The discussion around women’s rights under Islamic law still continues and involves various perspectives including those of Islamic legal experts, traditionalists and orientalists who keep engaging in arguments regarding whether Islam offers sufficient rights to women, resulting in a multitude of opinions. One of the most common arguments put forward in favour of Islam’s protection of women’s rights is that of the dower (also known as haq mahr). This article aims to delve into the significance of dower and explore its legal and Islamic foundations. More importantly, the article will deliberate upon whether dower really is the protection that liberal Islamic jurists claim it to be, or whether the information on the matter has been so widely misconstrued that dower has become a mere deception instead of the protection promised to Muslim women.
Dower has been deemed essential under Islamic jurisprudence. It has been described as a bridal gift given to a bride by the groom on the occasion of marriage and a religious obligation upon the husband fulfilling which he shall receive Allah’s blessings.
“Give the women [upon marriage] their [bridal] gifts graciously. But if they give up willingly to you anything of it, then take it in satisfaction and ease.”
– [Quran 4:4]
The husband (groom) offers an amount, commodity or service which is then negotiated and finally agreed upon by the bride (wife). Technically, this is payable to the bride immediately upon completing the nikah (religious marriage ceremony).
“Hazrat Umar and Qazi Shuraih have ruled that if a wife remits the whole of her dowry or part of it but later demands it, the husband shall be compelled to pay it because the very fact that she demands it is clear proof that she did not remit it of her own free will.”
(Further details in the book Huquq-uz-Zaujain under the caption ‘dowry’).
– Tafheem-ul-Quran by Syed Abul Ala Maudoodi, Volume 1, Page 308 (commentary on Surah 4, Verse 4).
Additionally, case-law of the Pakistani legal system also asserts the importance of dower, as highlighted in the case of Haseem Ullah v. Mst Naheed Begum (PLD 2022 Supreme Court 686) in the following words:
“…It hardly needs reiterating that the Holy Quran and the Sunnah of the Prophet of Islam (pbuh) are the primary sources of Muslim Personal Law (Shariat) in Islam. The payment of dower (mahr) at the time of marriage was a customary practice in Arabia before the advent of Islam, but it was paid to the guardians of the bride, such as, her father or other male relative, as bride-price and the bride herself did not receive a penny of it. This practice of paying dower as bride-price to the male guardians of the bride was reformed by the Islam through the Quranic commands of paying dower as the bride-wealth to the bride herself, who becomes the sole owner of it. The Holy Quran also forbids the Believers to take back anything from their wives out of the paid dower even it be a great sum…”
This judgment has highlighted an important aspect that the legal provisions regarding dower within the Pakistani system are line with and on the same page as Islamic provisions, both maintaining that dower is the right of a woman and must be paid to the bride.
Understanding dower as a means to protect women may lead female readers to consider setting higher dower amounts as their lawful right. Nevertheless, a contentious issue arises regarding whether dower truly serves as a protective measure proclaimed by legal experts or is merely a facade lacking the substantial benefits claimed. This debate underscores the need for further exploration and understanding of the complexities surrounding dower and its implications for women’s rights.
It is important to realize that legal provisions can neither be argued nor justified in a vacuum. They have to be observed through a multi-lens and compared with other laws on the subject and the cultural values of a society in order to establish judgment. It has been well established that within the Islamic faith it is not customary for women to be the primary financial providers of their households. Consequently, it is most probable that women may not end up choosing lucrative career opportunities and end up being solely dependent on their husbands. Although deemed acceptable in Islam, it can practically still leave women vulnerable to financial difficulties. Therefore, Islam mandates dower and maintenance for women to protect their rights and requires the husband to fulfill all financial responsibilities towards his wife, regardless of whether or not she works outside the home.
A major hurdle in fixing a high financial value of dower is that one may have to return the dower amount upon khula (divorce proceedings initiated by women).
For instance, if a woman finds herself trapped in an abusive marriage where her husband refuses to grant her divorce and wants to keep her caged while she desperately wants to escape, khula would typically be the recourse. However, in case of khula, she will have to pay back her dower. If she has already spent her dower money, lacks financial support from her family and has no money of her own since taking on the role of a traditional homemaker, she becomes trapped in an abusive marriage due to the husband’s deliberate efforts to maintain control.
In this scenario, dower ceases to provide protection and instead becomes a burden and menace for the woman. Considering this situation, one might question the necessity of stipulating any dower at all as waiving it could be a small price to pay compared to the potential challenges a woman may have to face living through an abusive marriage. This is a confusing state for women, especially when critics keep claiming dower to be a source of their protection. In this regard, we shall examine the Islamic provisions on the subject and whether the existing legal provisions are in line with them.
According to Islamic principles, a couple may typically agree upon any financial arrangement as per their choice. However, according to fuqaha, it is considered impermissible for a husband to seek financial payment in exchange for granting a divorce. Instead, it is advised that the husband should divorce his wife without any conditions or demands. Fuqaha strongly condemn the act of demanding anything in return, especially when the husband is at fault, viewing it as a serious sin.
In situations where the husband may not be at fault and the wife still wishes to end the marriage for any personal reasons, it may be permissible for the husband to request and receive financial payment. It is still preferable for him to show fairness and not demand an amount exceeding the agreed-upon dower or take this as an opportunity to take advantage of women. However, the husband and wife are within their rights to negotiate and reach a mutually acceptable amount as supported through references like Bada’I al- Sana’I, 3/150 and Bahr al-Ra’iq, 4/83.
We shall now turn to how these Islamic provisions have been incorporated in the Pakistani legal system. The Federal Shariat Court has passed a rather thought-provoking judgment in the Imran Anwar Case (PLD 2022 FSC 25) in this regard where various issues concerning the practicalities have been addressed.
Previously, as per sections 10(5) and (6) of the Dissolution of Marriage Act 1939, the question of surrender of dower at the time of khula had been regulated. A discretionary upper ceiling had been established by the court of up to 50 percent of the deferred dower or 25 percent of the admitted prompt dower of the wife in favour of the husband. The courts generally invoked Section 10(5) even in cases of khula where either the suit had been decreed summarily or when khula had been proved to have been obtained by the wife for no fault of the husband.
The section was considered repugnant to the injunctions of Islam and resultantly struck down. This raises pertinent questions as to the status of women and the protection of their rights in Islam. Placing an upper ceiling meant that men could not ask for the dower amount exceeding a certain limit, hence providing protection to women. Although the judgment does not necessarily mean that the dower amount exceeding the amount prescribed or fixed at the time of marriage should be asked from the woman at the time of khula, it has still put women in a more problematic situation as it can now enable men to ask for a greater compensatory amount than they should, which is just what abusive men in Pakistan need to continue with their abusive behaviour towards women.
Having noted the point of contention in the judgment, it is interesting to note that the court, after stating and reiterating a woman’s right to seek khula on any grounds under section 2 of the Dissolution of Muslim Marriage Act 1939, has specified that if it is proven that the wife is faultless and compelled to seek khula, then the court should not order the complete return or surrender of the entire dower amount in cash or kind. In situations where both parties bear some responsibility, the court may order the return of the dower proportionate to the fault established. Furthermore, it has been emphasized that regardless of the circumstances, the return or surrender of the dower in cash or kind should not exceed the dower amount specified in the nikahnama (marriage contract).
The confusion can be addressed by understanding that a factor to determine the compensation amount at the time of khula has come down to ‘fault-finding’. If a woman is at fault, or claims her right to khula completely upon her wish, a statutory ceiling may not be applied to the compensation amount. However, if the husband is at fault, or both have played equal roles, compensation can be wholly waived or reduced. What is most important to realize is whether our family courts are well-equipped in ‘fault-finding’ or have taken any appropriate action to incorporate such changes. If the Federal Shariat Court wishes to bring the laws of Pakistan in line with the principles of Islam, then efforts should also be made to ensure that the laws struck down are adequately replaced with the correct Islamic version. The results of removing the statutory ceiling and not establishing fault-finding mechanisms in courts have left women at the mercy of men and forced them to call their protection a mere deception.
How will the courts and laws define the word “fault”? What sort of actions and behaviours come under the ambit of “fault”? Can anything that can be considered grounds for khula also be considered fault on the part of a man? And if so, can mere dislike be considered a fault on the part of men? Will the courts see through the true and correct meaning of “fault”? It can be said without a doubt that it is not enough that the upper ceiling be struck down – it is pertinent that a proper system be defined and established. It is unfortunate that a seemingly “Islamic” country has not been able to develop a system for something as common and simple as compensation amount at the time of khula.
Together with this debate, it is vital to pen down that women must not completely depend on dower as their protection and that true independence comes from economic freedom. Furthermore, women must realize that regardless of how financially strong their husbands may be, proper protection will be earned through their own money. Hence, women today should be encouraged more than ever to pursue careers and strive for economic independence. Additionally, it is crucial to develop a comprehensive understanding of the aspects of Islam deemed genuine protection for women. A lot is yet to be accomplished in this regard.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.