FAMILY LAW

MAINTAINENCE UNDER MUSLIM LAW

WITH SPECIAL REFRENCE TO
MUSLIM WOMEN PROTECTION OF RIGHTS ON
DIVORCE ACT, 1986
 INDEX
Title Page No.
1. Introduction
2. Persons entitled to Maintenance
3. Loss of right of Maintenance
4. Valid Conditions for Maintenance Agreement
5. Maintenance after Divorce
6. Case Law
7. Muslim Women Protection Act
8. Bibliography

INTRODUCTION
In general terms, Maintenance is the amount which a husband is
under an obligation to make to a wife either during the
subsistence of the marriage or upon separation or divorce, under
certain circumstances.
The main aim of providing maintenance is that the wife should
not be left destitute on separation or divorce from her husband.

The most important aspect of maintenance is that the party

which relies on maintenance has no independent source of
income to support himself/herself.
Maintenance under Muslim law is known as "Nafqah" which
means what a man spends over his family. "Nafqah" basically
includes food, clothing and lodging. 1

PERSONS ENTITILED TO
MAINTENANCE
1
Ameer Ali : Mohammedan law, vol.2, P.358
A Muslim is under an obligation to maintain the following
persons:

1) His descendants

2) His ascendants

3) His collaterals

4) His wife

Only such persons are entitled to maintenance that are indigent

and necessitous and are unable to earn their livelihood.
There are three causes for which it is incumbent on one person
to maintain in another-marriage, relationship and property.2

1)Descendants –

2
Fyzee : outlines of Mohammaden Law, 3rd Ed. (1964), p. 203
 Father’s liability- The father’s liability to maintain his
children is absolute and is not affected by his indigence so
long as he can earn.

In case of Legitimate Children:

A father is bound to maintain his sons until they attain puberty

and his daughter until they are married. He is also responsible
for the upkeep of his widowed or divorced daughter, or a child
in the custody of the mother. The father is not bound to provide
separate maintenance for a minor or an unmarried daughter who
refuses to live with him without reasonable cause. An adult son
needs not to be maintained unless he is infirm. The father is not
bound to maintain a child who is capable of being maintained
out of his or her own property.3

If the father is poor or infirm then the mother is bound to

maintain the children. And failing her it is the duty of the
parental grandfather.

In case of Illegitimate Children:

3
Sec. 125, Criminal Procedure Court,1973
  The father is not bound to maintain the illegitimate
children. However the father can be directed by the
magistrate to pay a reasonable amount to them if there is
some physical or mental abnormality even if the mother
refuses to surrender the illegitimate child to him.4

2) Ascendants-

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 are capable of
earning or not, make no difference but under Shia Law, the
children are relieved of their duty, if the parents are capable of
earning.
If there are no children or the children are indigent, it is the
liability of the grand children to provide to their grandparents.
The liability to step mother is only when the father is infirm and
has no means to maintain her.

3) Collaterals-
4
Section 125, criminal procedure code, 1973
 Under Hanafi law, a Muslim is under obligation to maintain
its collateral relations within the prohibited degree only in the
following case:-

i) When he himself is in “easy circumstances”; and

ii) The relation claiming to be maintained has no other

means of maintenance.

However, under Shia Law, collaterals are not entitled in any

case.

4)Wife-
It is incumbent on a husband to maintain his wife, whether she is
Muslim or Kitabiyyah, poor or rich, enjoyed or unenjoyed,
young or old. However if the wife is too young for matrimonial
intercourse, she has no right to get maintenance from her
husband. Where the marriage is valid and the wife is capable to
render marital intercourse, it’s the husband’s duty to maintain
his wife even though she may have means to maintain herself. 5
But if she unjustifiably refuses to cohabit with her husband then
she loses her right for maintenance.

If husband refuses to maintain his wife without any lawful

reasons/causes the wife may sue him for maintenance. She is not
however entitled to past maintenance. Maintenance is payable
from the date of the decree unless the claim is based on specific
agreement.

The right to maintenance of wife is lost in the

following circumstances:-
5
Fyzee: outlines of mohammmaden law,3rd Ed. P. 202
i. If she is minor, incapable of consummation.

ii. If she refuses free access to the husband without any valid
cause.

iii. If she is disobedient to his reasonable commands.

iv. If she has been imprisoned.

v. If she refuses to cohabit with him without reasonable excuse.

vi. Abandon conjugal home without reasonable reasons.

vii. If she deserts him voluntarily and does not perform her
marital duties.

viii. If she has eloped with another person.

Maintenance Agreement
The husband and wife or their guardian may enter into
agreement whereby the wife is entitled to recover maintenance
from her husband, on the happening of some special event such
as ill-treatment, disagreement, husband’s second marriage etc.
but the agreement in the marriage contract that the wife would
not be entitled to maintenance is void.

The key consideration is that the agreement should not be

opposed to the public policy and Muslim Law.

An agreement between a Muslim and his first wife, made after

his marriage with a second wife, providing for certain
maintenance for her if she could not in future get on with the
second wife, was held not void on the ground of the public
policy.
Followings are the valid conditions for an
agreement of Maintenance:

i. If the husband treats the wife with cruelty then the wife has a
right to separate residence and maintained to meet it.
ii. If he brings subsequent wife and the previous wife is unable
to live with her, she will get maintenance allowance to live
separately or even at her father’s house.
iii. If he brings his other wife to the matrimonial home, she will
reside at her father’s home and he will give her maintenance.
iv. In case of disagreement with each other, he will give her
maintenance for her separate residence.
 Maintenance After Divorce

After divorce the Mahomedan wife is entitled to maintenance

during the time period of Iddat and also for the time, if any, that

elapsed after the expiry of the period of Iddat and her receiving

notice of Talak. After expiry of the period of Iddat the

enforceability of the order of maintenance ceases.6

The wife is entitled to sue for maintenance at her normal place

of residence at the time of divorce and the place where she

receives the notice thereof.

CASE LAW
Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3)
844), was a controversial maintenance lawsuit in India. In 1932,
6
Shah Bano Case, AIR 1985 SC 945
Shah Bano, a Muslim woman was married to Mohammed
Ahmad Khan, Indore, Madhya Pradesh and had five children
from the marriage. After 14 years, Khan took a second wife and
after years of living with both wives, he threw Shah Bano who
was then aged 62 years and her five children out. In April 1978,
when Khan stopped giving her 200 per month he had
apparently promised claiming that she had no means to support
herself and her children, she filed a petition at a local court in
Indore, against her husband under section 125 of the Code of
Criminal Procedure, asking him for a maintenance amount of
500 for herself and her children. On November 1978 her
husband gave an irrevocable talaq (divorce) to her which is his
prerogative under Islamic Law and took up the defense that
hence Bano had ceased to be his wife and therefore he was
under no obligation to provide maintenance for her as except
prescribed under the Islamic law which was in total 5,400. She
filed a criminal suit in the Supreme court of India, in which she
won the right to alimony from her husband. However, she was
subsequently denied the alimony when the Indian Parliament
reversed the judgment under pressure from Islamic orthodoxy.
In 1986, the Parliament of India passed an act titled “The
Muslim Women (Protection of Rights on Divorce) Act 1986”
that nullified the Supreme Court's judgment in the Shah Bano
judgment. Diluting the Supreme Court judgment, the act allowed
maintenance to a divorced woman only during the period of
iddat, or till 90 days after the divorce, according to the
provisions of Islamic law. This was in stark contrast to Section
125 of the Code. The 'liability' of husband to pay the
maintenance was thus restricted to the period of the iddat only.7

7
Daniel Latifi v.Union Of India AIR 2001 7 SCC 740
 Muslim Women Protection Act,
1986
Order for payment of maintenance—
(1) Notwithstanding anything contained in the foregoing
provisions of this Act or in any other law for the time being
in force, where the Magistrate is satisfied that a divorced
woman has not re-married and is not able to maintain herself
after the iddat period, he may make an order directing such
of her relatives as would be entitled to inherit her property
on her death according to Muslim law to pay such
reasonable and fair maintenance to her as he may determine
fit and proper, having regard to the needs of the divorced
woman, the standard of life enjoyed by her during her
marriage and the means of such relatives and such
maintenance shall be payable by such relatives in the
proportions in which they would inherit her property and at
such periods as he may specify in his order.8

Provided that where such divorced woman has children, the

Magistrate shall order only such children to pay maintenance to
8
Section 4, muslim Woman Protection Of Rights On Divorce Act,1986
her, and in the event of any such children being unable to pay
such maintenance, the Magistrate shall order the parents of such
divorced woman to pay maintenance to her.

Provided further that if any of the parents is unable to pay his or

her share of the maintenance ordered by the Magistrate on the
ground of his or her not having the means to pay the same, the
Magistrate may, on proof of such inability being furnished to
him, order that the share of such relatives in the maintenance
ordered by him be paid by such of the other relatives as may
appear to the Magistrate to have the means of paying the same in
such proportions as the Magistrate may think fit to order
 BIBLIOGRAPHY
Books Referred

 Ahmed Aqil, Mohammedan Law, 23rd Edition, 2009,

central law agency.
 Diwan Paras, Muslim Law in Modern India, 9 th Edition,
2004, Allahabad Law Agency.