Week 09: Maintenance of wife & Children Under Muslim law

The concept of Maintenance in 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.

Maintenance in Muslim Law

We shall discuss the aspects of maintenance in Muslim law from the viewpoint of the persons who are eligible for maintenance. Such persons are:

1.Wife

2. Children- Both boy and girl

3. Parents and Grandparents and

4. Any other relatives

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.

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.

It is the duty and liability of the husband to provide adequate maintenance to his wife in all the circumstances irrespective of his financial condition. However, a Muslim woman cannot claim maintenance from her husband in the following cases:

  1. She has not attained puberty.
  2. She has abandoned her husband and marital duties with sufficient reason.
  3. Where she elopes with some other man.
  4. In a case where she disobeys the reasonable commands of her husband

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.

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.

Maintenance to Muslim Divorced Woman until Her Remarriage

In terms of Section (3) (a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife.

This includes her maintenance as well.  Accordingly, the husband has to make a fair and reasonable provision for the maintenance of the wife beyond the iddat period as per the terms of Section 3 (1) (a) of the Act.

A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can claim maintenance under Section 4 of this act from her relatives who are entitled to her property after her death. This has provided additional rights to Muslim women.

Maintenance of the Children

Muslim Father is under the obligation to maintain his legitimate child until he attains the puberty age. Under Muslim Law, the father has to maintain his son only until he attains majority.

While he has to maintain his daughter until her marriage and till the time she goes to her husband’s home. Under the law, the father is not under a duty to maintain the illegitimate child.

Thus after perusing the above-mentioned facts, it can be easily concluded that the maintenance provisions of Muslim Law are different from other personal laws and are very unique.

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