Maintenance of wife and children under Muslim Law

By | May 21, 2018
Maintenance under Muslim Law

1. Introduction

The concept of Maintenance was introduced to provide support to those people who are not capable to maintain themselves. It is basically provided to the spouse who is not independent and is dependent on the other spouse. The principle of maintenance includes financial support, means of livelihood and educational facilities.

In marriage, it is the obligation of the husband to maintain the wife and to provide her all necessities. The whole concept of maintenance is to protect the rights of the wife and to provide her a dignified life and even after the dissolution of marriage, the husband is in the liability to provide maintenance to his wife if she is not able to maintain herself. The concept of maintenance has broader aspect. It is not only provided to the wife but also to children, parents, grandparents, grandchildren and other relations by blood. The amount of maintenance depends on the financial position of the person who is bound to provide maintenance.

Various laws and rules have been made on the principle of maintenance. The concept of maintenance has also been added to personal laws. The Muslim Law also provides for maintenance. Though Muslim Law does not properly define maintenance, its meaning has been inferred from Hindu Law which provides that:

“in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; in the cases of an unmarried daughter, also the reasonable expenses of and incident to her marriage.”

Under Muslim Law, women are considered weak as compared to men. It is believed that they are not able to maintain herself on her own so it is the liability of the husband to provide maintenance to her wife in all conditions even if she is capable of maintaining herself. Maintenance is known as “Nafqah” which means what a man spends on his family.  Nafqah basically includes food, clothing, and lodging.

The Muslim Law of maintenance may be discussed from the point of view of the persons entitled to maintenance. Such persons are:

  1. The Wife
  2. The Children
  3. The Parents and Grandparents
  4. The other relations.

But under Muslim Law, maintenance is provided to wife even if she is capable of maintaining herself which differs it from other laws. But in case of Maintenance to Children, Parents and other relations, it is given only when they are not able to maintain themselves. Here, we are going to discuss the maintenance of wife and children under Muslim Law.

2. Maintenance of wife

Under Muslim Law, as discussed above men are considered 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.

2.1 Obligation of Husband to provide Maintenance

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. However, the obligation of husband extends only when the wife remains faithful towards him and obeys all his reasonable orders.

In Baillie’s Digest of Mohammedan Law, it has been stated that:

“If and when called upon to remove his house, she refuses to do so of right, that is to obtain payment of her dower, she is entitled to maintenance; but if she refuses to do so without rights, as when her dower is paid, or deferred, or has been given to her husband she has no claim to maintenance.

If a woman is ‘nashizah’ or rebellious, she has no right to maintenance until she returns to her husband’s house. By this expression, it is to be understood that a woman who goes out from her husband’s house and denies herself to him, in contradiction to one who merely refuses to abide in her husband’s apartment, which is not necessary for the purpose of restraint. If, however, the house her own property, and she forbids him from entering it, she is not entitled to maintenance unless she had asked him to remove her to his own house or to hire a house for her. When she ceased to be a nashizah or rebellious, she is again entitled to maintenance.”

2.2 Quantum of Maintenance

The quantum of maintenance is not prescribed under any matrimonial statute. It is decided as per the discretion of court depending upon the condition of husband and wife.
Under the Shia Law, the quantum of maintenance is decided by taking into consideration the requirements of the wife. Under Shafei Law, the quantum of maintenance is determined by the post of the husband.

2.3 Maintenance under anti- nuptial agreements

Muslim marriage is a contract, an agreement is made between the parties to the marriage which prescribes the rights and duties if husband and wife. The condition of agreement should be valid otherwise the marriage should be considered as illegal. In this agreement, the wife can stipulate some conditions for husband and in case of breach of such conditions, she has a right to live separately and is entitled to maintenance. Such conditions are as follows:
• If the husband ill-treats her;
• Takes a second wife or concubine;

An agreement which stipulates that wife is entitled to maintenance after divorce is also valid. But she is entitled to maintenance only during the period of iddat and not beyond that. The husband’s liability is only till the iddat period.

Ali Akbar Vs. Mst. Fatima (1929) ILR II Lah.85
An allowance of Rs. 25.00 per month was fixed for Kharach-i-Pandan in addition to the amount of maintenance which she is entitled to get from her husband. It was held that the wife is entitled to it irrespective of the fact that she refuses to stay with her husband. (Kharach-i-Pandan is a personal allowance and it cannot be transferred.)

2.4 Divorced wife’s right to maintenance under Muslim law and section 125 of Crpc and dower

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 divorce is only till iddat period ( Iddat is a period of three menstrual courses or three lunar months). Muslim law does not provide maintenance to wife after the 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.

In case of dower, which is the right of Muslim wife, which she is entitled at the time of marriage, the husband is under the obligation to pay her whatever the amount of dower has been agreed upon between the parties at the time of marriage or if no amount is decided then a reasonable amount should be paid by the husband to wife for her maintenance.

But 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. Muslim wife does not have any proper means for herself in Muslim Law. If after the expiry of iddat period, she has no means to maintain herself then in that case husband has no liability for her and she is left with nothing.

Under 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. 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.

But the 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 landmark judgment

Shah Bano Begum Vs Mohammad Ahmed Khan, AIR 1985 SC 945
In this case, Shah Bano Begum, a 62 years old lady filed 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 thus she was entitled to maintenance. For which her husband has 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 Rs.25 per month as per Section 125 of Crpc.
Shah Banu 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 179.20 Rs per month.

Against this order, Mohd. Ahmed Khan appealed to the Supreme court. 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.

The Supreme court has observed that with this judgment the distinction between the Muslim personal law and Civil Procedure code will come to an end. But the judgment has even increased the controversy as a result of which the legislatures 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 maintenance through Wakf Board or relatives of her or her husband. This act has not mentioned anything clearly and has created various confusions in the judicial system and was considered as vague. The confusion of this act has been solved by the Supreme Court of India under:

Daniel Latifi Vs. Union Of India, AIR 2001 SC 958
A writ petition was filed challenging the validity of the 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 maintenance to his wife and has to make proper arrangement for her maintenance after the divorce.
• Muslim husband’s liability under this act is not limited to iddat period. He has to make arrangement within the period of iddat for her wife’s maintenance.
• A divorced Muslim 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 relatives are not able to maintain her then, in that case, a 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 points has held the act constitutionally valid.

3. Maintenance of the 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 especially the father. As under Muslim Law, men are considered as superior and are in the obligation to maintain his family, maintenance of the child is his primary responsibility.

3.1 Father’s obligation to maintain his child

Father is under an obligation to maintain his legitimate child until he earns puberty. Under Muslim Law, the father has to maintain his son only until he attains majority and has to maintain his daughter until she gets married. Under certain circumstances, father is bound to maintain his widowed or divorced daughter.

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 illegitimate child but an agreement between the parties to maintain his illegitimate child is not valid.

Under section 125 of Crpc, if the father has sufficient means, he is under obligation to maintain his child whether legitimate or illegitimate.

Pavitri vs. Katheesumma, AIR 1959 KER 319

In this case, it was stated that it is not at the discretion of the court to allow maintenance to an illegitimate child. The court can allow only if asked for it.

3.2 Mother’s obligation to maintain his child

Mother’s obligation to maintain her child arises when the child is illegitimate and husband has refused to maintain the child. But under Hanafi Law, if the father is poor and the mother is rich then, in that case, it is the obligation of the mother to maintain the child. However, she can recover the money when her 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. In that case, it is the obligation of grandfather to maintain the child.

3.3 Father’s obligation to maintain his major child

Under Muslim Law, father is obligated for the maintenance of his legitimate child only until he attains puberty. But if the child is lunatic, mentally or physically disabled and not in the condition to maintain himself, then, in that case, it is the obligation of the father to maintain him.

Conclusion

Thus, from the above article, it can be stated that the maintenance provisions of Muslim Law are different from other personal laws. The provisions for maintenance of child are not a matter of concern as they are provided adequate maintenance under the law but the position of the wife is poor as compared to other laws. Though the legislature has enacted an act, it has not created much difference in the condition of the wives. The proper efforts and contribution of legislature and judiciary is required to improve the position of wife under Muslim Law.

– Anusha Vijayvargiya
New Law College, BVDU, Pune

References

• Paras Diwan Muslim Law in modern India
• Muslim Women (Protection of Rights on Divorce) act 1986
• Criminal procedure code, 1973
• Baillie’s Digest of Mohammedan Law, 2nd Edition, page 442
• www.academia.edu


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