Muslim Law of Maintenance

Table of Contents
1. Overview of Maintenance Under Muslim Law
2. The Wife's Right to Maintenance
3. Divorced Wife's Right to Maintenance and Dower
4. Alteration and Cancellation of Maintenance Orders
5. Maintenance to ChildrenParents and Grandparents
6. Legal Cases
7. Parents and Grandparents
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Overview of Maintenance Under Muslim Law 

Maintenance under Muslim law differs from other legal systems in terms of who is entitled to it. The individuals entitled to maintenance under Muslim law include:

•  Wife/Husband 
•  Children 
•  Parents and Grandparents 
•  Other Relatives 

The Wife's Right to Maintenance 

• A Muslim husband's duty to support his wife arises in two main situations:
•  Due to the status  established by a valid marriage.
•  Because of a prenuptial agreement  made by the parents before the marriage.
• A Muslim husband is obligated to maintain his wife even if she is wealthy.
• The wife's right to maintenance is considered a debt owed by the husband and takes precedence over the rights of all other individuals seeking maintenance.

 Conditions for Maintenance Obligation 

• A Muslim husband is bound to provide maintenance to his wife only if:
• The marriage is valid.
• The wife has reached the age of puberty.
• The wife remains faithful to the husband.

 Wife's Rights to Maintenance 

• A Muslim wife does not forfeit her right to maintenance if she:
• Refuses to grant access to the husband on legitimate grounds.
• Fails to consummate the marriage due to:
• The husband's inability to reach puberty.
• The husband's absence.
• Illness.

 Quantum of Maintenance 

• The amount of maintenance is determined based on the  status  and  financial position  of the wife.

 Hanafi and Shia Perspectives 

•  Hanafi:  The circumstances of both parties are considered.
•  Shia:  Only the husband's situation is taken into account.

 In Shia law,  the wife's needs for  food ,  clothing ,  residence , and  service  are evaluated.

 Additionally,  the wife is entitled to a separate residence if the husband has more than one wife.

Divorced Wife's Right to Maintenance and Dower 

 Maintenance Rights After Divorce 

• A divorced wife is  not entitled to maintenance  after the  iddah period  if the marriage is dissolved by death. In such cases, she is also  not entitled to maintenance  even during the iddah period.
• If a wife is awarded maintenance under  Section 125 of the Criminal Procedure Code (Cr.P.C.)  and is later divorced by her husband, she cannot claim maintenance thereafter.

 Husband's Obligation to Maintain Divorced Wife 

• Justice  C. J. Chandrachud  asserts that the husband's obligation to maintain his wife continues even after divorce.
• He cites examples from the  Koran  to support this view:
• Verses  241 and 242  of the Koran emphasize that provisions should be made for divorced women in addition to their dower, highlighting the prior obligation of the husband.
• The Koran consistently provides for the maintenance of divorced wives.

 Maintenance Under Pre-Nuptial Agreements 

 Wife's Conditions for Maintenance 

• If the husband mistreats her.
• If the husband marries a second wife, she is entitled to maintenance and the right to live separately.

 Special Allowance for Wife 

The wife is entitled to a special allowance for  kharch-i-pandam,  which covers regular expenses she incurs.

 Maintenance U/Sec. 125 Cr.P.C. (S-488 of old Cr.P.C.) 

• A wife, whether  Muslim or non-Muslim  , is entitled to claim maintenance from her husband if he  neglects or refuses  to provide for her.
• The obligation to maintain includes:
  • Wife
  • Children (up to majority or if they are  unsound  )
  • Parents
• If a wife lives separately, the magistrate must assess the  reasonableness  of her grounds for doing so.
• A wife is not entitled to maintenance if she:
  • Lives in  adultery 
  • Lives separately without a valid reason
• A Muslim husband has the right to  divorce (Talak)  when a maintenance petition is filed by the wife and is only responsible for paying maintenance for three months during the  iddat  period.
• In the case of  Bai Tahira Vs. Ali Hussain (1979)  , it was established that every divorced wife, regardless of being Muslim or non-Muslim, is entitled to maintenance. The dissolution of marriage under personal laws does not make a difference.
• Section 125 includes wives divorced by  Talak  or those who obtain a divorce under the  Dissolution of Muslim Marriage Act, 1939  .

Alteration and Cancellation of Maintenance Orders 

 Change in Circumstances 

• The amount of maintenance can be altered due to significant life changes such as the retirement of the husband or any serious illness.

 Grounds for Cancellation of Maintenance Order 

•  Remarriage:  If the wife remarries, the maintenance order can be cancelled.
•  Receipt of Full Amount:  If the wife receives the full amount of maintenance stipulated, the order can be terminated.
•  Voluntary Surrender:  The wife can voluntarily surrender her right to maintenance, leading to the cancellation of the order.

 Payment of Dower and Cancellation of Maintenance Order under Section 125 

• Before the Shah Bano Case decision, Section 127(3)(b) of the Criminal Procedure Code (Cr.P.C.) interpreted the "whole of the sum" payable on divorce according to customary and personal law as the dower amount paid by a Muslim husband to his wife upon divorce.
• This interpretation raised a question: Does a Muslim wife forfeit her right to claim maintenance after receiving her dower? The following cases address this issue.

 Bai Tahira Vs. Ali Hussain (AIR 1979 SC 362) 

•  Background:  Parties were married in 1956 and had a son. The marriage broke down in 1962 when the husband pronounced talak (divorce). A dispute arose over a flat, leading to a compromise where the wife received Rs. 5,000 as mehar (dower) and renounced her claim over the husband's property.
•  Legal Battle:  Due to financial difficulties, the wife filed a petition under Section 125 for maintenance for herself and her minor son. She initially succeeded in the Judicial Magistrate First Class (JMFC) court, but the husband appealed to the High Court and won. The matter eventually reached the Supreme Court.
•  Main Contentions:  1. The husband argued that since the parties were living separately by mutual consent under Section 125(4), the wife was not entitled to maintenance. 2. He claimed that under the 1962 compromise, the mehar money was paid to the wife and all claims were settled, thus she could not claim maintenance under Section 127(3).
•  Supreme Court Ruling:  Justice Krishna Iyer emphasized that legal provisions should be interpreted in line with societal values and the legal system. Article 15(3) supports special laws for women, and maintenance is necessary for the wife's survival. The Rs. 5,000 mehar was insufficient for even one day's needs.
• The court ruled that the wife could seek maintenance again, but Section 127(3)(b) does not allow her to receive double benefits, one under customary law and another under statutory law.
•  Protest:  The decision was met with protest from the Muslim community.

Case Summary: Md. Ahmed Khan Vs. Shah Bano Begum (AIR 1985 SC 945)

 Background 

• Shah Bano was married to Ahmad Khan, an advocate, in 1932. They had  three sons and two daughters  .
• In 1975, Shah Bano was  driven out of her matrimonial home  by her husband. She subsequently applied for maintenance in 1978, seeking Rs. 500 per month.

 Divorce and Maintenance Issues 

• On November 6, 1978, Ahmad Khan pronounced  talaq  in the form of  talaq-ut-biddai  (irrevocable divorce) and argued that he was not liable to pay maintenance.
• He paid Shah Bano Rs. 200 per month as maintenance, which was part of her  Mehar money  . However, the Judicial Magistrate First Class (JMFC) ordered him to pay only Rs. 25 per month.
• Shah Bano appealed to the High Court, which increased the maintenance amount to Rs. 179.20 per month, based on Ahmad Khan's claimed income of Rs. 6000 per month.
• Ahmad Khan then appealed to the Supreme Court.

 Supreme Court Decision 

• The Supreme Court ruled that if a wife is unable to maintain herself after the  iddat period following talaq  , she can claim maintenance under  Section 125 of the Criminal Procedure Code (CrPC)  .

 Legislative Response 

• To counter the Shah Bano decision, the  Muslim Women (Protection on Divorce) Act, 1986  was enacted. This law allows a Muslim divorcee to seek maintenance from her husband. If the husband fails to provide, she can ask for maintenance from her heirs or from the Wakf Boards.
• Even if a divorcee files a petition under  Section 125 of the CrPC  , her claim will still be considered by the courts.

 Arrears of Maintenance 

• A wife can claim arrears of maintenance that have been  fixed by an agreement or court order  .

Maintenance to ChildrenParents and Grandparents

•  Father's Duty:  The father is legally obligated to maintain his minor children. However, this obligation does not extend to illegitimate children. Under Section 125 of the Code of Criminal Procedure (CrPC), he is required to provide maintenance for illegitimate children as well.
•  Neglect by Father:  If the father neglects his duty to maintain the children, they have the right to seek maintenance from him.
•  Post-Divorce Obligations:  After a divorce, the father is responsible for maintaining his children. If the children are in the custody of the mother, he must pay maintenance to her for their support.
•  Mother's Obligation:  The mother is also obligated to maintain the children. If the father is unable to provide due to financial difficulties, the mother must step in. However, under Shia law, if the father is poor, the grandfather is responsible for maintenance.

 Parental Obligation to Maintain Adult Children 

•  In cases of disability, illness, or mental health issues, both parents are required to maintain their adult children,  but the financial responsibility is divided as follows: the mother is responsible for two-thirds of the maintenance costs, while the father is responsible for one-third.
•  For a daughter, the parents are obligated to maintain her until her marriage. 

Legal Cases 

•  Mohammad V. Noorjahan (1995, Hyderabad):  In this case, after a divorce, the daughter was living with her mother. The father obtained custody of the daughter but did not enforce it. If the daughter chose to continue living with her mother, she was entitled to maintenance from her father.
•  Dinsab V Md. Hussain (1945, Bombay):  The case involved a father with two daughters whose mother was alive. The father remarried, and the former wife, along with her daughters, left him and lived separately. The father offered to keep the daughters with him, but the offer was rejected. The court held that the daughters were not entitled to maintenance from their father.

Parents and Grandparents 

 Conditions for Maintenance 

• Maintenance should be provided under  easy circumstances  .
• The  claimant  seeking maintenance should be  poor  .

 Rights to Maintenance 

• According to  Ithana Ashari  principle:
• Both  mother  and  father  are entitled to maintenance.
• Both  son  and  daughter  have an obligation to provide maintenance.

 Responsibilities towards Grandparents 

• If the  parents  are alive, the obligation to provide maintenance extends to  grandparents  as well.

 Prohibited Degrees 

• There is no need to provide maintenance to individuals who fall within a  prohibted degree  of relationship.