Maintenance of divorced wife and children under Muslim law

MAINTENANCE OF DIVORCED WIFE AND CHILDREN UNDER MUSLIM LAW

INTRODUCTION

There is no clear provision dealing with the maintenance of children, as the Muslim law is totally uncodified. The word maintenance is denoted by the term ‘Nafaqa’ under Muslim law. It is the moral duty of a person, under Islam, to take care of his wife. He is also obligated, along with his parents to take care of his kids before they become independent. ‘Maintenance’ is referred to as ‘nafaqa’ under Muslim law and requires food, clothing and lodging. After divorce, Muslim personal law imposes a limited obligation on the husband to maintain his wife. Only during the time of Iddat and not thereafter does Muslim law place the responsibility for maintaining the divorced wife. To secure the rights of Muslim women who have been divorced or have received a divorce from their husband, the 1986 (‘The Act) Muslim Women (Protection of Rights on Divorce) Code was enacted.

MAINTENANCE OF DIVORCED WOMEN

Under the Muslim personal law as administered in India, a Muslim husband’s duty to maintain his divorced wife extends only upto the period of Iddat and thereafter, this liability is over. The period of Iddat upon divorce is three menstrual courses or three lunar months. In case the wife is pregnant, the period would extend upto the time of delivery, or abortion even if it is beyond three months. If the wife delivers before that period Iddat would terminate with that event. A divorced wife is entitled to her unpaid dower, which automatically becomes payable upon divorce. The wife has to file a civil suit against her former husband in order to demand maintenance under Muslim personal law.

Section 125 of the Criminal Procedure Code 1973

A ‘divorced wife’ includes the term ‘wife’. Section 125 is also applicable to a Muslim wife who is divorced. Section 127(3) provides that the maintenance order for the divorced wife is to be cancelled and that the divorced woman is not entitled to maintenance under the following circumstances:

• Where the divorced woman has remarried
• Where such woman has received the whole sum due to her on divorce under any customary or personal law, and
• Where the woman, after obtaining a divorce from her husband, has voluntarily surrendered the right to maintenance.

The Supreme Court upheld its stand in Mohd Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945 and held that for the purposes of section 125, a divorced Muslim woman, as long as she has not remarried, is a wife and is entitled to maintenance from her former husband. Ahmed Khan v. Shah Bano Begum’s landmark judgment reveals the battle that Muslim women face in maintenance cases. She was married to Ahmad Khan by Shah Bano, a 62-year-old Muslim woman who had pronounced talaq or divorce against her. She had approached the court under section 125 of the Code of Criminal Procedure (Cr.P.C.), which imposes a duty on the husband to provide for his divorced wife if she is unable to provide for herself, because she could not maintain herself and her 5 children. Her husband relied on the argument that the matter would come under the purview of Muslim personal law and that he would only be responsible for paying maintenance for the iddat duration along with the return of the mehr under Muslim personal law.

Nevertheless the case was settled in favor of Shah Bano and it was considered that Muslims were not excluded from exercising their rights under secular law. In this case the Supreme Court sought to ensure continued respect for the assertion of fair treatment of Muslim women, irrespective of their belonging to a particular religion. It was however, severely criticized by Muslim orthodoxy. They saw this case that had created a breakthrough for Muslim women to discuss their grievances as an invasion of the Muslim Shariat Law that they were bound by.

MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986:-

The judgment given in the case of Shah Bano was criticized among Muslims and this decision was in conflict with the rules of the “Quran” and “Islamic Laws/ Islam” according to them. Thus, in 1986, the Parliament of India (Congress Govt.) voted to enact the 1986 Act on Muslim Women (Protection of Divorce Rights). The primary purpose of this act was to secure the rights of divorced Muslim women and or those who have got divorced from the rights of their husbands. The enactment of this act was carried out by Rajiv Gandhi’s government to invalidate the Supreme Court’s decision in the Shah Bano Begum Case. Under this Act, Muslim divorced women should be entitled to sufficient and reasonable maintenance before the time of Iddat. If a divorced woman keeps a child born by her at any time before or after the divorce, the husband is legally obligated to provide the child with a certain amount of maintenance for a period of 2 years. From a child’s birth date the women is also entitled to obtain “Mahr” or “dower” and to obtain back all the properties or estate given to her by friends, parents, relatives, husband or husband’s friends. If such advantages are not obtained from her former husband by the divorced Muslim woman, she may request the magistrate to order him to provide her with maintenance/alimony or sum of “Mahr” or dower or her estate or property.

MAINTENANCE OF CHILDREN

There was no obligation on the part of parents to maintain their children in pre-Islamic Arabia. The Prophet declared after the advent of Islam that the birth of a child imposes on the father an obligation to maintain his children as long as they are unable to sustain themselves.

Father’s duty to maintain his children.

Under Muslim law, the father’s responsibility for the care of his children is fixed. A father is expected to provide the following individuals with maintenance:

• His son until he hits adolescence;
• His unmarried daughter;
• His married daughter, if her husband is not in a position to maintain her;
• His major son, if he is disabled, lunatic or not in a position to maintain himself.

As per Muslim law, if they refuse living with him without any reasonable reason, a father has no responsibility to take care of his children. A daughter has no unlimited right to demand her father’s maintenance, she can only demand it in specific circumstances.

Illegitimate children

The father is not his illegitimate children’s legal guardian. He has no duty whatsoever to maintain his illegitimate son or daughter. An illegitimate child is entitled to maintenance from his mother under Hanafi rule. But according to the Ithna Asharia School of Shila law, an illegitimate child is not entitled either to father or mother for maintenance.

Although a Muslim is not yet bound by his personal law to preserve his illegitimate issue, any agreement on the maintenance of an illegal child is true and enforceable. However, under the CrPC, 1973, a father, whether Muslim or non-Muslim, is under an obligation to keep his illegitimate children. Section 125 of the Code provides that if, because of any physical or mental abnormality or injury, a person with adequate means neglects or refuses to maintain his legitimate or illegitimate minor child or his legitimate or illegitimate child who is an adult but is unable to maintain himself, the Magistrate may order that person to make a monthly allowance not exceeding five hundred rupees.

In the case of Sukha v. Ninni, the issue of the maintenance of an illegitimate child was discussed. The details are as follows: Ninni was born to a girl named Jamila. In order to claim maintenance for Jamila from Sukha, Ninni went to court under section 488 (now, section 125) of CrPC. For Jamila’s maintenance, the Sub-divisional Magistrate directed Sukha to pay an amount of Rs. 10 per month to Ninni. Against this order, Sukha filed an application before the Sessions Judge. But he later withdrew his application as he made an agreement with Ninni that instead of Rs. 10 for the maintenance of their illegitimate child, Jamila, he would pay her an amount of Rs. 6 per month before she got married. Later, as per the agreement, he didn’t pay the amount. Ninni lodged a suit in court against him. He argued that a father is not bound to provide maintenance for his illegitimate child under Muslim law. The order given by the sub-divisional magistrate was also contrary to the provisions of Muslim law. He also claimed that the agreement is void under Section 23 of the Indian Contract Act 1872 as the consideration was inconsistent with the provisions of Muslim Law.

The court held that the maintenance of an illegitimate child is not acknowledged by Mohammedan Law, but Section 488 of the CrPC protects the rights of an illegitimate child. The court also held that no provisions of Muslim law can be defeated by an agreement made for the maintenance of an illegitimate child. The agreement, therefore, was not void.

Author: Ishita Agrawal,
B.A.LL.B. 3rd year, Himachal Pradesh National Law University Shimla