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Chapter: One

INTRODUCTION      

The dower means some money or any property, in which there have right of wife from her

husband depend on their marriage contract. In the case of Abdul Kadir Vs Salima gives the best

description of the nature of dower by Mahmood J. Actually, women’s rights of dower made by

husband depend on two reasons, 1st is for islamic right and 2nd is for husband’s responsibility to

his wife. And for those reasons, it is said as Haque- e-Mahar in natural language. The Quran 

always order to paying off dower to his wife. There must will be paid off dower, even wife will

be slave-woman. Islam has legslated the giving of the dower by the husband to the wife in order

to please the woman’s heart and to honor her. It is also meant to bring an end to what was done

in the Days of Ignorance wherein she was wronged, explored, despised and robbed of her wealth.

The dower is a right exclusively for the wife.

1.1 Definition of Dower or Mahr or Sadka

Mahr or dower is a sum of money or offer property which the wife is entitled to receive from the

husband in consideration of the marriage.[2]

Mahr or dower is a sum that becomes payable by the husband to the wife on marriage either by

agreement between the parties or by operation of Law. It may either be prompt or deferred.

According to Wolson, “Dower” is a consideration for the surrender of person by the wife. It is

the technical Anglo- Mohammedan term for its equivalent “Mahr” in Arabic.

According to Ameer Ali, “Dower” is a consideration which belongs absolutely to the wife.

According to Dr. Jung defines, “Dower” as the property or its equivalent, incumbent on the husband either by reason of being agreed in the contract of marriage or by virtue of a separated contract, as special consideration of Buza, the right of enjoyment itself.[3]

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1.2 Root or Custom of Dower

Dower in the present form was introduced by the prophet Mohammad and made obligatory by him in the case of every marriage. “Dower” in Muslim law is somewhat similar to the demotion proper nuptials 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. The following points may be noted with respect to the nature of Dower.

Analogy is often drawn between a contract for dower and one for sale. The wife is considered to be the property and the dower her price.

It is regarded by some eminent authorities as a consideration for conjugal intercourse. In the case of  Smt. Nasra Begum v. Rigwan Ali, Allahabad High court expressed the view that the right to claim prompt dower proceeds cohabitation.[8]

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 the husband. The marriage is valid even though no mention of dower made by the contracting party. In Hassina Bibi v. Zubaida Bibi, [9]

Chapter: Two

CLASSIFICATION OF DOWER

Broadly, there are two kinds of dower:

(i) specified and

(ii) unspecified

2.1 Specified Dower

Specified dower is that dower which is fixed at the time of marriage or later on. There are provisions relating to dower under sections 13, 14, 15, 16 and 20 of the Kabinnama [Form-E] according to the Muslim Marriages and Divorces Rule 1975. When a husband agrees to pay to his wife a residential building or one lakh taka as mahr, it is an example of specified mahr.[12]

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2.2 The specified dower has been further divided into-

(a) prompt and

(b) deferred.

2.3 Prompt Dower (Muajjal Mahr)

 It is payable immediately after marriage on demand. According to Ameer Ali, a wife can refuse to enter into conjugal domicile of husband until the payment of the prompt dower. It was held in Rehana Khatun v. Iqtider Uddin, that the prompt portion of the dower may be realized by the wife at any time before or after consummation.[13]

In the case of Mahadev Lal v. Bibi Maniran[14] it was decided that prompt dower does not become deferred after consummation of marriage, and a wife has absolute right to sue for recovery of prompt dower even after consummation.

2.4 Deferred dower

It is payable on dissolution of mariage either by death or divorce. According to Ameer Ali generally in India dower is a penal sum with the object to compel husband to fulfill marriage contract in its entirety.

If the Kabinnama, the marriage contract deed, fixes the amount of dower but fails to show what portion of it will be prompt and what deferred dower, according to Allahabad and Bombay High courts the proportion between the two should be fixed on the basis of (i) position of the wife, (ii) custom of locality, (ii) total amount of dower, (iv) status of the husband.

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Chapter: Three

STANDARD OF DOWER AND CONDITIONS OR TERMS OF PAYMENT

3.1 Subject matter or object of Dower

The subject matter of dower is not only confined to a sum of money or property; it includes personal services and other things. According to a tradition, Amir- bin- Rabia said, “that a woman of the tribe of Bani Fazarah married on a settlement of a pair of shoes, and the prophet said to her ‘Are you pleased to give yourself and your property for these two shoes: she said, ‘Yes’. Then the prophet approved of the marriage.’’

The followings were recognised as the subject of dower:

A handful of dates (Abu Daud).

A pair of shoes (Tirmizi).

If the husband is a slave, his services to his wife (Mohit Sarkhsee).

The services of the husband’s slaves to the wife (Fatawa-i Alamgir)

Husband’s services rendered to the guardian of a minor wife (Durrul Muktar).

Teaching Koran to the wife (Tradition

3.2 Distinction between Dower & Dowry

One should not confuse between dowry and dower. Dowry payments are not a part of Muslim Legal tradition, while the dower or mahr is an integral element of Muslim matrimonial law. Dowry payments have been outlawed and criminalized in south Asia, where they still are a huge legal problem Dowry not being an element of traditional Muslim law, where it occurs, it is part of customary traditions.[18]

A dower is a woman’s right to marital property. It is her right to receive a part of the husband’s income or estate if he dies in the course of the marriage. Dowry however, is the woman’s property that she brings into the marriage when she gets married. The dowry law no longer exists in most of the states. Dower is a sum of money receivable by the wife from the husband as a consideration for the marriage, whereas dowry is an extra dower consideration payable by one party to the marriage to another on the plea of bringing equality in marriage. Taking or paying or abetting payment of dowry has been made punishable.[19

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3.2 Proper dower (mahr-i-mithl)

Its size is to be detemined in view of the socio-economic conditions of the parties involved. Particularly relevant will be the mahr paid to other female members of the wife’s family, for instance sisters, paternal aunts and female cousins.[16].

3.4 Contract of Amount of Dower in Marriage & Contract of Dower made by Father

The amount of dower may be fixed either before or after marriage[21] and can be increased after marriage.[22] It was held in Basir Ali v. Hafiz that the amount of dower may be entered into by the father of the bride.

3.5  Maximum & Minimum Amounts of Dower

The amount of dower or mahr varies in different countries; there is no fixed rule as to the maximum (mus’ab Settled a dower of 500,000 dirham or the granddaughter of Abu Bakre. The Prophet did not enunciate any fixed rule as to the amount of dower. He expressly left it to custom and local usages but as he appears to have settled 500 dirham upon Maimuna, the Shias consider that amount to b

These minimums have become obsolete and it is now customary in different countries to fix the amount of dower entirely by a consideration of the circumstances of the husband and wife the mahr-i-sunnat.

3.6 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 in favour of her husband or his heirs. A Muslim girl who has attained puberty is competent to relinquish her Mahr although she may not have attained majority (18 years) within the Bangladesh Majority Act.  The remission of the Mahr by a wife called Hibe-e-Mahr.

But the remission made by the wife, should be with free consent. It was held in the case of Nurunnessa v. Khaje Mahomed[26] that where the wife was subject to the mental distress

In has been held in a (Karachi case) Shah Bano v. Iftekar Mohammed,[27]  that in certain cases remission of dower cannot be upheld.

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Chapter: Four

NECESSITY & PURPOSE OR INTENTION OF DOWER

4.1 Historical Background of Dower

It is said that during pre-historic times man lived a barbaric life, which had the tribal form. For unknown reasons marriage was prohibited between a male and a female of the same blood. Hence the young men of a tribe, who wanted to marry, were compelled to choose their wives from some other tribe.

They often visited other tribes for this purpose. At that time man was not aware of his role in begetting children. He thought that the children belonged exclusively to their mother. When money became common, man discovered that instead of serving the bride’s father for years, it was better to present a suitable gift to him and take the girl immediately. That was the origin of the dower (mahr).

4.2 Importance or Purposes of Dower

According to our belief, the dower has come into being as the result of skilful arrangements, put into the very design of creation, to balance the relations between man and woman. The dower has come into being, because, by nature, the respective roles of man and woman are different from each other.

The dower is closely related to woman’s modesty and chastity. She knows by instinct that her self-respect demands that she should not submit herself freely.

That faculty of woman, has enabled her to maintain her personality throughout history; to compel man to come to her door-step as a suitor; to lead man to rivalry and even to fight for her sake; to maintain her modesty and chastity as her hallmark; to keep her body hidden from the gaze of man; to inspire man to love to perform feats of bravery, as a sacred asset; to excel in intellectual and creative deeds; to sing amorous songs and to submit to the weaker sex in humility.

Hence this tendency has impelled bridegroom to offer his bride a present at the time of marriage as the dower.The dower is a part of the natural law, which has been promulgated by nature itself. [30].

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4.3 Difference between Sunni & Shia Law Regarding Dower

4.4 Sunni Law

A minimum limit of 10 dirhams is prescribed for specified dower.

There is no limit to proper dower. There is no maximum limit for specific dower.

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.

4.5 Shia Law

    No minimum limit is prescribed.

   Proper dower cannot exceed 500 dirham’s.

    Fixing of dower exceeding 500 dirhams is considered abominable though not

    illegal.

    In such case no dower would be due if the marriage was not consummated.

    Such agreement by sane and adult wife is valid.

    The whole dower is presumed to be prompt.[31].

Chapter: Five

DIFFERENT SITUATIONS WHICH AFFECT THE RIGHT OF DOWER IN WOMEN’S LIFE

5.1 Remission of Dower by Wife

 The wife who has attained puberty may remit the dower or any part of it in favour of the husband or his heirs. The remission would be valid although made without consideration. But it is valid only when made by a written instrument.

5.2 Dower Payable after Consummation of Marriage

Consummation confirms or perfects the dower. So that after consummation or valid retirement a woman has a right to her dower if a separation should take place and it does not matter whether the cause of separation his in the husband or the wife.32

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5.3 Right of widows about dower

Dower is like a debt and it is a unsecured debt. It is not make any charge on  husband property. The wife is entitled along with other creditors, to have it.

5.4 Effect if there are not paying off dower

When  wife  demand  her  dower,  if t hen  husband  cannot  pay-off   her  dower,  wife then  can  refuse  to  make  consummation  with  her  husband  before  paying off  dower.

5.5 On account of Dissolution of Marriage

5.5.1 Dissolution of Marriage by Talaq

If the marriage is dissolved by exercising the right of talaq by the husband then the wife is entitled to the full dower and Iddat money. But in practice, we will later see that this is rarely observed.

5.5.2 Dissolution of Marriage by Talaq-e- Tafweed

One of the most potent legal weapons in Muslim women’s possession is the right of delegated divorce or talaq-e-tafweed. This is a conscious effort of the female spouse or her guardian to balance the male matrimonial power.

5.5.3Dissolution of Marriage by khula

Dissolution of marriage by khula is defined as an agreement between the parties to dissolve the marriage by the wife’s foregoing of dower. In khula cases women are sacrificing their right of dower in exchange

5.5.4 Dissolution of Marriage by (Mubara’at)

In Mubara’at, the marriage is dissolved by an agreement between the parties and here the desire for being separated is mutual for a consideration to be paid by the wife to the husband.[34]for a divorce.

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Chapter: Six

WOMEN’S RIGHT OF DOWER UNDER ISLAMIC SHARIAH LAW

6.1The Quran

The form of the dower described above in connection with the fifth stage is not an invention of the Quran. All that the Qur’an did was to restore it to its natural and pristine form. The Quran in its incomparably elegant style says: “Give to the women a free gift of their marriage portions”. (Surah an-Nisa, 4 : 4) This means that the dower belongs to women exclusively and it is a gift to be paid directly to them. It has nothing to do with their fathers or brothers.

6.2 Sunnah

A hadith of the Prophet Muhammad (may peace be upon him) on the rights of woman regarding dower are as under:- Omme-Habibah reported that she was the wife of Abdullah-b-Jahash who died in the land of Abyssinia, and then the Negus gave her in marriage to the Prophet and took from him a dower of 4000 (in another narration 4000 dirhams). Then he sent her to the Prophet with Shurahbil-bHasanah. (Abu Daud; Nisai)

Chapter: Seven

 LEGAL PROVISION REGARDING DOWER

7.1Muslim Family Laws Ordinance, 1961

Section 5 of the Muslim Family Laws Ordinance makes it absolutely necessary that the marriage solemnized under the Muslim Law shall be registered. Where no details about the mode of payment of dower are specified in the nikah nama, or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand.[38] High dower is fixed to prevent the husband from divorcing the wife capriciously. [39] This rule was followed in Zakeri Begum v. Sakina Begum.[40]

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7.2 Muslim Marriages and Divorces (Registraton) Act, 1974

Dower in a Muslim marriage forms an inseparable part of the terms of the kabinamah and thus as the kabinnamah is intended to be registered under the 1974 Act, so is the dower. The Act of 1974 is in force relating to the registration of Muslim marriages including dower.[45].

7.3 MuslimMarriagesandDivorces (Registration) Rules, 1975

A nikah Registrar shall charge for registration of a marriage a fee at the rate of taka ten for the dower of every one thousand taka or part there of, subject to a minimum of taka fifty and a maximum of taka four thousand.

7.4 The Family Courts Ordinance, 1985

Subject to the provisions of the Muslim Family Laws Ordinance, 1961, a family court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to dower.[41] It was held in Shafiqul Huq (Md) v. Mina Begum, [42] that Family Court has got every jurisdiction to decide as to whether the kabinnama in question is a genuine and valid document or not and whether any marriage between the petitioner and opposite party was ever solemnized or not before it decides to grant any decree for dower. It was further stated in the case of Jesmin Sultana v. Md. Elias[43] that the court has no right no right to reduce the prompt dower unless the wife remits it voluntary.[44]

Chapter: Eight

 Legal Mechanism to recover the Amount of Dower

8.1 SUIT 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 for a suit to recover ”prompt” dower is three years from the date when the dower is demanded and refused, or, where during the continuance of the marriage no such demand has been made, 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 its recovery, it was decided in Muhammad Taqi Khan v. Farmoodi Begum.[48]

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8.2 Non-payment of Prompt Dower and Restitution of Conjugal Right

The wife may refuse to live with her husband and admit him to sexual intercourse so long as the prompt dower is not paid.  If the husband sues her for restitution of conjugal right before sexual intercourse takes place, non-payment of the dower is a complete defence to the suit, and the suit will be dismissed. If the suit is brought after sexual intercourse has taken place with her free consent the proper decree to pass is not a decree of dismissal, but a decree for restitution conditional on payment of prompt dower, this was held in Abdul Kadir v. Salima.[49].

8.3 Liability of Heirs for Dower Debt

The heirs of a deceased Muslim are not personally liable for the dower debt. As in the case of other debs due from the deceased, so in the case of a dower debt, each heir is liable for the debt to the extent only of a share of the debt proportionate to his share of the estate. Where the widow, therefore, is in possession of her husband’s property under a claim for her dower, the other heirs of her husband are severally entitled to recover their respective shares upon payment of quota of the dower debt proportionate to those shares. Hamira Bibi v. Zubaiada Bibi.[50]

8.4 Widow’s Right to retain possession of Husband’s Estate in lieu of Dower

The widow’s claim for dower does not entitle her to a charge on any specific property of her deceased husband. But when she is in possession of the property to her deceased husband, having, ”lawfully and without force or fraud” obtained such possession ”in lieu of her dower” (that is on the ground of her claim for her dower, to satisfy her claim out of the rents ant profits and with a liability to account for the balance), she is entitled as against the other heirs of her husband. And as against the creditors of her husband, Mt. Ghafooran v. Ram Chandra Das.[52]to retain that possession until her dower is satisfied.

8.5 Liability of Widow in possession to account

A widow in possession of her husband’s estate, in lieu of dower is bound to account to the other heirs of her husband for the rents and profits received by her out of the estate. But she entitled in that case to compensation for forbearing to enforce her right to the dower debt.

Hamira Bibi v. Zabaida Bibi.[53]

8.6Widow’s Possession no Bar to a Suit for Dower                                          

The fact that a widow is in possession of her husband’s property under a claim for her dower, is no bar to a suit by her against the heirs of her husband to recover the dower debt. But she must in such a suit offer to give up possession of the property. She cannot both retain possession and have a decree for her dower debt

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Family court has got every jurisdiction to decide as to whether the ‘kabinnama’ in question is a genuine and valid document or not and whether any marriage between the petitioner and opposite party was ever solemnised or not before it decides to grant any decree for dower and/ or maintenance. It was decided in Mirza Mohammad v. Shazadi Wahida.[56]

8.7 Problems Faced by Women in Recovering Dower in Practice

Though we have legal instruments concerning dower and recovery of the dower still it is noticeable that women are being deprived of their right of dower. It was found in a study of the metropolitan city of Dhaka that 88% of Muslim wives did not receive any dower at all. If this is the situation in the capital city, one can anticipate an alarming situation in the rural remote areas. Why are women not receiving their legal right of dower? To inquire into this one has to probe into the causes for not giving dower.

the cases reveal that whether any portion of dower is actually paid or not, if it is mentioned in the registered kabinnama, the courts tend to reduce the amount of dower by the alleged usool. Thus, in Mst. Razia Akhter v. Abul Kalam Azad,[57] the Family Court gave preference to documentary evidence. In the registered kabinnama it was mentioned that a part of the dower had been paid as usool at the time of marriage. The court did not further inquire whether it had actually been paid. The same situation arose also in Mst. Ilafi’za liihi v. Md. Shafiqid Alam,[58] where the Family Court only allowed the claim for dower after reducing the total amount by the usool as specified in the registered kabinnama

sometimes the courts are not only regarding jewellery but also household ware and apparels as substitutes of dower. But, how do such items give security to women as to be a part of dower? In Nasima Bilkis v. Md. Abdus Sarnad Khan,[62] the Family Court regarded ware and apparels as the usool and further reduced the amount of dower after deducting the jewellery. Moreover, the defendant contended that the plaintiff waived the dower in the wedding night. The court, however, held that the defendant’s contention did not bear any truth.

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Chapter: Nine

CONCLUSION

Recommendations:

In the previous chapter I have elaborately discussed the problems in recovering dower money by the women in Bangladesh. From there it is clear that 88% of Muslim wives do not receive any dower at all in the metropolitan city of Dhaka so we can understand the real situation of rural area.

The cases in Bangladesh on the issue of dower indicate that, on the one hand, there is evidence of growing support and protection of women by allowing the wives to have their right of dower. On the other hand, there are attempts to reduce the amount of dower by different customary conventions. However, dower does act as a bar for the husbands to refrain from divorcing their wives; evidence shows there are less cases of talaq than khula. This seems to indicate also that not many talaq cases go to court because men just talaq their wives and the wives do not see any point in challenging this unfettered and unilateral right of their husbands.

Concluding Remarks:

Under the Muslim Law, dower is an important part of marriage. The custom of giving dower was come from Pre-Islamic time. The Quran and Sunna say that, dower must be given at the time of marriage and the statutes of Bangladesh also confirm it. The dower is given in two ways; one is prompt and other is deferred. The prompt dower is given when the wife claimed it and the deferred dower is given when the marriage is dissolved by divorce or after the death of husband’s. If any person denies giving this dower money to his wife, then the law can force him and the wife can decline to continue conjugal life. The cases on dower in Bangladesh highlight the contrast between theory and practice. In dower cases, the payment is a legal obligation, whereas in social practice the question of payment arises only at the instance of divorce. In this thesis attention has been given on who can make contract for the dower money at the time of marriage, and when, and how the dower money will be paid to the wife. If someone denies paying dower money then the wife can claim it under the law and within a limitation period. In the present thesis I have discussed the problems facing by women in recovering the dower money in practice and finally I have tried to give necessary solutions for ensuring women’s right of dower from the male dominated society. The amount of dower is not only a check for unreasonable exercise of talaq but also the only financial security the women might have after the dissolution of her marriage, so they should not be deprived from getting it.

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Bibliography

BOOKS

1. Aqil Ahmed, Mohammedan Law, 21st ed. (Allahabad:  Central law Agency, 2004).

2. Syed Ameer Ali, Mohammadan Law, 6th ed. (Dhaka: Shams Publication,  2002).

3. Obaidul Huq Chowdhury, Muslim Law, 6th ed. (Dhaka: Al-Yakub Press, 2005).

4. Muhammed Faiz-ud-din, Islamic Law, 1st ed. (Dhaka: Shams Publication,1998).

5. Syed Khalid Rashid, Muslim Law, 3rd ed. (Lucknow: Eastern Book Company, 2002).

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