The right to dower is an inherent right of every Muslim wife. But, unless this right is effectively enforced, it is of no use to her. Under Muslim law, following means of enforcement of the right to dower are available to a wife (or widow):
(1) Refusal of Conjugal Rights:
If the marriage has not been consummated and the, dower is prompt, the wife may refuse to give her company to the husband till he pays her Prompt Dower. In other words, before consummation of the marriage, the wife is entitled to deny cohabitation to the husband till he gives her Prompt Dower on demand. It is to be noted that under Muslim law a husband has right to cohabit with his wife and she cannot refuse the same without any reasonable excuse.
But non-payment of Prompt Dower before consummation is a lawful justification for the wife to refuse cohabitation. A Muslim-wife can refuse to live with her husband and refuse to him the sexual intercourse so long as the Prompt Dower is not paid to her. In Nasra Begam v. Rizwan Ali, the Allahabad High Court held that the right to dower comes into existence before cohabitation and Prompt Dower may be demanded even before the cohabitation.
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ADVERTISEMENTS:
The wife can refuse to live with her husband and admit him to sexual intercourse so long as Prompt Dower is not paid to her. The court held further that in a suit for restitution of conjugal rights by the husband, the nonpayment of Prompt Dower before consummation is a complete defense and the suit must fail.
Where the wife is minor or insane, her guardian can refuse to allow the husband to take his wife with him till the Prompt Dower has been paid. If the minor wife is already in the custody of her husband, such guardian can take her back on the ground of nonpayment of Prompt Dower.
But, where the consummation has taken place even once, the wife’s right to refuse consummation is lost. If the marriage has already been consummated, the husband’s suit for restitution of conjugal right will not fail on the ground of non-payment of Prompt Dower.
ADVERTISEMENTS:
However, the court has discretion, even in such a case, to pass a decree for restitution of conjugal rights subject to the condition of payment of Prompt Dower. In Anis Begum v. Muhammad Istafa Wali Khan, the facts were that in the marriage of Anis Begum and Md. Istafa, the Prompt Dower was Rs. 15,000.
The husband and wife lived together for some time and a daughter was born to them. Later on, Anis Begum left the house of her husband and refused to come back till her Prompt Dower was satisfied. Md. Istafa, the husband, filed a suit for the restitution of conjugal rights.
It was held by Sulaiman, C.J., that there was no absolute right in a husband to claim conjugal rights unconditionally. The courts have discretion to make the decree of restitution of conjugal rights conditional on payment of wife’s unpaid Prompt Dower even where the marriage has already been consummated. Accordingly, the decree for restitution of conjugal right was passed in favour of the husband subject to his payment of Rs, 15,000/-.
(2) Enforcement of Dower as debt:
Where the marriage has been consummated, the wife cannot enforce her claim by refusing conjugal rights to the husband. In such a situation the wife can recover her unpaid dower by maintaining an action in a court of law.
ADVERTISEMENTS:
We have already seen that an unpaid dower is an actionable claim of the wife, and she may realise it from husband in the same manner as a creditor recovers his loan. Therefore, when the husband is alive and the dower remains unpaid, the wife may enforce her claim by maintaining suit against the husband for recovery of the unpaid dower.
If the husband dies, the widow is entitled to recover the amount by filing a suit against the legal heirs of the deceased husband. But the legal heirs of the husband are not personally liable to pay the dower. The dower is a debt against the estate of the deceased husband which is inherited by heirs.
As the legal heirs inherit the properties according to their respective shares, they are liable for payment of the dower only to the extent to which they are entitled to get the properties of the deceased. For example, if the unpaid dower is Rs. 6,000 and a legal heir’s share in the property is 1/6, then he is liable to pay only Rs. 1,000 to the widow.
It may be noted that generally the dower is not a charge upon the husband’s property. Therefore, if a wife files a suit against her husband or his heirs for the realisation of unpaid dower, the decree in her favour is a simple money decree. But a charge on the husband’s property may be created for the dower debt by mutual agreement.
If such a charge has been created by an agreement between husband and wife, the agreement is enforceable. The court is also competent to create a charge on husband’s property in the absence of such agreement.
But, as a general rule such a charge should not be created by the courts because if the court creates charge then the dower debt would get priority over other debts. This situation would be against the interests of husband’s other creditors.
(3) Widow’s Right of Retention:
After the death of husband the most effective method of enforcement of dower is the exercise of ‘right of retention’. A widow, whose dower remains unpaid, has a right to retain the properties of the husband till her dower debt is satisfied. This right is termed as the right of retention in lieu of unpaid dower and it is available to a widow, whether there is any agreement between the parties for this right or not.
Under this right if a wife has taken possession of her husband’s properties lawfully (with free consent of the husband) in lieu of unpaid dower, then she is entitled to retain that possession after the death of her husband, until her dower is paid out of the properties retained by her.
This right is exercised against the creditors, if any, of her deceased husband, and his legal heirs. The legal heirs of the husband cannot get possession (and benefit) of the properties of the deceased until they make payments towards unpaid dower in proportion of their respective shares. Thus, this may be said to be a coercive method of recovery of unpaid dower from husband’s legal heirs.