A brief on maintenance of Muslim women

A brief on maintenance of Muslim women

The concept of maintenance under Muslim law has been introduced in order to support those people who are not capable of maintaining themselves. The principle of maintenance includes those basic requirements of a person that is necessary for their survival and includes such amenities like shelter, clothing, food, education and other such necessities that would be required for sustaining their life. Under the Muslim law of maintenance (called Nafaqa), the obligation of a Muslim to maintain the other person only arises in scenarios when the person cannot maintain herself or himself.

Under Muslim law, the wife, young children, the parents who are in need and other relations (within prohibited relations) that required to be maintained. Unlike Hindu law, a Muslim’s right to maintenance is not absolute. Only the wife is given such absolute right to be maintained. Irrespective of the financial position of both the wife and husband, the wife is entitled to claim maintenance from her husband.

Maintenance of Muslim wife

A Muslim wife’s right to maintenance is absolute and the husband is bound to maintain her even though there had been no agreement in this regard. He is only bound to maintain his wife of a valid marriage and not a wife of an irregular (except when irregularity is due to lack of witnesses) or void marriage.

The wife’s right is an independent right; but she cannot enforce this right of hers if she has not attained the age of puberty; if she has abandoned her husband and her duties under marital obligation; if she has remained unfaithful to her husband and committed adultery or eloped with another man or in case she has disobeyed a reasonable command given by her husband.

Maintenance of the wife under Cr.PC

Section 125 allows the wife to be maintained. In fact section 125 cuts across all religions. 125(4) lays down the obligation that the husband has to maintain his wife only as long as she remains faithful to him. Muslim law adds that the wife needs to be faithful and obedient. The right available to her under this act is an independent statutory right and is not affected in anyway by her personal laws.

In the case of Begum Subanu alias saira banu  v A.M Abdool Gafoor[1], the supreme court held that irrespective of a Muslim man’s right to marry a second time, the first wife would still be entitled to get maintenance from him. A Muslim wife is entitled to file a suit for maintenance in a civil court in case her husband has neglected to maintain her.

Maintenance of divorced wife

Under Muslim personal law, a divorced wife is allowed to claim maintenance form her previous husband only for the time period for which she observes Iddat for that husband. The course of Iddat would be 3 Tuhrs – 3 courses of menstruation. The husband’s liability to maintain his last wife extends only till she completes her Iddat period, not after that.

Under section 125 of the Crpc, the order of maintenance that has been given in favor of the divorced wife can be cancelled if the divorced went ahead and remarried; if such a woman has received the whole sum that was due to her on divorce under any personal or customary law; if the woman after obtaining divorce from the husband has voluntarily given up her right to claim maintenance.

In the case of Mohammed Ahmad khan V Shah Bano Begum[2], the couple had been married for around 40 years and had 5 children between them. The husband had sent her out of the house after giving irrevocable talaq and had remarried giving her 200 rupees. The wife went to court asking for maintenance as she was too old to remarry or work for her livelihood. The issue was taken up by the division bench and held that the Muslim women was entitled to maintenance even after divorce.

Under the Maintenance under the Muslim women (Protection of rights on divorce) Act, 1986- the divorced woman is entitled to a fair and reasonable amount of maintenance for herself during the Iddat period of her ex-husband. After the Iddat period, if the wife remains unmarried and is not in a position to maintain herself, section 4 of the act allows her to claim maintenance from those relatives of hers who would inherit her property after her death. If no such people exist, then the burden of maintaining her falls upon the waqf Board of the state she resides in.

In the case of Danial latifi and others V UOI[3], the constitutional validity of the above-mentioned act was challenged, saying that especially section 3(1) (a) of the act violated section 14 of the constitution. However the court upheld the validity of the Act.

In the case of Yousuf V Sowramma[4], it was held by the court that irrespective of what the cause may be, the wife was entitled to a decree for dissolution of her marriage if her husband failed to maintain her for a period of 2 years, even though the wife had a role to play in the failure of the husband to maintain her.

The Quantum of maintenance

This has not been prescribed under any personal law. The court decides upon the quantity on the basis of the financial condition of both the husband and wife and other circumstances that could be relevant to the case. Under the Shia law, the requirements of the wife are taken into account by the court in deciding the quantum of maintenance. The post of the husband is taken into consideration under Shefi law. Hence, we can see that the quantity of maintenance differs between the sub-castes of the Muslims.

Maintenance under agreements

A Muslim marriage is seen to be a contract between husband and wife. I such an agreement, the wife can put down certain conditions for marriage; and in case of breach of those conditions, she can ask for a right to live separately and also claim maintenance. In this case, the husband is liable to maintain his wife only till the Iddat period gets over.

[1] 1987 AIR 1103

[2] AIR 1985 SC 945

[3] (2001) 7 SCC 740

[4] AIR 1971 Ker 261

Author: Palguna M,
School of Law Christ University 2 year