The Concept of Maintenance under Muslim Law

Introduction

 Maintenance is known as “Nafqah” which means what a man spends on his family which includes food clothing and lodging. The concept of maintenance was introduced to provide support to those people who are not capable to maintain themselves the principle of maintaining these include financial support means of livelihood and educational facilities. In marriage, the husband should maintain the wife and provide her with all necessities. The whole concept of maintenance is to protect the rights of wife and protect her a dignified life and even after dissolution of marriage the husband is in the liability to provide maintenance to his wife if she is not able to maintain herself. It is not only provided to the wife but also to children parents grandparents and grandchildren and other relation by blood. The amount of maintenance depends on the financial position of the person who is bound to provide maintenance. Under Muslim law women are considered be as compared to men. It is believed that they are not able to maintain herself on her so it is the liability of the husband to provide maintenance to wife in all conditions even if she is capable of maintaining herself. As per the rule except for the only wife and minor children The Other relations Which are which are not entitled for maintenance. But each Muslim is bound to provide maintenance for the ancestors and the descendants . And he’s also entitled to obtain maintenance from their as well provided that the person who has provides maintenance and should not be poor.

Who are entitled for maintenance

• The wife
• The children
• The parents and grandparents
• The other relations

Maintenance of wife

Under Muslim law men’s are considered as superior to women and women in all cases is considered to be dependent on men. It is the liability of husband under Muslim law to maintain his wife even after divorce. The husband obligation to provide maintenance to the wife starts by the wife has attained 15 years of age not before.

 It is the obligation of the husband to provide proper maintenance to his wife in all circumstances whether he is in good financial condition or not. His obligation to provide maintenance is even after the dissolution of marriage. Whether a wife is a Muslim or a non- Muslim, rich or poor, healthy or unhealthy she is entitled to get maintenance from husband in all circumstances. The wife has absolute right to get maintenance.

Quantum of maintenance

The quantum of maintenance is not prescribed under any matrimonial statute. It is decided as per the discretion of the court depending upon the condition of husband and wife.

 In addition to provide maintenance the husband is obliged to give other contracted expenses such as Karachi-I-pandan and Meva- kohri etc. to the wife.

 Under what circumstances does the wife is not entitled to get maintenance?

• If marriage is irregular or void
• if she announces marriage life without any valid reason
• if she does not obey husband reasonable order
• under Shia law the wife of the muta is not entitled to get maintenance
• If wife refuses to stay with husband without any valid reason If she gets sentenced to imprisonment
• if her age is less than 15 years i.e she has not attained the age of puberty.

But wife can claim maintenance Even if she disobeys her husband

• if the husband keeps a concubine
• If the husband is guilty of committing cruelty towards his wife
• If the marriage cannot be consummated owing to his illness, malformation his absence from wife without her prior permission or the husband has still not attained the age of puberty.

Pre nuptial agreement

 If wife has made conditions before the contract of marriage that in so and so conditions she would be entitled to live separately and can claim maintenance against husband the condition could be that

• the husband will not illtreat her or
• take a second wife or
• keep a concubine
• the wife is also entitled to a special allowance called Kercher iPad an if it is stipulated in pre nuptial agreement.

Divorced wife right to maintenance under Muslim law and section 125 of CrPC

 Under Muslim law the rights of the wife to get maintenance during the marriage is absolute but after the dissolution of marriage her rights are limited. She is entitled to maintenance from husband after diverse is only till Iddat period ( Iddat is a period of three menstrual courses aur three lunar months). Muslim law does not provide maintenance to wife after Iddat period is over. In Hanafi school of Law a divorced Muslim wife is entitled to maintenance during Iddat period whereas in Shefai law a divorced muslim wife is not even entitled to maintenance.

This creates hardship for Muslim wife as under Muslim law it is very easy for men to give divorce to his wife as the law allows him to marry thrice but Muslim woman does not have any proper mean for herself in Muslim law. If after the expiry of Iddat period he has no means to maintain herself then in that case husband has no liability for her and she is left with nothing.

Section 125 of CrPC provides for maintenance to divorced wife of all religion

• It stated that after divorce if the wife is not able to maintain herself she is entitled to maintenance from her husband until she gets married again.
• The legitimate or illegitimate minor( married or unmarried both) who are not able to maintain themselves.
• The legitimate or illegitimate major child with physical or mental injury due to which she/ he is not able to maintain itself ( married daughters are not included in this).
• Father or mother who are not able to maintain himself or herself.
• The act applies this provision to Muslim women also who are not entitled to the maintenance after the period of Iddat. This act creates liability over husband to provide maintenance to wife even after the period of Iddat.

Interim maintenance and expenses of litigation  also include ( should be given under 60days of from the date of service of notice)

It is a secular provision governing maintenance laws across all personal laws.

But this provisions of this act are in conflict with the provisions of Muslim law and a debate was going on as which law should be applied. This matter was seen by the supreme court in a very famous case

Shah Bano vs Muhammad Ahmad Khan.

Facts Shah Bano Begum A 62 year old lady fill a petition under section 125 of CrPC before Judicial Magistrate of Madhya Pradesh. The petition stated that her husband has pronounced Talaq to her and she has not even remarried and thirst she was entitled to maintenance. For which her husband had stated that he had no liability to provide maintenance to her as under Muslim law a divorced wife has no right of maintenance after Iddat period.

 The magistrate in this case passed an order stating that the husband is entitled to provide her maintenance of rupees 25 per month as per section 125 of CRPC. Shah Bano filed a revision petition against this order in the high court of Indore for enhancement of the amount of maintenance for which Indore High Court has enhanced the amount of maintenance to rupees 179.20 per month.

Against this order Mohammed Ahmed Khan appealed to the supreme court .

Held Supreme Court rejected the appeal and stated that Muslim wife is entitled to maintenance even after the period of Iddat if she is not able to maintain herself.

This judgement even increased the controversy as a result of which the legislature have to make a new law to govern Muslim divorce i.e  Muslim women (protection of rights on divorce )Act 1986 This act has enacted some provisions in support of Muslim personal law and has restricted the application of section 125 of CrPC regarding the maintenance of Muslim wife. The act has stated that the husband is entitled to provide maintenance only during the period of Iddat and not beyond that. If the wife is not able to maintain herself after Iddat period then in that case she can seek maintainance through wakf Board or relatives of her or her husband. This act has not mention anything clearly and has created various confusions in the judicial system and was considered as vague.

 This confusion of this act has been solved by the Supreme Court of India in the below case i.e

 Daniel Latifi vs. Union of India AIR 2001 SSC 958

 Writ petition was filed challenging the validity of an act for which the court has stated as under

• as per section 3 of the act, Muslim husband is entitled to provide fair and reasonable amount of maintenance to his wife and has to make proper arrangement for her maintenance after divorce
• Muslim husbands liability under this act is not limited to Iddat period. He has to make arrangement for her maintenance after the divorce
• a divorced woman is entitled to maintenance under Section 4 of this act from her relatives who are entitled to her property after her death.
• if her relative are not able to maintain her then in that case Wakf board has been created by this act who will take care of the maintenance of such women.
• The magistrate can direct this board to pay maintenance to them The Supreme Court on the basis of the above point has held the act constitutionally valid.

 Maintenance of children

Children are the responsibility of their parents and they should be taken care of. They are entitled to proper and adequate maintenance from their parents and specially the father. As under Muslim law men are considered as superior and are in the obligation to maintain his family, and maintenance of the child is his primary responsibility.

• According to Wilson the son is entitled to get maintenance from his father until he gets the age of majority under the Indian majority act.
• According to Mulla and faizi, the son is entitled to get maintenance from his father untill he get the age of puberty.
• The father is responsible for maintenance of his daughter until she gets married.
• Widowed or divorcee daughter is also entitled to get maintenance from her father.
• Father is not bound to maintain his son or unmarried daughter if they refuse to live with him without any reasonable cause.
• Under Muslim law father is under no obligation to maintain his ill legitimate child.
• Under section 125 of crpc if the father has sufficient means, he’s under obligation to maintain his child whether legitimate or not.

Mother obligation to maintain her child arises when the child is ill legitimate and husband has refused to maintain the child.

• But under hanafi law if the father is poor and the mother is rich in that case it is the obligation of the mother to maintain the child. However she can recover the money when husband gets into the condition to repay it.
• Under Shefai law even if the father is poor and mother is rich then the mother is not obliged on maintaining her child dot in that case it is the obligation of grandfather to maintain the child.

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Author: Simran Verma (Delhi Metropolitan education, GGSIPU). The views are personal only.