Barrister M. A. Muid Khan :
Prologue
“…Give to the women a free gift of their marriage portions”. Holy Quran, Sura An-Nisa (4:4)
Dower is one of the fundamental rights of woman provided by Islam. This right provides woman economic and financial stability at the beginning of her married life. Recently, the marital dispute regarding dower or mahr, following the breakdown of the marriage between Singer Eleyas Hossain Subah Shah Humyra, a model, actress and ex-girlfriend of Bangladesh cricket team player Nasir Hossain; raised question whether a Muslim husband in Bangladesh is under any legal obligation to pay the amount of dower specified in their marriage contract to his Muslim wife. They tied the knot on December 1 in presence of family members. Question also arises what would be the legal rights of a Muslim wife in Bangladesh against her former husband if he refuses to pay the amount of dower specified in the marriage contract?
In this article an attempt would be made to give clear picture about the concept of dower in Bangladeshi Law and Islamic Law and rights of the wife to claim her dower from former husband in the event if the marriage breaks down irretrievably.
Dower in Bangladesh Law
In Bangladesh, the Muslim personal law governs all Muslims. Dower is also known as ‘mahr’. Mahr is a sum of money or property that the husband promises to give to his wife on marriage contract. A Muslim husband has to pay this amount to his wif on marrying her. Therefore, It could be either a sum of money or property, which the wife is entitled to receive in the consideration of marriage from the husband.
Bangladeshi Law makes it absolutely necessary that the marriage solemnized under the Muslim Law shall be registered. The Muslim Personal Law also regulates the payment and non-payment of Dower. Under Bangladeshi Muslim Personal Law, Mahr solely belongs to the wife. In the marriage of a Muslim, dower forms an inalienable part of kabinnamah. As kabinnamah is to be registered under the Muslim Marriages and Divorces (Registration) Act, 1974, so is the dower. The Act of 1974 discusses the provisions regarding registration of Muslim marriage as well as dower. For registration of a marriage, a Nikah Registrar shall charge ten taka fee for every one thousand taka dower or part thereof. Here the maximum amount of fee shall be four thousand Taka and the minimum amount shall be fifty Taka.
Husband’s obligation to pay
Dower under the Muslim personal law of Bangladesh is executed in two methods, Firstly, the mahr is executed either by agreement between the parties secondly, or secondly, by operation of law. If a man separates himself from his wife, then he should send her away with generosity, and also so the man cannot take back the goods, which were once given to the wife. If there is nothing specified regarding the payment of dower in the nikahnama, it can be presumed that the whole amount will be payable on demand. I is stated in The Family Courts Ordinance, 1985 that, “a family court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to dower.
In the case of Abdul Kadir v. Salima,(1886), honourable Justice Mahmood held that dower under Muslim law is a sum of money or property which is promised by the husband to be paid or delivered to the wife in consideration of marriage and even if the dower is not expressly mentioned at the time of marriage, the wife still has the right of dower.
If Singer Eleyas has promised to pay an amount of money on the marriage contract or nikkah nama, in accordance with the Law of Bangladesh, he must pay that amount to Subah. As there is a Marriage contract signed by Singer Eleyas & actress Subah & if the marriage breakes down, the mahr or dower claim by Subha would be executed in accordance with the written Marriage contract.
Classification of Dower
Under the Muslim Personal Law of Bangladesh, the dower may be classified into two folds (1) Specified Dower & (2) Unspecified Dower In Specified dower, the amount of dower is stated in the marriage contract. If not specified (Unspecified Dower), there is no maximum limit on the amount of dower.
If dower is not specified
If the dower is not specified on the marriage contract, in Bangladesh a Muslim husband can settle any amount of dower. However, he cannot settle the amount of dower less than ten Dirhams according to Hanafi law and three Dirhams according to Maliki law. Even if the husband is very poor and not in a position to pay ten Dirhams, then according to the Prophet, they are directed to teach the Quran to the wife instead of the dower. There is no maximum limit on the amount of dower.
Specified Dower
It is also important to remember that the specified dower can be classified into two classes. Firstly, Prompt dower: It is payable immediately after marriage on demand. And secondly; deferred dower: It is paid after the dissolution of marriage either by death or divorce. If a marriage is completed without the amount of dower fixed in the marriage contract or marriage is completed on the condition that the wife should not claim any dower, then the wife is entitled to proper dower.
Proper Dower
The amount of proper dower is decided by taking into consideration the amount of dower settled upon other female members of the father’s family. The proper dower is regulated with reference to the following factors: (1) Personal qualifications of the wife. Like her age, beauty, virtue, fortune, etc., (2) Social position of her father’s family, (3) Dower given to her female paternal relations, (4) Economic conditions of husband & (5) Circumstances of time. Under Sunni law, there is no maximum limit for a proper dower but under Shia law, the proper dower should not exceed 500 Dirhams.
Rights of a Muslim wife in Bangladesh
In Bangladeshi Law, the dower ranks as a debt. If the husband is alive, then (1) the wife can recover the dower by instituting a suit against him (2) If the husband dies without paying dower to his wife, the widow is entitled along with other creditors to have it satisfied on the death of the husband, out of his estate, (3) In cases where the dower debt is remaining unpaid, the widow can enforce her claim for the dower debt by filing a suit against the husband’s heirs. However, the heirs are only liable to the extent to which and in proportion to which they inherit the property of the deceased husband, (4) The wife also has a right to retain possession of her husband’s property in lieu of unpaid dower, (5) As Dower ranks as a debt and the wife is entitled along with the other creditors to have it satisfied on the death of her husband out of his estate, (6) She is entitled to retain such position until the amount of her dower is satisfied, (7) The right to retention does not give her any title to the property and (8) Therefore, she cannot alienate the property. It is by a way of compulsion to obtain speedy payment of the dower, which is an unsecured debt.
Epilogue
Under the Muslim Law, Mehr (dower) means money or property; which the wife is entitled to receive from the husband in consideration of the marriage but this consideration is not the same as that of the civil contract. Dower is an obligation imposed upon the husband as a mark of respect for the wife. Therefore, if the marriage between Actress Subah & Singer Eleyas breakes down, Subah would be entitled to claim for the amount of dower specified in the marriage contract from singer Illias. Singer Illias would be under a legal obligation to pay her the full amount of dower not yet paid to her. If he refuses to pay her dower, Subah would be entitled to bring an action against him to recover the unpaid dower. If he passes away without paying her dower, Subah would be entitled along with other creditors to have it satisfied on the death of Singer Eleyas, out of his estate. She has right to retain possession of her husband’s property in lieu of unpaid dower. She is entitled to retain such position until the amount of her dower is satisfied.
(The writer is a Barrister of the Honourable Society of Lincoln’s Inn, Chartered Legal Executive Lawyer of CILEX. He was crowned with the CILEX PRESIDENT AWARD 2016. Bar Council, Law Society & CILEX declared him as the Best Human Rights Lawyer of England & Wales. He can be contacted at [email protected]).
