Muslim Law

• It has been contended that the Mohammadan Law

as to maintenance is a law of imperfect obligation
imposing a moral and not a legal obligation.
According to the Fatawa-i-Alamgiri “maintenance
comprehends food, raiment and lodging though in
common parlance it is limited to the first.”
• As per the Hedaya all those things which are
necessary to the support of life such as food, clothes
and lodging may confine its solely to food.

Thus a person is entitled to maintenance -

• If he has no property
• Is related to obligor within prohibited degree
• The obligator is in a position to support him
 The persons entitled to maintenance as
per Muslim Law are:
i) Wife,
ii) Descendants,
iii) Ascendants,
iv) Other relations
 Maintenance of Wife
• The maintenance of wife under Muslim Law can
be studied under two heads:
i) Maintenance during subsistence of marriage,
and
ii) Maintenance on divorce
• The obligation to pay maintenance to a wife
during the subsistence of marriage arises out of
the status arising out of a valid marriage or a pre
nuptial agreement.
• Thus maintenance of wife can be studied under
the following heads -
 Maintenance on
i) Subsistence of marriage
Arising out of
A)Status
B) Ante-nuptial agreement
ii) Dissolution of marriage
A) Under Cr.P.C.
B) After Act of 1986
During continuance of marriage
i) Arising out of status – Under Muslim Law, the
husband is bound to maintain his wife as long as she
is faithful to him and obeys his lawful and reasonable
orders. The marriage however should be a valid
marriage and not which is void or irregular. Also the
obligation does not comments if the wife has not
attained puberty but commences on the attainment of
puberty. In Badruddin v. Aiyasha Begum (1957) All
LJ 300, it was held that where a husband marries a
second wife or keeps a mistress, the wife may refuse
to live with the husband and still claim maintenance.
ii) Arising out of Contract - Under Muslim
Law, certain ante nuptial and post nuptial
agreements entered into between parties to a
marriage are valid and enforceable. The
husband and wife or their guardians may enter
into an agreement whereby a wife is entitled to
recover maintenance from her husband on the
happening of some specified event such as ill
treatment or disagreement or husband’s second
marriage etc.
 ON DISSOLUTION OF MARRIAGE

OPTION TO BE GOVERNED BY CODE OF

CRIMINAL PROCEDURE
If a divorced woman and her former husband
declare, by affidavit or any other declaration in
writing, either jointly or separately, that they
would prefer to be governed by the provisions of
Sections 125 to 128 of the Code of Criminal
Procedure, and file such affidavit or declaration
in the Court hearing the application, the
Magistrate shall dispose of such application
accordingly.
The explanation to Section 125 states that “Wife” includes a woman
who has been divorced wife, or has obtained a divorce from, her
husband and has not remarried. Under the new section 125 Cr.P.C.
the claim of the wife could not be defeated by divorcing her.
However, under Section 127 (3) (b) the Magistrate was ordained to
cancel his order passed under Section 125 on proof that the divorcee
has received from her husband the whole of the sum which under
customary of personal law was payable on such divorce. This under
Muslim Personal Law was taken to be Mahr.

A divorced woman means a Muslim woman who was married

according to Muslim law, and has been divorced by, or obtained
divorce from her husband in accordance with law.
But under Fazlunbi v. Khader Vali, (1980) 4 SCC 125, the Supreme
Court reiterated the decision in Bai Tahira case and Justice
Krishna Iyer said:
“The payment of an amount, customary or other……must inset the
intent of preventing destitution and providing a sum which is more
or less the present worth of the monthly maintenance allowance the
divorcee may need until death or remarriage….
The Court by enacting Section 125 to Section 127 charges the court
with human obligation of enforcing maintenance ………
Neither personal law nor other salvationary plea will hold against the
policy of public law pervading Section 127 (3) (b)……”
 Bai Tahira v. Ali Hussain Fissalli
Chhothia and another, AIR 1979 SC 362
On a simple reading of the explanation (b)
of Sec. 125 (1) of the Code it is clear that
every divorced wife, otherwise eligible, is
entitled to the benefit of maintenance
allowance and the dissolution of marriage
makes no difference to the right under the
current code. The scheme of the
provisions in Chapter IX has a social
purpose.
Section 125 requires as a sine qua non for its
application, neglect by husband or father. Where
in a petition by a divorced wife u/s. 125 the
husband did not examine himself to prove that
he was giving allowances to the divorced wife,
his case, on the contrary, was that she has
forfeited her claim because of divorce and the
earlier consent decree held that the husband
had no case of non neglect and hence the basic
condition of neglect to maintain was satisfied.
RIGHTS
A Muslim woman at the time of divorce is
entitled to the following:
• A reasonable and fair provision and
maintenance to be made and paid to her within
the iddat period by her former husband;
• Where she herself maintains the children born
to her before or after her divorce, reasonable
and fair provision and maintenance to be made
and paid by her former husband for a period of
two years from the respective dates of birth of
such children;
• An amount equal to the sum of mahr or
dower agreed to be paid to her at her
time of her marriage or at any time
thereafter according to Muslim law; and
• All the properties given to her before or
at the time of marriage or after the
marriage by her relatives or friends or
the husband or any relatives of the
husband or his friends.
• An amount equal to the sum of mahr or
dower agreed to be paid to her at her
time of her marriage or at any time
thereafter according to Muslim law; and
• All the properties given to her before or
at the time of marriage or after the
marriage by her relatives or friends or
the husband or any relatives of the
husband or his friends.
APPLICATION
Where
• A reasonable and fair provision and
maintenance or the amount of mahr or dower
due has not been made or paid or
• The properties referred to above have not
been delivered to a divorced woman on her
divorce,
• She or any one duly authorised by her
may, on her behalf, make an application to
a Magistrate for an order for payment of
such provision and maintenance, mahr or
dower or the delivery of properties, as the
case may be.
 Where an application has been made by a
divorced woman and the Magistrate is satisfied
that-
• her husband having sufficient means, has failed
or neglected to make or pay her within the iddat
period a reasonable and fair provision and
maintenance for her and the children; or
• the amount equal to the sum of mahr or dower
has not been paid; or
• that the properties have not been delivered to
her
 He may make an order, within one month of the date
of the filing of the application, directing her former
husband to:
• Pay such reasonable and fair provision and
maintenance to the divorced woman as he may
determine as 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
her former husband or, as the case may be.
• Make an order for the payment of such
mahr or dower or
• The delivery of such properties as referred
to above to the divorced woman
 FAILURE TO PAY
• If any person against whom an order has been made fails
without sufficient cause to comply with the order, the
Magistrate may
• Issue a warrant for levying the amount of maintenance or mahr
or dower due in the manner provided for levying fines under the
Code of Criminal Procedure and
• May sentence such person, for the whole or part of any amount
remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one year or until
payment if sooner made, subject to such person being heard in
defence and the said sentence being imposed according to the
provisions of the said Code.
 FAILURE TO MAINTAIN HERSELF AFTER IDDAT
PERIOD
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 who 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.
WHERE THERE ARE CHILDREN
Where such divorced woman has children,
the Magistrate shall order only such
children to pay maintenance to 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:
 Bai Tahira v. Ali Hussain Fissalli
Chhothia and another, AIR 1979 SC 362

No husband can claim u/s. 127 (3) (b)

absolution from his obligation under
Section 125 towards a divorced wife
except on proof of payment of a sum
stipulated by customary of personal law
whose quantum is more or less sufficient
to do duty for maintenance allowance.
• The payment of illusory amounts by way of
customary or personal law requirement will be
considered in the reduction of maintenance rate
but cannot annihilate that rate unless it is a
reasonable substitute.
• The purpose of payment under any customary
or personal law must be to obviate destitution of
the divorcee and to provide her with wherewithal
to maintain herself.
• The whole scheme of Sec. 127 (3) (b) is
manifestly to recognise the substitute
maintenance arrangement by lump sum
payment organised by the custom of the
community or the personal law of the
parties.
• There must be a rational relation between
the sum so paid and its potential as
provision for maintenance to interpret
otherwise is to stultify the project.
WHERE PARENTS ARE UNABLE TO PAY
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.
 WHERE DIVORCED WOMAN HAS NO
RELATIVES
• Where a divorced woman is unable to maintain
herself and she has no relatives as mentioned above
or any one of them have not enough means to pay
the maintenance ordered by the Magistrate, the
Magistrate may, by order direct the State Wakf
Board, functioning in the area in which the woman
resides,
• To pay such maintenance as determined by him or,
• As the case may be, to pay the shares of such of the
relatives who are unable to pay, at such periods as
be may specify in his order.
 Maintenance under Muslim
Personal Law:
• Maintenance is also termed as Nafaq in Muslim Law.
The word Nafaq means food, daily expenditure and
lodging.
• under Islamic law similar to the Christian law, the
wife is entitled to maintenance from the husband.
But under the Hindu law and Parsi law either spouse
are entitled to maintenance. Under the Islamic law
the duty to maintain the wife arises as soon as she
reaches puberty. The Islamic law differs in this
aspect as compared to other personal laws where
maintenance is provided irrespective of the age of
the claimant i.e. the factor of puberty is not
considered.
• Under the Islamic law, wife loses the claim of
maintenance if she is disobedient and refuses to be
accessible at all times. This is not so under the other
personal laws. The wife does not lose claim of
maintenance by being disobedient. The wife under
those personal laws loses their claim by factors
such as remarriage and unchastity. The wife is also
entitled to maintenance in accordance with the
stipulations laid in the kabirnama. This aspect of
Muslim law is absent in other personal laws, where
there is no provision of maintenance according to
any contract.
Maintenance under Muslim Women (Protection
of Rights on Divorce) Act, 1986:
• A divorced Muslim woman is entitled to claim
maintenance under Muslim Women (Protection of Rights
on Divorce) Act, 1986 (MWA).
• The Muslim woman can claim for maintenance from her
husband only during the iddat period. However, the SC
in the landmark case of Daniel Latiffi v. Union of
India, interpreted S.3 (1)(a) of MWA in such a manner
that the husband has to make a reasonable and fair
provision for maintenance during the iddat period for the
future of the divorced wife. After the iddat period if the
divorced wife is unable to maintain herself then she has
to rely upon her consanguine relatives – children,
parents and other relatives who would be entitled to
share from her property.
• This is another aspect in which the Islamic
law differs from the other personal laws –
under Islamic law the obligation of
maintenance is not solely upon the
husband, which is the case with the other
personal laws, but also upon the
consanguine relatives.
• If she has no such relatives or such relatives do
not have the means to maintain her and she is
also not able to maintain herself, then the court
can direct the State Wakf Board to maintain her.
The Maintenance of Women Act (MWA) after its
enactment disallowed wife to claim maintenance
under CrPC. However the wife can claim
maintenance under CrPC if both the parties
agree to be governed by CrPC, which is unlikely
as S.3 of MWA is in favour of the husband as
compared to S.125 of CrPC.
• Thus, we can see that the Hindu, Christian
and Parsi personal laws are quite similar
to each other, whereas Islamic law has
many unique features. However, with the
effect of Daniel Latiffi case, the substance
of the provision of maintenance remains
similar i.e. the husband is mainly obliged
to pay maintenance to the wife.
Despite the muslim women (Protection of Rights on Divorce) Act,
1986 the original controversy was resurrected in Arab Ahemadhia
Abdulla v. Arab Bail Mohmuna Saiyadbhai, AIR 1988 Guj. 141.
The contention in this case was that in terms of Section 3 (1) (a) of the
Act, the maintenance allowance was payable within the iddat period,
which implied that it was paid only during the iddat and not beyond it.
Rejecting this contention the court pointed out that the Act nowhere
specified the period for which she was entitled to get maintenance, nor
did the Act provide that it was to be for iddat only. Therefore, the
word within meant that he was bound to make and pay the provision
and maintenance beyond the expiration of iddat.
 MAINTENANCE TO CHILDREN
AND AGED PARENTS
• The obligation to maintain children is a personal
obligation and arises out of blood relationship as
well as a moral duty, which is backed up by
statutory provisions.

• Hindu Law
• There are two personal law statues amongst the
Hindus, which create an obligation to maintain
children – HAMA and HMA
 Maintenance of Children:
• Section 20 of HAMA imposes an obligation upon the
parents –mother and father, both equally to maintain the
children – both legitimate and illegitimate. This is a
unique feature of the Hindu law where both the parents
are equally responsible to maintain the children. S.20 (2)
of HAMA lays down that the children are entitled to
maintenance during their minority. This right of
maintenance for the daughter is extended till she gets
married. The parents are obliged to bear her marriage
expenses. However even after marriage a minor married
daughter, if she is unable to maintain herself then she
can claim for maintenance under S.125 CrPC.
• When an application has been filed under section s24
and 25 of HMA, the children are also entitled to get
maintenance if the claimant has the responsibility of
maintaining them i.e. the claimant’s right to maintenance
also includes the right of maintenance of the children.
Section 26 of HMA also provides that in any proceeding
under the Act the court can from time to time pass
interim orders and make provisions in respect of the
custody, maintenance and education of the minor
children. This is a unique feature of Hindu law where the
maintenance can be provided to the children not
necessarily under a matrimonial proceeding only but
otherwise also.
 Maintenance of parents:
• S. 20 of HAMA also lays down an obligation of
maintenance o f old and infirm parents who are not able
to maintain themselves out of their own personal
earnings and property. The HAMA is the first statue in
India, which imposes an obligation on the children to
maintain their parents. The obligation to maintain is not
only limited to the sons but it also extends to the
daughters. Under HAMA, both the mother and the father
have an equal right to claim maintenance. The
explanation to this section also includes stepmother in
the term parent. However it is important to note that the
section imposes an obligation to maintain only those
parents, who are unable to maintain themselves and
therefore the obligation to maintain the parents other
than those infirm and unable, is only moral.
 Parsi And Christian Laws
• Maintenance of children: Under the Parsi and the Christian
Laws also there are provisions for the custody,
maintenance, education etc of the minor children, which are
similar to the Hindu law, even though there is no specific
provision for maintenance unlike HAMA
• However, it is important to note that under these personal
laws, the maintenance of the minor child can be awarded
only during the matrimonial proceeding and not otherwise.
• Maintenance of parents: Under the Parsi and Christian
Laws there is no provision imposing an obligation upon the
children to maintain their parents. The parents who want to
seek maintenance can do so only under the CrPC.
 Islamic Laws
• Maintenance of children: Under the
Muslim personal law, legitimate (minor as
well as major) and illegitimate children are
entitled to claim maintenance. The
obligation of maintenance of legitimate
children is primarily on the father. (Which
is different from the other personal laws
which provides for an equal obligation on
both the parents)
• A Muslim father is under an obligation to maintain
his sons until they attain the age of puberty and
the daughter till she gets married. The Muslim
father is not liable to maintain his adult son
unless he is disabled by infirmity or disease.
However if the father is poor and incapable of
earning, then it is the liability of the mother to
maintain the children. If both the parents are poor
and incapable of earning then grandfather has to
provide for the children. Whereas the obligation
of maintenance of the illegitimate children is
solely on the mother.
• The quantum of maintenance can be modified or
cancelled on the change in circumstances.
• Maintenance of parents: Under the
Muslim Law, similar to the Hindu law,
children have an obligation to maintain
their parents. According to Mulla, children
in easy circumstances should maintain his
father and mother even if they may be
able to earn something.