Rights of a Muslim Wife

Contributor: Barrister Marium Waqar

The aim of this brief write-up is to clarify some common misconceptions by highlighting the economic right of a Muslim wife to dower (mahr) and maintenance (nafaqa), differentiate it from the evil of dowry (jahez) and shed light on delegated right of divorce (talaq-i-tafwiz).

The dower (mahr)

Dower is mentioned in the Quran and is in essence “a sum of money or other property which becomes payable by the husband to the wife as an effect of marriage”. Anything lawful may stipulated as dower.

It is important to differentiate dowry and dower as two distinct concepts from the outset. Dowry is merely a part of customary traditions. Dowry passes from the woman’s side to the man’s side. Whereas, dower is an integral part of Muslim matrimonial law designed to protect the woman. Dowry payments have been outlawed and criminalised in South Asia.

Right of dower is an absolute right of the wife and cannot be discharged even if parties decide to wilfully forego dower amount. Dower is classified as specified or an unspecified (‘proper’) mahr. When dower is unspecified, the ‘proper dower’ (mahr al-mithl) becomes due.
Proper dower is often ascertained on the basis of the dower agreed for woman of a similar social status to the wife. The specified mahr is further sub-classified into ‘prompt’ and ‘deferred’ dower.
Prompt (Muajjal) dower is payable on demand while deferred (Ghair Muajjal) dower is payable on dissolution of marriage by death or divorce. Wife ceases to have an obligation to cohabit with her husband on account of his refusal to pay prompt dower.

It is important to note that amounts paid by the husband to the wife during the marriage cannot be presumed in lieu of dower. An unpaid dower, in effect, represents a debt to the wife.           

Maintenance (nafaqa)

The general rule is that a wife is legally entitled to maintenance, e.g. food, clothing and lodging, during the subsistence of a valid (sahih) marriage and during the period of iddat. Maintenance of the wife is deemed to be a debt on the husband from the date of withholding it once it is due. A wife cannot claim maintenance if she lives separate from her husband without any justification or reasonable cause.

Concerning the quantum of maintenance, socio-economic conditions, customs and traditions and the individual circumstances of the spouses have a key bearing on the issue. The various schools have developed different criteria to assess the extent of a wife’s entitlement.

Property ownership

The wife is, as a basic principle, entitled to full ownership of her property. Any amount of dower, and any properties given to the wife in connection with the marriage, shall be the absolute property of the wife.

Delegated right of divorce (Talaq-i-tafwiz)

When a woman is granted a delegated right of divorce by her husband, the woman can exercise the same right under the law of her own sect without the need to go to a court of law. Right of talaq can be granted by virtue of Column 18 of Nikahnama or even subsequently. Delegated right of divorce is not a Shariah right of the wife and she may only exercise it validly if delegated the same by her husband.

The right of Khula belongs to a woman as of right, but in order to exercise it the woman needs to resort to the court and in many situations might even need to forgo the dower amount. Due to the often tedious process of khula, it is recommended that the wife seek delegated right of divorce.

Conclusion

Due to lack of awareness and deeply rooted customs and traditions, women are hesitant to demand payment of dower (mahr) and maintenance (nafaqa), which is in effect their right duly recognised by both religion and law.
Whereas, dowry (jahez) having no basis in either law or religion, is often demanded as of right. The importance of dower and maintenance is evident by equating them to ‘debt payable to wife’ in case of non-payment of the same without justification or reasonable cause.
The wife is entitled to full ownership of the dower or any other property that she may own. To further insulate the rights of a Muslim wife, it is advisable that the delegated right of divorce be sought to efficaciously dissolve an unhealthy marital union without the hassle of going to court while retaining full ownership of dower.

Sources :

• The Code of Muslim Family Laws
• Muslim Family Law by David Pearl and Werner Menski