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DOWER
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Dower
Mahr or dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage.
Divorce by the husband and dower
Dower and the payment thereof have been provided in Section 10 of the Muslim Family Laws Ordinance, 1961. Dower is not a gratuity but a wife's right, which, even if relinquished by the wife, not out of free will, the husband is bound to pay. Wife may refuse to live with the husband if prompt dower is not paid. Dower and maintenance being within the exclusive jurisdiction of the Family Courts, subsequent suit over the same matter stayed. In case of divorce by husband, the wife's suit for dower shall lie in a court where wife resides.
Divorce by the wife and dower
If the divorce proceeds from the wife, she would still be entitled to whole of her dower amount, if the dower has been perfected by consummation of marriage.
Incidents of Dower and Dowry
Dower is a sum of money receivable by wife from husband as a consideration for the marriage, whereas, dowry is an extra-dower consideration, illegally payable or paid by one party to the marriage to another on the pretext of bringing equality in marriage or for same other reason. Taking or paying or abetting payment of dowry has been made punishable under Section 3 and 4 of the Dowry Prohibition Act, 1980. In the case of dowry what stands out prominently is that the property or valuable security is to be given or agreed to be given. By merely saying that certain thing was demanded as 'Joutuk', the Act is not attracted. Dowry, being extra-dower consideration for the marriage demanded by husband or by anybody on either party's behalf, is an illegal act, whereas dower is not; and, the former is to be visited with the vengeance of law, if it is demanded before, at the time of or after marriage, otherwise the purpose of the enactment of Dowry Prohibition Act would be frustrated.
Specified dower
(1) The husband may settle any amount he likes by way of dower upon his wife, though it may be beyond his means, and though nothing may be left to his heirs after payment of the amount. But he cannot in any ease settle less than ten Dirhams or equivalent thereof. (2) Where a claim is made under a contract of dower, the Court should, unless it is otherwise provided by any legislative enactment, award the entire sum provided in the contract.
Dower in Muslim Family Laws Ordinance, 1961
As per the provisions of Section 10 of the Muslim Family Laws Ordinance, 1961, where no details about the mode of payment of dower are specified in the Nikahnamah(the marriage contract); the entire amount of the dower shall be presumed to be payable on demand. High dower is fixed to prevent the husband from divorcing the wife capriciously.
Contract of Dower in Marriage
The amount of dower may be fixed either before or at the time of marriage or after marriage and can be increased after marriage and may be entered into by the father.
Proper" Dower
If the amount of dower is not fixed, the wife is entitled to "proper" dower (mahr-i-misl). In determining what “proper” dower is, regard is to be had to the amount of dower settled upon other female members of the bride's father's family such as her father's sisters. Status is to he considered infixing dower where dower was not fixed at the time of marriage.
"Prompt" and "Deferred" Dower
The amount of dower is usually divided into two parts, one called "prompt"' which is payable on demand, and the other called "deferred" which is payable on dissolution of marriage by death or divorce. Wife may refuse to live with the husband if prompt dower is not paid.
The Prompt portion of the dower may be realized by the wife at any time before or after consummation. Dower which is not paid at once described as the deferred dower, but if it is postponed until demanded by the wife, it is in law prompt dower. But "deferred" dower does not become "prompt" merely because the wife demands it.
Remission of dower by wife
The wife may remit the dower or any part thereof in favour of the husband or his heirs. Such a remission is valid though made without consideration. But the remission must have been made with free consent. A remission made by a wife when she is in great mental distress, is not one made with free consent and is not binding on her.
Suit for dower and limitation
If the dower is not paid, the wife or her heirs (after her death) may sue for it. The period of limitation for a suit to recover "prompt" dower is three years from the date when the dower is demanded and refused, or, where during the continuance of the marriage no such demand has been made, when the marriage is dissolved by death or divorce [Limitation Act, 1908 Sch, 1, Art. 103]. The period of limitation for a suit to recover "deferred" dower is three years from the date when the marriage is dissolved by death or divorce [Ibid, Art, 104]. Where, however, prompt dower has not been fixed, a demand and refusal is not a condition precedent for filing a suit for its recovery.
Non-Payment of prompt dower and restitution of conjugal rights
The wife may refuse to live with her husband and admit him to sexual intercourse so long as the prompt dower is not paid. She can also successfully sue for dissolution of marriage. If the husband sues her for restitution of conjugal rights before sexual intercourse takes place, non-payment of the dower is a complete defense to the suit, and the suit will be dismissed. If the suit is brought after sexual intercourse has taken place with her free consent, the proper decree to pass is not a decree of dismissal, but a decree for restitution conditional on payment of prompt dower.
Liability of heirs for dower debt
The heirs of a deceased Muslim are not personally liable for the dower debt. As in the case of other debts due from the deceased, so in the case of a dower debt, each heir is liable for the debt to the extent only of a share of the debt proportionate to his share of the estate. Where, therefore, the widow is in possession of her husband's property under a claim for her dower, the other heirs of her husband are severally entitled to recover their respective shares upon payment of quota of the dower debt proportionate to those shares.
Dower is a debt, but an unsecured debt
The dower ranks as a debt, and the widow is entitled along with other creditors of her deceased husband, to have it satisfied on his death out of his estate. Her right, however, is no greater than that of any other unsecured creditor; except that she has a right of retention of possession of her husband's properly until her dower is satisfied. She is not entitled to any charge on her husband's property though such a charge may be created by agreement.
Widow's right to retain possession of her husband's estate in lieu of dower
The widow's claim for dower does not entitle her to a charge on any specific property of her deceased husband. But when she is in possession of the property of her deceased husband having "lawfully and without force or fraud" obtained such possession "In lieu of her dower" (that is on the ground of her claim for her dower to satisfy her claim out of the rents and profits and with a liability to account for the balance), she is entitled as against the other heirs of her husband and as against the creditors of her husband to retain that possession until her dower is satisfied.
Liability of widow in possession to account
A widow in possession of her husband's estate, in lieu of dower, is bound to account to the other heirs of her husband for the rents and profits received by her out of the estate. But she is entitled in that case to compensation for forbearing to enforce her right to the dower debt.
No right of widow to alienate property to satisfy dower debt
The right of a widow to retain possession of her husband's property under a claim for her dower does not carry with it the right to alienate the property by sale, mortgage, gift or otherwise.
Suit for possession by widow who is dispossessed
If a widow, who is in possession of her husband's property under a claim for her dower, is wrongfully deprived of her possession, she may bring a suit for recovery of possession.
Widow's possession no bar to a suit for dower
The fact that a widow is in possession of her husband's property under a claim for her dower, is no bar to a suit by her against the other heirs of her husband to recover the dower debt. But she must in such a suit offer to give up possession of the property. She cannot both retain possession and have a decree for her dower debt. If the widow is in possession of her husband's property under a claim for her dower, the proper course for her to follow is to bring an administration suit in which the property can be placed in the hands of the Court for the satisfaction of her claim by sale of the assets or otherwise.
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