Maintenance in Muslim Law

MAINTENANCE IN MUSLIM LAW

Author: Deepanshi Kalra

INTRODUCTION

Many acts have been passed and laws made for the protection of women from certain atrocities faced by them in their matrimonial life. However, the lacunas are never filled and each time there is a lack of some regulation that tends to be unendurable for women. Laws for different religions are not the same due to distinction in their practices and traditions. Therefore, except for the common law that exists for all, there are personal laws of every religion by which they are governed.

Maintenance in simple words suggests a means through which a person can fulfill their basic needs or requirements in daily life so that they can survive. In India, women largely are dependent on their husband after getting married and have no independent means of sustenance. In Muslim law, there are provisions for women to claim maintenance from their husbands if they are separated or divorced and have no other way to provide from themselves. 

Maintenance under Muslim Law is also known as ‘Nafaqa’ under Muslim law covers in its ambit food, clothing, and shelter.

People entitled to Maintenance under Muslim law are:-

• Wife
• Children
• Parents and Grandparents
• Other relations

OBLIGATION OF HUSBAND

The husband’s obligation to maintain his wife exists so long as the wife remains faithful to him & obeys all his reasonable orders.  If she does not, then he is not liable to provide maintenance to her. However, there are exceptions to this rule i.e even if the wife does not conform as per her husband wishes she can still claim maintenance if:

1.   If the husband keeps a concubine.

2.   If the husband is guilty of committing cruelty towards his wife.

3.  If the marriage cannot be consummated owing to his illness, malformation, his absence from her without her prior permission or the husband has still not attained the age of puberty.

MAINTENANCE UNDER PRE-NUPTIAL AGREEMENT

During the time of the marriage, an agreement is signed by both the spouses in which certain stipulated conditions or limitations are mentioned regarding the circumstances which might occur at the time of their marriage. This agreement is signed by both parties when the marriage is finalized. If in that agreement the wife has made conditions by the contract of marriage, that in some certain situations she would be entitled to live separately & claim maintenance against her husband then in that case following the agreement and the conditions laid down in it she can be entitled to claim maintenance.

The conditions could be that the husband will not ill-treat her, or take the second wife or keep a concubine, etc.

The wife is also entitled to a special allowance called kharch-i-pandan if it is stipulated in a pre-nuptial agreement.

Also Read, Schools of Muslim Law

MAINTENANCE UNDER SECTION 125 CrPC

Section 125 is a secular provision governing maintenance laws across all personal laws. Under this section of the code of criminal procedure, it clearly stated under which conditions the husband is responsible to provide expenses to her wife so that she could sustain her living after divorce. The wife can claim maintenance if she cannot support herself after the divorce but only if she hasn’t already remarried she will be maintained.

The husband’s liability to provide maintenance to a divorced wife is limited to the iddat period as per section 125 Cr.P.C. Iddat period constitutes for at least three months for divorced women, it is believed to be a waiting time wherein the women cannot marry another man and she is bound to observe that period.

Judicial magistrate 1^st Class (JMFC) can order a person to make monthly allowance for the maintenance of the following people if the court gets proof of neglect of the person with sufficient means who is refusing to maintain:

1. When the wife unable to maintain herself

2. When Legitimate, or illegitimate minor child (married and unmarried both) unable to Maintain itself.

3. When there is a legitimate or illegitimate major child with physical or mental injury due to which he/she is unable to maintain itself, however, married daughter is not included in this.

4.  When the Father or mother, unable to maintain himself or herself.

Interim Maintenance & expenses of litigation also included but should be given under 60 days from the date of service of notice.

 MUSLIM WOMEN PROTECTION OF RIGHTS ON DIVORCE ACT 1986

After the Shah Bano case, a lot of controversies were created and the parliament to avoid more chaos and protests constituted another act so that they could dilute the Shah Bano judgment. This act limited the liability of the husband to pay the maintenance until the Iddat period only (as mentioned in Muslim personal law) but it also made other provisions if women are not able to support themselves.

After the Iddat period, if the woman is unable to support herself, her relations which would have inherited her property would maintain her, and if she has no such relatives the waqf board will pay for the maintenance.

MAINTENANCE OF CHILDREN

Under Muslim law, a father is responsible for maintaining his child. But there are certain conditions attached to it. Father is bound to maintain his son till he attains majority & daughter till she gets married. A father is also liable to maintain his major son if he is a lunatic or mentally or physically disabled & not in a condition to maintain himself.

Father is not bound to maintain children if they refuse to live with him without any reasonable cause. Father has no obligation to maintain his illegitimate child under Muslim law but is liable under 125 Cr. PC.

Mother has very little obligations to maintain her child, only in Hanafi school, there is a provision which follows that if her husband is not financially well whereas the wife can afford a comfortable living then she has the liability to maintain her child but she can still recover the money from her husband as per the law whenever he is in condition to pay later.

CASES

Mohd. Ahmad Khan v Shah. Bano Begum^[1]

This is a landmark case in which the Supreme Court in their delivered judgment stated that ‘ A woman has a right to claim maintenance under Section 125 CrPC as the code is a criminal law and not a civil law’. According to SC, there was no conflict between Section 125Cr. P.C and the Muslim personal law as this section is a part of criminal procedure code and applies to all not restricted to a particular caste, creed, or religion even if its nature is criminal and nature of Muslim personal law is civil.

Daniel Latifi v. Union of India^[2]

The court in this case said that the Muslim husband’s liability under this act is not limited to the Iddat period. He is supposed to make arrangements within this period of iddat for his wife’s maintenance.

So the maintenance would also account for after the iddat period but the husband must arrange it before the end of the iddat period. Also, the court held the Muslim women (protection of rights on divorce) act 1986 as constitutional.

Itwari v. Ashgari^[3]

In this case, the Allahabad High Court held that if the husband has married a second wife, the first wife can live separately and claim maintenance against him.

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^[1] AIR 1985 SC 945

^[2] (2001) 7 SCC 740.

^[3] AIR 1960