JAMIA MILLIA ISLAMIA

FACULTY OF LAW(2019-20)

SUBJECT- ISLAMIC JURISPRUDENCE

TOPIC- “CONCEPT OF MAHER”

SUBMITTED BY- SUBMITTED TO-

BHASHVI SAXENA DR. GHULAM YAZDANI

B.A.LL.B. (HONS.)
ASSOCIATE PROFESSER

SELF-FINANCED FACULTY OF LAW

2ND YEAR, III SEMESTER JAMIA MILLA ISLAMIA
 ACKNOWLEDGEMENT
In preparation of our assignment, we had to take the help and guidance of some
respected persons, who deserve our deepest gratitude. As the completion of this
assignment gave us much pleasure, we would like to express our special
appreciation and thanks to our subject Professor Dr. Ghulam Yazdani, you have
been a tremendous mentor for us. We would like to thank you for encouraging our
research and for allowing both of us to grow as a researcher. We would also like to
expand our gratitude to all those who have directly and indirectly guided us in
writing this assignment.

We also thank the Faculty of Law, Jamia Millia Islamia for giving us such an
opportunity of doing research on the topic “Concept of Maher”.

Many people, especially our classmates have made valuable comment and
suggestions on our research which gave us an inspiration to improve the quality of
the assignment.

Furthermore we would also like to acknowledge with much appreciation the

crucial role of the staff of Faculty of Law, who gave the permission to use all
required equipment and the necessary materials to complete the task “Concept of
Maher”. All that we have done is only due to such supervision and assistance and
we would not forget their guidance.

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 TABLE OF CONTENTS
Referred to
1) INTRODUCTION…………….……………………………………….………...………….4

2) MARRIAGE IN ISLAM…………………………………………….…………………...…4

3) MAHER OR DOWER…………………………………………..……….……………........5

[A] Meaning and Definition of Maher/Dower………......……….….…………..

…….5

[B] Nature of Maher/Dower……………………………………………………..

…….6

[C] Classification of Dower……....……………………………………………..

…….7

(i) Specified………....………………………………………………….….….7

(ii) Proper………………………………………………………......................9

[D] Objective and Importance of Dower……………………………………………...9

[E]Standard of Dower and Conditions or Terms of Payment of

Dower……………..10

[F] Subject matter or object of Dower………………………………………………..10

4) CONCLUSION…………………………………………………………………………….….11

5) BIBLIOGRAPHY……………………………………………………………………………...12

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Page 4 of 13
 CONCEPT OF MAHER
INTRODUCTION

Maher is one of a significant subject matter for the Islamic society. It is a sum of money or
property on which the wife is entitled to receive from her husband in consideration of their
marriage. The Maher is meant to offer the bride a financial security within and after the marriage.
It is a divine order by the Almighty Allah. The giving of Maher to the bride is an important and
mandatory part of the Islamic terms of marriage. Dower or Maher forms an essential part of any
Muslim marriage which must be fulfilled in order to make a complete Islamic marriage. Dower
is an obligation imposed upon the husband as a mark of respect for the wife. The major object of
the Maher is to provide wife for her subsistence after the dissolution of her marriage so that she
may not become helpless after the death of the husband or termination of marriage by divorce.
However these norms and laws in practice show various variations and are generally mixed with
other non-Islamic practices, so to better understand the concept of Maher we need to study
deeply the marriage system and the role of Maher in Islam.

MARRIAGE IN ISLAM

Among Muslims, as it is known, there are various norms and rules of Islam which govern their
life. MARRIAGE in Islam is a legal contract between two parties and not a holy sacrament.
Many terms and conditions in the marriage contract are obligatory, while others can be set and
agreed to at the time of marriage. In marriage Islam prescribes certain rules which are supposed
to be fulfill. It is a religious and social affair, incumbent on every Muslim. The Islamic way of
marriage also requires preferential marriage among kins, consent of girl, witness and dower or
Maher. However these norms and laws in practice show various variations and are generally
mixed with other non-Islamic.

Dowry and Dower are the two important aspects in marriage. Dowry is the amount of money,
gold, and other items given to a girl from her parents at the time of marriage. It can be either
given by consent or can be demanded from boy's parents. Whereas dower or maher could be
given to girl either at the time of marriage or anytime in her married life by her husband. It is
generally given in the form of money but can also be given in the form of land, jewellery or
some other gift.

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But here we will only discuss the concept of dower i.e. maher in detail with the role which it
perform in marriage system in Islam.

MAHER OR DOWER

[A] MEANING AND DEFINITION OF MAHER/DOWER

 Maher 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.1
 Maher 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 “Maher” 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.2
 According to Baillie, “the property which is incumbent on a husband, either by reason of
its being named in the contract of marriage, or by virtue of the contract itself. Dower is
not the endanger or consideration given by the man to the women for entering into the
contract; but an effect to the contract imposed by the law on the husband as a token of
respect for its subject, the women.3
 In order to constitute a valid marriage, the Mohammedan law requires that there should
always be a consideration moving from the husband in favour of the wife, for her sole
and exclusive use and benefit. This consideration is called maher or sadaq in legal
treaties.
 When the marriage vows are recited, the husband gives his wife a gift that is called
Maher or Sadaq. The word Maher does not appear in the Holy Quran, however, the word
Sadaq has been employed. The Quran states: “And give unto women their Sadaq
1
M. Hidayatullah and Arshad Hidayatullah, Mulla’s principles of Mahommedan Law, 1st ed.
2
Aqil Ahmed, Mohammedan Law, 21st ed. ( Allahabad: Central Law Agency, 2004), p.148.
3
Syed Khalid Rashid, Muslim Law, 3rd ed. (Lucknow: Eastern Book Company, 2002), p.82.

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 willingly and if they freely remit any part of it to you, consume it in pleasure and
delight.”
 The principle of ante nuptial settlements is not peculiar to the Mohammedan law.
Sautayra thinks that the custom originated in ancient times with the payments which the
husbands often made to their wives as a means of support and as a protection against the
arbitrary exercise of the power of divorce.4
 The above opinions are based on the argument that marriage is a civil contract and dower
is a consideration for the contract. But it is submitted that the above opinions are
erroneous, because even in those cases where no is specified at the time of marriage,
marriage is not void on that recount, but the law requires that some dower should be paid
to the wit. Abdul Rahim correctly observes, “It is not a consideration preceding from the
husband for the contract of marriage, but it is an obligation imposed by the law on the
husband as mark of respect for the wife as is evident from the fact that the non-
specification of dower at the time of marriage does not affect the validity of marriage.5
 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.

[B] NATURE OF MAHER/DOWER

1) No one is exempt from paying the maher. Even the Prophet (PBUH) has been told, “O
Prophet, We have made permissible for you the wives whose dower you have paid….”
(33:50). When Hazrat Ali came to the Prophet to ask for the hand of Bibi Fatima, the first
thing the Prophet asked him was, “Do you have anything to give as mehr?” He said he
had a horse and a saddle. He sold his saddle for 480 dirhams and brought it to the
Prophet. The immediate needs of the bride and the new household were met with this
amount.

2) The amount of dower to be given to girl and consent of couple are the most important
part of it. The amount may be fixed before or at the time of wedding. The fixation of
dower called as mehr bandhwana is discussed by the parents of both the parties.

4
Syed Amer Ali, Mohammadan Law, 6th ed. vol.II, (Dhaka: Shams Publication, 2002), p.432.
5
Aqil Ahmed, Mohammedan Law, 21st ed. (Allahabad: Central Law Agency, 2004), p.148.

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 3) 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. But, if dower be regarded as sale
price, it must be paid to the father or the guardian of the wife, since it is paid to the wife
herself, it cannot be the price. It is a token of respect.6
In Abdul Kadir v. Salima,7 Mahmood. J., comparing the marriage and dower with
contract for sale and consideration, says “Dower may be regarded as consideration for
connubial intercourse by way of analogy to the contract for sale. The right to resist her
husband so long as the Dower remains unpaid is analogous to the lien of a vendor upon
the sold goods while they remain in his possession and so long as the price or any part of
it is unpaid and her surrender to husband resembles the delivery of the goods to the
vendee.
Maher 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

4) 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 the Judicial committee held that- “Dower is an essential
incident under the Muslim law the status of marriage, to such an extend 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.

[C] CLASSIFICATION OF DOWER

Broadly, there are two kinds of dower:
(i) Specified and
(ii) Proper.
(i) 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 maher, it is an example of specified
maher.10
The specified dower has been further divided into
(a) Prompt and
(b) Deferred.
(a) Prompt Dower (Muajjal Maher)
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. The following
point must be noted regarding prompt dower: Prompt dower is payable immediately on the
6
Syed Khalid Rashid, Muslim Law, 3rd ed. (Lucknow: Eastern Book Company, 2002), p.84.
7
AIR 1980 All: 119.
8
Syed Amer Ali, Mohammadan Law, 6th ed. vol.II, (Dhaka: Shams Publication, 2002), p.432.
9
(1916) 43 I.A. 294.
10
Muhammed Faiz-ud-din, Islamic Law,1st ed., (Dhaka: Shams Publication, 1998), p.102.

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marriage taking place and it must be paid on demand unless delay is stipulated for or agreed. It
can be realized any time before or after the marriage. The wife may refuse herself to cohabit with
her husband, until the prompt dower is paid. If the wife is minor, her guardian may refuse to
allow her to be sent to the husband’s house till the payment of prompt dower. In such
circumstances, the husband is bound to maintain the wife, although she is residing apart from
him.
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. 11 In the case of Mahadev Lal v.
Bibi Maniran12 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. Dower which is not paid at once may, for that reason, be described as deferred
dower, but if it is postponed until demanded by the wife it is in law prompt dower.
It is only on the payment of the prompt dower that the husband becomes entitled to enforce the
conjugal rights unless the marriage is already consummated. The right of restitution arises only
after the dower has been paid.
As the prompt dower is payable on demand, limitation begins to run on demand and refusal. The
period of limitation for this purpose is three years. If during the continuance of marriage, the
wife does not make any demand, the limitation begins to run only from the date of the
dissolution of marriage by death or divorce.
Although prompt dower, according to Muslim law, is payable immediately on demand, yet, in a
large majority of cases it is rarely demanded and is rarely paid, in practice a Muslim husband
generally gives little thought to the question of paying dower to his wife save when there is
domestic disagreement, or when the wife presses for payment upon the husband’s embarking
upon a course of extravagance and indebtedness without making any provision for the lapse of
time since marriage raises no presumption in favour of the payment of dower.
(b) Deferred dower
It is payable on dissolution of marriage 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. The following points must be noted regarding deferred dower:
Deferred dower is payable on dissolution of marriage by death or divorce. But if there is any
agreement as to the payment of deferred dower earlier then such an agreement would be valid
and binding.
The wife is not entitled to demand payment of deferred dower, but the husband can treat it as
prompt and pay or transfer the property in lieu of it such a transfer will not be void as a
fraudulent preference unless actual insolvency is involved. The widow may relinquish her dower
at the time of her husband’s funereal by the recital of a formula. Such a relinquishment must be a
voluntary act of the widow.
The interest of the wife in the deferred dower is a vested one and not a contingent one. It is not
liable to be displaced by the hampering of any event, not even on her death; as such her heirs can
claim the money if she dies.

(ii) Proper dower (maher-i-mithl)

Its size is to be detemined in view of the socio-economic conditions of the parties involved.

11
1943, All LJ 98, as cited by Obaidul Huq Chowdhury, Muslim Law, 6th ed. (Dhaka: Al-Yakub Press), p.16.
12
1933, 12 Pat, 297.

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If no maher has been agreed or expressly stipulated by the parties, the contract of marriage is still
valid. This also means that if no maher sum is specified in the marriage contract, the husband is
not thereby released from his liability to pay a dower. Even a statement that no dower shall be
paid does not change the position. In these circumstances, what is known as the ‘proper dower’
becomes due. It is worked out on the basis of the maher agreed for women of a similar social
status to the wife. Particularly relevant will be the maher paid to other female members of the
wife’s family, for instance sisters, paternal aunts and female cousins.13

There is no limit to the maximum amount of proper dower under the Sunni law, but under the
Shia law the proper dower should not exceed 500 Dirham. 500 Dirham was the amount of dower
which was fixed in the marriage of Fatima, the prophet’s daughter. In the Shia Muslims it is,
therefore, considered a point of honour not to stipulate for a sum higher than the sum of dower
fixed by the prophet for his daughter, Fatima.14

[D] OBJECTIVE AND IMPORTANCE OF DOWER

The importance of dower lies in the fact that it affords protection to the wife against the arbitrary
exercise of the power of divorce by the husband. Since Muslim law permits the husband to
divorce the wife at his whims, dower seeks to put a check on the capricious exercise of such
power.
It also acts as a check on the husband's extravagance while having more than one wife.
Following are the objectives of dower:
1. Imposing an obligation on the husband as a mark of respect towards the wife.
2. Placing a check on the capricious exercise of power of divorce by the husband.
3. To provide for the subsistence of the wife after the dissolution of the marriage.

[E]STANDARD OF DOWER AND CONDITIONS OR TERMS OF PAYMENT OF DOWER

This may be divided into two-
1) If the marriage is consummated, and is dissolved by death:
(a) Whole of the specified dower in case of regular marriage.
(b) Proper dower if unspecified in case of regular marriage.
(c) Specified or proper dower, whichever is less, in the case of irregular marriage.

13
David Pearl & Werner Menski, Muslim Family Law, 3rd ed. (London: Sweet& Maxwell,1998), p.180.
14
Aqil Ahmed, Mohammedan Law, 21st ed. (Allahabad: Central Law Agency, 2004), p.180.

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2) If the marriage is not consummated, and is dissolved by the act of party: When divorced by
the husband-
(a) Half of the specified dower, in case of regular marriage: in case of regular marriage.
(b) A present of three articles if unspecified: in case of regular marriage.
(c) When divorced by the wife: No dower.
(d) If the marriage is irregular in the weses and above: No dower.

[F] 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).
In fact, the main contention of the Muslim Jurists is that anything which comes within the
definition of meal can be the subject matter of dower. Thus, apart from the personal services of
the husband, any profits arising from land or business, debts due to the husband, insurance
policies, chooses-in-action, the sale proceeds of something, may constitute valid dower.
If the subject matter of dower be “an animal” or “cloth”, then the wife is entitled to maher-ul-
misl, proper dower because such dowers are invalid for uncertainty. Similarly, “a have” or “the
land” without specifying the exact location and description are not fit subjects of dower, and the
court will have to fix proper dowers in such cases.15

CONCLUSION
Under the Muslim Law, Maher (dower) means money or property which the wife is entitled to
receive from the husband in consideration of the marriage but this consideration is not the same
as that of the civil contract. Dower is an obligation imposed upon the husband as a mark of
respect for the wife. The major object of the dower is to provide wife for her subsistence after the
15
Syed Khalid Rashid, Muslim Law, 3rd ed. (Lucknow: Eastern Book Company, 2002), p.86.

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dissolution of her marriage so that she may not become helpless after the death of the husband or
termination of marriage by divorce. The maher is the sole property of the wife and neither
parents nor any other relatives have any right over it. The Islamic way of life comprehending
beliefs, ritual practices, personal appearances and rules of behaviour in society with the passage
of time has now turned from the basic purpose for which they have been made into the
disadvantages because dower and its associated rules are still not very familiar to woman. They
may simply ignore it by attaching it with God's wish and the man may simply leave the woman
without paying it back to his wife.

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 BIBLIOGRAPHY

Books-
 M. Hidayatullah and Arshad Hidayatullah, Mulla’s principles of Mahommedan Law, 1st
edn. (Kolkata: N. M Tripathi Private Limited, 1998).
 Aqil Ahmed, Mohammedan Law, 21st ed. (Allahabad: Central Law Agency, 2004).
 Syed Khalid Rashid, Muslim Law, 3rd ed. (Lucknow: Eastern Book Company, 2002).
 Syed Amer Ali, Mohammadan Law, 6th ed. vol.II, (Dhaka: Shams Publication, 2002).

Journals & Articles-

 All India Reporter
 Supreme Court Cases
 Ragini Sahay, “Dowry and Dower in Muslim Marriage: A study among Muslim Telis of
Delhi”, Vol. 26, No. 1 (June, 1996), pp. 47-52.
 Leila Salarpour Goodarzi, “Mahr and Divorce: An Islamic Marriage Concept and Its
Effects on Intrahousehold Bargaining Power of Couples”, Binghamton University,
February 2018.

Legal Database-
 Lexis Nexis
 Manupatra
 SSC Online
 JSTOR

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