DEPARTMENT OF LAW - DR FARID KHAN

 

WHEATHER ‘DOWER’ IS A SALE PRICE OF A BRIDE?

Dr. Farid Khan

Assoc. Prof. Dept. of Law

S.V. College Aligarh

Affiliated to Dr. B.R. Ambedkar University Agra

Dower is a sum of money paid by the husband to the wife in consideration of marriage. It is a sum which is generally settled by the parties at the time of Nikah/Marriage to be paid by the husband as a mark of respect.

Before the advent of Islam, two kinds of marriages were prevailing in Arab.

1.     Bina

2.     Baal

In the Bina form of marriage, the husband visits the wife`s house, he does not take the wife with him. The wife was called sadiqa, she was considered as girlfriend the gift- sadaq was given to the parents or the relatives of this lady.

After the advent of Islam, in the second marriage- Baal. Prophet Mohammad(PBUH) use the dower to uplift the status of women, means the gift now belong to the wife instead of parents or relatives.

There are two kinds of dower

1.     Specified Dower

a.   Prompt (Mehr-e-muajjal)

b.   Deferred (Mehr-e-mawajjal)

2.  Unspecified Dower

     a. Proper Dower

Prompt (Mehr-e-Muajjal)-  It is a dower which the wife can demand at any time, whenever she demands even she can refuse to feed the child until she is paid her dower amount.

In case of deferred dower- it is the husband who decides the time to pay the dower.

Proper dower – there are few marriages in which the dower amount is not fixed at the time of marriage, it is left to be decided in future and unfortunately the marriage is broken, the question of dower arises.

In this situation husband wants to pay nothing, on the other hand wife want everything and therefore the mediation from both the sides is done and what would be the proper dower is decided.

The minimum amount of dower is 10 dirhams approx. 500 rupees on the contrary there is no maximum limit, but whatever amount is decided the wife has every right to diminish it to zero on the contrary the husband can enhance the amount from Re 1 to 100 million.

It is correct to say that generally the dower is paid/decided in cash but it can be in kind, i.e. in the form of jewelry, movable or immovable property, precious stones clothes or recitation of Quran or any kind of education. Means any kind of worldly or heavenly benefit can be a dower.

Unfortunately the dower is considered as the sale price of a bride is completely incorrect because-

Ø Mostly the amount of dower fixed is rupees 5000 to 50000. Can it be the sale price of a bride.

Ø The dower amount is paid to the wife not to her relatives/parents. If it is a sale price it has to be paid to the owner/parent.

Ø Generally the husband ask to forgive the amount of dower and it is done by her. Therefore in most of the cases it is not paid.

As I have discussed previously, Prophet Mohammad(PBUH) wanted to uplift the status of women. It is the dower amount which can play an important role in her life after divorce or in case of the death of husband, as a means of rainy day.

Actually dower as a sale price has become a debatable topic after a famous case-

Abdul Qadir

Vs

Salima

1886- Allahabad

Mehmood J in this case has defined “Muslim Marriage is purely a civil contract”. It is correct to say that Muslim Marriage has all the essentials of a contract such as

1. Offer

2. Acceptance

3. Consideration (something in return)

4. Breach of Contract

5. Conditions of Performance

6. Lawful Object &

7. Being Void

It is correct to say that there is offer as well as acceptance from both the sides, as a consideration some amount either in cash or kind is fixed, there is breach in the form of divorce or death of a spouse, there are conditions/restrictions to be performed by the parties- parda, obedience, chastity, unlike the contract the marriage also has its object i.e. legalizing children, performance of sex, reciprocal rights, duties and mutual inheritance.

In the last I want to say the dower is not a sale price but it plays a very important role- a hurdle in the ease of divorce. If husband wants to divorce the wife, he has to pay the dower amount, if he is not in a position to pay he cannot divorce, in my opinion dower is the tie for both of them to be united with their children and dower as a chain.