The Concept of Dower and Maintenance

THE CONCEPT OF DOWER AND MAINTENANCE
INTRODUCTION
India is a secular and democratic nation. 1 Secular is generally understood to signify that the
government is agnostic. It respects all major world religions. The Indian Constitution guarantees both
the freedom of conscience and the right to profess, practise, and disseminate religion. Several personal
laws pertaining to religion are consequently established. All Muslims are subject to Islamic personal
law in general. Muslim personal law deals with all legal matters, including marriage, divorce, wills,
and other matters. Similarly, Muslim personal law likewise governs the idea of dower. It is crucial to
understand whether or not the dower is being maintained as a result.
DOWER
Dower money is a type of debt that the husband owes to his wife in Muslims it is also known as
“Mehr”. It is a pledge made by the bridegroom to pay a specified amount of money or other property
in consideration of marriage. Under Muslim personal law Dower is considered to be an obligation
imposed upon the husband as a sign of respect to his bride. The primary objective of the dower is to
provide a source of income for the wife in the event of the death of the husband or in case the
marriage has been dissolved. Furthermore, Dower is an absolute right of a woman, and the husband
does not have the right to have the dower, it is up to her to decide how she will use it. It is payable
either by the agreement of the parties or by the operation of law.
Hon’ble justice Mahmood has said that a dower under Muslim law is “a sum of money or property
promised by the husband or delivered to the wife in consideration of marriage, and if no dower is
expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the
wife”2.
RIGHTS AND REMEDIES FOR NON-PAYMENT OF DOWER

In case when the woman does not receive the dower, she can enforce it by filing a lawsuit against her
husband. Moreover, her legal heirs also have the right to sue if she dies but there is a limitation on
filing the suit as it should be filed within 5-years of her death.
Muslim personal law provides for various rights and remedies to the wife in case of non-payment of
the dower:
1. Right to dower as debt- If the dower is debt, then the widow is entitled along with other
creditors to have it satisfied on the death of her husband out of his bequest.
1
Added in the Preamble of India by 42nd Constitutional Amendment Act, 1972.
2
Abdul Kadir v. Salima and Ors (1886) ILR 8 All 149.
2. Right to cohabit- Under Muslim law, a wife has the right to refuse to cohabit with her
husband if the dower is not paid promptly and the marriage has not been consummated.
3. The right to retain the property of her deceased husband- The wife has a right to retain
his property until the dower is paid if she has lawfully obtained the possession of her
husband's property.
A magistrate is not empowered to issue non-bailable warrant in case of failure to pay maintenance 3.
DIFFERENCE BETWEEN SHIA AND SUNNI LAWS

There are various grounds on which Shia and Sunni laws differ from each other. In Shias, no
minimum limit of the amount of dower payable is prescribed but in Sunnis, there is a limit of 10
dirhams in the case of specified dower. In Shias, a Proper dower cannot exceed 500 dirhams on the
other hand as per Sunni law Proper or specified dower has no limit. In Shia, no dower would be due if
the marriage was not consummated but that is not the case with Sunni law. In Shia an agreement
between a sane and adult wife stating that no dower will be paid is valid but in Sunni law, it is null
and void. As per Shia law, the entire dower is assumed to be prompt but in Sunnis, only a reasonable
portion of the dower is considered prompt in the absence of a contract, rest is deferred.
DOWER AND MAINTENANCE

In India Section 125 of CrPC deals with maintenance and as per this section Dower was considered as
the piece of maintenance. It is the right of Muslim women to get ‘’nafaqa’’ which is maintenance
from their husbands. According to Muslim Personal Law, a husband who has divorced his wife has to
provide maintenance for her during the period of Iddat. Dower was considered as the piece of
maintenance while fixing the amount of maintenance under this section. In the case of Bai Tahira v.
Ali Hussain, it was held that while the dower payment is within the scope of the term 'sum payable' as
defined under Section 127(3)(b) of the CrPC, a woman who has previously received it is not entitled
to additional support under Section 125 of the CrPC 4. In another case it was decided that the husband
would be liberated from making any additional payments only after determining the sufficiency of the
amount of Mehr5. Mohammed Ahmed Khan v. Shah Bano Begum is a landmark case in which it was
finally determined that Mehr does not fall under Section 127(3)(b) because it is an obligation on the
husband and is paid as a token of respect for the wife, rather than an amount owed to the wife on
divorce6. Following that, in 1986, the Muslim Women (Protection of Rights on Divorce) Act was
passed, which stipulated that reasonable and fair provision be made and support be paid within the
iddat term. The subject of whether Muslim divorced women can claim the right to maintenance under
the CrPC, whether or not they have received the dower, has sparked debate and legal debate. It was
3
Shanavas v. Raseena, 2010 SCC OnLine Ker 5136.
4
Bai Tahira A v. Ali Hussain Fissalli Chothia, 1979 AIR 362.
5
Fuzlunbi v K. Khader Vali, 1980 AIR (SC) 1730.
6
Mohammed Ahmed Khan v. Shah Bano Begum, 1985 AIR 945.
discussed that because Section 125 of the CrPC's goal was to keep women out of poverty, and because
it is faster, Muslim women can still claim maintenance under Section 125 of the CrPC 7. The term
“Unable to maintain” under section 125 of CrPC denotes to “means available to the departed wife
while she was cohabitating with her husband and would not accept the wife's efforts to subsist after
the separation. The inability to support herself must also be satisfied, which is a separate criterion.
The husband must have ignored or refused to provide for his wife in addition to these two
requirements. It must be proven that the wife couldn't support herself. 8” Furthermore, Section 5 of the
Muslim Women (Protection of Rights on Divorce) Act, 1986 allows that the parties might choose to
be governed by secular law instead of Muslim Personal Law under Sections 125 to 128 of the CrPC.
As a result, under the CrPC or the Muslim Women (Protection of Rights on Divorce) Act, 1986,
women can seek maintenance. It should be notes that the woman cannot file claim for maintenance
under two different laws9. If she is getting maintenance under one law she is not entitled to
maintenance under other law10.
The secular law that is provisions of CrPC is not only fair and effective but also denies the
maintenance if the woman is financially strong and can support herself or in the case when the
husband is not capable of providing enough support11.
CONCLUSION
According to Muslim Personal Law, the husband is solely required to maintain his wife and not a
divorced wife. The payment of dower is usually considered to be enough maintenance. In this issue
the CrPC is the best alternative as unlike personal law, it provides for the maintenance of both married
and divorced women. Furthermore, in secular law, the amount of support is more acceptable,
although, in personal law, the payment of dower is regarded as sufficient. As a result, it is possible to
establish that the dower is not maintenance. CrPC is the most preferable option for divorced women to
select to receive maintenance because it is a secular, just, effective, economical, and quick method as
well as it is the most favorable path to be opted by divorced women to choose to receive maintenance.
7
Abdul Latif Mondal v. Anuwara Khatun, 2002 CriLJ 2282.
8
Chaturbhuj v. Sita Bai, (2008) 2 SCC 316.
9
Renu Mittal v. Anil Mittal, 2010 SCC OnLine Del 3390 and Ravindra Haribhau Karmarkar v. Shaila Ravindra
Karmarkar, 1991 SCC OnLine Bom 269.
10
Rachna Kathuria v. Ramesh Kathuria, 2010 SCC OnLine Del 2929.
11
Ritu Raj Kant v. Anita, 2008 SCC OnLine Del 1063.

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THE CONCEPT OF DOWER AND MAINTENANCE

RIGHTS AND REMEDIES FOR NON-PAYMENT OF DOWER

DIFFERENCE BETWEEN SHIA AND SUNNI LAWS

DOWER AND MAINTENANCE

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