PROJECT WORK OF FAMILY LAW

FOR PARTIAL FULFILMENT OF

EVEN SEMESTER INTERNAL EVALUATION

TITLE OF THE PAPER:

“STUDY OF MOHAMMADAN LAW WITH SPECIAL REFERENCE TO

MAINTENANCE”

Under the Supervision of Name- Yash Kedia

Ashish Singhal Student ID- 18FLICDDN02179
Assistant Professor BA-LLB (H) II Year, Section- “C”
ICFAI Law School Signature of Student-
The ICFAI University, Dehradun

The ICFAI Law School,

The ICFAI University, Dehradun

Submitted To

The ICFAI University, Rajawala Road, Selaqui, Dehradun, 248011 (Uttarakhand)

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 Table of Content

Chapters Page No.

Acknowledgement 3

Abstract 4

Introduction 5

1. Principles of Maintenance 6

2. Maintenance of Wife 6-8

3. Section 125 Cr. P.C. 9 - 11

4. Maintenance of Children 12 - 13

Conclusion 13

ACKNOLEDGEMENT

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I would like to express my special appreciation and thanks to my advisor Professor Ashish
Singhal, you have been a tremendous mentor for me. I would like to thank you for encouraging
me for completion of my project. Your advice on the research of my project have been
invaluable. A special thanks to my family and Friends. Words cannot express how grateful I am
to my parents for all of the sacrifices that they’ve made on my behalf and support of my Friends
is also commendable from my side. Your prayer for me was what made me able to complete my
project on time. Thank you for supporting me for everything.

Finally, I thank my God, my good Father, for letting me through all the difficulties. I have
experienced Your guidance day by day. I will keep on trusting You for my future. Thank you,
Lord.

ABSTRACT :

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The entire idea of upkeep was acquainted all together with observe that if there is a companion
who isn't autonomous fiscally than the other life partner should encourage him/her keeping in
mind the end goal to make the living of the other individual conceivable and free. Giving upkeep
implies that the other individual who is getting the support ought to have the capacity to carry on
with the life as he or she lived before marriage if there should be an occurrence of separation and
on the off chance that where the two accomplices are not living respectively and they look for
support than the mate getting upkeep ought to have the capacity to carry on with an existence as
when they lived respectively. Upkeep is the sum which a spouse is under a commitment to make
to a wife either amid the subsistence of the marriage or upon detachment or separation, in
specific situations. Now of time I might likewise want to say that as indicated by my
understanding upkeep not just incorporates essential necessities like sustenance, attire and living
arrangement yet it additionally incorporates the things important for solace and status in which
the individual qualified is sensibly expected for live. According to me the primary point of
giving support is that the spouse ought not be left dejected on partition or separation from her
better half. In a laymen's term upkeep are those things which are basic for the survival of person.
The most critical part f upkeep is that the gathering which depends on upkeep has no free
wellspring of pay to help himself/herself. The fundamental point we need to center around in
autonomous salary. Should the companion who is asserting upkeep have portable or undaunted
property, the life partner can in any case guarantee support if the property does not yield any
wage. The quantum of upkeep and the costs of the procedures have not been determined in any
of the Indian Matrimonial statutes aside from the Divorce Act. The court can settle the support at

any sum, contingent upon its attentiveness.

KEYWORDS : autonomous , matrimonial status , divorce act , commitment .

Introduction: -

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The concept of Maintenance was introduced to provide support to those people who are not
capable to maintain themselves. It is basically provided to the spouse who is not independent and
is dependent on the other spouse. The principle of maintenance includes financial support, means
of livelihood and educational facilities.

In marriage, it is the obligation of the husband to maintain the wife and to provide her all
necessities. The whole concept of maintenance is to protect the rights of the wife and to provide
her a dignified life and even after the dissolution of marriage, the husband is in the liability to
provide maintenance to his wife if she is not able to maintain herself. The concept of
maintenance has broader aspect. It is not only provided to the wife but also to children, parents,
grandparents, grandchildren and other relations by blood. The amount of maintenance depends
on the financial position of the person who is bound to provide maintenance.

Various laws and rules have been made on the principle of maintenance. The concept of
maintenance has also been added to personal laws. The Muslim Law also provides for
maintenance. Though Muslim Law does not properly define maintenance, its meaning has been
inferred from Hindu Law which provides that: “in all cases, provisions for food, clothing,
residence, education and medical attendance and treatment; in the cases of an unmarried
daughter, also the reasonable expenses of incident to her marriage.”

Under Muslim Law, women are considered weak as compared to men. It is believed that they are
not able to maintain herself on her own so it is the liability of the husband to provide
maintenance to her wife in all conditions even if she is capable of maintaining herself.
Maintenance is known as “Nafqah” which means what a man spends on his family and it
basically includes food, clothing, and lodging.

Chapter 1
Principles of Maintenance: -

1. As a general rule, no relation except a wife has any claim for maintenance and there are very

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 few provisions for the maintenance of the relatives.
2. But, in Mohammedan law, a Muslim is bound to provide and is entitled to receive
maintenance from his ascendants and descendants.
3. According to Hanafi law, maintenance also arises between the prohibited degree of relations.
4. According to Mohammedan law, only those persons are entitled to maintenance who are
indigent and are unable to earn their livelihood.

The Muslim Law of maintenance may be discussed from the point of view of the persons entitled
to maintenance. Such persons are:
i. The Wife
ii. The Children
iii. The Parents and Grandparents.

But under Muslim Law, maintenance is provided to wife even if she is capable of maintaining
herself which differs it from other laws. But in case of Maintenance to Children, Parents and
other relations, it is given only when they are not able to maintain themselves. Here, we are
going to discuss the maintenance of wife and children under Muslim Law.

Chapter 2
Maintenance of wife
Under Muslim Law, as discussed above men are considered superior to women and women in all
cases is considered to be dependent on men. It is the liability of husband under Muslim Law to
maintain his wife even after divorce.

Obligation of Husband to provide Maintenance: -

It is the obligation of the husband to provide proper maintenance to his wife in all circumstances
whether he is in good financial condition or not. His obligation to provide maintenance is even
after the dissolution of marriage. However, the obligation of husband extends only when the wife
remains faithful towards him and obeys all his reasonable orders.

In Baillie’s Digest of Mohammedan Law, it has been stated that: “If and when called upon to

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remove his house, she refuses to do so of right, that is to obtain payment of her dower, she is
entitled to maintenance; but if she refuses to do so without rights, as when her dower is paid, or
deferred, or has been given to her husband she has no claim to maintenance.

If a woman is ‘nashizah’ or rebellious, she has no right to maintenance until she returns to her
husband’s house. When she ceased to be a nashizah or rebellious, she is again entitled to
maintenance.”

Quantum of Maintenance: -
The quantum of maintenance is not prescribed under any matrimonial statute. It is decided as per
the discretion of court depending upon the condition of husband and wife. Under the Shia Law,
the quantum of maintenance is decided by taking into consideration the requirements of the
wife. Under Shafei Law, the quantum of maintenance is determined by the post of the husband.

Maintenance under anti- nuptial agreements: -

Muslim marriage is a contract, an agreement is made between the parties to the marriage which
prescribes the rights and duties of husband and wife. The condition of agreement should be valid
otherwise the marriage should be considered as illegal. In this agreement, the wife can stipulate
some conditions for husband and in case of breach of such conditions, she has a right to live
separately and is entitled to maintenance. Such conditions are as follows:
 If the husband ill-treats her;
 Takes a second wife or concubine;

An agreement which stipulates that wife is entitled to maintenance after divorce is also valid. But
she is entitled to maintenance only during the period of Iddat and not beyond that. The husband’s
liability is only till the Iddat period.

Ali Akbar Vs. Ms. Fatima 1

An allowance of Rs. 25.00 per month was fixed for Kharach-i-Pandan in addition to the amount
of maintenance which she is entitled to get from her husband. It was held that the wife is entitled
to it irrespective of the fact that she refuses to stay with her husband. (Kharach-i-Pandan is a
personal allowance and it cannot be transferred.)

1
(1929) ILR II Lah.85

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Divorced wife’s right to maintenance under Muslim law and Section 125 of CrPC and
dower: -
Under Muslim Law the rights of the wife to get maintenance during the marriage is absolute but
after the dissolution of marriage, her rights are limited. She is entitled to maintenance from
husband after divorce is only till Iddat period (Iddat is a period of three menstrual courses or
three lunar months). Muslim law does not provide maintenance to wife after the iddat period is
over.

In Hanafi school of law, A divorced Muslim wife is entitled to maintenance during iddat period.

In Shefai school of law, A divorced Muslim wife is not even entitled to maintenance.

In case of dower, which is the right of Muslim wife, which she is entitled at the time of marriage,
the husband is under the obligation to pay her whatever the amount of dower has been agreed
upon between the parties at the time of marriage or if no amount is decided then a reasonable
amount should be paid by the husband to wife for her maintenance.

But this creates hardship for Muslim wife as under Muslim Law it is very easy for men to give
divorce to his wife as the Law allows him to marry thrice. Muslim wife does not have any proper
means for herself in Muslim Law. If after the expiry of iddat period, she has no means to
maintain herself then in that case husband has no liability for her and she is left with nothing.

Chapter 3
Section 125 of Cr.P.C.
This section provides for maintenance to divorced wife of all religion. It stated that after divorce
if the wife is not able to maintain herself, she is entitled to maintenance from her husband until
she gets married. The act applies this provision to Muslim women also who are not entitled to the
maintenance after the period of Iddat. This act creates liability over husband to provide
maintenance to wife even after the period of Iddat. But the provisions of this act are in conflict
with the provisions of Muslim Law and a debate was going on as which law should be applied.

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This matter was seen by the Supreme court in a landmark judgment of Shah Bano Begum v.
Mohammad Ahmed Khan2, In this case, Shah Bano Begum, a 62 years old lady filed a petition
under section 125 of CrPC before Judicial Magistrate of Madhya Pradesh. The petition stated
that her husband has pronounced Talaq to her and she has not even remarried and thus she was
entitled to maintenance. For which her husband has stated that he had no liability to provide
maintenance to her as under Muslim Law, a divorced wife has no right of maintenance after
Iddat period. The magistrate, in this case, passed an order stating that the husband is entitled to
provide her maintenance of Rs.25 per month as per Section 125 of CrPC. Shah Bano filed a
revision petition against this order in the High court of Indore for enhancement of the amount of
maintenance. For which Indore High court has enhanced the amount of maintenance to 179.20
Rs per month. Against this order, Mohd. Ahmed Khan appealed to the Supreme court. Supreme
court rejected the appeal and stated that Muslim wife is entitled to maintenance even after the
period of Iddat if she is not able to maintain herself.

The Supreme court has observed that with this judgment the distinction between the Muslim
personal law and Civil Procedure code will come to an end. But the judgment has even increased
the controversy as a result of which the legislatures have to make a new law to govern Muslim
divorce i.e. Muslim Women (Protection of Rights on Divorce) Act 1986.

This act has enacted some provisions in support of Muslim Personal Law and has restricted the
application of Section 125 of CrPC regarding the maintenance of Muslim wife. The Act has
stated that the husband is entitled to provide maintenance only during the period of Iddat and not
beyond that. If the wife is not able to maintain herself after iddat period then, in that case, she
can seek maintenance through Wakf Board or relatives of her or her husband. This act has not
mentioned anything clearly and has created various confusions in the judicial system and was
considered as vague.

The confusion of this act has been solved by the Supreme Court of India in the case of Daniel
Latifi Vs. Union of India3, in which a writ petition was filed challenging the validity of the act.
For which the court has stated as under:

 As per Section 3 of the act, Muslim husband is entitled to provide fair and reasonable

2
AIR 1985 SC 945
3
AIR 2001 SC 958

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 maintenance to his wife and has to make proper arrangement for her maintenance after
the divorce.
 Muslim husband’s liability under this act is not limited to iddat period. He has to make
arrangement within the period of iddat for her wife’s maintenance.
 A divorced Muslim woman is entitled to maintenance under section 4 of this act from her
relatives who are entitled to her property after her death.
 If her relatives are not able to maintain her then, in that case, a Wakf board has been
created by this act who will take care of the maintenance of such women.
 The magistrate can direct this board to pay maintenance to them.
 The Supreme Court on the basis of the above points has held the act constitutionally
valid.

A divorced wife’s claim of maintenance is subject to sec 127 (3) Cr.P.C., which provides that the
order for the maintenance in favour of a divorced woman shall be cancelled and such woman
shall not be entitled to maintenance under the following circumstances: -

1. Where the divorced woman has remarried

2. Where such woman has received the due to her on divorce under any customary or personal
law
3. Where the woman after obtaining divorce from her husband has voluntarily surrendered her
rights to maintenance.

In the case of Danial Latifi & others v. Union of India4, The petitioners challenged the
constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, under
which Sec. 125 of Cr.P.C providing for maintenance of wives (including divorced women) by
their former husbands. The Act was said to be violative of Art. 14, 15 & 21 of the. The apex
court dismissed the writ petition. The court held that prima facily the act shows about non
payment of maintenance to wife after divorce & after Iddat. But a careful reading of the
provision would indicate that a Muslim husband is liable to make reasonable & fair provision for
the future of divorced wife which included maintenance as well. U/s 3(1)(a) to pay maintenance
is not confined to Iddat period. A reasonable & fair provision extending beyond the Iddat period
must be made by the husband with the Iddat period

4
(2001) 7 SC 740

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In the case of Shabano Bano v. Imran Khan5, Court held that even if a Muslim woman has
been divorces, she would be entitled to claim maintenance from her husband u/s 125 of Cr.P.C
and also after the expiry of period of iddat as long a she gets remarry.

In the case of Itwari v. Asghari6 The court held that there is no conflict between the Muslim
personal law & the provisions of Cr.P.C on the point of wife’s claim of maintenance where
husband has contracted a second marriage. The first wife would be entitled to claim maintenance
u/s 125 of Cr.P.C. from the point of view of a neglected wife. The explanation has to be
construed from the injury to matrimonial rights of the wife and not with respect to the husband’s
right to marry again.

Chapter 4

Maintenance of the Children

Children are the responsibility of their parents and they should be taken care of. They are entitled
to proper and adequate maintenance from their parents and especially the father. As under
Muslim Law, men are considered as superior and are in the obligation to maintain his family,
maintenance of the child is his primary responsibility.

Father’s obligation to maintain his child: -

Father is under an obligation to maintain his legitimate child until he earns puberty. Under
Muslim Law, the father has to maintain his son only until he attains majority and has to maintain
his daughter until she gets married. Under certain circumstances, father is bound to maintain his
widowed or divorced daughter.

Father is not bound to maintain his son or unmarried daughter if they refuse to live with him
without any reasonable cause and the father is also under no obligation to maintain his
illegitimate child.

Under section 125 of CrPC, if the father has sufficient means, he is under obligation to maintain

5
(2010) 1 SCC 666

6
AIR 1960 SC 684

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his child whether legitimate or illegitimate. In the case of Pavitri Vs Katheesumma7, it was
stated that it is not at the discretion of the court to allow maintenance to an illegitimate child. The
court can allow only if asked for it.

In the case of Hazi Farzand Ali v. Noor Jahan 8, a mother filed an application for maintenance
of herself and her three children. The magistrate granted Rs. 300 for the children. The husband
filed an appeal against this order arguing that the right of the children was ancillary of the 1986
act, and the children’s right to maintenance u/s 125 was not maintainable. The court held that
children’s right was independent of the mother’s.

In the case of Noor Saba Khatoon v. Mohd. Quasim9, The Supreme Court ruled that a
divorced Muslim woman is entitled to claim maintenance for her children till they become
major. The court held that both under the Muslim Personal law and u/s 125 Cr.P.C, the
obligation of father was absolute when the children were living with the divorced wife. The court
was of the view that a Muslim father having sufficient means was under an obligation to
maintain minor children.

Mother’s obligation to maintain his child: -

Mother’s obligation to maintain her child arises when the child is illegitimate and husband has
refused to maintain the child. 

Under Hanafi Law, if the father is poor and the mother is rich then, in that case, it is the
obligation of the mother to maintain the child. However, she can recover the money when her
husband gets into the condition to repay it.

Under Shefai Law, even if the father is poor and mother is rich, then the mother is not obliged
on maintaining her child. In that case, it is the obligation of grandfather to maintain the child.

Father’s obligation to maintain his major child: -

Under Muslim Law, father is obligated for the maintenance of his legitimate child only until he
attains puberty. But if the child is lunatic, mentally or physically disabled and not in the
condition to maintain himself, then, in that case, it is the obligation of the father to maintain him
even after the child attains the age of puberty.

7
AIR 1959 KER 319
8
1988 Cr.L.J 1421 Raj.
9
(1997) 6 SC 523

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Conclusion: -

Thus, from the above article, it can be stated that the maintenance provisions of Muslim Law are
different from other personal laws. The provisions for maintenance of child are not a matter of
concern as they are provided adequate maintenance under the law but the position of the wife is
poor as compared to other laws. Though the legislature has enacted an act, it has not created
much difference in the condition of the wives. The proper efforts and contribution of legislature
and judiciary is required to improve the position of wife under Muslim Law.

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