A Dowry is to make a woman appealing to a suitor, the origins of the Dowry can be traced back to 3000BCE (Siwan 2007)[1]. The Dower is the payment from the man to the woman and there are two forms of Dower (Fyzee 2009), the Specified (al -mahru'1musammii) and the Unspecified (mahru' l mithl)[2]. The Dower is consideration which provided by the man, this is a form of reciprocal consideration as the woman is providing intimacy. The basis for its inclusion is verse 4:4, the woman is entitled to it, as once intimacy has been shared, she cannot be placed in the position of restitutio in integrum[3]. The Dower cannot be excluded from a Nikah[4], and it is said the Dower agreement is a contract (Bowen 2010)[5], but in reality, the Dower is a term of the Nikah which cannot be excluded.

The Dower is consideration which crystallises as a debt[6] on entering the Nikah and is payable at the point of entering the Nikah, post the Nikah, on death, dissolution or at any other agreed time.  The Dower can be anything which has monetary value or has a use provided it is permissible, identifiable and of a quantifiable value (Nazir 2009)[7]. The importance of the Dower is reflected by the fact if it is not mentioned in the Nikah it comes an implied term by virtue of the Sharia and it is parachuted in as the Unspecified (mahru' l mithl). The Dowers absence will not affect the Nikah under the Sunni schools (Rao 2019)[8],unless there is vagueness for the Hanbali school[9]. The parachuting in of the consideration post contract is a variation that cannot occur under English contract law once the contract is signed by the parties, unless a term allows for this.

In terms of divorce, if the Nikah was contracted overseas, the same principles would apply, but the court in Qureshi v Qureshi [1972 Fam 173] took the matter further, the parties were also married by way of a registry wedding, followed by the Nikah, thus meeting the MA 1949. The husband issued a Talak al Biddat[10] by letter claiming that he was domiciled in Pakistan. The wife objected to this being valid divorce proceedings and as part of the proceedings she claimed the Dower if it was a valid divorce. Sir Jocelyn Simon took the view that the divorce was recognised by the law of Pakistan, therefore it was recognisable by the English law[11], so the husband had lawfully divorced the wife and was liable for the Dower[12]. It is the issue of where a person is domiciled which would give rise to the effect of an Islamic divorce being pronounced. In Qureshi the husband claimed he was in Pakistan when the divorce was issued, hence why it resulted in a valid divorce.  If it is the converse position and the husband is in England and Wales  then the issuing of the divorce under Islamic law cannot take place when the marriage was solemnized in England and Wales (Rex v Hammersmith Superintendent Registrar of Marriages, ex parte Mir Anwa Ruddin, [1917] 1 K.B 634). Likewise, a woman who was in a polygamous marriage and who was validly divorced under Islamic law is entitled to be regarded as a wife of the husband under section 17 Married Women’s Property Act 1882 which in turn would give rise to a right to bring an action to secure an interest in a matrimonial home which was in England and Wales (Chaudhry v Chaudhry 1976 Fam .148). Thus, English law does recognise Sharia-based marriages by way of the lex loci celebrationis principle only, it does not recognise a Nikah based upon the Sharia where the gateway under the Marriage Act  1949  has not been used, but does recognise the Nikah if the gateway is used, but does not recognise the Sharia as a law.

Although Nikahs which do not follow the gate way have been rejected as non-qualifying ceremonies, this does not mean that the courts have rejected the enforcement of the contractual terms relating to the Dower. In Uddin v. Choudhury, [2009] EWCA (Civ) 1205 it was found that the Dower was payable and gifts that had been given to the wife could not be deducted from the Dower amount (para 14 Mummery, J). This was not the first times that the courts had come to this view, the issue first arose in Shanaz v Rizwan [1965] 390 QBD where Winn, J accepted that a Nikah  did give rise to a personal right to enforce the terms and the fact it was the first time the issue had been raised was not a bar[13]. What is of importance is that the Nikah in Uddin was entered into in England and Wales, whereas the Rizwan was not.  Thus, a Nikah and its terms can give rise to an enforceable right on the basis that there is a personal contractual relationship between the parties, as Winn, J stated “the law should rather lend its aid to women who come here as a result of a Mohammedan marriage by enforcing the husbands contractual promise than leave them without recourse to legal assistance”[14].

The non-payment of the Dower can be enforced in the courts.

The views expressed in this article are the personal views of Yasin M Din- Barrister at Law

References

[1] Anderson, Siwan (2007). "The Economics of Dowry and Brideprice." Journal of Economic Perspectives, 21 (4): 151-174 Page 152 https://pubs.aeaweb.org/doi/pdfplus/10.1257/jep.21.4.151 [Accessed 10th June 2020]

[2] A.A Fyzee (2009), Outlines of Muhammadan Law, Fifth Edition, USA page 130

[3] Sahih Sunan Ibn Majah, Vol. 3, Book of Marriage, Hadith 1879- https://muflihun.com/ibnmajah/9/1879 [Accessed 9th June 2020]

[4] 4:4 and 33:50

[5] John R. Bowen (2010), Keynote Address, How Could English Courts Recognize Shariah? 7 U. St. Thomas L.J. 411 (2010) page 426. https://ir.stthomas.edu/ustlj/vol7/iss3/3/ [Accessed 13th June 2020]

[6] “But the Dower ranks as a debt “para 8 of Lord Parker of Waddington Judgement in Hamira Bibi v. Zubaida Bibi - (1916) ILR 38 All 581- Allahabad High Court

[7] Nasir, Jamal (2009) The Status of Women under Islamic Law & Modern Islamic Legislation, Library of Congress, 3rd Ed, page 87

[8] Rao, Muhammad. (2019). The Protection of Woman's Right to Dower in Islamic Law. 10.2139/ssrn.3469072, page 52

[9] Mughniyya, Muhammad Jawad (ND), The Five Schools of Islamic Thought, Al-Islam.org Page 232

[10] Triple Talaq

[11] Paragraph B, page 174 of the judgement

[12]  Paragraph C page 173 of the judgement

[13] Page 390 paragraph D of the judgement

[14] Shanaz v Rizwan [1965] 390 QBD para E, page 391