Publication Author:Sultana Kamal
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number of pages:164
The provision of Mehr, like maintenance of wife/s, is generally believed to be a part of the economic security or a symbol of honour provided to women within marriage. Mehr, for example is textually defined as a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. In the explanation it is said that the word ‘consideration’ is not used in the sense in which the word is used in Contract Act. It is further said that under Mohammedan law Mehr or Dower is an obligation imposed upon as a mark of respect to the wife. However it is also said that the dower becomes confirmed:
a. by consummation of marriage;
b. by a valid retirement; or
c. by death of either the husband or the wife.
According to Baillie, under Shia Law the right to dower is established by consummation or by death of either party, but not by “valid retirement”. According to the law, if the husband divorces the wife before consummation, the dower is reduced by half, but if the husband dies before consummation, the full dower is payable to the wife. This shows consummation forms a very important part of the whole contract. In short, dower or Mehr is an essential condition of marriage and marriage in Muslim Law is defined to be a contract which has for its object the procreation and legalising of children. In its attempt to explaining contract in this connection, scholars have agreed in saying that marriage according to the Mohammedan law is not a sacrament but a civil contract.
Let us briefly examine the evolution of the Islamic structure of the Institution of Marriage. One must remember that it is generally accepted that the Pre-Islamic customs served as the basis of the legislations brought about by Islam. The new order after the Koranic revelation either accepted or rejected or made improvements upon the customs. In case of marriage, we find that the Pre-Islamic customs provided for four kinds of biological relationship between the males and the females.
a. A form of marriage in which a man would propose for and marry another’s daughter or dependent by giving a certain dower.
b. A man desiring a noble offspring would ask his wife to call in the house a noble man and beget an issue through that man.
c. A limited number of persons less than ten, would visit a woman and after delivery of a child, the woman would fix paternity out of those persons and the man would be bound to accept the child.
d. There were prostitutes who had a large number of visitors. If a child was born to any of them, paternity would be decided on comparing the appearance of the child with any of the visitors.
Out of the above four kinds of customary sex relationships, Islam accepted only the first one with a very important modification and rejected and prohibited the three others.
The modification was made in the area of Mehr. Mehr according to the Pre-Islamic customs was to be paid to the father or guardian of the bride which amounted to a sale, but in Islam, dower or Mehr became payable only to the bride and the idea of sale ‘almost’ (emphasis is mine) disappeared. Now if we turn to the findings of our ‘Women and Law in the Muslim World’ national research done in Bangladesh, we can see some of the prevailing popular beliefs as well as some of the more sensitive reactions to the provision of Mehr.
Mehr, as we know is an essential condition of valid Muslim marriage. In Bangladesh, it is popularly known as a condition to be concerned about at the time of Talak or dissolution of Marriage. People tend to believe Mehr is a debt of the husband to his wife to be paid at the time of breaking the marriage tie. It is also generally believed that Mehr is definitely an advantage given to women within marriage and it is mark of respect or honour Islam has awarded women with. It is also mentioned by some as a security provision within marriage in favour of women. Many people, however, believe it to be an unfair imposition on men especially at this period of history when women are demanding equality in all spheres of life.
We need to look at some of the issues raised here with enough care. First of all, if marriage is to be considered a civil contract between two adults why should there be unequal provisions for the partners in the name of security? This then is a definite indication that one of the partners suffer from some inherent inequality. One needs not to be told that Mehr relates to the bride’s or the woman’s social and economic status, and the provision from that point of view, is an agreement to accept, reinforce and institutionalise a woman’s subordinate position. This reflects a social concept that women are by definition weak and dependent on the systems of protection by men and are destined to remain so for ever.
The exponents of the opinion that Mehr is indeed a mark of honour to women have never been, as far as our research goes, able to clearly establish the nature of that honour. They are emotional but vague in their explanation. In response to our questions during the research, most of these people made some significant comments on this very subject. One of the Imam was of the opinion that “through the system of Mehr, Religion (in his case Islam) teaches us that one has to pay a price to get the service of women” and that was his concept of honour. He added, “without the payment of the prompt dower the marriage is not valid”. By this he meant a man cannot touch his wife without having paid the prompt dower. One of the teachers of a religious school said, “your wife is not ‘Halal’ unless you pay the agreed amount of dower”. Another commented, one must pay the dower before consummation of marriage. The most outrageous comment came from another Imam who said one must pay the woman for the use of her “hidden parts”.
The more moderate yet conservative opinion that came was that the prophet did not want to see women in an insecure position within marriage and that is the reason why this provision was made. A Jamat-e-Islami worker was very frank in saying that the system of Mehr was introduced because women are weak and dependent on men. He immediately added, “if one fears God, there should not be any opposition or criticism to this!” His statement does not call for any further analysis. The fact that a man’s sexual rights over his wife is directly related to the provision of Mehr cannot be overlooked. It is clearly indicated in the following judgement delivered by one of the Courts of Pakistan which states: Prompt dower, as soon as it is demanded, becomes a debt which the husband is liable to pay. The wife may refuse to live with the husband unless and until the prompt dower is paid.
Again Section 336 (2) of Mulla's Principles of Mohamedan Law states: … If the marriage was not consummated, and the amount of dower was specified in the contract, she is entitled to half that amount. If no amount was specified all that she is entitled to is a present of three articles of dress.
Commenting on the provision of Mehr, most of our women respondents as well as some men said they do not think it has anything to do with honour though in the given situation where majority of women do not have economic security it may be accepted as a compensatory gesture by the society. They would ideally like to see fair economic opportunities for women rather than such protective measures. They also pointed out that Mehr in our societies, where people in general suffer from economic insecurity, is almost impossible to secure. Men pledge highly inflated amounts at the time of wedding but at the time of realisation women end up in getting almost nothing. Weaker position of women in comparison with their male counterparts make them either forgo the claim under duress or some other pressure or they are unable to realise the claim through any legal process if and when refused. In several cases it has been noted that since the husband has to pay the dower in full at the time of dissolution of marriage, it makes the process of divorce difficult for the couple. It is applicable to both the partners but in most cases wives are deserted by their husbands just because either they (husbands) are unable or unwilling to pay the Mehr. It quite often compels a couple to continue an unhappy relationship too.
To quote from a judgement: “Dower is often high among Mohammedans to prevent the husband from divorcing his wife, in which case he would have to pay the amount stipulated”. Under such circumstances the woman is often made a victim of insult, harassment and torture which may result in suicide or femicide.
In conclusion, it may be said that the provision of Mehr may be considered to be beneficiary to women as long as women’s social and economic subordination remains the norm. It is a way of reinforcing, institutionalising and perpetuating women’s dependency on men. The belief that Mehr gives security to women is merely theoretical as our practical experiences show that women are seldom able to realise the claim either during continuation of marriage or at its dissolution. Moreover, the direct relation it has with men’s sexual rights over his wife rules out the idea that Mehr is at all a mark of honour to her. It can only be appreciated as an effort to minimise the economic risk of women within marriage in a society where her rights to equality are either systematically denied or violated.
 M. Hidayatullah and Ashad Hidayatullah. Mulla’s Principles of Mahomedan Law, 18th Edition (Bombay: N.M. Tripathi Private Ltd.) 1977.
 Baillie. Digest of Mahomedan Law, Part I, 1875, Part II, 1869.
 Hedaya, Charles Hamilton’s Translation, Original Edition. 4 volumes, 1870. and Baillie. Moohummudun Law of Inheritence, 1874.
 Abdur Rahim from Kashf of Ghumma Muhammadan Jurisprudence Cited in Thoughts in Alimuzzaman Choudhury. Thoughts on Mulla’s Principles of Mahomedan Law. (Dhaka: Interline Publishers) 1983.
 R. Levy cited by Alimuzzaman Choudhury. See 5.
 Wensinck, Early Mohammedan Tradition quoted by Alimuzzaman Choudhury. See 5.
 Tyabji. Encylopedia of Islam Vol. III.
 Sultana Kamal. Her Unfearing Mind, (Unpublished) - English translation of the Bangladesh National Report of the Women and Law in the Muslim World Research Programme, Dhaka, 1994.
 Rohilan vs Sana Ullah (‘59) p.. Lah 470. quoted by Mulla in his Principles of Mahomedan Law, 18th ed., 1977.
 Section 336 (2) of Mulla's Principles of Mohamedan Law, (Bombay: N. M. Tripathi) 1990 (19th edition), page 275. Reference is made here also to Hedaya, 44-45 and to Baillie, 96-97.
 Cases cited by Mulla of Zakari Begum vs Sakina Begum (1892); 19 I. A; 157, 165, 19 Cal. 689. Also Mohd. Bashir v Walayat Begum, Pakistan Legal Decisions (P.L.D.). 1967 Lahore 391.
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