“Mahr, also transliterated as, mehr, meher, mehrieh or mahriyeh, is an essential characteristic of Muslim marriage as the Muslim law is of contractual nature emphasized in the Mohammedan Law”.[i] In the holy Quran, it is also referred as, al-sadaq (صذاقٌا), la – saduqah (صذلتٌا), al-nihlah (تٍىسٌا), al-ajr (عدشٌا), al-faridah (فشدةٌا), and al-‘aqd (عمذٌ). Mahr is a payment made by the family of the groom to the family of bride at the time of marriage, usually in the form of money or possession. The money or possession paid as mehr becomes the legal property of the bride. It is a consideration in respect to the contract between the bride and groom i.e. marriage. However, “It’s not a consideration in strict sense as there is no “quid pro quo” contemplated as required by The Indian Contracts Act, 1872.” [ii] It is also true that non-payment of Mahr does not void the marriage, so Mahr is not purely a consideration.”[iii]
The Muslim Law creates equilibrium between the men and women in the society by dividing the spheres of each of them. It unequivocally endorses a practical and just division of space and responsibilities between both of them. While the women are given supreme power and authority with respect to domestic management of the household, men are vested with the responsibility to maintain victuals for the family and provide them with basic amenities.
The scope of this article is to analyze the concept of mehr under the Islamic Law and its advent in and around the Iranian territory. The paper traces the history, how the concept of Mahr submerged into the Islam and its current status as mandatory pre-requisite for a valid Muslim marriage.
According to the Iranian tradition, marriage, in the great majority of’ cases, is contingent upon a certain commitment by the groom to his future wife. This commitment may either be in cash or kind and is called “mahriyeh” or “Mahr.” After the marriage, the wife may request payment of the “mahriyeh” at any time but usually this only happens in case of a divorce.[iv]
Mahr is considered to be a divine order of the almighty Allah. It ensures the bride’s financial security, within and after the marriage. It is considered to be an important and mandatory part of an Islamic marriage.[v] A Muslim marriage includes the proposal, Ijab (- دبةٔإ), by one of the nuptial party to willingly consent to enter into the contract of the marriage. The other party is required to express the acceptance, Qubool (-يُلب) to bear the responsibility of the marriage. The word Mahr, is derived from the Hebrew word, mohar which originally meant ‘purchase-money’ which means a gift that is given as a result of the contract formed by the marriage and that gift, according to Muslim law, which was given to the bride by bridegroom becomes the property of the wife.[vi]
The tradition of Mahr dates back even before the advent of the Islam. An orthodox long standing custom in Iran, ‘mohar’ or the purchase price of bride which was paid by the groom to the father-in-law. (Tavassoli, 1968: 1). Iranian tradition of Mohar, can be construed as a financial commitment by the groom to his father-in-law, is believed to be instituted to match the bride’s ‘Dower.’[vii]
In pre-Islamic Arab, Sadqua was a gift to wife but Mahr was paid to the wife’s father and could therefore, be regarded as sale-price. After the passage of time, the inevitable changes occurred and the mahriyeh started to be due to the wife instead of her father. Mahr payment is required to be paid to wife and not to her father; it could no longer be regarded as Sale Price.[viii] The groom was expected to be the custodian of the money till the time the bride demands the payment. Mohammad approved this tradition and mahriyeh got approved and incorporated in Islam.[ix]
According to the Iranian Civil Code and Islam, Mahriyeh can be categorized under the following heads:
§ Mahr-ol-mosamma: Under this head, Mahr is decided at the time of marriage and both the parties have agreed for the same.
§ Mahr-ol-mosale: This system of payment Mahr is when the amount of Mahr paid is not decided at the time of the marriage and is fixed at a later point of time. It is assessed in accordance with the socio-economic status of the bride’s family.
§ Mahr-ol-sonnat: Under this head the amount of Mahr is fixed as same as the amount given by Prophet Mohammad in the marriage of her daughter, Fatimah, as Mahr. The value of Mahr under the Mahr-ol-sonnat is approximately 500 dirham (roughly 50 dinar gold).
§ Mahr-ol-mot-ah: In this category, if the couple divorce before the consummation of their marriage, the wife is eligible to be paid 50% of the amount of Mahr decided at the time of marriage. If the amount of Mahr is not determined at the time of marriage the wife will be granted Mahr according to the social and economic status of the husband. It is categorized as follows;
*Upper class husband – 10 Golden Dinar
*Middle class husband – 5 Golden Dinar
*Lower class husbands – 1 Golden Dinar
The Shariat provides for the concept of Mahr as the husband is believed to honor and support his wife when he brings her home.[x] Quran keeps the status quo regarding the characteristic of Mahr as a pre-requisite to the marriage. According to the norms of the Islamic marriage, if the wife on the occasion of the union of the marriage brings some assets with her, the husband can only enjoy those assets after the payment of Mahr. The importance and necessity of Mahr has been mentioned various times in Quran and as a Sunnah.[xi]
The concept of Mahr found itself in the holy Quran also. The following verses from the Quran will help us to understand the concept of Mahr under the Islamic Law in a better way.
· O You who believers! When believing women ask for asylum with you, you shall test them. Allah is fully aware of their belief. Once established that they are believers, you shall not return them to the disbelievers. They are not lawful to remain married to them, nor shall the disbelievers be allowed to marry them. Give back the Mahr (dowries) that the disbelievers have paid to them. You commit no error by marrying them, so long as you pay them their due dowries.[xii]
· So, you shall obtain permission from their guardians before you marry them, and pay them their due Mahr (dowries) equitably.[xiii]
· So, you give them their bridal due (as) on obligation. And (there is) no sin on you concerning what you mutually agree of it (dowry) from beyond the obligation. Indeed, Allah is All-knowing.[xiv]
The tradition of Mahr, even though draws its roots as bride-purchase price, served many purposes. The functions can be generalized under the following categories;
a) Economic: Historically, women were always considered to be responsible for managing domestic affairs and were refrained from practicing a profession. The men held the monopoly to divorce. Mahr in these circumstances acted as insurance for women. If the man divorces her wife, wife can claim Mahr and can afford her life.
b) Degree of love and compassion: The amount of Mahr promised by the groom to the bride expresses or implies the love for his future wife. It is a measure of love of the man towards his fiancée.
c) Prestige: It was believe in Iran that the greater the Mahr, the greater the prestige, the bride possess.
According to Islamic scholars, Mahr can primarily be paid in two principal methods. These are;
a) Specified Mahr or Mahr-e-musawamah: “Under this method the amount of the Mahr to be paid is fixed at the time of marriage”.[xv] Specified Mahr can further be classified into two sub-categories;
1) Prompt or Mahr-e-Mu’ajjal: This type of Mahr is payable immediately[xvi] under the below mentioned circumstances
Ø First condition is that the husband can’t enforce his conjugal rights until he made the payment of dower. If marriage is consummated once, the wife can’t resist cohabitation (intercourse) after that.
Ø The wife can refuse cohabiting with the husband rightfully if the Mahr still remains unpaid.
Ø The period of limitation on demand and refusal of a dowry and any part of it is three years.[xvii]
Ø The specified dower can’t become differed dower after the consummation of marriage and if the case is so, the wife has the right to sue[xviii] for the same any time.
2) Deferred or Mahr-e-Muakkhar (لمؤخرمهر): This Mahr is payable only on dissolution of marriage by either the death of the husband or divorce.[xix] The promise to pay afterwards doesn’t make the payment of full money of Mahr any less legally required.[xx]
b) Customary or Mahr-e-Misil (المثل م): This type of Mahr is not fixed or specified in the contract of the marriage. Even if the marriage was contracted on the pre-requisite that there shall be no claim of the Mahr from the wife, the wife still possess the right to claim Mahr from the groom.[xxi] In cases like this, the bride’s father family will be detrimental in determining the amount of Mahr. Following factors will be taken in consideration to assess the value of Mahr:
1) Circumstances and the situation of the time.
2) Economic situation of the intended husband.
3) Age, beauty, understanding and other factors of the intended wife.
4) Social standing and stature of the intended wife’s father.
In contrast to the provisionary marriage in Iran, where the payment of Mahr is compulsory, the permanent marriages were happening without the payment of Mahr. But the statistics collected by Judiciary Statistical Centre of Iran showed that presence of Mahr in marriage is widespread.
In the city of Tehran, Iran, as depicted by the following graph, in the year of 1958, there were scarcely any marriage where Mahr was paid but just after passage of a decade in 1968, the rate of marriage with Mahr payment accounted to 3.3%.
In the Arabian societal sphere, there are various religious philosophies namely, Maliki, Hambali, Hanafi etc. The concept of Mahr has been interpreted and discussed variably among these philosophies.[xxii] The word Mahr hasn’t been mentioned in the holy Qur’an but instead the word Sadaq (صذاق) has been mentioned in the Qur’an instead. There is no necessary or fixed amount that should be paid as Mahr but Sunnah scholars has reiterated many times that the value of Mahr should not be excessively low. As pointed out by Imam Zafar Sadiq, Hazrat Ali declared that, “عٍٓ إوٓ أوشي أن ٔىُن اٌمٍش ألً مه عششة دساٌملبي” translated as Mahr should not be less than 10 dirham in any circumstance.[xxiii] The wife has the right to ask for the payment of Mahr if the Mahr has been decided as payable on demand at the time of marriage. If the husband has necessary resources to pay the Mahr he must do so and the failure can allow the wife to decline having sexual relations with him. While the Hanifi school requires two people to be witness at the time when Mahr is decided and fixed in the contract of marriage, Maliki school requires witness to be present at the time of publication of marriage and not at the time of drafting of contract.[xxiv]
According to 1984 Muslim Family Law act, provision 2(1) and 2(2) provides for following things,
a) The payment of Mahr must be paid by either groom or his representative to the bride or her representative at the earliest and before the marriage is solemnized, the presence of at least two witness are mandatory.
b) The registrar shall ascertain and record following things;
i) The value and particulars of dowry
ii) The value and particulars of the gift
iii) The value of the securities provided for the payment of Mahr.[xxv]
The receipt of payment of Mahr is women’s right and the husband should pay the amount of Mahr to his wife without exception and as a sign of his love and responsibility towards his wife. While there are instances of presence of Mahr in many religions, Islam follow it rigidly and mandatorily. It is more vital, sacred and comprehensive in comparison to any other religion. In Islam, Mahr is not merely considered as a sacred responsibility which should be performed in conformity of the provisions of the holy Qur’an and the provisions of Sunnah but instead it is an act whose performance is an act of devotion. The concept of payment of Mahr is with no cast of shadow of doubt is for pleasing the wife and increasing her prestige and participation. Islam refrains from setting the price and recommends only for moderation of the price by ensuring that the amount of Mahr is neither too high nor too low. The prophet has asked us to simplify the process of payment of Mahr.
[i] Prof. (Dr.) T.V. Subba Rao & Prof. (Dr.) Vijender Kumar, Family Law in India, 638 (S.Gogia & Company 10th ed. Updated, 2014).
[iii] Saburunnessa v. Sabdu Sheikh, AIR 1934 Cal 693.
[iv] Bagher Saroukhani, Dower (Mahriyeh): A Tradition in Mate Selection in Iran, International Journal of Sociology of the Family, Vol. 9, No. 1 (January-June 1979), pp. 17-25
[v] Md. Nannu Mian and Shalina Akter. “A Comparative Study of a Restitutionary Remedy for an Undue Influence between the English Law and the Islamic Legal Principles.” IOSR Journal of Humanities and Social Science (IOSR-JHSS), Volume. 12, Issue. 5, (July – August 2013), p. 40.
[vi] AAA. Fyzee, Outlines of Mohamedan Law (Oxford University Press, 14th edition 1984, 1st in 1949).
[vii] A. Asef, Mahr and Laws of Iran, 1964 pg.4.
[ix] Supra note 4
[x] Hazrat Mufti Taqi Usmani, Details of Mahr (Dowry) in the Shariah, Shariah Board New York, (Apr. 1, 2019 9:15 PM), http://www.sbny.org/view-articles.php?id=3&t=Details-of-Mahr-(Dowry)-in-the-Shariah
[xi] Brown, Driver, Briggs, Gesenius (1952). ‘‘The NAS Old Testament Herew Lexicon”. Oxford University Press. ISBN -198-64301-2. Retrieved 2014-09-06
[xii] Al-Qur’an, 60:10
[xiii] Al-Qur’an, 4:25
[xiv] Al-Qur’an, 4:24
[xv] F.B Tayabji.(1968), Muslim Law (Bombay: N.M Tripathi,1968) p.56
[xvi] Husband can settle any amount as dower to his wife, even if that leaves nothing to the heirs but he cannot settle for less than 10 Dirham in Sunni Law. The Shia Law, has no minimum
[xvii] Syed Shahid Ahmad IOSR Journal Of Humanities And Social Science (IOSR-JHSS) Volume 21, Issue 7, Ver. V (July. 2016) PP 86-91.
[xviii] A formal written request, typically one signed by many people, appealing to authority with respect to a particular cause
[xix] Fyzee, Outlines of Mohamedan Law (Oxford University Press, 14th edition 1984, 1st in 1949) p. 169.
[xx] Jamal al-Din al-Asmawi, Nihaya al-Sawal fi Sharh Minhaj (Egypt: al-Maktaba al-Mahmudiyya al-Tijara, II, 1340H) p. 233-234.
[xxi] Allama Abdul Aleem Siddiqui, Roots of Islamic Jurisprudence (Cairo: Daar al Ma‘arif, 1998) p. 56.
[xxii] Muhammad Yahya ibn Shaykh Aman, Nuzha al-Mushtaq (Cairo: Matba’ Hijazi, 1370 H / 195) p. 598.
[xxiii] Ibid, p.253
[xxiv] Mona Rafiq, Rethinking Islamic Law Arbitration Tribunals: Are they Compatible with traditional American Nations of Justice. 28 wis. In’t Law Journal, 108, 138-39 (2010. ) .
[xxv] Maulana Wahiduddin Khan, Woman between Islam and Western Society (New Delhi : Goodword Books, 2004) p. 214.