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Submitted to:
Submitted By:
Deepak kaneriya
Associate Professor
2012BALLB 76
Family law-1Page1
Table of Contents
A BRIEF HISTORY OF DOWER...................................................................................................4
DOWER IN THE QURAN............................................................................................................6
Kinds of dower:...............................................................................................................................7
Prompt and deferred dower:........................................................................................................7
The Nature of Dower.......................................................................................................................9
Conclusion.13
Bibliography..14
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Acknowledgment:
I would like to thank my family law teacher Mrs. Kavita Singh for allowing me to pick up such
an interesting topic and giving me detail and idea regarding with my topic I would also like to
thank my seniors as well as my friends for providing valuable inputs during the course of this
project.
It is said that during pre-historic times man lived a barbaric life, which had the tribal form. For
unknown reasons marriage was prohibited between a male and a female of the same blood.
Hence the young men of a tribe, who wanted to marry, were compelled to choose their wives
from some other tribe . At that time ancestry was traced through the mothers. Men were
considered to be barren and sterile. After marriage they stayed with their wife's tribe as a mere
adjunct of it, because the wife required her husband's company. This period is known as the
period of matriarchy.
During this period also a marriage between the people having the same blood was prohibited.
Man had to choose his wife from some other tribe, and bring her to his own tribe. As there was
constant warfare among the tribes, the only way to get a wife was to kidnap a young girl from
some other tribe.
During this period the custom of kidnapping the girls was abolished. In order to get the girl of
his choice the man went to her tribe, became a hired worker of her father and worked for him for
some time. In consideration of the services rendered by him the girl's father gave her hand to him
and he took her to his own tribe.
When money became common, man discovered that instead of serving the bride's father for
years, it was better to present a suitable gift to him and take the girl immediately. That was the
origin of the dower (mahr).
According to this account, in the early days man lived as an adjunct of woman and served her.
During this period woman ruled over man. In the next stage, when power passed into man's
hands, he kidnapped women from some other tribe. During the third stage, in order to win a
woman, man went to woman's father and served him for years. During the fourth stage man
presented a sum of money to the woman's father. And that is how the custom of dower
originated.
It is said that since the time man abolished the system of matriarchy and laid the foundation of
patriarchy, he gave woman the status of a slave, or at the most, of an employee or a servant of
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his. He looked upon her as an economic tool, which, by the way, could satisfy his lust also. He
did not give her social or economic independence. The fruits of woman's labour belonged either
to her father or to her husband. She did not have the right to choose her husband, nor could she
carry out any economic activity for her own sake. The money which man paid as dower and the
expenses which he bore as maintenance (nafaqah) were in consideration of the economic gains
which he derived from her during the period of conjugal relations1
1 http://www.al-islam.org
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1. Dower is not the woman 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 woman.2
2. It is either a sum of money or other form of property to which the wife becomes entitled
by marriage It is an obligation imposed by law on the husband as a mark of respect for
the wife.3
3. Mahr or dower is sum that become payable by the husband to the wife on marriage,
either by agreement between the parties, or by operation of law.4
4. Mahr or Dower is a token of respect, enjoined by ISLAM for its object I;e women/
bride.5
2 Baillie
4 Tyabji
5 Hamilton on hedaya
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Kinds of dower:
SP rp o e p c e i fir e d
Broadly, there are two kind of dower:(i) specified, and (ii) unspecified. But the specified dower
has
been
further
divided
into-
(a)
prompt,
and
(b)
deferred.
(i) Specified dower An amount settled by the parties at the time of marriage or after, is called
specified dower. If the bridegroom is minor, his father may settle the amount of dower.
The husband is bound to pay the amount of the specified dower, however exercise or beyond the
reach it may be.
before or after consummation, but the deferred dower could not be so demanded.
In the case where it is not settled how much of the dower is prompt and what part of it is
deferred, the Shia law holds that the whole of dower is prompt; the Sunni law, however, holds
that only a part is prompt. This part is to be fixed with reference to (i) custom, or (ii) the status of
the
parties,
and
(iii)
the
amount
of
settled
dower.
There are two aspect of the prompt dower :1.The time factor and quantum factor. Prompt in theory means immediately on demand or at the
time of marriage, or at any time before consummation, or after consummation when demanded.
In practice, however, it is seldom paid promptly at the time of marriage or even when demanded;
and
equally
tardily
demanded.
(ii) Unspecified dower: - in such case where dower has not been settled at the time of the
marriage or after, it is fixed with reference to the social position of the wifes family and her own
personal qualification. Help would be taken by taking into accounts of dower fixed in case of
wifes sister, paternal aunts, etc., and according to the hedaya, the wifes age, beauty, intellect
and virtual will also be considered.
Under school of Muslim law, even where the wife stipulates that she will not demand any
dower, she remains entitled to it and the rule of estoppels will not apply to her. This implied
dower is called proper dower, or customary dower.
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paid. Even if the goods have been once delivered they may in such an even be returned. But if
consummation of marriage has taken place and the wife at her could cancel a part of the dower
remains
unpaid,
it
would
be
absurd
to
think
that
marriage
will.
Islam insists that dower should be paid to the wife herself. It sought to make dower into a real
settlement in favors of the wife a provision for the rainy day and socially a check on the
capricious
A husband thinks thrice before divorcing a wife when he knows that upon divorce the whole of
dower
would
be
payable
immediately.
There is a classic example given by someone, which must be mentioned here. A person
purchases a horse. To whom he must pay the price? Not to the horse itself, certainly. But to the
owner. Thus, if dower be regarded as sale-price, it must be paid to the guardian of the wife. Since
it is paid to the wife herself, it cannot be the price. It is a token of respect.
Confirmation of Dower :- The dower becomes confirmed.
1. By consummation of the marriage.
2. By a valid retirement or
3. Death of the party of dissolution of marriage.
Non-payment of prompt dower and restitution of conjugal rightsTwo suits were filed, one by Rabia Khatoon against her husband for dissolution of marriage and
The other by Mukhtar Ahmad against the wife for restitution of conjugal rights. The marriage
took place in 1948 and was consummated with the consent of the wife. In 1951, a child was born
to them after which the wife went to live in her fathers house. The respondent went to bring his
wife back but she refused to come back. No maintenance allowance was paid by the husband to
the wife since 1951 and the suits giving rise to the present appeal were filed in 1956.
In the suit filed by the wife it was alleged that the husband had not paid her prompt dower which
Was settled at Rs. 5000; that she continued to perform her marital relations with her husband for
Over two year and a child was born to them; that the husband treated her cruelly compelling her
to take shelter in her fathers house. She alleged that her husband had failed to maintain her
during all these years and had not paid her prompt dower.
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Husband alleged that the dower payable to the wife was deferred dower and it was only Rs. 500.
Court was of the view that
It is true that unless she makes a demand for her prompt dower the husband is Entitled to
conjugal rights, but if a demand for prompt dower has been made and the dower is not Paid, the
refusal of the wife to live with the husband would be justified even though this is not Assigned as
the reason of her refusal. The husband being in default is not entitled to the exercise of conjugal
rights and the failure of the wife to live with the husband cannot be a wrong.
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1. Whether wife / Guardian can demand for the dower in case wife was minor at time of
marrying?
2. If a person is major under personal law and is minor under Indian majority act. In that
case can she demand for dower?
1. Some authorities have chosen to call it 'consideration for the marriage,' while others as '
payment' in honor of the wife. But there can be no Mahomedan marriage without a dower either
fixed by the parties or presumed under the law.
If a Mahomedan minor who is a major by his personal law but a minor under the Indian Majority
Act enters into a marriage, as he is capable of doing, he must enter into a contract for payment of
dower. Even if he does not do so, the law will presume such contract.i
2. There a minor Mahomedan wife a major according to her personal law but a minor according
to the Indian Majority Act relinquished her dower on her husband's death-bed. The question was
whether she had the capacity to do this and the learned Judges held that relinquishment of dower
is not an act in the matter of dower.
when the Legislature permitted a person to act in the matter of that dower it only intended to let
person who was not otherwise competent under the law to act in the matter to initiate to the
religious act or ceremony which under the personal law of the subject, he or she was capable of
initiating.ii
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Bibliography
1.
2.
3.
4.
5.