Questions about mahr/dowry etc.
by
Sr Ruqaiyyah Waris Maqsood.
I have posted this article in response to the many
questions I get asked on this subject, in the hopes that my thoughts may
perhaps help others, insha’Allah.
1.Could you explain what 'mahr' or bride-price is within
the context of Muslim marriage?
The mahr is the sum of money or other property which the husband agrees to pay to his bride on or shortly after the marriage. It becomes her property, and is hers to keep (and not split with him) if the marriage ends in divorce. If the husband refuses to divorce and she has no genuine grounds to be rid of him, she can take her case to a judge, who may end their marriage if she returns the mahr to the husband. In ‘normal’ divorce, either side has grounds for it and normal divorce law applies. Since it is hard for happy couples to be considering possible divorce at their weddings, a responsible adult adviser is usually important to negotiate these things tactfully and sensibly, and get it all clearly and properly witnessed so that it is legally binding.
· The wali (competent guardian of the bride) must consent to the marriage
· The bridegroom must be legally, mentally and physically competent to marry
· The bride must be competent to marry as above, and should neither be in iddah (waiting period after divorce) nor in the state of ihram (ritual purity, as for Hajj).
· There should be clearly agreed sighah – that is (a) ijab – the proposal, and (b) qabul – the acceptance
· The mahr payment must be agreed.
The Shafi‘ i school insists on the first four requirements, and requires that sighah must take place in the presence of two witnesses. The dowry should be agreed, but if it is not the marriage will still be valid and the dowry should be determined by the court.
The Hanafi school regards only the sighah as essential. In sighah, clear words must be used, and qabul made in the same meeting where ijab is uttered.
For Shi’ites, a Mu ‘tah marriage is a marital agreement between a man and woman for a specific period of time, on the payment of a mahr, which in these cases really acts as a fee for services rendered. The practice of Mu ‘tah marriage still takes place, largely in Shi’ite Muslim societies. Some scholars argue that it is still legal; but the vast majority of Muslim scholars regard it as little more than a form of prostitution, especially when such a ‘marriage’ may be contracted for just a few hours!
An Urfi marriage is similar, a practice of some wealthy Muslim business men travelling abroad from their own countries. Girls are ‘bought’ for an agreed price, and ‘paid off’ when the visitor leaves. Since some of these men are extremely wealthy, money is no object.
Both practices are in direct opposition to the sunnah and spirit of Islam, and are completely illegal in the UK.
2. What is the purpose of mahr?
So that even if a wife has nothing of her own, and owns
nothing, she may commence her marriage with an amount of money or property that
is hers, and hers alone. She may, of course, choose to use it to help her
husband, or his business, or the household if she wishes – but this is not what
it was intended for and no pressure should come on her.
3. Who has the right to set the price of mahr: a bride or
her family?
It is usually done with the bride receiving a lot of
advice from sensible people. Ultimately it is her choice, but see below.
4. If a bride forgoes her right to ask mahr from her fiancé, does her family have the right to demand it in her place? (Ie, can they override her decision not to ask for mahr?)
The short answer is ‘no’ – but they could be right to try
to over-rule her. They should certainly advise her not to be foolish. It
all depends on circumstances and reasons, If the bride’s family is really after
money for themselves, their motives are not right. However, it may be that the
husband or his family owe something to the bride’s family, in which case they
would think her silly for letting him off. Everything depends on circumstances.
A wealthy woman is entitled to a mahr from a poor husband, but would probably
accept a token sum. I took three rupees from my poor Pakistani husband!
5. Is it permissible for the family of a bride to demand more mahr than the groom or the groom's family is able to pay?
Yes. They may demand whatever they like – but that does not
mean they will get it. It simply opens negotiations. If they are in a position
to prevent a girl from marrying by making demands too high, or just by being
plain unreasonable, they should consider what Allah will make of their motives
for doing so, or for making difficulties. If the bride wants this particular
poor husband, why should she not have him? He could be a wonderful man. All
this sort of thing usually comes because the family wants to get its hands on
the money, and is not considering its proper purpose or the happiness of the
couple.
6. Can an engagement be dissolved on the grounds of a groom's inability to pay the mahr requested by the bride's family?
Yes, legally it could be - but should only be if this is the bride’s wish. She could use this as an excuse to get out of an unwanted match if she wished. However, if the bride wants him, she should be able to insist on accepting a lesser mahr without her father (usually) interfering or putting up obstacles. Too often, the bride is being used as part of a business negotiation!!
* * * * * *
I will now append to this text some work I did on this subject a few years ago. It should cover all your questions in general, and you may quote from it with my full consent.
Payments to and
from the Bride in Islamic Law and Tradition
Dowry and Mahr
In
the first era of Islam marriage was a simple affair, without pomp or ceremony.
Any expenditure incurred in its performance was quite minimal, and not a burden
on either family. Indeed, the Prophet stated: ‘the most blessed marriage is one
in which the marriage partners place the least burden on each other.’
(al-Haythami, Kitab ab-Nikah, 4:255).
Nowadays,
much difficulty and hardship can be caused by the setting and giving of dowries, bride-prices and mahr
– not to mention enormous wedding feasts and celebrations in some cultures
which bring a most unreasonable financial burden on the families concerned.
Financially crippling celebrations are totally in opposition to the spirit of
Islam, and are not necessary. They are purely a matter of the culture of
certain regions. No Muslim should feel obliged to continue these unIslamic traditions,
or be embarrassed about breaking with their old cultural traditions.
It
is very important that Muslims themselves realise that there is an enormous
difference between dowry, bride-price and mahr.
Many
books and articles on the subject confusingly use the word dowry to mean mahr, but in fact the correct word for
dowry is jahaz, and its function is
totally different.
What is a dowry?
The
custom of giving dowry (jahaz) is not
part of Islam, although it actually seems to be on the increase among several Muslim
cultures, notably those of Indian, Pakistani and Bangladeshi origin, even when
they have settled in the UK. In fact, it is a practice which has never been
sanctioned by Islam and is not prevalent amongst Muslims of other cultures. It
seems to be in imitation of ancient Hindu culture in which daughters were not
given any share in the family property, but were given payments, part of which
might be in the form of household goods, as a measure of compensation. Islam
granted daughters a rightful share in their family property and inheritance.
A
‘bride-price’ is either :
· an amount
of money, goods or possessions given to the bride by the bride’s family at the
time of her marriage, in order to attract a good husband for her. It would in
effect become the property of the husband or his family upon his marrying her.
This is a totally unIslamic practice. In Islam, women are not ‘owned’ by their
families and should not be ‘traded with’ in this manner. It is an insulting
practice. Or
· an amount
of money demanded from the bridegroom or his family by the bride or her family,
usually the bride’s father, without which the daughter will not be given in
marriage. In the jahiliyyah society before Islam, this money was regarded as
the property of the girl’s guardian.
The
matters of fathers giving the bride gifts of money or property, or paying for
an enormous wedding feast, or providing a home, or setting her up in her home
with furniture and household effects are left to the discretion of the people involved
in Islam. The Prophet himself saw to the marriages of his four daughters. He
gave his daughter Fatimah various gifts when she married Ali b. Abu Talib, but
there is no record of his having given anything to his other daughters on the
occasion of their marriages. Had such gifts been a recommended sunnah, he would surely have given the
others gifts as well. Moreover, the gifts given to Fatimah were extremely
modest household articles – a sheet, a leather water-bag, and a pillow stuffed
with grass and fibre.
Nothing
could be more unIslamic than ostentation. It is ridiculous to attempt to
justify flamboyant displays of wealth in lavish gifts or feastings by citing
the Prophet’s extremely modest gifts to Fatimah.
What is the Mahr?
The mahr is a compulsory part of an Islamic
marriage contract. The other
words for mahr generally used in the
Qur’an are sadaqah and ajr, meaning reward or gift to the bride
in which there is profit but no loss, and faridah,
literally that which has been made obligatory, or an appointed portion. Allah
commanded: ‘Give women their faridah as a
free gift.’ (4:4) (Unfortunately
the word is frequently incorrectly translated as ‘dowry).
It
is a gift of money, possessions or property made by the husband to the wife,
which becomes her exclusive property.
It is an admission of her independence, for she becomes the owner of the money or property
immediately, even though she may have owned nothing before. It has nothing to
do with either of their parents, except that a husband might need to take a
loan. This should only be done with the intention of repayment. It is also
intended as a token of the husband’s willing acceptance of the responsibility
of bearing all the necessary expenses
of his wife.
Even
if the wife owned no property or money of her own before her marriage, she is
given this money or property when she marries so that she commences her married
life in her new status with money or property of her own. The wife gives
herself and her services to her husband, and in return he gives her property to
own herself, even if she had nothing before, and pledges that he will maintain
her. Muslim women are placed in charge of the internal arrangement of the
household, while Muslim men are responsible for its financing (even if the wife
earns her own money subsequent to her marriage).
The
Prophet gave each of his wives a payment of mahr,
ranging from token sums, the granting of freedom from slavery when being made a
wife, to the payment of 400-500 dirhams.
His wife Umm Habibah’s mahr consisted
of 4000 dirhams, this sum having been
fixed by Najashi, the Negus (a Christian ruler) of Abyssinia. (Abu Dawud, Kitab
an-Nikah, 2:235).
There
was in fact no fixed upper limit for mahr. Allah required the provision to depend upon
the circumstances of the husband:
‘…the wealthy according to his
means, and the straitened in circumstances according to his means. The gift of
a reasonable amount is necessary from those who wish to act in the right way.’
(2:236).
In
a famous case, the second Caliph, Umar b. al-Khattab, once gave a public sermon
in which he asked the congregation to refrain from fixing heavy mahrs, and
stated that the Prophet had declared no-one should give more than 400 dirhams. A woman immediately stood up
and challenged him, quoting the verse 4:20 from the Qur’an:
‘But if you decide to take a wife in place of
another, even if you had given the first a heap of gold (quintar) for a dowry, you shall not take the
least bit back.’
Umar
went back to the minbar and withdrew his words stating ‘the woman is right, and
Umar is wrong. Whoever wishes may give as much property as he wishes to
give.’(Ibn Hajar al-Athqalani, Fath al-Bari, 9:167).
Who owns the
mahr? Can it be refused?
It
is owned solely by the wife. The husband is not allowed to refuse to pay his
wife a proper mahr or faridah. The settling of the payment is obligatory.
‘Women are lawful to you….provided that you
take them in marriage and not fornication. As to those through whom you profit
(through marriage), give them their faridah as appointed.’ (2:24).
The
same applied when marrying Jewish or Christian women (5:5). If a Muslim man
married someone ‘whom his right hand possessed’ (ie a slave or prisoner of
war), the mahr was to grant her freedom
and other payment was not required.
Caliph
Umar ruled that if a woman had excused her husband his mahr, but later demanded
it, the husband should be compelled to pay it on the grounds that the fact that
she demanded it was a clear proof that she had not remit it of her own free
will.
The
case of a woman whose husband died before fixing the amount of the dowry or
consummating the marriage was brought to Abdullah b. Mas’ud. He ruled that she should be paid according to
the mahr of women of like status to herself.
The
Shafi ‘I school rules that a wife may refuse to consummate the marriage if the
husband agreed to pay the mahr immediately, but did not do so. She may have the
marriage annulled.
How much should
the Mahr amount be?
It is unIslamic for a Muslim woman to set a
huge demand for herself, with the intention of deterring suitors of humble
means. Islam does not require husbands and wives to come from the same social
strata or income brackets – although this may often seem to be advisable.
Islamic compatibility is based on religious faith and mutual respect, not on
money, caste (another Hindu custom), class, background, nationality, etc.
It
is just as unIslamic to demand a huge mahr,
generally beyond the husband’s means, based on the intention of checking
the husband from ill-treating his wife, or wrongfully or causelessly divorcing
the wife, or preventing him from remarrying another later – the reasoning being that in cases of
divorce the woman can demand the full payment of the mahr. The fixing of a substantial mahr for the above purposes rests
on the supposition that the mahr has
to be fixed at the time of marriage, but not handed over until divorce – which
gives it a supposed ‘deterrent’ value. This is unlawful in Islam, for in this
case the wife has no use or ownership of the mahr during the time of the marriage.
If
the prospective husband is not a wealthy man, a generous wife may choose to
accept very small mahr, but this has to be her own free choice. She should not
be coerced or have pressure put on her in any way. Some of the Prophet’s female
companions accepted their husbands’ conversions to Islam, or memorising of ayat
of the Qur’an, or giving education to others as their mahr.
The
mahr has to be fixed taking into
account the bridegroom’s position in life. That is, it should not normally be
more than he is easily able to afford, whether it be a lump sum or some article
of value. Jurists have different views on what the minimum amount should be,
but all agree that it should be substantial enough for something to be bought
against it. In other words, any amount which is sufficient for a purchase is
acceptable as mahr.
The
husband may be loaned money by his father or family, but it must be repaid. In
the case of Nabi Musa (the Prophet Moses), when he left Egypt for Madyan he
married Safura the daughter of the Prophet Shu’ayb. His mahr mu’ajjal was settled and paid off by binding himself to
grazing his father-in-law’s cattle for ten years without wages. Presumably Shu’ayb
had paid Safura on Musa’s behalf.
A
good woman might agree on a low mahr
if she wishes, or none at all, according to the circumstances of her husband.
Once fixed it is fixed, and legally binding – so it is good practice to have it
written down and witnessed on a document. The wife should take advice on her
decision, and not be blinded by emotion, or coercion, or fear, or family
pressure. If any person pressurises a woman into a decision she might not have
otherwise made, that person will be held to account in the Life to Come, even
if he ‘got away with it’ on this earth.
One
recorded hadith suggests that ‘the best woman is the one whose mahr is the easiest to pay.’
(al-Haythami, Kitab an-Nikah 4:281).
However,
it is sensible for a wife to accept a reasonable mahr, as this becomes her own property as stated, and is hers to
keep should the marriage fail and end in divorce.
Under what
conditions is it payable?
There
are two main ways of properly presenting mahr
to the bride.
The first way is
to hand it over in full at the time of marriage, in
which case it is known as mahr mu‘ajjal, or ‘promptly given mahr’. (Notice the ‘ . The word is
derived from ‘ajilah, meaning
‘without delay’. This was the accepted practice during the time of the Prophet,
and the amount fixed was generally quite minimal.
In
the case of Fatimah and Ali, Ali informed the Prophet that he had nothing to
give her. The Prophet reminded him of a coat of chain-mail he had been given.
It was still in his possession, although in a delapidated condition and worth
less than four dirhams. The Prophet
suggested he gave that to Fatimah, and this was done.
The second way of
presenting mahr
is
to defer it, to hand it over to the bride after a certain period of time, the
duration of which must be specified, fixed by the man and agreed by the wife. This
has to be settled, with witnesses, at the time of the marriage. This form of mahr is known as mahr muwajjal. (the word implies ‘in a period of time’).
The
five major schools of Islamic jurisprudence all agree that delay in handing
over the mahr, whether in full or in
part, is lawful provided that the fixed period for payment is not indefinite.
This
method should never be used as an excuse to wilfully postpone the payment. A
definite date should always be fixed, witnessed, and adhered to.
It should certainly not be left ‘hanging’
in case the marriage breaks down and the couple come
to consider a divorce - because of the
inevitable emotions, bitterness, arguments, hostilities and financial problems
involved at that time.
If
the husband died, or they got divorced, the mahr
debt must be paid up immediately to the widow before his inheritance or other
financial settlements are considered. It is her property, and not his.
Repayment of Mahr
in cases of khul divorce.
A khul
divorce is one in which a wife sues for divorce even though the husband has not
driven her to it by his unreasonable behaviour.
If
there is no good reason for a wife wishing to divorce her husband, but it is a
case in which she simply wishes to finish the marriage with no particular legal
grounds against the husband, the husband may agree to grant
her the divorce if she returns all or part of the mahr. This has
to be agreed between them.
If the wife does
have genuine grounds for divorce – such as cruelty, mental
cruelty, breaking of the marriage contract, adultery, desertion, incurable
insanity, long-term imprisonment, abandonment of Islam – then the divorce is
not khul but a normal talaq, in which the wife has as much
right to instigate proceedings as the husband. In these cases, she most
certainly does not have to hand over any of the mahr.
If the wife has genuine grounds for divorce but the husband refuses the divorce, she may then approach lawyers for khul, and appoint an Imam to act for her. It is sensible to do this as well as having a UK lawyer. She is not required to pay back any of her mahr. Indeed, the lawyers may demand some further compensation for her if the husband is guilty. (She may have to prove his guilt, and should gather as much evidence beforehand as she can – such as signed and witnessed statements of witnesses, photographs of injuries sustained, etc).