Muslim Matrimonial Contract with Extra Conditions
Matrimonial contract is civil in nature. You can attach reasonable conditions to the marriage agreement.…
Dower rights of women are mandatory in any Muslim marriage. In Arabic language it is called mahr, mehr or meher. It is a gift which becomes payable to wife immediately after marriage but before sexual intercourse. It is not essentially to be money but can be any valuable thing like property, ornaments or anything else which is agreed between the Muslim marriage partners. It is in fact a financial gain which the wife receives as a respect by virtue of the marriage contract itself.
However, it is not a ‘bride price’ in any sense. The main difference between a dower and bride price is that former is paid to the wife while the later is paid to the parents. You can understand that the wife is not selling anything to the husband. It is just a token of respect and a part of financial rights of the women in Islam.
It is generally supposed that the main object of dower in Muslim marriage is to offer protection to the wife against the arbitrary powers of the husband in exercising the right of divorce. However, it was neither goal of the dower nor intended by Quran. When procedure of Quran for divorce is followed the arbitrary powers assumed by husband in exercising the right of divorce become minimal. On the other hand the dower rights are always obligatory.
The dower rights have been existed in any nations in one form or the other including Arabs. However, the concept of dower rights was refined by God and his prophet Muhammad (PBUH). Islam makes dower obligatory whether written in the marriage certificate or not. Some people try to correlate dower in Muslim marriage law with ‘donation propter nuptias’ of the Roman law. However, there is main difference. The ‘donation propter nuptias’ is voluntary while the dower is obligatory.
A dower may be specified or proper. However, dower rights become payable on divorce or death of husband if not paid immediately after marriage. No Muslim is allowed to take back the dower amount whether specified or proper in any condition. Quran protects the rights of women as:
’And give the women (on marriage) their dower as a free gift’ (Quran 4:4)
“If ye had given the latter (wife) a whole treasure for dower, take not the least bit of it back: Would ye take it by slander and manifest wrong?” (Quran 4:20 Abdullah Yusufali)
It is not sale price for bride. But it is part of the Muslim marriage contract where wife and husband agree to live together, bear children and develop a family unit. Some Muslim jurists have termed dower as usufruct of the wife. In Roman and Scot laws the usufruct is right of enjoying the use and advantage of another’s property.
But dower in Muslim marriage is not exactly a consideration for marriage in the sense of a consideration for any other contract. It is an obligation imposed by God and his prophet on the husband and a mark of respect for the wife. The wife and husband may fix it before marriage or during marriage.
The husband is bound to pay specified dower immediately after signing the Muslim marriage contract. However, the parties are free to defer the whole or part of the dower for arising of some event like divorce or second marriage of the husband. If the husband fails to pay or dies without paying the dower, it shall be recovered from his property as a debt.
The amount of dower is ordinarily fixed by a contract on the marriage certificate. However, there is no limit either to the maximum or the minimum of the amount of dower. It should be fixed depending upon circumstances of husband and wife, to stop husband in exercising the right of device arbitrarily, the position of the paternal family of the woman, intellectual attainments of the woman, personal qualifications and attractions of the woman, wealth of husband, conditions of the society and so on.
There are following kinds of dower rights in a Muslim marriage:
1- Specified Dower Rights
2- Proper Dower Rights
In most of Muslim marriage cases, the amount of dower is fixed at the time of marriage contract. The wife is entitled to recover such amount immediately before sexual intercourse and it is called specified dower. The Muslim marriage partners may agree to increase the specified dower even after marriage. The additions shall become specified dower in all its applications.
Where a part of the specified dower is unlawful like wine etc, only the lawful part of the dower shall be payable.
In most of the cases the amount of dower is specified at the time of Muslim marriage. However, in some cases either no dower is fixed or a condition is applied. In such situations the condition is null and void, and a proper dower is payable to wife. Proper dower (Mehr-i-mithal) is the dower which is equal to the dower of other female members of the wife’s father’s family. While fixing a proper dower the following elements should be kept in mind:
• What is position of the dower in wife’s father’s family? No weight can be given to the dower of her mother unless she happens to be from the family of her father, like first cousin.
• Woman’s own personal qualifications and attractions are given due weight while deciding a proper dower. Age, beauty, education, intellectual capabilities etc may be considered.
• What is the financial position of the husband? When the husband has solid financial or social position the amount of dower shall be more otherwise comparatively less.
The parties may agree to fix dower later on. The parties may also agree that the dower amount may be fixed by the husband, wife or any third party. Unless the dower amount is specified by the husband, it shall not be less than the proper dower. And unless the amount is specified by the wife, it shall not be more than the proper dower. In last case the wife is entitled to receive the proper dower unless it is specified by the third party.
The dower rights become due in any of the following conditions:
1- When a valid Muslim marriage is dissolved after consummation.
2- When dower is specified, it become payable immediately after marriage.
3- When dower consists of illegal commodities, the legal dower shall be payable immediately after consummation.
4- When marriage is not consumed, only half of the specified dower is payable on dissolution.
5- When dower is not specified and marriage gets dissolve, a present from husband may suffice for full dower.
Whole dower is not payable immediately in a Muslim Marriage. The Muslim marriage laws allow a division of the dower in two parts; prompt and deferred. When the parties agree to make a part of dower prompt and other part as deferred, the dower shall be paid as per division.
Prompt dower becomes payable as soon as the marriage contract is made and it is payable when demanded by the wife. That is the reason that it is called prompt. Sometimes the wife does not demand the prompt dower till dissolution of marriage or death of husband but this does not stop her to demand the same whenever she wants. A wife can claim her prompt dower even without living with her husband or allowing him to enter in conjugal relations. Furthermore, when a prompt dower is not paid on demand the wife has right to refuse to live in conjugal domicile.
The deferred dower becomes payable on termination of marriage either by death of husband or divorce. However, it does not become payable merely on demand of the wife. The dower is like a debt and binds the property of the husband not only during his life but also after his death.