What is Dower/Mahr?

 
Dower or Mahr is a sum of money that a husband pays to his wife on marriage.
According to Mulla, “It is an obligation imposed upon the husband as a mark of
respect to the wife.”
There existed many forms of sexual relationship between a man and a woman in the
pre-Islamic era. Men, after using a woman as a chattel, used to make them move
out. The condition of women was helpless, and their existence was of no vital use.
Therefore, the concept of Dower worked as a sense of security to the wife. If in
case, the husband abandons the wife or compels her to move out, the amount
of Dower becomes the source of her livelihood.

Dower Essential for Muslim Marriage

Dower or Mahr is considered as an important essential to perform marriage (nikah)
in Islam. It is regarded as a consideration to the wife in marriage. Without it, the
marriage is deemed incomplete. It is in the form of a gift given by a husband to the
wife.
Abdul Kadir vs. Salima, 1886
In this case, Justice Mahmood said that in Muslim Law, Dower is a sum of money
which a husband promises to pay to the wife in consideration of nikah. And if the
Dower is not fixed at the time of marriage, then the law gives rights to the wife to
decide upon the non-payment of Dower.

Classification of Dower
Dower can be classified into two categories:
1. Specified Dower
a. Prompt Dower
b. Deferred Dower
2. Customary Dower
What is Specified Dower
If the amount of Dower is decided at the time of marriage, it is known as specified
Dower. It may be settled even before or after the ceremony of marriage. If the
parties to the marriage are minor, then the guardian can fix the sum of Dower on
behalf of the minor.
Prompt Dower
Prompt means ‘immediately.’ This Dower is paid by the husband to the wife on
demand immediately after the marriage. If the husband doesn’t give the sum of
Dower to the wife, she may refuse herself to her husband.
Even if the marriage has been consummated, the right of prompt Dower of a wife
does not extinguish. The wife has right to recover that amount afterwards. For
recovering the prompt Dower, wife has three years of limitation period.
Deferred Dower
The deferred Dower is given to the wife if the marriage dissolves or the husband
dies. The purpose of giving this Dower is the maintenance of the wife after the
husband.
The Dower, which is to be paid at the time of marriage like prompt Dower, can
become deferred Dower if the wife doesn’t demand immediately after marriage. The
moment she demands the sum of Dower, the Dower is no more deferred and has to
be paid to the wife immediately.

What is Customary Dower

If at the time of marriage, the amount of Dower is not fixed by the parties or the
parties agree to the fact that the wife will not claim any dower after marriage. Then in
such a situation, the wife is entitled to customary Dower.
The basis for determining customary Dower is-
1. The personal qualification of the wife. Everything is considered from her beauty to
intelligence.
2. The social status of wife’s father and family background is considered.
3. The amount of Dower given to her family females is considered.
4. The economic and social status of husband is also taken into consideration.
5. The other factors, such as present circumstances and family situations at the time
of determining Dower.

Remedies to Wife on Non-Payment of Dower

1. If the amount of Dower is not paid to the wife, she can refuse to cohabit with her
husband until the sum is paid to her. If the marriage is consummated then, she can’t
deny cohabiting.
2. If the Dower is not paid to the wife then she can file a suit against her husband
and recover the sum of Dower. Or, if the husband has died, she may recover it from
his property or heirs.
3. The wife can remain in possession of the husband’s property until the amount of
Dower is paid. But she does not have the right to sell or alienate the property.
A Thought About Dower
So many writers say that Dower is like a consideration given in a contract. But it is
not a mere consideration. It is a mark of respect given to the wife at the time of
marriage. Dower or Mahr is a security which is given to the wife for a secured
livelihood. This is the reason it has been made as an essential element in the
performance of Muslim marriage.

Divorce In Islam
Muslim Marriage Act: Divorce under Muslim Law is of two types:-
1. Extra Judicial Divorce
2. Judicial Divorce.

Extra Judicial Divorce in Islam

The extra judicial divorce in Islam consists of the following divisions:-
I. By husband: Talaq, Ila, Zihar
II. By wife: Talaq-i-tafweez
III. By mutual consent: Khula, Mubarat
Talaq in Islam
1. Talaq-e-Ahsan: It consists of a single pronouncement of divorce. It is irrevocable
even after the expiration of the period of iddat.
2. Talaq-e-Hasan: When the husband repudiates his wife during a Tuhr (period of
purity) in which he has not had carnal connection with her, and he repeats the
repudiation during the next two Tuhrs, which makes the divorce final and
irrevocable.
3. Talaq-ul-Biddat: Three pronouncements are made in a single breath. It becomes
irrevocable as soon as it is pronounced. It is considered to be the worst form of
divorce.
New: The supreme court in Shayara Bano v. Union of India, 2017 has declared
talaq-ul-biddat as unconstitutional stating that, it leaves a woman in a miserable
situation and there is no scope of reconciliation once the pronouncement is made.
4. Ila: If a husband, after having attained puberty, swears by god not to have sexual
intercourse with his wife for a period of four months or for any unspecified period, he
is said to make Ila.
5. Zihar: If the husband compares his wife to his mother or to a female within
prohibited degrees of relationship, the wife has the right to avoid him until he
performs punishment for his wrong done/sin.
6. Khula: Khula is separation by putting an end to the matrimonial bonds and rights.
It is that right in which the wife agrees to give a certain amount of consideration to
the husband for her release from the marriage ties.
7. Mubarat: Mubarat is the dissolution of marriage by mutual agreement. The offer
may be made by any party, either husband or wife.
8. Talaq-e-Tafweez: A husband may delegate his power of talaq to his wife. An
agreement is made before or after marriage providing that the wife is at liberty to
take divorce from his husband provided that such power is not absolute and
unconditional and that the conditions are reasonable and not opposed to law.
Judicial Divorce in Islam
Dissolution of Muslim Marriage act, 1939: Judicial divorce in Islam consists of
– Lian and Fask.
1. Lian: When the husband put charges of adultery on the wife, and later the
charges are proved false, the wife is entitled to sue and ask for a divorce.
2. Fask: Muslim law allows a lady to approach a qazi for dissolving a marriage
under following conditions:
I. If the marriage is irregular.
II. If the marriage was within prohibited degrees etc.

Grounds on Which Muslim Woman Can Seek Divorce

Under section 2 of this Act, a Muslim woman can seek divorce on the following
grounds:
1. Where the husband is not heard of alive for a period of four years.
2. The husband has failed to provide maintenance to the wife for at least two years.
3. The husband has been under imprisonment for seven or more years.
4. The husband is unable to meet the marital obligations.
5. If the girl is married before fifteen and decides to end the relationship before she
turns eighteen.

What is Muta Marriage & what are its conditions?

Meaning of Muta Marriage
The meaning of ‘Muta’ is enjoyment. Muta Marriage is a marriage for a fixed
period of time that is only for sexual pleasure. Muslim Law in Shia sect (athna
ashria school) recognizes the concept of Muta Marriage.

Conditions and Essentials of Muta Marriage

1. The parties must have attained the age of puberty, which is above 15 years of
age.
2. There is no restriction on the number of Muta wives.
3. There must be free consent by the parties.
4. The time period and Dower must be mentioned in the nikah nama.
5. The cohabitation between the parties is lawful.
6. The children born out of such marriage are legitimate and have the right to inherit
the properties of both the parents.
7. The husband and wife don’t have any mutual right of inheritance.
8. Muta wife is not entitled to claim maintenance under personal law, but she can
claim under Section 125 of CrPC.
9. The wife is entitled to get full Dower if the husband cohabits, but if the husband
doesn’t cohabit, then the wife is entitled to half dower.
10. Divorce is not recognized under Muta Marriage.

Termination of Muta Marriage

Muta Marriage can be terminated by one of the following reasons.
1. Expiry of time period.
2. Death of either party.
3. Hiba I Muddat, that is, husband gifts the unexpired term of the marriage.
Note: The parties must not be under a prohibited degree of relationship.

.
 Parentage in Muslims Law
Parentage is the relation of parents to their children. The parentage includes
maternity and paternity.
Maternity is the legal relationship between the mother and the child. Paternity is the
legal relationship between the father and the child.
Parentage is generally used for a legal relationship which the child has with the
parents. These legal relationships are associated with certain rights and duties such
as rights of inheritance, maintenance, and guardianship.

How Maternity is Established in Muslim Law

Under Sunni Law, the maternity of a child is established in the woman who gives
birth to the child irrespective of whether the birth was the result of a valid marriage
or adultery (Zina).
But under Shia Law, only birth is not sufficient to establish maternity. It has to be
also proved that the birth was a result of a lawful marriage.
So we can say under Sunni Law, an illegitimate child has his maternity in the woman
who gave birth, and the child is entitled to inherit from mother alone.
But under Shia Law, an illegitimate child has neither maternity in the woman who
gave birth nor paternity in the father. So in Shia Law, the legitimate child can inherit
neither from father or mother.

How Paternity is Established in Muslim Law

Paternity of a child can only be established by marriage between his or her parents.
The marriage may be valid or be irregular. But it does not become void. Paternity is
established in the husband of the mother of a child.
Paternity is established in a person said to be a father by proof or legal presumption
that the child was begotten by him on a woman who was at the time of conception
his lawful wife and was in good faith and reasonably believed by him to be such or
whose marriage being valid.
An issue of void marriage has neither paternity nor maternity under Shia Law.
In the case of marriage, Mehar, and divorce, 15 years is the age of majority in
Muslim Law. Other than these provisions, the age of majority is 18 years.

Guardianship in Muslim Law

Muslim Law recognises three kinds of guardianship:-
1. Guardianship in marriage (Jabar)
2. Guardianship of body of the minor (Hizanat)
3. Guardianship of property (Walayat-i-mal). It is classified into three parts-
a. De jure
b. De facto
c. Certified

1. Guardianship in Marriage
It is one of the essentials of a valid marriage that the parties are competent to enter
into a marriage, which means they must have attained the age of puberty.
This general rule admits one exception- where the marriage is solemnised on behalf
of the minor by the guardian.
Under Muslim law, the father has the power to give his children of both sexes in
marriage without their consent to enter into marriage, but it is before the Shariri
stage.
Note: Shariri or sariri stage means between 7 to 15 years of age, the father can give
consent of marriage.
Persons Entitled
The list of the persons who can act as a guardian in the marriage of minor in the
following order:-
i. Father
ii. Father’s father, how high so ever.
iii. Full brother and other male relations on father’s side.
iv. Mother
v. Maternal relations within the prohibited degree.
vi. Kaazi or the Court.
Under Shia Law, only the father and failing him the father’s father how high so ever,
can act as a guardian in the marriage of a minor.
Testamentary Guardian for Marriage
Under Muslim law, testamentary guardian for marriage is not recognised. A father
has no power to appoint any person as guardian for marriage by his will.

2. Guardian of the Body of Minor (Hizanat)

I. Mother
The mother is entitled-
1. In Hanafi Law, the custody of her male child until he has completed the age of
seven years and of her female child until she has attained puberty.
2. In Shia Law, the custody of her male child till the age of two years and the
custody of her female child till the age of seven years. The right continues though
she is divorced by the father of the child unless she marries a second husband, in
which case the custody belongs to the father.
Where Wife Loses Her Right of Custody
1. If she leads an immoral life.
2. If she neglects to take proper care of the child.
3. If she remarries.
4. If, during the marriage, she goes and resides at a distance from the husband’s
place.
II. Female Relations in Default of Mother
On the failing of the mother, the custody of the boy under the age of seven years
and of a girl who has not attained puberty (Hanafi school) goes to these female
relatives in the following order:-
i. Mother’s mother
ii. Father’s mother
iii. Full sister
iv. Uterine sister
v. Full sister daughter
vi. Uterine sister daughter
vii. Maternal aunt
viii. Paternal aunt
Note: Uterine means related to uterus or womb or born to same mother but not
same father.
III. Other Male Relations
In default of the mother and other female relations the right of custody in Hanafi Law
belongs to the following persons:-
i. Father
ii. Nearest paternal grandfather
iii. Full brother
iv. Full brother’s son
v. Full brother’s of father
vi. Son of father’s full brother
Father is entitled in Hanafi Law to the custody of a boy over seven years of age and
of an unmarried girl who has attained puberty.
In Shia Law, custody of a male child over two years and an unmarried girl of seven
years or more.
When Court Will Interfere With Father’s Guardianship
The following are the grounds where a court will interfere with the father’s
guardianship of his children:-
1. If he is unfit in character and conduct.
2. If he is unfit as regards to external circumstances.
3. If he waives his right.
4. If he enters into an agreement to the contrary.
5. If he is out of justification of court and intents to go abroad.

3. Guardianship of Minor’s Property (Wilayat-e-mal)

If a minor owns movable or immovable property, a guardian is necessary to manage
it. The guardianship of the property of minor may be classified as follows-
I. Legal or natural guardian
II. Guardian appointed by the court (certified guardian)
III. De-facto Guardian
I. Legal Guardian
The person entitled in the following order as a guardian of minor’s property:-
i. Father
ii. Executor appointed by the father’s will.
iii. Father’s father
iv. Executor by the will of the father’s father.
The mother, brother, uncle, etc. are not entitled to be the legal guardian of the
property of the minor.
In the case of, Ghulam Hussaini Qutubdin Maner vs. Abdul Rashid Abdul
Razzaq Maner, 2000, Supreme Court of India has held that the mother of the minor
cannot be appointed as his guardian to accept gift on his behalf during the lifetime of
the minor’s father.
II. Guardian Appointed by the Court
In the absence of a legal guardian, the duty of appointing a guardian for the
protection and preservation of minor’s property fall in the Court. While appointing a
guardian, the court takes into consideration the welfare of the minor.
For Example, Court may appoint a mother instead of a paternal uncle as the
guardian of the property of the minor.
Without the previous permission of the court, the guardian appointed by the court
cannot:-
a. Charge the immovable property of the minor.
b. Mortgage
c. Transfer by sale
d. Exchange
e. Lease any part of the immovable property for a term exceeding five years or for
any term extending not more than one year beyond the date when the ward will
cease to be a minor.
III. De-facto Guardian
A person who is neither a legal guardian nor a guardian appointed by the court but
has voluntarily placed himself in charge of the body and property of the minor.
The position of de-facto guardian is quite different from the legal guardian and the
guardian appointed by the court. He has no power or authority to alienate the
minor’s property.

Legitimacy in Muslim Law

A person born in lawful marriage is said to be the legitimate child of the spouses. So
the main point in case of the legitimacy of a child is the marriage between his or her
parents.
Special notes regarding the Presumption of Legitimacy
1. A child born within six months after the marriage: the child is illegitimate unless
the father acknowledges the child.
2. A child born after six months from the date of marriage is presumed to be
legitimate.
3. A child born after the dissolution of marriage is legitimate-
a. Under Shia Law, if born within 10 months.
b. Under Hanafi Law, if born within 2 years.
c. Under Shefai and Maliki, if born within 4 years.

Legitimacy When Conclusively Presumed

According to section 112 of the Indian Evidence Act, if a child is born during the
marriage or within 280 days after the dissolution of marriage, the child shall be
presumed to be the legitimate child of the spouses.
The Evidence Act supersedes the rule of Muslim law. The question arises whether
the provision of the Indian Evidence Act supersedes the provisions of Muslim law.
Opinions are divided, but the balance of authority remains in favour of the Indian
Evidence Act.
 Acknowledgement in Muslim Law
Muslim law does not recognize the institute of adoption, which is recognised by
other systems.
Muslim law recognizes the institution of ‘IKRAS’ (acknowledgement) where the
paternity of a child, which means his legitimate decent from his father, cannot be
proved by establishing a marriage between his parents at the time of conception of
birth.
Muslim law recognizes acknowledgement as a method whereby such marriage and
legitimate decent can be established as a matter of substantive law for the purpose
of inheritance.
Mohammed Allahdad Khan vs. Mohammed Ismail Khan (1887)
Justice Mehmood held that where marriage cannot be proved by direct evidence
and no legitimacy be established, Muslim law prescribes a means whereby the
marriage and legitimacy may be established as a matter of substantive law, and that
is acknowledgement of paternity.
Acknowledgement under Muslim law is a rule of Substantive Law and not a rule of
evidence. It means it is not a presumption under the Evidence Act.
It confers the status of sonship and rights to succeed. A child whose illegitimacy is
proved by reason of the union between the parents not being lawful; such a child
cannot be proved by acknowledgement.

Necessity of Acknowledgement of Legitimacy

When there is direct proof of marriage and a child born out from such marriage, the
question of acknowledgement does not arise because, in such cases, the legitimacy
is ipso facto established.
If there is no such direct proof of legitimacy, then legitimacy may be proved by
indirect proof, which is called acknowledgement.
Note: Acknowledgement is made by the father only not mother. In other words, the
doctrine applies only to cases of uncertainty about legitimacy. Acknowledgement is
made on the assumption of a lawful union of the parents and the acknowledged
child.

Basic Principles of Acknowledgement

1. Express or implied acknowledgement
It is not necessary that an acknowledgement should be express. It may also be
implied. The acknowledgement may be of a son or daughter, but it must be made by
the father only. The acknowledgement of the child must not be casual.

Muhammad Ali Khan vs. Muhammad Ibrahim Khan 1929 PC

The father made the acknowledgement of the child in a casual manner. He never
intended that his acknowledgement should have serious effects. It was held by the
Privy Council that the act of the father is not sufficient to confer the status of
legitimacy.
2. Age of the Acknowledger
The age of the parties must be such that it is possible that they may be father and
son. According to Bailie, the acknowledger must be at least 12.5 years older than
the person acknowledged.
3. The child of others
The child who is acknowledged must not be known as a child of another.
4. Offspring of Zina
An offspring of Zina is one who is born either without marriage or a mother who was
the married wife of another or of void marriage.
When the man has committed Zina with a woman, and she has delivered a son,
such a son cannot be acknowledged. So the acknowledgement must be of the child
who is offspring of a legal marriage.
5. Legal marriage possible between parents of the child acknowledged
The acknowledger and the mother of the child must have been lawfully joined in
marriage at the time when the child was begotten. It is essential to show that lawful
marriage is possible between the acknowledger and the mother of child. And the
child is not the fruit of an adulterous intercourse.
Similarly, if it is definitely proved that no marriage took place between the parties,
the issue will be illegitimate, and the acknowledgement will be ineffective.
6. Person acknowledged should confirm acknowledgement
The child, if adult, must confirm the acknowledgement.
7. Competency of the Acknowledger
The acknowledger must be competent to make a contract, which means he must be
major and of sound mind.

Effects Of Acknowledgement
Acknowledgement produces all the legal effect of a natural paternity and vests in the
child the right of inheriting from the acknowledger.
In the case of wife, which means the mother of an acknowledged son, it has the
effect of giving her the status of legal wife and hence the right of maintenance and
inheritance.