Dower is also usually called as Mehr. It is taken as money paid as thanksgiving. A marriage without dower is an invalid marriage, so dower is an integral part of the Muslim marriage. Dower is nowhere the maintenance. Dower is given at the time of marriage whereas maintenance is given at the time of divorce. In Shah Banu Begum case AIR 1985 SC 945, Supreme Court laid down 2 things:-
- Section 125 applies to all customary laws, Section 125 is applicable to Muslims.
- Mehr is not the money paid at the time of divorce.
Those customary money at the time of divorce is not Mehr. The maintainance allowed to a woman is only during time of iddat & to a child upto 2 years at the time of divorce. As a result Muslim Law & CrPc came into conflict. As a result of Shah Banu case, there were 79 seats in Lok Sabha which now is 81, they came up with Muslim Women (Protection of Rights & Divorce) 1986. A Muslim woman can be given Maintainance in iddat period only.
In Danial Latifi & Anr. v. Union of India 28th September 2001, The court, therefore, came to the conclusion that if the divorced wife is able to maintain herself, the husband’s liability ceases with the expiration of the period of iddat, she is entitle to have recourse to Section 125 of Code of Criminal Procedure.
In Noor Sabha Khaton v. Mohammed Qasim AIR 1997 SC 3280, The provisions of Section 125 C.r.P.C. for the grant of maintenance to the minor children and that the section 3(1)(b) of the Muslim Women (protection of Rights on Divorce) Act, 1986 also entitles a divorced woman to claim reasonable and fair maintenance from her husband for maintaining the children born to her before or after her divorce from her former husband for a period of two years from the respective dates of birth of the children and that the said provision did not affect the right to maintenance of the minor children granted by section 125 C.r.P.C.
Nature of Dower
- A dower is an unsecured debt. Before property is distributed in intestate succession ( First money taken out is funeral expense, the debts & then is distributed amongst their heirs).
- Dower not only gives you right to sue, it is an actionable claim. Widow has right to claim money from heirs only to extent of which heirs were supposed to pay money. Woman has right to remit money. Consent must be a valid consent.
Right of retention of property in lieu of dower
- Dower does not give right on property forever. Right of retention does not give a title. She can take the benefit of that property till her dower is paid. She can’t take the property. The day dower ends, he has to give property back to heirs.
- Right to retention does not give right of mortgage. It is not mortgagor, mortgagee relationship. It is not transferable.
- Whereby property is to be sold & the dower is to be paid, there with consideration of the property sold, the dower shall be paid.
- Retention of property is right of possession not of ownership.
Dower pe se is heritable, whereby widow dies and dower is not paid yet, children can claim that amount of dower.