Clearing Misconceptions Regarding Dower in Bangladesh
Nafiz Ahmed writes for DOT :
The recent survey report on the number of divorces in Bangladesh by the Bangladesh Bureau of Statistics (BBS) has opened our eyes to quite a troublesome truth. According to the report, the divorce rate increased by a massive 34 percent in the last seven years and the rate in Dhaka is now ‘one divorce per hour’. Of course, divorce affects both the husband and the wife but more often than not in Bangladesh, it is the wife who is more susceptible to the risks of suffering because most wives still are somewhat financially dependent on the husband (among other reasons). One of the most effective ways of getting redress in Muslim divorce cases is dower, which is more popularly known as Mah’r.
The misconception regarding dower in Bangladesh is vast. Even during a marriage in my own family, the legal definition and provisions of dower presented by me were disregarded due to dower being “a matter of religion and formality; not law”. But a divorce or dower case is dealt with by a judge in a court of law, not by an Imam in a mosque. In a court, only the relevant laws would suffice which now makes it more necessary than ever to be aware of the relevant laws regarding dower. Due to the obvious resemblance between the names, some people often get confused between dower and dowry, even though they happen to be completely different things as the latter is a punishable offence under sections 3 and 4 of the Dowry Prohibition Act, 1980. It was effectively distinguished in the Abdul Kadir v Salima (1886) [8 All 149] case, where the Court held, ‘Dower is a sum of money receivable by the wife from the husband as a consideration for marriage, whereas dowry is an extra-dower consideration payable by one party to the marriage to another on the plea of bringing equality in marriage.’
In some societies, dower is looked upon in a negative way. Since marriage in Muslim family law is a social contract, some view dower with the same lens as consideration in a contract of sale is viewed. But in no way is dower a consideration paid in exchange of a wife. The main purpose of dower was precisely explained by Justice Mahmood in the above mentioned Abdul Kadir v Salima case, where he stated, ‘It [dower] is not a ‘consideration’ in a modern sense of the term; but an obligation imposed by the law upon the husband as a mark of respect to the wife’.
The trend in some societies of Bangladesh is to pay the whole amount of dower on the day of the wedding. Using this trend to their benefit, families of the grooms agree to pay less dower by arguing the non-availability of a big amount of money at their disposal in that particular moment. But it is not necessary to pay the whole dower on demand. Dower can be of two kinds. The amount payable on demand is known as prompt dower and the amount payable on the dissolution of marriage by either death or divorce is known as deferred dower. According to Section 10 of the Muslim Family Law Ordinance, 1961, if no details about the mode of payment is provided in the Nikkah Nama, the whole amount shall be presumed aspayable on demand.
While discussing Muslim family laws, the question we often face is whether a wife can remit dower or not. Yes, a wife can remit a part of or the whole dower amount as long as it has been done with free consent. In the case of Nurannessa v Khaje Mahomed (1920) [47 Cal 537], the Court held that a remission made by a wife when she is in a great mental distress is not binding on her. So, even if during an emotional fight or at her husband’s death bed, if a wife remits the dower owed to her, it shall not be binding.
It is also to be emphasized on that the amount of dower is payable only to the wife, not to her family. This is money owed to the wife by her husband. Dower is precious in today’s day and age where the wife has to reestablish herself after a divorce. The money received as dower can help a divorcee to restart her life and live independently. Higher dower amount can also reduce the chances of husbands recklessly divorcing their wives.
Email: [email protected]
Nafiz Ahmed is a final year law student at North South University