MAINTENANCE (NAFAQA)

INTRODUCTION: The term Nafaqa literally means "spending" or "that which is spent."
In the language of the law, it signifies all those things which are necessary to the
support of life, such as food, clothing, and lodging.
Nature of the Obligation: Unlike some other legal systems, maintenance under
Muslim law is not merely a charitable or moral duty—it is a legally enforceable
right arising from specific causes. The obligation is rooted in the Qur'an, the Sunnah,
and the consensus of jurists.
A person's right to maintenance is determined by their ability to support themselves.
The Sharia maxim states: "One who has sufficient provisions and maintenance isn't
entitled to be spent on because he/she has enough"

I. DEFINITIONS:
Maintenance (nafaqah) in Islamic law encompasses provisions for food, clothing, and
shelter, ensuring social justice and family welfare. It is a divine, moral, and legal
obligation.
Under Muslim Law maintenance has been defined by various jurists as under:
HEDAYA: “All those things which are necessary to the support of life, such as food,
clothes & lodging may confine it solely to food.
DURR-UL-MUKHTAR: “NAFAQA literally means that which a man spends over his
children, in law it means feeding, clothing and lodging; in common use it signifies food.”
FATAWA-I-ALAMGIRI: “Maintenance comprehends food, raiment and lodging, though
in common parlance it is limited to the first.”
NAFAQA literally means that which a man spends over his family, in law it means (i)
feeding, (ii) clothing and (iii) lodging.

The classical jurists unanimously agree that maintenance is obligatory on specific

grounds. As noted in the Durru 'l-Mukhtar, there are three causes for maintenance
established by law.
1. Marriage (Nikah)
2. Relationship (Qarabat)
3. Property (Milk) - historically for slaves, now largely obsolete

II. PRINCIPLES OF MAINTENANCE

Quantum of Maintenance: The amount of maintenance is determined by the
following principles:
1. Standard of Living: Maintenance must be fixed according to the means and
status of the parties. It should be the middle course—neither extravagant nor miserly.
2. Capacity of the Husband: The husband's financial capacity is the primary
consideration. As the Qur'an states, a man should spend "according to his means".
 However, poverty does not absolve him of the obligation; it merely reduces the
quantum.
3. Needs of the Recipient: The essential needs of the wife/children—food, clothing, and
shelter—form the baseline. In modern circumstances, this also includes essential
utilities, transport costs, and education expenses for children.
4. Classification by Financial Class: The Hanafi school classifies the standard of
accommodation based on the financial class of the parties :
When Does Maintenance Become a Debt?: If a husband fails to provide
maintenance, the wife may procure necessities on his credit, and the amount becomes
a debt upon him. The court can decree maintenance out of the property of an absent
husband.
No Retrospective Maintenance (General Rule)
Under classical Hanafi law, past maintenance not paid does not become a debt unless
it was fixed by a decree of the court or by agreement of the parties. However, modern
statutes in some jurisdictions have modified this rule.

III. PERSONS ENTITLED TO MAINTENANCE: A Muslim is under an

obligation to maintain the following persons:
1. His descendants
2. His ascendants.
3. His collaterals
4. His wife

I. DESCENDANTS

It is the father’s primary liability to maintain his children (legitimate). This liability is
absolute and he cannot escape saying he is poor, indigent etc. Even the children are
under mother’s custody, still father is liable to provide maintenance to the following:
• Minor children of either sex
• Unmarried daughters
• Married daughter if she is poor
• Adult son if he is in necessity (poor)

- Unmarried daughter she is entitled to claim maintenance only if she resides with the
father and if she refuses to stay with father without reasonable ground she will lose
her claim of maintenance.
- Whether minor children are with him or under the custody of his wife after dissolution
of their marriage, father’s obligation to maintain them is absolute.
- If in any case wife maintains the children she can file a suit and get the entire amount
she spends on her children from her husband.
- Extent of Maintenance: Child maintenance entails food, clothes, rent/housing,
essential utilities, transport costs, tuition fees for education, lunch money, uniform, and
other schooling necessities.

MOTHER’S LIABILITY:
When the father has no means and if he is indigent, the mother is liable to maintain
her minor children. But she is permitted to recover the expenses from father when
circumstances permit.
Under Sunni law, mother has absolute liability to maintain her illegitimate children
whereas, under Shia law, she is not under obligation to maintain them.
• Suckling: A mother who is married cannot be compelled to suckle her infant,
except where a nurse cannot be procured, or the child refuses any other milk.
• Financial Obligation: If the father is poor and the mother is rich, the mother may
be ordered to maintain the child with a right of recourse against the father.

3. Child's Own Property: If the child has independent property, maintenance is first
charged on that property. The father is only obligated if the child has no property.

GRANDPARENT’S LIABILTY:
When the father is poor and the child's paternal grandfather is rich, the grandfather
may be directed to maintain the child, with the amount being a debt due to him from
the father.
So when both the mother and father fail to maintain their children, it is the duty of the
grandparents both maternal and paternal to provide for their maintenance.

FATHER IN LAW’S LIABILITY:

There is no obligation on father in law to maintain the widow of his son. Only the widow
is entitled to claim unpaid dower amount and Iddat maintenance from the estate of her
husband and she is further entitled to get inheritance right from her husband’s
property.

II. MAINTENANCE OF ASCENDANTS:

MAINTENANCE OF PARENTS:
1. Children's Obligation to Parents:
• General Rule: A child in easy circumstances may be compelled to maintain his
poor parents, whether they be Muslim or not.
• Mother's Priority: When a son is able to maintain only one of his parents, the
mother has the better right.
• No Condition of Infirmity: A son is bound to maintain his poor mother even if
she is not infirm, and even if he is in straitened circumstances himself.
• Father: A son must maintain his father if the father is infirm or unable to earn.
2. Quantum:
If both parents are to be maintained, and there are male and female children, the
maintenance is apportioned: two-thirds by the father (as child) and one-third by the
mother (as child), according to some authorities.
3. Grandparents:
The maintenance of grandfathers and grandmothers, if indigent, is incumbent upon
their grandchildren, though the former be of different religion.

1) CHILDREN’S LIABILITY:
As the parents are under an obligation to maintain their children, even children are
liable to provide maintenance to their parents. Every child whether male or female,
adult or minor, who has sufficient property or earnings is responsible to supply
maintenance to his parents.
Under Sunni Law whether the parents are capable of earning or not, still children
obligation is absolute to maintain parents.
But under Shia law, the children liability arises only when parents are disable and not
earning or incapable to earn then only it’s the duty of the children to maintain.

2) GRAND CHILDREN’S LIABILITY:

Grand children liability is only when
i. Parents are not alive (whether mother or father)
ii. Parents are alive but they are indigent or poor.
iii. Present grandchild is in easy circumstances.
A Muslim is under obligation to maintain grandparents both maternal and paternal in
case their children are unable to maintain them.
 III. MAINTENANCE OF COLLATERALS:
Under Sunni law especially under Hanafi School, a Muslim is under an obligation to
maintain his collateral relations within prohibited degrees of relationship only in the
following cases:
i. He is in easy circumstances
ii. Relation claiming has no other means of maintenance
Under Shia law no Muslim is under obligation to maintain collaterals in any case.
1. General Principle:
It is a man's duty to provide maintenance for:
• All his infant male relations within prohibited degrees who are in poverty
• All female relations within the same degrees, whether infants or adults, where
they are in necessity
• All adult male relations within the same degrees who are poor, disabled, or blind
2. Order of Liability:
The Durru 'l-Mukhtar provides a detailed scheme of liability among relatives based on
proximity and inheritance shares.

IV. MAINTENANCE OF WIFE:

Muslim husband’s obligation to maintain his wife is absolute and her rights come first
compared to his parents, children etc.
Husband’s liability to maintain his wife can be studied under two circumstances or
heads, namely:
1) During subsistence of marriage
2) After dissolution of marriage

1) DURING SUBSISTENCE OF MARRIAGE:

Husband is bound to maintain his wife whether he is rich or poor, young or old and
even if he converts to another religion also he has to maintain his wife.
Wife gets right to claim maintenance if she fulfils the following conditions:

1. Valid Marriage: The wife must be lawfully married. An invalid (fasid)

marriage may also entitle her to maintenance if consummated.
 2. Surrender/Custody: The wife is entitled to maintenance provided she has
surrendered herself to the custody of her husband and is not "refractory or
rebellious" (nashizah).
3. Accessibility: She must be accessible to him and not prevent him from
exercising his marital rights without lawful excuse.
4. Puberty: She has attained puberty (capable to render herself to the
husband his conjugal rights)
5. She places and offers herself in his power and obeys his lawful commands.

During the subsistence of marriage right from the day of consummation of marriage
husband’s obligation is absolute till his death or divorce.
Wife is not only entitled for maintenance depending upon settlements between them
she is also entitled to Kharchi-I-Pandan, Guzara, Mewa-Khori expenses from her
husband.
Wife is entitled for separate residence and maintenance if husband has turned her out,
or treated her with cruelty, keeps idols worshipper as concubine or leads immoral life.
Determination of amount of maintenance depends upon the social position of both,
educational qualification of both & financial position of husband.
But wife is not entitled to maintenance
a) If she abandons the conjugal domicile without valid reason
b) Refuses to access her husband without valid reason
c) Disobedient to his reasonable commands
d) Refuses to live with her husband without lawful excuse
e) If she has been imprisoned
f) If she eloped with someone
g) If she is a minor on account of which marriage cannot be consummated
h) If she deserts her husband voluntarily

2) AFTER DISSOLUTION OF MARRIAGE:

Wife’s right to maintenance ceases on account death of her husband and her right to
inherit property of her husband comes into existence.
Under Muslim law divorce wife is entitled to be maintained by her former husband
during the period of IDDAT.
 As per “Quran- let the woman live (in iddat) the same style as you live, according to
your means, annoy them not, so as to restrict them. And if they carry (pregnant) then
spend on them until they deliver their burden and if they suckle your (child) give them
their recompense”. These verse give clear cut picture that divorced wife is entitled for
maintenance till the expiry of Iddat period.

4. Effect of Divorce:
- During Iddat: A divorced wife is entitled to food, clothing, and lodging during the
period of iddat (waiting period), and until delivery if she is pregnant.
- Death of Husband: No maintenance is due for iddat observed upon the death of her
husband.
- Post-Iddat: Under classical law, no maintenance after iddat. However, modern
statutes (Section 125 CrPC in India and the Muslim Women Act, 1986) have modified
this significantly.
Under classical Islamic law, as developed by the early jurists, the husband's obligation
to maintain his wife was limited to the period of marriage and the iddat (waiting period)
following divorce.
The Classical Rule:
Period Maintenance
During Marriage Full maintenance (nafaqa)
During Iddat (post-divorce) Full maintenance
After Iddat No maintenance obligation

THE CONTRAVERSY:
Under S/125 Cr.P.C, 1973,(corresponding Sec.144 of BNSS, 2023) wife is entitled to
claim maintenance from her husband and wife includes divorced wife.
As per S/127 (3): Maintenance order shall be cancelled only when
1. She has remarried
2. She has received the whole sum due to her under customary or personal law
3. Voluntarily surrendered her right to maintenance after divorce
So, as per the Territorial Law (BNSS) husband is under obligation to maintain his
divorced wife till her remarriage or death.
Aga Mahomed Jaffer Bindaneem v. Koolsom Bee Bee (1897) 24 I.A. 196 | Privy
Council
Facts of the Case: Haji Hussain Bindaneem, a Shia Muslim, died in February 1890,
leaving behind a widow, Kulsoom Bibi, and no children. The widow
claimed maintenance from the estate of her husband for one year from the date
of his death. The Recorder of Rangoon awarded the childless widow maintenance at
the rate of 150 per month for a year.
Issues of Law:
 Whether a Muslim widow is entitled to maintenance from her deceased
husband's estate in addition to her inheritance share?
 How should courts interpret Qur'anic verses when classical jurists have
provided authoritative interpretations?
Judgment and Reasoning: The Privy Council reversed the Recorder's decision,
delivering the judgment, held that the Recorder's decision conflicted with the long-
established rule and held Widow is entitled for maintenance only during Iddat and then
inheritance rights will be overtake.
Bai Tahira v. Ali Hussain Fissalli Chothia 1979 AIR 362, 1979 SCR (2) 75:
Bai Tahira was divorced by her husband, she received some amount by way of mahr
and maintenance during iddat. She sought maintenance under Section 125 CrPC. The
husband contended that payment of mahr discharged his obligation Held: Section 125
CrPC applies to Muslims, the provision is secular and intended to prevent vagrancy
Payment of mahr does not automatically discharge the husband's obligation. The court
must examine whether the amount paid is sufficient for the wife's maintenance. The
Court made a statement in the context of Section 127(3)(b), that "payment of
Mahr money, as a customary discharge, is within the cognizance of that
provision".
Fazlunbi v. K. Khader Vali (1980) AIR 1730: Affirmed the ratio in Bai Tahira and
Reiterated that Section 125 [Link] applies to Muslims.
SHAH BANOO: Mohd. Ahmed Khan v. Shah Bano Begum 1985 AIR 945, 1985
SCR (3) 844 (5-Judge Constitution Bench)
The appellant, Mohd. Ahmed Khan, an advocate by profession, was married to the
respondent, Shah Bano Begum, in [Link] sons and two daughters were born of
the marriage. In 1975, the appellant drove the respondent out of the matrimonial home.
In April 1978, the respondent filed a petition under Section 125 CrPC seeking
maintenance at Rs. 500 per month, alleging the appellant's professional income was
about Rs. 60,000 per annum. On November 6, 1978, the appellant divorced the
respondent by an irrevocable talaq and he had deposited Rs. 3,000 in court by way of
dower (mahr) during iddat 600/-Iddat maintenance.
In August 1979, the Magistrate directed the appellant to pay a princely sum of Rs. 25
per month. In July 1980, the Madhya Pradesh High Court enhanced maintenance to
Rs. 179.20 per [Link] appellant appealed to the Supreme Court by special leave
in 1981
B. Issues before the Court
Whether Section 125 CrPC applies to Muslims?
Whether the payment of mahr by the husband on divorce is sufficient to discharge his
obligation to pay maintenance?
Whether a divorced Muslim wife is entitled to maintenance beyond the iddat period?
C. The Judgment and Its Ratio Decidendi
The Constitution Bench delivered a unanimous verdict upholding the High
Court's decision.
1. Section 125 CrPC is Secular and Applies to Muslims
The Court held that Clause (b) of the Explanation to Section 125(1), which defines
'wife' as including a divorced wife, contains no words of limitation to justify the
exclusion of Muslim women from its scope. Therefore, a divorced Muslim woman, so
long as she has not remarried, is a wife for the purpose of Section 125.
2. The Provision is designed to Prevent Vagrancy
3. Section 125 Overrides Personal Law in Case of Conflict
4. The True Position under Muslim Personal Law
The Court examined the Qur'anic verses and held: "The true position is that, if the
divorced wife is able to maintain herself, the husband's liability to provide maintenance
for her ceases with the expiration of the period of Iddat. If she is unable to maintain
herself, she is entitled to take recourse to Section 125 of the Code. “Verses 241 and
242 of Surah Al-Baqarah
5. Mahr is NOT payable "on Divorce"
"Mahr is not the amount payable by the husband to the wife on divorce and therefore,
does not fall within the meaning of Section 127(3)(b) of the Code."
The Court reasoned: If mahr is an amount which the wife is entitled to receive from
the husband in consideration of the marriage, that is the very opposite of the amount
being payable in consideration of divorce. Divorce dissolves the marriage; therefore,
no amount payable in consideration of marriage can be described as payable in
consideration of divorce
The Court expressly corrected the error in Bai Tahira:
"The Judgments of the Supreme Court in Bai Tahira and Fazlunbi are correct, except
to the extent that the statement at page 80 of the report in Bai Tahira made in the
context of Section 127(3)(b) namely, 'payment of Mahr money, as a customary
discharge is within the cognizance of that provision'."
6. The Uniform Civil Code Observation: The Court also expressed anguish that
Article 44 of the Constitution (Directive Principle for Uniform Civil Code) had remained
a dead letter:
7. Final Order: The appeal was dismissed, and the High Court's order granting
maintenance of Rs. 179.20 per month was confirmed. The appellant was directed to
pay costs of Rs. 10,000.
AFTERMATH OF SHAH BANO
A. Political and Social Reaction: The Shah Bano judgment sparked massive political
and religious controversy:
Muslim Orthodoxy Strongly opposed the judgment, claiming it interfered with Muslim
Personal Law
The Rajiv Gandhi government faced intense pressure from conservative Muslim
groups. The judgment became a major political issue, with debates about secularism
and minority rights
The All India Muslim Personal Law Board acquired a reputation for advocating an
explicitly discriminatory judicial attitude towards its female citizens.
Under pressure, the Rajiv Gandhi- led government enacted
The Muslim Women (Protection of Rights on Divorce) Act, 1986, which came into
force on 19th May, 1986Consisting of 7 Sections
SECTIONS:
1. Short title and extent.
2. Definitions.
3. Mahr or other properties of Muslim woman to be given to her at the time of divorce.
4. Order for payment of maintenance.
5. Option to be governed by the provisions of sections 125 to 128 of Act 2 of 1974.
6. Power to make rules.
7. Transitional provisions.
II. Definitions under the act (SECTION 2)
Before examining the substantive rights, it is essential to understand the key
definitions:
Term Definition

A Muslim woman who was married according to Muslim law, and has been
Divorced
divorced by, or has obtained divorce from, her husband in accordance with
Woman
Muslim law.

(i) Three menstrual courses after divorce (if subject to

menstruation);
Iddat
(ii) Three lunar months after divorce (if not subject to menstruation);
Period
(iii) If pregnant, the period between divorce and delivery or
termination of pregnancy, whichever is earlier

A Magistrate of the First class exercising jurisdiction under the Code of

Magistrate
Criminal Procedure, 1973 in the area where the divorced woman resides.

III. RIGHTS OF A DIVORCED MUSLIM WOMAN UNDER SECTION 3

Section 3 is the core provision of the Act. It begins with a non-obstante
clause ("Notwithstanding anything contained in any other law for the time being in
force"), which means its provisions override any inconsistent general laws.
A. Entitlements under Section 3(1)
A divorced woman is entitled to four distinct categories of rights:

Clause Entitlement Explanation

This is the most significant and

Reasonable and fair provision and
contentious provision. It creates two
maintenance to be made and paid to her
(a) distinct obligations: (i) "provision" (for
within the iddat period by her former
the future) and (ii) "maintenance" (for
husband.
the iddat period).

Where she maintains the children (born

before or after divorce), reasonable and This is the child's right to
(b) fair provision and maintenance for a maintenance, payable through the
period of two years from the respective mother.
dates of birth of such children.

An amount equal to the sum of mahr or

This confirms that Mahr is a debt
dower agreed to be paid to her at the time
(c) payable on divorce, not merely a gift
of marriage or at any time thereafter
during marriage.
according to Muslim law.

All properties given to her before, at the

time of, or after marriage by her relatives, This covers gifts, dowry items, and
(d)
friends, husband, or the husband's other properties.
relatives or friends.
B. The Critical Distinction: "Provision" vs. "Maintenance"
The language of Section 3(1)(a) is crucial. It uses two
words: "provision" and "maintenance." The Act requires both to be made and paid
"within the iddat period."
 Literal Interpretation: A narrow reading would suggest that the husband's
liability is limited to the iddat period only .
 Purposive Interpretation: The Supreme Court in Danial Latifi v. Union of
India (2001) adopted a broader interpretation, holding that "provision" refers to
making arrangements for the future, while "maintenance" refers to support
during iddat. Both must be paid within iddat, but the "provision" is meant to
cover the woman's needs beyond iddat .
C. Procedure for Enforcement (Section 3(2) to 3(4))
1. Application: If the amounts or properties are not paid or delivered, the woman
(or her authorized representative) may file an application before a Magistrate
of the First Class.
2. Order by Magistrate: The Magistrate, if satisfied that the husband has
sufficient means but has failed or neglected to pay, shall make an order within
one month of the date of filing the application, directing payment of such
reasonable and fair provision and maintenance as may be determined, having
regard to :
o The needs of the divorced woman
o The standard of life enjoyed by her during her marriage
o The means of her former husband
3. Enforcement: If the husband fails to comply without sufficient cause, the
Magistrate may :
o Issue a warrant for levying the amount as a fine
o Sentence him to imprisonment for a term which may extend to one
year or until payment is made (subject to hearing the person in defence)
D. Question of Jurisdiction: Magistrate or Family Court?
An important procedural question is whether applications under Section 3 must be
filed before a Magistrate (as the Act specifies) or can be filed before Family Courts
established under the Family Courts Act, 1984.
 Section 3(2) specifically provides for application to a Magistrate of the First
Class.
 However, the Family Courts Act (enacted two years earlier) gives Family Courts
jurisdiction over all matters concerning maintenance.
 Conflicting Views: There have been divergent High Court judgments on this
issue. Some hold that Magistrates have exclusive jurisdiction, while others hold
that Family Courts have concurrent or exclusive jurisdiction.
  Supreme Court Reference: In Rana Nahid v. Sahidul Haq Chisti (2020) , a
two-judge bench of the Supreme Court delivered conflicting opinions on this
question, and the matter has been referred to a larger bench for resolution .
IV. THE SCHEME OF LIABILITY: THE HIERARCHY OF OBLIGATION (SEC. 4)
One of the most distinctive features of the 1986 Act is the hierarchical scheme of
liability for a divorced woman who is unable to maintain herself after the iddat period .
A. Primary Liability: The Husband (Section 3)
As discussed above, the husband is directly liable under Section 3 for:
 Provision and maintenance within iddat
 Mahr
 Return of properties
 Two years' maintenance for children
B. Secondary Liability: The Woman's Relatives (Section 4(1))
If a divorced woman has not remarried and is not able to maintain herself after
the iddat period, the Magistrate may order her relatives to pay maintenance .
 Who are the liable relatives? Those who would be entitled to inherit her
property on her death according to Muslim law.
 Proportion: The maintenance is payable by such relatives in the proportions
in which they would inherit her property .
 Priority among relatives :
o First, her children (if she has children, the Magistrate shall order only
such children to pay maintenance)
o If children are unable to pay, then her parents
o If parents are unable to pay, then other relatives in the order of
inheritance
C. Tertiary Liability: The State Wakf Board (Section 4(2))
If the divorced woman has no relatives, or the relatives lack sufficient means, the
Magistrate may order the State Wakf Board (established under the Wakf Act)
functioning in the area to pay the maintenance.
Critical Observation: This hierarchical scheme was heavily criticized in the Danial
Latifi case. The Supreme Court noted that making a divorced woman "run from pillar
to post in search of relatives one after the other and ultimately to knock at the doors
of the Wakf Board" would be an unreasonable and unfair substitute for the simple
remedy under Section 125 CrPC .
VI. OPTION TO BE GOVERNED BY CRPC (SECTION 5): Section 5 of the Act
provides an interesting option:
If on the date of the first hearing of the application under Section 3(2), a divorced
woman and her former husband declare, by affidavit or other declaration in writing,
either jointly or separately, that they would prefer to be governed by the provisions of
Sections 125 to 128 of the Code of Criminal Procedure, 1973, the Magistrate shall
dispose of such application accordingly.
This means that the parties can opt out of the 1986 Act and choose to be governed
by the general maintenance provisions of the CrPC. However, this requires
the consent of both parties.

VII. THE RELATIONSHIP BETWEEN THE 1986 ACT AND SECTION 125 CRPC
A significant question that arose over the years was whether the 1986 Act completely
ousted the jurisdiction of magistrates under Section 125 CrPC for divorced Muslim
women.
A. Conflicting Views in High Courts
Various High Courts took different views on this question:
 Some held that the 1986 Act is a complete code and Muslim women cannot
invoke Section 125 CrPC.
 Others held that the remedies are concurrent, and Muslim women have the
option to choose.
TEXT OF SECTION 144 BNSS, 2023: The Bharatiya Nagarik Suraksha Sanhita
(BNSS), 2023 is the new criminal procedure code that replaced the Code of
Criminal Procedure, 1973. Section 144 of the BNSS is the equivalent provision to
the erstwhile Section 125 CrPC .
The substantive provisions remain largely identical to the old Section 125 CrPC, with
minor changes in language and structure. The provision continues to be a secular,
summary remedy available to all citizens regardless of religion.

CHALLENGE TO THE 1986 ACT AND ITS INTERPRETATION

Case: Danial Latifi v. Union of India (2001) 7 SCC 740 | AIR 2001 SC 3958 (Five-
Judge Constitution Bench) on 28 September 2001
The constitutional validity of the Act was challenged through a writ petition filed
by Danial Latifi and others. The petitioners argued that the Act discriminated against
Muslim women and violated Articles 14, 15, and 21 of the Constitution.
Issues of Law:
1. Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986, is
constitutionally valid?
2. Whether the Act discriminates against Muslim women in violation of Article 14?
3. What is the true interpretation of Section 3(1)(a) of the Act regarding
"reasonable and fair provision"?
Judgment and Ratio Decidendi:
The Supreme Court upheld the constitutional validity of the Act, but only
by "reading it down" —interpreting it in a manner that preserved its constitutionality.
1. Principle of Constitutional Interpretation: Legislation relating to personal matters
can legitimately reflect social ethos, but it must not breach Article 14 and unfairly deny
equal protection.
2. The Dual Obligation: "Provision" vs. "Maintenance":
  Section 3(1)(a) uses two distinct words: "provision" and "maintenance" .
 "Maintenance" refers to support during the iddat period.
 "Reasonable and fair provision" is a separate and broader obligation—it
refers to making arrangements for the wife's future needs beyond iddat.
 Both must be made and paid within the iddat period, but the "provision" is
meant to cover her needs for the rest of her life.
3. Textual Interpretation: The Court held that the language of Section 3(1)(a) is clear:
the husband must make "reasonable and fair provision" for the divorced woman.
 This provision is not time-limited to the iddat period.
 The amount must be sufficient to meet her needs for the future.
4. Harmonizing with Section 125 CrPC: The Act, as interpreted, incorporates the
provisions of Section 125 CrPC in substance. A divorced Muslim woman who is
unable to maintain herself is entitled to receive a one-time lump sum payment during
the iddat period that is sufficient for her lifetime maintenance. This ensures that no
divorced Muslim woman is left destitute.
5. Gender Justice and Human Rights: The Court observed: "In a society dominated
by males both economically and socially, women devote themselves to the family. If
this 'investment' is lost through divorce, they need to be protected, their sacrifices
recognised and compensated for accordingly." Regardless of religion, women must
have their basic human rights recognized and protected.
6. Rejection of Narrow Interpretation: The Court rejected the interpretation that the
husband's liability ends with iddat. To accept that interpretation would render the Act
unconstitutional.
Final Holdings: The Act was upheld as constitutionally valid.
 Section 3(1)(a) is interpreted to mean that the husband is liable to
make reasonable and fair provision for the future of the divorced wife,
which obviously includes her maintenance as well.
 This provision must be paid within the iddat period but is meant to cover her
needs beyond iddat.
 In effect, a Muslim husband is liable to provide for his divorced wife in a manner
similar to Section 125 CrPC.
Significance: It "saved" the Act from being struck down as unconstitutional by
interpreting it in a manner consistent with fundamental rights. It established that
divorced Muslim women are entitled to lifetime provision, not just three months of
maintenance. It harmonized Muslim personal law with constitutional guarantees of
equality and dignity. It remains the binding precedent on the interpretation of the 1986
Act.
MAINTENANCE OF WIFE UNDER SECTION 144 OF THE BNSS, 2023
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 is the new criminal
procedure code that replaced the Code of Criminal Procedure, 1973. Section 144 of
the BNSS is the equivalent provision to the erstwhile Section 125 CrPC .
The substantive provisions remain largely identical to the old Section 125 CrPC, with
minor changes in language and structure.
The provision continues to be a secular, summary remedy available to all citizens
regardless of religion.
S/144. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain—
(a) His wife, unable to maintain herself; or
(b) His legitimate or illegitimate minor child, whether married or not, unable to maintain
itself; or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury
unable to maintain itself; or
(d) His father or mother, unable to maintain himself or herself,
The Supreme Court in July 2024 clarified that Muslim women have parallel
remedies:
 They can claim maintenance under Section 144 BNSS (secular remedy)
 They can also claim rights under the Muslim Women (Protection of Rights
on Divorce) Act, 1986
The codification of a Muslim woman's rights in the 1986 Act is in addition to, and not
in derogation of, her right to seek maintenance under Section 144 BNSS.

Rousanara Begum v. S.K. Salahuddin & Anr. (2025) INSC 1375 | Decided in Dec.
2025
Facts of the Case: The appellant (Rousanara Begum) married in 2005 and separated
in 2009. She obtained a divorce in 2011. She sought recovery of Rs. 7,00,000 and 30
bhori gold ornaments given at the time of her marriage. She filed an application
under Section 3(1)(d) of the Muslim Women (Protection of Rights on Divorce) Act,
1986. The trial court and session’s court upheld her claim, relying on
the qabilnama and the marriage registrar's testimony. The Calcutta High
Court reversed these findings based on the father's earlier statement in a Section
498A IPC proceeding that the amounts were given to the groom. The woman appealed
to the Supreme Court.
Issue of Law: Whether goods given to a daughter at the time of her marriage by her
father, or even to the bridegroom, can, by application of law, be returned to the
daughter upon divorce under Section 3(1)(d)?
Judgment and Reasoning: The Supreme Court set aside the Calcutta High Court
order. Application of Section 3(1)(d) The provision covers "all properties given to her
before, at the time of, or after marriage by her relatives, friends, husband, or the
husband's relatives or friends."
 This includes gifts given to the daughter even if handed over to the groom.
 The social justice objective of the Act requires a broad interpretation.
Final Order: The appeal was allowed. The respondent was directed to transfer the
amount directly to the appellant's bank account. Compliance to be filed within six
weeks. Failure to do so would attract 9% interest per annum.
 COMPARATIVE TABLE: SHIA VS SUNNI LAW ON MAINTENANCE

Aspect of
Sunni Law (General) Shia (Ithna Ashari/Ja'fari) Law
Maintenance

Basis of Marriage contract; wife's Marriage contract; wife's

Obligation submission to husband obedience

Hanafi: Social status of both Necessities of wife (food, clothes,

Quantum/Amou husband and wife accommodation) are determinant;
nt Shafi'i: Only husband's status/economic conditions not
economic condition primary

If she goes for pilgrimage

Wife's Right
without husband's permission, If pilgrimage is obligatory,
When Going on
maintenance lapses (majority maintenance remains due
Pilgrimage
view)

Hanafi: Wife cannot claim

maintenance for past period
Past (Generally follows principle that
(period gone)
Maintenance maintenance becomes a debt;
Shafi'i, Maliki,
(Arrears) varies by jurisdiction)
Hanbali: Wife can claim past
maintenance

Effect of Wife's Hanafi: Wife's imprisonment Similar principle (wife not available
Imprisonment debars her from claim for conjugal rights)

Effect of
Husband's Does not defeat wife's claim Does not defeat wife's claim
Imprisonment

Working wife may lose

maintenance if work
Wife's Similar principle, but with nuances
constitutes nushuz (disobedien
Employment on obligatory acts
ce) by leaving home without
consent

Maintenance
Wife entitled to maintenance; Same: husband must pay
During Iddat
considered wife maintenance if she is not
(Revocable
until iddat ends recalcitrant
Divorce)

Wife's
Recommended during iddat of
Obligation to Recommended (mustahabb)
revocable divorce
Beautify
 PARENTAGE, LEGITIMACY, ACKNOWLEWDGEMENT

PARENTAGE
Parentage is the relation of parent to their children. In general sense it is used for
legal relationship between child and his parents. This legal relationship creates
certain rights and duties such a mutual rights of inheritance, maintenance,
guardianship, social recognition and status.
Significance of Parentage in Muslim Law: Parentage is one of the most
crucial concepts in Muslim personal law because it determines:
 Legitimacy status of the child
 Right to inherit from father and paternal relatives
 Right to maintenance from father
 Right to guardianship
 Social identity and community belonging
Parentage can be studied under two heads:
I. Maternity
II. Paternity
I. MATERNITY (RELATIONSHIP WITH MOTHER)
Under Sunni Law: Under Sunni law, maternity is established by birth alone,
regardless of whether the child is born within a valid marriage or
through zina (adultery/fornication). The woman who gives birth to the child is the
legal mother, irrespective of the legitimacy of the conception.
This was affirmed in Gohar Begum v. Suggi Alias Nazma Begum (1960), where
the Supreme Court held that under Hanafi law, when a child is born, the woman who
gives birth will be considered as the mother of the child, and maternity will be
established irrespective of the relationship between the begetter of the child and her.
Consequence: Under Sunni law, an illegitimate child has maternity established in
the woman who gave birth, and the child is entitled to inherit from the mother alone.
Under Shia Law: Under Shia law, the position is stricter: mere birth is not
sufficient to establish maternity. It must also be proved that the birth was the result
of a lawful marriage.
Consequence: Under Shia law, an illegitimate child has neither maternity in the
woman who gave birth nor paternity in the father. Such a child cannot inherit
from either parent.
II. PATERNITY (RELATIONSHIP WITH FATHER)
Under Muslim law, paternity can only be established through marriage between
the parents. This is the most fundamental rule of Islamic family law.
The Prophet Muhammad (PBUH) declared: "The child is for the owner of the bed
(husband) and stoning is for the person who commits illegal sexual
intercourse" (Sahih Bukhari and Muslim). This hadith establishes the exclusive link
between marriage and paternity.
So "The only way to establish paternity is by marriage to the mother of the child. So
as per Islamic law, maternity is by fact but paternity can only be by marriage".
For paternity to be established, the marriage between the parents must be:
1. Valid (sahih), or
2. Irregular (fasid) under Sunni law
However, void (batil) marriages will not establish paternity.
Under Shia law, if the marriage is void, the child born out of such marriage will not be
legally recognized and will have no legal mother or father.
"Filius Nullius"- A child born outside lawful wedlock (through zina) is
considered filius nullius—the child of nobody—in terms of paternity. Such a child
has no legal father and cannot claim inheritance from the biological father.
in Habibur Rahman Chowdhari v. Altaf Ali Chowdhari (1921) 48 IA 44: "A son to
be legitimate must be the offspring of a person and his wife or a person and his
slave; any other offspring is the offspring of 'Zina', that is, illicit connection, and
cannot be legitimate".
Presumption of Paternity: Where a valid marriage exists, the law raises a strong
presumption that children born during the subsistence of that marriage are the
legitimate offspring of the husband.
The Supreme Court of Pakistan in Ghazala Tehseen v. Mehr Ghulam Dastagir
(2015) affirmed: "Children born during the subsistence of marriage are presumed to
be legitimate. Except under extremely limited circumstances and within a very limited
period after birth, this presumption cannot be rebutted by any evidence, including
DNA test."
The Court further clarified that under Muslim Personal Law, a father cannot deny
paternity of children born to him by his wife unless he makes such denial within 40
days after the child's birth. Since the father in that case had made no such timely
denial, the children were deemed legitimate even without DNA evidence.
 LEGITIMACY UNDER MUSLIM LAW
Legitimacy means that the child is born out of a lawful wedlock. When a child is
born to parents who are legally involved in a lawful marriage, the child is considered
legitimate.
"A person born in lawful marriage is said to be the legitimate child of the spouses" .
Thus, legitimacy and parentage under Muslim law are closely tied to marriage.
Presumptions Regarding Legitimacy: Islamic jurists developed detailed rules
regarding presumptions of legitimacy based on the timing of birth in relation to
marriage:

Scenario Presumption Exception

Child born within

Can become legitimate if
6months of Illegitimate
father acknowledges
marriage

Child born after 6

Father can disclaim
months of Legitimate
through lian
marriage

Father can disclaim

Legitimate
These periods represent
Child born after if within specified periods
the maximum possible
dissolution of Shia Law - 10 lunar months
duration of pregnancy
marriage Hanafi Law- 2 lunar years
according to each school's
Shafei & Maliki- 4 lunar years
juristic opinion.

LEGITIMACY UNDER THE BHARATIYA SAKSHYA ADHINIYAM, 2023

The Statutory Presumption of Legitimacy: Section 123 BSA: The BSA, 2023
contains a provision identical to Section 112 of the Indian Evidence Act, 1872. This is
the most important section for legitimacy disputes.
Section 123 BSA - Birth during marriage, conclusive proof of legitimacy: "The fact
that any person was born during the continuance of a valid marriage between
his mother and any man, or within two hundred and eighty days after its
dissolution, the mother remaining unmarried, shall be conclusive proof that such
person is the legitimate child of that man, unless it can be shown that the parties
to the marriage had no access to each other at any time when he could have been
begotten."
Meaning of "Conclusive Proof”: The term "conclusive proof" means that once the
fact of birth during a valid marriage (or within 280 days of its dissolution) is
established, the court must presume the child to be legitimate. This presumption can
only be rebutted by proving non-access. Non-access means that the husband and
wife had no opportunity for sexual intercourse at the time when the child could have
been conceived.
 The "Access" Exception: The only way to rebut the presumption under Section 123
is to prove that the husband had no access to the wife at the time of conception.
This requires proof of:
 Physical separation (e.g., husband was living in a different city/country)
 Impossibility of conjugal relations (e.g., due to imprisonment, illness, or other
circumstances)
 Absence of any opportunity for intercourse
Evidence of non-access can be: Direct evidence (witnesses testifying to
separation), Circumstantial evidence (letters, documents, and travel records),
Modern forms of evidence (electronic records, communication logs, GPS data)
admissible under BSA
INTERACTION BETWEEN MUSLIM LAW AND SECTION 123 BSA
The Conflict: Muslim Law vs. Evidence Act / BSA: There has been longstanding
debate about whether Section 112 of the Evidence Act (now Section 123 BSA)
supersedes Muslim Law.
The Difficulty: Muslim law requires conception during wedlock, while Section 123
BSA only requires birth during wedlock or within 280 days after dissolution. This
creates potential conflicts:
 A child born within 7 months of marriage would be legitimate under Section
123 BSA (born during marriage) but could be illegitimate under Muslim law (if
conception occurred before marriage)
 Muslim law recognizes "irregular" (fasid) marriages, which may not constitute
a "valid marriage" under Section 123
Judicial Resolution: The courts have adopted a pragmatic approach:

Section 123 BSA applies to all citizens, including Muslims.

In Ismail Ahmad v. Momin Bibi (1940), the Oudh Court held that while the
Evidence Act applies to Muslims, it does not apply to irregular marriages of
Muslims. An irregular marriage (fasid) cannot be deemed a "valid marriage" within
the meaning of Section 112.
In Sibt Mohammad v. Mohammad (1926) 48 All 625, the Court held that the
Evidence Act is applicable to Muslims even though it supersedes Muslim law.
The Concept of "Valid Marriage" Under Section 123: For Section 123 BSA to
apply, there must be a valid marriage under Muslim law.
DNA Evidence and Section 123 BSA: The BSA, 2023 gives strong recognition to
electronic and scientific evidence. However, courts have held that DNA evidence
cannot override the presumption under Section 123 except to prove non-access.
The Supreme Court of Pakistan in Ghazala Tehseen v. Mehr Ghulam Dastagir
(2015) held: Children born during marriage are presumed legitimate. This
presumption cannot be rebutted by DNA evidence except within a limited period after
birth. Under Muslim Personal Law, a father must deny paternity within 40 days of
birth
In India, the position is similar: the presumption under Section 123 is "conclusive
proof" and can only be rebutted by proof of non-access, not by DNA evidence alone.
PART VI: COMPARATIVE TABLE – MUSLIM LAW VS. BSA, 2023

Aspect Muslim Law BSA Section 123

Basis of Conception during lawful Birth during valid marriage or

Legitimacy wedlock within 280 days of dissolution

Child born after 6 months of Conclusive proof of legitimacy

Presumption
marriage is legitimate from birth during marriage

Father can disclaim

Proof of non-access at time of
Exception through lian (within 40 days in
conception
some schools)

Post-
Varies by school: 2 years
Dissolution Uniform: 280 days
(Hanafi), 10 months (Shia)
Period

Standard of "Conclusive proof" – only one

Rebuttable presumption
Proof exception

Not sufficient alone to rebut Not sufficient alone – non-

Role of DNA
presumption access must be proved

All citizens regardless of

Application Only to Muslims
religion

Case 1: Mohabbat Ali Khan v. Muhammad Ibrahim Khan (1929) 56 IA

201: Question of legitimacy of children born after the death of the alleged father.
Held: The Privy Council applied the Muslim law rule that a child born within 2 years
of dissolution (Hanafi law) is presumed legitimate. This case shows the interplay
between Muslim law and statutory presumptions.
Case 2: Goutam Kundu v. State of West Bengal (1993) 3 SCC 418: Husband
sought DNA test to prove child was not his. Held (Supreme Court of India): Courts
cannot order blood test as a matter of course. Presumption of legitimacy under
Section 112 is highly strong, Blood test cannot be ordered to rebut the presumption
unless there is strong prima facie evidence of non-access. The interest of the child is
paramount
 ACKNOWLEDGEMENT OF PATERNITY (IKRAR-E-NASAB)
Acknowledgement (Ikrar or Iqrar-e-nasab) is a unique institution in Muslim law that
serves as an alternative mechanism to establish legitimate parentage when direct
proof of marriage is unavailable.
Muslim law does not recognize institution if adoption but legitimacy of the child can
be conferred by acknowledgement.
Where the paternity of a child cannot be proved by establishing a marriage between
his parents at the time of his conception of birth, Muslim recognizes an
acknowledgement as a method whereby such marriage and legitimate descent can
be established for the purpose of inheritance.
Doctrine of acknowledgement relates only to cases where either the fact of marriage
itself or the exact time of concurrence with the reference to legitimacy is not provided
or cannot have evidence to proof.
Mode of Acknowledgement: - It is not necessary that an acknowledgement to be
expresses. It may be implied where a person habitually and openly treats other as
his legitimate child. The fact may give rise a valid presumption if legitimacy.
Conditions of a valid Acknowledgement: - Acknowledgement is valid only when
following conditions are established:
1. Intention to confer legitimacy: - Acknowledgement must not be merely of son
ship but a legitimate son ship. Acknowledger should intend to confer status of
legitimacy.
2. Age:- Age of the parties i.e., father and son must be at least 12 ½ years
3. Child of others: - The child so acknowledged should not be known to be child of
others.
4. Confirmation: - Person acknowledged would confirm acknowledgement with
required proof.
5. Possible legal marriage between parents of child acknowledged: - The
marriage between parents should be lawful and the child born out of void
marriage is not entitled even though acknowledgement is made.
6. Competency: - Acknowledger (father) must be competent to make a contract
i.e., he should be sane and major.
7. Should not be offspring of Zina:- Child should not be one who is born in
adultery or void marriage or mother who was married wife of another (polyandry)
Case Law: - Muhammad Allahdad Khan v. Muhammad Ismail Khan (1888) ILR
10 All 289– The father of Allahdad Khan, died leaving behind 2 sons and daughters.
Mohd. Allahdad Khan filed suit against his younger brother and sister for 2/7 share
as elder son, the defendant denied he is elder son of their father but only step son.
Plaintiff proved that his father had acknowledged several times. Court held by
acknowledgement he is legitimate son of deceased. Therefore is entitled to succeed
him.
Case Law: - [Link] Hussaini v. Rajammaa AIR 1977 AP 152- The plaintiff
files suit against Rajamma who is wife of his brother Habibullah on the ground that
she was only maid servant but not legally wedded wife. The court held marriage may
 be established by indirect proof i.e. prolonged cohabitation or acknowledgement.
Therefore the wife entitled to succeed the property.

Effect of Valid Acknowledgement: Once a valid acknowledgement is made:

 It is irrevocable and cannot be revoked
 The child gains full legal rights of inheritance from the father
 The mother gains status of legal wife and right to inherit from the father
 The relationship is permanently established
Acknowledgement Where Marriage Cannot Be Proven: The doctrine of
acknowledgement is particularly useful where direct proof of marriage is unavailable.
Acknowledgement in Case of Uncertainty: The Muslim law of acknowledgement
relates only to cases of uncertainty. It proceeds on the assumption that the
acknowledged child is not only the offspring of the acknowledger by blood, but also
the issue of a lawful union.
COMPARATIVE TABLE: SUNNI VS SHIA LAW

Aspect Sunni Law Shia Law

Birth + lawful marriage

Maternity Established by birth alone
required

Through valid or irregular

Paternity Through valid marriage only
marriage

Illegitimate
child's Inherits from mother only Inherits from neither parent
inheritance

Child of void
Not legitimate No legal mother or father
marriage

Post-dissolution
2 years (Hanafi) 10 lunar months
period
 GUARDIAN SHIP (WILAYAT)

A guardian is a person who is primarily responsible for a child's health, needs,

education, and other essential needs. Under Muslim law, guardianship is a
responsibility created to protect a minor who is incapable of protecting his or her
own interests and rights due to lack of maturity and diligence. The person under
such protection is called a ward (mahjur).
Guardian Ship under Islamic Law:
“Quran” says that ‘if you find an orphan give him a home. If you found if they are
in need fulfill their wants, because wrong is not of orphan but parents, don’t repel
the beggar with harshness and proclaim the bounty of Lord.’
And also Quran says ‘look after the orphan until they come of age, their do not
substitute bad for good, nor use their property to your own, for this is an enormous
crime’.
Definition: According to Section 4 of the Guardians and Wards Act, 1890, a
guardian is "a person having the care of the person of a minor or of his property or
of both his person and property”.
Under Section 3 of the Indian Majority Act, 1875, a minor is a person domiciled in
India who has not completed the age of 18 years. A minor is deemed incapable of
making decisions for their own interest, hence the law requires a major and legally
competent person to act as guardian.
Muslim Law not only says about guardian of person of minor and his property but
also for marriage.
Kinds of Guardianship
Mohammadean law recognizes 3 kinds of guardianship
I. Guardianship in marriage (Jabar)
II. Guardianship of person of minor (Hizanath)
III. Guardianship of property of minor (Wilayat)

Type of
Arabic Term Scope
Guardianship

Marriage Jabar or Wilayat-e-Nikah Authority to contract a minor's marriage

Physical care, custody, and upbringing of

Person Hizanat
the child

Management and protection of minor's

Property Wilayat-e-Mal
property

1
 I. GUARDIANSHIP IN MARRIAGE (JABAR)
Guardianship in marriage (also called Wilayat-e-Nikah or Jabar) refers to the
authority of certain persons to contract a marriage on behalf of a minor or a person
of unsound mind. This power is also known as the "power of jabar" (compulsion)
because the guardian can give the minor in marriage without the minor's consent.
The power exists because minors lack the legal capacity to enter into a contract
(including the marriage contract) themselves.
When marriage is contracted by guardians minor can repudiate the marriage on
reaching age of puberty. Persons entitled to act as guardians for marriage.
Under Sunni Law:
1. The father
2. Father’s father how high so ever (F, FF, FFF, FFFF etc.)
3. Full brother & other male relation , on fathers’ side ( on order of
inheritance under Residuaries)
4. Mother
5. maternal relations with in prohibited degrees
6. Qazi or the court
Shia Law
1. Father
2. Father’s father how high so ever
Marriage performed by remote relative is invalid marriage until it is ratified by the
minor after attaining puberty.
When marriage is contracted by remote guardians when the nearer guardian is
present is void.
The legal consequence would be that marriage may be terminated by single
declaration on either side consummation of marriage also does not change the
effect of marriage.
The Option of Puberty (Khyar-ul-Bulugh): This is the most important concept
related to guardianship in marriage. Khyar-ul-Bulugh (option of puberty) is the right
of a minor who was married during minority by a guardian.
Under Muslim Law where a minor is contracted in marriage by the guardian other
than father of FF she has option to repudiate marriage without showing any
reasons. But if marriage is contracted by father or FF she can repudiate only if she
proves that marriage contracted by them is fraudulently or negligently with bad
intention..
Presently under The Dissolution of Muslim Marriage Act, 1939 whether marriage is
contracted by father or any other guardian minor can take option under following
grounds.

2
 1. that at the time of marriage she is below 15 years
2. marriage is contracted by guardian
3. she attained age of puberty
4. has to file the suit before attaining age of 18 years
5. no voluntary consummation has happened
Muchoo v. Arzoo (1867) 7 WR 154 | (1867): Arzoo, a Muslim girl, was given in
marriage to Muchoo during her minority. The marriage was contracted by her
maternal uncle (mother's brother) who acted as her guardian. After Arzoo attained
the age of puberty, she repudiated the marriage and refused to live with Muchoo.
She exercised her option of puberty (Khyar-ul-Bulugh) under Muslim law to declare
the marriage void. Muchoo filed a suit seeking restitution of conjugal rights against
Arzoo, claiming that she was legally bound to live with him as his wife.
The Full Bench of the Allahabad High Court delivered judgment in favor of Arzoo,
holding that she had validly repudiated the marriage and was entitled to do so.
This is one of the earliest Full Bench decisions on the option of puberty in India. It
laid the foundation for subsequent case law on the subject.
Badal Aurat v. Queen-Empress (1891) ILR 19 Cal 79: A girl named Badal, when
only five years old, was given in marriage by her mother (Atar) to the complainant.
Before the girl attained puberty, the complainant was sentenced to imprisonment
for four years and six months. While he was in jail, the girl attained puberty and
married the second person.
The complainant prosecuted Badal and the second husband for bigamy under
Section 494 IPC. The Sessions Judge convicted them, holding that the first
marriage was still binding. But the HC of Calcutta reversed the decision holding
"Under the Mahomedan law, when a child is given in marriage by any person other
than the father or grandfather, he or she has the option of either ratifying it or
repudiating it on attaining puberty. This is called the Khyar-ul-bulugh, or option of
puberty." The convictions were set aside. The girl's marriage to the second prisoner
was valid as she had repudiated the first marriage by her conduct in marrying again
after attaining puberty.
Ghulam Sakina v. Umar Baksh AIR 1950 SC 28: A minor girl was married by her
brother (not father or grandfather). Upon attaining puberty, she sought to repudiate
the marriage. The husband claimed the marriage was valid and binding. Held: The
court affirmed the option of puberty doctrine. A marriage contracted by a guardian
other than father or grandfather is subject to ratification or repudiation by the minor
on attaining puberty. The option must be exercised without unreasonable delay
Gul Mohammed vs. Mst. Wazir AIR 1977 J&K 6 | 1977 Cri LJ 297 (J&K): Mst.
Wazir was given in marriage to her maternal uncle, Gul Mohammad, during her
minority. The marriage was contracted by her mother (who was the sister of the
appellant) and other relatives. After attaining the age of puberty (approximately 15-
16 years), Mst. Wazir repudiated the marriage. She exercised her option of puberty
(Khyar-ul-Bulugh) under Muslim law to declare the marriage void. Living with

3
Another Man: Following her repudiation, Mst. Wazir started living with another man
as his wife. The appellant (Gul Mohammad) filed a complaint against Mst. Wazir
and the man she was living with, charging them with the offence of bigamy under
Section 494 of the Ranbir Penal Code (corresponding to Section 494 IPC). He
alleged that since the marriage with him was still valid, her living with another man
constituted adultery and bigamy. The trial court accepted the appellant's contention
and convicted Mst. Wazir and the other man under Section 494 IPC. Appeal: Mst.
Wazir appealed against her conviction to the Jammu and Kashmir High Court. The
Court quoted with approval from Badal Aurat:

Testamentary guardian for marriage: Under Muslim law testamentary guardians

are not recognized. A father cannot appoint any person by way of will.
Certified guardian for marriage: In respect of marriage no one can be appointed
guardian by the court. The court cannot appoint Wali for marriage although. The
Qazi or Court itself can act as a marriage guardian.

4
 II. GUARDIAN OF PERSON OF MINOR FOR CUSTODY (Hizanat):-
Natural & legal guardian of minor legitimate children is always father however
custody of the child can be given to the mother and other female relatives based
upon the age and sex of minor.
Mother:
Regarding the Legitimate child Custody will be given to mother basing on the
Schools like:
Boy girl
Hanafi School (Sunni) --- Below 7 years below the age of Puberty
Shia School --- Below 2 years below 7 years
Female Relations in default of mother:
Under Hanafi law, failing the mother, the custody of a boy & girl of above
mentioned age goes to the following female relatives in the order given below:
1. mother’s mother, how high so ever
2. father’s mother, how high so ever
3. full sister, uterine sister, consanguine sister
4. full sister’s daughter, uterine sister’s daughter, consanguine sister’s
daughter
5. maternal aunt (mother’s sister) (Full, Uterine, Half)
6. Paternal aunts (Full, half & Uterine).
Other male relations: In default of the mother and other female relations the right
of custody (Hizanat) in Hanafi law, belongs to the following persons:
1. Father
2. nearest paternal grandfather
3. full brother, consanguine brother
4. full brother’s son, consanguine brother’s son
5. full brother of the father, consanguine brother of the father
6. son of father’s full brother, son of father’s consanguine brother
FATHER:
Father is entitled in Hanafi Law to the custody of a boy over 7 years of age and of
an unmarried girl who has attained puberty (and in Shia law to the custody of a
male child over 2 years and an unmarried girl of 7 years or more.)
In Farzanabai v. [Link] Dadamiya, AIR 1989, Bom 357, the Bombay High
Court held that there is no doubt that under Muslim law the father is entitled to the
custody of a son over 7 years of age. The Court observed that as far as possible
the ordinary rule of Muslim law should be adhered to. The children were above 7

5
years of age. The court also found that the welfare of the minors did not lie in favor
of residing with their mother. The children also expressed their desire to live with
their mother. But the court observed they were not of an age when they could make
an intelligent preference. The Court therefore awarded the custody of the children
to the father.
In Poolakkal Ajisakutty v. Parat Abdul Samad AIR 2005, Ker 68, the mother of
the child committed suicide and the child was with the maternal grandmother who
was a diabetic patient and dependent on her other daughter. Father later remarried
and got children. The Court held that conduct of remarriage by the father of the
child itself is not a ground to reject the prayer for custody. Welfare of the child is of
paramount consideration by giving due respect to the sentiments expressed by the
grandmother, the Court was of the view it is for the welfare of the child that the child
be with the father.

Illegitimate Child: -
Mother is guardian of illegitimate child after her she may nominate another
guardian otherwise no other person can be guardian.
Gohar Begum v. Suggi Begum & Ors. AIR 1960 SC 93: Gohar, singing woman,
keep of one Trivedi delivered a child by name Anjum. She kept her daughter in her
friend house (Suggi Begum) later on claimed child Suggi refused to give back her
child. Court held that under Sunni Muslim law mother is the guardian of illegitimate
child.
Sudeep Suhas Kulkarni v. Abbas Bahadur Dhanani (2022 SCC OnLine Bom
6717): The petitioners were the biological parents of a minor girl born in 2011 while
the mother was married to the respondent. The respondent ex-husband divorced
the mother in 2015 and consented to the biological parents being appointed as
legal guardians of the child. The petitioners sought guardianship under the
Guardians and Wards Act, 1890.
Judgment: The Bombay High Court allowed the petition and appointed the
biological parents as legal guardians. The Court held that strict application of
Muslim law would deprive the child of basic rights, leaving her "high and dry."
Welfare of the minor is paramount and cannot be sacrificed at the altar of personal
law. The principle established is that constitutional morality and child welfare
override strict personal law rules in guardianship matters.

RIGHTS OF MOTHER:-
1) Mother is entitled only for the custody of child not to act guardian of her
property.
2) Mother is entitled to custody of children even after completion of requested
period: if she applies to court and proves welfare of child is safer in her custody.

6
Iqbal Ahmad v. Shaban Ali Khan 1985 AWC 417(Allahabad High Court (Full
Bench): The case involved a custody dispute between the father (natural guardian)
and the mother (entitled to hizanat custody) over their minor children. The question
arose whether the mother's right of hizanat (custody of male child until age 7 and
female child until puberty) was absolute, or whether it must yield to the welfare of
the child. The Court observed that merely because the mother has a right to
custody under Muslim law does not mean custody will automatically be with her if
the child's welfare lies elsewhere. Custody is given to father.
Smt. Ainunnisa v. Mukhtar Ahmad & Anr. AIR 1975 All 67: mother is entitled to
the custody above 10-11 years old of son.
In Abdulsattar Husen Kudachikar v. Mrs. Shahina Abdulsattar Kudachikar
AIR 1996 Bom 134: Both the parties got married in 1988 and 1990 blessed with
son in1991 daughter and in the year 1994. Husband pronounced Talak and in
1995 he remarried another woman. Mother claimed for custody of her son. Father
claimed he is earning more than mother. Court observed that welfare of child is
paramount; custody of child is given to mother.

Hasmat Ali v. Smt. Suraya Begum AIR 1971 All 260: A Muslim mother filed an
application under Section 25 of the Guardians and Wards Act seeking return of her
4-year-old son after the father took him. Judgment: The Allahabad High Court held
that the mother is entitled to hizanat (custody) of a male child until age 7,
but hizanat is distinct from guardianship. Under Section 4(2) of the Act, only a
"guardian" can file under Section 25, and the mother is not a guardian—the father
remains the natural guardian. The appeal was allowed.

Master Izyaan Ahmed v. State of U.P. 2019 SCC OnLine All 14248: The mother
of a child below 7 years sought custody based on her right of hizanat under Muslim
law. The father opposed, arguing that welfare of the child should prevail.
Judgment: The Allahabad High Court held that while the mother has the right
to hizanat of a male child until age 7, the welfare of the child is paramount. This
right is not absolute and must yield to the child's best interest. Citing the Full Bench
in Iqbal Ahmad v. Shaban Ali Khan, the Court emphasized that welfare occupies
the front seat over any technical legal right.

Mukhtar v. Habiba 2024 SCC OnLine Bom 2888: A Muslim wife sought custody
of her three children (all below 7 years) under Section 25 of the Guardians and
Wards Act, alleging ill-treatment and being driven out. The trial court granted
custody to the mother; the husband appealed. Judgment: The Bombay High Court
dismissed the appeal, holding that under Muslim law, custody of children below 7
years is required to be with the mother. The Court emphasized that welfare of the
child is paramount, and the mere desire of a child at a tender age is not
determinative. The children's sibling bonding and the mother's availability as a full-
time caregiver were decisive factors

7
Termination of Hizarat :-
Disqualification which terminates the right of guardianship can be laid down in
following heads:
a. General disqualifications
b. Disqualifications affecting females
c. ,, ,, males
d. ,, ,, parents
e. ,, ,, husband

a) General disqualifications:-
1) Minor or Unsound person is incompetent to act as guardian
2) Non-Muslim (if parent or relative convert to another religion) he or she is
disqualified to act as guardian.
b) Disqualification affecting female:- Mother or any other relatives will be
disqualified if
1. She is immoral & committed adultery
2. becomes a prostitute
3. committed some criminal offence of gross open immorality
4. professional singer or mourner
5. If she marries a person not related to the child with in prohibited degree
6. If she goes and resides at such a distance place from Father’s place of
residence
7. If she neglects or is incapable of taking proper care of the child.
c) Disqualifications affecting male: No male is entitled to the custody of female
minor who is not related with in prohibited degrees.
d) Disqualification affecting parents:-
1) Father: - Father is natural guardian of his legitimate children but he is
disqualified
1. He is unfit in character & conduct
2. He is unfit as regards external circumstances
3. If he waives his right
4. If he enters into an agreement to the contrary
5. Intends to go out of territories of India.

8
2) Mother:-
1. After attaining for 2 years or 7 years of boy, for of girl or 7 years or puberty
depending upon schools.
2. After dissolution of marriage if she remarries.
3. While marriage is subsisting residing away from husband.
4. Leading immoral life.
5. She neglects or is incapable of taking proper care of child.
Rahima Khatoon v. Saburjanessa AIR 1996 Gau 33: A widow mother obtained
guardianship of her 9-year-old daughter. She later remarried, and the paternal
grandmother sought to have the guardianship rescinded. The trial court rescinded
the certificate and appointed the grandmother as guardian. Judgment: The Gauhati
High Court affirmed that a mother loses her right to custody (hizanat) upon
remarriage to a stranger. The custody then passes to female relatives in order:
mother's mother, father's mother, and then full sister. The mother's remarriage was
held valid, and the grandmother was rightly appointed guardian.

e) Disqualifications affecting husband:

Husband is not entitled for custody of his wife until she attains age of puberty.

9
 III. GUARDIAN SHIP OF MINOR’S PROPERTY (Wilayat)
A fundamental distinction exists under Muslim law between custody of the person
(hizanat) and guardianship of property (wilayat-e-mal). "According to Ibn Qayyam,
'there are two types of guardianships. In one, the father prevails over the mother
and that is in matters of money and marriage. In the other, the mother prevails over
the father and that is in matters of nourishing and upbringing.'"
While the mother may have custody of the minor's person for nurturing, she has no
power over the minor's property unless specifically authorized. The father remains
the exclusive guardian of property
Guardianship of minor’s property can be studied under 4 heads.
I. Legal or Natural guardian (De-jure)
II. Testamentary guardians
III. Appointed by court (certified or certificated guardian)
IV. De facto guardian (Infact)

I. LEGAL OR NATURAL GUARDIAN (DE-JURE):

1) Father
2) Executor appointed by father
3) Father’s father
4) Executor appointed by father’s father.

Under Muslim law, the father is the sole and supreme natural guardian of the
person and property of his minor legitimate children.

Under Sunni law: If the father dies, the executor appointed by his will becomes the
guardian. If no executor is appointed, the paternal grandfather may assume
guardianship.

Under Shia Law: Father cannot appoint Executor as long has his father is alive,
After Father’s death its FF then only Executor appointed by Father and FF.

Mother's Position Regarding Property: The mother is not a natural guardian of

the minor's property.

Privy Council in Imambandi v. Mutsaddi (1918) AIR 1918 PC 11: After the death
of the father Mother sold property belonging to her minor children. Held Mother has
no power to alienate minor's property; such transfer is void. Father is sole natural
guardian; mother is not a natural guardian

The Supreme Court in Meethiyan Sidhiqu v. Muhammed Kunju Pareeth Kutty

(1996) AIR 1996 SC 1003 reaffirmed that after the father's demise, if no property
guardian is appointed, the mother cannot alienate the minor's property .

10
 POWERS OF NATURAL GUARDIAN:

1. Power to Alienate Immovable Property: The natural guardian can alienate

immovable property only in the following circumstances :

a. Cases of urgent necessity – Where immediate action is required to

preserve the property from destruction or loss
b. For the benefit of the minor – Where the transaction clearly advantages
the minor
c. For maintenance of the minor – Where funds are needed for food,
shelter, clothing, or education
d. For conservation of the property – Where alienation prevents
deterioration or loss

2. Power to Alienate Movable Property: The guardian has broader powers

regarding movable property and can alienate goods and chattels for the minor's
maintenance.

3. Power to Incur Debts: A guardian can incur debts on behalf of the minor only
when there is necessity. The guardian can execute a promissory note on behalf
of the minor if justified.

4. Power to Carry on Business: According to the Hedaya, the guardian has

power to carry on business on behalf of the minor, provided the business is not
of a speculative or hazardous nature.

5. Power to Enter into Contracts: The guardian can enter into contracts for the
minor's benefit, and the minor is entitled to bring a suit for specific performance
of such contracts.

6. Power to Surrender Right of Pre-emption: The guardian can assert or waive

a right of pre-emption on behalf of the minor, and the minor will be bound if the
act was done in good faith.

Duties:-
1. Guardian has to carefully deal with the minors property.
2. He has to do all the acts which all reasonable & proper for realization of protection
or benefit of the property.

For voidable transactions, the minor must file a suit within three years of attaining
majority under Article 60 of the Limitation Act.

II. TESTAMENTARY GUARDIAN OF PROPERTY: A testamentary guardian is

appointed by the father through his will. The powers of a testamentary
guardian are the same as those of a natural guardian because the executor
represents the father.

11
Conditions for Validity:

 The will must be properly executed

 The appointed guardian must accept the role
 The guardian must act for the minor's benefit

If a testamentary guardian alienates property without necessity, the minor may

challenge the transfer upon attaining majority.

III. GUARDIAN APPOINTED BY COURT:

In his absence of legal guardian court may appoint guardian for protection &
preservation of the minor's property. Under the Guardians and Wards Act, 1890,
the court has power to appoint a guardian for a minor's property in the absence of a
natural or testamentary guardian.

Court may appoint any person basing on the request and welfare of the minor.
Court can appoint Mother, Aunt, Uncle (Paternal or Maternal etc.)

But the certificated guardian cannot act without prior permission of court in case.

1. Charge the immovable property

2. Alienate the property by way of mortgage, sale, exchange or gift

3. Lease - exceeds 5 years or any term extending more than 1 year beyond
majority age of the ward.

But can alienate, pledge movable properties of minor for the minor’s benefit.

IV. DE FACTO GUARDIAN:

A de facto guardian is a person who voluntarily takes charge of a minor's property

without legal authority. This includes relatives such as mother, brother, uncle, or
even strangers who assume management of the minor's estate.

Imambandi v. Mutsaddi (1918): In this landmark Privy Council case, the court
held that a sale or mortgage by a mother (as de facto guardian) is wholly void.

Mohd. Amin v. Vakil Ahmad (1952) AIR 1952 SC 358: The Supreme Court
unequivocally declared that a 'de facto guardian', has no power to convey to
another any right or interest in immovable property which the transferee can
enforce against the infant." The court further held that such a transfer is not merely
voidable but void altogether, even against parties who were sui juris.

12
  De facto guardian He has right of minor’s custody but not right to deal with
minor’s property.
 Alienation made by de facto guardian is void.
 He cannot refer any disputes regarding minor’s immovable property to any
arbitrator.
 Cannot bind minor by executing bond.
 De facto guardian is not legal guardian but can apply to count and appoint
himself as certificated guardian.
 But can act as a next friend in a suit
 Act as an agent of the father

Removal of guardian:- Court can remove both De-jure & De-facto on the
application made by any person for the interest of minor. Under sec. 39 of
Guardians & Wards Act, 1890. If the guardian:
1. Abuse of his trust
2. Failure to perform the duties of his trust.
3. In capacity to perform the duties of his trust.
4. Neglect the property.
5. Convicted in any offence
6. Claims Adverse interest
7. Cease to reside within local limits of the jurisdiction of the Court.
8. Become Insolvent or bankrupt.

General Duties of guardians:-

1. Duty to support minor's property
2. Duty to file suits on behalf of minor
3. Duty to obey court orders
4. Duty not to use ward's property
5. Duty to take proper care of the minors property
6. Duty to maintain proper account of expense

Cessation of guardianship:-
1. By death, removal or discharge of guardians
2. By death or cessation of minority of minor
3. In case of female child by marriage.

13
 Case Laws: Mohd. Amin v. Vakil Ahmad AIR 1952 SC 358: De facto guardian
sold minor's property. Held: De facto guardian has no power to transfer immovable
property; such transfer is void. Even benefit derived by minor from the transaction
is irrelevant
Tikaram Ragho Choudhary v. Shaikh Gaffar 2009(2) BomCR176: Mother
appointed as guardian under Section 7 of GWA sold property without court
permission. Held: Transfer by court-appointed guardian without court permission is
void. Section 29 of GWA requires court permission for alienating immovable
property
Shamshed Begum v. Sadiq Basha 2016 SCC OnLine Mad 16883: Father gifted
property to minor child; mother accepted on minor's behalf. Held: Mother's
acceptance was valid as she was the only person to look after minor's interest.

Differences between Sunni and Shia Law on Guardianship:

Category Sunni Law Shia Law

Long list including father,

Jabr – Marriage Only father and paternal
grandfather, brother,
Guardian grandfather
maternal relations

Jabr – Marriage by Valid but voidable (option of

Void (requires ratification)
Others puberty)

Hizanat – Son's
Until 7 years Until 2 years
Custody

Hizanat – Daughter's
Until puberty Until 7 years
Custody

Female relatives (mother's

Hizanat – After Mother Father, then grandparents
mother first)

Wilayat – After Father Father's executor Paternal grandfather

Father can appoint;

Wilayat – Father can appoint only if
grandfather can appoint in
Testamentary grandfather not alive
his absence

Defacto guardian for

Defacto guardian for
Mother's Status Legitimate Child
Legitimate Child only
DeJure for Illegitmate Child

14
15