State the nature and kinds of Mahr. Whether a Muslim widow can retain her husband's property in lieu of Mahr? Whether the right to receive Mahr and enjoyment of the property is transferable or heritable. Discuss with the help of Maina Bibi's Case.

Question: State the nature and kinds of Mahr. Whether a Muslim widow can retain her husband's property in lieu of Mahr? Whether the right to receive Mahr and enjoyment of the property is transferable or heritable. Discuss with the help of Maina Bibi's Case. [HJS 2003]

Find the answer only on Legal Bites. [State the nature and kinds of Mahr. Whether a Muslim widow can retain her husband's property in lieu of Mahr? Whether the right to receive Mahr and enjoyment of the property is transferable or heritable. Discuss with the help of Maina Bibi's Case.]

Answer

In Islamic Law, a marriage ("Nikah") is a permanent and unconditional civil contract(which comes into immediate effect) made between two persons of opposite sexes with a view to mutual enjoyment and procreation and legalizing of children. One of the essential features of a valid marriage is the payment of "mahr" (dower).  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. Although it is an obligation upon the husband, the wife is well within her rights to relinquish the said dower. Since the concept of contract is the basis of marriage, the principles of a valid contract would be applicable to relinquishment. Thus, the relinquishment should be made voluntarily. A Muslim widow doesn't possess the right to retain her husband's property in lieu of Mahr. As observed in Narayana v. Biyari, (1922) 45 Mad. 103, 69 I.C. 977,

"the right of retention arises for the first time on the husband's death, unless the marriage is dissolved by divorce, in which case it arises on divorce."

It follows from this that if a creditor of the husband obtains a decree against him, and the husband's property is sold in execution in his lifetime, the wife has no right of retention against a purchaser in the execution of the decree, and she must deliver possession to him.

This position of Muslim widow's right of retention was discussed in length in the case of Maina Bibi v. Chaudhri Vakil Ahmad, (1924) 52 I.A. 145. In this case, it was argued that the position of a widow in possession of her husband's estate was analogous to that of a mortgagee in possession. But this argument was not accepted by their Lordships. Their Lordships observed that "in the case of a mortgage the Mortgagee takes and retains possession under an agreement or arrangement made between him and the mortgagor," but in the case of a Mahomedan widow who obtains possession under a claim for her dower "neither the possession of the property nor the right to retain that possession when acquired is conferred upon the widow by the agreement or bounty of her deceased husband. The possession of the property being once peaceable and lawfully acquired, the right of the widow to retain it, till her dower is paid, is conferred upon her by the Mahomedan law".

Where the right of retention is heritable and transferable

There is a conflict of opinion on whether the widow's right to hold possession is transferable and heritable. One view is that the right is a personal right, and it cannot, therefore, be transferred by sale, gift or otherwise nor can it passed to her heirs on her death. The other view is that the right to hold possession is property.

In Maina Bibi v. Chaudhri Vakil, (1925) 52 I.A. 145, the Privy Council expressed doubt about whether a widow can transfer either the dower debt or the right to hold possession.

The right to retain possession has been held to be heritable also and there is nothing in Mohammedan or other law that would prevent her from transferring that right along with the property in favour of another by a valid conveyance nor would such transfer be opposed to any other principle of law. That such a right of a Mohammedan widow to retain possession of her husband's estate in lieu of her mahr debt is a heritable right and has been recognized in Azia Ullah Khan v. Ahmad Ali Khan, (1885) ILR 7 All 353.

All that can now be said with certainty is that the right to hold possession is heritable. Assuming that a widow can transfer her dower debt and her right to hold possession till that debt is paid, a deed executed by her, which fails to effect a transfer of the ownership with which it purports to deal, cannot operate to transfer the dower debt and the right to hold possession.

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