Maintenance Under Muslim Law


Maintenance is a fundamental concept that ensures the welfare and well-being of individuals, irrespective of their gender or religious beliefs. 

Under Muslim law, the principle of maintenance holds significant importance, as it embodies the principles of justice and social support. It provides a framework for the financial support and care of individuals who may be in need due to various circumstances.  Let’s take a look and navigate through the depths of this topic, shedding light on its significance and the rights and responsibilities it entails. 

The Concept of Maintenance Under Muslim Law

In Arabic, the term "maintenance" is synonymous with the word "Nafaqah," which translates to 'an amount spent by an individual for their family.' 

Numerous Muslim legal scholars affirm that maintenance encompasses all essential aspects of life, including food, clothing, and housing. This understanding is based on the principle of Kinship, whereby it is the responsibility of an individual to provide for the necessities of their family members. 

According to Muslim Law, individuals who are entitled to claim "nafaqah" or "maintenance" from someone include:

  • Wife
  • Children
  • Relatives such as parents, grandparents, and others
  • Slaves

Note: The husband should provide maintenance to his wife, regardless of whether she is capable of supporting herself or not. Nonetheless, he doesn't need to offer maintenance to his children and parents if they possess sufficient financial means to support themselves.

Maintenance of Wife 

In Muslim law, men are considered superior to women, and women are generally seen as dependent on men. Therefore, it is the husband's responsibility to support and provide maintenance for his wife, even after divorce. 

The husband's obligation to provide maintenance begins when the wife reaches the age of 15. The husband is obligated to provide adequate maintenance for his wife, regardless of his financial situation. This obligation continues even after the marriage has been dissolved.

This means whether the wife is Muslim or non-Muslim, wealthy or poor, healthy or ill, she has the right to receive maintenance from her husband under all circumstances. 

However, there are certain situations in which a Muslim wife is not entitled to maintenance:

  • If she voluntarily leaves the marital home without any valid reason.
  • If she runs away with another man.
  • If she has been imprisoned.
  • If she is a minor and the marriage has not been consummated.
  • If she disobeys her husband's reasonable commands.
  • If she agrees to the dissolution of the marriage for her husband's second marriage.

Maintenance of Divorced Women

According to Muslim personal law, a divorced wife has the right to receive maintenance from her former husband during the Iddat period. However, once the Iddat period is over, the wife is not entitled to any maintenance.  

In short, Muslim personal law does not recognize any obligation on the part of the husband to support his former wife after divorce.

But in Section 125 of the Criminal Procedure Code, 1973, the term "wife" includes a woman who has obtained a divorce from her husband and has not remarried. This section states that if a divorced wife is unable to support herself, she is entitled to maintenance from her husband until she remarries. 

This provision applies to Muslim women as well, even after the completion of the Iddat period. 

Under Section 127(3) of the Criminal Procedure Code, the maintenance of a divorced wife is terminated, and she is not entitled to maintenance under the following circumstances:

  • If she remarries.
  • If she has received the full amount due to her under any customary or personal law.
  • If she willingly gives up her right to maintenance after divorce.

You Might be interested in: Divorce under Muslim laws in India

Maintenance of the Children

Parents have the responsibility to care for their children and ensure their well-being. Children have the right to receive appropriate and sufficient support from their parents, particularly the father. 

In accordance with Muslim law, where men are regarded as superior and must maintain their families, the primary responsibility for child maintenance lies with the father.

  • According to Wilson, a son is entitled to receive maintenance from his father until he reaches the age of majority as defined by the Indian Majority Act. 
  • Mulla and Faizi assert that a father is obligated to provide maintenance for his son until the son attains puberty.
  • The father is responsible for providing maintenance to his daughter until she gets married. Even a widowed or divorced daughter is entitled to receive maintenance from her father.
  • However, the father is not obligated to maintain his son or unmarried daughter if they refuse to live with him without any valid reason. 
  • In Muslim law, the father is not obliged to maintain his illegitimate child who is ill. But as per Section 125 of the Criminal Procedure Code, if the father has sufficient means, he is obliged to maintain his child, whether legitimate or not.

The mother's responsibility to maintain her child arises when the child is illegitimate and the husband has refused to provide maintenance.

However, under Hanafi law, if the father is poor and the mother is rich, it becomes the mother's obligation to maintain the child. Nevertheless, she can recover the expenses when the husband becomes financially capable of repaying them.

But under Shafi'i law, even if the father is poor and the mother is rich, the mother is not obligated to maintain her child in that scenario. In such cases, the responsibility falls on the grandfather to maintain the child.

Muslim Personal Law

According to Muslim personal laws, following the dissolution of a marriage, a wife is entitled to receive maintenance from her husband only during the period of Iddat. Iddat refers to the specific period that a Muslim woman observes after divorce, during which certain rules and restrictions apply. 

The duration of Iddat is three menstrual cycles, and if the wife is pregnant, it extends until the completion of the pregnancy. The husband is obligated to provide maintenance solely during this Iddat period and not beyond. 

Once the Iddat period concludes, a Muslim woman may receive maintenance from her relatives who are eligible to inherit her property. 

Remember there exist particular situations wherein a wife does not have a right to receive maintenance following the termination of the marriage. These circumstances include:

  • If the marriage is terminated due to the wife's defects.
  • If the wife becomes an apostate.
  • When the right to maintenance was suspended during the marriage for various reasons.

However, there are certain situations where a wife can enter into a valid agreement to secure separate maintenance. These circumstances may arise due to ill-treatment, disagreements, the wife's inability to adjust to another wife, or any agreement that is contrary to public policy. 

For instance, an agreement stating that the wife will not be entitled to maintenance after divorce would be considered void.

Maintenance Under Criminal Procedure Code, 1973

Section 125 of the Criminal Procedure Code, 1973 establishes the right to maintenance for wives, children, and parents. This provision applies across India, irrespective of religion. According to this section, a wife is entitled to receive maintenance from her husband under the following circumstances:

  • If the wife is unable to support herself financially.
  • The husband must have sufficient means to provide for the maintenance.
  • If the husband has refused to maintain his wife.
  • The wife has not refused to live with her husband without a reasonable cause.
  • The wife is not involved in an adulterous relationship.
  • The husband and wife are not living separately by mutual consent.
  • The wife has not remarried after the divorce.

Under this section, only a woman who cannot sustain herself after divorce is eligible for maintenance. However, according to Muslim personal law, a wife is entitled to maintenance regardless of her wealth. This section appears to be in contradiction with the Shariat Act of 1937.

In the case of Ishak Chandra v. Myamatbi & Ors. (1980), the question arose regarding whether section 125 is inconsistent with the provisions of the Shariat Act and whether the Shariat Act should take precedence over the general provisions of the new code. 

It was concluded that the rights provided under Section 125 of the CrPC are additional rights granted to divorced Muslim women. These rights do not conflict with the rights conferred by Muslim Personal Laws. 

Furthermore, in the landmark case of Mohd. Ahmad Khan v. Shah Bano Begum (1985), Justice Y.Y. Chandrachud explained the scope of section 125 of the CrPC. He emphasized that a Muslim woman, after divorce, falls within the definition of "wife" as per the section and is therefore entitled to maintenance. 

He added that it would be unjust to hold that a Muslim husband is not obligated to maintain his former wife beyond the iddat period. Consequently, the scope of Section 125 was expanded to encompass Muslim wives as well.

The Muslim Women Act (Protection of Rights on Divorce), 1986

Following the significant ruling in the Shah Bano case, there was a commotion within the Muslim community seeking to nullify the impact of Section 125 of the CrPC. Because according to the Muslim community, a Muslim husband maintains his former wife only during the iddat period. 

Consequently, a bill was introduced in Parliament to establish separate provisions safeguarding Sharia and the rights of Muslim women. This led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 on 19th May 1986.

The aforementioned act solely applies to women married under Muslim law and does not extend its provisions to Muslim women married under the Special Marriage Act, of 1954. In the well-known case of Daniel Latifi v. Union of India (2001), a writ petition was filed under Article 32 challenging the constitutionality of the Act, arguing that it confers special provisions to women and is in violation of Article 14 of the Constitution of India. The Supreme Court of India dismissed the petition, thus upholding the validity of the act.

Important Case Law - Noor Saba Khatoon v. Mohd. Quasim (1997)

The case involves the following details: There were disputes between the husband and wife, resulting in the husband allegedly throwing his wife and children out of the house and refusing to provide them with maintenance. 

As a consequence, the wife, who was unable to support herself and her children, filed an application of Section 125 of the CrPC before the judicial magistrate. 

She argued that her husband had sufficient means to earn a livelihood through his business and requested Rs 400 per month for herself and Rs 300 per month for each of her three children.

The Trial Court determined that despite having adequate means, the husband had failed to provide maintenance to his wife and children. The court ordered him to pay Rs. 200 per month to his wife and Rs 150 per month to each of his children until they reached the age of majority. 

Subsequently, the husband divorced the wife and applied to the trial court seeking a modification of the previous order in light of the provisions of the 1986 Act. The court ruled that the rights of children to receive maintenance under Section 125 of the CrPC were unaffected by any provision of the 1986 Act.

The Supreme Court also stated that a divorced Muslim woman has the right to claim maintenance from her former husband until their children reach the age of majority. 

Further, the Court emphasized that the father's duty to provide maintenance to his children when they reside with their mother is established under both Muslim law and Section 125 of the CrPC. This right is independent of the divorcee's (wife's) right to claim maintenance under Section 3(1) of the 1986 Act, and the two rights coexist.