"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
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
- 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
- If she abandons the conjugal domicile and her husband without any
- 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
- If she disobeys the reasonable commands of her husband.
- If she makes an agreement of dissertation on the second marriage of her
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 Gafoor
1 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
- If she remarries
- If she has received the whole amount due to her under any customary or
- 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
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
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
- 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
(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.
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.
- AIR 1985 SC 945
- AIR 1981 SC 1243
- (2001) 7 SCC 740
- (2007) 6 SCC 785.
- AIR 1971 Ker 261