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Hassan Angels

“Mehrieh”, “mehr” or “kabin” has undergone changes and transformations over time and has had various functions. Initially, it had emotional and economic functions, but over time, other diverse functions have been imposed on it. The current common function of “mehrieh” has deviated significantly from its initial purpose, and while maintaining the essence of this institution, practical and fundamental changes have been made to it.

In this article, it is necessary to first take a general look at the “function of dowry in the era of legislation” and then examine its “current function”. After that, in the third section, “suggestions for the efficiency of dowry in our era” will be presented.

Part One: The Function of the First Dowry

The rules of Islamic law are divided into two types: “Tasissi” and “Amzayi”. When the originator of a rule is Islamic law, it is considered a Tasissi institution. However, if the institution already existed among the first converts to Islam and is based on Islamic law, it is considered an Amzayi institution. The dowry is an Amzayi institution, as it existed as a tradition in Arab society before Islam and was then incorporated into Islamic tradition and law.

To understand the legal rulings, first we must refer to the philosophy behind its existence among the people of that era. These matters were related to the customs and habits of that time. These customs and habits were the source of legislation and Islamic law has attempted to refine and improve them in order to be in accordance with the spirit of justice desired by the legislator.

Emotional functioning

A part of the philosophy of the first dowry is the expression of a man’s love for his wife. When a man goes to propose, as a sign of good intentions and to show respect and affection for his desired spouse, he presents a gift and offering, which is given to him in return for the woman’s agreement to a shared life. In contrast, the dowry that the wife brings from her father’s house to her husband’s house is her gift to her husband.

In Islamic law, the dowry is called “sadaq” which means that the man gives it to his wife out of honesty and good conduct, without expecting anything in return. In the Quran, it is commanded to “give women their dowries as a gift from a good heart” (and give women their dowries as a free gift; Surah An-Nisa: verse 4). This verse refers to the way the dowry should be paid, which is called “nahl” (meaning gift). In the dictionary of Raghhib, it is explained that this term is used because the man gives a gift to his wife without expecting anything in return, just like a bee that offers its honey without expecting anything in return (1).

2- Economic performance

During the emergence of Islamic law, when couples were building their lives and even their homes from scratch and there was no guarantee for securing the future of the wife, the dowry served as a means of providing economic support for the future of the woman.

The deprivation of women from a portion of paternal inheritance, especially in regards to land which in previous times remained as part of the family inheritance among male children, is an example of economic inequalities that have also affected the division of inheritance in Islamic law; therefore, the wife does not inherit from the principle of land. The double portion of inheritance for male children and brothers compared to female children and sisters, is another symbol of economic inequality. In such a situation, dowry could serve as a substitute institution to compensate for the deprivation of women from a portion of inheritance. This means that if the land does not leave the family and the wife is deprived of inheritance from the land, this deprivation could be compensated to some extent through the dowry she receives from her husband or from her husband’s inheritance.

Therefore, it can be inferred that this economic inequality has been effective in the legislation of dowry. For example, in that period of history, if women had economic power and were the head of the household, and land was passed down through the female line, resulting in men being deprived of inheritance, it is possible that in such circumstances, women would be obligated to pay dowry and men would receive dowry from women.

In some tribes and clans, suitors were obligated to pay a dowry to the father of the bride at the time of marriage, as he had previously covered the expenses of his daughter’s life. And sometimes, as a gesture of gratitude to the mother-in-law, a payment was made for breastfeeding the daughter-in-law. In our Iranian culture, the term “shirbaha” is derived from the same custom and tradition where the husband was obliged to pay the cost of milk given by the mother of the bride.

These “payments” to the parents of the bride could have taken the form of emotional gratitude for their efforts, and could have been seen as an extreme form of payment for the goods exchanged. In traditional societies where daughters were considered their fathers’ workforce, the groom would pay a sum to the bride’s father as compensation for the loss of this “workforce” during marriage. Islamic law, by prohibiting this compensatory function of dowry for the parents of the bride, established the institution of dowry as a bond between the couple, and stipulated that the bride alone would be the owner of the dowry, with no rights for her parents over it.

3- A tool for establishing the right to divorce for women.

Another function that dowry had at the time of legislation was to create balance in the power of the couple in their life. In that society, divorce was in the hands of men. The right to divorce for men was a matter of consensus and relative agreement. In such circumstances, Islamic law tried to give women a license to use dowry as a means for their own divorce.

Among the various types of legal divorces in Islamic law, two of them have been legislated in favor of women’s rights: “khula” divorce and “mubarat” divorce. In khula divorce, a woman can divorce her husband by giving him a certain amount of money in exchange for her dissatisfaction and dislike towards him. This amount can be equal to or more or less than the dowry. In mubarat divorce, both parties are dissatisfied, but in this case, the amount given in exchange should not be more than the dowry (2).

Part Two – Current Function of Dowry

1- Decrease in emotional performance of dowry

The first dowry, which was an emotional transaction, gradually became less significant. During the time of dowry legislation, it was common for the groom to hand over the dowry to the bride at the time of marriage, but now, at the time of marriage, the groom takes on the responsibility and obligation of the dowry as a debt.

A gift has an emotional aspect, which the giver should give directly; not those who promise to give later and no one pays attention to whether they are capable of paying for this gift or not. Everyone also agrees with the famous proverb “Who gave? And who received?” to symbolize the unreal and symbolic nature of this debt.

The legislator of Iran has also stated that in accordance with Islamic law, a woman can refuse to fulfill her duties towards her husband until the dowry is paid to her (3). This statement of Islamic law in the form of a legal article has reduced the aspect of dowry being a gift. Because if we consider the dowry as a “gift”, then there is no longer any obligation to provide it in exchange for marital duties. When we can consider paying a fee as a condition for doing a task, whose nature is economic and not emotional.

2- Guaranteeing Women’s Economic Future

During the time of dowry legislation, an important function of the dowry was to provide economic security for the future of the wife. Another economic function was to pay a sum to the father or mother of the wife, to compensate for their efforts in raising her. Islamic law accepted the first economic function for the provision of the wife, but rejected the second function of paying to the wife’s parents and considered the wife as the rightful owner and possessor of the dowry.

Nowadays, the first function still remains in force; the husband strives to have a guarantee for his future livelihood. However, the second function, which was related to the parents of the husband, has disappeared in developing societies like Iran. Although it still exists in some areas in a limited and occasional form, it is not like some underdeveloped countries where the husband is considered as a commodity to be exchanged by his parents. The writer has sometimes witnessed during the performance of marriage sermons among some African and Arab immigrants in France, where the dowry is given to the husband’s parents. In Iran, although the term “shirbeha” is still common, it has practically deviated from the meaning of “mother’s milk” and has become a part of the dowry that is paid in cash to the husband’s parents in order to cover some of the expenses of the dowry and eventually transferred to the couple’s home and considered as part of the wife’s property.

3- Pressure tool for divorce

As previously mentioned, during the time of dowry legislation, it was common for the husband to hand over the dowry to the wife at the time of marriage; but now, at the time of marriage, the husband takes responsibility for the dowry as a debt. The wife tries to put a heavy burden on the husband’s shoulders and both parties know that the husband will not be able to pay it, but the wife sees it as a leverage to pressure him in case of a dispute, so that she can get what she wants by executing the dowry. If the wife intends to divorce and her husband does not agree, by executing the dowry, she will force the husband to grant her the right to divorce. If the wife intends to continue the marriage, but her husband wants to divorce her, she tries to remind him with the dowry as a sword of Damocles over his head that divorce is costly and it is better to agree to a joint life.

4- A tool for social bragging

In recent decades, dowry has also taken on a new function and is a sign of social distinction and “eye-to-eye” competition. Placing a certain number of gold coins as dowry based on the bride’s year of birth and other similar factors, is more of a display of this competition and distinction among others, rather than a gift or token of affection, or a means of securing the bride’s future economic stability. Especially since sometimes, in these heavy dowries, even if a man works his entire life, he cannot pay it off. If we consider the average monthly salary of a man equivalent to half a gold coin of the Spring of Freedom, when a couple is committed to paying a dowry of one thousand gold coins of the Spring of Freedom, it means they are taking on the burden of two thousand months of their own salary.

In previous decades, this display of extravagance was manifested in shows such as “Jahizieh Baroon” and “Khancheh Baroon”. The gifts for the couple were placed in trays and men would carry the trays to the bride’s father’s house, while on the other hand, the bride’s dowry was sent to her future husband’s house tray by tray, for the neighbors and relatives to see this parade of “men carrying trays”. Now, this tradition has diminished, especially in urban areas. Instead, the amount of dowry is used as a display of this pride and showmanship.

Part Three – Suggestions for Increasing Efficiency of Dowry in Our Time

Due to the change in the practical use of dowry, this institution has lost its previous efficiency and has turned from a useful and efficient institution to a decorative and ceremonial one, and has become a tool for pressure and conflict.

There are two ways to solve the legal and economic problems of dowry: the first way is to eliminate it, and the second way is to reform it. Considering the position of this institution in Islamic law and its deep-rootedness in Iranian tradition and culture, eliminating it is practically impossible, but reforming and changing it is possible in terms of religious and legal aspects. Islamic law should be able to adapt to changes in social institutions. Reforming dowry alone is not possible and practical, and in order to maintain relative justice, related institutions should also be transformed and updated in relation to the lives of married couples. Below are some general suggestions in this regard.

Limiting the dowry to a reasonable amount.

In contracts, the potential and capability of both parties to fulfill the contract is considered, otherwise such contracts will face legal and even religious issues. For example, in the laws of most advanced legal systems, it is accepted that the lessor must consider the lessee’s ability to pay rent at the time of renting; otherwise insurance companies will refrain from insuring the lease and in case of non-payment of rent, courts will not easily rule in favor of such lessors. In France, the monthly income of the lessee must be at least three times the rent amount, because in case of non-payment, the court can directly withhold up to one third of their income for the benefit of the lessor and issue a direct payment order to the lessor’s account.

In the civil law of Iran, in accordance with Islamic law, anything that has ownership and the ability to be possessed can be subject to a marriage contract and the amount of it depends on the agreement of the couple (4). Regarding the amount of dowry, the legislator can take into account the current ability of the couple to pay the dowry. Considering that dowry is usually in the form of a debt on the husband, the couple should be able to settle the dowry within a reasonable period of time, with a portion of their income. For example, the maximum amount of dowry can be set to be equivalent to one or two years of the husband’s income.

From a legal perspective, although there is no minimum or maximum limit for the amount of dowry in Sharia law, the legislator can make the implementation of the dowry conditional on a reasonable and proportionate amount from the beginning; because the government cannot be involved in something that is impossible to implement, and it is not logical to imprison a couple until they can pay the dowry.

As the legislator has declared the condition of “impossibility of performance” as void in transactions (Article 232 of the Civil Code), they can also impose the condition of the husband’s ability to pay the dowry. Since the government is the enforcer of public order, it can condition its intervention, namely “protecting the wife’s right” and “supervising the execution of this debt”, on an amount that is “feasible” and “possible” from the beginning.

2- Economic participation of couples in daily life

During the time of the early Islamic era, men were often more financially stable and were obligated to pay dowry, as well as provide for their wives’ expenses. Now, in a time where women are also working to earn income, it is acceptable for them to contribute financially to daily expenses according to their abilities. However, considering the growth of women in society and their employment, it is necessary to review other privileges of husbands as well. A woman’s leaving the house or the country does not require the husband’s consent and both parties will be in equal conditions.

3- The wife’s contribution to the economic achievements during marriage.

Given that a group of women do not have independent income and spend their youth and vitality serving their husbands and children, it is necessary for women to be involved in their spouse’s economic achievements. If in the division of labor, the man is obligated to earn income through external employment and the woman takes care of the household, the woman should also be involved in the economic achievements of her spouse during their married life.

It is possible to exempt a portion of income and benefits, such as inheritance, so that each spouse becomes the independent owner of their family inheritance. However, in the profits earned from their employment during their married life, they must be equally shared so that it can be divided between them in case of separation.

In this situation, during divorce, the wife will not leave her husband’s house empty-handed so that she does not need a heavy dowry to secure her future; rather, their joint assets will be divided equally between them. From a religious perspective, this agreement can also be included as a necessary and enforceable contract, with a condition included in the marriage contract, so that both parties are also obligated to fulfill it from a religious standpoint.

4- Social Security for Widows and Divorced Women

In order to secure the future of divorced or widowed women, the government can guarantee their future by regulating payment relationships. Just as the government obligates employers to provide social security, unemployment, and retirement for workers through mandatory and universal insurance, and also requires self-employed individuals to have insurance as self-employers, the government can also ensure the future of women by providing provisions and expanding suitable forms of insurance based on the family’s standard of living and income during their married life. In this case, the livelihood of these women is partially secured and they do not need to struggle with heavy dowries to secure their future.

5- Equal rights in divorce

In Islamic law, men have an absolute right to divorce, but women can also stipulate the right to divorce for themselves in a legal and lawful manner by adding a condition to the marriage contract. Currently, twelve cases for the right to divorce are provided for in marriage contracts. The current regulations have two flaws; firstly, these conditions are optional and the couple can refuse to sign them, and secondly, in the marriage document, the cases for divorce are limited to twelve. There is a legal and lawful solution for both of these flaws. The government can make these conditions mandatory in exchange for the public services it provides, and instead of twelve cases, the couple can grant an absolute right to divorce at the time of marriage.

In addition, the husband must also be able to obtain divorce by forgiving the dowry or a portion of it. As mentioned earlier, the philosophy behind the legislation of divorce in Islamic law is the same. In this case, the dowry is not used as a tool for pressuring or not divorcing and is taken away from the jurisdiction of the courts.

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It seems that the institution of dowry has now distanced itself from its original philosophy and is no longer seen as a gift for marriage, but rather as a display of social status or a tool for pressuring for divorce, or a means of providing future livelihood for the wife.

It is possible to secure the legal and religious rights of women by granting them equal divorce rights, implementing measures such as joint participation in providing for the household, and their involvement in the income generated from their businesses during marriage. Along with these legal measures, there is also a need for cultural initiatives to eliminate the social and class-based aspects of dowry and instead view it as a gift of love from the husband to the wife.

Notes:

1. The bee and the honeybee: a gift given out of generosity, and it is more specific than a gift, as every gift is a honeybee, but not every honeybee is a gift. Its derivation, as I see it, is from the bee, considering its action. It is as if my bee: I gave him the gift of the bee. This is what is indicated by His saying: “And your Lord inspired to the bee” [An-Nahl/68] … And it is called “sadaqah” (charity) from the perspective that it is not obligatory to give anything in return for it except for enjoyment without any financial compensation, and also the gift of a man to his son. It is said: he gave his son such and such, and he “nahalahu” (gave him a gift). And from it: I “nahaltu” (gave a gift) to the woman. Allah says: “And give

2. Khula divorce is when a woman, due to her dislike for her husband, obtains a divorce in exchange for the financial compensation she gives to her husband, whether it is equal to or more or less than the agreed upon dowry (Article 1146 of the Civil Code). Mubarat divorce is when both parties have mutual dislike, but in this case, the compensation should not exceed the amount of the dowry (Article 1147 of the Civil Code).

3. A woman can refuse to fulfill her duties towards her husband until she receives her dowry, provided that the dowry is currently due and this refusal will not result in the loss of her right to financial support (Article 1085 of the Civil Code).

4. “Anything that has value and is capable of ownership can be sealed with a contract (Article 1078 B.C.). The seal must be clearly identified between the parties until their ignorance is removed (Article 1079 B.C.). The determination of the amount of the seal is subject to the satisfaction of both parties (Article 1080 B.C.).”

5. Angels of Goodness, Spousal Support: A Comparative Study of Civil Law in Iran and Other Legal Systems, Book Garden, Qom, First Edition: 1371 (1992)

6. The Angels of Goodness, a five-part series titled “Passport of Women and Spousal Satisfaction; in Jurisprudence and Law”, on the website of Online Religion, April 4, 2016.