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THE PERSONAL LAWS OF DIVORCE IN INDIA

negotiated and the marriage took place."18 (emphasis added).

            Thus the court did not interpret or apply New Jersey law because it interpreted mehr to be a freely negotiated ante-nuptial agreement, and its enforcement did not violate New Jersey public policy. The Chaudry court erred on both grounds.

            The history and rationale of mehr and the interpretation given to the term in traditional Moslem religious law, Shariat, are in marked contrast to the ante-nuptial agreement in the United States. In DeLorean v. DeLorean,19 the court defined the ante-nuptial agreement as an agreement intended to deny a spouse an interest in the assets held in the sole name of the other which the former would ordinarily receive by operation of law when the marriage ended. In DeLorean, as well as in Marschall v. Marschall,20 the court cited two requirements for judicial recognition of the agreement: (a) full and complete disclosure of the income and assets to the plaintiff spouse at or before signing the agreement, to fulfill the "voluntary" nature of any waiver of legal and financial rights; and (b) the agreement must not be unconscionable in providing the spouse with a standard of living far below that which would have been enjoyed both before and during the marriage. The defendant has the burden of demonstrating that such disclosure was made.21

            In Marschall, the court granted pendente lite alimony to the plaintiff wife until such time as the defendant husband could demonstrate that he made full disclosure.22 The DeLorean court noted that in accordance with California law, where the marriage and the agreement were executed, both spouses had a duty to make some inquiry to ascertain the full nature and financial resources of the other. The court found the defendant husband's disclosure sufficient for purposes of enforcing the agreement.23 Mehr does not meet either the above definition of ante-nuptial agreement, or its requirements.

            Under Moslem law, the property of husband and wife remain separate and distinct throughout the marriage.24 A Moslem husband gains no right in his wife's property by marriage.25 On the death of the husband, neither the wife nor even all four of the wives26 can inherit more than one-eighth or one-fourth of the estate left by him, depending on whether there are any children. A Moslem cannot will more than one-third of his estate to an heir. The remainder of the deceased's estate, after all shares or residuaries are paid, does not go to the widow.27

            Unlike an ante-nuptial agreement, the mehr amount is an unsecured debt which, though payable on marriage, may be fixed or increased after the marriage.28 A high mehr may be publicly proclaimed, for the prestige of the bridegroom, mahr i talji'i, with no intention of paying such an amount, while settling the actual smaller amount privately, or leaving it undetermined.29 The priest, kazi, can reduce an exorbitant mehr debt30 and a maximum may be placed on the amount.31 Under traditional Moslem law, a minimum of 10 dirhams or its equivalent in the country's currency was levied, which is about 40 cents.32 This ceiling is presumed in law when the amount is not clear from the record. The mehr must be of such an object as is religiously permissible, e.g., instruction in the Koran has been held valid, but not a bottle of wine.33

            Unlike an ante-nuptial agreement, the mehr is to be paid apart from the wife's legal share of her husband's estate.34 If a widow is treated badly by her relatives and ejected from the home, she is entitled to her mehr as well as her legal share of the inheritance.35 If the mehr is not paid, the wife and her heirs may sue the husband or his

18. Id. at 577-78, 388 A.2d at 1006.

19. 211N.J. Super. 432, 440, 511A.2d 1257, 1261(Ch. Div.

1986).

20. 195 N.J. Super. 16, 477 A.2d 833 (App. Div. 1984).

21. DeLorean, 211 N.J. Super. at 437, 511 A.2d at 1259. See

Marschall, 195 N.J. Super. at 31, 477 A.2d at 840.

22. Marschall, 195 N.J. Super. at 34, 477 A.2d at 842.

23. DeLorean, 211 N.J. Super. at 441, 511 A.2d at 1262.

24. 2 S. ALI, MOHAMEDAN LAW 430 (7th ed. 1928).

25. M. HIDAYATULLAH, supra note 6, at 280.

 26. Islam permits polygamy. See M. HIDAYATULLAH, supra note 6, at 285.

27. Id. at 65.

28. Kumarunnissa Bibi v. Hussaini Bibi, 1881 Indian L.R. 266(Allahabad). See S. ALI, supra note 24, at 397.

29. S. ALI, supra note 24, at 394. See T. RAHMAN, A CODE OF MOSLEM PERSONAL LAW 232 (1986).

30. T. RAHMAN, supra note 29, at 232.

31. See generally D. PEARL, A TEXTBOOK ON MUSLIM LAW (1979).

32. T. RAHMAN, supra note 29, at 219; S. ALI, supra note 24, at 398.

33. T. RAHMAN, supra note 29, at 219; S. ALI, supra note 24, at 398.

34. Sultan Begum v. Sarajuddin, 1936 A.I.R. 183 (Lahore).

35. S. ALI, supra note 24, at 400.