Report No. 67
Articles 58 to 60
47.1. Article 58.-
Article 58 levies duty on an instrument of settlement. The definition of "settlement" as given in the Act1 emphasises the occasion or purpose of the gift, that being the feature distinguishing it from other transfers. Having regard to this special purpose, the legislature has fixed a lower rate of duty on settlements. But for this specific article, the instrument would have been taxable as a gift, thereby attracting the rate of duty leviable on a conveyance. Certain questions relating to settlements and trusts will be considered when we come to Article 64. (Trusts).
1. Section 2(24).
47.2. Exemption for dower.-
There is in Article 58, an exemption in respect of a deed of dower executed on the occasion of a marriage between Muhammadans. This requires discussion. The exemption was previously notified by Notification No. 855 dated 19th February, 1886. The principle of the exemption appears to be that in the case of a Muslim marriage, dower is obligatory and is not a matter of bounty. Dower is a legal right of the wife and hence ought not to be taxed. As Mahammood J. observed in Abdul Kadir v. Salima, 1886 ILR 8 All 149 (157)-"Dower is not the exchange or consideration given by the man to the woman for entering into the contract; but an effect of the contract, imposed by the law on the husband as a token of respect for its subject, the woman."
47.3. Dower in other countries.-
This aspect of the concept of dower is brought out more clearly in the systems of Islamic law in certain other countries which have codified the law on the subject of personal status. According to the law as enacted in the Ottoman Law of Family Rights1, dower and maintenance of the wife become binding on the husband on the conclusion of the contract of a valid marriage. A similar provision is contained in the law Iraq2-3, according to which a woman is "entitled" to the dower specified in the contract; if it has not been specified, she shall get the proper dower.
1. Ottoman Law of Family Rights (1917), section 69.
2. Iraqi Law of Personal Status (1959), section 19(1).
3. J.N.D. Anderson Changes in the Law of Personal Status in Iraq, (1963) 12 ICLQ 1026.
47.4. Essential nature of dower.-
The essential nature of dower came up for consideration in an English case in the rather unfamiliar setting of a libel action1. The Muslim plaintiff in that case complained that he had been held up to ridicule and contempt by an article that appeared in the defendant's newspaper under the heading "Child wife bought for £800." The article had gone on describing the marriage of the plaintiff with a Moroccan girl in Casablanca in terms of a purchase. The defendants put forth the plea of "justification" (truth of the libel). It was their plea that they were justified in describing the marriage as a sale, because the negotiations for marriage had been concluded between the plaintiff and the girl's uncle and because a sum of money was involved.
This plea was rejected, and it was held that the defendants had grossly misrepresented the nature of the proceedings involved in a Muslim marriage. The marriage guardian was in no sense acting as a vendor. It was the bride herself who received the dower. The bride's uncle had conducted the contract as a representative of the bride and acting upon her wishes, because the Maliki law required him to do so. The plaintiff was awarded £ 750 as damages. The points discussed above would seem to show that dower is-(i) a right of the wife, and (ii) it is obligatory by law to provide for it in the case of a Muslim marriage.
1. Saloy v. Odhams Press, London Times (27th June, 1963); Coulson Conflicts and Tensions in Islamic Jurisprudence, (University of Chicago Press) (1965), p. 27; Current Law Year Book (1963), item 2006 (Stevenson, J.).
47.5. Minimum dower.-
It is, presumably, for this reason that under the Hanafi law, the wife is entitled to claim as her dower a minimum amount1, notwithstanding any express agreement not to claim dower2 or an agreement to accept a smaller sum. This is fairly clear from the original texts cited by Karamat Husain J. in Asma Bibi v. Abdul Samad, 1909 ILR 32 All 167 (168).
1. 10 Dirhams (Hanafi Law).
2. The agreement is called a tafweez.
47.6. Dower is often fixed at a high amount in order to prevent the husband from divorcing the wife1. Payment of a portion of the dower could be postponed by agreement until termination of the marriage, and if the amount stipulated were high enough, it would obviously provide an effective brake upon the capricious exercise of the right of repudiation by the husband2.
1. Zakeri Begum v. Sakina Begum, 1892 ILR 10 Ind App 157 (165).
2. Coulson A History of Islamic Law, (1964), pp. 207, 208.
47.7. No maximum.-
The matter has been considered at length in a very learned judgment of the Punjab Chief Court'1. It may be noted, that apart from cases where specific statutory provisions of local application restrict the amount of dower2 there is no legal limit of maximum regarding the amount of dower under Muslim Law. This has been specifically held by the Privy Council3. In an unreported case of the Bombay High Court4, a decree for dower amounting to Rs. 18 lakhs was upheld.
1. Sahebzadi v. Saidulnissa, (1880) 15 Punj Record 297 (No. 123).
2. Section 5, Oudh Laws Act.
3. Zakeri v. Sakina, 1892 ILR 19 Cal 689 (698) (PC).
4. Aun Ali v. Banoo Begum, (OOCJ Appeal No. 1472), decided in September 1907; Tyabjin Mohammedan Law, (1968), p. 111.
47.8. This being the principle underlying the exemption regarding deeds of dower, no modification of substance is suggested in the exemption. We have, however, a point of phraseology to consider, which will be discussed later.