XI.

(d.) In the case of dower not being named, the wife is LECTURE entitled only to a present (mutat), if divorced before consummation; and to the proper dower, if divorced after consummation. This (proper dower) is also due, if either of them die before (or after) consummation.-Jámi-ur-Ramúz, vol. ii, page 262.

Marriage is valid even though the dower be not mentioned or it be stipulated not to be paid. Proper dower (mahr-i-misl) is due in all these (circumstances) upon consummation or death; but a mutat (present), such as would not exceed half of the proper dower, nor be less than five (dirms), is receivable (by her) upon divorce before consummation or valid retirement.-Shárh-ul-Vikáyah, vol. ii, pages 343 & 344.

If a man marry a woman without specifying any dower, or on the express stipulation that she shall not have a dower, and he either have carnal connexion with her, or die, she is, in that case, entitled to her mahr-i-misl, or proper dower.-Hidayah, vol. i, page 125.

When one of the parties to a marriage, in which there was no mention of dower, has died, the right to the full mahr-i-mithl, or proper dower, is perfected, whether the woman be free or slave, without any difference of opinion.-B. Dig., page 102.

If a man marry a woman without any specification of dower, or on condition of there being no dower, and divorce her before carnal connexion, the woman, in this case, receives a mutat, or present;-God having commanded, saying, "give her a present, the rich according to his wealth, and the poor according to his poverty:"-Hidayah, vol. i, page 125.

It is laudable to bestow a mutat, or present, upon every woman divorced by her husband, excepting two descriptions

give her the value of the articles in dirhms ordinárs, she may be compelled to accept it. But it is not to exceed half the muhr-i-mithl, or dower of her equals, nor fall short of five dirhms. Regard is also to be had to the woman's condition, for the present comes into the place of the proper dower. If, then, she be of low degree, she is to have a mutat, or present, of kirbas, or linen; if of middle rank, one of kuzz, or spun silk; and if of high station, one of abreshom, or silk. But regard should be had to the man's condition, according to the Hidayah and Kafee, while according to the other authorities the conditions of both should be taken into consideration and the Fatwa is said to be in accordance with this view.-B. Dig., page 97.

XI.

LECTURE of women, namely, one whose dower has been stipulated, and whose husband divorces her before consummation,-and one whose dower has not been stipulated, and who is also divorced before consummation; for in their behalf a present is not merely laudable, but incumbent.*-Hidayah, vol. i, page 129.

Principle.

Principle.

And when none has been named in the contract, or he has married her with a condition that she shall have no dower, she is entitled to her proper dower if the marriage be consummated or one of the parties happens to die; and to a mutat, or present, if repudiation takes place before consummation or a valid retirement.-Fatáwá Alamgírí, vol. i, page 428.-B. Dig., page 96.

CCLXXVIII. If a man marry a woman without naming any dower, and the party should afterwards agree to a dower and specify its amount, such dower goes to the woman, if the husband either consummate the marriage or die; but if he divorce her before consummation, she receives only a present (ƒ). Hidayah, vol. i, page 126.

(f.) So also, when no dower has been specified in the contract, but the parties afterwards arrange it by mutual agreement, though she has a right to the whole if the marriage be consummated, or her husband happens to die, yet if she be repudiated before consummation, it is only a mutat, or present, that she is entitled to, and not half of the dower subsequently agreed upon.-Fatáwá Alamgírí, pages 427 & 428.-B. Dig., page 96.

CCLXXIX. When dower has been assigned by the Judge or by the husband after contract, and the husband repudiates his wife before consummation,

There are three kinds of mutat, or present :-1st-Incumbent, which is due to every woman repudiated before consummation, for whom no dower has been assigned; 2nd-Laudable, which is conferred on any woman repudiated after consummation; and 3rd-What is neither incumbent, nor laudable, which is applicable to women repudiated before consummation, to whom dower has been regularly assigned. So that it is laudable to confer a mutat on all repudiated women except the last, namely, those for whom dower has been assigned, and who are repudiated before consummation.-Fatáwá Alamgirí, vol. i, page 429.-B. Dig., page 98.

XI.

she is entitled only to a mutat, or present, instead of LECTURE half of the specified dower according to Abú Hanífah and Muhammad.*

CCLXXX. It is only when the husband is him- Principle. self the cause of the separation that he is liable for a mutat, or present (g).

(9.) As for instance, when he repudiates his wife, or is Example. separated from her by reason of ila, or lián, or jabb, or impotence, or for apostacy and rejection of Islám, or kissing his wife's mother or sister with desire. And he is not liable when the cause of separation is on the part of the wife, as for instance, when it is her apostacy and rejection of Islám, or when she kisses her husband's son with desire, or exercises an option of puberty, emancipation, or inequality.*

CCLXXXI. In every case in which there is no Principle. liability for mutat, there is none for half the dower, if dower were specified; and in every case in which a contract requires the proper dower, a mutat is due if the wife is repudiated before consummation.*

CCLXXXII. There is no mutat, or present, for Principle. a woman whose husband has died leaving her surviving him, whether dower were assigned to her or not, and whether the marriage had or had not been consummated. And in like manner, in any case of invalid marriage, when a Judge separates the parties before consummation, or a valid retirement, or even after a valid retirement (h) when the husband denies consummation, there is no mutat or mutah.

(h.) Retirement is valid or complete when the parties meet together in a place where there is nothing in decency, law, or health to prevent their matrimonial intercourse.†

*Fatáwá Alamgírí, vol. i, pages 428 & 429.-B. Dig., pages 96-98.

If a man retire with his wife whilst one of them is sick, or fasting in the month of Rumzán, or in the Ibrám of a pilgrimage, whether obligatory or

XI.

LECTURE And retirement is invalid whenever there cannot be such intercourse.-Fatáwá Alamgírf, vol. i, page 429.—B. Dig., page 98.

Principle.

Principle.

Principle.

CCLXXXIII. When dower has once been perfected, it does not drop, though a separation should afterwards take place for a cause proceeding from the wife, as, for instance, by her apostatizing, or consenting to the son of her husband, after he had consummated or retired with her; but before dower is perfected, the whole falls by reason of any separation proceeding from the wife. If either of the parties die a natural death before consummation of marriage in which dower has been assigned, the right to it is perfected, without any difference of opinion whether the woman be free or a slave.*

CCLXXXIV. So also when one of the parties has been slain, whether by a stranger or by the other of them; and in the case of the husband, though by his own act. When the wife commits suicide, there is no abatement to the husband from the dower, if she were free; nay, he is liable for the whole.*

CCLXXXV. Dower, when confirmed,† is held to be a debt due by the husband, and is payable at any time since its confirmation, though not realiz able, except the muajjal (prompt) part thereof, before the dissolution of the marriage, which takes place by divorce, separation, or by the death of either of the married couple.

voluntary, or of a visitation at the shrine of the Prophet (termed an 'Amrit'), or whilst the woman is in her courses, that is not regarded as a khalwat-isahíh, or complete retirement, in so much that if the man were to divorce his wife after such retirement, the woman is entitled to her half dower only; because all the above circumstances are bars to the carnal act.-Hidayah, vol. i, page 128.

* Fatáwá Alamgírí, vol. i, pages 428 & 431.-B. Dig., pages 196 & 101. † Vide Principle cclxxv.

XI.

CCLXXXVI. The muajjal portion of dower is LECTURE due immediately upon the marriage taking place, and is payable and realizable there and then, or at Principle. any time subsequent.*

CCLXXXVII. In the case of divorce before con- Principle. summation, only half of the mowajjal (deferred) dower becomes payable and realizable, but no portion of the mahr-i-misl, or proper dower, is so, a present is, however, given to the wife.

CCLXXXVIII. When the parties have explained Principle. how much of the dower is to be muajjal, or prompt, that part of it is to be promptly paid. When nothing has been said on the subject, both the woman and the dower mentioned in the contract are to be taken into consideration, with the view of determining how much of such a dower should properly be prompt for such a woman, and so much is to be muajjal, or prompt, accordingly, without any reference to the proportion of a fourth or a fifth; but what is customary must also be taken into consideration. Where, however, it has been stipulated that the whole is to be muajjal, or prompt, the whole is to be so, to the rejection of custom altogether.tFatáwá Alamgírí, vol. i, page 448.-B. Dig., pages 126 and 127.

CCLXXXIX. Dower is a debt like all (other) Principle. debts, and (its payment) is preferred to the (distri

ANNOTATIONS.

cclxxxix. Dower is a debt at the responsibility of the husband, and is confirmed by death, and is payable from his assets.-Durr-ulMukhtár.

*See ante, page 351.

† It has been decided by the late Sudder Dewanny Adawlut at Agra that a wife cannot claim the whole of her dower as exigible (or prompt), while her