215-229
And give to the women (whom you marry) their Mahr (obligatory bridalmoney given by the husband to his wife at the time of marriage) with a
good heart; but if they, of their own good pleasure, remit any part of it to
you, take it, and enjoy it without fear of any harm.5
The above verse has referred to following three basic points: firstly,
mahr is referred to as sadaqah and sadaqah is derived from the root
sadaq. It is a token of the truthfulness and earnestness of the affection
of the man. Secondly, the pronoun hunna in the verse means that it
is ordained that the mahr belongs to the woman herself and not to
her parents. Mahr is not the wages for having brought her up, nursed
her and fed her. Thirdly, the word nihlatan makes it complete clear
that mahr has no other purpose apart from being an offer, a present,
or a gift.6
In another verse it is stated to the effect that,
give them their mahr as prescribed; but if after a mahr is prescribed,
you agree mutually (to give more) there is no sin on you.7
The above verse shows that if a Muslim man divorces his wife before
the marriage is consummated or before dower is fixed he is required
to give a suitable amount to the divorced woman according to his
own capacity. However, if mahr is fixed before the marriage and
divorce (talaq) is pronounced before the consummation of marriage,
the husband shall have to pay one half of the fixed mahr to the wife.
There are conditions for mahr to be validly given to the wife.
Firstly, there must be a valid marriage. Secondly, things that be given
as a mahr must be something that can be possessed and can be sold
and purchased. Thirdly, the items must be clean and pure or a kind
of beneficial service to the wife. Fourthly, mahr must be known of
its character and the amount. Lastly, it should be free from any fraud.
According to the Islamic law, there are two types of mahr, i.e.
specified mahr and proper mahr. Specified mahr is mahr that is
specified at the time of aqad.10 It is of two types prompt and deferred.
In the case of prompt mahr it is payable immediately after the marriage
and must be paid on demand.11 If the prompt mahr is not paid the
wife could refuse to stay with her husband and also can take legal
action. The court in Bangladesh, in the case of Nuruddin Ahmad v.
Masuda Khanam (PLD 1957, Dacca, p. 242) held that prompt dower
might be considered a debt always due and able to be demanded and
payable upon demand. The wife is under the Islamic law entitled to
refuse herself to her husband until and unless the prompt dower is
paid.12 It was also held in the case of Rahim Jan v Md. that the wife
can refuse to live with her husband if dower is not paid on her demand
and consummation does not affect this right of the wife.13 (Citation).
Deferred mahr becomes payable at the termination on the
dissolution of marriage either by death or divorce.14 If the marriage
is dissolved by divorce then mahr can be recovered by bringing legal
action in the Syariah (In Malaysia, Shariah is written as Syariah)
court. If by death the dower can be recovered from her husbands
estate. In the Malaysian Syariah court case of Shaari v Teh15 the wife
deserted the husband. She refused to resume cohabitation unless the
husband paid arrears of maintenance and deferred mahr of RM
300.00. It was held that the husband has to pay the deferred mahr.
In the case of Raman v Hasnah16 the respondent had claimed the
balance of the marriage expenses amounting to RM 100.00 from
the appellant. The appellant admitted that he had not paid the sum
due and judgment was given in favour of the respondent. The
appellant appealed to the Shariah Appeal Court, however the appeal
was dismissed.
In USA, New York court in Aziz v. Aziz (1985) enforced a
deferred mahr of $5,000 because the terms of contract complied with
New Yorks General obligation Law. The courts in USA treat mahr
as part of an ante-nuptial agreement. Thus, for it to be enforceable
the agreement must meet the standards of state law applying to all
ante-nuptial contracts.17 However, in Hosman Ibrahim Dajani v.
Dawn Lynell Dajani (2011, Court of Appeal Virginia), a Jordanian
wife was denied deferred mahr as the court heard expert testimony
that mahr is forfeited if the wife initiates the separation.18
Mahr mithli is mahr of a woman, which is determined by
comparing with the mahr settled upon other female members of her
family.19 It is determined by referring to the mahr received by female
members from the paternal side such as sisters, aunts and cousins. It
can also be determined by referring to the age, education, religion
and the status in the society.20
Under the Shariah, a woman is entitled to her full mahr
musamma (specified mahr) where there has been a valid marriage
that has been consummated, even when the marriage has been
dissolved by divorce or death.21 When there has been a valid marriage
that has not been consummated and has been dissolved by divorce
(where the dower has been fixed) she is entitled to half mahr
musamma.22
Concerning the amount of mahr, there is no specific rule under
the Sharah. It is normally given according to social status, wealth,
personal qualification and conditions of human society.23 It should
however, possess some value and it is recommended that it should
be less than 1,000 or more than 500 dirhams.24 Prophet Muhammad
(s.a.w.) paid varying amounts to his wives. In the case of Ummu
Habibah, she was paid 4,000 dirhams, while in case of the other
wives it was generally 500 dirhams.25 The lowest amount mentioned
in a hadith is an iron ring and the man who could not give anything
as a mahr was asked to teach his wife the surah from the Quran that
he memorised.26
Where there is no amount fixed for the mahr in the marriage
contract, the law gives the wife a right to the proper mahr
proportionate to her situation and position in life. In line with the
Shariah principles, it is submitted that the amount of mahr should
not be too expensive as it can cause burden to the husband.
Sometimes, it is observed that the brides family puts pressure on the
groom and his family for a large amount of mahr with the purpose
to show it off to the public and it is also not right to have a secret
arrangement in order to write in the paper a large amount of mahr
while in fact the girl will receive less than that.27 By doing this, no
one is deceived but himself or herself.
Fixing of excessive amount of mahr is being used in some
countries especially in Arab countries such Arab Saudi, UEA and
Kuwait. In South Africa, it is practised as a means to control and
check the husbands unilateral and unlimited power of divorce, as he
has to pay the full amount of mahr at the time of divorce.28 In some
countries, it becomes a common practice that the women use their
mahr to furnish their new homes. This practice does not contrary to
the Shariah as long as the wife agrees to it.29 However, it should not
be encouraged, as it is the duty of the husbands to prepare homes for
their wives.
the woman for additional dowry. Many young men in India see dowry
as a legitimate means of acquiring luxury items, clearing family debts
and moving up on the social status.37 In Bangladesh, dowry is used
by a bride and her family as a means to raise their status by marrying
the daughter into a higher status family.38
In South Asia, dowry deaths are common. In India, for example,
it was reported there were 4,215 dowry deaths in 1989, 4,836 in
1990 and 4,656 in 1991.39 Dowry was reported as the chief motive
in 5.6% and 6.9% of the cases of murder and culpable homicide in
the years 1988 and 1990 respectively.40 In Bangladesh, recent studies
suggest a link between domestic violence and dowry demands. Wife
abuse has been found to be higher when a husband or his family
believes dowry payments are inadequate.41 These deaths of women
are usually caused by the same persons who are legally and socially
supposed to protect them, i.e. their husband or in-laws.42
As regards to the legislation, India was first in South Asia to
make an attempt to control the dowry problem by passing the Dowry
Prohibition Act of 1961.43 Taslima Monsoor44 in her article states
that in Bangladesh the problems of dowry became so horrendous
after independence that activist women and some enlightened males
were demanding legislation to stamp out this social evil. She also
states that the commodisation of women was seen as neo-patriarchy,
which should not be tolerated any longer by the activists.
Consequently, the government under the pressure passed the Dowry
Prohibition Act of 1980.
According to Taslima45 the real need of women in Bangladesh is
to be protected from violence and economic deprivation. She explains
that dowry problems in Bangladesh involve both aspects of the need,
i.e. freedom from economic deprivation and violence. She also
observes that demands for reforms to control these problems were
already made earlier and thus, the Dowry Prohibition Act, 1980 and
the Cruelty to Women (Deterrent Punishment) Ordinance, 1983
were enacted in response to growing evidence of cruelty against
women.46 Recently in Bangladesh, a more comprehensive enactment
(the Repression Against Women and Children (Special Enactment)
Act xviii of 1995 has repealed the Cruelty to Women (Deterrent
Under the Islamic law, mahr is the exclusive right of the wife in which
the father does not have the right to take even a small amount of it
without the consent of the woman. Woman has the full right to her
mahr, which is presented to her by her husband and is included in
the nuptial contract, and that such ownership does not transfer to
her father or her male relatives. The concept of mahr in Islam is
neither an actual nor symbolic price for the woman, as it is the case
in certain cultures, but rather it is a gift given to the wife. It is
connected with the womans modesty and chastity thus, she should
know that it is necessary for her honour and respect that she should
not give herself up freely to the authority of man but should give
herself worth.
1.
2.
3.
Ibid.
4.
5.
Al-Quran: An-Nisa : 4.
6.
7.
An-Nisa : 24.
8.
Al-Baqarah: 236-237.
9.
23. Al-Baqarah: 236. See, M.I Siddiqi, The Family Laws of Islam, Lahore,
PK, Kazi Publications, 1984, p. 81.
24. M.I Siddiqi, The Family Laws of Islam, Lahore, PK, Kazi Publications,
1984, p. 81.
25. Ibid.
26. Asaf A.A. Fyzee, Outline of Muhammadan Law, Oxford University Press,
Delhi, 1974, p. 138; M.I Siddiqi, The Family Laws of Islam, Lahore,
PK, Kazi Publications, 1984, pp. 81-84; Abdul Rahman I. Doi, Shariah:
The Islamic Law, Ta Ha Publishers, London, 1997, pp. 165-166.
27. See, http://www.infad.kuim.edu.my/modules.php?op=modload&name=
News&file=article
28. Taslima Monsoor, Dower and Dowry: Its Affect on the Empowerment
of Muslim Women, at http://www.thedailystar.net/law/200307/04/
29. In surah an-Nisa; 4 Allah SWT says but if they, of their own good
pleasure, remit any part of it to you, take it and enjoy it with right
good cheer (as Allah has made it lawful).
30. Ahmad Ibrahim, Family Law in Malaysia, Third edn. Malayan Law
Journal Sdn Bhd, Kuala Lumpur, 1997, p. 209.
31. Ahmad Ibrahim, Family Law in Malaysia, Third Edn. Malayan Law
Journal Sdn Bhd, Kuala Lumpur, 1997, p. 210.
32. (1983) 5 JH 161.
33. (1986) 6 JH 130.
34. (1911) FMSLR 61.
35. Prasad, B Devi. Dowry-related violence: A content analysis of news
in selected newspapers, Journal of Comparative Family Studies. Calgary:
Spring 1994. Vol. 25, Iss. 1; p. 71.
36. Ibid.
37. Ibid.
38. Luciana Suran et. al., Does Dowry Improve Life for Brides? A Test of
the Bequest Theory Dowry in Rural Bangladesh, Population Council,
No. 195, 2004, p. 4.
39. National Crime Records Bureau, 1991.
40. Ibid.
41. Luciana Suran et al., Does Dowry Improve Life for Brides? A Test of
the Bequest Theory Dowry in Rural Bangladesh, Population Council,
No. 195, 2004, p. 5.
42. Taslima Monsoor, Dower and Dowry: Its affect on the Empowerment
of Muslim Women at http://www.thedailystar.net/law/200307/04/
index.htm
43. Ibid.
44. Ibid.
45. Ibid.
46. Ibid.
47. Ibid.
48. Ibid.
49. See, Mas Kahwin Selangor naik, Berita Harian Online, 08 July 2008,
see also at http://www.selangorkini.com.my/my/berita/1002
50. Recently, the State of Selangor has increased the rate of mahr to
RM300.00 from RM80.00.
51. Zainunnisaa Abdul Rahman, Mahar in Malaysia: the Law Revisited
[2007] 4 ShLR 1.
52. See, at http://persada.net/modules/news/article.php?storyid=173.
53. Wanita Indonesia menawan, mengoda, Utusan Online, 08 January
2008.
54. Zainunnisaa Abdul Rahman, Mahar in Malaysia: the Law Revisited,
[2007] 4 ShLR 1.
55. Zainunnisaa Abdul Rahman, Mahar in Malaysia: the Law Revisited,
[2007] 4 ShLR 1.
56. Prasad, B Devi. Dowry-related violence: A content analysis of news in
selected newspapers, Journal of Comparative Family Studies. Calgary:
Spring 1994. Vol. 25, Iss. 1; p. 71. The paper identifies theoretical
perspectives to understand the factors associated with dowry violence
and analyses the content of the dowry-related news stories.
57. Taslima Monsoor, Dower and Dowry: Its affect on the Empowerment
of Muslim Women at http://www.thedailystar.net/law/200307/04/
index.htm