Maintenance under Muslim Personal Law

The Arabic term for maintenance is ‘Nafqah’, which means what a person spends over his family. However, in legal sense maintenance signifies and includes: food, clothing and lodging.

LIABILITY FOR MAINTENANCE:

A person becomes liable for maintenance on account of three causes, namely: from being a wife, from being a relative, and from being a slave or servant.

REQUISITES FOR A CLAIM OF MAINTENANCE:

In order to claim maintenance, there is a general rule that only such person is entitled to maintenance:

1. Who has no property of his own;

2. Who is related within prohibited degrees to the person from whom his claim is in easy circumstances.

Exceptions:

There are some exceptions to this general rule as under:-

1. It does not apply when the claimant is wife;

2. It does not apply when the claimants are minor sons, unmarried daughters, parents and grandparents.

PERSONS ENTITLED TO MAINTENANCE:

A Muslim is under obligation to maintain his descendents, ascendants, his collaterals and his wife, as under:-

1. Descendants:

It is the absolute liability of father to maintain his children and is not affected by his indigence, so long as he can earn. He is bound to maintain them even if they are in custody of their mother. A father is liable to provide maintenance to the following:

a. Minor children of either sex;

b. Unmarried daughter;

c. Married daughter if she is poor;

d. Adult son if he is necessitous (indigent).

2. Ascendants:

Since parents are under an obligation to maintain their children, similarly children are liable to provide maintenance to their parents. Every child, either male or female, adult or minor, who has sufficient property is responsible to supply maintenance to his parents. Under Sunni Law, whether the parents are capable of earning or not make no difference, but under Shia law the children are relieved of their duty if the parents are capable of earning.

3. His Collaterals:

A Muslim is under an obligation to maintain his collaterals (distant relations) only in the following cases:

a. When he himself is in easy circumstances;

b. The relation claiming to be maintained has no other means of maintenance.

4. His Wife:

A Muslim husband is bound to maintain his wife. The obligation varied under different circumstances as under:

a. Maintenance during the Subsistence of Marriage:

A Muslim husband is bound to maintain his wife. Her right to maintenance is absolute and remains unprejudiced even if she has income of her own. A husband is bound to maintain his wife if she fulfills the following conditions:

i. She attains puberty, which is an age at which she can render to the husband his conjugal rights;

ii. She places and offers to place herself under her husband’s power, so as to allow free access to her at all lawful times and obeys all his lawful commands.

She is not entitled to maintenance under the following circumstances:

i. If she abandons the conjugal domicile without any valid cause;

ii. If she refuses access to her husband;

iii. If she is disobedient to his reasonable commands;

iv. If she refuses to live with her husband without any lawful excuse;

v. If she has been imprisoned;

vi. If she has eloped with somebody;

vii. If she is a minor on which account marriage cannot be consummated;

viii. If she deserts her husband voluntarily and does not perform

her matrimonial duties;

ix. If she makes an agreement of desertion on the second marriage of husband.

b. Maintenance of a Divorced Widow:

A divorced woman is entitled to maintenance during her period of Iddat and not afterwards. However, in the case of Mohammad Ahmad Khan v/s Shah Bano Begum,1985 the Court held that if the divorced wife is unable to maintain herself after the period of Iddat, she is entitled to take recourse to section 125 Cr.P.C.

c. Maintenance of Widow:

The right to maintenance ceases on the death of husband. However, wife is entitled to maintenance from estate of husband during Iddat of four months and ten days, or if she is pregnant at the time of death of husband until she delivers.

AMOUNT OF MAINTENANCE:

The amount of maintenance which a husband is liable to provide during the course of valid marriage varies in different schools, such as:

Hanfi: Social status of both husband and wife is taken into consideration while deciding the matter.

Shafi: Economic conditions of only husband are important and status of wife is no more important.

Shia: Status or economic conditions are not important but the necessities of wife such as food, clothes and accommodation are determinant factors in settlement of amount of maintenance.