Filed Under: Opinion, World | Posted: 07/27/2008 at 12:54AM
Comments | Region: Bangladesh
Dower: A basic marital right of women
Shah Md. Mushfiqur Rahman
What is dower?
Dower is one of the basic legal rights of a Muslim wife. In Islamic law dower is a sum of money or other property to be paid to the wife in consideration of the marriage. Though Muslim marriage is in the nature of a civil contract and dower is consideration on the part of the husband, it is not understood to mean the same thing as in the law of contract. Rather, it symbolizes husband’s respect to the wife.
Dower and dowry distinguished
Dower is a sum of money receivable by the wife from the husband as a consideration for the marriage. On the other hand dowry is an extra-dower consideration payable by one party to the marriage to another. Taking or paying or abetting payment of dowry has been made punishable under section 3 and 4 of the Dowry Prohibition Act, 1980.
Classification of dower
Dower may be either specified or unspecified. The amount of dower may be fixed either before or at the time of marriage or even after marriage. In our culture the amount of dower is settled during the execution of marriage contract. Usually an entry mentioning the amount is made in the Register of marriage by the Nikah Registrar (Kazi).
But failure to fix the amount before or during the marriage ceremony does no way relieve the husband from his obligation to pay dower. He still remains liable for payment and if no amount is agreed upon by the parties, the Court will do the task. In determining the amount the social position of the husband and his means are given little importance.
The obligation to pay dower is a legal responsibility on the husband. He can not deny this liability just because there is no mention of any dower in their contract of marriage. Regard is put to wife’s personal qualifications, social position of her father’s family and the amount fixed in the case of the other female members of her father’s family e.g. sisters, paternal aunts etc.
Amount of dower
Different majhabs (sects) of Islamic law follow different rules regarding the minimum amount of dower. According to one Hadith, the Prophet (Sm.) requested an extremely poor man to teach the Koran to his wife and it was considered enough to relieve him from his obligation of paying dower. Even a handful of dates or a pair of shoes would do, suggest Hadiths. For maximum, there is no amount fixed among Sunnies. Any sum agreed upon by both the parties would be good.
Time of payment
In terms of time of payment dower can either be prompt or deferred. Prompt dower is payable immediately after the marriage on demand by the wife. On the other hand deferred dower is payable on the dissolution of marriage either by death or divorce. In our culture it is usual to split the whole amount into two parts and stipulate that one shall be paid at once i.e. during the marriage, and the other on the death of the husband or divorce or the happening of some specified event.
But difficulty arises when it is not settled whether the dower is prompt or deferred. By operation of section 10 of the Muslim Family Laws Ordinance (MFLO) 1961 the entire amount of the dower shall be presumed to be payable on demand if the time of dower is not specified in the nikah nama.
Increase or decrease of dower amount
The husband may at any time after marriage increase the dower. Likewise, the wife may remit the dower, partly or fully. Such a remission is valid though made without consideration. But the remission must have been made with free consent. In a case-law it is ruled that a remission made by a wife when she is in great mental distress owing to her husband’s death is not one made with free consent and is not binding on her [Case: Nurannessa vs. Khaje Mahomed (1920) 47 Cal 537]. Again, if a wife feels that the only possible way to retain the affection of her husband is to give up her claim for dower and forgoes her claim by executing a document, she is not a free agent [Case: Shah Bano vs. Iftekhar Muhammed PLD 1956 (WP) KAR. 363].
Does divorce by wife affects her right to dower?
There is a misconception among common people that the wife deprives herself from right to dower if she opts for divorce. This thought has no ground. Dower is one of the central issues associated with Muslim marriage which can only be relinquished by the wife. There though has another form of dissolution of marriage called Khula. It can take place where the wife is not accorded with the power of talak-e-tafwid and she also does not go to the court for dissolution. In such a case it would not be illegal for husband to divorce her in consideration of release from liability to pay dower.
Consequence of non-payment
If a husband denies paying prompt dower the wife may refuse to live with him or to admit him to intercourse so long as the dower is not paid. But during this period of refusal or living apart the husband would still be liable to maintain her until the dower remains unpaid.
Widow’s right of retention
After the husband departs without satisfying dower, the wife is given with an extraordinary right by law to realize her claim. If she is lawfully in possession of her deceased husband’s estate, she can retain it until she gets her demand of dower satisfied by the heirs of the late husband.
The writer is advocate, member of Dhaka Bar Association.