Dower is of four kinds. It may be (i) “specified’ or (ii) “proper”, according to the mode of determination of its amount. It may also be (iii) “prompt’ or (iv) “deferred’, according to the time when it is payable.
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1. Specified Dower:
Specified dower is fixed by agreement between the parties, either before or at the time of marriage or even after marriage.
ADVERTISEMENTS:
Under Sunni law, specified dower must not be less than the value of 10 dirhams, the money value of 1 dirham (today) being equivalent to about twelve or thirteen rupees. The wife is entitled to this minimum amount even if the specified dower is less. (Under the Shia law, there is no fixed minimum for dower.)
But there is no upper limit, and a dower is never invalid on the ground of its being excessive. It is not uncommon to fix a figure which is beyond the means of the husband, e.g., a dower of Rs. 51,000 in the case of a poor man. The Court must decree the whole amount of the specified dower, though the husband had no means of paying it when it was stipulated or though its payment would leave nothing to the heirs of the husband.
Thus, in an old Peshawar case, it was held that if a husband transfers a field to his wife as dower, she is entitled, as against him, to a decree for possession. The Court further held that if there are other sharers in the field, they need not be made parties to the wife’s suit, and the Court’s decree does not affect their rights.
If, however, there is any specific legislative enactment on the point, the Court need not decree the entire amount of the specified dower. Thus, the Oudh Laws Act, 1876, contained a provision that the Court could not award the amount of dower stipulated in the agreement, but only such sum as was reasonable, regard being had to the means of the husband and the status of the wife.
2. Proper Dower (Mahr-I-Misl or Mahr-Ul-Misl):
ADVERTISEMENTS:
If nothing is said about dower at the time of marriage, the wife may claim to have a reasonable amount of dower settled for her, even if the marriage was contracted on the express condition that she should not claim any dower. In fixing the proper dower, the Court is guided by the amount of dower settled upon the other female members of the family of the wife’s father, as for instance, the father’s sisters.
In such cases, the social position of the husband and his means are not of much importance. As the Hedaya lays down, the wife’s “age, beauty, fortune, understanding and virtue” must be kept in mind when fixing proper dower. Thus, the Prophet once allowed the marriage of a poor Muslim for a silver ring, and on another occasion, merely on condition that the husband would teach the Koran to his wife!
Under Shia law, the proper dower should not exceed 500 dirhams. (Baille, II, 71)
In one case, a Muslim married a Christian woman in England. The Court observed that the marriage was governed by Muslim law, and therefore, the husband could divorce his wife by talak. The Court also held that the wife, in turn could also claim dower, although no dower was initially fixed at the time of the marriage. In such cases, proper dower could be claimed, i.e. dower which would be payable to a woman of similar status and circumstances. (Marina Jatoi v. Nuruddin Jatoi, P.L.D. 1967 S.C. 580)
3. Prompt Dower (Marjjal):
ADVERTISEMENTS:
The amount of dower is usually split into two parts prompt and deferred. Prompt dower is that which is payable on demand and deferred dower is one payable on dissolution of marriage by death or divorce.
Prompt dower is dower which is payable immediately on the marriage taking place, and it must be paid on demand, unless delay is stipulated for and agreed. Prompt dower may be realised at any time before or after consummation. Proof of intercourse between the parties is not necessary for its payment.
It is only on payment of the prompt dower that the husband becomes entitled to enforce his conjugal rights, unless the marriage is already consummated. The right of restitution, so far from being a condition precedent to the payment of prompt dower, arises only after the dower has been paid.
In Rabia Khatoon v. Mukhtar Ahmed (1966 A.A. 548), it was observed that the wife may refuse to live with her husband and to admit him to sexual intercourse, so long as the prompt dower is not paid. If the husband sues her for restitution of conjugal rights before sexual intercourse takes place, non-payment of 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 principle was first laid down in Abdul Kadir v. Salima, (1886) 8 All. 148.]
4. Deferred Dower (Muwajjal):
Deferred dower is payable on the dissolution of the marriage either (i) by the death of either of the parties, or (ii) by divorce.
In a case in which no specific proportion of prompt and deferred dower has been fixed by agreement at the time of the marriage, or by custom —
(i) The whole is regarded as prompt according to Shia law;
(ii) Part is regarded as prompt, and part as deferred according to Sunni law; the proportion is regulated by the status of the parties and the amount of the dower settled. The Court has, however, the power to award the whole as prompt. (Huseinkhan v. Gulab Khatun, (1911) I.L.R. 35 Bom. 386)
On the Dissolution of the Marriage:
(a) If the marriage was consummated, the wife is entitled to the immediate payment of the whole of the unpaid dower, both prompt and deferred;
(b) If the marriage was not consummated, she is entitled to only half the specified dower.
Wife’s Interest in Deferred Dower:
The interest of the wife in the deferred dower is a vested interest, and not a contingent one. It is not liable to be displaced by the happening of any event, not even her own death, because her heirs can claim the dower, if she dies.
Wife’s Rights and Remedies if Dower is not Paid:
Prompt Dower:
So long as the prompt dower remains unpaid, the wife may refuse (i) to live with the husband, and (ii) to admit him to sexual intercourse. Non-payment of prompt dower is a complete defence in a suit for restitution of conjugal rights filed before consummation; if the suit is filed after consummation, the decree will be for restitution, conditional on payment of the prompt dower.
There is another remedy also to recover the unpaid prompt dower. The wife, (and after her death, her heirs) may sue for such dower within three years from the date when — (i) it is demanded and refused; or (ii) the marriage is dissolved by death or divorce.
Deferred Dower:
Deferred dower becomes payable only on dissolution of marriage either by death or divorce. If it is not so paid, the wife (and after her death, her heirs) may sue for it within three years from the dissolution of the marriage.