JAMIA MILLIA ISLAMIA 

​NAME - SAIF ALI

CLASS - B.ALL.B 2nd Year
SUBJECT - FAMILY LAW

​TOPIC

​ DOWER
​SUBMIITED BY- KAKSHA DANIYAL

1
R​ESEARCH METHODOLOGY

Area​: Muhammadan Law

Topic​: Types of Dower and effects of Non-payment of Dower.

Objective: This project work has been designed to fulfill certain underlying objectives, which are strategic in understanding
as to what the different types of dower are and what the effects of non-payment of dower amount are.

Research Questions​:
1. Definition of Dower- A price for sale or a mark for respect.
2. Different Types of Dowers.
3. Recourses a wife can have to enforce her right to dower when it is not paid.
4. Women’s right of retention of deceased husband’s property in lieu of unpaid dower amount- is it transferable?

Sources
The project would look into the books, journals, texts and websites in course of compiling this project.

Tentative Chapterization​:
CHAPTER I - INTRODUCTION
CHAPTER II - DEFINITION
CHAPTER III - TYPES OF DOWERS
CHAPTER IV - NON-PAYMENT OF DOWER
CHAPTER V - CASE ANALYSIS

2
 BIBLIOGRAPHY

Time Schedule- ​This project has been prepared in the course of the research made during the last twenty days.

Footnoting Style​: The footnoting style that would be adopted in this paper is the NLU Uniform style based on the Harvard
Blue Book Style.

3
 Chapterization
1. Introduction
2. Definition
3. Types of Dower
4. Non- Payment of Dower
5. Case Analysis
6. Conclusion

4
 INTRODUCTION

One of the essential parts of Muslim marriage is “dower” paid or promised to be paid by the husband to the wife. Without
mahr a nikah can not be said to have been properly solemnised. Dower money must be paid or fixed before the solemnisation
of a marriage. Dower must not, however be confused with “dowry” which consists of presents made by father and other
relations of the bride and Muslim Law does not make any provision for payment of dowry. ​Dower is the sum of money or
other property which the wife is entitled to receive from the husband in consideration of marriage​.1 The amount of dower
may be fixed either before or at the time of marriage of after marriage​. The law does not say anything about the quantum of
dower. The amount of dower is generally split into two parts- ​“prompt dower” which is payable immediately on demand by
the wife and “deferred dower” which is payable only on dissolution of marriage by death or divorce. In this present
endeavour the author would try to explain in detail the types of dower and the effect of non-payment of dower. Some of the
important cases with respect to dower would also be analysed.

1
D.F. Mulla, Principles of Mohammedan Law, 17th Ed.P.277

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 DEFINITION

PRIOR to Islam, two kinds of material gifts were prevalent. In a certain type of marriage, the so-called ​beena ​marriage,
where the husband visited the wife but did not bring her home, the wife was called ​sadiqa o​ r female friend, and a gift given
to the wife on marriage was called ​sadaq​. ​‘In Islam ​sadaq ​simply means a dowry and is synonymous with ​mahr. But
originally the two words were quite distinct: ​sadaq i​ s a gift to the wife and ​mahr to the parents of the wife​.’2 The latter term
​ arriage, where the wife’s people part with her and have to
belongs to the marriage of dominion, which is known as the ​baal m
be compensated.

Now ​mahr i​ n the ​baal f​ orm of marriage was used by the Prophet to ameliorate the position of the wife in Islam, and it was
combined with ​sadaq,​ so that it became a settlement or a provision for the wife. In Islamic law, ​mahr ​belongs absolutely to
the wife.3 Thus, historically speaking, the idea of sale is latent in the law of ​mahr ​(dower).

Justice Mahmood defines dower as follows:

‘​Dower, under the Muhammadan law, is a sum of money or other property promised by the husband to be paid or delivered
to the wife in consideration of the marriage, and even where no dower is expressly fixed or mentioned at the
marriage ceremony, the law confers the right of dower upon the wife​.’4

2
Robert Smith, ​Kinship​, 93 ​as cited from A
​ saf.A.A.Fyzee, ​Outlines of Muhammadan Law,​ (Oxford University Press, 4​th​ Edition, 2002) p.132
3
Kor. iv, 4; Ameer Ali, II, 461-2; ​Fat. Law δ​ 70 ​as cited from A
​ saf.A.A.Fyzee, ​Outlines of Muhammadan Law​, (Oxford University Press, 4​th Edition,
2002) p.132
4
​Abdul Kadir v​ . ​Salima​ (1886) 8 All. 149

6
It is not ‘consideration’ in the modern sense of the term; but an obligation imposed by the law upon the husband as a mark of
respect to the wife.5 This is made abundantly clear by the author of the ​Hedaya​ when he says:

‘​The payment of dower is enjoined by the law merely as ​a token of respect for its object (the women), wherefore the mention
of it is not absolutely essential to the validity of a marriage; and, for the same reason, a marriage is also valid,
although the man were to engage in the contract on the special condition that there should be no dower.​’6

The best general observations on dower are those of Lord Parker of Waddington in ​Hamira Bibi ​v. ​Zubaida Bibi7 ​:

‘​Dower is an essential incident under the Mussulman law to the status of marriage; to such an extent this is so that when it is
unspecified at the time the marriage is contracted the law declares that it must be adjudged on definite principles.
Regarded as a consideration for the marriage, it is, in theory, payable before consummation; but the law allows its
division into two parts, one of which is called ‘prompt’, payable before the wife can be called upon to enter the
conjugal domicil; the other ‘deferred’, payable on the dissolution of the contract by the death of either of the parties
or by divorce…..But the dower ranks as a debt, and the wife is entitled, along with the other creditors, to have it
satisfied on the death of the husband out of his estate. Her right, however, is no greater than that of any other
unsecured creditor, except that if she lawfully obtains possession of the whole or part of his estate, to satisfy her
claim with the rents and issues accruing therefrom, she is entitled to retain such possession until it is satisfies. This is
called the widow’s lien for dower, and this is the only creditor’s lien of the Mussulman law which has received
recognition in the British Indian Courts and at this Board.’​

5
Abdur Rahim, 334. ​as cited from ​Asaf.A.A.Fyzee, ​Outlines of Muhammadan Law​, (Oxford University Press, 4​th​ Edition, 2002) p.133
6
Hamilton’s ​Hedava,​ 2​nd​ ed. By Grady, 44, cited by Mahmood J. in ​Abdul Kadir v​ . ​Salima​ (1886) 8 All. 149 at 157-8.
7
(1916) 43 I.A. 294 at 300-1; also cited in ​Syed Sabir Husain v​ . ​Farzand Hasan​ (1937) 65 I.A. 119 at 127.

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AMOUNT OF DOWER

​ ay either be fixed or not; if it is fixed, it cannot be a sum less than the minimum laid down by the law​.
The amount of ​mahr m

Minimum Dower
1) Hanafi law - 10 ​dirhams
2) Maliki ​law - 3 ​dirhams
3) Shafii ​law – No fixed minimum
4) Shiite law – No minimum fixed.

A ​dirham (​ Persian, ​diram,​ a word derived from the Greek) is the name of a silver coin 2.97 gram in weight8, and is usually
valued at 3-4 annnas or 20-25 paise. In India, it has been held that the value of ten ​dirhams is something between Rs.3 and 49
. Thus it will be seen that the minimum doer fixed by the law can hardly be deemed to be an adequate provision for the wife.
In fact, it would be a mistake to lay too great a stress upon the monetary value of the minimum dower. It is said that in the
case of an extremely poor man, the Prophet requested him to teach the Koran to his wife, and this was considered by the
Lawgiver to be an adequate requital of the husband’s obligation.

Among the Muslims of India two distinct tendencies are to be found in society. In some cases, as in the ​Sulaymani ​Bohoras,
the dower is Rs. 40, it being considered a point of honour not to stipulate for a sum higher than the minimum fixed by the
Prophet for his favourite daughter ​Fatima​, the wife of Ali, namely 500 ​dirhams​. Among certain other communities, there are
dowers of anything between a hundred and a thousand rupees; Ameer Ali mentions amounts between four to forty thousand
rupees. An altogether different tendency is to be found in Uttar Pradesh, and also to some extent in Hyderabad, Deccan,
where the absurd rule appears to be that the nobler the family, the higher the ​mahr,​ regardless of the husband’s ability to pay
or capacity to earn.
CHAPTER- III

8
According to Wilson’s ​Glossary​, ‘a silver coin 45-50 grains in weight, rather heavier than six pence’.
9
​Asma Bibi​ v. ​Abdul Samad (​ 1909) 32 All. 167.

8
 TYPES OF DOWER

We have seen that dower is payable whether the sum has been fixed or not, Ali said: ‘There can be no marriage without
mahr’​ . Thus, dower may, first of all, be either specified or not specified. In the latter case, it is called ​mahr al-mithl​, Proper
Dower, or to be strictly literal, ‘the dower of the like’. If the dower has been specified, then the question may be whether it is
prompt (​mu‘ajjal​) or deferred (​muwajjal,​ strictly ​mu’ajjal​).

Thus we have two kinds of dower in Islam:

A. Specified Dower (​al-mahr​ ​al-musamma)​ ; and
B. Unspecified Dower or Proper Dower (​mahr al mithl)​ .

Specified Dower may be again be divided into-

● Prompt - ​mu‘ajjal,​ and
● Deferred - ​mu’ajjal​.

In (A) and (B) the question before the court is the amount payable: in (I) and (II) the question is the time when payment has
to be made.

A. ​Specified Dower (​ al-mahru al-musamma)10

Usually the ​mahr i​ s fixed at the time of marriage and the ​kazi p​ erforming the ceremony enters the amount in the register; or
else there may be a regular contract called ​kabinnama,​ with numerous conditions. The sum may be fixed either at the time of
marriage or later, and a father’s contract on behalf of a minor son is binding on the minor.

Where a father stipulates on behalf of his son, in Hanafi law, the father is not personally liable for the ​mahr​; but ​aliter ​in
Ithna ‘Ashari law. In ​Syed Sabir Husain ​v. ​Farzand Hasan, a​ Shiite father had made himself surety for the payment of the
mahr o​ f his minor son. Thereafter he died, and it was held that the estate of the deceased was liable for the payment of his
son’s ​mahr. Accordingly each heir was made responsible for a portion of the wife’s claim in proportion to the share received

10
Also called ​mahr al-‘aqd.​

9
by the particular heir on distribution from the estate of the deceased. The heirs were, however, liable only to the extend of the
assets received by them from the deceased, and not personally11.

Where the amount has been specified, the husband will be compelled to pay the whole of it, however excessive it may seem
to the court, having regard to the husband’s means; but in ​Oudh, only a reasonable amount will be decreed, if the court
deems the amount to be excessive or fictitous12.

B. ​Unspecified Dower (​mahr al-mithl​)13

The obligation to pay dower is a legal responsibility on the part of the husband and is not dependent upon any contract
between the parties; in other words, if marriage, then dower14. Where the dower is specified, any amount, however excessive,
may be stipulated for. But what are the principles upon which the amount of dower is to be determined where no agreement
exits?

The customary or proper dower of a woman is to be fixed with reference to the social position of her father’s family and her
own personal qualifications​. The social position of the husband and his means are of little account. The ​Hedaya lays down
the important rule that her ‘age, beauty, fortune, understanding and virtue’ must be taken into consideration. Islamic
marriage, therefore, safeguards the rights of a wife and attempts to ensure her an economic status consonant with her own
social standing. Historically speaking, and on the analogy of sale, it is permissible to ask: ‘What have the circumstances of a
purchaser to do with the intrinsic value of the thing he buys?’ The answer is that the Indian courts no longer consider
marriage as a form of sale or barter, and do not proceed upon the analogy that dower is the price of consortium.

In fixing the amount of the proper dower, regard is to be had to the amount fixed in the case of the other female members of
the wife’s family​. ‘​Mahr i​ s an essential incident under the Mussalman law to the status of marriage; to such an extend that is
so that when it is unspecified at the time the marriage is contracted the law declares that it must be adjudged on definite

11
(1937) 65 I.A. 119.
12
This is called ‘fictitious dower’. Sometimes for the purpose of ‘glorification’ a larger ​mahr ​is announced, but the real ​mahr ​is smaller. Such a ​mahr
for the purposes of ‘show’ is know as ​sum‘a.​
13
Ameer Ali calls it the ‘customary’ dower.
14
This has been emphasized by the Privy Council in ​Syed Sabir Husain’s Case, (​ 1937) 65 I.A. 119

10
principles’.15 The main consideration is the social position of the bride’s father’s family, and the court will consider the
dowers fixed upon her female paternal relation such as sisters or paternal aunts who are considered to be her equals.

The Prophet once allowed the marriage of an indigent person for a silver ring; and on another occasion, merely on the
condition that the husband should teach the Koran to his wife. In Hanafi law, where the specified dower is less than 10
dirhams​, the wife is entitled only to the minimum, namely 10 ​dirhams,​ and in ​Ithna ‘Ashari law​, the proper dower can
never exceed 500 ​dirhams​, the dower fixed for the Prophet’s daughter ​Fatima. ​Thus, among the Shiites there are three kinds
of ​mahr:​
i. Mahr-e sunat​, the dower supported by tradition, i.e. 500 ​dirhams;​
ii. Mahr-e mithl​, ‘the dower of the like’, or the dower of an equal, which is the technical name for proper or unspecified
dower; and
iii. Mahr-e musamma,​ t​ he specified dower.

Prompt ​(mu‘ajjal) ​and Deferred​ (mu’ajjal) ​dower

When the dower is specified, the question arises: At what times and in what proportions is the amount payable? Here two
somewhat puzzling terms are used and it is necessary to distinguish carefully between them. The technical term for ‘prompt’
dower is ​mu‘ajjal.​ It is derived from a root meaning ‘to hasten, to preced’. The term ​mu‘ajjal​, therefore, means ‘that which
has been hastened or given a priority in point of time’. The term ​mu’ajjal​, however, means ‘delayed, deferred’, and comes
from a root which means ‘to delay or postpone’. Written in the original Arabic there would be no cause for confusion, but in
the usual English forms of spelling the words often puzzle those who are not familiar with the Arabic tongue.

Prompt dower is payable immediately after the marriage, if demanded by the wife; while deferred dower is payable on the
dissolution of the marriage or on the happening of a specified event. When dower is fixed, it is usual to split it into two equal

15
​Syed Sabir Husain’s Case, ​(1937) 65 I.A. 119

11
parts and to stipulate that one shall be paid at once or on demand, and the other on the death of the husband or divorce or the
happening of some specified event. But a difficulty arises when it is not settled whether the dower is prompt or deferred.

In ​Ithna ‘Ashari law ​the presumption is that the whole of the dower is prompt; but in Hanafi law the position is different.
The whole of the dower may be promptly awarded16; but a recent Full Bench decision lays down first, that where the
kabin-nama ​is silent on the question, the usage of the wife’s family is the main consideration; and secondly, that in the
absence of proof of custom, the presumption is that one-half is prompt, and the other half deferred, and the proportion may
be changed to suit particular cases.

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;
and a Muslim girl who has attained puberty is competent to relinquish her ​mahr​, although she may not have attained majority
(18 years) within the meaning of the Indian Majority Act17. The remission of the ​mahr ​by a wife is called ​hibat al-mahr o​ r
hiba-e mahr.​

It has, however, been held in Karachi that in certain cases remission of dower cannot be upheld. For instance, if a wife feels
that the husband is increasingly showing indifference to her and the only possible way to retain the affection of her husband
is to give up her claim for ​mahr and forgoes her claim by executing a document, she is not a free agent and it may be against
justice and equity to hold that she is bound by the terms of the deed18.

16
Per J. Mahmood in A​bdul Kadir ​v. ​Salima,​ (1886) 8 All. 149; ​Husseinkhan v​ . ​Gulab Khatum (​ sic) (1911) 35 Bom 386.
17
​Qasim Husain v​ . ​Bibi Kaniz,​ (1932) 54 All. 806
18
​Shah Bano​ v. ​Iftekar Muhammed ​PLD 1956 (W.P.) Kar. 363.

12
 CHAPTER- IV

NON-PAYMENT OF DOWER

The claim of the wife or widow for the unpaid portion of the ​mahr i​ s an unsecured debt due to her from her husband or his
estate, respectively. It ranks rateably with unsecured debts, and is an actionable claim. During her lifetime the wife can
recover the debt herself from the estate of the deceased husband. If she predeceases the husband, the heirs of the wife,
​ as Rs. 50,000, received from her husband during
including the husband, become entitled to her dower. A lady, whose ​mahr w
his lifetime sums of money in the aggregate exceeding the ​mahr settled on her. The largest of such payments was Rs. 3,000.
There was no evidence that these payments were intended by the husband to satisfy the doer debt. The question arose
whether these payments satisfied the husband’s obligation. The Judicial Committee held that such payments were not to be
treated as having been made in satisfaction of the dower debt.19

Non-payment of Prompt Dower

19
​Mohammad Sadiq ​v. ​Fakr Jahan ​(1931) 59 I.A. 19.

13
If the husband refuses the pay prompt dower, the guardian of a minor wife has the right to refuse to allow her to be sent to
the husband’s house; and similarly, the wife may refuse the husband his conjugal rights, provided no consummation has
taken place. The wife is under Muhammadan Law entitled to refuse herself to her husband until the prompt dower is paid;
and if in such circumstances she happens to reside apart from him, the husband is bound to maintain her.20

This right of refusing her is, however, lost on consummation.21 Thus if the husband files a suit for restitution of conjugal
rights before cohabitation, non-payment of prompt dower is a complete defence; but after cohabitation, the proper course is
to pass a decree for restitution conditional on the payment of prompt dower. This was laid down in the leading case of ​Anis
Begam v​ . ​Muhammad Istafa Wali Khan​.22

Non-payment of Deferred Dower

The non-payment of deferred dower by its very nature cannot confer any such right of refusal on the wife. The right to
enforce payment arises only on death, divorce or the happening of a specified event.

The dower ranks as a debt and the widow is entitled, along with the other creditors of her deceased husband to have it
satisfied out of his estate. Her right, however, is the right of an unsecured creditor; she is not entitled to a charge on the
husband’s property, unless there be an agreement. The Supreme Court of India has laid down

That the widow has no priority over the creditors, but

That mahr as a debt has priority over the other heirs’ claims.​ 23

20
​Nur-ud-din Ahmad v​ . ​Masuda Khanam ​PLD 1957 Dacca 242; ​Muhammadi v​ . ​Jamiluddin​ PLD 1960 Karachi 663.
21
In Lahore it has been held that consummation does not deprive the wife of her right to refuse conjugal relations if the prompt dower is not paid,
Rahim Jan v​ . ​Muhammad​, PLD 1955 Lahore 122; ​per contra,​ ​Rabia Khatoon v. ​Mukhtar Ahmad AIR (1966) All. 548, which, it is submitted is the
correct view.
22
(1933) 55 All. 548. This case is of great importance as Sulaiman C.J. has carefully considered and criticized certain dicta of Mahmood J. in the
leading case of ​Abdul Kadir v​ . ​Salima​ (1886) 8 All. 149
23
​Kapore Chand ​v. ​Kadar Unnissa [​ 1950] S.C.R. 747.

14
And the heirs of the deceased are not personally liable to pay the dower; they are liable rateably to the extent of the share of
the inheritance which comes to their hands.

The Widow’s Right of Retention

Muhammadan law gives to the widow, whose dower has remained unpaid a very special right to enforce her demand. This is
known as ​‘the widow’s right of retention’​. A widow lawfully in possession of her deceased husband’s estate is entitled to
retain such possession until her dower debt is satisfied.24 Her right is not in the nature of a regular charge, mortgage or a lien
25
; it is in essence a ​personal ​right as against heirs and creditors to enforce her rights; and it is a right to ​retain,​ ​not to obtain​,
possession of her husband’s estate. Once she loses possession of her husband’s estate, she loses her special right and is in no
better position than an unsecured creditor.26

The nature of this right was discussed by their lordships of the Privy Council in ​Maina Bibi v​ . ​Chaudhri Vakil Ahmad27 . One
Muinuddin died in 1890 possessed of immovable property leaving him surviving his widow Maina Bibi, who entered into
possession. In 1902 some of the heirs filed a suit to recover possession of their share of the property. The widow pleaded that
the estate was a gift to her, or alternatively that she was entitled to possession until her dower was paid. In 1903 the trial
judge made a decree for possession in favour of the plaintiffs on condition that the plaintiffs paid a certain sum by way of
dower and interest to the widow within six months. This sum was not paid, however, and the widow remained in possession,
in 1907 Maina Bibi purported to make a gift of the whole of her property to certain persons. The original plaintiffs
challenged this gift and the Privy Council held that the widow had no power to make a gift of the properties, and could not
convey the share of the heirs to the donees. Their lordships, in discussing the nature of a widow’s right of retention, said that
‘​the possession of the property being once peaceably and lawfully acquired, the right of the widow to retain it till her
dower-debt is paid is conferred upon her by Mahomedan Law’​ .28

24
​Mirvahedalli v​ . ​Rashidbeg,​ AIR (1951) Bom. 22
25
​Zaibunnissa ​v. ​Nazim Hasan,​ AIR (1962) All. 197
26
​Ibid
27
(1924) 52 I.A. 145.
28
​Id a​ t p. 150.

15
 They further said that it is not exactly an lien, nor a mortgage, usufructuary or other.

‘​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 a mortgagee under an ordinary mortgage​’.29

Thus, in essence, it is a personal right given by Muhammadan kaw to safeguard the position of the widow.30

The Supreme Court has laid down that a Muslim widow in possession of her deceased husband’s estate in lieu of her claims
for dower, whether with the consent of the heirs or otherwise, is not entitled to priority as against his unsecured creditors.31

There is a conflict of opinion whether in order to retain possession the consent, express or implied, of the husband or his
heirs is necessary. Some judges are of opinion that such consent is necessary; others, that it is not. It is submitted with great
respect, that on first principles, having regard to the nature of the right, the consent of the husband or his heirs is immaterial.
Muhammadan law casts a special obligation on every debtor to pay his debt, and the right of the widow for her dower is a
debt for which the widow has a good safeguard. Thus, the question of consent appears to be immaterial.

The right to retention does not confer on the widow any title to the property. Her rights are twofold: one, as heir of the
deceased and two, as widow entitled to her dower and, if necessary, to retain possession of the estate until her ​mahr h​ as been
paid. The right to hold possession must, therefore, be sharply distinguished from her right as an heir. The widow, in these
circumstances, has the right to have the property administered, her just debts satisfied and her share of the inheritance
ascertained and paid. She has no right to alienate the property by sale, mortgage, gift or otherwise, and if she attempts to do
so, she loses her right of ​mahr.​

29
​Id a​ t p. 151.
30
The Patna High Court has adopted this view, ​Abdul Samad ​v. ​Alimuddin​ (1943) 22 Pat. 750.
31
​ ote 25
​Supra N

16
There are two other major questions on which the law is still unsettled. Can the widow ​transfer her right of retention? And is
this right of retention ​heritable?​ In ​Maina Bibi v. ​Chaudhri Vakil Ahmad32 their lordships expressed a doubt whether a
widow could transfer the dower debt or the right to retain the estate until the ​mahr ​was paid. Following that case there has
been much conflict of judicial opinion on the questions as to the heritability and transferability of this right. ​The Mysore and
Allahabad High Coutrs have decided that the right is both heritable and transferable33; but the Patna High Court has held that
the widow’s is a personal right, and not a lien, and as such, it is not transferable.34 Although there is a conflict of opinion, in
view of ​Kapore Chand’s case​, the balance of authority seems to be in favour of the Patna view.

CHAPTER- V

ANALYSIS OF SOME CASES

​ ohd. Ahmed Khan​ v.​ ​ ​Shah Bano Begum and Ors.35

1) M

32
​ ote 29
​Supra N
33
​Hussain ​v. ​Rahim Khan A
​ IR (1954) Mysore 24; ​Zaibunnissa v​ . ​Nazim Hasan ​AIR (1962) All. 197.
34
​Zobair Ahmad​ v. ​Jainandan Prasad​ AIR (1960) Pat. 147.
35
AIR 1985 SC 945

17
CITATION REFERED​ ​MANU/SC/0194/1985

DECIDED ON​ ​ ​ ​23.04.1985

HON’BLE JUDGES ​ ​Y.V. Chandrachud, C.J., D.A. Desai, E.S. Venkataramiah, O. Chinnappa Reddy and Ranganath
Misra, JJ.

FACTS​
 
▪ The appellant, who is an advocate by profession, was married to the respondent in 1932. Three sons and two
daughters wire born of that marriage.
▪  In 1975 the appellant drove the respondent out of the matrimonial home.
▪  In April 1978, the respondent filed a petition against the appellant under Section 125 of the Code in the court of the
learned Judicial Magistrate (First Class), Indore asking for maintenance at the rate of Rs. 500 per month.
▪  
On November 6, 1978 the appellant divorced the respondent by an irrevocable talaq. His defence to the respondent’s
petition for maintenance was that she had ceased to be his wife by reason of the divorce granted by him, to provide
that he was therefore under no obligation maintenance for her, that he had already paid maintenance to her at the rate
of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the court by way of dower
during the period the of ​iddat​.
▪  In August, 1979 the learned Magistrate directed appellant to pay a princely sum of Rs. 25 per month to the
respondent by way of maintenance. It may be mentioned that the respondent had alleged that the appellant earns a
professional income of about Rs. 60,000 per year.
▪  In July, 1980 in a revisional application filed by the respondent, the High court of Madhya Pradesh enhanced the
amount of maintenance to Rs. 179.20 per month.
▪ The husband thus came before the Supreme Court by Special leave.

RELEVANT ISSUE​
1) Would the payment of ​mahr i​ ndemnify the husband from his obligation under the provisions of Section 125 Cr.P.C?

DECISION​

18
 ▪ The Court decided that ​mahr i​ s different from a sum payable ‘on divorce’ which occurs in Section 127(3)(b) of
Cr.P.C and hence does not indemnify the husband from his obligation under the provisions of Section 125 Cr.P.C.

REASONING​
▪    
In Mulla’s principles of Mahomedan Law (18th Edition, page 308), ​mahr or Dower is defined in paragraph 285 as “a
sum of money or other property which the wife is entitled to receive from the husband in consideration of the
marriage.”
▪  
Dr. Paras Diwan in his book, “Muslim Law in Modern India” (1982 Edition, page 60), criticises this definition on the
 ground that ​mahr is not payable “in consideration of marriage” but is an obligation imposed by law on the husband as
a  mark of respect for the wife, as is evident from the fact that non-specification of ​mahr at the time of marriage does
not affect the validity of the marriage.
▪   Under the Muslim Personal Law, the amount of ​mahr ​is usually split into two parts, one of which is called “prompt”,
which is payable on demand, and the other is called “deferred” which is payable on the dissolution of the marriage by
death or by divorce.
▪   
But, the fact that deferred ​mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion
 that it is payable ‘on divorce’. Even assuming that, in a given case, the entire amount of ​mahr is of the deferred
variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on
divorce.
▪  Divorce maybe a convenient or identifiable point of time at which the deferred amount has to be paid by the husband
to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the
expression ‘on divorce’, which occurs in Section 127(3)(b) of the Code.
▪   If ​mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is
the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the Marriage. Therefore
no amount which is payable in consideration of the marriage can possibly be described as an amount payable in
consideration of divorce.
▪   
The alternative premise that ​mahr is an obligation imposed upon the husband as a mark of respect for the wife, is
wholly detrimental to the stance that it is an amount payable to the wife on divorce. A man may marry a woman for
love, looks, learning or nothing at all. And he may settle a sum upon her as a mark of respect for her. But he does not
divorce her as a mark of respect.

19
 ▪  
Therefore, a sum payable to the wife out of respect cannot be a sum payable ‘on divorce’.

​ d. Nayeem Khan ​ v. ​Union Law Secretary, Government of India, New Delhi and others 36
2) M

CITATION REFERED​ ​MANU/AP/0516/2001

DECIDED ON​ ​ ​ ​10.07.2001

HON’BLE JUDGES​ ​ ​ ​Satya Brata Sinha, C.J. and V.V.S. Rao, J

FACTS​

▪ This case is based on a very complex factual matrix. However, the relevant issue to be discussed does not require
much elaboration of facts. Hence, the author is not mentioning the facts.

RELEVANT ISSUE​
1) Whether Muslim women entitled to retain possession of husband’s immovable property even after divorce, until her
dower debt is satisfied?

36
2001 (5) ALD 145

20
DECISION​
▪ The Court decided that a Muslim widow is conferred with the right to retain property in lieu of payment of ‘​mahr’​ till
it is paid off, whether she is divorced or her husband is deceased.

REASONING​
▪ A principle of Muslim law confers a right on the widow to retain the immovable property of her late husband in her
possession in lieu of payment of ​Mahr​ till the same is paid off.
▪ Possibly the same principle may be extended having regard to the rationale behind the said principle to cases where
the divorced wife is in possession of a house of the husband or in regard to the matrimonial home where she is
residing. She may be entitled to retain possession of the house of the husband who divorced her till the ​mahr a​ mount
is paid off.

21
 ​ apore Chand ​ v. ​Kadar Unnisa Begum and Ors.37
3) K

CITATION REFERED​ ​MANU/SC/0043/1950

DECIDED ON​ ​ ​ ​12.10.1950

HON’BLE JUDGES​ ​ ​ ​Mehr Chand Mahajan, R.C. Patnaik and Khaliluzzaman, JJ.

FACTS​

▪ The appellant, Kapurchand, had a money decree, amongst others; against one Mir Hamid Ali Khan, husband of the
respondent Kaderunnisa.
▪ In execution of the decree the house in dispute belonging to the deceased judgment-debtor was attached.
▪ To the attachment the widow of the deceased raised an objection on the ground that she was in possession of it in lieu
of her outstanding dower and could not be dispossessed her claim was satisfied.
▪ The objection was allowed by the executing court and it was ordered that the house be sold subject to the
respondent’s claim, the decree-holder being entitled to the surplus, if any, out of the sale proceeds. There was not
much possibility of the house fetching more in the execution sale than the amount due on account of dower. The
court took the view that the widow’s claim for dower had priority over debts due to other unsecured creditors and her
position was analogous to that of a secured creditor.

37
AIR 1953 SC 413,

22
 ▪ The decree-holder made an application in revision to the High Court but without any success. He then preferred an
appeal to the Judicial Committee of the State and it is now before the Supreme Court of India.

ISSUE​
1) Whether widow possessing husband’s estate in lieu of dower entitled to priority over other creditors?

DECISION​
▪ The Court decided that a widow possessing husband’s estate in lieu of dower is not entitled to priority over creditors;
however it is entitled priority against heirs of the deceased husband.

REASONING​
▪ The dower of a Muslim woman is a settlement in her favour made prior to the marriage contract and is similar to the
donatio proper nuptias of the Romans but is of such an obligatory nature that if it is not mentioned before or at the
time of the marriage, it is presumed to exist to the extent of a proper dower amount
▪ The Muslim concept of dower has no reference to the price that under some systems of law was paid to the father of
the bride when she was given in marriage. On the other hand, it is considered a debt with consideration (for the
submission of her person by the wife).
▪ Therefore dower is purely in the nature of a marriage settlement and is for consideration. It is a claim arising out of
contract by the husband and as such has preference to bequests and inheritance, but on no principle of Muhammadan
Law it can have priority over other contractual debts.
▪ In our view, therefore, a dower debt cannot be given any priority over other debts on any equitable consideration or
on the ground that there is something inherent in its very nature which entitles it to priority.

23
 ​ obair Ahmad and Anr.​ ​ v. ​Jainandan Prasad Singh 38
4) Z

CITATION REFERED​ ​MANU/BH/0045/1960

DECIDED ON​ ​ ​ ​05.08.1959

HON’BLE JUDGES​ ​ ​ V. Ramaswami, C.J. and Kanhaiya Singh, J.

FACTS​ ​
SALAMAT
______________|__________________
| | | |
Sakram Saliman Marian Tetu
| |
Bashiruddin Naffisa (defnt. 2)
_____________
| |
Zobair Ahmed Zaibunnisa
(plaintiff 1) (plaintiff 2)

▪ Bashiruddin, who was admittedly the owner of the 16 annas of the property, died in the year 1937.
▪ It appears that on 7-5-1945, Naffisa and Bibi Saliman executed a sale-deed (Ext. B) in favour of defendant No. 1 in
respect of the 16 annas share in the properties in dispute. This sale-deed was executed by Bibi Naffisa on her own
behalf as well as the guardian of her two children, namely, the two plaintiffs.
▪ After attaining majority the two plaintiffs filed the present suit for recovery of possession of their 14 annas share in
the properties. The allegation was that their mother had no right to convey the property to defendant No. 1.
▪ The suit was contested by defendant No. 1 on the ground that defendant No. 2 came in possession of the properties in
lieu of her dower debt, that defendant No. 2 was appointed the executor of the properties of Bashiruddian and the
legal guardian of the plaintiffs and that the transaction was for the benefit of the plaintiffs and it could not, therefore,
be impeached.
▪ The trial court decreed the suit in favour of the plaintiffs but that decree has been set aside by the lower appellate
court in appeal.

38
AIR 1960 Pat 147

24
 ▪ And hence this present appeal.

ISSUE​
1) Whether a widow has a right to transfer her right to dower debt or any possession in lieu it?

DECISION​
▪ The Court decided that a widow cannot transfer her right to dower debt or any possession in lieu it. However, she
may transfer the share of the property which has inherited as the wife of the deceased husband and not the one
received in lieu of the payment of ​mahr.

REASONING​

▪ Precedence must be given to the decision of the Privy Council in AIR 1925 PC 63 and the view expressed by the
Madras High Court in AIR 1920 Mad 666 cannot be held to be authoritative in view of the decision of the Privy
Council in AIR 1925 PC 63.
▪ Privy Council in ​Maina Bibi v​ . ​Chaudhri Vakil Ahmad39 . One Muinuddin died in 1890 possessed of immovable
property leaving him surviving his widow Maina Bibi, who entered into possession. In 1902 some of the heirs filed a
suit to recover possession of their share of the property. The widow pleaded that the estate was a gift to her, or
alternatively that she was entitled to possession until her dower was paid.
▪ In 1903 the trial judge made a decree for possession in favour of the plaintiffs on condition that the plaintiffs paid a
certain sum by way of dower and interest to the widow within six months.
▪ This sum was not paid, however, and the widow remained in possession, meanwhile Maina Bibi purported to make a
gift of the whole of her property to certain persons.
▪ The original plaintiffs challenged this gift and the Privy Council held that the widow had no power to make a gift of
the properties, and could not convey the share of the heirs to the donees.

39
AIR 1925 PC 63

25
 5)​ Daniel Latifi​ ​v.​ Union of India15
​

Facts in Brief
In this case, the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was challenged
before the Supreme Court. The Act was passed to appease a particular section of the society and with the intention of making
the decision in case of ​Mohd. Ahmed Khan v​ .​ Shah Bano Begum​ ineffective.
In the ​Shahbano’s case , the husband had appealed against the judgment of the Madhya Pradesh High Court which had
directed him to pay to his divorced wife Rs. 179/- per month, enhancing the paltry sum of Rs. 25 per month originally
granted by the Magistrate. The parties had been married for 43 years before the ill and elderly wife had been thrown out of
her husband's residence. For about two years the husband paid maintenance to his wife at the rate of Rs. 200/- per month.
When these payments ceased she petitioned under Section 125 of the Code of Criminal Procedure (Cr.P.C.). The husband

26
immediately dissolved the marriage by pronouncing a triple ​talaq​. He paid Rs.3000/- as deferred ​mahr and a further sum to
cover arrears of maintenance and maintenance for the ​iddat period and he sought thereafter to have the petition dismissed on
the ground that she had received the amount due to her on divorce under the Musilm law applicable to the parties. The
important feature of the case was that wife had managed the matrimonial home for more than 40 years and had borne and
reared five children and was incapable of taking up any career or independently supporting herself at that late state of her life
- remarriage was impossibility in that case. The husband, a successful Advocate with an approximate income of Rs. 5,000/-
per month provided Rs. 200/- per month to the divorced wife, who had shared his life for half a century and mothered his
five children and was in desperate need of money to survive.

Contentions
The petitioner argued, (a) that the rationale of Section 125 Cr.P.C. was to offset or meet a situation wherein a divorced wife
was likely to be led into destitution or vagrancy. It was urged that Section 125 Cr.P.C. was enacted to prevent such a
situation in furtherance of the concept of social justice embodied in Article 21 of the Constitution. (b) That the object of
Section 125 Cr.P.C. being to avoid vagrancy, the remedy thereunder could not be denied to a Muslim woman otherwise it
would amount to violation of not only equality before law but also equal protection of laws (Article 14) and inherent
infringement of Article 21 as well as basic human values. (c) That the Act was un-Islamic, unconstitutional and had the
potential of suffocating the Muslim women while also undermining the secular character, which was the basic feature of the
Constitution. And thus there was no rhyme or reason to deprive the Muslim women from the applicability of the provisions
of Section 125 Cr.P.C.
Defending the validity of the enactment, it was argued on behalf of the respondents that (a) if the legislature, as a matter of
policy, wanted to apply Section 125 Cr.P.C. to Muslims, it also meant that the same legislature could, by necessary
implication, withdraw such an application of the Act and make some other provision in that regard. (b) Parliament could
amend Section 125 Cr.P.C. so as to exclude it application and apply personal law instead. (c) That the policy of Section 125
Cr.P.C. was not to create a right of maintenance ​dehors​ the personal law and therefore could not stand in the way of the Act.

27
Judgement
Upholding the validity of the Act, the Supreme Court held as follows;
● A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously
includes her maintenance as well. Such a reasonable and fair provision extending beyond the ​iddat period must be
made by the husband within the ​iddat​ period in terms of Section 3(1)(a) of the Act,
● Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not
confined to ​iddat​ period,
● A divorced Muslim woman who has not remarried and who is not able to maintain herself after ​iddat period can
proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to
the properties which they inherit on her death according to Muslim law from such divorced woman including her
children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State
Wakf Board established under the Act to pay such maintenance.
● The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
Analysis

It is unfortunate to note that the Court did not strike down the Act which purports to exclude Muslim women in particular
from the beneficial treatment of Section 125. The legislature to appease the Muslim gentry may have passed the Act on
political consideration but that same has rendered an indirect classification of people of the basis of religion, which is against
the fundamental rights.

Other than the above cases, following are some case, which are there just to supplement the effort of judiciary towards them.
 In ​Shamim Ara ​v. ​State of U.P ​16 the Supreme Court streamlined the position regarding the requirements for a valid Talaq
under the Muslim law. The Court held that the correct law of talaq as ordained by the Holy Quran is that talaq must be for a
reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters- one from
the wife's family and the other from the husband's; if the attempts fail, talaq may be effected.

 In ​Savitri Pandey v. ​Prem Chand Pandey​17 the Supreme Court held that the second marriage by a spouse during the
subsistence of an appeal by the other spouse against the decree of divorce would be subject to the end result of the
proceedings. The court further observed: “There is no denial of the fact that right of at least one appeal is a recognised right

28
under all systems of civilised legal jurisprudence. If despite the pendency of the appeal, the appellant chose to solemnise the
second marriage, the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of
the judgment in the appeal pending in the High Court. No person can be permitted to flout the course of justice by his or her
overt and covert acts. At this stage we would like to observe that the period of limitation prescribed for filing the appeal
under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant
spouses. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any
judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void.
Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be
forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf”. The legislature accepted
this request of the apex Court of India and enhanced the period of appeal from 30 days to 90 days, which is an appropriate
step in the right direction.

 In ​Amina v​ . Hassn Koya​18 the Supreme Court while adjudicating upon the validity of a marriage entered into by a pregnant
Muslim female observed: It is very difficult to believe that a woman who is five months pregnant will be able to conceal the
pregnancy from the husband. Such an advanced stage of pregnancy cannot be concealed as the pregnancy starts showing by
that time. In any case the pregnancy cannot be concealed from the husband. A husband will at least know for sure that the
wife is pregnant especially when the pregnancy is five months old. Therefore, we cannot accept that that the respondent did
not know at the time of marriage that the appellant was already pregnant. If this fact was known to the respondent, the
marriage cannot be said to be illegal or void. Also, the conduct of the respondent at the relevant time is to be considered. He
went through the marriage. He did not raise any objection even after the marriage. He was present at the time of delivery of
the child. Presumably he gave his own name as the name of the father of the child for the official record. Even thereafter, for
nearly four years he went along with the marriage and brought up the child while treating the appellant as his wife. Any
person, who learns that his newly married wife is already pregnant for five months and who does not accept that marriage or
pregnancy, will not behave in the manner in which the respondent did. In the present case, the facts on record show that the
husband was aware of the pregnancy of the wife at the time of the marriage. Therefore, such a marriage cannot be said to be
invalid”.

 In ​B.S. Joshi & Ors ​v. State of Haryana & Anr19
​ the Supreme Court held that the High Court in exercise of its inherent
powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers

29
under Section 482 of the Code. The Court observed: “The special features in such matrimonial matters are evident. It
becomes the duty of the Court to encourage genuine settlements of matrimonial disputes. There has been an outburst of
matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young
couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious
proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that
those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused
in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial
litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement
instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their
"young" days in chasing their "cases" in different courts. There is every likelihood that non-exercise of inherent power to
quash the proceedings to meet the ends of justicehe Court observed: “The Family Courts Act was enacted to provide for the
establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to
marriage and family affairs and for matters connected therewith. From a perusal of the Statement of Objects and Reasons, it
appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts the matters
relating to the property of the spouses or either of them. The Statement of Objects and Reasons would clearly go to show that
the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would
clearly mean that the properties claimed by the parties thereto as a spouse of other; irrespective of the claim whether property
is claimed during the subsistence of a marriage or otherwise”.
would prevent women from settling earlier”.

30
 ​CONCLUSION

In conclusion, all that can be said is that Mahr is a mandatory gift given by the groom to the bride. Unlike a ​bride price​,
however, it is given directly to the bride and not to her father.
In today’s terms, it has taken a very wide scope and many important constitutional questions have also cropped up. However,
in my opinion, even though Dower serves as security for the girl, it should entirely be scrapped. Infact, all personal laws
should be scrapped and a uniform civil code should be brought in. This shall make the Indian Society live in a state of
perfect harmony.

31