Validity of a Talaq when Mahr is not returned
What is a Mehr?
Dower is a sum of money or proper a wife is entitled to receive from husband in consideration of marriage.
Abdul Kadir v. Salima (1886 All.): Dower is payment of money or property by husband to wife as an obligation upon him as a mark of respect for wife. Under the Muslim Law, Mehr (dower) means money or property which the wife is entitled to receive from the husband in consideration of the marriage but this consideration is not the same as that of the civil contract. Mehr is also considered as the part of maintenance while fixing the amount of maintenance under Section 125 of Criminal Procedure Code,1973. Since there is no clear cut definition as per Muslim Personal Laws regarding the dower (Mehr) amount, different High Courts and Supreme Court of India in different cases rendered different conceptions relating to Mehr.
If dower has not been agreed upon at the time of marriage, courts can decide the amount of dower by taking financial status of the husband, age of wife, cost of living, property of wife, into consideration.
Types of Mehr: A Mehr is generally of two types – Prompt Mehr: This means the total amount of Mehr payable by the Husband at the time of signing of marriage contract. Deferred Mehr: This means the portion of the Mehr which is payable to the wife at a specified point in the marriage or at the time of dissolution of the marriage through divorce or death of the husband. Any deferred Mehr that remains unpaid at the time of dissolution becomes a debt against the former husband’s assets.
Validity of a talaaq if Mehr is not paid by the husband to his wife in the event of a divorce: A Muslim law is a contract between the husband and wife. And Mehr is the amount of consideration paid to or promised to be paid to the wife. Just like a contract is declared invalid, in the event of non – payment of the consideration. A talaaq is also considered invalid, if the Mehr amount is not paid. A Mehr is a right of the married Muslim women and she can sue her husband if he refuses to pay her Mehr. But, she can may relinquish or remit her right to Mehr in favour of her husband.
Rights of wife in case of non-payment of Mehr:
1. If the wife is in possession of husband's property, she has a right to retain it until dower is paid. She does not get a title to the property and does not get a right to alienate it.
2. Mehr is like a debt and the husband is liable to pay it to the wife before the consummation of marriage. Until it is paid, the wife has a right to resist cohabitation with the husband.
3.Dower is a vested right and not a contingent right. Thus, even after the death of the wife, her heirs can demand it.
4. The wife is entitled to deferred dower only upon 2 cases of dissolution of marriage
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