In every religion marriage is the purest ceremony that has to be performed as per the rituals and customs. Unlike the Hindu marriage, Muslim marriage is almost a contract where a sum of money or something is given to the wife as the consideration of marriage. Mahr in Muslim law is an amount paid to wife at the time of marriage. It can either be specified or unspecified. The amount of mahr is decided at the time of marriage as the consideration of marriage. In Islamic law, the marriage is considered to be a contract so the amount of Mahr given to the wife is a consideration to that contract. But at the same time, this consideration cannot be interpreted in a general sense as provided in contract acts or other statutes. In a general sense, a contract without consideration is void but on the other hand, nonpayment of Mahr does not void the marriage. The Muslim marriage cannot be said a civil contract as nonpayment of Mahr does not affect the marriage. The wife is entitled to use her Mahr as according to her choice. Nor her family neither her husband has a right to restrict her on use of her Mahr as per her choice. It can be paid at once or at the time of the happening of a specific event. In other words, the mahr can be the financial security of marriage in Muslim laws. The main purpose of Mahr is to provide a shade to the Muslim wives after the dissolution of their marriage and after the death of their husbands. In other words, the Mahr can be the financial security of marriage in Muslim laws.
EVOLUTION OF MAHR IN MUSLIM LAW
Mahr is a prerequisite to a marriage in Islamic law. According to the Pre Islamic customs the dower or Mahr had to be paid to the father or guardians of the bride that amounted to sale but later in Islamic law, the Mahr is to be paid to the wife and the concept of sale has disappeared. The concept of mahr can be understood under the Holy Quran.
PURPOSE OF MAHR
In a Muslim marriage, Mahr plays a vital role as a financial security to the wife. When a marriage is not conducted contractually but in a religious manner, the concept of Mahr does not exist.
The main objective of the Mahr is to provide financial security to the wife at the time of her husband’s death or at the time of dissolution of her marriage.
TYPES OF MAHR IN MUSLIM LAW
Dower is mainly of three types;
1. Specified dower (Mahrul-musamma),
2. Unspecified dower (Mahrul-misal),
3. Prompt and deferred dower (Muajjal and Muwajjal).
1. Specified dower ( Mahrul-musamma)
In Muslim law, the specified dower or Mahrul musamma is the dower in which the amount of dower is fixed at the time of marriage or even after it. In the case of the minor bridegroom, his father can fix the amount of mahr on behalf of his son. The son after the majority is responsible for the Mahr to his wife.
The concept differs as per different Muslim laws. Under Hanafi law, the father is not responsible for the Mahr and under IthnaAshari law father is also liable for Mahr that has been decided.[1]
In the case of Kukkiya Begum v. Radha Krish[2], the Hon’ble Allahabad High Court held that the amount of Mahr has been fixed earlier may be increased after marriage by mutual consent of parties. The specified dower can be prompt or deferred.
2.Prompt (Muajjal) and Deferred (Muwajjal) Mahr
The prompt dower or Muajjal Mahr is payable just after the marriage and the deferred dower is payable either at the time of dissolution of marriage or on the happening of the specified event.
In such dowers, the Mahr has to be split into two parts, one is paid at once or on-demand and another one is paid at the time of husband’s death or the happening of a specified event. Earlier, the custom of the wife’s family is the main consideration.
3. Unspecified Mahr
Muslim law provides a right to Mahr to every bride even if it is not specified. The husband is liable to pay Mahr to his wife but the only confusion in this type of mahr is quantum.
In case, when the amount of Mahr is not specified it should be an amount that is customary in the society or in each individual’s case. It can also be determined as with reference to the social status of the wife’s family, her qualifications, social status of her husband, her age, looks, understanding etc.
AMOUNT OF MAHR
The amount of Mahr differs as per the different laws. Under Hanafi law it is 10 Dirhams (Dirham is a name of a silver coin of 2.97 grams), under Malaki law it is 3 Dirhams and under Shafi and Shariya law the amount is not fixed. The amount of Mahr depends upon the status of the husband. And it is necessary to be given to the wife.
Fixing the amount of dower after marriage
The husband can increase the amount of dower at any time but cannot decrease it unless there is a valid reason. The wife can anytime remit the Mahr. The remission of the Mahr by the wife is called Hiba-i-Mahr.
https://lawaddiction.com/legislations-dealing-with-false-f-i-r/
RECOVERING UNPAID DOWER
A Muslim wife can recover her Mahr in the following ways:
By the refusal of conjugal rights
In Muslim law the husband has the right to cohabit with his wife and his wife cannot deny for the same until and unless there is a valid reason. But on the other hand, the wife can deny cohabitation on nonpayment of Mahr, it’s a lawful justification for a wife to deny cohabitation. The Muslim wife can refuse to perform her conjugal relations on nonpayment of the prompt dower on demand.
In the case of Nasra Begam v. Rizwan Ali [3]the Allahabad High Court held that the prompt dower can be demanded even before the cohabitation.
In case the wife is minor or insane, her guardians can refuse the husband to keep her wife with him till the prompt dower has been paid. Or if the minor girl resides with her husband, her guardians can take her back on the ground of nonpayment of prompt Mahr.
Enforcement of dower as debt under muslim law
In the case where consummation has taken place, the wife cannot claim for dower by refusing the conjugal rights. In such a case she can move to court and take action for the recovery of her unpaid Mahr.
If the husband dies, the wife can claim her dower by filing a suit against the legal heirs of the deceased husband. The legal heirs aren’t personally liable to pay her Mahr. But it has to be paid from the estate of her deceased husband.
Right to retention under muslim law
It is the most effective method of recovery of Mahr by a wife after the death of her husband. A Muslim widow has a right to retain the property of her husband till the payment of her Mahr. The Muslim widow can exercise this right even if there is no agreement.
This right can be exercised even against the legal heirs of the deceased husband. The legal heirs of the deceased husband cannot inherit his property unless the Mahr amount is paid.
INDIAN LAWS FOR THE ISSUANCE OF MAHR
In India, Muslim law is not codified as the other personal laws. But there are various statutes that deal with the marriage, divorce, inheritance, succession and the rights of Muslim women after divorces such as the Muslim Personal Law (Shariyat) Application Act, 1937, the Dissolution of Muslim Marriage Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Under the Code of Criminal Procedure, 1973, Section 125 deals with the maintenance for wives, children and parents. Though, this section is not responsible for the issuance of Mahr, but for a sum as maintenance to the wife if she is not able to maintain herself after divorce.
There are certain provisions under the Muslim Women (Protection of Rights on Divorce) Act, 1986 related to Mahr. The term Mahr is also defined under this Act.
People often get confused about the concept of Mahr. They relate it with the Dower but in actual sense, the concept of dower is far different from the concept of Mahr. Mahr is a security provided to her so that in case of divorce or death of her husband she will not be left helpless.
CONCLUSION
In older times, there were no laws to deal with divorce and maintenance. But now in the modern era, there are various legislations to deal with divorce, maintenance, inheritance, succession and the rights of a Muslim woman. The customs are no more needed in this modern era as the women are aware of their rights but on the other hand, the women are not given freedom too. Every religion has its ups and downs so it cannot be imposed on a specific personal law about the freedom of women. By all means, there should be a balance in both the custom and modern laws for the protection of women’s rights.
REFERENCES
[1] Mayank Shekhar, “Dower or Mahr under muslim law”, legalbites, July1,2017, availiable at : https://www.legalbites.in/dower-mahr-muslim-law/ (last visited on 16 October 2020).
[2] Kukkiya Begum v. Radha Krish, AIR 1944 HC All 241.
[3] Nasra begam v. Rizwan Ali, AIR 1980 All 118.
BY DEVSHREE DANGI | INDORE INSTITUTE OF LAW