‘State briefly the Muslim Law of Dower’. How far does it differ from the Hindu Law of Maintenance? A husband agrees to give his wife a Dower for next year's crops. The Wife files a suit to recover the same. Decide the suit.

Question: ‘State briefly the Muslim Law of Dower’. How far does it differ from the Hindu Law of Maintenance? A husband agrees to give his wife a Dower for next year’s crops. The Wife files a suit to recover the same. Decide the suit. [BJS 1977]

Find the answer only on Legal Bites. [‘State briefly the Muslim Law of Dower’. How far does it differ from the Hindu Law of Maintenance? A husband agrees to give his wife a Dower for next year’s crops. The Wife files a suit to recover the same. Decide the suit.]

Answer

Mahr or dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. Muslim marriage is like a contract where the Mahr is the price or consideration. However, it is also true that non-payment of Mahr does not void the marriage, so Mahr is not purely a consideration.

The principle that under Mohammedan law, the dower is an obligation imposed upon the husband as a mark of respect to the wife has been accepted by all the High Courts. It is well settled that dower or Mahr can be in law recovered by the wife concerned by instituting an action in law as if it was a debt due to her. Hence it follows that the obligation to pay a dower to his wife that Mohammedan law imposes on a husband gives rise to debt in favour of his wife.

Dower can be prompt or deferred. If it is prompt, that obligation is to be discharged at the time of the marriage. If it is deferred, it is to be discharged when the specified event occurs and on demand made by the wife. It is well settled that the dower or Mahr can be in cash or kind.

In case dower or Mahr is agreed to be paid in cash, and it is prompt dower, no question of registration arises in regard to such terms of the agreement. In case the dower is fixed in kind, such as immovable property, the question of registration arises as transfer of such property is required to be made by the husband in favour of his wife. Such transfer arises out of-the obligation already referred to.

The dower becomes confirmed:—

• by the consummation of the marriage; or
• by a valid retirement (khilwat-e-sahiha ); or
• by the death of either the husband or the wife.

If the dower is not paid, the wife and, after her death, her heirs may sue for it. The period of limitation for a suit to recover a “prompt” dower is three years from the date when the dower is demanded and refused, or where during the continuance of the marriage, no such demand has been made when the marriage is dissolved by death or divorce (Limitation Act, 1908, Sch. I, Article 103).

In Jaitunbi v. Fatrubhai, AIR 1948 Bom 114, Lokur, J. has laid down that assignment of land by the bridegroom to the bride in lieu of Mahr at the time of marriage is in the nature of the gift, and no writing is necessary for the validity of the gift since Section 129 of the Transfer of Property Act exempts a gift by a Mohammedan from the provisions of that Act and that the gift would be complete and valid if the three ingredients viz., offer, acceptance and delivery of possession are satisfied.

In the present case at hand, when a husband agrees to give his wife as dower next year’s crops, the wife can file a suit to recover the same. The suit of the wife is maintainable.

Moreover, the Hindu Law of Maintenance has been codified under The Hindu Adoption and Maintenance Act of 1956. According to Section 3 of the Act, maintenance includes:

• In all cases, provision for food, clothing, residence, education, and medical attendance and treatment.
• In the case of an unmarried daughter, also the reasonable expenses of her marriage and expenses incidental to her Marriage expenses cover the actual expenses in performing the marriage and expenses incurred in the betrothal function and nuptial ceremonies.

The obligation of a Hindu to maintain others arises on account of personal relationships or ownership of property. It is the duty of the husband to maintain his chaste wife in the matrimonial home. Generally, if the wife deserts her husband, she loses her fight for maintenance. However, for certain, just the wife’s reasons can live separately and claim maintenance from the husband.

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