A STUDY OF LAWS RELATED TO MAINTENANCE

IN MUSLIMS IN INDIA
NISHI JAIN
SYMBIOSIS LAW SCHOOL, PUNE

EMAIL- 20010126056@symlaw.ac.in

TABLE OF CONTENTS
I. ABSTRACT

II.INTRODUCTION

III. CRITICAL ANALYSIS WITH JUDICIAL PRONOUNCEMENTS

IV.COMPARITIVE ANALYSIS WITH OTHER COUNTRIES

V.SUGGESTIONS/RECOMMENDATIONS

VI.CONCLUSION

VII.REFERENCES
 I. ABSTRACT

Under Muslim law, the idea of "maintenance" is governed by personal law, which requires a
husband to provide all essentials, such as food, shelter, and clothing, to his wife, children, and
parents. Traditionally, it has been a well-established rule of Islamic Sharia law that a woman is
entitled to maintenance during the marriage and for the Iddat term after divorce. The author
attempts to make some tentative suggestions for the welfare of Muslim women in Indian
society in order to overcome this serious issue.

KEYWORDS – Maintenance, wife, children, Parents.

II.INTRODUCTION

Maintenance refers to assistance provided by one person to another on whom the latter relies
for survival. Financial support, means of subsistence, and educational financial support are all
included in the phrase maintenance. Marriage, according to Islamic law, is a civil contract
that confers some rights and requires the husband to fulfil certain obligations, such as
providing maintenance to his wife. The primary goal of the maintenance law is to achieve a
social and welfare state goal while also preventing vagrancy. The notion of maintenance in
India is based on personal laws, however the provisions of the Code of Criminal Procedure,
1973 relating to maintenance are secular.Under In Muslim law, maintenance is referred to as
"Nafaqah," or "what a man spends on his family." These several groups of people are eligible
to maintenance under Muslim law. Such persons are

1-The wife

2-The children

3-The Parents and Grandparents

 III. CRITICAL ANALYSIS WITH JUDICIAL
PRONOUNCEMENTS

Part III (Fundamental Rights) article 21 states that no one shall be deprived of his life or
personal liberty; here, the term life has a very broad meaning, as the Supreme Court of India
explained in Maneka Gandhi v. Union of India, that the right to live is not just a physical
right, but also includes the right to live with dignity. As we all know, India is a welfare state,
and state legislation relating to maintenance for spouses, children, or parents imposes a legal
obligation on the individual to give appropriate and fair support in order to live a social and
dignified life.

Article 38 of Part IV (Directive principles of state policy) of the Indian constitution mandates
that the state design policies in order to ensure a social order conducive to the advancement of
the people's welfare. Furthermore, the state shall try to enhance the welfare of the people by
establishing and safeguarding a social order in which social, economic, and political justice
inform all aspects of national life as effectively as possible.
2.1 WIFE

After divorce, a Muslim wife is only entitled to maintenance during the time of Iddat, not
beyond. If given through an ante-nuptial agreement between the parties to the marriage, the
wife is also entitled to the special stipend known as Kharcha-i-pandan. It is a type of personal
allowance granted to the woman by her husband, and it is the wife's sole property.

In Ali Akbar vs. Mst. Fatima (1929) ILR II Lah.85 Kharach-i-Pandan was awarded a
monthly stipend of Rs. 25.00 in addition to the amount of maintenance she is entitled to from
her husband. The woman is entitled to the allowance even if she refuses to stay with her
husband, according to the ruling.

Mohd Ahmad Khan v. Shah Bano Begum or the Shah Bano Case:

A 62-year-old woman was divorced and then refused support in this instance. She hadn't
married again. She claimed maintenance of Rs 500 per month in the court of the Judicial
Magistrate in Indore under section 125 of the Code of Criminal Procedure, and was awarded
Rs 25 per month from the husband. She filed a revision plea with the Madhya Pradesh High
Court, claiming that the judicial magistrate's order had wronged her and that she was entitled
to Rs 179.20 per month in maintenance. Later, the husband filed an appeal with the Supreme
Court, claiming that since the dissolution, she had ceased to be his wife and that he was no
longer obligated to give her maintenance under Muslim law. The wife was also not entitled to
any Maintenance because he had paid the dower payment during the Iddat period. The
Supreme Court denied the appeal and upheld the High Court's verdict. Even though there is a
disagreement, the Supreme Court noted that section 125 of the Code of Criminal Procedure is
a secular statute and thus applies to all women, regardless of their religion. In the event of a
controversy, the code will take precedence over Muslim Personal Law. Following this case,
the union government passed the Muslim women(protection of rights on divorce) act, 1986,
to protect the rights of Muslim women who have been divorced by, or have obtained divorce
from, their husbands, as well as to provide for matters connected with or incidental to such
divorce. According to section 3 of this statute, a divorced Muslim woman is entitled to:

A) Reasonable support from her former spouse during the Iddat period,

B) a fair maintenance to be given by her former spouse for a period of two years from the
respective dates of birth of such children if the divorced Muslim woman keeps the children
born to her before or after the divorce.

C) a sum equal to the mahr or dower promised to be provided to her at the time of her
 marriage or at any time thereafter under Muslim law,

D) and all the properties provided to her by her relatives or friends before, during, or after her
marriage, or by the husband or any relative of the husband or his friends.

Daniel Latifi v. Union of India:

A writ was filed under Article 32 in this case, contesting the constitutional validity of the
Muslim women(protection of rights on divorce) Act 1986. The Act's constitutional legality
was confirmed in this instance, and an interpretation of the Act's contents was supplied. The
court came to the conclusion that the Act did not infringe Articles 14, 15, or 21, and hence is
not extra vires. The following are the court's interpretations. To begin, the court determined
that the maintenance, being fair and reasonable, should exceed the iddat period but must be
made within the iddat time by defining the term "within" as used in section 3(1)(a) of the Act
and the terms "fair and reasonable." Such maintenance performed during the iddat period
should be continued indefinitely, including after the iddat period has ended. As a result, the
husband's liability is not limited to the iddat time. As a result, this Act does not violate
section 125 of the Code of Criminal Procedure.

A divorced woman has another option under section 125 of the Code of Criminal Procedure,
which deals with orders for the maintenance of spouses, children, and parents. When a person
with sufficient means neglects or refuses to maintain his wife who is unable to maintain
herself, a first class judicial magistrate may, upon proof of such refusal or neglect, order such
person to pay a monthly allowance for maintenance to this wife at the rate determined by the
magistrate. This section also provides for interim maintenance to be paid while a maintenance
proceeding is pending, and applications for such interim maintenance must be resolved
within sixty days of the date of delivery of notice of the application to such person, if
practicable.

The court concluded in Noor Saba Khatoon v. Mohd. Quasim, (1997) 6 SCC 233, that the
Section 125 CrPC benefit is applicable to all children, regardless of faith. The right of a woman
to claim maintenance for her children under the Muslim Women (Protection of Rights on
Divorce) Act of 1986 is unique and separate from the right to maintenance under the Code of
Criminal Procedure for minor children who are unable to support themselves.
 2.2CHILDREN

Parents have a responsibility to care for their children. According to Muslim law, a parent is
obligated to support his boys until they reach puberty and his daughters until they marry.
Where children are born before or after a Muslim woman's divorce, her former husband is
required to provide fair maintenance for a period of two years from the date of birth of such
children, according to section 3 of the Muslim women (protection of rights on divorce) act,
1986.

According to the provisions of Chapter IX of the Code of Criminal Procedure, 1978, any
person, such as a father or mother, who neglects or refuses to maintain his minor legitimate or
minor illegitimate child (whether married or not) who is unable to maintain himself or his
major legitimate or illegitimate child (not being a married daughter) who is unable to
maintain himself or his major legitimate or illegitimate child (not being a married daughter)
where such child is by reason of having. However, under section 125 of the code, the
magistrate may order the father of a minor girl child who is married to make such an amount
until she reaches the age of majority if the magistrate is persuaded that the husband of such a
minor girl child lacks sufficient resources.

Bakulabai v. Gangaram, (1988) 1 SCC 537.

Under Section 125 of the Code of Criminal Procedure, a child born out of a void marriage
between a woman and a man who already has a wife is to be recognised as a legitimate kid
entitled to maintenance.

2.3PARENTS AND GRANDPARENTS

It is a person's moral responsibility to care for his parents and grandparents. According to
Islamic law, if children have a right to be supported by their parents, they also have a
responsibility to support their parents. The following are the principles of Muslim law on
parental maintenance:

Those parents who are in financial need have the right to receive support from their children.
Both the son and the daughter have equal responsibility for the upkeep of their parents.

If a child can only support one of his or her parents, the mother always takes precedence over
the father.
According to Muslim law, a son is not obligated to support his stepmother.

IV.COMPARITIVE ANALYSIS WITH OTHER COUNTRIES

Family laws have been amended in many Muslim countries, including those that declare
themselves Islamic states.

1. Algeria- If the wife is granted custody of the children, the husband is responsible for
providing for their needs within his means. During her waiting time, a divorced woman
is entitled to maintenance, a clause borrowed from the Hanafi school.
2. Egypt-A divorcée who is repudiated by her husband without cause or consent is entitled
to maintenance during her ‘idda as well as compensation (mut'a al-talaq) for at least two
years of maintenance (taking into account the husband's means, the circumstances of the
divorce, and the length of the marriage); there is no upper limit on compensation.
Maintenance claims for the ‘idda period might be heard for up to a year after the divorce
is finalised. A divorcing spouse is responsible for providing independent housing for his
ex-wife, who has custody of their minor children.
3. Indonesia- Both couples are equal in the eyes of the law, and both are responsible for
maintaining the home and caring for the children.
4. Libya- Unless he is in financial difficulty and his wife is affluent, the husband is
responsible for maintenance to the best of his ability. If the plaintiff appears to be
eligible under a provision that plainly departs from traditional Islamic law, any spouse
may get a maintenance order or be given interim maintenance while the case is pending.
There is no time limit for filing a claim for support arrears.
5. Syria- If the judge deems the husband's exercise of talaq to be arbitrary, the divorced
wife may be given compensation of up to three years' maintenance (in addition to the
maintenance owed her during her ‘idda).
V.SUGGESTIONS/RECOMMENDATIONS

From the foregoing, it may be deduced that the predicament of a Muslim separated from
his or her lady under other specific rules is exceedingly unusual and unique. Indeed, even
the use of general law (Section 125 of the Cr. P.C.) as an option was subjected to the
fulfilment of the conditions set forth in Area 5 of the Muslim Women (Protection of Rights
on Divorce) Act, 1986. When a left or penniless Muslim (separated) spouse approaches and
files an application under Section 125 of the Cr. P.C., the usual Defense received by the
spouse was to argue that he has formally separated from his significant other and hence
isn't liable to pay maintenance. After the establishment of the Muslim Women (Protection
of Rights on Divorce) Act in 1986, this argument became more solidified. Fortunately, the
legal has shown concern and stepped up in regards to securing the enthusiasm of Muslim
ladies, and has in reality enabled Muslim ladies, particularly separated from ladies, to
maintain a satisfactory standard of living and to crush the bad form done to them.
According to Muslim individual law, disposing of the spouse by negligible articulating
Tales is anything but difficult. The Supreme Court's decision in the Danial Latifi case
clarifies the law for separated Muslim spouses and grants them a "protected suitable" to
work through support, which was initially raised in the Shah Bano Begum case. The
current Act encourages more criticism than praise. The content of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 has provided an opportunity for the legal
system to not only provide some relief to separated Muslim spouses, but also to encourage
the development of a consciousness and desire to care for them and not abandon them to
desperation. Also, to give them pride and respect as individuals rather than treating them
as a protest that is used for amusement and then thrown out of the house when it becomes
exhausted. Support, in this sense, is a way of surviving and living a happy and aware
existence.

VI.CONCLUSION

As can be seen from the preceding article, the Muslim law's maintenance provision is vastly
different from that of other personal laws. However, in 1986, the union government took a
successful step by passing the Muslim Women (Protection of Rights on Divorce) Act, 1986,
codifying the law of maintenance under Muslim law. In addition, the parliament took another
step by inserting the provision of maintenance under Chapter IX of the Code of Criminal
Procedure, 1973, which is secular in nature. Ravi Shankar Prasad (minister of law and
justice) proposed the Muslim women (protection of rights on marriage) bill, 2019, in the
lower house of parliament on June 21, 2019, to replace an ordinance published on February
21, 2019. The measure makes triple talaq, which is when a Muslim man says the phrase
"talaq" three times in one sitting to his wife, a criminal offence. The law passed by the
legislature, on the other hand, enhances the situation of Muslim women in the country.
 VII.REFERENCES

[1] https://www.researchgate.net/publication/259287165_The_Past_as_Prologue_Challengi
ng_the_Myth_of_the
_Subordinated_Docile_Woman_in_Muslim_Central_Eurasia

[2]https://indiankanoon.org/doc/1461489/

[3]https://en.wikisource.org/wiki/Constitution_of_India/Part_IV

[4]https://amielegal.com/maintenance-of-wife-under-muslim-law/

[5]https://www.legalbites.in/maintenance-wife-children-muslim-law/

[6] https://legalserviceindia.com/legal/article-1131-maintenance-of-divorced-women-under-
muslim-personal- law.html

[7]https://www.casemine.com/search/in
[8]https://indiacode.nic.in/show-data
[9]https://www.academia.edu/36417161/A_consideration_of_the_conflict_between_womens
_right_to_equality
_and_freedom_of_religion_when_Muslim_family_law_is_assimilated_accommodated_or_integrate
d_into_mult icultural_constitutional_jurisdictions

[10] https://www.scribd.com/doc/315415915/MAINTENANCE-FOR-MUSLIM-WOMEN-
IN-INDIA

[11] https://legalserviceindia.com/legal/article-1131-maintenance-of-divorced-women-under-
muslim-personal- law.html

[12] https://www.scconline.com/blog/post/2019/01/10/maintenance-
children-and-parents/ [13]https://www.kaanoon.com/264455/maintenance-
under-dv-12-act
[14] https://blog.ipleaders.in/can-a-parent-claim-maintenance-from-a-child/

[15] http://164.100.47.4/billstexts/lsbilltexts/asintroduced/1147.pdf
[16] https://indiacode.nic.in/handle/123456789/2033?locale=en

[17] http://familylawindia.blogspot.com/2017/05/maintenance-under-section-125-of-
crpc.html

[18] https://www.scribd.com/document/279879194/Laws-Relating-to-Maintenance-of-
Widows

[19] https://www.scconline.com/blog/post/2019/01/10/maintenance-children-and-parents/

[20] The constitution of India

[21] Muslim women (protection of rights on divorce) act, 1986

[22] Maintenance and welfare of parents and senior citizens act, 2007

[23] The code of criminal procedure, 1973

[24] https://www.scconline.com