The Haq In Mahr

The Haq In Mahr

We are no strangers to the fact that before the advent of Islam, barring the scarce women from the upper class, the general status of Arab women was appalling. But if an attempt were made to define their status in some legal terminology it could be defined simply in one term – “property”. Having limited or no social status, an Arab woman did not have rights to own nor to inherit. Arab men could marry as many women as they liked, discard them whenever they deemed fit and even inherited women who were wives of their fathers. Women lacked personal autonomy to choose or decide for themselves – particularly in matters of marriage – where the highest bidder would “win” her. The concept of mahr (dower) was akin to “bride price” – a gift or money payable to the guardian (wali) of the woman in exchange for her hand in marriage.

Against this backdrop, the revelation of the following Quranic verse was liberating and redemptive:

“Give women free gifts (their dower) in good cheer. Then, if they forego some of it, of their own will, you may have it as pleasant and joyful.”

Surah Nisa Verse 4.

Jurists have generally defined mahr as a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage, even if it is not expressly mentioned or fixed at the time of the marriage. It is not “consideration” in the modern legal sense of the term but an obligation, imposed by law, upon a husband as a mark of respect to the wife. Islamic family law sought to make mahr into a real settlement in favour of the wife, a provision for the rainy day, which socially became a check on the capricious exercise by the husband of his almost unlimited power of divorce and polygamy.

It is understood that the major fraction of the female audience of this article will be the liberated one – a fraction where one (with of course pride) finds a plethora of independent, strong and hardworking Muslim women. The purpose of this article is not to lock horns with them by suggesting that women need security through monetary means (i.e. mahr) to sustain after marriage. Nor is the idea behind this literature to propose that mahr preaches dependency of the wife on a husband. The contents that follow are primarily directed to educate “man” as to his obligation; secondly, to clear some deep-rooted misconceived notions about the concept of mahr; and then in all humility to remind my progressive female audience that they are under a responsibility to ensure that the true concept of mahr travels to those who are not as privileged – for they might yet have use for it.

The foremost misconception about mahr lies in the quantum of it. Applying outdated analogies and hiding behind obsolete rates of calculation, the modern South Asian man murders the concept of mahr every day. It is often fixed at preposterous rates of 10 Dirhams (under the Hanafi school of thought) and 3 Dirhams (Maliki) and even the notoriously illogical “sharia haq mahr” of PKR 32.25. Those who consider themselves as “liberals” set it as 500 Dirhams (a mahr given by the Prophet (PBUH) to each of his wives), sometimes 480 Dirhams (a mahr that Ali (RA) gave Fatima (RA)).

The readers are reminded that the Quran and Sunnah do not fix any minimum amount of mahr. Calculation of mahr is simple when you return to the basic cornerstones of its concept, that is “respect”, “security” and “means of the husband”. It is left for you to debate how in today’s day and age, 10 Dirhams, 3 Dirhams, PKR 32.25 or even 500 Dirhams translate into “respect” or “security” of a modern woman. A pure concept of mahr is made a mockery of, when extravagant amounts of deferred (ghair muajal) mahr are proudly publicized at nikah proceedings, only to be denied when actual payment is due; or when unlimited money is directed towards elaborate wedding functions and the pocket tightens when it comes to fixing mahr. The problem is amplified when one notes that these social norms have trickled down to the underprivileged classes – a section where mahr, in fact, serves its truest purpose.

It is definitely not suggested that a high amount of mahr is the proposed solution. The concept does not preach to overburden anyone. The Prophet (PBUH) is recorded to have suggested to a very poor man to teach his wife how to read as her mahr. What is proposed, therefore, is that when marrying, men should first allocate from their “means” what they would consider to be the appropriate “security” and “respect” for women of their own household, as mahr of their prospective wives, before allocating budget for any ancillary and transitory events of marriage.

A second misconception lies in the concept of deferred mahr. Prompt (mu’ajjal) mahr is payable immediately after marriage if demanded by the wife; while deferred (ghair mu’ajjal) mahr is payable on the dissolution of the marriage or on the happening of a specified event. A common practice in South Asia, as briefly highlighted above, is that inflated amounts of mahr are declared as deferred amounts at the time of nikah, only for actual payment to be denied later at the time of the divorce (by the husband) or at the death of the husband (by the estate of the husband). It is submitted that the claim of the wife or widow for the unpaid portion of mahr ranks an unsecured debt that is due to her by her husband or his estate respectively, and is actionable in courts.

The censure of mahr has been subjected to western orientalist attacks and the application of the denomination theory by the feminists. A common feature of these bouts is the assimilation of mahr with the concept of “consideration” as present in the law of contract. They argue invariably that mahr is still analogous to bride price which gives a transactional share to the Muslim marriage, taking away the social and religious flavours of a marital relationship, thus reducing it to a legally acceptable form of prostitution. In giving response to such criticism, the intention is not to present a religious apology. The basis of this integration of mahr and consideration lies in the theoretical equation drawn between the Muslim marriage and a civil contract. Since the courts had to deal with the enforceability of mahr on repeated occasions, they adopted the readily available concept of consideration that suitably fitted the contractual paradigm of Muslim marriage. It is, therefore, submitted that mahr in Islamic family laws is not equivalent to consideration as used in the law of contracts. If it were a consideration it would technically constitute a part of the contract, whereas it is not. Despite having a mahr clause in standard nikahnamas, it is widely agreed amongst the scholars and writers that mahr is an essential incident of the Muslim marriage – an after-effect. So the Muslim marriage is valid even if mahr is not stipulated. Accordingly, if a man fails to stipulate, or even stipulates in the contract that there shall be no mahr, he still will be liable to pay the mahr to his wife.

The induction of mahr in Islamic marriage is symbolic of a scheme promoting love and respect. Its moral value is higher than its material value. In a religion that allows men the rights of divorce and polygamy, the concept of mahr enhances a wife’s ability to bargain for desirable stipulations in her marriage contract. Where many South Asian families focus on “taking” from the family of the bride, Islamic family law preaches “giving” mahr to the bride.

Interested readers are reminded that the much tolerated/adopted savvy trend of prenuptial agreements, in the UK and US, is a fairly recent brainchild of the same western orientalist thought and feminists critiquing mahr. Their hypocrisy stares them in the eye when one realises that prenuptial agreements originated for the purposes of protecting the financial interests of women in the event of dissolution of marriages – a purpose that haq mahr began achieving some 1397 years ago.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organisation with which he might be associated.

Fayez Qamar

The writer is a litigator and corporate lawyer who completed his LL.M from the prestigious University College London. He is also a part-time lecturer at Pakistan College of Law.



One Comment;

  1. DrSajid khan said:

    I have read this article with keen interest , almost an eye opener , I hope the message is circulated widely

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