SHRI VILE PARLE KELVANI MANDAL’S

SVKM’S Jitendra Chauhan College of Law

NAME: SUMEET SHARMA

YEAR: FIRST YEAR LL.B

DIVISION AND ROLL NUMBER: D-218

SUBJECT: Family Law

TOPIC: Maintenance of wife & Children Under

Muslim Law
SUBMITTED TO: Prof . Navanitha Warrier
Prof . Sushma Mhaske

1|Page
 ACKNOWLEDGEMENT

I would like to take this opportunity to express my gratitude to several people without whom
it would not be possible to complete this project. Firstly, I would like to thank my Principal,
Dr. Priya J. Shah for providing me with this golden opportunity. Secondly, I would like to
thank Prof . Navanitha Warrier & Prof . Sushma Mhaske . They provided me with their vital
support and guidance because of which I could make this project. This project helped me in
finding my capabilities and also enhanced my research skills.

I would also like to express my sincere thanks to my family; it would not have been possible
to finish this project without their support and coordination. Lastly, I would like to thank my
friends who have motivated me and helped me at every stage of making this project in this
limited time frame.

SUMEET SHARMA
FYLLB D-218

2|Page
 TABLE OF CONTENTS

Sr. No.

1. Introduction

2. Conditions for the right to maintenance

3. Definition of maintenance

4. Liability for maintenance

5. 5 Quantum of Maintenance

6. Maintenance under anti- nuptial agreements

7. Maintenance Of Divorced Women

8. Wife during subsistence of marriage

9. Maintenance of children

10. Conclusion

Introduction

3|Page
The principles of maintenance are determined by the strength of claims and affections and
duties of persons on whom such obligation has been cast. The Muslim jurists did not keep
legal and moral obligations distinct. The moral and legal duties, in case of maintenance, are
connected with each other.  Such right of maintenance, apart from being a legal obligation, is
a moral obligation also. Maintenance includes all those things which are important for
survival and contains suitable food, raiment and lodging and cost of education. The term
“Maintenance” also includes expenses for mental and physical well being of a minor child in
accordance to the status of the family in the society. In case of education under maintenance
there is no hard and fast rule as to what should be the standard of education.
    In some cases there are conditions laid down on the duty of providing maintenance and the
right of receiving maintenance. And also in some cases the right and duty of providing and
receiving maintenance depends on the circumstances and condition of the persons bound to
maintain and the persons who are entitled to receive respectively.

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 pers

There is no clear provision dealing with the maintenance of children, as the Muslim law is
totally uncodified. The word maintenance is denoted by the term ‘Nafaqa’ under Muslim law.
It is the moral duty of a person, under Islam, to take care of his wife. He is also obligated,
along with his parents to take care of his kids before they become independent.
‘Maintenance’ is referred to as ‘nafaqa’ under Muslim law and requires food, clothing and
lodging. After divorce, Muslim personal law imposes a limited obligation on the husband to
maintain his wife. Only during the time of Iddat and not thereafter does Muslim law place the
responsibility for maintaining the divorced wife. To secure the rights of Muslim women who
have been divorced or have received a divorce from their husband, the 1986 (‘The Act)
Muslim Women (Protection of Rights on Divorce) Code was enacted.

Conditions for the right to maintenance

4|Page
Under Mohammedan law every person’s maintenance should be given from his own property
whether he is a minor or a major. As a general rule, the right of maintenance is available only
to the necessitous persons who are poor and cannot earn their maintenance. The exception to
this general rule provides that in certain cases the persons who are not necessitous are also
entitled to maintenance. One such example is the right of the wife even though she has the
means to maintain herself. Also the parents and grandparents are entitled to maintenance even
if they are not necessitous but provided that they are poor then only they can claim the
maintenance. Maintenance of sons, till they attain puberty, and daughters, till they are
married, is also considered as an exception.
            It may be noted that the wife is the only one who is entitled to maintenance even if
she has got some means of maintaining herself, and the husband is without any means. Also
the children before puberty are not entitled to maintenance if they are not poor and have got
their own means of maintaining themselves.
          A Muslim husband is bound to maintain the wife as long as she is faithful to him and
obeys such orders which can be considered as reasonable in the eyes of law. But he is not
bound to maintain her if she refused herself or is otherwise disobedient. In Baillie’s Digest of
Mohammedan Law, it has been stated

“If, when called upon to remove to 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 be a nashizah or rebellious, she has no right to maintenance until she returns
to her husband’s house. By this expression is to be understood a woman who goes out from
her husband’s house(manzil) and denied herself to him, in contradiction to one who merely
refuses to abide in her husband’s apartment(beit), which is not necessary for the purpose of
restraint . If, however, the house her own property, and she forbids him from entering it, she
is not entitled to maintenance unless she had asked him to remove her to his won house, or to
hire a house for her. When she ceased to be a nashizah or rebellious, she is again entitled to
maintenance.”

      Also it has been observed in Ameer Ali’s Mohammedan Law “but the right of the wife to
maintenance is subject to the condition that she is not refractory or does not refuse to live
with her husband without the lawful cause.

Priority of obligations to maintain shall be in the following order:

1. firstly, on the husband,

2. secondly, on the father,
3. thirdly, on the mother,
4. fourthly, jointly on the grand-parents and grand-children,
5. fifthly, on the children,
6. finally, on the collateral relations.

Definition of maintenance

5|Page
The Arabic equivalent of ‘maintenance’ is Nafqah, which means, “what a person spends over
his family”. In its legal sense, maintenance signifies and includes three things: (i) food, (ii)
clothing,
and (iii) lodging. Hedayah defines maintenance as all those things which are necessary for the
support of life, such as food, clothes and lodging, many confines it solely to food. Fatwa-i-
Alamgiri says “Maintenance comprehends food, raiment and lodging, though in common
parlance it is limited to the first.”

 Liability for maintenance

A person becomes liable for Nafqah or maintenance on account of a person:-

(i) Being his wife
(ii) Being his relative, i.e, children, grand children, aged parents and other relatives and
(iii) Being his servent.

 Principle of maintenance

The principle upon which the Muslim Law of maintenance is based is briefly summarised as
follows:
1. The Muslim Law is not so catholic in spirit as legal system of the Hindus, so there are
very few provisions for the maintenance of the relatives. As a general rule, no relation
except a wife, who is in easy circumstances, has any claim for maintenance. But a
Muslim is bound to provide and is entitled to receive maintenance from his ascendents
and descendants except under certain circumstances. According to Hanafi Law reciprocal
rights and obligations regarding maintenance arise also between collateral relations of
blood within prohibited degrees.
2. According to Muslim Law only those persons are entitled to maintenance who are
indigent and necessitous and are unable to earn their livelihood.

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 if 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:
•Ifthehusbandill-treatsher;
• Takes a second wife or concubine;

6|Page
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. Mst. Fatima (1929) ILR II Lah.85

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.)

Maintenance Of Divorced Women

7|Page
Under the Muslim personal law as administered in India, a Muslim husband’s duty to
maintain his divorced wife extends only upto the period of Iddat and thereafter, this liability
is over. The period of Iddat upon divorce is three menstrual courses or three lunar months. In
case the wife is pregnant, the period would extend upto the time of delivery, or abortion even
if it is beyond three months. If the wife delivers before that period Iddat would terminate with
that event. A divorced wife is entitled to her unpaid dower, which automatically becomes
payable upon divorce. The wife has to file a civil suit against her former husband in order to
demand maintenance under Muslim personal law.

Section 125 of the Criminal Procedure Code 1973

A ‘divorced wife’ includes the term ‘wife’. Section 125 is also applicable to a Muslim wife
who is divorced. Section 127(3) provides that the maintenance order for the divorced wife is
to be cancelled and that the divorced woman is not 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.

The Supreme Court upheld its stand in Mohd Ahmad Khan v. Shah Bano Begum AIR
1985 SC 945 and held that for the purposes of section 125, a divorced Muslim woman, as
long as she has not remarried, is a wife and is entitled to maintenance from her former
husband. Ahmed Khan v. Shah Bano Begum’s landmark judgment reveals the battle that
Muslim women face in maintenance cases. She was married to Ahmad Khan by Shah Bano, a
62-year-old Muslim woman who had pronounced talaq or divorce against her. She had
approached the court under section 125 of the Code of Criminal Procedure (Cr.P.C.), which
imposes a duty on the husband to provide for his divorced wife if she is unable to provide for
herself, because she could not maintain herself and her 5 children. Her husband relied on the
argument that the matter would come under the purview of Muslim personal law and that he
would only be responsible for paying maintenance for the iddat duration along with the return
of the mehr under Muslim personal law.

 Daniel Latifi Vs. Union Of India, AIR 2001 SC 958

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
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.

8|Page
• 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.

Wife during subsistence of marriage

According to the ordinary sequence of natural events, the wife comes first. Her right of
maintenance in this case is absolute. Her rights remains unprejudiced even if she has property
or
income of her own and the husband is poor. A husband is bound to maintain his wife,
irrespective
of being a Muslim, non Muslim, poor or rich, young or old if not too young to be unfit for
matrimonial intercourse. In addition to the legal obligation to maintain, there may be
stipulations
in the marriage contract which may render the husband liableto make a special allowance to
the wife.
Such allowances are called Kharch-i-pandaan, guzara, mewa-khori, etc. the husband is
bound to maintainif she fulfils the following conditions:
 She has attained puberty, i.e., an age at which she can render to the husband his
conjugal rights;
 She places and offers to place herself in his power so as to allow free access to herself
at all lawful times and obeys all his lawful commands.

(b) She is not entitled to maintenance

(i) If she abandons the conjugal domicile without any valid cause.
(ii) If she refuses access to her husband without any valid cause.
(iii) If she is disobedient to his reasonable commands.
(iv) If she refuses to live with her husband without any lawful excuse.
(v) If she has been imprisoned.
(vi) If she has eloped with somebody.
(vii) If she is a minor on which account marriage cannot be consummated.
(viii) If she desrets her husband voluntarily and does not perform her marital duties.
(ix) If she makes an agreement of desertion on the second marriage of her husband.

Suit for maintenance

If a husband neglects or refuses to maintain his wife without any lawful cause, the wife may
sue him for maintenance either under Muslim Law or under Section 125 and 126 of the Code
of Criminal Procedure, 1973.

Muslim Women have Right to Maintenance till Remarriage

Indian law on matters pertaining to marriage, divorce and succession are governed by
personal laws. In Muslim matrimonial matters, the laws on a Muslim woman's right to
maintenance are clearly laid down. In August 2010, the Delhi High Court ruled that a Muslim
man is liable to pay maintenance, to his ex-wife and minor children, until she remarries.

9|Page
Further, the court held that a divorced Muslim woman is entitled to maintenance under the
Criminal Procedure Code. The
court further said that this is applicable regardless of the provisions of the Muslim law.
Muslim law also provides that a person is liable to pay maintenance to his divorced wife,
only for the iddat perid which is of 3 months after dissolution of marriage.

10 | P a g e
 Maintenance Of Children

There was no obligation on the part of parents to maintain their children in pre-Islamic
Arabia. The Prophet declared after the advent of Islam that the birth of a child imposes on the
father an obligation to maintain his children as long as they are unable to sustain themselves.

Father’s duty to maintain his children.

Under Muslim law, the father’s responsibility for the care of his children is fixed. A father is
expected to provide the following individuals with maintenance:

 His son until he hits adolescence;

 His unmarried daughter;
 His married daughter, if her husband is not in a position to maintain her;
 His major son, if he is disabled, lunatic or not in a position to maintain himself.

As per Muslim law, if they refuse living with him without any reasonable reason, a father has
no responsibility to take care of his children. A daughter has no unlimited right to demand her
father’s maintenance, she can only demand it in specific circumstances.

 Illegitimate children

The father is not his illegitimate children’s legal guardian. He has no duty whatsoever to
maintain his illegitimate son or daughter. An illegitimate child is entitled to maintenance
from his mother under Hanafi rule. But according to the Ithna Asharia School of Shila law, an
illegitimate child is not entitled either to father or mother for maintenance.

Although a Muslim is not yet bound by his personal law to preserve his illegitimate issue, any
agreement on the maintenance of an illegal child is true and enforceable. However, under the
CrPC, 1973, a father, whether Muslim or non-Muslim, is under an obligation to keep his
illegitimate children. Section 125 of the Code provides that if, because of any physical or
mental abnormality or injury, a person with adequate means neglects or refuses to maintain
his legitimate or illegitimate minor child or his legitimate or illegitimate child who is an adult
but is unable to maintain himself, the Magistrate may order that person to make a monthly
allowance not exceeding five hundred rupees.

 Father’s Duty

Under Islamic law father is liable to maintain his sons till they attain puberty and daughters
till they are married and such obligation cannot be denied on the ground of his pecuniary
incapacity or indigence so long as he has the ability to earn and no one shares such
obligation. He is bound to maintain even if he is indigent or the children are in the custody of
the mother. In such cases, the Judge must pass a decree for maintenance against him and
direct the wife to borrow money for it on the husband’s credit. Further, the duty of mother
and grandfather arises only when the father is not able to maintain the children even by
earning. The father has a right to refuse to maintain the children if they refuse to live with
him, except for a reasonable justification for the same.
       

11 | P a g e
 Right of child to be maintained by father despite the fact that the child is in the
custody of the mother

The position of a child who has not attained the age of discretion or who is not of its
free will or volition living away from the father is peculiar. If such a child is kept in custody
by the mother and is prevented from returning to the father, it cannot be said that the child is
at fault and that its conduct has disentitled it to maintenance. Even if a child prefers to live
with the mother due to natural affection or attachment for her, that would not affect the
liability of the father to maintain the child. In Mst. Akhtari Begum v. Abdul Rashid is a case in
which the right of a four year old child was upheld despite the fact that the child was in the
custody of the mother.

The father’s obligation to maintain a daughter ceases immediately on her marriage( the
marriage should be validly solemnized).

 Mother’s Duty

The mother is liable to maintain the children if the father is necessitous and she herself is not
poor. There are some conflicts of opinion regarding maintenance by mother and by the
grandfather in such cases. Some hold that the mother alone has to maintain while others hold
that the liability has to be shared proportionately according to the share of inheritance.
         According to the Shia law - If the father is poor, the liability rests on the nearest
paternal grandfather how highsoever, if he is not poor but not on the mother though she is not
poor. After this the liability shifts on the mother. If  the mother is dead or poor, then the
liability moves on to the maternal grandparents.
According to Shafei law- The duty of higher ascendants arises only in default of mother or
father.

In the case of Sukha v. Ninni, the issue of the maintenance of an illegitimate child was
discussed. The details are as follows: Ninni was born to a girl named Jamila. In order to claim
maintenance for Jamila from Sukha, Ninni went to court under section 488 (now, section
125) of CrPC. For Jamila’s maintenance, the Sub-divisional Magistrate directed Sukha to pay
an amount of Rs. 10 per month to Ninni. Against this order, Sukha filed an application before
the Sessions Judge. But he later withdrew his application as he made an agreement with
Ninni that instead of Rs. 10 for the maintenance of their illegitimate child, Jamila, he would
pay her an amount of Rs. 6 per month before she got married. Later, as per the agreement, he
didn’t pay the amount. Ninni lodged a suit in court against him. He argued that a father is not
bound to provide maintenance for his illegitimate child under Muslim law. The order given
by the sub-divisional magistrate was also contrary to the provisions of Muslim law. He also
claimed that the agreement is void under Section 23 of the Indian Contract Act 1872 as the
consideration was inconsistent with the provisions of Muslim Law.

The court held that the maintenance of an illegitimate child is not acknowledged by
Mohammedan Law, but Section 488 of the CrPC protects the rights of an illegitimate child.
The court also held that no provisions of Muslim law can be defeated by an agreement made
for the maintenance of an illegitimate child. The agreement, therefore, was not void.

12 | P a g e
 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.

13 | P a g e
 BIBLIOGRAPHY

Websites:-
1. www.legalserviceindia.com
2. www.toppr.com
3. www.estartindia.com
4. www.indianlegalsolution.com
5. www.lawctopus.com

------------x---------------------------x----------------------------x-------------------------------x-------

14 | P a g e