What is Law of Maintenance under Muslim Law?

Maintenance under Muslim Law (Nafaqa) 

Under Muslim law, the obligation to provide maintenance, or nafaqa, arises only under certain conditions, specifically when the claimant, such as a child, parent, or other relative, lacks the means or property to support themselves. Unlike other systems of law, this obligation is not absolute. For example, while the duty to maintain children exists similarly to Hindu law, it does not apply if the children have an independent source of income. The same principle extends to aged parents and other relatives within prohibited degrees of relationship. Furthermore, the duty of maintenance is proportionate to the obligor's share in their property.

For children, aged parents, and other close relatives, the person providing maintenance must have sufficient financial capacity. However, in the case of a wife, this obligation is absolute. A husband is required to maintain his wife irrespective of her financial standing, even if he himself lacks the means. This duty is considered a primary obligation under Muslim law, and the maintenance of a wife takes precedence over other relatives.

Maintenance of Muslim Children

The maintenance of children is primarily the responsibility of their parents, with the father bearing the primary obligation under Muslim law. This duty is rooted in both personal law and statutory law, specifically Section 125 of the Criminal Procedure Code (CrPC)[1]. The Supreme Court of India in Noor Saba Khatoon v. Mohd. Qasim[2], has affirmed that a Muslim father's duty to maintain his minor children is absolute if he has sufficient means and continues until the children reach the age of majority or, in the case of female children, until they marry. Fathers are expected to support their children as long as they are unable to maintain themselves, ensuring their well-being until adulthood or marriage.

In cases where the father is poor, under Hanafi law, if the mother is financially capable, it becomes her obligation to maintain the child. However, she is entitled to recover the expenses from the father once he is in a position to repay. In contrast, under Shafei law, if the father is unable to provide and the mother is financially well-off, the mother is not obliged to maintain the child; instead, the responsibility falls on the child's grandfather.

Additionally, the mother's obligation to maintain her child arises only in cases where the child is illegitimate and the father refuses to provide support. This reinforces the father’s primary role in the maintenance of children under Muslim law.

Maintenance of a Muslim Wife

Under Muslim law, a wife’s right to be maintained by her husband is absolute, regardless of her financial situation. The husband is obligated to support his wife as long as the marriage is valid, whether or not there is an explicit agreement regarding maintenance. This obligation remains, whether the wife is rich or poor, Muslim or non-Muslim, and even if the husband lacks the means to provide support. However, this does not extend to wives of void or irregular marriages, except when the marriage is irregular solely due to the absence of witnesses.

A wife may also enforce her right to maintenance under Section 125 of the CrPC[3], which offers quick relief without delving into the specifics of personal law. This statutory provision allows a Muslim wife to claim immediate assistance, though the ultimate question of entitlement can be decided by a civil court based on personal law. The amount of maintenance granted by the court is determined based on the wife’s needs and the socio-economic status of the husband.

Importantly, the wife’s right to maintenance is prioritized over all other relations, including children and aged parents, because in Islamic thought, the wife is considered the root (asl) of the family, while the children are considered branches (fara). A husband's obligation to maintain his wife remains as long as she is faithful and performs her matrimonial duties. Section 125(4) of the CrPC[4] specifies that a wife is not entitled to maintenance if she is living in adultery. However, a wife does not lose her right to maintenance if she lawfully refuses access to her husband due to illness, or if consummation is not possible because of the husband's fault.

Maintenance after Divorce

A divorced wife’s right to maintenance was significantly expanded by the Supreme Court in the Shah Bano[5] case (Mohd. Ahmed Khan v. Shah Bano Begum), which ruled that a divorced Muslim woman who is unable to maintain herself is entitled to maintenance beyond the iddat period under Section 125 of the CrPC[6]. Although this ruling was later addressed through the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which placed certain restrictions, the general principle of providing maintenance for the well-being of women, particularly wives, remains firmly rooted in both personal and statutory law.

Divorced Wife's Right to Maintenance: Shah Bano Case and the Muslim Women (Protection of Rights on Divorce) Act, 1986

Background Before the Shah Bano Case Before the landmark judgment in Md. Ahmed Khan v. Shah Bano Begum[7], it was generally believed that a Muslim husband’s obligation to provide maintenance to his divorced wife ended with the expiration of the Iddat period (the waiting period a woman must observe after divorce). This perspective was rooted in the interpretation of Islamic law, which dictated that after the Iddat period, the husband’s financial responsibilities ceased. 

The Shah Bano Case

The Shah Bano case revolutionized the understanding of a divorced Muslim woman’s right to maintenance. Shah Bano, married for over 40 years, was driven away by her husband along with her five children in 1975. In 1978, her husband divorced her by pronouncing talaq. She sought maintenance under Section 125 of the Criminal Procedure Code (Cr.P.C.)[8] after her divorce, as she had no means to support herself.

Her husband contended that under Islamic law, he was liable to maintain her only during the Iddat period and after that, he had no further obligation. He also argued that by paying her Mahr (a mandatory payment made to the wife at the time of marriage), his obligation was fulfilled.

Supreme Court Judgment: The Supreme Court, led by Chief Justice Y.V. Chandrachud, ruled that even under Muslim law, a divorced wife who is unable to maintain herself is entitled to maintenance beyond the Iddat period. The Court held that Section 125 of the Cr.P.C.[9] applied to all citizens, irrespective of their religion, and that Shah Bano, despite being divorced, was entitled to maintenance as long as she did not remarry. The Court reasoned that interpreting the law otherwise would lead to unjust hardship and vagrancy for divorced women like Shah Bano, who could not support themselves.

The Court also ruled that the Mahr paid at the time of marriage could not be considered as a substitute for maintenance. The Mahr was an obligation related to the marriage, not the divorce, and thus could not relieve the husband of his responsibility to maintain his divorced wife.

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

The Shah Bano case led to a political and social uproar, especially among conservative Muslim groups, who felt the judgment interfered with their personal law. In response, the Indian government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which aimed to clarify and address the rights of divorced Muslim women.

Key Provisions of the Act

1. Maintenance during the Iddat Period: Section 3[10] of the Act states that a divorced Muslim woman is entitled to a "reasonable and fair provision and maintenance" from her former husband, but this must be made and paid within the Iddat period.
2. Maintenance for Children: The Act also requires the husband to provide reasonable maintenance for children born before or after the divorce, for a period of two years from the birth of such children.
3. Mahr and Property Rights: The divorced woman is entitled to receive an amount equal to the sum of Mahr or Dower agreed upon at the time of marriage. Additionally, any property given to her before, during, or after the marriage by her husband, relatives, or friends must also be returned to her.
4. Maintenance after Iddat Period: The Act does make provisions for the maintenance of a divorced woman beyond the Iddat period. If the woman is unable to maintain herself, she can seek maintenance from her relatives who are entitled to inherit from her.[11] If such relatives are unable to provide maintenance, the responsibility may fall on the State Wakf Board.
5. Option to Choose Cr.P.C.: Section 5[12] of the Act allows the divorced Muslim woman the option to proceed under either the Act or Section 125 of the Cr.P.C.[13] for claiming maintenance.

Danial Latifi Case

The ambiguity surrounding the Act led to various conflicting interpretations in lower courts, prompting further litigation. The constitutionality of the 1986 Act was challenged in the case of Danial Latifi & Others v. Union of India[14].

The Supreme Court clarified that the husband’s liability to provide a "reasonable and fair provision" to his divorced wife under Section 3(1)(a)[15] of the 1986 Act extends beyond the Iddat period. However, the reasonable and fair provision must be made within the Iddat period. This provision includes support for food, residence, and other essentials necessary for her survival. The Court ruled that this did not contradict the Shah Bano judgment, as the 1986 Act effectively codified the law established in that case.

Conclusion

The Shah Bano case was a significant milestone in ensuring justice for Muslim women seeking maintenance after divorce. The 1986 Act, while controversial, ultimately upheld the principle that a divorced Muslim woman has the right to a fair and reasonable provision from her former husband, beyond the Iddat period, if she cannot maintain herself. The Act sought to balance the principles of Islamic law with the broader mandate of justice, ensuring that divorced women are not left destitute.

[1] The Criminal Procedure Code, 1973, s. 125.

[2] AIR 1997 SC 3280.

[3] Supra at 1.

[4] The Criminal Procedure Code, 1973, s. 125(4).

[5] AIR 1985 SC 945.

[6] Supra at 1.

[7] Supra at 5.

[8] Supra at 1.

[9] Ibid.

[10] The Muslim Women (Protection of Rights on Divorce) Act, 1986, s. 3.

[11] Id. at s. 4.

[12] Id. at s. 5.

[13] Supra at 1.

[14] AIR 2001 SC 3958.

[15] The Muslim Women (Protection of Rights on Divorce) Act, 1986, s. 3(1)(a).