The concept of Maintenance under Muslim law was introduced to provide support to those people who are not capable to maintain themselves. The principle of maintenance includes the basic requirement of a person for survival and includes amenities like food, clothing, shelter, education and other necessities of life. ‘Nafaq’ is the term used for maintenance under Muslim law which includes food, clothing, and lodging.
Who are eligible for maintenance under Muslim Law:
- Children
- Parents and grandparents
- Wife
- Any other relatives
Maintenance for children and unmarried daughters:
In their initial years, infant children are not in a position to maintain themselves. The parents have to invest in them for better future of children. Apart from being a legal duty, it is also the moral duty of parents to provide aid to their children until they hit adolescence. Muslim law imposes a duty on the parents to take care of their children and provide them with basic necessities to sustain their life. The father is bound to maintain his sons until they obtain the age of puberty and his daughters until they marry and till the time they go to their husband’s home. The father of a daughter is bound to provide maintenance to his married daughter, if her husband is not in a position to maintain her.
Major children are not entitled for maintenance, but the father has to maintain his major son, if he is disabled, lunatic or not in a position to maintain himself. Under the Muslim Law, the father is not under a duty to maintain the illegitimate child.
According to Hanafi Law, the liability to maintain children gets transferred from father to mother, if the father is not financially sound and infirm or weak to take care of his children. But under Shafei Law, the liability to maintain children gets transferred from father to grandfather, if the father is not in a position to take care of his children, even though the mother is financially sound and capable of taking care of her children.
If a child is in custody of a mother, then the mother can claim maintenance from the father till her son hits the age of puberty and her daughter gets married to someone legally.
If the father is poor and infirm or weak, the liability to maintain children falls upon the mother. If the mother is financially incapable to do so, then the responsibility of maintenance devolves upon father’s father.
Thus, the maintenance provisions of Muslim Law are different from other personal laws and are very unique.
Under Section 125 of CrPC, if a father has sufficient means, he may be compelled under law to maintain his legitimate and illegitimate children who are unable to maintain themselves.
Maintenance for Parents and Grandparents:
The moral duty to maintain parents is recognized by all the religions. In Muslim Law, children must maintain their aged parents. Under Hanafi law, Parents and grandparents are entitled to maintenance from their children and grandchildren who have means, even if they (parents and grandparents) can earn their livelihood. As between parents, under the Hanafi law, the mother has a preferential right as against the father, to be maintained by her children. Under the Shia law, however, the right of both the parents is equal and if necessary, the maintenance allowance must be divided between the mother and father equally.
Maintenance for Wife:
Under Muslim law in India, maintenance is known as ‘Nafqah’. ‘Nafqah’ is the amount that a man spends on his family. The right to maintenance of a Muslim woman is absolute and not conditional on whether she can maintain herself or not.
Under Muslim law, a husband is obliged to maintain his wife of a valid marriage and family, and the term maintenance signifies the amount he is liable to pay for the same. The wife is entitled to maintenance from husband, despite the fact that she has means to maintain herself. Hence all the Muslim women earning or not earning are eligible for the right to maintenance which is contrary to most of the other religious acts where only dependent women are eligible for the maintenance. A Muslim husband is not bound to maintain his wife of a void or irregular marriage.
In addition to this, the marriage contract may stipulate payment of special allowances by the husband, and in presence of these, it becomes the obligation of the husband to pay these to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc. This can be claimed as a right.
However, a Muslim woman cannot claim maintenance from her husband in the following cases:
- She has not attained puberty.
- She has abandoned her husband and marital duties with sufficient reason.
- Where she elopes with some other man.
- In a case where she disobeys the reasonable commands of her husband
But wife can claim maintenance Even if she disobeys her husband
- if the husband keeps a concubine
- If the husband is guilty of committing cruelty towards his wife
- If the marriage cannot be consummated owing to his illness, malformation his absence from wife without her prior permission or the husband has still not attained the age of puberty.
Maintenance in case of Divorce:
Divorce is a situation of dissolution of marriage, wherein, husband and wife are no longer under the contractual obligation to perform their duties towards each other. However, even after the dissolution of marriage, a wife is entitled to maintenance. Under Muslim law, maintenance to wife after divorce can be categorized into three categories:
1. Under Muslim Personal Law.
2. Under Section 125, CrPC.
3. Under the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Under Muslim Personal Law, A divorced wife can claim maintenance from the former husband only for that period during which she is observing her Iddat. The duration of Iddat on divorce is three menstruation periods or, if pregnant, till delivery of the child. The former husband’s liability extends only up to the period of iddat, not beyond that.
In Muslim law, there are substances when a wife is not entitled to maintenance after the dissolution of marriage. It includes:
- If the marriage is dissolved because of the wife’s defects.
- An apostate wife.
- When the right to maintenance got suspended during marriage for some reasons.
According to Section 125 of the Criminal Procedure Code, 1973, a wife is entitled to maintenance by her husband in the following conditions:
- If the wife is unable to maintain herself.
- The husband must have sufficient means to pay for the maintenance.
- If the husband has refused to maintain her.
- The wife has not refused to live with her husband except for a reasonable cause.
- The wife not living in adultery.
- The husband and wife not living separately by mutual consent.
- The wife has not remarried after the divorce.
Under the Muslim Women (Protection of Rights on Divorce) Act, 1986,
According to Sub-section (1) of Section 3 of the the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman is entitled to:
(a) A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
(b) Where she herself maintains the children born to her before or after her divorce, a 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;
(c) An amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and
(d) All the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. In case on divorce, the husband has failed to secure any of the above, the wife or her authorized agent may sue the husband by making an application before the Magistrate for necessary orders.6 In case the Magistrate is satisfied that compliance with the aforesaid have not been made by the husband, he will make an order, within one month of the date of 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 his life enjoyed by her during her marriage and the means of her former husband, or as the case may be.
Quantum of Maintenance
The quantum of maintenance is not prescribed under any personal law. The court decides the quantum on the basis of the financial condition of husband and wife and any other circumstances relevant to the case. In addition to provide maintenance the husband is obliged to give other contracted expenses such as Karachi-I-pandan and Meva- kohri etc. to the wife.
The Shia Law decides the quantum of maintenance by taking into consideration the requirements of the wife. The Shafei Law determines the quantum of maintenance by the post of the husband. Thus, the basis of determination of quantum of maintenance is different for different sub-castes of Muslims.
Maintenance under Anti- Nuptial Agreements
A Muslim marriage is construed as a contract, an agreement that is made between the parties to the marriage (Nikah) which prescribes the rights & duties of both husband and wife. 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 also eligible to receive maintenance.
The quantum of the maintenance and the terms are to be agreed and settled at the time of marriage itself. The wife can stipulate the contract of the marriage in case the husband ill-treats her/ or takes a second wife or keeps a concubine.
In such a case, she has the right to live separately from her husband and she is also eligible to claim maintenance against the husband. However, it has to be noted that the husband’s liability is limited only till the iddat period and the wife can claim maintenance only during the period of iddat and not beyond that.
Conclusion: