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Injunctions of the Qur'an
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Ahadith of the Holy Prophet
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Rights in the Light of Qur'an and Hadith
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Islamic Law and
Figh
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Law in Pakistan
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Dower in
other Nations
I ‑ INJUNCTIONS OF THE QUR'AN
Woman's
unconditional and unrestricted rights to receive dower (Mahr)
from her husband have been guaranteed by the following verses of the
Qur'an:
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There is
no blame on you if ye divorce women before consummation or the
fixation of their dower; but bestow on them (a suitable gift) the
wealthy according to his means, and the poor according to his means;‑
a gift of a reasonable amount is due from those who wish to do the
right things. (2:236)
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And if ye
divorce them before consummation, but after the fixation of a dower
for them, then the half of the dower (is due to them), unless they
remit it. Or (the man's half) is remitted by him in whose hands is the
marriage tie; and the remission (of the man's half) is the nearest to
righteousness, and do not forget liberality between yourselves, for
Allah sees well all that ye do. (2:237)
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And give
the women (on marriage) their dower as a free gift; but if they, of
their own good pleasure, remit any part of it to you, take it and
enjoy it with right good cheer. (4:4)
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But if ye
decide to take one wife in place of another, even if ye had given the
latter a whole treasure for dower, take not the least bit of it back:
Would ye take it by slander and a manifest wrong? (4:20)
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Also
(prohibited are) women already married, except those whom your right
hands possess. Thus hath Allah ordained (Prohibitions) against you:
Except for these, all others are lawful, provided ye seek (them in
marriage) with gifts from your property,‑ desiring chastity, not lust.
Seeing that ye derive benefit from them, give them their dowers (at
least) as prescribed; but if, after a dower is prescribed, ye agree
mutually (to vary it), there is no blame on you. And Allah is
All‑Knowing, All‑Wise. (4:24)
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O
Prophet! We have made lawful to thee thy wives to whom thou hast paid
their dowers. (33:50)
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. ....
And there will be no blame on you if ye marry them on payment of their
dower to them. (60:10)
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II ‑ AHADITH OF THE PROPHET
Ahadith of
the Prophet Muhammad (may peace be upon him) on the rights of woman
regarding dower are as under:‑
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Omme-Habibah
reported that she was the wife of Abdullah‑b‑Jahash who died in the
land of Abyssinia, and then the Negus gave her in marriage to the
Prophet and took from him a dower of 4000 (in another narration 4000
dirhams). Then he sent her to the Prophet with Shurahbil‑bHasanah.
(Abu Daud; Nisai)
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Anas
retorted that the Messenger of Allah emancipated Safiyyah and married
her and made her emancipation a dower... (Bukhari arid Muslim)
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Anas
reported that Abu Talhah married Omme Solaim and the dower between
them was Islam. Omme Solaim had accepted Islam before Abu Talhah who
sought her in marriage. She said: I have surely accepted Islam; but if
you accept Islam, I shall marry you. So Abu Talhah accepted Islam and
it was their dower between them. (Nisai)
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Oqbah‑b‑'Amer
reported that the Messenger of Allah said: The most equitable of the
conditions (of marriage) is that you should fulfil that (Dower) with
which you have made private parts lawful. (Bukhari and Muslim)
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Jaber
reported that the Messenger of Allah said: whoso gives two handful of
barley or dates as dower of his wife has rendered (marriage) lawful.
(Abu Daud)
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Sahl‑b‑Sa'ad
reported that a woman came to the Messenger of Allah and said: O,
Messenger of Allah, I offer myself to you. She then kept standing for
a long time. A man got up and said; O, Messenger of Allah! marry her
to(me)...The Prophet said: Have you got with you anything which we
may give to her as dower? He said; I have nothing but this trouser of
mine. The Prophet said: Seek, though it be a ring of iron. Then he
searched but did find nothing. The Prophet asked: Have you got any
portion of the Qur'an with you? ‘Yes', said he ‘such and such a
verse.' He said: I give her in marriage to you for what is with you
from the Qur'an (So teach her something from the Qur'an). (Bukhari,
Muslim)
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Hazrat
Umar once addressed the people in the Mosque of the Prophet: O People!
why have you started fixing the dowers of women at fantastically
higher amounts, while the Messenger of Allah had never fixed the dower
of any of his wives at an amount exceeding four hundred Dirhams.
Beware! I should not hear in future that any of you has fixed dower
exceeding 400 dirhams. He then descended from the pulpit. There and
then came a woman of Quraish and said: O Umar! Have not you heard the
word of God (in Al‑Qur'an 4:20). Allah says. Even if you have given a
big treasure to a woman, don’t take back anything out of that. Hazrat
Umar at once returned, withdrew his order and announced: Any one of
you can fix as much dower as he pleases: I can't stop him. (Tafsir Ibn
Kathir)
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III‑ RIGHTS IN THE LIGHT OF QUR'AN‑AND HADITH
The Qur'an
and Sunnah have laid down the following rules and regulations regarding
Hag Mohr or dower the payment of which by the husband to the wife
is obligatory.
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Payment
of Hag Mahr (dower) to his wife is obligatory on the husband.
It is an essential part of marriage. The Qur'an says: "O Prophet! We
have made lawful to thee thy wives to whom thou has paid their
dowers"‑(33:50). At another place the Qur'an says:....And there is no
blame on you to marry them when you give them their dowries"‑ (60:10).
However, the marriage is not invalid if dower is not paid or
contracted or fixed before marriage. It is apparent from verse No. 236
of chapter 2 of Al‑Qur'an which reads: "There is no blame on you if ye
divorce women before consummation or the fixation of their dower; but
bestow on them a suitable gift." Even in such case something is to be
paid.
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The
amount of dower which the bridegroom has to give to his bride has not
been fixed by the Qur'an or Sunnah. It depends entirely on the
agreement of the contracting parties The Qur'an says:" ....The wealthy
according to his means and the poor according to his means; a gift of
a reasonable amount, is due from those who wish to do the right
things"‑ (2:236)
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There is
no minimum or lower limit of dower fixed by law, though some jurists
opine that it should not be less than ten dirhams. It may be in the
form of cash or in kind. The Prophet (PBUH) did not fix any minimum:
According to the well reported Traditions of the Prophet of Islam,
even a handful of barley or dates or even an iron ring may be
sufficient provided the bride agrees to accept it. The Messenger of
Allah himself married Hazrat Safiyyah and her emancipation was her
dower. Omme Solaim agreed to marry Abu Talha on the condition that he
should accept Islam. Abu Talha fulfilled the condition and his
acceptance of Islam was declared to be mahr or dower of Omme
Solaim. In another case, the teaching of one or two verses of the Holy
Qur'an by the husband to the wife was declared to be an adequate
Mahr for the bride.
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No
maximum or upper limit of mahr or dower has been fixed by Islam
either. The Qur'an says: "But if ye decide to take one wife in place
of another, even if ye had given the latter a whole treasure for
dower, take not the least bit of it back"‑ (4:20). From this verse the
jurists of Islam have deduced that the right of a woman to demand any
amount of dower as a condition of her agreeing to marriage is not
restricted by the Islamic Law. Hazrat Umar, the second pious caliph of
Islam, once thought of fixing the upper limit of dower on the
complaint of the men that the women were demanding fantastic amounts;
but he was dissuaded by a woman who drew his attention to verse of the
Holy Qur'an quoted above.
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If a
person divorces his wife before touching her and before appointing any
amount of dower for her, he has been directed to make provision for
her according to his means (Al‑Qur'an 2:236). But if he divorces her
before touching her and after fixing the amount of dower for her, he
is bound to give half of the amount of dower which has been fixed.
However, if the woman agrees to forgo her rights of accepting this
half dower or the man shows generosity in giving her full dower, such
an accord is permitted. (Al‑Qur'an 2:237)
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The men
should give to their wives their dower willingly. But if the women of
their own accord agree to remit the whole or part of their dower, the
husbands are welcome not to pay it (Al‑Qur'an 4:4). Hazrat Umar and
Qazi Shuraih have decreed that if a wife remits the dower but later on
demands it, the husband shall be compelled to pay it because the very
fact that she demands it' is a clear proof that she did not remit it
of her own free will.
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According
to verse No. 24 of Surah An‑Nisa, dower has to be paid as a duty.
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IV ‑ISLAMIC LAW AND FIQH.
The rules
and regulations regarding dower or Mahr by Islamic Law and Fiqh
are:
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‘Mahr'
is normally translated as dower though it is distinguishable from
dower as is understood in the European countries and also from
presents given at the time of marriage and Jahez (Mahmood Ahmad
v. Mohammad Nawaz Siddiqi, P.L.D. 1975 Lah 739). But for the
sake of convenience and also in view of the fact, that there is no
proper equivalent of Mahr in English language, we would like to
use the word dower as it has been commonly in vogue.
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Dower has
been. defined in different ways. According to one definition, it is a
consideration for the surrender of person by the wife. According to
Ameer Ali, dower is a consideration for wife's sole and exclusive use
and benefit. Mulla defines dower as "a sum of money or other property
which the wife is entitled to receive from the husband in
consideration of the marriage."
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Dower is
essential in marriage, so much so that in case it is not fixed, even
then the wife is entitled to its payment according to the standard in
the family. Wife has the right to remit the dower or to accept the
reduced amount or to postpone her demand for its payment. According to
Mulla, the amount of dower may be fixed either before or at the time
of marriage or after marriage and can be increased at any time by
mutual consent.
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According
to Hedaya, "marriage is valid although no dower has been mentioned
because nikah signifies a contract of union which is fully
accomplished by the performance of the marital rites. Dower is
obligatory as a mark of respect for the subject, therefore its mention
is not essential to the validity of the marriage. For the like reason,
a marriage is valid although the man agrees to the marriage on the
special condition that there should be no dower. In such case the
condition would be void but the marriage would be valid." Fatawa‑e‑Qazi
Khan says: "Dower is so essential to marriage that even if it was not
mentioned at the time of the marriage or marriage contract, the law
will presume by the virtue of contract itself." It is so fundamental a
feature of the Islamic Law of Marriage that even if the woman agrees
to forego all her right to dower before marriage or agrees to marry
without any dower, such agreement would be invalid, but the marriage
would be valid.
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The
object of dower is three‑fold. Firstly, it would be a check on the
arbitrary exercise of the power of divorce by the husband. Secondly,
it would restrain the husband to indulge in polygamy. Thirdly, it
would work as an obligation imposed upon the husband as a mark of
respect to the wife. In Abdul Qadir v. Salima, Justice Mahmood
observed:"The marriage contract is easily dissoluble, and the freedom
of divorce and the rule of polygamy place the power in the hands of
the husband which the Law‑giver intended to restrain by rendering the
rules as to payment of dower stringent on the husband."
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As stated
earlier, the Shariah has not fixed any minimum or maximum amount of
dower. It is fixed according to the means of the husband, at the
pleasure of the contracting parties and in view of socio‑economic
conditions and precedents and customs in the family.
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Dower is
of two types: one called "prompt dower" (Mahri‑Mu'ajjal) which
is payable on demand and the other called "deferred dower" (Mahr‑i‑Mu'wajjal)
which is payable on dissolution of marriage by death or divorce.
The jurists are agreed on the point that the wife can refuse to
perform her marital obligations unless prompt dower is paid.
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If the
amount of dower is fixed in the marriage contract, the dower is called
specified dower. When the amount is not fixed, the wife is entitled to
"proper" or "customary" dower (Mahr‑i‑Misl), which is
determined keeping in regard the amount of dower settled upon other
females of her father's family.
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Dower is
a debt and the widow is entitled along with other creditors of her
deceased husband, to have it satisfied out of his estate. However,
this debt is an unsecured debt and ranks after secured creditors. But
it has priority over legacies and rights of heirs.
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V ‑ LAW IN PAKISTAN
Section 10
of the Family Laws Ordinance, 1961 provides:
Where no
details about the mode of payment of dower are specified in the
nikahnama, or the marriage contract, the entire amount of the
dower shall be presumed to be payable on demand.
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VI ‑ DOWER IN OTHER NATIONS
No
woman of any other nation except a Muslim woman has absolute rights of
getting Mahr or dower from her husband. In none of the
communities besides the Islamic Ummah, a husband is under legal
obligation to give bridal gift or dower to his wife. Though the Jewish
law insisted upon the specification of dower in the contract of marriage
and considered the marriage without it as invalid, yet the dower settled
on the wife was never made over to her for her exclusive use and
enjoyment. She got the right over dower when her marriage was dissolved
either by the death of her husband or by divorce.
No other law of any ancient, medieval or modern nation makes it
incumbent or obligatory on a husband to make payment of any dower to his
wife. It is only Islam which has conferred absolute rights on the woman
to demand as much dower from her husband as she desires (there being no
upper limit), to acquire it at her discretion and use and enjoy it
according to her wishes. We have already discussed at length the various
legal aspects of Mahr (dower).
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