Dower under Muslim law

Dower under Muslim law

Author: Poorvi Sirothia

Meaning

Dower money is a kind of debt that is payable to the wife. The bridegroom promises to pay a certain sum of money or other property in consideration of marriage this is known as dower. It is something like a mark of respect to the bride. Dower is the absolute right of the women and it depends upon women how she utilizes that amount. The husband has no right over it. It is payable either by agreement between the parties or by operation of law.

Definition

Mulla defines Dower as a sum of money or other property which the wife is entitled to receive from her husband in consideration of the marriage[1]

Objective

The main and foremost object of the dower is to provide a livelihood to the wife after the dissolution of marriage or in case their husband dies.

Kinds of dower

According to Muslim law, the dower may be classified into the following categories-

  1. Specified dower
  2. Prompt dower
  3. Deferred dower
  4. Proper or customary dower
  1. Specified dower- this type of dower amount is settled by the husband. In case the husband is minor the amount is settled by the guardian. The specified dower must not be less than 10 dirhams.
  1. Prompt dower – “The dower which is payable immediately on demand. The dower may be realized by the wife before or after the consummation of the marriage. In case if the prompt dower is not paid then the wife has the right to refuse to live with her husband.”
  2. Deferred dower- the dower which is payable on dissolution of marriage is known as deferred dower either by divorce or by the death of the husband.
  3. Proper dower or customary dower- “under the contract when the amount of dower is not fixed at the time of marriage then it is called proper dower. The amount of dower settled upon the female members of the father’s family such as her father’s sister.”

Enforcement of dower

“When the dower is not paid to wife then she can enforce it by filing a suit against her husband. In case she dies then her legal heirs can sue. The period of limitation is three years”

Rights and remedies for nonpayment of dower

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 husband out of his bequest.”

Right to cohabit- “the wife has a right under Muslim to refuse to cohabit with her husband in case the prompt dower is not paid and if the marriage has not been consummated.”

The right to retain her deceased husband’s property- “wife has a right to retain his property until dower is paid if she has lawfully obtained the possession of her husband property.”

Case- abdul kadir vs salima 1886

“Hon’ble justice Mahmood has said that 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 o dower upon the wife.[2]

Difference between Shia and Sunni Law

Shia law

  • No minimum limit is prescribed
  • Proper dower cannot exceed 500 dirhams
  • In shia law, no dower would be due if the marriage was not consummated.

Sunni Law

  • minimum limit of 10 dirhams
  • Proper dower has no limit.
  • Proper dower would be due if the marriage was not consummated

Conclusion

“Under “the Muslim Law dower implies cash or property which the wife is entitled to get from the husband with regards to the marriage consideration. Dower is an obligation imposed upon the husband as a sign of respect for the wife. The significant object of the dower is to give resources to the wife after the dissolution of her marriage so she may not get hopeless after the death of the husband or end of a marriage by divorce. Dower has additionally been considered as the piece of maintenance while fixing the amount of maintenance under Section 125 of Criminal Procedure Code, 1973.”

Will under Muslim Law

Meaning

“The “idea of a Will under Islamic law is a kind of deal between two different propensities. One, the perspective on the prophet is clear that after the death of an individual, his property must be circulated to his heirs and this rule is considered as divine law and any interference is unacceptable.”The individual who executes the Will is called” ‘legator’ or ‘testator’ and the individual in whose favor the Will is made is known as ‘legatee’.”

Definition

“Will is a desire of someone to transfer property to another, which takes effect after his death. Will is a legal declaration of the intention of the testator concerning his property.”

Essentials of a Valid will

  1. The person must be competent to make a will.
  2. The person must be capable of taking endowment.
  3. There must be free consent for the execution of the will.
  4. The legator must possess testamentary rights over the property.

Forms of will-

“Will can be made either by express or implied- verbally or in writing or regardless it is verbal or written, the intention of the testator must be clear.”

Who can make a will?

He must be a Muslim- “he must be a Muslim under Muslim law in case he has married under special marriage act, 1954 at that time the will made by such individual will be executed under the Indian Succession Act, 1925 not by the Muslim Personal Law.”

The soundness of mind- At the creation of will the person must be of sound mind he must be competent enough to comprehend his activities and the lawful outcomes of such activities.

Age of Majority- the age of majority under Muslim law is governed by the Indian Majority Act, 1875.

“The majority ends at the age of 18 years yet on the off chance that the minor is one whose guardian is appointed by the court then the majority will end at the age of 21 years.”

Free consent- while making a will free consent is very important. If it is discovered that the will is executed under coercion, undue influence then that will be treated as invalid and void.”

The existent only existent person is taken into consideration for a will.

Subject of will

  • The testator must be the owner of the property
  • The property must be in existence
  • The property must be capable of transfer.

Revocation of Will

Mohammedan Law gives on a departed benefactor free option to revoke his Will. He may revoke it whenever he wants. The revocation might be either express or inferred.”

  • “_An express revocation might be either oral or written, for example, ‘A’ makes a testamentary disposition of property in favor of ‘B’. After making it he says “the property that I provided for ‘B’ is for ‘Y’. These words will add considered to express revocation of the will.”
  • _An implied revocation might be implied. For example, where the testator transfer the subject matter of the will or destroy it completely or alters its nature or construct something without being delivered” where ‘A’ grants land to ‘B’ and in this manner constructs a house over it, the endowment stands revoked.”
  • Revocation by subsequent will where the same party is be quested to another, subsequent will shall revoke to prior will except that bequest shall not be extinguished, but it shall be divided equally.”
  • Revocation by refusal if the person refuses to accept the will then it shall return the property to legal heirs.”

Comparison of Shia and Sunni Law of will

Sunni law

  • Consent of heirs must be given after the death of legato.
  • A will is valid if a legato commits suicide before or after the execution of the will.
  • Will in favor of unborn child is valid if he is born within 6 months of the making of the will.[3]

Shia Law

  • Consent can be given either before or after the death of the legato.
  • A will is valid only if the legator commits suicide after executed the will.
  • Will in favor of an unborn child is valid if he is born within 10 months of making a will.[4]

Conclusion

“A Will is a kind of device which gives the right to property to the legatee, deferred until the death of the legator. It gives a chance to a legator to address the law of succession to somewhat. This is because it engages a portion of the family members to acquire an offer in the property who are legitimately from barred from legacy under Islamic law. The Islamic law of Will permits an individual to lapse his property upon an individual willingly. In any case, all the while, it keeps up a judicious harmony between the law of legacy and devolution of property under a Will.”


[1] Meaning of dower, types, difference under shia and sunni law- Lawnn

By LAWNN.COM  April2, 2017 https://www.lawnn.com/meaning-of-dower/

[2] https://indiankanoon.org/doc/119342/

[3] Will under the Islamic Law of inheritance in India  by Akanksha- june 10, 2019

https://blog.ipleaders.in/islamic-law-will/

[4] Will under the Islamic Law of inheritance in India  by Akanksha- june 10, 2019

https://blog.ipleaders.in/islamic-law-will/

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