B.A. LL.B. (Five Years) Sem 6 Family Law II (Mohammedan Law and Indian Succession Act) 2013 Jun Question Paper with Solutions

For full marks, cover: part A, the definition: the definition adopted in Abdul Kadir v. Salima, taken word by word (what, by whom, to whom, "in consideration of the marriage", "by operation of law"); the three purposes dower serves; Shah Bano on why dower is not a payment "on divorce"; part B, the kinds on three bases: (1) how the amount is fixed (specified dower, with the minimums of the schools and the Oudh rule, and proper dower with its measure); (2) when it is payable (prompt, deferred, partly each, and the presumption); (3) how much of it is confirmed (full dower on consummation, valid retirement or death; half on divorce before consummation; a present of clothes where none was fixed); T.K. Moidu Haji on valid retirement; how each kind is enforced, with Maina Bibi on the widow's retention; a table and a worked example; a conclusion.

Part A: the definition of dower

The definition

Dower is called mahr (or mehr) in Arabic. The leading Indian definition comes from Mahmood J. in the Allahabad Full Bench.

4. "In consideration of the marriage". Dower is linked to the marriage, but it is not the price of the wife. Mahmood J. explained that the Arabic jurists compared dower to price only because sale was the model contract they reasoned from. He likened dower instead to a marriage settlement made for the wife.
5. "As a necessary effect of the marriage". Dower does not depend on agreement. If nothing is fixed, the law supplies it. A marriage contracted on the condition that no dower is payable is still valid. The condition is void, and dower is still due.

Why the law insists on dower

Dower serves three purposes.

1. A check on the husband's power. Under classical law the husband could divorce by words alone. Mahmood J. said the rules of dower were made strict on the husband to restrain that power. A man may end a marriage easily, but he cannot end his debt the same way.
2. Security for the wife. It gives her property of her own for the time after a divorce or his death.
3. A mark of respect. The Hedaya calls dower a token of respect for the wife.

Basis 1: how the amount is fixed

(a) Specified dower (mahr-i-musamma). This is the amount fixed by agreement. It may be fixed before the marriage, at the marriage, or after it. A guardian may fix it for a minor son, and the son is then bound by it.

1. Minimum. Hanafi law fixes a minimum of ten dirhams and Maliki law three. Shafii law and Shia law fix no minimum.
2. Maximum. There is no legal maximum. A husband is bound by the full amount, even one beyond his means, because dower is a debt. Families often fix a large figure for prestige.
3. The Oudh rule. In Oudh, section 5 of the Oudh Laws Act 1876 allows the court to reduce an excessive dower to a reasonable amount. Elsewhere the courts have no such power.
4. Increase. The husband may increase the dower after the marriage, but he cannot reduce it. The wife may remit it in whole or in part, if she does so freely.

(b) Proper or customary dower (mahr-i-misl). This is the amount the law supplies where none was fixed. It is also due where the marriage was made on the void condition that there be no dower.

The presumption. Where the amount is fixed but the deed is silent on timing, Indian courts following Abdul Kadir presume the whole to be prompt. Some courts first look for a custom in the wife's family that splits it. Shia law treats the whole as prompt.

Basis 3: how much is confirmed

This basis asks how much of the dower the wife has actually earned when the marriage ends.

1. Full dower. The whole specified dower is confirmed by consummation, by a valid retirement, or by the death of either spouse.
2. Half dower. If a specified dower exists and the husband divorces the wife before consummation or valid retirement, she gets half of it.
3. A present (muta). If no dower was specified and he divorces her before consummation, she gets a gift of three articles of dress. This is a token in place of dower.

Valid retirement (khilwat-us-sahiha) means the spouses being alone together where nothing prevents marital intercourse. Under Sunni law it has the same effect as consummation for dower.

3. After the husband's death. Dower of every kind is an unsecured debt of his estate. It is paid before the heirs take, without priority over other creditors. Each heir is liable only to the extent of the share received.
4. The widow in possession. A widow lawfully in possession of his property may keep it until paid.

Maina Bibi v. Chaudhri Vakil Ahmed (1925) 27 Bom LR 796 (Privy Council). A widow held her late husband's lands, claiming to keep them until her unpaid dower was satisfied. The other heirs sued for possession. The Privy Council held that a widow who has lawfully and peaceably obtained possession may retain it until her dower debt is paid. The right comes from Muslim law, not from any pledge by the husband, so it is not a mortgage. She must account for the profits she receives.

5. On divorce. Section 3(1)(c) of the Muslim Women (Protection of Rights on Divorce) Act 1986 entitles a divorced woman to an amount equal to the mahr agreed. She can recover it through a Magistrate.

The kinds side by side

1. The one lakh is specified and prompt. She may demand it at any time and refuse to live with her husband until it is paid.
2. The two lakh is specified and deferred. It falls due if he divorces her or dies.
3. If he divorces her before consummation or valid retirement, she gets half the specified dower, one and a half lakh.
4. If no amount had been written, she would get proper dower measured by her sisters' and aunts' dower, and the whole would be presumed prompt.

Conclusion. Dower is money or property that the husband owes the wife because of the marriage. The law imposes it even where nothing is agreed, as Abdul Kadir v. Salima holds. Shah Bano confirms that it flows from the marriage and is not a payment for divorce. Its kinds answer three questions: how much (specified or proper), when (prompt or deferred), and how much is earned (full, half or a present). Valid retirement counts as consummation under Sunni law, as T.K. Moidu Haji shows. Every kind is a debt the wife can enforce, and Maina Bibi lets a widow in possession hold the estate until it is paid.