Validity of a talaq when Mehr is not returned
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.
What is a Mehr?
Dower is an obligation imposed upon the husband and the object of the dower is to provide wife for her subsistence after the dissolution of her marriage so that she may not become helpless after the death of the husband or termination of marriage by divorce.
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.
What is the 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.
What are the rights of wife in case of non-payment of Mehr?
- 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.
- 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.
- Wife can sue heirs of the husband for payment of dower.
- If the dower is deferred, the wife is entitled to it upon dissolution of marriage either due to divorce or due to death.
- Dower is a vested right and not a contingent right. Thus, even after the death of the wife, her heirs can demand it.
- 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.
What types of Mehr is paid to a wife?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.
Can a wife relinquish her right of Mehr?A wife may relinquish or remit her right to Mehr in favour of her husband. She may do so either out of natural love or to gain affection from her husband. This act is termed as remission of Mehr by the wife. The wife may remit the whole or only a part of her specified Mehr.
After a lawful remission, the husband is under no legal obligation to pay the remitted part of Mehr to the wife.
These guides are not legal advice, nor a substitute for a lawyer
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