Maintenance of Muslim Children

By | May 23, 2020
Maintenance of Muslim Children

Maintenance of Muslim Children | Overview

Islam takes into consideration the maintenance of Muslim children. There is a duty on the parents to provide the child with the necessities of life. But a lacuna arises when it comes to the maintenance of an illegitimate child. There is no specific provision in Islamic texts that state the right of an illegitimate child.

The father is duty-bound to maintain a son until he attains puberty and in the case of a daughter, she is to be maintained until she does not marry someone legally. The mother’s responsibility also comes into play when the father is not capable enough to support the child. Further, the liability also arises on the grand-parents when neither of the parents is fit for maintaining the child.

Introduction to Maintenance of Muslim Children

A child is the product of a fruitful relationship between two individuals. A child is not only a mere addition to the family but support and a successor to the parents, a cause of satisfaction to the grand-parents, and a source of companionship to the siblings. Children are considered precious and especially in Islam, children are compared to wealth and further as adornments of the worldly life. It is stated in the Quran that: “Wealth and children are allurements of the life of this world.”[1]

Children, not only of humans but all the organisms in the world, are weak both physically and mentally in their initial years. Till the time they do not attain puberty, they cannot maintain themselves independently. Hence, the welfare and the growth of the child depends on the family. So that the parents don’t by-pass this responsibility and waive off this right of theirs, all the legal systems of the world including Islam, have laid down some rights of the children and with that some duties and obligations of the parents that is essential for the development of the child. The most essential right to a child is the financial right.

When it comes to maintenance, children get priority over their parents. The definition of maintenance in Islamic law means providing basic amenities such as food, clothing, and shelter.[2]  Muslim jurists are unanimous that the children are and should be entitled to maintenance under the tenets of Muslim Law. They base this argument relying on the relationship of kinship (qarabah) that is based on blood relations and lineage.

There are three grounds through which one can claim maintenance in Islam (children, marriage, and ownership of slaves). This is listed in the Quran and Sunnah. It the Quran it is said,

“The mother shall give suck to their offspring for two whole years if the father desires to complete the term. But he shall bear the cost of their food and clothing.[3]

The above verse states that the father is not only obligated to maintain the wife, but also the children. This is so as the mother maintains the child through the means of sulking. Hence, the father is responsible for the maintenance of the infant child. Further, the mother holds no responsibility to suckle the child at the breast. It becomes the duty of the father to appoint a wet-nurse to provide nourishment to the child, who stays near or with the mother. The husband cannot hire the mother of the child for this purpose but is entitled to hire another wife for the same purpose.

Maintenance – Legitimate or Illegitimate Child

There is no specific provision which deals with the maintenance of an illegitimate child, however, there is no prohibition either. Mohammedan Law considers an illegitimate child to be filius nulliu (a son of nobody, illegitimate son) and owes no nasab to either of the parents.

For a child to be legitimate according to the provisions of the Muslim Law, the child must be the offspring of either the man and his wife or the man and his slave. A child not falling in either of the categories is considered the offspring of “Zina”. That means illicit connection and hence is considered to be illegitimate.

There is no obligation on either the mother or the father to maintain an illegitimate child. But, in Hanafi school, the parents are to maintain and nurture the illegitimate child till the age of seven; the Shias to the contrary hold no obligation on the parents.

Even though Muslim personal law waives off all responsibility from the head of the father for maintaining the illegitimate son, it seems that Section 125 of the Criminal Procedure Code, 1973, does protect the interests of an illegitimate child. It states that a child is to be maintained by the father, regardless of the child being legitimate or illegitimate. Even if the mother decides to renounce the child, the father is bound to pay for the maintenance of the illegitimate child.

The Court held in the case of Sukha v. Ninni[4] that, “An agreement to maintain an illegitimate child, for which the Mohammedan Law as such makes no provision, will in my opinion not have the effect of defeating the provisions of any law. As a matter of fact, maintenance of illegitimate children has been statutorily recognized under Section 125 of the Criminal Procedure Code of 1973 in our country and it is in consonance with this wholesome policy that the offsprings born under such circumstances are to be provided for and should not be left to the misfortunes of vagrancy and its attendant social consequences.”

However, the Kerala High Court in the case of Pavitri v. Katheesumma[5] talked about the maintenance of an illegitimate child born to a Muslim father and Hindu mother. It was questioned whether the child is entitled to the maintenance against a putative father or his assets. The court held that there is no burden whatsoever on the father of an illegitimate child.

It was further noted by the Court that, “whether the principles of Hindu Law apply or whether the principles of Muslim Law apply, the plaintiff in this case who was an illegitimate daughter born of a Mohammedan male and a Hindu female was not entitled to claim maintenance from the putative father or from the assets left by him apart from any rights that may have been conferred on her by Statute (Cr P C). Since the plaintiff had not based her claim upon any statutory right her suit for recovery of maintenance from the assets of her putative father was bound to fail.”

Duty of Father

The father under the Mohammedan Law is under the obligation to maintain his son till he attains the age of puberty and his daughter till the time she doesn’t get married. He cannot bypass this responsibility on the pretext of his pecuniary incapacity so long as he is no longer capable to earn or his obligation is shared by someone else. He has to maintain the child even if it is under the custody of the mother. In such circumstances, the court orders the wife to receive money on the credit of the husband. The duty to maintain is exhausted from the father if he is incapable to maintain and then it shifts to the mother and the grandfather. The father has a reasonable ground to refuse to provide for the maintenance, if the child refuses to reside with him, without any reasonable justification.[6]

Right to be maintained by the father when the child is in the custody of the mother

If the child has been kept in the custody of the mother if he has not attained the age of majority and does not have free will, then the child cannot be held at fault and therefore the child does not disentitle itself from procuring maintenance from the father. In the case of Akhtari Begum v. Abdul Rashid[7], the child in question was a four-year-old who was in the custody of the mother. It was held that the father is liable to maintain the child. The girl child is to be maintained until the time she does not marry legally.

Duty of the Mother

The duty of the mother to maintain the child only arises when the father is necessitous and she is financially capable to maintain. However, the position of the mother is dicey when it comes to Muslim Law. Some believe that it’s the grand-father alongside the mother who has to provide for the maintenance of the child while some state that is it the mother’s responsibility to maintain the child.

According to the proponents of Shia Law, if the father is unable to provide the maintenance, the liability shifts to the nearest paternal grandfather. Then the onus is on the mother to provide for maintenance. The responsibility further shifts to the maternal grandparents if the mother is incapable or dead.

Duty of the Grand-parents

The duty to maintain a child shifts to the grandparents only if both the father and the mother of the child are dead or if the father is declared necessitous. However, maintenance can only be provided to a child who has no property. If the child has some property to its name, then the grandparents can be reimbursed form that very property for the maintenance provided to the child.

With respect to the tenets of Muslim Law, the right of a child and a grandchild to obtain maintenance ceases as soon as the child reached the age of puberty except for certain circumstances. According to the Mohammedan law, Minorities terminates at the attainment of puberty but according to the Majority Act, the majority is obtained at the age of 18.[8]

Conclusion

Thus, from the above article, it can be stated that the maintenance provisions of Muslim Law are different from other personal laws. Islamic law in general has clearly outlined the role of a father in providing maintenance to his children. This role extends to other family members when the father is incapable or dead. The outlined roles and responsibility for children’s maintenance reveal that Islamic law emphasises family responsibility in protecting children, especially in cases when they have no property or are incapable of earning a living. At the same time, Islamic law safeguards children’s rights to education.

In addition, the rights of disabled children to maintenance are also ensured. The extent of the duty of a father and family members to maintain children, and the extent of the eligibility of children to maintenance, are also dealt with by written laws of many Muslim countries.


References

[1]Surah Al-Kahf, Al-Quran Q18:46.

[2]  Ahmad al-Ghundur, Al-Ahwdlal-Shakhsiyyahfi al-Thasri al-Isldmi, 424 (4th ed., 1992).

[3] AI-Qur’dn, SurahAl-Baqarah Q2:233.

[4] Sukha v. Ninni, AIR 1966 Raj 163.

[5] Pavitri v. Katheesumma, AIR 1959 Ker, 319.

[6] Baya Bai v. Esmail Ahmad, AIR 1941 Bom. 369.

[7] Akhtari Begum v. Abdul Rashid, AIR 1937 Lah. 236.

[8] Indian Majority Act, 1875, §3.


  1. Minor and Guardianship under Muslim Law
  2. Principles of Inheritance under Muslim Law

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