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WOMEN’S RIGHTS LAW REPORTER [Vol. 11:41 (1989)

estate for the amount.36 Each heir of the deceased is liable for the debt proportionate to his share of the estate.37

            The mehr debt is usually split into two parts, prompt and deferred.38 Prompt mehr is due immediately on consummation of the marriage; the wife can sue for prompt mehr while married and can deny her husband conjugal rights until the prompt mehr is paid. If it is not paid, she can apply for a dissolution of the marriage on this ground.39

            While the wife can demand prompt mehr at any time before or after consummation, deferred mehr is payable upon the dissolution of the marriage whether by death or divorce. The Koran does not state that the entire mehr must be given at one time.40 Death or divorce is considered a convenient point at which to give the deferred portion.41 Mehr is often set high to prevent the husband from divorcing the wife, in which case he will have to pay the amount stipulated in full and immediately.42 Generally, the deferred amount is a penal sum allowed to remain unpaid with the goal of compelling the husband to fulfill the terms of the marriage contract in its entirety.43

            Unlike ante-nuptial agreements, there is no mandate for financial disclosure as a prerequisite for the mehr debt in Shariat law or in the Dissolution of Moslem Marriages Act.44

            Although the Chaudry court held that mehr did not violate New Jersey public policy, properly understood mehr militates against the public policy of any modern state. Mehr is not a property agreement. Mehr is consideration for the surrender of the wife's virginity. It is consideration for the right of enjoyment of the wife's person, buza.45 The issue of consummation of the marriage is the focal point of the mehr debt, which becomes confirmed once consummation takes place. The amount is fixed by the families and relatives of both parties to the contract, either before, at the time of, or after the marriage, but not by the woman herself. The mehr amount can be based on the bride's social position, personal attractiveness, religious devoutness, intellectual achievements or in keeping with the mehr amounts given to her female paternal relatives.46

A marriage may take place without an antenuptial agreement but mehr is an essential element of a Moslem marriage.47 A stipulation by a woman, before her marriage, abandoning all right to dower is invalid and inoperative. However, a woman may release her husband from the mehr debt after the marriage if she chooses.48

            The mehr concept is linked to the status of women in Moslem society where marriage is not viewed as an equal partnership. The Moslem marriage is a civil contract, not a sacrament. Men of the Moslem Shia sect, for example, are permitted to contract a temporary marriage, muta, for a fixed period ranging from a day to a month or longer with a Moslem, Christian or Jewish woman. In such a case, the woman is entitled to only half her mehr if the marriage is not consummated.49 The Moslem husband has special rights of divorce unavailable to the wife. The wife has no grounds for divorce outside the provisions of the D.M.M.A.50 A wife who seeks an extrajudicial divorce from the husband, khula, would be compelled to relinquish her mehr as consideration for such release.51

            The mehr concept is based on the principle of sexual surrender by the wife, not on any voluntary and knowledgeable financial and legal agreement between equal partners in a marriage. The wife can deny her person to her husband until he

 36. Naeem Begum v. Alam Ali Khan, 1979 Allahabad L.J. 771. (The court held that @ 29(3) of the Indian Limitations Act of 1963 expressly saves a suit for recovery of dower brought under Moslem personal law from statutes of limitations).

37. Shaik Salma v. Mohammad Abdul Radar, 1961 A.I.R. 428 (Andhra Pradesh).

38. M. HIDAYATULLAH, supra note 6, at 308.

39. D. PEARL, supra note 4, at 196.

40. In India, it is customary to give half of the mehr upon consummation of the marriage.

41. See S. ALI, supra note 24, at 400.

42. Mohammed Bashir v. Walayat Begum, 1967 P.L.D. 391 (Lahore).

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

 44. VI INDIA CODE (Act NO. 26 of 1937) [hereinafter D.M.M.A.].

 45. See VI INDIA CODE (Act No. 25 of 1986) [hereinafter MUSLIM WOMEN'S ACT] and notes; see also V. IYER, THE MUSLIM WOMEN'S (PROTECTION OF RIGHTS ON DIVORCE) ACT (1987).

46. In Marina Jatoi v. Nuruddin K. Jatoi, 1967 P.L.D. 580 (S.C.), the mehr amount was settled after the extrajudicial divorce, talak, was pronounced.

47. S. ALI, supra note 24, at 395.

48. Usually, a woman releases her husband from his mehr obligation in return for a divorce. See S. ALI, supra note 24, at 391.

49. M. HIDAYATULLAH, supra note 6, at 293.

50. Supra note 44, at @ 2.

51. Ghansi Bibi v. Ghuiam Dastigir, 1968 Mysore L.J. 566.