Maintenance under Muslim

law
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.
Tajuddin vs S. Bibi John
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.
Introduction
Under the Muslim law of Maintenance (nafqah) the obligation of a
Muslim arises only if the claimant has no means or property to
maintain himself or herself. Under Muslim law the following persons
are entitled to maintenance:

• Wife
• Young children
• The necessitous parents
• Other necessitous relations within the prohibited degrees.
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.
Mydeen beevi vs Maydden rowther
Maintenance to Muslim Wife

• Under Muslim law, the wife’s right to be maintained by her husband

is absolute. A Muslim husband is bound to maintain his wife of a valid
marriage even if there is no agreement in this regard. A Muslim
husband is not bound to maintain the wife of void or irregular
marriage except when the marriage is irregular for want of witnesses.

• Wife’s right of maintenance is a debt against the husband. It is an

independent right. The husband’s obligation to maintain his wife
exists only so long as the wife remains faithful and obeys all his
reasonable orders i.e. discharge her own matrimonial duties.
• If the consummation is not possible due to wife’s own ill health or old
age or faulty organ she is not guilty of transgressing her matrimonial
obligations towards the husband and may lawfully claim maintenance
from the husband.

• The wife could also claim future maintenance on account to

pre-nuptial agreement viz. sustainable maintenance in the event of
ill-treatment. Arrears of maintenance cannot be claimed by any
relative other than a wife. The right of the wife to maintenance exists
in spite of the fact that she can maintain herself out of her own
property.
Maintenance of wife under Criminal Procedure
Code, 1973
• The refusal of the wife to perform her matrimonial obligation
towards husband and her claim of maintenance is to be examined not
only under Muslim personal law but also under the Criminal
Procedure Code. The claim of wife for the maintenance under this act
is an independent statutory right not affected by her personal law.

• A Muslim wife, who lives separately due to her husband’s second

marriage, is entitled to claim maintenance allowance under the
provisions of Criminal Procedure Code, 1973.
Begum Subanu alias Saira Banu v. A.M
Abdool Gafoor
• In Begum Subanu alias Saira Banu v. A.M Abdool Gafoor, the Supreme
Court held that irrespective of a Muslim husband’s right to contract a
second marriage, his first wife would be entitled to claim
maintenance. A Muslim wife, whose husband neglects to maintain
her without any lawful justification, is entitled to file a suit for
maintenance in a civil court under her personal law. She is also
entitled to enforce her right under the CrPc 1973.
Where a Muslim wife is in urgent need, she may apply for an order of
maintenance under section 125 of the Criminal Procedure Code; 1973.
A magistrate of the first class may then order the husband to provide
monthly allowance not exceeding five hundred rupees, for the
maintenance of his wife.
Maintenance of the divorced woman

It can be discussed under the following heads:

• Muslim personal law

• Section 125 Criminal Procedure Code 1973 and
• The Muslim Women (Protection of Rights on Divorce) Act,1986
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.
Muslim personal law

• A divorced wife can claim maintenance from the former husband only
for that period during which she is observing her Iddat. The duration
of Iddat on divorce is three menstruation periods or, if pregnant, till
delivery of the child. The former husband’s liability extends only up to
the period of iddat, not beyond that.
Section 125 of the Criminal Procedure Code 1973

• The term ‘wife’ includes a ‘divorced wife’. Section 125 is applicable

also to a divorced Muslim wife. Section 127(3) provides that the order
of maintenance in favour of a divorced wife shall be cancelled, and
such woman shall not be entitled to maintenance under the following
circumstances:
• Where the divorced woman has remarried
• Where such woman has received the whole sum due to her on
divorce under any customary or personal law, and
• Where the woman, after obtaining a divorce from her husband, has
voluntarily surrendered the right to maintenance
• In Mohd. Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945, the
Supreme Court reiterated its stand and held that a divorced Muslim
woman, so long as she has not remarried, is a wife for the purpose of
section 125, and is entitled to maintenance from her former husband.
Maintenance under The Muslim Women
(Protection of Rights on Divorce) Act,1986
• Maintenance during the Iddat: The divorced woman is entitled to a
reasonable and fair amount of maintenance for herself during the
Iddat period from her former husband
• Maintenance after the Iddat: The divorced woman who remains
unmarried after the Iddat, and is unable to maintain herself, is
entitled to get maintenance from her such relatives who would
inherit her properties upon her death. In the absence of any such
relatives or, where they have no sufficient means, then ultimately the
liability to maintain her is cast upon the Waqf Board of the state in
which she resides
The Muslim Women (Protection of Rights on Divorce) Act,1986 has
now made the operation of section 125-128 of the Criminal Procedure
Code optional in respect of Muslim woman.
In Danial Latifi and others v. Union Of India all the writ petitioners
challenging the constitutional validity of the Muslim Women Act 1986 were
clubbed together in this P.I.L. under article 32 of the constitution. The writ
petition was dismissed by the Supreme Court challenging the validity of
Muslim Women Act 1986. The Court upheld the validity of the Act.

In A. Yousuf v. Sowramma it was held by the court that whatever the cause
may be the wife is entitled to a decree for the dissolution of her marriage if
the husband fails to maintain her for a period of two years, even though the
wife may have contributed towards the failure of the maintenance by her
husband.