If the husband refuses to pay prompt dower, his wife has a right to refuse the husband his ‘conjugal right and if in such circumstances, she happens to reside apart from her husband, the husband is bound to maintain her. However, after consummation of marriage, if wife refuses the husband his conjugal rights, the husband may file a suit for restitution of conjugal rights.

The proper course for the Courts would be to pass a conditional decree for restitution of conjugal right that on payment of prompt dower wife should allow restoration of conjugal rights. The non-payment of Deferred Dower by itself does not confer any such right of such refusal on the wife.

The Supreme Court of India has laid down that the widow has no priority over other creditors. But her Mahar, as a debt, has priority over the other heir’s claim.

A widow lawfully in possession of her deceased husband’s property is entitled to retain its possession until her dower is satisfied. But it is only a right to retain and she cannot alienate the property by sale, mortgage, gift or otherwise and if she attempts to do so, she loses her right of retention. The right of retention will entitle the widow (wife) to have the property administered until her dower debt is satisfied. In essence, the wife’s right of retention is a Personal Right given by Islam to safeguard the position of the woman.

ADVERTISEMENTS:

Case laws

1. The Dower debt, properly speaking, is not a “charge” in the property. It is only a limited interest of keeping the property in her possession in lieu of Mahar for the purposes of enjoyment of the property to herself personally. Such a limited interest falls under Section 6(d) of the Transfer of Property Act and hence the same is not capable of alienation – Huber Ahmed vs. Jai Nankeen Prasad, AIR 1960 Patna 147.

2. The right to retain property is enforceable not only by the wife but also her heirs. The right of wife to retain property arises provided (a) she must have a debt due to her in respect of her dower (£>) she should make a claim in respect of that dower and (c) she must have entered into the possession lawfully and without any force or fraud – Mir Vahidali Kadumiya vs. Rashidbeg Kadumiya, AIR 1950 Bom 22.

3. In case of death of wife, her heirs or legal representatives can sue to recover the Dower debt – Md. Jamaluddin Haqque vs. Zuber Ahmed, AIR 1981 Pat. 345 & Mst. Halima vs. Md. Munir, AIR 1971 Pat. 385.

ADVERTISEMENTS:

4. Dower in shape of Land by assignment by bridegroom to bride in lieu of Mahar is a gift and neither a sale nor a Hiba-bil-Iwad and as such does not require any writing as Section 129 of Transfer of Property Act exempts gift by Muslims – Mohamed Hashim vs. Aminabai AIR 1952 Hyd. 3.

5. Although heirs are not personally liable for the Dower debt, however, each heir is liable for the debt to the extent and in the proportion of property received in inheritance. After death of husband, if wife brings suit, she has to implead all the heirs in the suit – Imperial Bank of India vs. Bibi Sayeedan AIR 1960 Pat 132.

6. Widow in possession of husband’s property in lieu of dower is liable to account for income received during this time – Shaik Salma vs. Shaik Mohammed Abdul Kadar Umoodi, AIR 1961 A.P 428.