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Right To Maintenance Under Muslim Law

"The lord hath commanded that you show kindness to your parents, whether the one of them, or both of them, attain too old age with the. Wherefore say not unto them. Fie on you neither reproach them, but speak respect unto them, and submit to behave humbly towards them, out of tender affection, and say "O Lord : have mercy on them both, as they nursed me and give unto him that is of kin to you his due". - Quran, Ch. XVII.

In Muslim Law property has been treated as primarily and naturally individual just like English Law. Under Muslim law, a man is indentured to maintain his wife, his minor children and he is also bound to maintain any relatives from whom he can inherit and they are indigent. The concept of maintenance was introduced to provide support to those who are not capable of supporting themselves. It includes basic amenities like Food, clothing, shelter, education etc.

The Arabic equivalent of maintenance is Nafaqah and what Nafaqa literally means is "What a person spends over his family".

Kharcha-i-pandan is the allowance paid by the husband to the wife; such an allowance is a special allowance paid only by Muslims of rank to the wife customary. According to Mulla Kharcha-i-pandan means betel box expense paid to the wife, and the wife as a beneficiary can claim it in a court of law.

Under The Muslim Law Of Maintenance (Nafaqah) Following Persons Are Entitled To Maintenance:

  • Wife
  • Children
  • Parents
  • Other relations with prohibited Degrees

Maintenance of wife under Muslim law

Under Muslim law, It is the obligation of the husband to maintain his wife in all circumstances. In a Muslim marriage a husband is bound to maintain his wife even if there is no agreement between them regarding this. A Muslim husband is not bound to maintain his wife only if the marriage is void or irregular.

However, the obligation of Muslim husband to maintain his wife only applicable if the wife remains faithful and obeys all his reasonable orders i.e. Discharge her matrimonial duties. Under Muslim law it does not matter if wife is earning or not or if she is capable of maintaining herself, husband is bound to maintain her; this is quiet contrary of what other religious laws and acts state where only dependent women is eligible of Right to Maintenance.

Under Muslim law, as we already discussed above that it is the liability and duty of a husband to maintain his wife.

However, a Muslim wife is not entitled to maintenance in following circumstances:

  • If she abandons the conjugal domicile and her husband without any reasonable causes
  • If she elopes with some other man.
  • If she has been Imprisoned.
  • If she is a minor and because of that the marriage cannot be consummated.
  • If she disobeys the reasonable commands of her husband.
  • If she makes an agreement of dissertation on the second marriage of her husband.

Maintenance under Criminal Procedure Code, 1973

The right of maintenance for a wife under criminal procedure code is an independent statutory right and this right is not affected by any personal laws. Wife can claim maintenance after the second marriage of her husband under the provisions of criminal procedure code, 1973.

In the famous Begum Subanu alias Saira Banu v. A.M Abdool Gafoor1 case, the supreme court held that regardless of a Muslim husband's right to contract a second marriage, his first wife would be entitled to ask for maintenance. A Muslim wife, whose husband neglects to take care of her with none lawful justification, is entitled to file a suit for maintenance in a civil court under her personal law.

She is additionally entitled to enforce her right under the CrPc 1973. Where a Muslim wife is in urgent need, she may apply for an order of maintenance under section 125 of the Criminal Procedure Code; 1973. A magistrate of the first class may then order the husband to give a monthly allowance not exceeding five hundred rupees, for the maintenance of his wife.

Maintenance of Divorced Women

Under Muslim personal law, a divorced wife is entitled to maintenance by her former husband during the period when she is observing Iddat. According to Muslim personal law, after the expiration of the Iddat period the wife is not entitled to any maintenance under any circumstances mentioned Muslim law. Muslim law do not acknowledge any commitment on the part of the husband to maintain his former wife after he had divorced her.

Under Section 125 of the criminal procedure code, 1973, the term wife includes a wife and a wife who has obtained divorce from her husband and not remarried. It stated that after divorce if the wife isn't ready to maintain herself, she is entitled to maintenance from her husband until she remarries. The act applies this provision to Muslim women also who aren't entitled to the upkeep after the expiration of Iddat period. This act creates liability over husband to give maintenance to wife even after the completion of Iddat.

Under Section 127(3) Of Criminal Procedure Code, Maintenance Of A Divorced Wife Gets Cancelled And She Will Be Not Entitled To Maintenance Under The Following Circumstances

  • If she remarries
  • If she has received the whole amount due to her under any customary or personal law
  • If she voluntarily surrenders her right to maintenance after divorce

In Zohra Khatoon v. Mohd. Ibrahim 2, Supreme court held that the word 'Wife' mentioned in section 125(1) explanation (B) of criminal procedure code, 1973 includes women who has been divorced or the women who have obtained the decree for dissolution of her marriage under any of the provisions of the Dissolution of Muslim Marriages act, 1939.

Maintenance under The Muslim Women ( Protections of Rights on Divorce) Act, 1986, This act confined the applicability of section 125 of CRPC and passed few provisions in favor of Muslim personal Law. This act states that the husband is only bound to maintain his wife during the period of Iddat and not after that and even during the period of Iddat he has to provide reasonable and fair amount of maintenance.

After the expiration of the Iddat period if the wife is still not able to maintain herself and remains unmarried then in that case she can seek maintenance from wakf board or her relatives or her former husband relatives or the people who are going to get her property after her death. The Muslim women ( protection of rights on divorce) act, 1986 made the use of section 125 to 128 of criminal procedure code optional in nature.

This act has not mentioned anything clearly and has created various confusions within the judiciary and was considered as vague. The confusion of this act has been solved by the Supreme Court of India under this case:

Daniel Latifi v. Union of India 3, the constitutional validity of the Muslim women (protection of rights on divorce) Act, 1986 was challenged by a writ petition. All the writ petitioners were clubbed together in a PIL under article 32 of the constitution. The court stated that:
  • The liability od of a Muslim husband towards his divorced wife mentioned under section 3 of the Act is to pay maintenance to his foreigner wife is not confined to the Iddat period
  • He also has to make arrangements for her future during the period of Iddat.
  • The divorced Muslim woman is entitled to get maintenance from the relatives mentioned under section 4 of this act who will get her property after her death.
  • If no one is able to maintain her, then a wakf board is created because of this act and the board will maintain her.
  • A magistrate can direct the board to maintain her.

On the basis of the above stated points supreme court dismissed the writ petition challenging the constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act, 1986 and upheld the vailidity of the Act.

In the case of Iqbal Bano V. State of U.P 4, Supreme court held that Muslim Women (Protection of Rights on Divorce) Act, 1986 only applies to a divorced woman and not to women who is not divorced. Moreover, it was also mentioned that proceedings under section 125 of CRPC are civil in nature so if court notices that if a woman has made an appeal under section 125 of CRPC, court can trate the ame as a petition under The Muslim Women (Protection of Rights on Divorce) Act, 1986 because proceedings under section 125 of CRPC and claims under 1986 Act are tried by the same court.

In A. Yousuf v. Sowramma 5 It had been held by the court that regardless of the cause could also be the wife is entitled to a decree for the dissolution of her marriage if the husband fails to take care of her for a period of two years, despite the fact that the wife may have contributed towards the failure of the maintenance by her husband.

Conclusion
Thus, from the above article we can clearly see the poor position of the wife for the maintenance, which is her right. We can also state that the maintenance provisions of the Muslim Law are different from other Personal laws. We need more efforts and contribution of judicial system and legislation to improvise the condition of the wives under Muslim law. Several acts and laws have been enacted but not made much difference in the poor condition of the wives.

End-Notes:
  1. AIR 1985 SC 945
  2. AIR 1981 SC 1243
  3. (2001) 7 SCC 740
  4. (2007) 6 SCC 785.
  5. AIR 1971 Ker 261

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