Maintenance under Muslim law

Author- Mahendra Pratap Bharti, BALLB 3rd year student from Gautam Buddha University, Greater Noida

Abstract

Muslim law states that, provided the husband is not impoverished, he must support his wife regardless of their financial situation as well as any young children they may have. He is obliged to maintain his other relatives from whom he can inherit if he has means to do so and they are not indigent. It is the duty of the husband to maintain his wife and children. The wife is also under the duty to be obedient towards her husband and allows him free access at all reasonable times. In addition to this obligation, the spouse can enter into an agreement that the husband will pay special allowances to his wife. The entire idea behind maintenance is to defend a woman’s rights and ensure that she leads a respectable life. Even after a marriage is dissolved, a husband is still obligated to support his wife if she is unable to support herself. In addition to the wife, it is also given to the children, parents, grandparents, grandchildren, and other blood relatives. The person who must provide maintenance will have to pay a certain amount depending on their financial situation. In contrast to the majority of other religious acts, which exclusively allow maintenance for dependent women, all Muslim women, whether they are employed or not, are therefore entitled to it. Regardless of his financial situation, the husband has a responsibility to give his wife with proper maintenance in all cases.

Definition of Maintenance

The word “maintenance” is equal to “what a person spends over his family” in Arabic, or “nafqah.” Three items are included in the legal definition of maintenance: food, clothing, and housing.
Hedaya describes maintenance as all that is required to sustain life, including clothing, food, and housing. Many others limit it to the meal alone.

“Maintenance comprehends food, clothing, and lodging but in general sense it is mostly limited to first only,” according to Fatwa-i-Alamgiri.

Liability for maintenance

The following circumstances make someone liable for maintenance, or Nafqah:

a) Being his wife;

b) Being a relative, such as children, grandchildren, elderly parents, or other relatives; or

c) Being a servant.

Depending on his income, a Muslim man is obligated to continue all of the relationships he has stated. Under Muslim law, there is a broad rule that identifies who is eligible for maintenance. These are:

a) Those who do not possess any property;

b) Those who are connected to someone in a relationship that is prohibited; and

c) Those from whom he claims under “easy circumstances.”

Persons entitled for maintenance

A Muslim is bound to maintain some of his relations, these are listed below in details, lets understand them one by one:

His descendants

This category is also known as father’s liability for maintain. It is the absolute liability of the father to maintain his children immaterial of his being indigence so long as he can earn. The father is bound to those children as well who are in mother’s custody. A father is liable to maintain the following relations:

Minor children of either sex
Unmarried daughter
Married daughter, if she is unable to maintain herself, and
Adult son, if he is indigent.

His ascendants

This category is also known as children’s liability for maintenance. Children are liable to provide maintenance to their parents. Every child, whether male or female, adult or minor, who has sufficient property, is responsible to supply maintenance to his parents.

Under Sunni law, whether the parents can earn or not, it has no difference, the children are under duty to maintain their parents whereas under Shia law the children are waived off their duty, if the parents are capable of earning.

Grand children are also liable to maintain his ascendants if there are no children or the children are indigent, it is the liability of the grand children to provide maintenance to their grandparents.

Collaterals

Under Hanafi sect of the Sunni school, a Muslim is under an obligation to maintain his collateral relation. Under Shia law, collaterals are not entitled to maintenance by any reason whatsoever.

Wife’s right of maintenance during subsistence of her marriage

According to the ordinary sequence of natural events, the wife comes first. This is an absolute right of maintenance of the wife. The husband has a duty to maintain the wife if she fulfils the following conditions:

She has attained puberty i.e. an age at which she can render to the husband his conjugal rights and she places and offers herself to a place which is his power of the husband to allow free access to herself at all lawful times and obeys his all-lawful commands.

The husband is bound by duty to provide maintenance to his wife during the period when marriage is in subsistence, it is completely immaterial that he has more than one wife as allowed by the law and is not able to maintain one of them. He is bound to maintain all of them and treat them equally.

Maintenance of divorced Muslim women before Shah Bano’s case

As per the Muslim law, a divorced wife is entitled to be maintained by her former husband during the period of iddat. The law provides that she can avail maintenance till the time the period of iddat has not been expired.

The wife is entitled to maintenance even after the expiry of iddat period provided the divorce has not been communicated to her. Thus, she is entitled to maintenance by her former husband till the divorced is communicated to her.

Under the normal condition when she is aware of the divorce, she is entitled to the maintenance till the iddat period, after the expiry of iddat period, the husband has no obligation to pay the maintenance to the wife whom he has divorced.

Maintenance of a divorced woman under CrPC/BNSS

As per section 125 of CrPC and section 144 of Bhartiya Nagarik Suraksha Sanhita, the term wife includes a divorced wife or a wife who has obtained a divorce from her husband and has not remarried.

Under the section, a divorced wife is entitled to be maintained by her former husband beyond the period of iddat provided she has not remarried. So, there is no limitation on period to get the maintenance, only restriction that must be followed is that she remains unmarried.

But a divorced wife’s right to maintenance is subject to the provisions of Section 127 of CrPC which lays down that the order for maintenance in favour of divorced wife shall be cancelled, and such woman shall not be entitled to maintenance-

Where she has remarried
Where she has received the whole sum due to her under any customary or personal law
Where she has voluntarily surrendered her right to maintenance after her divorce.

Now let’s understand the Shah Bano case to have better understanding of the situation, and get to know the condition for maintenance to Muslim divorced women.

Case- Shah Bano Begum vs Mohammad Ahmed Khan AIR 1985 SC 945

The five judges’ bench of the Supreme Court was hearing the case and they held that a Muslim husband having sufficient means must provide maintenance to his divorced wife who is unable to maintain herself. Because the Muslim husband has married again, bringing his total number of wives to four, the wife in question is entitled to maintenance even if she chooses not to live with him.

The bench rejected the contention of the husband side that Section 125 of CrPC which provides the provisions for maintenance to divorced woman who are unable to maintain herself, is not applicable to the Muslims. It was realised by the bench that the religion professed by a spouse or the spouses has no place in the implementation of Section 125, which is a measure of the social justice founded on an individual’s obligation to the society to prevent vagrancy and destitution.

The argument that deferred dower, as a payment made upon a wife’s divorce, precludes the husband from paying any maintenance to the wife under personal law, was likewise dismissed. It was said that under section 127 of the CrPC, mahr (dower) is an amount which the wife is entitled to receive from the husband in consideration of the marriage.

So, the judgement of the SC in the Shah Bano, made divorced Muslim woman entitled to maintenance even after the expiry of the iddat period. To neutralise this judgement of Shah Bano, then government enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Muslim Women (Protection of Rights on Divorce) Act, 1986.

The purpose of this Act’s passage was to safeguard Muslim women’s rights to make personal or family-related provisions after being divorced by or obtaining a divorce from their husband.

Section 3 of the Act provides that a Muslim divorced woman shall be entitled to a reasonable and fair provisions and maintenance within the period of iddat by her former husband in case she maintains the children born to her before or after the divorce, such reasonable maintenance would be extended to a period of two years from the date of birth of the children.

She will also be entitled to mahr (dower) and all the properties given to her by her relatives, friends, husband, and husband’s relatives.

She is entitled to apply to the magistrate for an order requiring her former spouse to provide for such maintenance, the payment of mahr (dower), or the delivery of the properties if the mentioned advantages are not granted to her at the time of divorce.

Section 4 of the Act talks about that where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to the Muslim law in the proportions in which they would inherit her property.

The Magistrate would order the other relatives who have enough money to pay these relatives’ portions as well if any of these relatives are unable to pay their portion due to financial hardship.

But when a divorced woman has no relatives or such relatives or any of them has not enough means to pay the maintenance or other relatives who have been asked to pay the shares of the defaulting relatives, the Magistrate would order the State Waqf Board to pay the maintenance ordered by him or the shares of the relatives who are unable to pay.

Case- Daniel Latifi vs Union of India 2001 SC 740

There were lot of writ petitions filed in the Supreme Court challenging the validity of the Muslim Women (Protection of rights on Divorce) Act, 1986. The Supreme Court clubbed all those writ petitions together in a Public Interest Litigation (PIL) under Article 32 of the Constitution.

The Court stated in the case that the liability of the Muslim husband towards his divorced wife mentioned under section 3 of the Act is to pay maintenance to his wife is not confined only to iddat period. The divorced women are entitled to get maintenance from the relatives mentioned under section 4 of the Act, who will get her property after her death. If non is able to maintain her than a State Waqf Board is created because of this Act and the board will provide maintenance to her.

Case- Tripura Board of Waqf vs Tahera Khatoon AIR 2001 Gau 104

It was argued in the case that if the circumstances demands the maintenance to be paid by the State Waqf Board, the Magistrate while making the order for the same has to record the finding that the relatives mentioned in the Section 4(2) of the Muslim Women (Protection of rights on Divorce) Act, 1986, do not have enough means to pay the maintenance to her, even if the Waqf Board did not take any plea that there were other relatives who could provide the maintenance to the divorced woman.

Case- Secretory Tamil Nadu Waqf Board vs Syed Fatima Nachi AIR 1996 SC

SC held that where the circumstance suggest that relatives mentioned are unable to pay maintenance to the divorced women, she is entitled to plead and prove in one proceeding the inability of these relations and by directing her claim against the Waqf Board.

Conclusion

Over the years, the courts have settled several legal problems pertaining to the Muslim Law on maintenance. The provisions of the Muslim law provides that the Muslim divorced women must be maintained by her husband till the iddat period or from the relatives who will inherit her property or from the State Waqf Board established under the Muslim Women (Protection of rights on divorce) Act, 1986.

References