis hold the view it is to be fixed on the basis of means and status of the husband.

Remission of dower

Although the wife has on power to agree not to receive any dower at the time of marriage, she has the power to remit the whole or any part of the dower in favor of her husband or his heirs after the marriage. An adult and sane wife has power to remit the whole or any part of the dower even without consideration. There is some controversy among the high court’s as the weather age of majority should be governed by the Indian Majority Act or Muslim law.[6] Obviously the remission of the amount of dower should be with the free consent of the wife. Consent given in great mental distress, such as when her husband is on the death bed or has died, cannot be treated to be free consent.[7] Remission of dower is a unilateral act and acceptance of remission by the husband or his heirs is not necessary.

Remission of dower may be conditional. For instance, wife may agree to receive any annuity in consideration of her foregoing the dower.[8]

Dower __ its Nature and Mode of Enforcement

On confirmation, dower vests in the wife and she can recover it like an actionable claim, she also the power to assign it. In its nature dower is a debt but it is an unsecured debt. It being an unsecured debt, the wife has to stand in the queue along with others creditors of the husband. However, a wife who is in possession of her husband’s properties has power to retain them in her possession till her dower is paid.

Right of Retention

Right of retention is a right of Muslim wife to continue to be in possession of her husband’s property in those cases where dower has not been paid.

However, the right of retention is available when the marriage has been dissolved by death or divorce. During the subsistence of marriage the right of retention is not available to the wife, unless she has, under a contract, a right of lien or possession over her husband’s property. In the words of the Privy Council:

The possession of property being once peacefully acquired, the right of the widow to retain it till her dower debt is paid is conferred upon her under Muslim law. It is not exactly a lien, nor a mortgage.[9] In this case on the death of her husband in 1890, the widow entered into possession of her husband’s property. In 1902, some of the hires filed a suit to obtain possession of their share. The widow, inter alia, pleases that her possession was in lieu of her dower. In 1903, the trial court passed a decree in favors of the heirs on the condition that they should pay a certain sum of money together with interest to the widow towards her dower. But nothing was paid to her and she continued in possession. In 1907, she made a gift of the property which challenged by the heirs. The Privy Council observed that the widow has merely the right of retention of possession till she was paid, but has no right to alienate the property, or otherwise deal with it.

It is necessary that the widow should have come into possession of the property lawfully and without any force or fraud.[10] Following certain observations made by the privy Council in Hamira Bibi Vs. Zubaida Bibi [11] High courts differ on the point whether widow’s possession should be with the consent, express or implied, of the husband or his heirs or whether it could be otherwise also. It is submitted that in view of the nature of the rights of retention, the view that no consent is necessary is preferably particularly in view of the well established proposition that widow’s possession should be lawful and that she must have acquired it without force or fraud. Where a wife was in possession of her husband’s property during his life and continued in possession after his death, the presumption is that her possession is lawful.

Conclusion

Therefore I conclude that dower is an integrated part of Muslim community and it is also used as a determent to Muslim husband’s absolute power to pronouncing divorce on his wife. And I do agree with judicial interfere and judicial plays an important role in order dower is not specified.

Bibliography

1. Dr. Paras Diwan., Family law, 2005, Allahabad Law Agency, Delhi.

2. David Pearl , Family law and customary law in Asia: a contemporary legal perspective , Publisher Martinus Nijhoff Publishers, 1968

3. John L. Esposito, Natana J. DeLong-Bas, Women in Muslim family law, Edition 2, illustrated Publisher Syracuse University Press, 2001