The amount of dower may be fixed by mutual agreement between the parties to the marriage. The amount of the dower may be fixed by the father if the son is minor or of unsound mind. Among the Sunnis, the rule is that the dower as fixed by the father, is binding on the son; and the father has no personal liability to pay it. He is not liable as a surety or in any other capacity.
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But among the Shias, the rule is that if the son has no means to pay it, the father is liable. Under the Ithna Ashari law, a woman, who has attained majority, and is not of weak or facile disposition, may validly agree not to receive any mahr.
ADVERTISEMENTS:
Under the Hanafi law, the wife in every case is entitled to receive the minimum amount of mahr, viz., ten dirhams, even if she has agreed to receive less. Under the Shia and the Shafi law, the wife agreeing to any amount (even less than ten or three dirhams) is not entitled to an amount more than what is fixed, unless the amount is destitute of any value.
Sometimes, it happens that for the purpose of glorification of the husband, a large sum of dower is announced in public, but in private, a moderate amount, in accordance with the means of the husband and the status of the wife, is fixed. In such a case, the dower fixed in private is the real dower and that alone can be realized.
The specified dower is usually in two parts: (i) prompt dower, and (ii) deferred dower.
1. Prompt and Deferred Dower:
The prompt is payable immediately after marriage at any time on demand by the wife, while the deferred amount is payable at such time, or on the happening of such contingency, to which it is deferred; but in every case, it is payable immediately on the dissolution of marriage, by divorce or death of either party. Ordinarily, which part of the dower is prompt and which is deferred, is fixed in the contract or in mahr-nama or in kabilnama.
ADVERTISEMENTS:
It is usual to fix half of the amount as prompt and the other half, as deferred. But there is no hard and fast rule. It is customary to pay the prompt dower immediately on marriage, or, in any case, at any time thereafter, on the demand of the wife. Parties are also free to stipulate the immediate payment or postponement of the whole of the dower.
When at the time of marriage, it is not specified as to which part of the dower is prompt and which part is deferred, the Shias take the view that the whole of the amount is prompt. Among the Sunnis, the rule is that one part should be treated as prompt and the other part as deferred.
The Madras High Court takes the view that irrespective of the fact whether the parties are Shias or Sunnis, in the absence of any specific contract, the entire amount should be presumed to be prompt.
A full Bench of the Lahore High Court held the view that the matter may be determined on the basis of usage or custom in wife’s family: in the absence of usage or custom, the presumption is that one-half is prompt and the other half deferred.
ADVERTISEMENTS:
It is also possible that the proportion may be different in different cases. According to the High Court of Bombay, even when the parties are Hanafis, the court has power to award the whole of the dower as prompt dower.
The basic distinction between the prompt and deferred dower is this: the prompt dower is realizable and payable at once after the solemnization of marriage; and the wife can refuse all conjugal rights to the husband till her prompt dower is paid.
On the other hand, the deferred dower becomes payable on the expiry of the specified period, or on the happening of the specified contingency, to which it is deferred, and in every other case, it becomes payable on the dissolution of marriage by divorce or death of the party.
The Hedaya is specific on this: “The wife has the right to deny her person [to her husband] or to go on a journey with him until she receives the dower. Her right in the consideration is the same as that of her husband in the object of the consideration [his conjugal right over her person] as in sale. The husband has no power to prevent her from travelling or going out of his house and visiting her friends until he has paid the whole eligible dower, because the right of restraint is given to a person who has right, and he has not the right to secure fulfilment before rendering fulfilment [himself].”
It is a settled law in India that a wife, who has not been paid her prompt dower, has the right to refuse to live with her husband, or admit him to sexual intercourse, and if the husband sues for restitution of conjugal rights, his suit will not succeed. But if consummation of marriage has taken place, then the suit for restitution cannot be dismissed on the ground of non-payment of prompt dower.
Abu Yusuf and Imam Muhammed, regarding the surrender of the wife to her husband as bearing an analogy to delivery of goods in sale, held the view that the lien of the wife for her dower as a plea for resisting cohabitation ceased to exist on consummation.
In view of this, in Abdul Kadir v. Salima, Mahmood J. observed “…..after consummation of marriage, non-payment of dower, even though eligible, cannot be pleaded in defence of an action for restitution of conjugal rights; the rule so laid down having, of course, no effect upon the right of the wife to claim her dower in a separate suit”. Mulla, it is submitted, rightly says that in such a case decree for restitution of conjugal rights should be passed conditional on payment of prompt-dower.
2. Proper Dower:
When the amount of dower is not fixed under the contract, then the wife is entitled to proper or customary dower (mahr-i-misl or mahnd-mithl). The wife is entitled to proper dower even if she has contracted out the dower totally. The law in this regard is the same in both sects of the Muslims.
‘The mahr-i-misl of a woman is regulated by a regard to the nobility of her birth, the beauty of her person, and the custom of her female relations”. “In fixing the amount of the mahr-i-misl regard must be paid to local customs, with special reference to the dower of the woman who are equal of the female in question, in knowledge, lineage, wealth, understanding and such like”.
According to the Sunni authorities, the proper dower is to be fixed with reference to the social position of her father, and her own personal qualifications, and considering the amount of dower that has been given to her female paternal relations, such as consanguine sisters or paternal aunts.
In cases where no examples are available from women of her father’s family, the court would inquire about the customs among strangers occupying the same rank in life and under similar circumstances. It should be noted that in fixing the quantum of proper dower, the husband’s social position or status is not the criterion.
Under the Shia law, the mahr-i-misl can never exceed 500 dirhams.[311] In case either party dies before the consummation of marriage, and no dower has been stipulated in the contract, then the wife is entitled to no dower. She is not entitled to a present either.
If, at the time of marriage, fixation of mahr, has been left to the discretion of the husband, then he may fix any amount of mahr, but if it is left to the discretion of the wife, she cannot fix it at more than 500 dirhams. It would, thus, appear that among the Shias, the mahr may be of three types:
(a) The specified, mahr-i-musamma,
(b) The proper dower, the mahr-i-misl, the dower of an equal, and
(c) The dower on the basis of tradition, the mahr-i-sunnat, i.e., the amount of dower fixed for the prophet’s daughter Fatima. This is also called sharhfatimi: in Indian currency it comes to Rs. 32.32.