WIDOW’S RIGHT TO RETENTON OF PROPERTY UNDER MUSLIM LAW

INTRODUCTION

Mahr or Dower is an amount or some other property which is to be paid or delivered to the wife. The property may be specified or unspecified but in either case, the law enforces a mandatory right of Mahr or dower to the wife. The Mahr must belong to the wife and she can deal with it in the manner she likes, and neither her husband nor husband’s relatives can dictate her in the matter of using the Mahr or property. Mahr was originally analogous to sale price, but after the inception of Islam, it is not correct to regard it as the price of sexual intercourse.

In Muslim religion, marriage is like a contract where wife is the property and Mahr is the price or consideration. The non-payment of Mahr does not void the marriage. It may be said that Mahr is not purely a consideration. In pre-Islamic Arabia, Sadqua was a gift to wife but Mahr was paid to the wife’s father, it could no longer be regarded as sale price (2). The right to dower is an exclusive and inherent right of Muslim wife. If this right is effectively enforced, it is of no use to her.

WIDOW’S RIGHT TO RETENTION

Widow’s right to retention is the most effective method of enforcement of dower after the death of the husband. A widow, whose dower debt is pending, has a right to retain the properties of the husband till her dower debt is satisfied. This right is termed as the right to retention in lieu of unpaid dower and it is available to a widow, whether there is any agreement between the parties for this right or not. Right to retention is a right of Muslim wife to continue to be in possession of her husband’s property in those cases where her dower has not been paid. However, the right of retention is available when the marriage has been dissolved by death or divorce. During the subsistence of marriage, the right of retention is not available to the wife, unless she has, under a contract, a right of lien or possession over her husband’s property.

Under this right, if a wife has taken possession of her husband’s properties lawfully (with free consent of the husband) in lieu of unpaid dower, then she is entitled to retain that possession after the death of her husband, until her dower is paid out of the properties retained by her. When a wife was in possession of her husband’s property during his life and continued in possession after his death, the presumption is that her possession is lawful.

In Hamira Bibi v. Zubaida Bibi(3), it is submitted that in view of the nature of the rights of retention, it holds that no consent is necessary, particularly in view of the well-established preposition that widow’s possession should be lawful and must have acquired it without force or fraud.

The right of retention has the following implications:

1. The widow is liable to render full account of all the income and profits: The Muslim widow holding the possession of property in her right to retention is liable to render full accounts of all rents and profits of property received by her to those who are entitled to the property.
2. She has no right to alienate the property: Right of retention confers on her the right to satisfy her dower-debt out of the income and profits of the property, but she has no right to alienate the property for value or gratuitously.
3. Widow has the right to sue for the recovery of her dower: The right of retention is no bar to her suit for the recovery of her dower-debt. In such a suit, she will have to offer to give up possession on the recovery of her dower-debt. She cannot retain possession as well as have a decree passed in her favor of dower-debt.

Now let’s discuss some important characteristics regarding Widow’s Right to Retention

• Widow's Possession over Husband’s Property

For the exercise of this right, it is necessary that the possession of husband’s property was obtained only in lieu of unpaid dower. If she is in possession of the husband’s estate for some other reason, she cannot retain it under this right.

• Only Possessory Right

The widow’s right to retention is simply a possessory right. It does not give any title or right of ownership to the widow over the property possessed.

• Payment of Dower from Income of Property

The property which a widow retains in lieu of her unpaid dower is owned by the legally liable individuals of her unpaid dower, i.e. owned by the legal heirs of her husband. Therefore, the income arising out of this also belongs to those legal heirs.

• Possessed property must be Non-Transferable

The property in possession of the widow in lieu of unpaid dower cannot be transferred by her. She is not the owner, she cannot transfer the property. Any such transfer will be void.

• If the Possession is lost, it’s lost for ever

If the widow transfers and delivers the possession of the property retained, the possession doesn’t come back to her, it goes to the legal heirs of the husband according to their respective shares.

• Transferability of the Right to Possession

The right to retain the property of the husband is the exclusive right of the wife. This right cannot be separated from her and transferred to anyone else. According to Patna High Court, it was held that the right to retain the property of the husband is non-transferrable.

• Heritability of the Right to Retention

The right to retention can be inherited by the legal heirs of the widow provided her own retention was lawful and she died during such retention.

CONCLUSION

In the last, Widow’s right to retention is the most exclusive and effective right provided to the widow in order to possessed the property of her husband if her dower-debt is pending.

FAQ:

Q. Does every Muslim woman obtains the right to retention of property under the stated circumstances?

A. NO. It is not applicable to Muslims who marry under Special Marriage Act, 1954 and also in the state of Goa, where the Goa Civil Code is applicable for all persons irrespective of religion,

Profile of the author:

Tanishk Jandial is a 2nd year law student from Dogra Law College, University of Jammu

REFERENCES

1. ‘Dower or Mehar under Muslim Law’ < https://www.legalbites.in/dower-mahr-muslim-law/#_ftnref2 > accessed on 24 June 2020
2. Saburunnessa v. Sabdu Sheikh AIR 1934, Cal. HC
3. Musammat Hamira Bibi vs Musammat Zubaida Bibi And Ors. on 11 August, 1910
4. ‘What are the characteristics of right to retention<https://www.shareyouressays.com/knowledge/what-are-the-characteristics-of-widows-right-of-retention-under-muslim-law/117522 > accessed on 24 June 2020