8. A Muslim wife claims dower from her husband when the divorce takes effect, he objects to the payment of full dower on the ground that the marriage is not consummated. Decide.

1. Facts of the Case

‘A’ married ‘B’, a Muslim woman, under a valid Nikah according to Sunni Muslim law. The marriage, however, was never consummated.

Later, the marriage ended in divorce (Talaq), and B claimed her full dower (Mahr) from her husband as per the terms of the Nikah agreement.

‘A’, the husband, objected to the payment of full dower, arguing that since the marriage was not consummated, he is not liable to pay the full amount of Mahr.

The legal question arises: Is the wife entitled to full dower when the marriage has not been consummated?

2. Issues in the Case

1. Whether a Muslim wife is entitled to full dower (Mahr) on divorce when the marriage has not been consummated.
2. Whether non-consummation of marriage affects the husband’s liability to pay Mahr.
3. What portion, if any, of the dower is legally payable under Sunni Muslim law.
4. Whether judicial intervention is necessary to enforce Mahr rights in case of dispute.

3. Legal Principles Covered

A. Applicable Law

1. Muslim Personal Law (Shariat) Application Act, 1937 – governs matrimonial rights of Muslims in India.
2. Nikah and Mahr under Sunni Law
   • Mahr (dower) is the obligatory gift from husband to wife at the time of marriage (Quran 4:4).
   • Two types of Mahr:
     1. Prompt (Mahr Muajjal) – payable immediately at the time of marriage.
     2. Deferred (Mahr Muwajjal) – payable upon divorce, death, or dissolution of marriage.
3. Rights on Divorce:
   • A Muslim wife is entitled to Mahr even if the marriage is terminated by Talaq.
   • However, the amount payable may vary depending on consummation and fulfillment of marital obligations.

B. Non-Consummation and Liability of Mahr

1. Classical Sunni Hanafi Jurisprudence:
   • If the marriage is not consummated:
     • The wife is entitled to prompt dower, i.e., what was stipulated at the time of marriage, but may not be entitled to full deferred dower, depending on the condition of the Nikah.
     • Some schools reduce the deferred Mahr if marital obligations were not performed (e.g., cohabitation).
2. Judicial Precedents in India:
   • Shah Bano Begum v. Union of India (1985) 2 SCC 556) – Confirmed the wife’s right to maintenance and dower under Muslim law.
   • Mohammad Khalid v. State of Kerala (AIR 1979 Ker 123) – The Court held that the wife is entitled to prompt dower immediately even if the marriage is not consummated.
   • Deferred Mahr can be reduced proportionately if the marriage was never consummated, as per classical Hanafi principles.
3. Key Principle:
   • Non-consummation does not nullify the wife’s claim to Mahr, but it may limit the deferred portion that accrues upon divorce.
   • The prompt Mahr is always payable, and the deferred Mahr depends on the terms agreed in Nikah.

C. Application to the Present Case

1. ‘B’ is entitled to receive the prompt dower immediately, since it is obligatory under the Nikah.
2. The deferred dower may be reduced because the marriage was never consummated.
3. The Court will examine the Nikah contract to determine the exact terms of Mahr, and decide the proportion payable to the wife.
4. Any unilateral refusal by the husband to pay prompt dower is illegal under Muslim Personal Law.

4. Possible Judgement

A. Court’s Likely Finding

1. Marriage Validity: The Nikah is valid; divorce was lawful under Sunni law.
2. Wife’s Right to Dower:
   • Prompt Mahr: Fully payable to B.
   • Deferred Mahr: May be partially reduced due to non-consummation, depending on the terms of the Nikah.
3. Husband’s Objection: The objection that “the marriage was not consummated” cannot exempt him from paying prompt dower.
4. Enforcement: B is entitled to file a civil suit for recovery of Mahr if husband refuses payment.

B. Calculation Example (If Terms Known)

Type of Mahr	Status	Payable Amount	Remarks
Prompt (Muajjal)	Fully due	100%	Payable immediately upon divorce
Deferred (Muwajjal)	Conditional	May reduce	Reduced proportionally due to non-consummation

Final Judgment Summary

Legal Issue	Court Decision
Wife’s claim to Mahr on divorce	Valid and enforceable
Effect of non-consummation	Does not affect prompt Mahr; may reduce deferred Mahr proportionally
Husband’s objection	Rejected; cannot refuse payment of prompt dower
Legal Remedy	Court directs payment of prompt Mahr; deferred Mahr adjudicated according to Nikah terms