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Islamic Marriage and the Legal System: Mahr/Dowr

Date:4 AUG 2022
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Barrister - Full Member

Bismillahir Rahmanir Raheem' الرَّحِيْمِ الرَّحْمٰنِ اللهِ بِسْمِ

Tahir Khan, barrister, provides some useful legal and practical guidance on Islamic mahr/dower and its validity and recognition under English Law, together with some of the challenges and difficulties that face practitioners when confronted with such matters.

 

Introduction

An Un-Islamic Practice: Dowry

Just for the purposes of clarification dower is a practice which has never been sanctioned by Islam and is greatly on the increase among the Muslims of India and Pakistan. The custom of dowry has its origin in the Hindu tradition. Hindus did not give their daughters any share of the family property. Instead, they were given dowries on their marriage, as a measure of compensation, in the form of household utilities.

Mahr / Dower

Mahr is an Arabic word meaning dower. Besides mahr, sadaq, nahlah, ajr, and faridah are other Arabic terms used in the Quran and hadiths to mean dower or bridal due. Dower is a benefit given by a man to a woman when they marry. It is the woman's legal right to receive it and it is specified during the marriage contract or after its conclusion. It does not have to be mentioned in the Nikkah for the Nikkah to be valid, but it must be paid regardless. It is an obligation required of men that is specified in the Qur'an, the Sunnah and ima' (the consensus of mujtahids).

The Quran states: Give to the women (whom you marry) their bridal-due (mahr) willingly and for good (i.e., without expecting a return); however, if of their own accord they remit any part of it to you, then you are welcome to enjoy it gladly. The Prophet (PBUH) always paid the dower (bridal due) to his wives before consummating his marriages and due to the abundance of evidence concerning the dower, mujtahids came to a consensus about its legality. Rather than being a mere gift, the payment of the dower symbolises the husband’s resoluteness in marriage, his love and respect towards his wife, his willingness to take care of her and his commitment to the financial responsibilities, entailed in becoming a family.

Mahr or dower as is usually translated as either a sum of money or other form of property to which the wife becomes entitled by marriage. It is not a consideration proceeding from the husband for the contract of marriage, but it is an obligation imposed by the law on the husband as a mark of respect for the wife as is evident from the fact that the non-specification of dower at the time of marriage does not affect the validity of the marriage. She or her guardian may stipulate at the time of marriage for any sum, however, large as dower. If no sum has been specified, she is entitled to her proper dower (mahru’l – mithl), that is the dower which is customarily fixed for the females of her family.

The wife's right to dower becomes complete on the consummation of marriage either in fact or what the law regards as such, namely, by valid retirement or on the death either of the husband or the wife. In case of dissolution of marriage by the husband or of separation for some cause imputable to the husband before there has been consummation or valid retirement, the wife becomes entitled to half the specified dower and if no dower has been specified to a present called muta't wain. In case the separation was due to some cause attributable to the wife herself, she will not be entitled to any dower or present if there has been no consummation of the marriage. If a marriage has been annulled on the grounds of invalidity, the wife will not be entitled to more than her proper dower. Having regard to the time when it becomes payable, dower may be mua'jal (Joes), that is, immediately eligible or prompt, or muajjal (Jay'), that is, deferred. Whether a dower should be entirely or in part eligible or deferred depends on the contract of the parties and in the absence of any contract, on the custom of the country. Even during the subsistence of the marriage, the wife is entitled to demand so much of her dower as is eligible, but she is not entitled during the continuance of the marriage to demand the deferred portion of the dower.

The fact that a Nikkah can be valid without mentioning the value of the dower demonstrates that the marriage contract is not a business contract, in business transactions mentioning the value is necessary to validate the agreement. However, the marriage contract is unique in that determining the amount of dower is not a condition of its validity. The verses that command husbands to give a dower to their wives indicate that it is a gift for women, but it is not their price. However, this gift is obligatory upon husbands. It is not permissible to negate the right of dower in the Nikkah. However, a woman can return the dower to her husband or remit a part of it. The woman is entitled to the dower with the Nikkah but is not obliged to receive it in hand. If she wishes, she can forgo her right in favour of her husband. There is no dispute on this matter among scholars.

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Breakdown of marriage and legality of Mahr/Dower

Issues before the English Courts

Where dower becomes problematic and somewhat contentious following a marital breakdown, the wife may want to be paid any unpaid mahr that may have been specified at the time of the Nikkah and such terms should be included in the Nikkah

contract, but this is hardly ever done. In practice, on most occasions, a nominal amount is placed in the contract which is normally paid upon contracting, by the groom or his representative. I have seen this time and time again where Sharia Councils do not have the appetite of the jurisdiction to enforce outstanding mahr payments and more commonly than not, either remain silent on the point or if pressed they advise the parties to seek redress under the English Courts. Certainly, not a satisfactory outcome for those parties who only have a Nikkah and no civil marriage.

In Islam, a marriage is a contract and often there will be a written marriage deed, known as the Nikkah. In such cases, a wife has the option of issuing a claim for breach of contract. This happens if the “dower" issue primarily concerns the unpaid/non-returned mahr. This has been defined to mean a sum of money or property given absolute to the wife by the husband. The mahr is either promptly given upon the marriage taking place or is deferred to an agreed time in the future, usually upon the husband's death or divorce. In situations where the marriage is deemed to be a 'non-marriage' most are advised to pursue this aspect under a breach of contract if their spouse refuses to honour the Nikkah contract and pay the contractually agreed mahr amount.

Conversely, if the parties entered a civil marriage, the wife may request English Family Courts to award her mahr in financial relief proceedings in accordance with s. 25 of the Matrimonial Causes Act 1973 to ensure that fairness and justice are upheld to both parties, particularly where cultural or religious practices and beliefs advocate the importance of mahr/dower. The following cases illustrate how the courts have dealt with such matters that have come before them:

 

Shahnaz v Rizwan [1965] 1 QB 390

Here the wife, in a breach of contract matter claimed the payment of £1,400. This amount represented her deferred mahr which was stated in her marriage contract and payable upon the marriage breaking down since her husband had divorced her by talaq. It was held that the wife was entitled to the payment as a recognised contractual obligation imposed upon the husband.

The wife's claim was upheld on the ground that it was based on a recognised contractual obligation, enforceable under Islamic law by ordinary civil action (aside from matrimonial proceedings) and that there was no reason why the same remedy should not be afforded here.

 

Uddin V Choudhury [2009] EWCA Civ 1205

There is an array of lesser-known English family law cases that have involved the Sharia’ receiving “legal effect” in the United Kingdom. One such example is the Court of Appeal’s decision in concurrence with the Muslim Council of Leyton (a Sharia’s court) to dissolve an Islamic marriage in Uddin v Choudhary. The case was between the father of the groom, Mr. Uddin, and the bride, Ms. Choudhary. Both families had privately arranged the marriage. A dowry of £15,000 was given to the bride from the groom, a condition of the Islamic marital contract. However, the dower (mahr) was not paid at the time of the Islamic marital ceremony. The relationship was unsuccessful and never consummated. The husband agreed to dissolve the marriage on the condition that his wife returns the gold jewellery and dower that was claimed to have been given to her. She denied receiving any dower, and any gold jewellery. The Islamic Council of Leyton subsequently dissolved the marriage. Following this, the father of the groom pursued an action against the bride for £25,000 worth of jewellery she had reportedly taken. The bride counterclaimed stating she was owed the £15,000 promised in the marital contract. As the couple were not married in the eyes of the English legal system, the Court invited an Islamic family law expert. Faiz-ul-Aqtab Siddiqi, barrister and Naqshbandi Sheikh, to comment on the conditions of Islamic marital contracts to the court. He stated that the dower given at the beginning of the marital contract was a pure gift, and that possession of this pure gift was not dependent on the success of the marriage. Furthermore, he stated that the bride was owed the dower due to the marriage not being consummated. The judges concurred with this, ruling that the gifts did not need to be returned. Crucially, the judge held that the Council’s decision to dissolve the marriage had “legal effect”. The Court’s recognition of the Council’s decision to dissolve the marriage activated the prior contractual agreement, making the dower due to the bride. However, implicit in the Court of Appeal’s decision was the meta-claim that “Sharia law” is something that applies universally to all Muslims, and that an expert can lay these rules out in a list for a Court to instruct their decisions. Under this view, Islamic contracts can have English legal force, and indeed portions of Islamic law are already recognised by the English court system. However, the meta-claim inferred in the decision conflicts with the larger schools of Islamic legal thought, who argue that public Islamic law can only be practiced within a Muslim jurisdiction, not outside of one.

 

Otobo v Otobo [2002] EWCA Civ 949

It was held that when conducting the exercise required under s. 25 of the Matrimonial Causes Act 1973 which involved a family with a secondary attachment to the jurisdiction of the English court and culture, a judge should give due weight to the primary cultural factors. The judge should not ignore the difference between what a wife might anticipate from a decision in England as opposed to a decision in the alternative jurisdiction. This should be considered as one of the “the circumstances of the case”.

 

A and T (Ancillary relief: Cultural Factors) [2004] EWHC 471 (FAM), [2004] 1FLR977

The parties in this matter were Iranian nationals and the husband had been living in the United Kingdom for over 25 years. Both parties were Muslim and as part of the marriage contract, it was agreed that upon divorce the wife would receive gold coins which equated to £60,000 at the time of the hearing. The parties were married in Iran in July 1998 and the wife arrived in England in December 1998. Following only seven weeks of cohabitation, the wife returned to Iran in February 1999 and stated that her marriage was over. The wife started court proceedings in Iran claiming her marriage portion (i.e., deferred mahr) in full and placed a charge on a property in Iran which the husband had inherited a share in. In July 1999 the Iranian court made an order that the husband must pay the marriage portion. However, in relation to the divorce proceedings in Iran, the wife was unable to satisfy the necessary grounds to obtain divorce by consent (a Khula divorce) since the husband refused to provide his consent. Following this, the wife issued proceedings in England which included an application for financial remedies in the full sum of the marriage portion which she stated she was entitled to do. The English court's view was that the proper lump sum amounted to £35,000 providing the wife obtained a religious divorce and was wholly independent. The wife also had to drop all proceedings that were taking place in Iran and to remove the charge on the husband's property. Upon this happening, the husband was to then grant the wife a religious divorce by talaq. If the husband failed to do so, the court was of the clear view that in Iran the wife would have been entitled to the full amount of her marriage portion. Of significance, was the consideration of the wife's needs by the English court. The judge stated that if the husband failed to grant his wife a religious divorce within three months of the date of the order, that it was only right for the wife to be entitled to the whole of her marriage portion i.e., £60,000. Furthermore, an additional £25,000 would become due and payable in the event the husband failed to provide the wife with a religious divorce. They considered an earlier case of Brett and Brett [1969] 1AER1007, in which it was decided by the court that they did have jurisdiction to make an additional capital order in circumstances where a wife would be disadvantaged by the failure of a husband to grant a religious divorce.

The principle that dower can be enforced as a purely contractual right was confirmed in Oureshi v. Qureshi [1971] 2 W.L.R 518. In that case, two Muslims married in England according to English law but they also agreed to a Muslim marriage, including a specified dower. The husband later divorced his wife in Pakistan by talaq, which was a valid divorce under Pakistani law. The wife petitioned an English court for a declaration that the marriage still subsisted and for maintenance, and alternatively if the marriage had been validly dissolved, that she was entitled to dower. The court held that there had been a valid divorce and that she was therefore not entitled to maintenance as a wife, but she was entitled to her dower. The court refused to elaborate on this decision because the husband had conceded that if the marriage was validly dissolved by talaq the dower would be automatically payable. Qureshi v. Oureshi takes the recognition of Islamic law as English law one step further, in that the marriage contract under consideration was created solely within the English jurisdiction.

 

Conclusion

Some aspects of traditional Islamic marriage have therefore found expression in English law, but rather than simply applying Islamic law, English courts have used an oblique method. With respect to dower, the Islamic marriage contract entered by British Muslims is not recognised as part of English family law but is given legal efficacy as part of the law of contract. As a convenient template exists, namely, a notion of contractual rights, the courts have been willing to respect some fundamental aspects of the Sharia, if there are public policy grounds that justify such action. This approach is partly because the refusal to incorporate a separate system of Islamic personal law into English law limits the courts' options. The peculiar structure of English law also separates different causes of action, while still allowing for flexibility within these channels. English courts will not even consider issues unless they fall within a recognised cause of action, but appropriate remedies can be improvised if justice demands it; hence the court's preference for using the principles of contract law. Matrimonial matters have always held an ambiguous position within this arrangement, perhaps because it has never been clear what exactly the legal status of marriage is. The mixture of religious and contractual elements in English matrimonial law makes an interesting parallel with Islamic law and helps to answer why the English judiciary is reluctant to incorporate parts of the Sharia into English law.

It is likely that these informal systems for matrimonial dispute resolution will continue to flourish in England. Beyond these, there is likely to be vocal opposition to a "British Sharia" from those Muslims who feel that religion is a matter of individual choice and would resent the imposition of the Sharia on them. Objections are also likely to be raised by Muslim women who might anticipate the undermining of the rights they have been given in England and fought for within their own communities. In any case, no workable model for a "British Sharia" has been suggested. Theoretically, some parts of Islamic family law could be incorporated into English law. However, the practical difficulties, such as the conflict with human rights standards, make it unlikely that the introduction of a separate system of Islamic personal laws will ever be achieved in the English legal system.

 

Tahir M. Khan

 

Disclaimer

This content is provided free of charge for information purposes only. It does not constitute legal advice for any specific case or cases and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed, or accepted by any member of Chambers or by Chambers as a whole.

© Tahir M. Khan

 

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