1

Name: Mahamudul Hasan Rakib

Email: rakib26-421@diu.edu.bd
Department of Law
Daffodil International University
Dhaka, Bangladesh

TOPIC: Right to Maintenance and a

comparative study in between Muslim Law and
Hindu Law.

INDEX

SL Topic Page No.

1. Introduction 3

2. What is the concept of Maintenance 3

3. Maintenance under Hindu Law 3

4. Persons entitled to receive maintenance 4

5. Maintenance of Wife under Section 18, the Hindu 4

Adoptions and Maintenance Act, 1956
6. Award of maintenance to wife under Section 23(2) and 4
23(b) of Hindu Adoption and Maintenance Act, 1956
7. Maintenance under Muslim Law 5

8. Persons entitled to maintenance 6

9. When wife is not entitled to maintenance 6

10. Scale of maintenance of wife 6

11. Statutory Provisions for maintenance 6

2
Name: Mahamudul Hasan Rakib
Email: rakib26-421@diu.edu.bd
Department of Law
Daffodil International University
Dhaka, Bangladesh
12. Maintenance under Muslim Law in comparison with 7
Hindu law
13. Conclusion 7

Introduction

The whole concept of maintenance was introduced in order to see that if there is a spouse
who is not independent financially than the other spouse should help him/her in order to
make the living of the other person possible and independent. Providing maintenance means
that the other person who is getting the maintenance should be able to live the life as he or
she lived before marriage in case of divorce and in case where the two partners are not living
together and they seek maintenance than the spouse getting maintenance should be able to
live a life as when they lived together. 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. At this point of time I would also like to
mention that according to my understanding maintenance not only includes basic necessities
like food, clothing and residence but it also includes the things necessary for comfort and
status in which the person entitled is reasonably expected to live.

What is the concept of Maintenance?

Under Hindu Law: According to section 3(b) of the Hindu Adoption and Maintenance Act,
1956 "maintenance" includes-1

i. In all cases, provision for food, clothing, residence, education and medical
attendance and treatment;
ii. In the case of an unmarried daughter also the reasonable expenses of and
incident to her marriage;
Under Muslim Law: Maintenance in Muslim personal law is known as nafaqah. Nafaqah is
the Islamic legal term for the financial support a husband must provide for his wife or wives.
In an Islamic marriage agreement the husband is responsible to pay for his wife's housing,
food and clothing. Any money the wife earns is hers to do with as she wishes. Nafaqah means
1
Section 3(b) of the Hindu Adoption and Maintenance Act, 1956
3
Name: Mahamudul Hasan Rakib
Email: rakib26-421@diu.edu.bd
Department of Law
Daffodil International University
Dhaka, Bangladesh
something given as maintenance like food, clothes, housing and similar things that the head of the
family has to provide.

Maintenance under Hindu Law

The right of maintenance under Hindu law is very old and it was one of the basic necessities
of the joint family system. According to my understanding the maintenance of the women in
the joint family system was an important system and this was followed as a tradition which
governed the families. It was the obligation of the head of the family (karta) to look after the
women of the family i.e. their wives and their daughters until they were married. Latter when
the women grew older it was the duty of their children to mother and other old women of the
family. The unchastity on part of the women disentitled them to maintenance. Their
remarriage ended the claim and the amount of maintenance depended upon various factors
like the status of the family, necessary requirements, wants, age, etc. Section 24 provides of
Hindu Marriage Act, (HMA) 1955 provides for maintenance. Under this Act also, only a wife
has a right to claim maintenance. The Hindu husband has a legal obligation to maintain his
wife during his lifetime. However, if a wife ceases to be Hindu or lives separately under no
legal grounds she looses the right to claim maintenance too.

Persons entitled to receive maintenance2

Maintenance may be granted to dependent children, parents and legally wedded wives,
including but not limited to a divorced spouse, mistress, illegitimate children, etc.

In certain cases under personal law, the Indian courts have adopted a lenient view and granted
the husband the right to receive maintenance. Such right however, is conditional and typically
conferred upon the husband, only if he is incapacitated due to some accident or disease and
rendered incapable of earning a livelihood. Such an entitlement is not available to an able
person.

Maintenance of Wife under Section 18, the Hindu Adoptions and Maintenance
Act, 1956

Under the section 18(1) of the HAMA, 1956 wife is entitled to maintenance by her husband
for lifetime i.e. she will be given maintenance until she dies or her husband dies. Under
section 18 of this Act a Hindu wife is entitled to live separately from her husband without
canceling her right to claim maintenance. The grounds under which she can live separately
are:-

2
The Hindu Adoption and Maintenance Act, 1956
4
Name: Mahamudul Hasan Rakib
Email: rakib26-421@diu.edu.bd
Department of Law
Daffodil International University
Dhaka, Bangladesh
(1) Husband is guilty of desertion;

(2) The Husband has treated her with cruelty;

(3) The husband is suffering from a virulent form of leprosy;

(4)The husband has any other wife living;

(5) The husband keeps a concubine elsewhere;

(6) The Husband has ceased to be a hindu by conversion to another religion; and

(7) If there is any other cause justifying living separately.

Award of maintenance to wife under Section 23(2) and 23(b) of Hindu Adoption
and Maintenance Act, 1956

Section 23 of the HAMA, 1956 clarifies or defines the people who get maintenance and how
much of maintenance i.e. the amount they can get keeping in mind the various things. The
court in the case of awarding maintenance has the authority to give the maintenance after
analyzing various factors. The factors which are considered by the court according to section
23(2) and section 23(3) are:

a. The position and status of the parties. 

b. The reasonable wants of the claimant 

c. If the claimant is living separately, whether the claimant is justified in doing so, 

d. The value of the claimant’s property and any income derived from such property, or
from the claimants. 

e. The number of persons entitled to maintenance, if any, to be awarded to a dependant

under this Act, regard shall be had to - 

In determining the amount of maintenance, if any, to be awarded to a dependant under this

Act, regard shall be had to - 

a) The net value of the estate of the deceased after providing for the payment of his
debts. 

b) The provisions, if any, made under a will of the deceased in respect of the dependant. 
5
Name: Mahamudul Hasan Rakib
Email: rakib26-421@diu.edu.bd
Department of Law
Daffodil International University
Dhaka, Bangladesh
c) The degree of relationship between the two. 

d) The reasonable wants of the dependants. 

e) The past relations between the dependant and the deceased. 

f) The value of the property of the dependant and any income derived from such
property, or from his or her earnings or from any other source. 

g) The number of dependants entitled to maintenance under this Act.

The court awards maintenance to the wife considering various factors into consideration like
status and position of the parties, wife’s wants, the value of wife’s property and income if
any, derived from that property and the number of persons entitled to maintenance. The
section says that the maintenance is given on the basis of the decree of relation between the
two partners. I don’t understand how the court can determine the decree of the relation
between a husband and wife, I think the husband and the wife can only determine the decree
of the relationship between and the court has no idea and no statue can define a relation.

Maintenance under Muslim Law3

Muslim Law passively considers male to be superior to the woman. It is believed that a man
can take care of himself whereas the woman cannot, in other words it is deduced that a
woman cannot be self reliant. Hence, in Muslim law the wife has been bestowed with an
absolute right to be maintained and the husband is bound to maintain her regardless of the
fact whether she’s poor or not. Wife’s right to maintenance is a debt against the husband. In
Muslim law, wife is preferred over all the other persons. However, the woman’s right and
husband’s obligation exists only if the wife remains faithful to her husband and obeys all his
reasonable orders.

Persons entitled to maintenance4

There are three causes for which it is incumbent on one person to maintain another-marriage,
relationship, and property. The highest obligation arises on marriage. The maintenance of the
wife and children is the primary obligation.

When wife is not entitled to maintenance5

3
Al-Quran
4
Muslim Family Laws Ordinance, 1961
5
Muslim Family Laws Ordinance, 1961
6
Name: Mahamudul Hasan Rakib
Email: rakib26-421@diu.edu.bd
Department of Law
Daffodil International University
Dhaka, Bangladesh
Though wife is entitled to get maintenance from husband, still under the following
circumstances she cannot claim it.

1. A rebellious wife is not entitled to get maintenance until she returns to her husband’s
house;

2. A minor wife is not entitled to get maintenance from his husband though she is under
the custody of her husband. This is the opinion of Aboo Hanifa. But according to
Shafei a minor wife can get maintenance;

3. A wife can not get maintenance if she has been imprisoned or taken away with
another man;

4. A wife is not entitled to get maintenance if she deserts her husband without any
lawful cause;

Scale of maintenance of wife6

At the time of fixation of maintenance of wife, under Hanafi law, regard is to be had
to rank, status, and condition both of her husband and herself. If both husband and
wife are wealthy, he must provide maintenance in opulent manner, if both are poor, he
is required only to provide for her accordingly, but if he is rich and she is poor, he is
to afford her a moderate subsistence. The view is supported by the Quran which states
as “let him support her according to his ability”.

Statutory Provisions for maintenance

At present in Bangladesh there are there statues which contain the provisions of maintenance,
these are as follows

1. The Code of Criminal Procedure (Amendment) Act, 2009: Section 86 of

the said Act provides that if any person having sufficient means neglect or
refuse to maintain his wife children unable to maintain itself, a magistrate of
first class may upon proof order such person to pay a monthly allowance.
2. The Muslim Family Laws Ordinance, 1961: Section 9 of the ordinance
provides that if husband fails to pay maintenance to his wife or wives then the
wife or wives may in addition to seeking any legal remedy apply to the local
Chairman to determine the matter.
3. The Family Court Ordinance, 1985: Section 5 of the ordinance provides the
jurisdiction to the family court to determine a matter relating maintenance.

6
Al-Quran
7
Name: Mahamudul Hasan Rakib
Email: rakib26-421@diu.edu.bd
Department of Law
Daffodil International University
Dhaka, Bangladesh
Maintenance under Muslim Law in comparison with Hindu law

A Hindu woman is more privileged than Muslim women according to me. I am saying it on
the basis that a Hindu woman is entitled to maintenance by her husband throughout her life
but in case of Muslim women she is entitled to maintenance by her husband only during the
iddat period. The court tried to make both the communities on the same line and tried to
provide women of both the communities with maintenance throughout the life. The judiciary
tried to provide women of both communities with equal opportunities and rights.

The laws of the Muslims are considered to be old. Also this is recognized by the Muslim
community there need some kind of reformation but in actual there are no reformations on
the ground. Same is the case with the Hindu law the religious leaders do recognize the need
for reformation but they are still sticking with the old traditions which are discriminatory in
nature. The Muslim women face much more discrimination as compared to the other women
of our country (India). Also one more thing which according to me makes the Muslim women
much more disadvantaged is that they are the member of the minority community of the
country and relatively belong to the poor sections of the society.

Conclusion

After reading and going through various sources of the personal laws, I feel that the Hindu
law is much more clearly defined and gives much more rights to women in comparison to the
Muslim law. Providing maintenance means that the other person who is getting the
maintenance should be able to live the life as he or she lived before marriage in case of
divorce and in case where the two partners are not living together and they seek maintenance
than the spouse getting maintenance should be able to live a life as when they lived together.
From the above discussion, it can be concluded that Law of maintenance with no doubts is
inclined towards the females in both the structures whether it be Hindu Law or Muslim Law.
Women have been bestowed with many more privileges in comparison to men and husbands
have been granted a lot more of responsibilities and obligations. Hence, it won’t be incorrect
to extrapolate that Law makers while formulating these provisions must have kept in mind
the situation of the women in the patriarchal society of Bangladesh.