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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 259
March 03, 2012

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Women Rights Special

Scrutinising the right to dower of women

Ferdous Rahman

Photo: goatmilkblog

For a Muslim marriage there are three basic requirements under Sharia law: Ejab, Qobul and Mahr (commonly known as Denmahr or dower). Dower is one of the excellent protections, in other words privileges given by Islam to women. In the notion of Islam, it is a bridal gift, a token of respect to the woman. It is the right of the woman which accrues at the time of her marriage and similarly a duty or obligation upon the man as husband.

Concept of dower under Muslim law
The dower is a sum of money or other property which becomes payable by the husband to the wife as an effect of marriage. With regard the mode of determining the amount, it may be specified i.e. fixed at the time of marriage between the parties or unspecified i.e. not fixed before or at the time of marriage. The unspecified dower shall be fixed after marriage. It is observed that in determining the amount of unspecified dower, the dower fixed upon her female paternal relations is considered.

Again as regard the time of payment, the specified dower would be deferred and prompt. The prompt dower is payable on demand. It is like debt of the husband upon the wife. On the other hand deferred dower becomes payable at the termination of dissolution of marriage either on death or on divorce.

Dower: Right and remedies under our statutory law
The Muslim Personal Law (Shariat) Application Act 1937 in section 2 declares as regards dower (including other personal law issues like marriage, dissolution of marriage, guardianship, gifts, trusts, wakfs etc) where the parties are Muslim, the Muslim personal laws (Shariat) shall be applicable. Therefore we don't have any statutory law on dower.

In spite of this, recognition of the dower right is also found in the form for registration of Marriage (clause 13-17, 20) commonly known as Nikahnama or Kabinnama (Form E) under Muslim Marriage and Divorce (Registration) Rules 1975 rule no. 24 (1). When the kabinnama is silent about the division of prompt and deferred part of the dower fixed therein, the whole amount will be presumed as prompt i.e. payable on demand (sec 10 of the Muslim Family Law Ordinance 1961).

Dower in Muslim marriage forms an inseparable part of the terms of the kabinnama and thus as the kabinnama is intended to be registered under Muslim Marriage and Divorce (Registration) Act 1974, so is the dower. Therefore non-payment of dower fixed in kabinnama will amount to the breach of a registered contract.

The suit for dower is more or less a suit to enforce a simple money claim founded solely on a contract entered into by the husband and wife (in the registered Kabinnama). Claim for dower is within the exclusive jurisdiction of family court under section 5 of Family Court Ordinance 1985. For a suit for the recovery of dower, limitation fixed in article 103 and 104 of the Limitation Act 1908 will be applicable i.e. 3 years from the date when claim for dower was first refused to be paid in case of prompt dower and for deferred on death or divorce. There is fixed court fees for the suit to recover dower i.e. 25 taka (sec 22 of the Family Court Ordinance 1985).

Some misconceptions regarding dower
It is sometimes heard that the husband begs to the wife at their nuptial night for the relinquishment of her claim of dower and she used to do the same out of emotion or in the belief that it is the possible way to win or retain the affection of her husband. Therefore she remits the dower. There is a misconception among our women that if she relinquished once, she cannot claim dower anymore and the husband also thinks the same. It was held in Shah Banu Begum v Iftekhar Md. Khan 8 DLR (WP) (1956) p.133 that as she (the wife) did not act as a free agent, it would be iniquitous to hold that a woman who remits dower in such circumstances is bound by it.

In a study it was found that 88% women in Bangladesh never claim their dower right. It is a common belief among our women that a wife can claim dower only when her husband divorces her. A widow whose dower (deferred or may be both) remained unpaid is still entitled to dower. She can lawfully stay in the possession of her deceased husband's estate until her dower debt is satisfied as the dower being debt of the deceased becomes an encumbrance upon his estate. In reverse the right of the widow as creditor is limited to retain not to obtain. The same is held in Maina Bibi v Chowdhury Wakil Ahmed 52 I.A (1924) p.521.

It is used asked by the women that if she divorces her husband, she will be automatically relinquished her right to dower. But the case is not always so. There are few forms of divorce for a wife to divorce her husband. Among them only for Khula, she forgoes her right to dower. But when she gives talaq-e- tafwid (delegated right to divorce) she remains entitled to dower. Therefore there are separate form for registration of divorce of Khula and Talaq-e Tafwid. Again if the divorce is prayed on any grounds under section 2 of Dissolution of Muslim Marriages Act 1939, the divorce never affect her right to dower (section 5 of the said Act 1939). But reverse decision is found in Nur Akhter v Md. Abdul Mabud Chowdhury, (1996) BLC 404 where the wife refused to continue her conjugal life with the husband, the court decreed that she is not entitled to her deferred dower.

Moreover due to such misconceptions among men and women, many husbands are found not giving divorces to their wives rather force their wives by way of cruelty to give him divorce. Therefore it becomes a ground of cruelty to women. It is thought by husbands that when she cannot bear his cruelty anymore, she would divorce him and he would be freed from his duty to pay dower. It ultimately frustrates the philosophy of Islam behind dower i.e. to act as a check and balance on the unlimited power of the husband to divorce his wife. It was thought that The husband would think twice before divorcing his wife when he knows that upon divorce the whole of the dower would be payable immediately. But the reality is found different.

This is unfair. Why should women always make concessions and compromises? We should make aware about these rights of women not the wives only but the husbands also.

The writer is student of law, University of Dhaka.

International death penalty abolition day

Photo: italian-culture-blog.blogspot

1 March 2011 -- This day marks the occasion in 1847 when the U.S. state of Michigan became the first English-speaking territory in the world to abolish capital punishment. The death penalty is a violation of human rights, as stated in Article 3 of the Universal Declaration of Human Rights.

In 2009, the last year for which worldwide data is available, there were at least 714 known executions in 18 countries. This figure does not include executions in China, which were estimated to be in the thousands. China, Iran, Iraq, Saudi Arabia, and the United States were the five countries who carried out the most executions.

International law related to capital punishment is evolving. There is currently only one universal treaty banning executions and aiming for the total abolition of the death penalty: The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The Protocol, adopted by the United Nations General Assembly in 1989, requires states that have ratified it to renounce definitely the use of the death penalty. As of February 2011, it has been ratified by 73 states and signed by 35 others. In December 2010, the General Assembly passed its third resolution calling upon all countries to establish a moratorium on the death penalty.

Sources: Amnesty International.



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