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Dower
and Dowry:
Its affect on the empowerment of muslim women
Dr.
Taslima Monsoor
The
Mahr/Dower is something that is paid by the husband to his wife. It is
paid to the wife only as an honour and respect and to show that he has
a serious desire to marry her and is not simply entering into the marriage
contract without any sense of responsibility and obligation or effort
on his part. It is also a provision for her rainy days and socially it
became a check on the capricious exercise by the husband of his unlimited
power of divorce. Dowry is a new phenomenon for the Muslim communities
in Bangladesh, with enlarged effects after independence. For the Hindu
community also, its impact was not so widespread before liberation.
Some authors in Bangladesh are claiming that dowry has become an essential
criterion for marriage in every community and is near universal in Bangladeshi
society. The simple gesture of jamai ador or special affection shown to
the bridegroom has been transformed to the shape of daabi or demand by
the bridegrooms. Even poor men are taking this chance of exploiting the
bride's family to improve their fate from poverty and unemployment. This
is making marriage a commercial transaction, giving more value to property
and money than the bride herself.
The
right of Dower/Mahr
Allah says in the Qur'an:
"Wa aatoo an-nisaa'a saduqaatihinna nihlatan... And give the women
their dower with a good heart... "
This verse is addressed to the husband because it is their responsibility
to pay the dower. This verse shows that the dower must be given to the
wife and should not be given to the guardians. There are other verse which
shows the obligation to pay dower to the wife.
Regarding dower there are 3 different views. One is that in its incidents
it is similar to Donatio propter Nupteas of the Romans. Second that it
is given by the husband to the wife as a mark of respect; and Third that
it is a device to control the unfettered power of the husband to divorce
his wife. According Islamic law where there is a marriage there is a dower.
It is a bridal gift. It is a token of respect to the bride.
Laws
on Dower
Prompt Dower becomes payable immediately after the marriage and must be
paid on demand. The wife claiming the prompt dower stands as an unsecured
creditor. If the prompt dower is not paid she could refuse to stay with
her husband and also can take legal action. In Nuruddin Ahmed v. Masuda
Khanam it was held that prompt dower may be considered a debt always due
and able to be demanded and payable upon demand. The wife is under the
Muslim law entitled to refuse herself to her husband until and unless
the prompt dower is paid.
Where the wife felt that possible way to win or retain the affection of
her husband was to act on his suggestion and to remit the dower. It was
held that she did not act as a free agent and it would be inequities to
hold that a woman who remits dower in such circumstances is bound by it.
It was held in the case of Rahim Jan v. Md. that the wife can refuse to
live with her husband if dower is not paid on her demand and consummation
does not affect this right of the wife. But after cohabitation, the proper
course for the court is to pass a decree for restitution of conjugal rights
conditional on payment of prompt dower this was held in the leading case
of Anis Begum v. Md. Istafa Wali Khan.
In Rabia Khatoon v. Muktar Ahmad It was held that the right of refusing
herself is lost on consummation. Thus if the husband files a suit for
restitution of conjugal rights before consummation nonpayment of prompt
dower is a complete defence.
Deferred Dower becomes payable at the termination on dissolution or marriage
either by death or divorce. If by divorce than dower can be recovered
by compromise or suing in the family court. If by death than dower can
be recovered from her husband's estate / compromise / suing.
Islamic law does not fix any maximum amount of dower, but makes it obligatory
for the husband to pay whatever amount has been specified and whatever
amount is assessed if not specified. Fixing of excessive amounts of dower
is being used in South Asia as a means to control and check the husband's
unilateral and unlimited power of divorce, as he has to pay the full amount
of dower at the time of divorce. But it also acts as a status matter,
in which case there is not intention to pay the stipulated amount in full.
Attempts have been made to curb the fixation of excessive amounts of dower
in India which go against the interests of Muslim women, but no similar
provision has been made in Pakistan or later in Bangladesh. There has
been some confusion over dower and dowry after the Dowry and Briadal Gifts
(Restriction) Act of 1976 in Pakistan, but this has now been clarified.
The
real scenario
It was found in a study of the metropolitan city of Dhaka that 88% of
Muslim wives did not receive any dower at all. If this is the situation
in the capital city, one can anticipate an alarming situation in the rural
remote areas. Why are women not receiving their legal right of dower?
To inquire into this one has to probe into the causes for not giving dower.
Here the same causes for which the women in Bangladesh are being subordinated
come in, as women are dominated in the patriarchal family and in the wider
socio-religious arena. What needs to be ascertained here, in particular,
seems to be whether the women's right to dower is being enlarged or reduced
by local customary conventions.
Defining
dowry
There is considerable debate what constitutes dowry in its various forms.
The confusion is more acute as in the societal context dowry is differently
defined than in anti-dowry law. In a patriarchally dominated social context
dowry refers to property given to the bridegroom and his family but the
anti-dowry law regards it as the exclusive property of the bride. The
modern phenomenon of dowry, property given or agreed to be given to the
bridegroom or his relatives, does not tally with the earlier concepts
of bride-price and with the customary concepts of giving property to the
bride herself.
Dowry and brideprice have received substantial attention in the anthropological
literature. In fact, there is now a large volume of ethnographic and theoretical
literature on dowry and bride-price. Much of this literature concerns
the problems of the wide-spread switch from bride-price to dowry as marriage
pre- stations.
Outgrowth
of dowry
The modern phenomenon of dowry in South Asia is its abuse as an inducement
for a man to marry a woman or, with the same effect, demands of dowry
payments by a man or his family. The result is a tendency to regard it
as a groom-price, which is distinguished from the traditional kanyadan
(gift of the virgin) or bride-wealth. This modern feature of dowry means
the transmission of large sums of money, jewellery, cash, and other goods
from the bride's family to the groom's family. The emergence of dowry
and the switch from brideprice have been explained by some authors as
the cause of the decline of the earning capabilities and productivity
of women. According to this view the system of dowry is closely linked
with women's role in productive activities. Where women are regarded as
an unproductive burden, a dowry is given to the bridegroom's side to compensate
them. However, the present spread of dowry cannot be explained only with
variables like non-participation of women in economic activity.
The
confusions
The dowry system is not recognised in the religion or the law of the Muslim
societies but has spread into it. Conversely, Islamic law provides dower
to enhance the status of women. Why should Muslim women, who are supposed
to be protected by dower, become victims of dowry
It is important to note that until now authors confuse dower with dowry.
Perhaps the aspect of women's property or stridhanam in Hindu law and
dower as the exclusive property of the wife are seen as synonymous. When
dowry is regarded as stridhanam or pre-mortem inheritance for women, contradictions
arise and the equation of dowry with stridhanam has been disputed by several
authors. They argue that the situation is absolutely reverse, as dowry
is not a gift to the wife or her exclusive property but the property of
her in-laws. The anti-dowry law stated that property given as dowry belongs
to the wife but later on amended the law. However, the misconceptions
still lingers on that she has been paid dowry than why should she be a
part and parcel of the succession?
Thus, the recent emergence of dowry among Bangladeshi Muslims is more
due to simple greed and commercialisation of marriage than the impact
of traditional culture, the urge of hypergamy and the undermining of the
women's productive role. The impact of men coming into contact with a
wider cash economy by going abroad has also been shown to be a significant
variable for their raised expectations in marriage.
Curse
of dowry
Dowry deaths are a common phenomenon in South Asia. These deaths of women
are usually caused by the same persons who are legally and socially supposed
to protect them, i.e. their husband or in-laws. It has been rightly pointed
out that dowry deaths are gruesome reminder of the authoritativeness of
patriarchy. In one study, dowry demands have been identified as one of
the major causes of murder of women in Bangladesh. The authors have established
their finding by a table gathered from different media sources, showing
that almost 50% of all murders of women in Bangladesh in the years 1983-1984
were for dowry causes.
Laws
on dowry
India was first in South Asia to make an attempt to control the dowry
problem by passing the Dowry Prohibition Act of 1961. Subsequently, Pakistan
made relevant legislative enactments, which significantly were only applicable
for the Western wing of the country. After independence in Bangladesh
the problems of dowry became so horrendous that activist women and some
enlightened males were demanding legislation to stamp out this social
evil. It was not considered right to treat women as a commodity to be
transferred in marriage for consideration of property and money when the
religious and official family laws did not regard women as chattels. Moreover,
the Constitution of Bangladesh apparently provides sexual equality. The
commodisation of women was seen as neo-patriarchy, which should not be
tolerated any longer. Under such pressure, the government passed the Dowry
Prohibition Act of 1980.
The real need of women in Bangladesh is to be protected from violence
and economic deprivation. Dowry problems involve both aspects of the need,
i.e. freedom from economic deprivation and violence. Demands for reforms
to control these problems were already made earlier and the Dowry Prohibition
Act, 1980 and the Cruelty to Women (Deterrent Punishment) Ordinance, 1983
were enacted in response to growing evidence of cruelty against women.
Recently a more comprehensive enactment (the Repression Against Women
and Children (Special Enactment) Act xviii of 1995 has repealed the Cruelty
to Women (Deterrent Punishment) Ordinance, 1983 and enhanced the punishment.
More recently The Women and Children Repression Prevention (Special Provision)
Act 2000 exaggerated punishments in most cases upto death penalty for
crime against women and children. We need to assess whether these legislation
has been beneficial to women and seek to find out whether women are actually
able to use the legal remedies available under these new statutes.
Concluding
remarks
Dowry deaths are a common phenomenon in South Asia. These deaths of women
are caused by the same persons who are legally and socially enjoined to
protect them, i.e. their husbands or in- laws. It has been rightly pointed
out that the dowry deaths are a gruesome reminder of the authoritativeness
of patriarchy. Legislation and other NGO intervention cannot stamp out
this social evil unless there is a shift in the attitude of the people
of South Asia.
As the roots of the problem of dowry appear to be social, remedies can
only be achieved by changes of attitude in society; this can be attempted
by legislation, but will need to be supported by education and legal awareness.
The parents of a bride should understand that by giving dowry they may
not be giving their daughter any happiness; it has been claimed that it
is only increasing her misfortune. The parents of the bride are not in
fact giving the dowry to their daughter but to their son-in-law and his
family; this increases greed for more dowry. Parents should rather safeguard
their daughters from economic deprivation and violence by educating them
about their rights within marriage as the dower right.
Dr.
Taslima Monsoor is Dean and Associate Professor of Faculty of Law, University
of Dhaka.
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