Professional Documents
Culture Documents
Introduction:
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 and incident to her marriage.”
The Wife
The Children
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.
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.
“If and when called upon to 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.
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.
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
whereas in Shefai 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.
Under section 125 of Crpc, 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. This matter was seen by
the Supreme court in a landmark judgment
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 Banu 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 under:
Father is not bound to maintain his son or unmarried daughter if they refuse to
live with him without any reasonable cause. Under Muslim Law, father is under
no obligation to maintain his illegitimate child but an agreement between the
parties to maintain his illegitimate child is not valid.
Under section 125 of Crpc, if the father has sufficient means, he is under
obligation to maintain his child whether legitimate or illegitimate.
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.
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.