Mahr...now or later?

Madina Archives


Madinat al-Muslimeen Islamic Message Board

Mahr...now or later?
mango
07/31/01 at 23:42:58
Assalamu Alaikum,

I recently heard one of my traditional desi friends tell me that Indian and Pakistani muslim women generally ask for their mahr in full payment at the time of marriage. I've never heard of such a thing. Can someone explain this to me?

wasalam
Re: Mahr...now or later?
NewJehad
08/01/01 at 05:23:08
Thats the norm.
Re: Mahr...now or later?
Haseeba
08/01/01 at 08:48:28
my mom told me at her time the girl was expected to releive her husband of it and say 4 him to keep it or something .. i told her she should get it now with inflation lol!
Re: Mahr...now or later?
mango
08/01/01 at 09:48:23
hmm..interesting..from my experience the husband gives the wife the mahr at the time of divorce.
Re: Mahr...now or later?
jannah
08/01/01 at 09:57:12
mango that is interesting... that feels more like alimony? than a gift that should be given at the time of marriage?
Re: Mahr...now or later?
NewJehad
08/01/01 at 10:53:00
Mahr is a gift given to the wife at the time of marriage.
If the man has no money he can teach her or get some one else to teach her a part of the quran as the muhr.

One female sahabi was offord marriage by a kaffar man, she refused. the kaffar man said to her "has some one else offord you more yellow and white metal". she said no, "if you embrass Islam i will take that as my muhr". then she said to him," how silly is it that you take part of a tree, and calve a idol out of it to worship, and used the rest as fuel for your fire".
he became Muslim and she took that as her muhr. don't you think she has excepted the largest muhr we can think off?


If the divorce is demanded by the wife and a judge gives it to her, she needs to return the muhr.
So that thing which we see in the indian subcontinent where the man keeps the muhr until divorce seems a bit silly.
expecially if we remember that a lot of places in the IsubC the womens family give the man a muhr that they call a gift at the time of the marriage.
the reason for this becomes clear when we remember that the main religion of the region is hinduism, and in that religion the women's family give the man the muhr.
Re: Mahr...now or later?
Anonymous
08/01/01 at 16:27:32
I haven't heard of many indian muslims that receive mehr from
their grooms. Usually they adopt hindu cutoms and give dowrey to the
groom which is totally haram. I know this because I am Indian!! :(
Re: Mahr...now or later?
Ayla_A
08/01/01 at 20:12:37
[slm]

From my understanding a bride gets part of her Mahr at the marriage date and then another sum is promised for the future if there is a divorce it is due and payable at the time of the divorce, or she can specify it in so many years or something like that.

There is a web site where you can download certain islamic forms.  One of them is a will and the other is a marriage contract.  On the contract is has the due and payable mahr and the deferred mahr.

I will look for it and insha'allah post it to the list

[wlm]
Ayla_A
Re: Mahr...now or later?
Merimda
08/01/01 at 23:45:44
Salam,
A friend of mine sent me this a while ago which I have saved. This is from a listserv of Muslims lawyers and law students.

Meri
*****


Here is a detailed piece on mahr, by a Muslim woman
doing her Ph.D. at Harvard Law School.  She also wrote
an Islamic critique on the rape laws of Pakistan,
indicating how they, in fact, violate Shar'iah


Salams Mohamed and all,

It's taken me a while to get to a response on this because I wanted to give it the time I think it deserves.  As many of you know, I've done some work on Islamic marriage contracts over the years, both in Islamic and American legal contexts.  The more I work on this topic, the more I see confusion over and conflicting analyses of what mahr/sadaq is.  My preliminary research indicates that perhaps the problem stems from the fact that the concept of "mahr" does not directly translate well into non-shariah terms.  

We try to understand it in terms of various rationales for its use (e.g. financial protection for the wife, consideration for the marriage contract), but that also doesn't cover the entire concept, and can even end up limiting our analysis if we're not careful.  It is especially a problem for us living here in the US because American courts are now getting into the act and trying to understand these contracts when a wife asserts her right to her mahr upon divorce, and the cases are coming out very differently, depending on what the US court understands the mahr to be.  Your deferred mahr question is to me another indication that we as a community really need to address this issue more carefully, and I'm glad you posed it here.  In the hopes of contributing to the intellectual analysis of this topic for our generation of Muslim lawyers, here are some of my thoughts.

You wrote:
>First, the text of the Quran requires the mahr (according to my elementary understanding) to be paid as a condition precedent to a valid marriage.  Thus, later payment is not authorized by the explicit text (or is it?).>


I don't see it as a "condition precedent."  The Quranic verses I'm reading on this all say to give women their dowers as part of marriage, but I don't see it as necessarily due as a condition precedent to the wedding itself.  In fact, the verses specifically contemplate the possibility of an amendment to the mahr arrangement after the wedding takes place, and accepts such amendment as legal.  See Quran 4:4 ("Give to women their dowers willingly, but if they forego part of it themselves, then use it to your advantage" ) , 4:24 ("Give those of these women you have enjoyed the agreed dower.  It will not be sinful if you agree to something else by mutual consent after having settled the dowry" ) , 2:36-37 ("There is no sin in divorcing your wives before the consummation of marriage or settling the dowry; but then provide adequately for them . . .  And if you divorce them before the consummation of marriage but after settling the dowry, then half the settle dowry must be paid, unless the woman forgoes it, or the person who holds the bond of marriage pays the full amount.  And if the man pays the whole, it is nearer to piety. " )  In other words, I don't see any indication in the Quranic text that later payment, or later adjustment to the dowry itself (including waiving it) would be unauthorized.  If there's another verse I've missed which does, please refer me to it.

>In a legal sense, a valid contract requires an offer, acceptance and consideration. But if the consideration is deferred, without a specific date and time for pmt, is the contract valid or is it too vague? If the prospective bride waives the mahr (ie: the consideration goes away), is the contract valid?>


Drawing on law school contracts classes here (correct me if I'm wrong), I don't believe that deferred consideration necessarily makes the contract invalid for vagueness.  As long as it's a "but-for" payment by the husband to the wife, I think it would qualify as valid consideration, even if the payment date is later than the wedding.  Of course, if the terms of the contract itself are unclear - such as the payment date simply saying "deferred" (as has in fact been the case in some Muslim contracts I've seen drafted here in the US) instead of "on death or divorce" (which is typical of these clauses) or something more clear, then I would think it would be void for vagueness, but not simply because consideration is deferred.

As for whether the wife waiving the mahr makes the consideration go away and therefore invalidates the contract - well, we know that this can't be the case Islamically because the Quranic verses (see above) specifically contemplate this event (i.e. the wife forgiving the mahr, or indeed, the couple making any other after-the-fact amendments to the mahr agreement), and specifically allow it.  But does after-the-fact waiving consideration make a contract invalid under American law, to begin with?  I frankly can't remember.  If it does, this raises the question - since forgiving the mahr is clearly allowed in shariah, does this mean that Islamic law has a different way of treating consideration (which I doubt), or is it wrong to call the mahr the "consideration" in the first place?  Maybe it is something else - damages for termination of the marriage by the husband?  Deterrence to prevent a spouse from ending the marriage?  A pre-set alimony/financial provision for the wife in the event of having to strike out on her own?  Perhaps its compensation for the fact that the husband has a unilateral right of divorce built into the system which the wife does not?  Or is it, instead, merely a gift?  I could go on.

You end up with very different conclusions to each individual fact pattern depending on which of these possible mahr rationales you choose.  For example, if it is compensation for the fact that the husband has a unilateral divorce right, or deterrence against him using this right, then what do you do with cases where the husband didn't initiate the divorce, but rather the wife did?  If it is financial protection for an ex-wife, well, that's problematic if you're in a western jurisdiction and the court simply analogizes it to their own maintenance laws, and maybe limits the amount to the maximum of their law.  (This has happened in Germany.)  If it is consideration for the marriage, then what is the wife's consideration?  Entering the marriage?  (Doesn't the husband do that as well?)  I've read classical Islamic law books that it's consideration for the wife agreeing to sexual intercourse with her husband, but that smacks too much of prostitution for a lot of Muslim women I know.  (Plus, there's the same question of what does the wife pay for sex with her husband?)

It's important for us here in the west, again, because in the western (US & European) court cases I've read that have grappled with the question of whether or not to enforce a mahr, there have been a variety of analyses & they've ended up all over the map - picking one of the above, or another analysis.

And now add this twist - if the rationale you choose to help you define what a mahr is has anything to do with financial protection for the wife, then does it still hold up in cases where the mahr does not have a significant financial value?  What about teaching a verse of the Quran as mahr?  Or a copy of the Quran?  Or a declaration of the shahada?  How are these financial protection for the wife?  Or (taking a different rationale above) a deterrent to the husband divorcing her?  And what about the fact that a wife can waive it after the fact?  If it's the only financial protection for a divorced or widowed woman in the shariah, then is there any stop-gap against undue pressure on women to waive an agreed mahr sometime during the marriage and before it is due?

Since I'm getting into ways people can abuse the system, let's go on to your last point:
>From a policy standpoint, it seems that such a contract is subject to abuse by both parties. If a husband dies prior to paying the mahr and if his estate is unable to satisfy the debt, the wife is deprived of what is guaranteed to her by the shari'a. On the other hand, a wife could make conditions intolerable for a husband such that he may seek divorce. But given his outstanding debt, he would have to pay it to get out of the marriage; essentially he's held hostage. Clearly, if the idea of the mahr is to guarantee a certain level of financial freedom to the wife, deferred doweries seem to compromise this goal.>

As you can probably tell from my comments so far, I think that financial freedom to wives is part of the story, but it's not the only important angle. But even if we do focus just on women's financial independence as something contemplated by the Muslim marriage contract (something I highly advocate, by the way), there are still all sorts of important permutations to deal with.

You describe the situation where a wife pushes a marriage to the point of the husband wanting to get out, but with a high deferred mahr he's "held hostage."  But there are several things you're forgetting with this hypothesis.  First of all, there's more than one type of divorce in shariah.  There's the talaq divorce, which is generally (i.e. unless stipulated otherwise in the marriage contract) the unilateral right of the husband, to be used at will, no cause required.  (Yes, a high deferred mahr might hold an abused husband "hostage," but it also might deter others from divorcing their wives willy nilly.)  But, there's also the khul', the divorce initiated by the wife.  In a khul' divorce, a wife who can show harm caused by the husband is entitled to receive her mahr, but if she wants a divorce just because she doesn't want to be married to him anymore (i.e. he's caused her no harm), then she generally must give up her deferred mahr in order to obtain the khul'.  Seen next to each other, then, both husband and wife have to "pay" (him by paying & her by giving it up) the deferred mahr when initiating a divorce where there is no fault by the other spouse.

This seems fair to me.  The only situation of an abused spouse still having to "pay" to get out of the marriage is the scenario you describe above - where the wife is at fault (and, presumably, doesn't want to initiate a khul').  I frankly hadn't thought of this possibility until you brought it up - probably because I've never heard of cases like this, whereas I have seen plenty of its opposite (husband abusive but unwilling to give a talaq and pay full mahr).  I suspect that your hypothetical is the minority, but even so, the husband could presumably protect himself by addressing it in the marriage contract somehow, or, at least make sure the deferred mahr amount he agrees to is manageable.

Considering all shariah means to divorce, I think the payment of a high deferred mahr cuts equally against (and for) both spouses.  That doesn't mean that I think a high deferred mahr is always a good idea.  In fact, once you get into it, the setting of your mahr amount is actually quite a complicated thing, one that must take into account a lot of specific factors, and your best guess predictions at what you will need down the road later in married, and God-forbid, divorced or widowed life.  That is, if a woman worries that she may not be able to get out of a marriage if the husband becomes abusive, then she might want to make the deferred mahr low so that it is not a hurdle in getting the husband to agree to talaq.  (Yes, she could initiate a khul', but it's generally much less complicated to get the husband to issue a talaq.)  On the other hand, if a woman worries that her husband may too arbitrarily leave the marriage, leaving her (and potentially her children) with little support, then she might want to make the deferred mahr high - both as a deterrent and as financial security in that event.

But, if you guess wrong, you could put yourself in a tight spot.  High deferred mahrs provide good financial security for wives and good deterrents against unilateral husband-initiated divorce, but they also, on the other hand, burden wife-initiated khul' divorces with a high financial cost, if the husband has caused no harm.  So, for example, a wife might think she's protecting herself against arbitrary divorce by setting her mahr high, but, if things turn out differently and she's the one who wants out (with no fault by the husband), she may be holding herself "hostage" by having to forgo her high mahr in order to get a khul.'  Basically, there is no way of predicting what situation you'll be in (you want out or you want to keep spouse from getting out . . . you will need financial support or you won't, etc.).  I think it's probably best for couples to write the contract as fairly and moderately as possible so that both parties can feasibly deal with the amount deferred, whatever happens.

And remember, there's also the up-front mahr to think of.  One might choose to use that as a financial security measure, instead of laying it all on the shoulders of the deferred mahr.  (This might even be preferable if you can invest it wisely and let it accrue value over the time of the marriage.)  For couples with high up-front incomes going into the marriage, this may be feasible, but for younger couples just at the start of their careers, this would probably be impossible to afford (without a trust fund somewhere in the picture).  Moreover, if a woman thinks she's going to be financially independent anyway (e.g. she has her own means of income), then she might not care about this sort of financial protection and might want to use her mahr for something else entirely.

Basically, there are so many specific permutations to think about that could make the mahr provision of a couple's marriage contract as uniquely well-suited to their particular spousal situation as all the myriad other specific conditions you can put in a Muslim marriage contract (another topic of mine - don't get me started!).  But I think this level of thought is rarely given to mahr "negotiations" by Muslims today.  It unfortunately devolves into some weird culturally-loaded estimate of the "worth" of the bride - often prompting many women to waive the mahr altogether (or make it a token gift) to avoid that tone, without realizing that they may be losing a very valuable life planning tool.

In conclusion, I'm not advocating high or low mahrs, or how to use or not used the deferment option.  I just wanted to pass on my thoughts that deferred mahrs are allowed under Islamic law (and, as Mohammad Fadel said, have been a part of Muslim marriage contracts for centuries), and then point out the myriad roles that they can play.  I do think there is a lack of knowledge of these subtleties among the lay Muslim population, and I hope that changes.  My comments here are offered in the spirit of contributing to that change.

And God knows best all things.
Salams,
Asifa



Re: Mahr...now or later?
jannah
08/01/01 at 23:47:38
slm,

wow i didn'p know asifa was doing her PH.D!  very interesting analysis...i really didn't think about those negatives to making your mahr too high... good points and questions to think about for ppl trying to decide on a mahr!
Re: Mahr...now or later?
nehar
08/04/01 at 20:10:59

[quote]I haven't heard of many indian muslims that receive mehr from
their grooms. Usually they adopt hindu cutoms and give dowrey to the
groom which is totally haram. I know this because I am Indian!! :([/quote]

[slm]

I think Mahr is given in many asian societies but often women forgive their husbands 4 it on the wedding night as it is a part of culture.  I suppose its often 4 show!!!

Also in the asian society dowry is given but indirectly, like the brides side tend 2 give the furniture and electricals for the new home.  I think its a hindu hidden trend within a muslim society!!

[wlm]


Individual posts do not necessarily reflect the views of Jannah.org, Islam, or all Muslims. All trademarks and copyrights on this page are owned by their respective owners. Comments are owned by the poster and may not be used without consent of the author.
The rest © Jannah.Org