Mahr | EssayIvy.com

Introduction

There are approximately 6-7.5 million Muslims in the United States who identify as

Americans

.This has promoted the use of Shari’a law as a source of law in the American Courts.

There is, however, a very evident rift regarding the constitutionality of anti-Shari’a laws. This is

because supporters of this notion claim that legislation against these laws would help to promote

and safeguard fundamental American values of liberty and freedom thus protecting the

constitutional rights of Muslims residing in America. On the other hand, supporters of the use of

Shari’a law in the American court system claim that a ban would directly infringe on the civil

liberties and religious freedoms of Muslims

. Shari’a law pertaining to marriage in particular has

often caused discord in American courts when it conflicted with state and federal law. Mahr has

been commonly used by one of the parties in the marriage as a tool of bargaining power in

negotiations about property and estate division and contractual obligations to the family

. Mahr

agreements are treated as contracts and as such the parties involved are bound by the terms

stipulated

in the agreement. This proves a problem as many contract laws are subjugated by the

peril of generalization thus not offering clear distinction when it comes to specific matters on

contract law

. This leaves Mahr open to individual interpretation by American jurists who are not

proficient in Islamic law which inevitably leads to faulty elucidation

. The primary thesis for this

Huda Qamar-al, United States Institute of Peace: Special Report, USIUP, Feb 2006, 1.

Kim Katherine Eun-Jung, Islamic Law in American Courts: Good, Bad, and Unsustainable Uses, Notre Dame Journal

of Law, Ethics & Public Policy Vol 28 287, 288.

Fournier Pascale, Flirting With God in Western Secular Courts: Mahr in the West, International Journal of Law,

Policy and the Family, Vol 24 67, 67.

Oman B. Nathan, Bargaining in the Shadow of God’s Law: Islamic Mahr Contracts and the Perils of Legal

Specialization, William and Mary Law School Research Paper No. 09-46 2, 3.

Sizemore A. Chelsea, Comment: Enforcing Islamic Mahr Agreements: The American Judge’s Interpretional

Dilemma Summer 2011 2, 2-3.

U.S. CONST. amend. I

Laluddin Hayatullah et al., The Contract of Marriage and Its Purposes from Islamic Perspective, Asian Social

Science Vol 10, ASS 139, 140.

research paper is that for Mahr to be used in the American court system, it must conform to state

and federal law concerning estate division, and in the event that it doesn’t should be promptly

disregarded. This is with a view to promoting the basic functions of law; fostering fairness in the

society and preservation of human rights.

Basic concepts in Islam

Contextual background

The American constitution protects the fundamental right of every citizen to freely practice their

religion. ‘Congress shall make no law respecting an establishment of religion’

. This rudimentary

principle accords Muslims in America the right to use Mahr under Shari’a law as a contractual

marriage condition. Marriage in the Islam faith is highly regarded and viewed as the key to social

harmony,

‘The worth and significance of the institution of marriage is evident from the fact that it

provides a healthy environment for the maintenance of cordial relations between the

spouses and reciprocal love between them. It also helps one to maintain his/her chastity

and guard him/herself against committing the prohibited acts. Likewise, it represents the

best means of reproduction, multiplication and preservation of the family lineage’.

The Quran clearly reaffirms this in scripture

"O' mankind! Have consciousness of your Lord who has created you from a single soul.

From it He created your spouse and through them He populated the land with many men

and women. Have spiritual awareness of the One by whose Name you swear to settle

your differences and have respect for the wombs that bore you. Without doubt, Allah

(SwT) keeps watch over you all."(Surah 4, Verse 1)

Marriage is Islam is mainly a contractual agreement with the guidelines stipulated in Shari’a law.

Some of the guidelines include consent of both parties, presence of guardians, presence of two

witnesses, offering mahr

. Mahr is monetary or possession given by the groom to the bride as

security during the marriage and in case of divorce. ‘The mahr is meant to offer the bride a

financial security within and after the marriage. It is a divine order by the Almighty Allah’

More often than not, mahr has been used by husbands to unfairly give them an upper hand to

waiver their financial responsibility to their families after divorce. The wife isn’t usually

involved in mahr agreements and as such do not have any say in what their compensation should

be in the case of divorce

. This is legally unacceptable as in the case of marriage the parents act

as agents of the wife thus any agreement on their part should not be binding to her. ‘For a valid

contract to exist there must me mutual assent, offer, acceptance and consideration’

. It clearly

puts the women at a disadvantage as they are unaware of their fate in case of a divorce. On the

other hand, some women use mahr as a way to enrich themselves in case of divorce

The role of law in Islam

THE QUR’AN, 4:1 (Abdullah Yusuf Ali trans., 7

Am ed., Tahrike Tarsile Qur’an 2001)

See supra note 7 at 139

Ahmad Sahid Syed, A Critical Analysis of Dower (Mahr) in Islam, IOSR Journal of Humanities and Social Sciences,

IOSR-JHSS Vol 21 86, 86.

Blenkhorn E. Lindsey, Islamic Marriage Contracts in American Courts: Mahr Agreements as Prenuptials and Their

Effect on Muslim Women 189, 191

Husna Obaidi v. Khalid Qayoum, 154 Wash App. 609, 27616-3-III (2010)

Bani Mohammed Bawal & Pate A. Hamza, Dissolution of Marriage (Divorce) Under Islamic Law, Journal of Law,

Policy and Globalization, IISN Vol 42 138, 142.

Krawietz Birgit & Reifeld Helmut, Islam and The Rule of Law: Between Sharia and Secularization, Implenium 9, 9

See Id at 19

See Supra note 11 at 192

Al-Hibri Y. Azizah, Muslim Marriage Contract in American Courts, Minaret of Freedom Banquet

Modern law has distinctively differentiated state law from religion. This is not the case when it

comes to Muslim states who try to integrate religion and law. Shari’a which is the religious law

is incorporated with state law (qanun) differently from one country to another

. Shari’a law

encompasses matters pertaining to social decorum, governance and worship of Allah

. Family

law is however considered to be the ‘heart of shari’a’

. Some of the issues it deals with are

marriage and its preludes, divorce and inheritance. Shari’a laws are derived from the Quran

giving them divine implications in the Islam faith. It is, however, important to clearly distinguish

between cultural practices and beliefs and Islam

Brief introduction to Islamic marriage law

Marriage is an institution which legalizes the sexual relations between man and woman so as to

preserve the human species, the growth of descent, promotion of love and union between the two

parties and the mutual help to earn livelihood

. Marriage in Islam goes against norms set by

other religions. This is because to them marriage is mainly a contractual obligation whereas in

other religions such as Christianity and Hinduism it is viewed as a sacrament

. Most laws

Fitzgerald, Concept of Marriage Under Islam, 68

See Id

Gerli Allison, Living Happily Ever After in a Land of Separate Church and State: Treatment of Islamic Marital

Contracts, Islamic Marital Contracts Vol 26 113, 113

In the book Introduction to the Holy Quran, Abd Al-Rahman Doi explains Nikkah as ‘conjunction or uniting. In the

Islamic legal system it implies a marriage contract in the presence of a minimum of two males.’ When translated

directly from Indonesian it means marriage.

See Supra 19 at 153

Al-Hibri Y. Azizah, Muslim Marriage Contract in American Courts, Minaret of Freedom Banquet

See Id

The ‘Holy Prophet’ refers to the Prophet Mohhamed, founder of the Islam faith. Muslims consider him to be

God’s messenger and prophet. ‘SAW’ is a standard Muslim expression of love and respect for the prophet. It

means ‘May Allah’s blessings and peace be upon him.’

See Supra note 13 at 138

See Id at 138

See Id at 138. Talaq when directly translated into English means to untie or free.

See Id at 138

appertaining to marriage in the United Stated are drawn from English laws which have their

roots in the Christian faith

. This makes it more difficult to integrate shari’a laws in the

American court system. It also discourages legal professionals from comprehensively studying

the topic as they will probably never have to refer to it.

Marriage in Islam is known as nikkah

. As marriage is merely a contractual marriage

the basic

essentials of a contract are required to make the marriage valid; in this case those essentials are

your name and the name of your spouse, the names of two witnesses, the name of the imam, the

amount of the mahr

. Modern contracts allow the parties to add any expectations that they may

have of their partner in the marriage

. Mahr is initially meant to be a gift from the groom and his

family to the wife and not as a means of buying her off

. According to Shari’a, mahr is to be

paid in two instalments: muqaddam is to be paid upon marriage as a tribute to the wife while

mu’akhkar is the postponed dower that is paid in full if the husband dies or in the event of

divorce to provide for the wife

(mahrasprenuptialspg201). The deferred dower is the part that

most American courts have failed to distinguish from prenuptial agreements.

Different types of divorce

Divorce is looked down upon especially in the Islamic faith with the Holy Prophet (SAW)

saying that of all things permitted by law divorce is the worst.

. The basis for divorce in Islam is

incompatibility of the spouses and inability to cohabit

. There are three types of divorce in

Islam: talaq

is when a man initiates divorce, li’an is when a man accuses his wife of adultery

and khul’I is when a wife initiates divorce

. Payment of mahr is heavily dependent on whether

the couple had consummated their marriage at the time of divorce and on who asks for the

divorce

Talaq is a manifestation of the patriarchy present in Islam customs pertaining to marriage. This is

because the husband has absolute power to end the marriage without causal circumstances

driving his decision

. Different schools of Islamic law interpret talaaq in their own way.

According to some Sunni

schools of jurisprudence each pronouncement of talaaq should be

followed by a waiting period of three iddah

in which efforts to rekindle the couple’s

relationship are permitted, either by the couple themselves or the relatives. Engaging in sexual

relationships in this waiting period is prohibited and in case it happens is considered as an act of

reconciliation by the couple

. The Hannafi School however allows the practice of triple talaq

where the husband is permitted to declare divorce thrice in one sitting so as to permanently

divorce with wife

Khul’i is considerably harder to carry out compared to talaq. This is because women are

supposed to have substantive claims as to why they want to get divorced

. In many cases she is

compelled to return her repay her dowry and marriage expenses

and release custody of the

children to the husband

. It is clear that the Islamic system of divorce is biased towards the

husband’s favor. This mainly stems from misquoted interpretation of the Quran which gives both

See Supra note 13 at 138

Sunni is one of the main factions of Islam belief whose disciples follow the Prophet Muhhamad’s way of life.

Iddah is the period that a woman must wait after her husband’s death or divorce before remarrying. The

purpose of this period is to ensure that she wasn’t expectant and if she was to know the child’s father. The iddah

of a divorced woman is three months if she was not pregnant but if she is the iddah lasts until childbirth.

See supra note 13 at 138

See supra note 13 at 141

If the child is over seven years custody automatically goes to the father. In case the mother is granted custody

she lives with the child until he/she is seven years old then they go to the father.

And in no wise covet those things in which Allah Hath bestowed His gifts More freely on some of you

than on others: To men is allotted what they earn, and to women what they earn: But ask Allah of His

bounty. For Allah hath full knowledge of all things. (Surah An-Nisa’ , 32)

men and women equal status but differentiates their roles

. On expounding these roles, men

deem themselves more important as their roles are seen to be given more importance.

Islamic marriage contracts in American courts

Marriage in America is governed by both state and federal laws. This is because the tenth

amendment

clearly states that powers not responsibilities not exclusively given to the United

States or prohibited to the states are accorded to the states. Individual states are allowed to have

their own marriage laws but the federal government is able to interfere with these laws in matters

regarding interstate commerce or matters within the Bill of Rights. As a result of evident

remnants of the influence of the perception of Christian marriage on marriage laws in America

it has been difficult to integrate concepts of marriage from other faiths into the American courts.

Divorce has become prevalent in the United States with approximately 42% of marriages that

take place between the ages of 15 and 46 ending up in divorce by the age of 46

. This trend also

applies to Islamic marriages as statistics showed that as of 2010, 21.3% of Muslim marriages in

the United States led to divorce

. With such a large number it is crucial that American courts

understand all issues pertinent with Islamic marriage so as to enable them to make competent

rulings when it comes to these divorce cases. Divorce in Islamic marriage is particularly messy

when it comes to estate division as Shari’a laws do not offer fair compensation of both parties by

dividing assets equally. Each party leaves the marriage with their own personal property

. This

often puts the Muslim women at a grave disadvantage as their role as the caretaker in the home

often leads to them becoming stay at home mothers.

See Supra note

labour and statistics bookmark

Muslimmarriagesinwesternworld pg53

rules on divorce

Analysis

With mahr agreements being prerequisites to marriage

, their value is set at a time when

nobody is sure of future financial situations either within or outside the marriage. Most American

courts misinterpret mahr agreements as prenuptial contracts

leading them to making decisions

from a point of misrepresented facts. Prenuptial agreements by definition are for the purpose of

property distribution, alimony and other financial matters to take part in the event of divorce

This is clearly different from the purpose of mahr and yet jurists in America still impose it as one

as a result of viewing it as foreign and incomprehensible.

In other cases mahr is used by materialistic women to exploit men by claiming high amounts of

mahr

and asking for divorces after consummation of marriage

. These appalling incidences

plainly show how much mahr has been misused by parties in court and how the legal system has

taken minimal action to remedy its occurrence.

i. Husbands invoking the marriage contract in American courts

Mahr has more often than not been used by men as a means of absolving themselves from the

pecuniary duty of maintaining their wives after divorce

(mahrasprenuptialspg201). This is

because they pay a onetime predetermined amount instead of regular payments as is more

common in alimony agreements

(alimonypaymentrulesbookmark).

mahrasprerequisite

mahrasprenuptials

premarital agreements

Mahr can only be paid in case of divorce if the couple had sexual relations before they split up.

In the case of Parveen Chaudry v. Hanif Chaudry

the husband (Haniff) invoked the mahr

agreement they had signed as they got married in Pakistan in a New Jersey court. The judge held

the decision to uphold the terms of the mahr agreement signed under their Pakistan marriage

contract. This left Parveen without any alimony or child support from her psychiatrist husband

whom she had devoted fourteen years to.

In stark contrast to the decision of this court was the case of Ahmad Shaban v. Sherifa Shaban

In this case the husband (Ahmad) is still the party that invoked the mahr agreement as stipulated

in their marriage contract that was signed in Egypt. The court revoked his submission of the

mahr agreement as it could not be described as a prenuptial agreement thus making him bound to

give her an equal share of his estate and pay attorney fees.

The rulings of the cases depict utter discrepancies despite having similar circumstances. In the

case of Ahmad v. Sherifa the court

Chaudry case

Ahmad case

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