Islamic Marriage Contract- Maher

Islam, different from other religions, strongly advocates marriage, treating it as a social necessity. The objective behind the Islamic marriages is creation of families, as families are   fundamental units of the society. Marriages are considered as civil contracts under the muslim law.  As no contract exists without consideration, a Muslim marriage shall not be contracted without consideration and the consideration in a Muslim marriage is referred to as “Maher”. Muslim jurists, however, treat it as a mark of respect towards the wife.

Definition

Mahr or dower is a sum which shall become payable by the husband to the wife on marriage, either by agreement between parties or through operation of law. As per Ameer Ali, “Dower” or ‘Mahr’ in Arabic is a consideration which absolutely belongs to the wife.

According to Mulla, Maher or dower is the amount of money or other property which the wife will be entitled to receive from the husband in consideration of the marriage. The word ‘consideration’ here, is an obligation which is imposed upon the husband as a mark of respect towards his wife.

Importance & Objective Of Maher

As per Fatwa-i-Quazi Khan- Maher is so necessary for a marriage that in case it was not mentioned during the marriage or in the marriage contract, it would be presumed by the law by virtue of contract. Dower is necessary according to Muslim Law, as even if there is an agreement  by the wife prior to the marriage that she would revoke her right of dower or if she agrees to marry without any dower, such agreement would be invalid according to the law. As per the  Muslim Law, husband has the right to divorce to his wife according to his will, hence Maher  helps prevent the misuse of such power as well as prevent polygamy.

Objectives of Maher are

• Enforcing an obligation on the husband as mark of respect towards his wife,
• Places a check on the misuse of power to divorce by the husband
• Ensures her livelihood in case of the dissolution of her marriage, so that the wife can lead a dignified life after the death of her husband or divorce.

Increase Or Decrease in the amount of Maher

Husband has the right to increase the amount of dower at any time, also the wife can rescind the amount of dower wholly or partially, however it shall be done by her free consent. 

Remission of Mahr by wife is referred to as Hibe-e-Mahr. Such remission shall be done by her free will and when she is mentally sane. 

Classification of Maher

Dower will be generally differentiated into two types namely- (a) Specified dower i.e. Maher  will be a fixed amount and (b) proper dower, where the amount of the Maher is not fixed. 

Specified dower

When the amount of dower is fixed by the parties before or at the time of marriage, it shall be referred to as specified dower or Mahr-i-musamma. In case the bridegroom is a minor or is of unsound mind, the Maher will be generally fixed by the father or guardian. Dower amount which has been fixed by the guardian would be binding on the minor who after attaining the age of puberty, cannot take the plea that he was not a party to the contract. According to the Sunni law, dower fixed by the father shall be binding upon the son though he is not personally liable for it. According to Shia law, in case the son has no means to pay the Maher amount decided by the father, then in such a situation the father shall become liable to pay for it. Specified dower could be paid either before or during the time of or after the marriage as well.

In the case of Kukkiya Begum vs. Radha Kishan, AIR 1944 All 241, it was decided by the Allahabad High Court that the amount of dower fixed earlier can be increased after the marriage by mutual consent of the parties.

Types of Specified dower

Prompt dower

Specified dower which could be paid immediately after the marriage or any time on the demand of the wife is prompt dower. It could be demanded before or after the consummation of marriage and would not get deferred after consummation of the marriage.

Wife will have the right to sue for recovery of prompt dower even after the consummation of  marriage. In case the marriage has not already been consummated, the husband shall be entitled to enforce conjugal rights only if he has paid the mount of Maher in case of prompt dower.

Deferred dower

When the amount of Maher is not payable immediately after the marriage and is conditioned to be payable after the occurrence of a certain event or expiry of a particular period or upon the dissolution of marriage, in such a situation, it shall be deferred dower or Mahr-i-Muwajjal. The wife would not be entitled to demand payment of the deferred dower unless it was already  agreed by the parties. On the death of her husband, the wife can relinquish her right to maher, however such relinquishment must be voluntary.

In case there is no period or event fixed for the payment of the deferred dower, it will be payable on the termination of the marriage by divorce or by the death of either party. 

Proper dower

If the amount of dower is not fixed between the parties, before or at the time of marriage, the wife will be entitled to get a reasonable amount from the husband as dower. Such dower shall be referred to as proper dower or Mahr-i-Misl. Proper Dower shall be payable on demand by the wife. Even when the marriage was solemnized with the condition that the wife would not claim dower, she would still be entitled to claim proper dower from her husband. The amount of proper dower will generally be fixed by the Court by keeping the following factors into consideration: 

• Personal qualifications of a wife.
• age, beauty, fortune, understanding, and virtue of the wife.
• Social position of the family of the wife’s father.
• economic status of the husband.
• dower which was generally settled for women in the family of the wife, such as for her sister, paternal aunt or other paternal cousins, etc.

Differences between Sunni and Shia Laws related to Maher

Sunni Law

• A minimum amount of 10 dirhams must be prescribed for specified dower 
• No limit to proper dower is there.
• No limit to the maximum limit for a specific dower.
• In case the marriage has been dissolved due to the death of the husband and dower was not specified, or it was agreed among the parties that no dower would be payable, a proper dower is due if the marriage was consummated or not.
• Such agreement that no dower is due shall be void.
• In absence of agreement, only a reasonable part of the dower is presumed to be prompt.

Shia Law

• No minimum limit for the amount of maher has been prescribed.
• The amount of proper dower cannot exceed 500 dirhams.
• Fixing of dower exceeding 500 dirhams is considered abominable though not illegal.
• No dower shall be due had the marriage not consummated.

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