Maintenance

Maintenance means provisions for Food, clothing, shelter and other essential
requirements for the livelihood. In pre-Islamic period Arabia, there was no
obligation on the part of the parents to maintain their children. Similarly, the
children were also not bound to maintain their aged and infirm parents. After
the advent of Islam, the Prophet declared the obligation of the father to
maintain his children as they are unable to support themselves. Maintenance
is also made obligatory in Islam.
Under Muslim law, persons entitled for maintenance are : by marriage (wife) &
by blood relation
1) Wife
2) Young children
3) The necessitous parents
4) Other necessitous relations within prohibited degrees
Maintenance of the wife
Under Muslim law, wife’s right to be maintained by her husband is absolute. it
is a legal status. Even if the wife is having her own means to maintain or
support herself and husband does not have any means to maintain her, she is
obligated to be maintained by her husband. It is also interesting to note that
wife is preferred even over the young children because wife is considered to
be the source/root & child is the offspring.
Maintenance is regulated by Muslim Personal Law and also by Cr.P.C (Sec 125-
128).

Conditions for the wife’s right of maintenance.

1. She is entitled to maintenance only if the marriage is valid. If it is void or
irregular, she is not entitled for maintenance. (If the marriage is muta-
marriage, even then she can claim maintenance under Sec 488 Cr.P.C)
2. If it is minor marriage and the wife is too young for sexual intercourse, her
husband has no duty to maintain her. She cannot claim maintenance when she
lives with her parents or his house.
3. The right of maintenance is absolute and she has to be faithful & obedient in
all respect to her husband. A muslim wife cannot claim maintenance from the
husband if her own conduct is violative of her matrimonial obligation. What
conduct is regarded justified and what is unjustified will be determined by the
courts on the basis of the facts & circumstances in each case.
4.a wife would not lose her rights to maintenance :
a. where the wife refuses access to him on some lawful grounds or
b. Wherei)the marriage cannot be consummated owing to his minority or ii)her
absence from him with his permission or iii) because of her illness or iv) due to
malformation (defect) in wife’s organs
In Amad Giri [Link], the court held that a wife, whose marriage has not
been consummated, may lawfully leave the husband’s house or may refuse
cohabitation to him if her prompt dower is not paid by the husband on
demand. As non-payment of the prompt dower is a lawful ground for living
separately or refusing her society to the husband, her right of maintenance is
not lost and the husband is bound to maintain her.
In Amir Md vs. Ms. Bushra, the court held that if a wife lives separately
because of the cruel behaviour of her husband, she is entitled to be
maintained by him.
In Itwari vs. Asghari, the Allahabad Court held that although under Muslim law
a limited polygamy is allowed (4wives), a second marriage by a husband is a
“continuing wrong” against the first wife. She is entitled to claim maintenance
if she stays separately. (by Cr. P. C)
In Sarwari vs. Shafi Md, the court held that a Muslim wife has a just ground to
live separately and claim maintenance if the husband keeps mistress (Cr.P.C)
Note: A muslim wife is entitled to claim maintenance allowance under Cr.P.C
for her husband has contracted a 2nd marriage. But at the same time, a Muslim
husband has a legal right to contract a second marriage. As such, if the wife
lives separately only on the ground of husband’s second marriage, the husband
too is entitled to file a suit for restitution of conjugal rights under personal law.
Apparently there appears to be a conflict between the muslim personal law &
the provisions of the Cr.P.C on the point of wife’s claim of maintenance whose
husband has contracted a second marriage.
To answer the above conflict, the Supreme Court in Begum Subanu alias Saira
Banu vs. A.M. Abdul Gafoor , held that “explanation has to be construed from
the point of view of the injury to matrimonial rights of the wife & not with
respect to the husband’s right to marry again”.[the remedy available to the
wife under sec 125 Cr.P.C only a quick & immediate relief & ultimately the
matter is to be settled by civil court under personal law].
Maintenance of a divorced muslim woman
1. Muslim Personal Law
2. Sec 125 Cr.P.C, 1973
3. The Muslim Women ( Protection of Rights on Divorce ) Act, 1986
Under muslim personal law , a divorced women is entitled for maintenance
only till the period of Iddat ( 3 months or delivery of baby).
Where the husband pronounces talaq in the absence of wife, she is required to
observe iddat from the date on which she gets the notice of her divorce.
Accordingly, she is entitled to be maintained from the date on which she came
to know of her divorce.
In Md. Ali vs. FareedunnisaBegum, the marriage was contracted in 1950, a son
was born to them . Thereafter, he neglected to maintain her. The trial court
passed a decree in her favour for maintenance. The wife was informed by a
written notice about divorce by the husband on the night before wedding. The
notice was served on 12-5-1960. He argued that he doesn’t have any obligation
to maintain her as he had divorced on the very first night of the marriage.
The court held that the wife was not entitled to maintainence from the earlier
date of divorce that is 1950. Under Muslim law, a divorced wife cannot claim
her past maintenance unless the claim is for the arrears of maintenance under
any specific agreement.
Under sec 125 of Cr.P.C
The term “wife” also includes divorced wife under Cr.P.C. This Act is applicable
to all irrespective of religion, caste, creed etc. Under this Sec 125, a Muslim
wife who has obtained a decree for dissolution of marriage under the
Dissolution of Muslim Marriage Act,1939 is also entitled for maintenance even
after the period of iddat provided that:
a) she remains unmarried
 b) such woman has not received the whole sum due to her on divorce
under any customary or personal law &
c) where she after obtaining divorce from her husband has not voluntarily
surrendered her right to maintenance.
In case of the above circumstance if has taken place then loses her right under
Sec 127 Cr.P.C clarification on sec 127(3)(b) where, it says “she received the
whole of the sum which under any customary or personal law of the parties
was payable on such divorce maybe interpreted to mean that divorced Muslim
wife is not entitled to maintenance if she has obtained her dower & the
maintenance during her iddat. But in Baitahir vs. Ali Hussain, the SC held that a
divorced Muslim wife is entitled to maintenance even if she has already
received the whole amount due to her under her personal law.
Facts : Ali Hussain had married BaiTahira & a son was born to them . She was
living in one of the flats of her husband. Later he divorced her and transferred
the ownership of the flat to his divorced wife in lieu of dower & maintenance
during iddat. Baitahira remained unmarried and after few years, she was in
financial difficulties & filed a petition under Sec 125 Cr.P.C claiming
maintenance. The Dist. Magistrate ordered for monthly maintenance. Ali
Hussain challenged this order as she had already received her dower &
maintenance i.e. , “ the whole sum due to her under muslim personal law” in
the form of a flat. Now this appeal was decided in his favour by Bombay High
Court. BaiTahira made an appeal to SC which restored the order of magistrate
& reversed the judgement of Bombay High Court. The SC held that irrespective
of the amount settled as Mahr, a reasonable amount is always due to a Muslim
wife for her maintenance. Even if a Muslim wife surrenders her dower that
does not in any way defeat her right under Sec 125 if she remains unmarried.
This decision was once again reiterated in Md Ahmad khan vs. Shah Bano
Begum case.
Md. Ahmad Khan married Shah Bano in 1932 & they had 3 daughters & 2 sons.
In 1975, he drove her out of his matrimonial home. She filed a petition asking
Rs 500 for maintenance to the Judicial Magistrate, Indore. In 1978, he divorced
her pronouncing TT. She remained unmarried. Now he took a plea saying that
she is no more his wife after talaq & he cannot give her any maintenance.
Further, he also contended that he has settled her dower of Rs. 3000 & paid
maintenance for about 2 years @ Rs. 200 per month & is not supposed to pay
any more. However the magistrate directed to pay Rs. 25 per month as a
nominal amount. Shah Banu preferred an appeal to HC of MP praying for an
enhancement in maintenance allowance. The High Court enhanced to Rs.
179.20 per month. MdAhmad Khan preferred an appeal to SC. SC dismissed
the appeal & confirmed the judgement of HC. The SC held that, right under sec
125 is a Statutory right & remains unaffected & also overrides the provisions of
personal law if there be any conflict b/w the two.
[The true position is that if the divorced wife is capable of maintaining herself ,
the husbands liability to provide maintenance ceases with the expiration of the
period of iddat. If she is unable to maintain herself, she is entitled to take
recourse to Sec 125 of the code ]
This Shah Bano Begum case was a hugely opposed verdict which was
considered to be against their Islamic religion. However, conceding to the
demands of Muslim community, the Parliament enacted Muslim Women
(Protection on Divorce) Act, 1986.
Maintenance under the Muslim Women Act, 1986
This Act is applicable to women who has contracted the marriage according to
the provisions of Muslim law and her marriage dissolves through any of the
kinds of judicial or extra-judicial divorce recognised under Muslim law such as
Talaq, Ila, Zihar, Khula or Mubarat and also under the dissolution of Muslim
Marriage, Act 1939. The provisions under the Act:
1. Maintenance during the Iddat. Sec 3(1)(a)
i. Fair& reasonable amount for herself
ii. Where the divorced woman herself maintains the children born, she is
entitled for a reasonable amount for herself& also for children till they attain
2years sec3(1)(b)
2. Maintenance after the iddat
The divorced woman who remains unmarried after the iddat & is unable to
maintain herself, is entitled to get maintenance from her such relative who
would inherit her properties upon her death. In the absence of any of such
relative or where they have no sufficient means then, ultimately the liability to
maintain her is cast upon the wakf board of the state in which she resides. Sec
4 (2).
Sec 4(1)- the Magistrate has the power to make an order directing such of her
relatives to pay reasonable amount to her.
If she has children, magistrate shall make an order for children, if children are
small & incapable, then her parents
Dower &other exclusive properties of wife- the divorced wife is the absolute
owner for dower & also other exclusive property received before marriage &
also after marriage. Sec 3(2)(3)& 4 of this Act gives a speedy relief to the
aggrieved woman under this Act. Earlier she had to claim under C.P.C which
was a lengthy and inconvenient dilatory process. Also, the Act does not
prescribe any time limit to file a suit, hence to claim dower & maintenance it is
not time-barred.
Option of Sec 125 Cr.P.C- this Act also does not totally bar the application of
Sec 125 Cr.P.C. The Act under Sec 5 provides an option that if the wife
(divorced) & her former husband makes an affidavit that they would prefer to
be governed by the provisions of the Cr.P.C sec 125-128, then the Magistrate
will dispose accordingly.
Sec 7 of this Act lays down that every application by the woman under 125 or
127 of Cr.P.C pending before a magistrate, shall be disposed by provisions of
this Act. Order already passed under Cr.P.C are not affected. The Act is not
retrospective.
Constitutional validity of Muslim Woman Act, 1986
In Daniel Latifi and others vs. U.O.I, all the writ petitions challenging the
constitutional validity of the Muslim Women Act, 1986 were clubbed as PIL &
arrived at this conclusion :
1. The former husband of a divorced Muslim wife is liable to make a
reasonable & fair provision for the future of such divorced wife even after the
period of Iddat sec 3(1)(a)
2. Liability extends to the whole life if she does not remarry.
3. A divorced Muslim wife can proceed as provided under sec 4 of the Act
against her relatives or children or parents and finally to State Wakf Board
4. The provisions of the Act is not violative of Article 14,15& 21 of the
Constitution of India
 MAINTENANCE OF WIDOW
The wife’s right to claim maintenance from the husband ceases as
soon as her husband dies. After the death of husband, the widow is
not entitled to maintenance during her period of iddat. The very
reason is that, it is the husband’s personal liability and dies upon his
death; she is entitled to get maintenance not from his relatives but
from his properties.
Section 125 of the Cr.P.C does not include the ‘widow’ in the term
‘wife’. She cannot claim maintenance under Cr.P.C
In Aga [Link] v KoolsoomBibi, the Privy Council observed that
under Muslim Personal law, a widow is not entitled to get
maintenance out of the properties of her husband even during her
iddat.
MAINTENANCE OF THE CHILDREN
Father is the legal guardian and his primary responsibility is to
maintain children.
Son: Father has to maintain his son till the son attains puberty. After
that he is not entitled to maintain unless such a son is infirm or
disabled and is unable to maintain himself.
If the minor son is not living with his father without any reasonable
justification, father is not under any obligation to maintain him.
[Under Cr.P.C son is entitled to claim maintenance till 18 years]
Daughter: Father is liable to maintain her till she gets married. But if
an unmarried daughter is not living with her father with no reasons,
she is not entitled.
Widowed daughter is entitled.
Divorced daughter is also entitled.
If father has no means, the mother is liable to maintain them, if
mother too is not in easy circumstances then paternal grandfather.
Under Muslim Women Act,1986
Divorced wife can claim maintenance for children for a period of 2
years(limited).
But sec 125 [Link] 18 years
In Noor SabaKhatoon v/s MdQuasim, the SC has held that the
obligation of a muslim father, having sufficient means to maintain his
minor children unable to maintain themselves till they attain majority
and in case of females till they get married is absolute
notwithstanding the fact that the minor children are living with the
divorced wife.
Facts: Noor SabaKhatoon married Quasim Md. in 1980 and they had
3 children. On certain disputes he chased her away with three children
1&1/2, 3 and 6 years respectively. She was financially having
difficulties and claimed maintenance. He was married to 2 nd wife
Shahnawaz Begum meanwhile. Now the question arose as to whether
the rights to maintenance of the children under Sec 125 of Cr.P.C
would be affected by Sec 3(1)(b) of the Muslim Women Act, 1986 ?
The Apex Court held that Sec 3(1)(b) does not in anyway affect the
rights of the children of divorced parents under 125 of Cr.P.C.
Maintenance of Illegitimate Children
Father has no obligation to maintain an illegitimate child. In Pavithri
v/s Katheesumma, the court held that the putative father (muslim) is
not under an obligation to give maintenance to the child (wife-hindu)
under their personal law.
Sec 125 of Cr.P.C provides that even an illegitimate child or adult not
able to maintain himself (physical or mental abnormality) can claim
maintenance. The Magistrate can order to pay Rs. 500/-
Maintenance of Parents
Under Muslim Law, children are bound to maintain their necessitous
parents and grandparents.
 1. Maintain only needy parents
2. Sons and daughters are both equally liable to maintain their
parents. But if a child is poor and the other is in easy
circumstances, the liability lies on the child who is in easy
circumstance.
3. If he is in a position to take care of only one, then it is mother.
4. A son is not bound to maintain his step-mother.
Grand Parents
1. Grandparents can expect only when their children are not there.
Grandparents include both paternal and maternal.
2. Sec 124 Cr.P.C also provides for maintenance
3. Even if the parents/grandparents have become non-muslims, can
claim under Cr.P.C
Maintenance of Relatives
When children and parents are not providing maintenance, the
Muslim law says that relatives who are entitled to inherit the
properties of a person has obligation to maintain them. The liability
extends to his or her share through inheritance in the properties of the
person maintained.