On the idea of sale is latent
On the other hand, Muslims perfected the concept of sale and found it more convenient to express many of their transactions, including marriage, in the language of sale. It was in that sense though historically corrects, yet conceptually imprecise that mahr is defined as consideration for marriage. Historically, the idea of sale is latent in the law of mahr. In the Pre-Islamic Arabia, two forms of marriage prevailed. In the beena form, the wife, on marriage, did not accompany her husband to his home, but continued to remain in her own home, where the husband visited her.
In this form, it was customary to give, on marriage, a gift to the wife. This Gift was known as sadaq, and the wife was known as sadaqi, (a woman friend, not a girl friend). In the other form, known as baal marriage, the wife, after marriage, accompanied her husband to the matrimonial home set by him, and the husband in consideration of wife’s leaving her parents’ home paid some amount to her parents.
This amount was known as mahr, and was, therefore, likened to bride-price. The baal form of marriage is akin to Hindu asura marriage. When Islam spread in Arabia, the Prophet reformed the law of marriage. Combining ‘sadaq and mahf, the Prophet redeemed the marriage from the bride-purchase notion. Sadaq-mahr became a sort of marriage settlement, where the amount was not paid to the wali (guardian in marriage) but to bride herself. In Muslim law, there is nothing like matrimonial community of goods or property, and no dot or marriage portion, the dowry in the western sense. Mahr is something in the nature of a nuptial gift which a Muslim undertakes to make to the wife. It is inherent in the Muslim concept of marriage.
In this sense, mahr is an integral part of Muslim marriage. The Muslim jurists also used it as a sort of deterrent to the husband’s absolute power of pronouncing divorce on his wife. But, as Tahir Mahmood says, it is possible that a very low amount of mahr coupled with the husband’s arbitrary freedom to pronounce divorce may prove disastrous for woman; but an exorbitant mahr, coupled with a pre-marriage stipulation curtailing man’s right to dissolve the marriage, might play havoc with men”. Following certain Muslim authorities, Mulla defines it (is submitted erroneously) as “a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage”.
Why the Muslim law-givers use the expression “consideration”, Mahmood J. explained it thus : mahr has been compared to the price in a contract of sale because marriage is a civil contract and sale is a typical contract to which Muslim jurists are accustomed to refer to by way of analogy”. The tendency of defining mahr as consideration of marriage continues. In 1934 and again in 1971 the Calcutta High Court emphasized that in Muslim law, marriage is a civil contract of which dower is the consideration, and that, transfer in lieu of dower is in the nature of hiba-bil-iwaz. It is submitted that Abdul Rahim correctly and succinctly defines it thus: “Mahr…….
.is 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 non-specification of dower at the time of marriage does not affect the validity of marriage”. Thus, dower is an integral part of marriage. It is inherent in the Muslim concept of marriage. The amount of mahr may be settled before marriage, or at the time of the marriage; it may even be settled after the marriage.
When it is fixed by mutual consent after the marriage, it is known as mahr-i-iafweez; when the amount is settled by arbitrators or the Judge, it is known as mahr-i-takkin. The amount of mahr may be increased after the marriage. In those cases where mahr is not settled, the law implies it; the proper mahr will be, nonetheless, payable by the husband to the wife. Such is the importance, mahr in Muslim law of marriage that a stipulation in the marriage contract before its solemnization that the wife abandons all her rights to dower is invalid and inoperative, and the wife will be, nevertheless, entitled to proper dower. But a wife, who has attained puberty, may remit the whole or part of the amount of dower in favour of her husband or husband’s heirs.