Dower should not be confused with dowry and Kharch-i-pandan. The Dowry Prohibition Act expressly excludes mahr from the definition of dowry. But, it seems that, this exception was enacted in view of the prevailing definition of mahr, i.e., mahr is a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage.
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As we have submitted earlier that this is not so. The mahr being an integral part of Muslim marriage, it is paid as a mark of respect to the wife. It is also not a sum of money which is received by a Muslim wife on dissolution of marriage under any customary or personal law obligation within the meaning of Section 127(3) (b), Criminal Procedure Code. In this view, mahr cannot be covered under definition of dowry even if the exception is not enacted under the Dowry Prohibition Act, 1961. In the apt words of Chandrachud, C.J.:
ADVERTISEMENTS:
“But, the fact that deferred mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable on divorce. Even assuming that, in a given case, the entire amount of mahr is of deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce.
Divorce may be a convenient or an identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But the payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce’ which occurs in Section 127(3) (b) of the Code.
If mahr is an amount which the wife is entitled to receive from the husband in consideration of marriage, that is the very opposite of the amount being payable in consideration of divorce.
Divorce dissolves the marriage. Therefore, no amount which is payable in consideration of the marriage can, possibly be described as an amount payable in consideration of divorce.
ADVERTISEMENTS:
The alternative premise that mahr is an obligation imposed upon the husband as a mark of respect for the wife is wholly detrimental to the stance that it is an amount payable to the wife on divorce.
A man may marry a woman for love, looks, learning or nothing at all. And, he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable on divorce’.
If a Muslim male or female demands or gets dowry within the meaning of the Dowry Prohibition Act, he or she will be punishable like any other person. The Dowry Prohibition Act applies to all.
Since in Indian society we commonly believe that dowry-demanders are husband and in-laws of the woman, we consider that dowry is that which is taken or demanded by the husband or in-laws.
ADVERTISEMENTS:
But under the Act, dowry can also be demanded by the woman or her parents as in the case of asura marriage. This is evident from the definition of dowry under Dowry Prohibition Act. Section 2 defines dowry as any property or valuable security given either directly or indirectly: (a) by one party to a marriage to the other party to the marriage, or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,, at or before or after the marriage in connection with (before the amendment of 1984, the words were ‘as considered for’) the marriage of the said parties….”
The term mahr is also different and distinct from another term in Muslim law, kharch-i-pandan or mewa khori. The kharch-i-pandan or mewa khori is a personal allowance paid by the husband to the wife among the Muslims of rank. At times, it is stipulated in the marriage contract. When the parties are minors, the contract is entered into by the parents of the parties, and the wife as a beneficiary can claim it in a court of law.