Concept of Maintenance of wife under Muslim law

 

Q. 6. Discuss the law as to the right of maintenance of the wife from her husband under Muslim law in India.

OR

Examine the law of maintenance of wife under Muslim Law. How far this has been modified by Parliament and the judiciary? Discuss.

 

Ans. In the language of the Arabs 'nafaqah' (maintenance) means what a man spends with his family. In the language of the law, it signifies food, raiment and logging, though, in common parlance, it is limited to the first (i.e. food).

General Principles of Maintenance under Mohammedan Law

 

The term maintenance may relate to the maintenance of wives, divorced wives, widows, children, old and infirm parents, concubines etc.

Muslim personal law does not entitle a divorced wife to claim maintenance beyond period of Iddat. Muslim personal law would be applicable in cases where a divorced wife is capable of maintaining herself and husband's liability would cease after expiration of period of iddat Quran provides a duty to the husband to provide reasonable and fair provision and maintenance to his divorced wife.

 

The right of maintenance, under Muslim law, arises, if the person claiming to be maintained is an indigent and necessitous person unable to earn his livelihood i.e. he

(a) has no property of his own out of which he can maintain himself, and

(b) is related within the prohibited degrees to the person from whom he claims to be maintained provided such person is in easy circumstances or has the means to provide nafgah.

 

Maintenance includes food, raiment, lodging cost of education, and health having regard to the position of the parties and the dearness of provisions.

As per Section 161 of the Law of Marriage (compiled by All India Muslim Personal Law Board in 'Compendium of Islamic Laws"). "The expenses which the shariat regards as necessary for the subsistence of some one's life are nafaqah (maintenance), and for human beings items of food and drink, clothes and residence are nafaqah."

Maintenance of wife.-Maintenance includes provision for food, clothes and residence.

 

Wife's right of maintenance may be studied into 3 topics

(1) Maintenance during the subsistence of marriage,

(2) Maintenance of a divorced wife, and

(3) Maintenance of a widow.

 

(1)    Maintenance during the subsistence of marriage.-

The husband becomes liable to maintain the wife from the date when the wife attains puberty and not before that. The husband is bound to maintain her so long as she is obedient and faithful to him. The husband is bound to maintain her, even though she may have the means to maintain herself and he may be without means.

 

A Muslim wife who is living separately from the husband for a reasonable cause may claim maintenance against him, e.g., if the husband treats her with cruelty, or if he marries with second wife without her consent, or if he has not paid prompt dower to her, or if he lives with a concubine.

 

In Itwari v. Ashgari, (AIR 1960 All 684) it was held by the Allahabad High Court that if the husband has married with a second wife, the first wife would be entitled to live separately from her husband and claim maintenance against him.

 

In Chand Patel v. Bismillah Begum, [(2008) 4 SCC 774] the husband had married with the respondent during the subsistence of marriage with her sister with the consent of the sister, who was already married with him, and had a daughter from the respondent. The Supreme Court held that if the marriage which was said to have been performed between the appellant and the respondent is held to be void then, respondent will not be entitled to maintenance from the appellant under Section 125, Cr.P.C. If on the other hand, the marriage is held to be irregular, then the marriage will subsist for all purposes, unless declared void by the competent Court. Till such a declaration is made, along with the respondent her daughter will also be entitled for maintenance under Section 125, Cr.P.C.

Conditions where Muslim wife not entitled to maintenance

 

(1) The first condition where a wife is not entitled to maintenance under Hanafi and Shia law is when she has not attained puberty and is a minor but under Shafei law in any condition the wife is entitled to maintenance.

(2) For continuing her right of maintenance a wife must be accessible to husband under Islamic law. Her accessible means that the husband is able to have sexual intercourse whenever he intends.

There is no right in the wife to refuse to live with her husband after marriage has been consummated with her consent. So long as she keeps herself away without the fault of the husband she has no right to claim maintenance from him.

(3) If a wife leaves husband's house without his permission or otherwise is disobedient, unless this disobedience is justified or rebellious (nashiza). She loses her right of maintenance.

(4) When she has been separated for her own fault.

(5) If she is disobedient to his reasonable commands.

(6) When she becomes a widow.

(7) When she has been married by an illegal contract or by an irregular marriage.

(8) If she has been imprisoned for any offence.

(9) If she has eloped with somebody and has become unchaste or has been taken away forcibly by another person.

(10) If there is an agreement in between the wife and husband.

 

(2) Maintenance of a divorced wife.-

Under the pure Muslim Law, a divorced wife was entitled to obtain maintenance from her husband only upto the period of her Iddat.

After divorce, the wife is entitled to maintenance during the period of iddat. If the divorce is not communicated to her until after the expiry of that period, she is entitled to maintenance until she is informed of the divorce. A widow is not entitled to maintenance during the period of iddat consequent upon her husband's death.

 

Section 165 of Law of Marriage (compiled by All India Muslim Personal Law Board in 'compendium of Islamic Laws') provides that "A woman observing iddat is entitled to get maintenance; after 'iddar' she is a stranger and no maintenance for her after iddat obligatory for the divorcing man

 

Section 125 of CrPC was in force regarding the maintenance of Muslim woman, equality with the Hindu woman. Section 125 of CPC provides that the Husband is bound to provide maintenance to his wife, children, (legal or illegal), and old aged parents. According to Section 125 of CrPC, the Muslim Woman is entitled to get the maintenance from her husband even after divorce, if she does, not remarry, and who is unable to maintain herself.

 

In Tusliman Bibi v Abdul Latif [(1936) 63 Cal 726] it has been observed that the obligation of a husband to maintain his wife will cease on the completion of her iddat. A divorced wife is entitled to see in the place where she normally resides for her dower, maintenance or return of her jewels and clothes

In K. Raza Khan v. Muntaza Khatoon [(1976) 1 An W.R. 1] it has been observed that even if Muslim law entitles the divorced wife to maintenance only till the end of the period of iddat, 125 CrPC, 1974 entitles her to maintenance so long as she does not marry again.

 

In Mohammad Ahmad Khan v. Shah Bano Begum, (AIR 1985 SC 945) the Supreme Court held that although the Muslim Personal Law limits the husband's liability to provide maintenance for his divorced wife upto the period of Iddat, it does not contemplate a situation envisaged by Section 125, Cr.P.C., 1973. The Court held that it would not be incorrect or unjustified to extend the above principles of Muslim Law to cases in which a divorced wife is unable to maintain herself and therefore, the Court came to the conclusion that if the divorced wife is able to maintain herself the husband's liability ceases with the expiration of the period of Iddat, but if she is unable to maintain herself after the period of Iddat, she is entitled to recourse to Section 125, Cr.P.C. Section 125 (1) Cr.P.C. lays down :

 

"If any person, having sufficient means neglects or refuses to maintain his wife..... ..unable to maintain herself...........a Magistrate of the first class may upon the proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife."

 

Explanation (b) of Section 125.-Wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried.

 

In Shah Bano's case, the Supreme Court held that a divorced Muslim woman, provided she is not remarried, is 'wife' for the purposes of Section 125 and is entitled to obtain maintenance from her former husband, if she is unable to maintain herself.

 

In order to nullify the effect of the Shah Bano's decision Parliament passed the Muslim Women's (Protection of Rights on Divorce) Act, 1986.

 

Section 3 (1) of this Act lays down

 

"Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to

(a) a reasonable and fair provision and maintenance to b 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 mehr 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 the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

 

Section 4 of the Act provides that where a Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the Iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death to pay maintenance to her. When such divorced woman has children the Magistrate shall order only such children to pay maintenance to her; and in the event of any such children being unable to pay maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her. Where a divorced woman is unable to maintain herself and she has no relatives or such relatives or any one of them have not enough means to pay the maintenance, the Magistrate may by order direct the Waqf Board of the State, where she resides to pay maintenance to her.

Constitutionality of the Act , 1986

In Daniel Latifi v. Union of India, (AIR 2001 SC 3958), the Supreme Court upholding the validity of the Muslim Women's (Protection of Rights on Divorce) Act, 1986 held that

 

(1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the Idda period must be made by the husband within the Idda period in terms of Section 3 (1) (a) of the Act.

 

(2) Liability of Muslim husband to his divorced wife arising under Section 3 (1) (a) of the Act to pay maintenance is no confined to Iddat period.

(3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after Iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim Law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Waqf Board established under the Act to pay such maintenance.

(4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

 

In Mohd. Siddique Ali v. Mustt. Fatema Rahid, [(2007) Cr.L.J. 1763] Gauhati High Court held that it is only when the husband is unable to make reasonable and fair provision for the future of his wife that the obligation is cast on the relatives of the divorced woman to provide for her maintenance in terms of Section 4 of the Muslim Women (Protection of Rights on Divorce) Act. The necessity of taking recourse to Section 4 of the Act arises only in those cases where the husband has not only failed to maintain the wife, but also is unable to make provision for her future necessities. Only in those cases where the husband is impecunious and unable to provide lump sum amount of money as a reasonable and fair provision, he may be granted instalments by the Court, should the Court consider instalments necessary and in the interest of justice.

 

In Iqbal Bano v. State of U.P., (AIR 2007 SC 245) the Apex Court observed that Muslim Women (Protection of Rights on Divorce) Act only applied to a divorced woman and not to a woman who was not divorced.

 

In Shihabuddin v. Shybi and Anr, [AIR 2010 (NOC) 810 Ker] the Kerala High Court held that whether the dissolution of marriage is under Talaq or Khula or Mubarat or under the Dissolution of Muslim Marriages Act, 1939, if the divorce is in accordance with the Muslim law, she is a divorced wife and so entitled to get all the benefits which are available to her, unless a reasonable and fair provision and maintenance has been made and paid or mehr or dower was paid.

 

In Shabana Bano v. Imran Khan, (AIR 2010 S.C. 305) the Supreme Court has reiterated that Section 125 of Cr. P.C. would be applicable to a divorced Muslim woman for the purpose of claiming maintenance against her husband even after the expiry of iddat so long as she does not remarry.

(3) Maintenance of a widow woman.-A widow woman is not entitled to obtain maintenance from the property of her deceased husband, because her right of inheritance supervenes.

Scale of Maintenance

 

The amount of maintenance cannot be determined with accuracy. Maintenance to be paid should be reasonable. In determining the scale of maintenance, due from the husband to the wife, according to Hanafi Law, the social position of both the husband and wife must be considered. The Shafii Law is that the position of the husband should alone be considered. The Shia Law is that the maintenance should be determined by the wife's requirements in respect of condiments, food, clothing, residence, service and implements of anointing: a due regard being also had to custom of her equals among her own people in the same city.

 

According Section 3(3) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the court has power for fixing quantum of maintenance to divorced Muslim Women. "directing her former husband to pay such reasonable and fair provisions and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband....". As such there are no limits fixed like the maximum limits under Section 125 CrPC. In Abdul Haq Yasmin Talat. [1998 CrLJ 3433 (MP, it was held that grant of separate amount by way of fair and reasonable provision, . over and above the amount of maintenance was not permissible.

 

 

References

 

Muslim Law in India—Tahir Mahmood

Family law  in India---S.R Myneni`s

 

: https://www.thedailystar.net/law/2004/01/01/queries.htm

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