This article has been written by ANJALI PRAKASH from GOVERNMENT LAW COLLEGE THRISSUR

Table of Contents

Introduction:

Mahr, a central concept in Islamic matrimonial contracts, refers to the obligatory gift or payment given by the groom to the bride. This financial provision is a fundamental aspect of Islamic marriage, symbolizing the husband’s commitment to providing for his wife.

This article explores the diverse perspectives on Mahr across various Islamic schools of thought, shedding light on its types, legal implications, and contemporary relevance. According to Islamic law, a wife gets her husband’s share of the mahr when they get married. Different schools provide varying values for Mahr. The minimal amount of Mahr, according to Hanafi law, is ten dirhams. Three dirhams are the minimal amount required by the Maliki Law. Although there is no minimum or maximum amount of Mahr under Shia law, it cannot exceed 500 dirhams.

Mahr in Islamic Jurisprudence: A Historical Overview

Brief Historical Background:

The concept of Mahr has roots in pre-Islamic Arabian societies where various forms of bridewealth or gifts were exchanged during the marriage. With the advent of Islam in the 7th century, Mahr became formalized and regulated under Islamic law.

Quranic References and Hadiths Related to Mahr:

Quranic References:

Surah An-Nisa: “And give the women [upon marriage] their [bridal] gifts graciously. But if they give up willingly to you anything of it, then take it in satisfaction and ease.”
Surah AI-Baqarah:”There is no blame upon you if you divorce women you have not touched nor specified for them an obligation. But give them [a gift of] compensation – the wealthy according to his capability and the poor according to his capability – a provision according to what is reasonable, a duty upon the doers of good.”

Hadiths :

In a Hadith narrated by Aisha (RA), she reported that the Prophet Muhammad (SAW) said, “The marriage with the most blessing is that which involves the least burden.”

Another Hadith emphasizes the importance of Mahr, as narrated by Ibn Mas’ud: “When someone marries, he has fulfilled half of his religion, so let him fear Allah regarding the remaining half.”

Evolution of Mahr in Islamic Law

Formalization in Islamic Law:

Islamic law formalized the concept of Mahr as a mandatory gift from the groom to the bride. It symbolizes the financial security and respect due to the bride.

Determining Mahr:

The Quran allows flexibility in determining the amount of Mahr, emphasizing consideration for the financial capacity of the groom. The Mahr can be a combination of money, possessions, or other tangible assets.

Cultural Variation:

The specific customs and traditions related to Mahr can vary across different Islamic cultures. Some cultures may emphasize a significant financial gift, while others may focus on symbolic or non-monetary forms of Mahr.

Legal Protections:

Islamic law provides legal protections for women regarding Mahr. The amount and nature of the Mahr must be agreed upon and documented before marriage, and women have the right to claim their Mahr in case of divorce.

Social Justice:

The concept of Mahr also serves broader societal goals, promoting social justice and financial equity within the marriage contract.

Types of Mahr: A Comparative Analysis

– Prompt (Muqaddam) and Deferred (Mu’akhkhar) Mahr

– Fixed (Mahr Mithl) and Specified (Mahr Musamma) Mahr

– Gold, silver, or any other form of wealth

– Non-monetary Mahr: symbolic gifts, services, etc.

Mahr in Different Islamic Schools of Thought:

Hanafi School: Emphasis on flexibility and consensus

The first and most well-known school under Muslim law is Hanafi School. This school was once called as Koofa School, after the Iraqi city of Koofa. It was renamed Hanafi after that. Afterwards, in honour of its founder, Abu Hanifa, this institution was called Hanafi institution.

The Hanafi School depended on the judgements and customs of the Muslim community because the Prophet had forbidden his words and customs from being recorded. Consequently, the Hanafi School formalised the custom that was common at the time among Muslims.

Since Abu Hanifa, the school’s founder did not write any books outlining its regulations, Imam Muhammad and Imam Abu Yousuf, two of his pupils, have continued to expand the school. Both of them codified the Ijma’s of that era and accepted the Juristic preference (Isthi Hasan).

The majority of Muslims in nations like Syria, Turkey, Pakistan, India, and Pakistan attend Hanafi School as it expanded rapidly throughout these regions. Since Hanafi School graduates make up the majority of Muslims in India, unless otherwise noted, courts will rule on Sunni Muslim cases in accordance with Hanafi School guidelines.

The most significant and authoritative work in the Hanafi School is Hedaya, which was written by Ali bin Abu Baker al Marghinani for thirteen years. All save the law of inheritance are covered by the laws in this book. Lord Warren Hasting attempts an English translation of the Hedaya. He assigned the book’s translation to several Muslim scholars.

However, the Hanafi Law of Inheritance is regarded as having its authentic text in the Sirajiyya. Sheikh Sirajddin is the author of the book, and Sir William Jones wrote the first English translation. Children enrolled in the Hanafi School are required to support their parents.

In cases of extreme poverty, parents are entitled to support payments from their offspring. In a similar vein, the grandparents may ask their grandkids for upkeep. It is important to remember, though, that when it comes to requesting child support, the mother is entitled to more than the father.

According to the Hanafi school, a son’s mother has custody of him until he becomes 7 years old. When a daughter is involved, the mother is in charge of raising her until she reaches puberty. However, the father is regarded as the child’s natural guardian after the female reaches puberty or the son turns seven years old. The case of Abdul Kalam v. Akhtari Bibi (1987) was a custody issue involving a toddler kid. Mohammedan law from the Hanafi School applied to the parties.

By Section 25 of the Guardians and Wards Act of 1890, the mother requested custody of the kid. According to Section 25, the court may issue an order restoring a child to the guardian’s custody if the kid has been taken from their care and the court determines that doing so will be in the child’s best interests.

The appellants had contended that Section 25 of the Guardians and Wards Act did not apply to a Muslim child because, in accordance with Muslim personal law, the father is regarded as the child’s natural guardian. The Orissa High Court rejected this claim, ruling that the child’s best interests should come first when determining guardianship. According to the Court, Muslims are also covered by the Guardians and Wards Act, thus the mother might apply for guardianship of the young kid under Section 25 of the Act.

According to both Sunni and Shia belief systems, a kid is deemed legitimate if they are born within a certain time frame following the breakup of their marriage. This window of time, though, differs from school to school. According to the Hanafi school, a kid is deemed genuine if it is born within two years of the marriage ending.

Maliki School: Adhering to the simplicity of Mahr.

The Mufti of Madeena, Malik-bin-Anas, is the source of the school’s name. During his time, Imam Abu Haneefa and his followers prospered with the Hanafi Schools at Khoofa, which was regarded as the capital of Muslim Khaleefa. Only roughly 2000 of the 8,000+ traditions of the Prophet were followed by him. The law was formulated by Imam Abu Haneefa’s pupils using Ijma’a and Isthihsan.

The Hanafi school places more value on the people and Ishtihsan than the Maliki school does on the Sunna and Hadis. Maliki School and Law state that they seldom ever accept the Ijma’a. According to the law, the individual who issued the fatwa contesting Khaleefa’s sovereign authority encountered hostility and a lack of backing from Muslim states. As a result, this Maliki school did not gain much recognition. Although this school has no adherents in India, parts of its provisions and rules were taken into consideration when the Dissolution of Muslim Marriage Act of 1939 was introduced since it grants women greater rights than any other school. The women in the Hanafi School must wait seven years for the dissolution of their marriage if they get no news from their spouse, whereas those in Maliki School must wait two years.

The Maliki School’s most authoritative text is regarded as Imam Malik’s Mu-atha. This book is regarded as the authority for all Muslims worldwide and was the first to be published about the Hadis in Islam. The Malike school holds that customs are the primary source of law, in contrast to the Hanifi school. This school places a strong emphasis on the idea that customs should guide legal guidelines.

Imam was a jurist as well as a speaker on traditions. He was regarded as having one of the sharpest brains and was well-versed in Sunna or customs. Along with other proponents of this school, Malik was a judge who also resolved people’s daily issues. This school’s strategy was to make the legislation more workable. The Imam interpreted the law based on the customs and practises of the Prophet. Additionally, he subscribed to the notion of muslahat, or public welfare.

According to the Maliki school of thought, a child born following a divorce is valid as long as it is born within four years of the divorce. It is noteworthy that the validity of a child born following a divorce is covered under Section 112 of the Indian Evidence Act, 1872. By the Evidence Act, a child born within 280 days of the marriage’s dissolution is deemed legitimate. Furthermore, the mother ought to be single when the child is born. As a result, a kid may meet the Maliki school’s legitimacy requirements even if they do not meet the Evidence Act’s requirements for legitimacy.

Shafi’i School: Detailing the specific components of Mahr

The Shaffie School derives its name from Muhammad bin Idris Shaffie, who lived from 767 to 820 AD. He was Madeena’s Imam Malik’s pupil. After that, he proceeded to Khoofa and began working with Imam Abu Haneefa’s pupils. He ends the theories and concepts of the Hanafi School and the Maliki School amicably. Imam Shaffie was regarded as one of Islam’s best jurists. He developed the Shaffie Islamic Jurisprudence’s classical doctrine.

This particular school adheres more to Hanafi School teachings and regards the Ijma’a as a key source of Islamic law that gives legitimacy to Islamic practises. The Quiyas or Analogy are Shaffie School’s primary contribution. Imam Shaffie’s Al-Risala was regarded as the only source of authoritative Islamic legal doctrine. The Ijma’a (consensus), Quiyas (analogy), Ijthihad (personal reasoning), Isthihsan (jurisprudential choice), and Ikhthilaf (disagreement) are all discussed and interpreted in various chapters in his book Risala. The authoritative work on Fiqh (the science of method of life) is his other book, Al-Umm. The Shafie School has adherents in Egypt, Malaysia, Indonesia, South East Asia, and Southern Arabia.

Hanbali School: Strict adherence to the agreement

The Hanbali School was founded by Ahmad ibn Hanbal. In 241 (AD 855), he founded the Hanbali school. He backs Hadis and is an Imam Shaffie follower. He was adamantly against the Ijthihad practises. In an attempt to find the answers to all of his questions, he presented the idea of tracking the origins of the Sunna and Hadis. His hypothesis was to go back to the Prophet’s Sunna. The Imam Shafie said that Ahmad bin Hanbal was the only subsequent jurist who was superior to him before departing for Baghdad.

The Hanbali school’s adherents are located in Saudi Arabia, Palestine, and Syria. The Hanbali school was founded by Imam Abu Abdullah Ahmed-Ibn-Hanbal. His birthplace was Baghdad. He was an inflexible traditionalist who placed much value on customs. Traditions, in his opinion, are more significant than other sources.

He applied a broad interpretation to the traditions, despite his strict reliance on them.

Comparative Analysis: Mahr in International Contexts

Mahr in Muslim-majority countries vs. non-Muslim-majority countries:

Muslim-majority countries:

In Muslim-majority countries, the legal system often incorporates Islamic law, and Mahr is typically recognized and enforceable through Islamic family courts. The legal framework is generally more familiar with and accommodating of Islamic marriage contracts. Mahr holds strong cultural and religious significance in Muslim-majority countries, and non-compliance may result in legal consequences and social stigma. Courts in these countries are more likely to intervene in cases of non-payment or inadequate payment of Mahr. Mahr is deeply embedded in the customary practices of marriages in these countries, with variations in customs and amounts depending on the cultural context.

Non-Muslim-majority countries:

Mahr may not be automatically recognized by the legal system in non-Muslim-majority countries. Couples may need to take specific legal steps to ensure the recognition and enforceability of Mahr agreements, such as including them in prenuptial contracts. Enforcing Mahr in non-Muslim-majority countries can be challenging, as family courts may not be familiar with Islamic marriage contracts. Couples may need to rely on civil courts and legal professionals with expertise in Islamic family law. There may be a lack of cultural awareness and understanding of the significance of Mahr in non-Muslim-majority countries, which can lead to challenges in legal proceedings.

Legal Recognition and Enforcement of Mahr in the USA, UK, and other jurisdictions:

United States:

Mahr agreements are generally recognized in the U.S., and courts may enforce them if they meet legal requirements. However, enforcement depends on factors such as voluntariness, fairness, and compliance with local laws. Mahr may be enforced in civil courts, and prenuptial agreements that include Mahr provisions are typically upheld. Courts may analyze the agreement to ensure it complies with local laws and public policy.

United Kingdom:

Mahr agreements are generally recognized in the UK, but enforcement depends on the circumstances and fairness of the agreement. Family courts may consider Mahr as part of the financial settlement in divorce proceedings. English courts may enforce Mahr if it is considered a valid contractual agreement, and it does not conflict with local laws or public policy.

Cross-Cultural Challenges and Adaptations in Mahr Agreements:

Cross-cultural marriages may involve couples from jurisdictions with different legal systems, requiring careful consideration of the legal recognition and enforcement of Mahr. Cultural and language differences can pose challenges in communicating and understanding the terms of Mahr agreements. Legal professionals may play a crucial role in facilitating effective communication and ensuring clarity in agreements.

Couples may need to adapt Mahr agreements to comply with local laws and regulations, ensuring enforceability in the jurisdiction where they reside. Increasing awareness and education about the cultural and religious significance of Mahr in diverse societies can contribute to better understanding and acceptance.

Contemporary Challenges and Solutions

Mahr, also known as dower, is a fundamental concept in Islamic marriage contracts, representing the financial obligation that a husband undertakes to pay his wife. It is considered the wife’s right and is intended to provide financial security for her. However, issues related to non-payment or inadequate payment of Mahr can arise, leading to disputes. Here are some aspects to consider:

Issues related to non-payment or inadequate payment of Mahr:

1. Financial Disputes:

Non-payment or inadequate payment of Mahr can lead to financial disputes between the spouses. The wife may feel financially insecure and may seek resolution through legal means.

2. Cultural and Social Implications:

Failure to fulfill Mahr obligations can lead to social stigma and may affect the reputation of the husband. Cultural expectations and community pressure may exacerbate the impact of non-compliance.

3. Emotional Distress:

Non-payment of Mahr can cause emotional distress to the wife, as it may be perceived as a breach of trust and commitment.

Legal mechanisms for resolving disputes:

Islamic Family Law Courts:

In many Muslim-majority countries, there are family law courts that handle matters related to marriage, including disputes over Mahr. These courts apply Islamic law principles and may help in enforcing Mahr agreements.

2. Civil Courts:

In some jurisdictions, civil courts may also adjudicate disputes related to Mahr, especially in cases where the marriage contract is recognized by civil law.

3. Arbitration and Mediation:

Parties may choose arbitration or mediation to resolve Mahr disputes outside of the formal court system. Islamic arbitration services may be available, and parties can voluntarily agree to settle their differences through these alternative dispute resolution methods.

The role of prenuptial agreements in specifying Mahr terms:

Clarity in Agreements:

Prenuptial agreements allow couples to specify the terms of the Mahr, providing clarity and avoiding misunderstandings. Clearly defining the Mahr in the agreement helps in preventing disputes later on.

2. Legal Enforceability:

Prenuptial agreements can enhance the legal enforceability of Mahr terms, especially in jurisdictions where such agreements are recognized and upheld by the legal system.

3. Customization:

Couples can customize prenuptial agreements to suit their specific cultural and religious preferences regarding Mahr, ensuring that their intentions are legally binding.

Conclusion

The precepts of the Prophet Muhammad and the Quran regulate Muslim law. Numerous schools have emerged, each adhering to their own interpretation of these precepts about topics that the Quran is silent on. The two main Muslim schools can be classified as Sunni and Shia schools, yet even these factions’ schools have been further split into other schools.

Even though there are several schools in Muslim law, they all follow the same route since each school has its own ideas and practises and because there is no universal norm covering the subjects on which the Quran is silent. As a result, the lessons taught in these institutions might be likened to many routes that ultimately lead to the same place.