INTRODUCTION

The principles of maintenance are determined by

the strength of claims and affections and duties of persons on
whom such obligation has been cast. The Muslim jurists did not
keep legal and moral obligations distinct. The moral and legal
duties, in case of maintenance, are connected with each other.
Such right of maintenance, apart from being a legal obligation,
is a moral obligation also. Maintenance includes all those things
which are important for survival and contains suitable food,
raiment and lodging and cost of education. The term
Maintenance also includes expenses for mental and physical
well being of a minor child in accordance to the status of the
family in the society. In case of education under maintenance
there is no hard and fast rule as to what should be the standard
of education.
In some cases there are conditions laid down on the duty of
providing maintenance and the right of receiving maintenance.
And also in some cases the right and duty of providing and
receiving maintenance depends on the circumstances and
condition of the persons bound to maintain and the persons
who are entitled to receive respectively.

The persons entitled to maintenance are:

Wife,
Children,
Grandchildren,
Parents,
Grandparents,
Sons wife,
Step-mother, and

Other relations by blood.

Now the relations, which are liable to maintain, can be divided

into two classes:
1. relations by blood who areascendants or descendants; or
collaterals within the prohibited degrees; and
2. relations by affinity a. the husband;
b. father of the husband; and
c. step-son.

Conditions for the right to maintenance

Under Mohammedan law every persons maintenance should

be given from his own property whether he is a minor or a
major. As a general rule, the right of maintenance is available
only to the necessitous persons who are poor and cannot earn
their maintenance. The exception to this general rule provides
that in certain cases the persons who are not necessitous are
also entitled to maintenance. One such example is the right of
the wife even though she has the means to maintain herself.
Also the parents and grandparents are entitled to maintenance
even if they are not necessitous but provided that they are poor
then only they can claim the maintenance. Maintenance of
sons, till they attain puberty, and daughters, till they are
married, is also considered as an exception.

It may be noted that the wife is the only one who is

entitled to maintenance even if she has got some means of
maintaining herself, and the husband is without any means.
Also the children before puberty are not entitled to
maintenance if they are not poor and have got their own means
of maintaining themselves.
A Muslim husband is bound to maintain the wife
as long as she is faithful to him and obeys such orders which
can be considered as reasonable in the eyes of law. But he is
not bound to maintain her if she refused herself or is otherwise
disobedient. In Baillies Digest of Mohammedan Law, it has
been stated:[1]

If, when called upon to remove to his house, she refuses to do

so of right, that is, to obtain payment of her dower, she is
entitled to maintenance; but if she refuses to do so without
rights, as when her dower is paid, or deferred, or has been
given to her husband she has no claim to maintenance.
If a woman be a nashizah or rebellious,
she has no right to maintenance until she returns to her
husbands house. By this expression is to be understood a
woman who goes out from her husbands house(manzil) and
denied herself to him, in contradiction to one who merely
refuses to abide in her husbands apartment(beit), which is not
necessary for the purpose of restraint . If, however, the house
her own property, and she forbids him from entering it, she is
not entitled to maintenance unless she had asked him to
remove her to his won house, or to hire a house for her. When
she ceased to be a nashizah or rebellious, she is again entitled
to maintenance.

Also it has been observed in Ameer Alis

Mohammedan Law[2]: but the right of the wife to maintenance

is subject to the condition that she is not refractory or does not

refuse to live with her husband without the lawful cause.

Priority of obligations to maintain shall be in the following order:

firstly, on the husband,
secondly, on the father,
thirdly, on the mother,
fourthly, jointly on the grand-parents and grand-children,
fifthly, on the children,
finally, on the collateral relations.

CHAPTER 1
MAINTENANCE OF WIFE

Wifes right to maintenance under the personal law In the

case of maintenance during the continuance of the marriage, if

a wife is validly married then her husband would be liable for

her maintenance even if she can maintain herself or when the
husband is poor. This is subject to the following conditions:
the wife should have attained an age at which she can render
conjugal rights to the husband;
except for some reasonable cause, she should be accessible for
sexual intercourse; and
except for some reasonable cause, she should reside with the
husband and obeys his all reasonable demands.

In case of maintenance after dissolution of the

marriage by divorce, the wife is entitled to maintenance, except
where the divorce is the result of her own misconduct, till the
date of the expiry of the period of iddat or the date of
communication of the divorce to her, whichever is later but not
after that.

According to the percepts in Quran and the traditions,

maintenance of the wife is the duty of the husband. In some
cases even the wife is entitled to a separate apartment for
herself. According to Abu Hanifa and Muhammad, a husband, in
certain circumstances, is liable to maintain one servant of the
wife. But, according to Abu Hanifa, a poor husband is not
required to maintain the servant of the wife. According to the
Shafei law, the husband even though he is poor is under a duty
to maintain a servant for his wife.

The wife is absolutely entitled to get

maintenance from the husband even though she may have
means to maintain herself[3], and the husband may himself be
without any means. The obligation to maintain the wife cannot
be shared.

1.1 Part Maintenance

In Mullas Muhhamedan Law, it is stated as follows:

278. Order for maintenance If the husband neglects or
refuses to maintain his wife, without any lawful cause, the wife
may sue him for maintenance, but she is not entitled to a
decree for past maintenance, unless the claim is based on a
specific agreement. Or, she may apply for an order of
maintenance under the provisions of the Code of criminal
Procedure, 1898, s. 488, in which case the court may order the
husband to make a monthly allowance in the whole of her
maintenance not exceeding five hundred rupees.[4]

According to Shafei law, a wife is entitled to past maintenance

though there may be no agreement. In the Madras High court
decision in Mohammad Haji v. Kalimabi[5], a Division Bench
consisting of Abdur Rahim and Srinivasa Ayyangar, JJ.,
held:

That in Shafei law the wife is entitled to recover arrears of

maintenance, though not due under a decree of court or mutual
agreement, contrary to the Hanafi Law, admits no doubt. For
according to the theory of the former system, maintenance is a
debt and not in the nature of a gratuity as is the doctrine of
Hanafi lawyers.

The Madras Decision quotes the following passage of Hedaya

(Hamilton Vol. I, p. 398) as the rule of Hanafi Law on the
subject:

If a length of time should elapse during which the wife has not
received any maintenance from her husband, she is not entitled
to demand any for that time except when the Kazee had before
determined or decreed it to her..

1.2 CONDITIONS:

The right of the wife to maintenance depends on the following

conditions:

The wife must be capable on entering into matrimonial

relationship- If the wife is minor i.e. she has not attained
maturity then she will not be entitled to maintenance. The
Hanafi Law and the Shia law also proposed the same but
according to the Shafei Law, it makes no difference whether the
wife is minor or not.
The wife must be accessible for conjugal intercourse if the
husband is unable to have sexual intercourse with his wife
because of any act or conduct of the wife, then the husband is
not liable to maintain her. In the case where the wife is residing
at a place other than her husbands home and which is
preventing the husband from having sexual intercourse with
her, then in that case the husband is not liable to maintain her
wife. And is she makes unjustified refusal to stay with her
husband, then also she is not entitled to maintenance.[6]
But where the wife is an adult and the husband is a
child or if the husband is sick or impotent, she would be entitled
to maintenance. The reason for this is, if the husband is
impotent and unable to discharge his marital obligations, how
could he fulfill the main object of marriage, more particularly,
under the Mohammedan Law where the marriage is a
sacrosanct contract and not a purely religious ceremony as in
the case of Hindu Law. [7]

She must obey the reasonable commands of the Husband - the

wife should obey all the commands of her husband which can
be considered as just and reasonable. If the wife leaves the
husbands place without his permission she will lose her right of
maintenance.[8] The wife is under a duty to obey the
reasonable commands of the husband.

1.3 MAINTENANCE AFTER DISSOLUTION OF MARRIAGE

The wife is entitled to maintenance only when the marriage is

in continuance but not during the term of natural life.[9] As a
general rule, a husband is bound to maintain her wife as long
as she is faithful to hum and obeys his reasonable orders, but
she will not be entitled to past maintenance until there is an
agreement to the contrary.[10]
A marriage may be dissolved in several ways,
such as, by the death of wither party or divorce or may be
because of some defect. Now in order to claim the right of
maintenance a wife should have a proof of her marriage then
only she will be entitled to the right of maintenance.

A relationship between a wife and a husband cannot be

maintained and run smoothly unless both the spouses act with
self-restraint and have feelings and respect for each other. In
matrimonial relations, it is expected of the two partners that
they should behave in such a manner which should not be
contrary to the feelings of each other. No woman can see her
husband marrying another woman. Under Mohammedan law,
second, third or even fourth marriage is permissible. So, if a
husband marries 4 wives then he will not be liable for the
offence of bigamy. But if such a behavior of the husband proves
to be an irritant to his wife and if the same becomes a source of

mental agony to her, then he cannot take shelter under the

personal laws and say that he is not liable to pay maintenance
to his wife living separately.

Dissolution of marriage by death -Where the marriage is

dissolved as a result of the death of the husband, then in that
case the widow is not entitled to maintenance either
during iddat or even though she is pregnant.[11] Shia Law has
also proposed the same thing.

Dissolution of Marriage by Divorce Where the marriage is

dissolved as a result of divorce, then in that case the wife is
entitled to maintenance irrespective of the fact that the
divorce is a revocable one or an irrevocable one, or, whether
the wife is pregnant or not.[12] In this case the wife is entitled
to maintenance only till the expiry of iddat, or till the
communication of the divorce. However, if the divorce is a
result of the misconduct of the wife then she is not entitled to
maintenance during iddat.
The wife is also entitled to sue for interim
maintenance at the place where she resides at the time of the
divorce and receives notice thereof.[13]
Under Hanafi Law, a wife is entitled to maintenance on
divorce during the iddat; but under Shafei and Shia Law, a wife
is entitled to maintenance only when the divorce is revocable;
but if the wife is irrevocably divorced then she will be entitled
to maintenance only when the wife is pregnant.[14]

Dissolution of Marriage by Apostasy where the marriage is

dissolved in the ground of apostasy of the husband the wife
would be entitled to maintenance during iddat but not in the
case where she herself had apostatized. In the case where
the talaq was revocable and the woman apostatizes

during iddat, then also she will not be entitled to maintenance

but if the talaq was irrevocable and she returns to faith, then
she would be entitled to maintenance. Shia Law says that, if a
wife returns back to faith then her right of maintenance would
revive immediately even though the husband was absent.

1.4 MAINTENANCE WHEN DUE

The court may direct the husband to pay daily, monthly or even
annually or as may be most convenient to him. Under Shia and
Shafei law, maintenance is payable from day to day.

1. 5 QUANTUM OF MAINTENANCE

The condition of both the husband and wife should be taken

into consideration while determining the quantum of
maintenance.
In Khwaja Ali v. Smt. Fatmabi[15], the husband
nominated a sharer in General Provident Fund, Gratuity,
Insurance,etc.The court held that there would be no reduction
in the quantum of punishment since the quantum of
maintenance can only be determined by considering the
condition of the husband and not by any other person.
In a case where a poor husband became rich, the court
then altered the amount of maintenance initially fixed by it.
Under the Shia Law, the quantum of punishment is decided by
taking the requirements of a wife into consideration.
Under Shafei Law, the quantum of punishment is determined by
considering the post of husband.

1.6 ARREARS OF MAINTENANCE

Under Hanafi Law, a wife is not entitled to recover arrears of

maintenance unless there is an agreement to or a decree
passed by the court.
According to Shafei school, maintenance due to a wife is a
debt and not in the nature of a gratuity and in all cases the wife
is cannot be precluded from claiming such maintenance.

1.7 MAINTENANCE UNDER AN AGREEMENT

If there is an agreement between the wife and the husband that

in case of any ill-treatment or disagreement, etc., the
agreement would be considered as valid and the wife would be
entitled to maintenance.
It has been held that an application on future
separation between the husband and the wife is bad and thus
the agreement providing that the husband would give
maintenance to the wife in the event of future separation on
the desire of the wife or mere disagreement is opposed to
public policy and would be void[16]. Also, an agreement in the
marriage that the wife would not be entitled to maintenance is
void.
Even the agreements made with third parties are
enforceable and it doesnt matter that whether they are made
before or after the marriage. Thus, an agreement with the
mother-in-law providing for an allowance for mewakhori ( it is a
custom in Muslim families to fix a personal allowance for
females, this is called kharch-i-pandan, or allowance
for mewakhori ) is enforceable[17].

1.8 HUSBAND CONTRACTING SECOND WIFE WHETHER FIRST

WIFW IS ENTITELD TO MAINTENANCE?

The explanation to s. 125(3) provides that if a husband

continues has contracted with another wife or keeps mistress it
shall be considered as a just ground for his wifes refusal to live
with him. Even where a husband takes another wife with the
permission of his wife then also refusal of the wife to live with
the husband is a just ground for claiming maintenance and also
she need not to prove the neglect on the part of her husband.
[18]

1.9 MAINTENANCE OF MUSLIM WIFE UNDER S.125 OF CRPC

Under section 125 of CrPC, 1973[19], a wife, whether Muslim or

non-Muslim is entitled to claim maintenance against the
husband on the ground of the husbands neglect or refusal to
maintain her. S. 125 of the new code includes every divorceewife, Muslim or non-Muslim.
Second proviso to s. 125(3) lays down that if the husband
makes an offer to the wife to maintain her provided that she
should live with him and if the wife refuses to live with the
husband, then the Magistrate may consider any ground on
which the refusal has been made and may make an order for
maintenance not withstanding the offer made by the husband.
The section also lays down that if the husband has
contracted marriage with another woman, then it is a just
ground for wifes refusal to live with the husband. Similarly,
where a husband is impotent and is unable to discharge the
marital obligations, this would also amount to a just cause.
Sub-section 4 of section 125 contemplates that if a wife
is living in adultery or without any reason refuses to live with
her husband; the wife would not be entitled to maintenance.

The question as to whether Section 125 of the code of

Criminal Procedure applies to Muslims also was concluded by
two decisions of this court in Bai Tahira v. Ali Hussein Fidaalli
Chothia[20].The Criminal Procedure Code provides
maintenance under Section 125 for wife, sons, and daughter up
to age of majority only permitted. Section 125 of Criminal
Procedure Code is common to all people to move to the court
for getting maintenance.
Section 3(1) (b) of the Muslim Women (Protection of Rights on
Divorce) Act provides statutory liability of providing
maintenance extends beyond attainment of a dependent girl till
marriage. In this circumstance she has to move to the Civil
Court under the personal law to obtain maintenance. This
process leads to delay and multiplicity of proceedings.
In Bai Tahiras case Justice Krishna Iyyer held that:
Welfare laws must be so read as to be effectively delivery
system of salutary objects sought to be served by the
legislature and when the beneficiaries are weaker section like
the destitute women. The spirit of Article 15(3) has compelling
compassionate relevance in the contest of Section 125 Cr.P.C.
and the benefit if any in the statutory interpretation goes in
favour of ill used wife and the derelict divorcee. So the Section
125 and the sister clauses must receive a compassionate
expansion of sense that the words used permit.

In Mst. Zohara Khatoon v. Mohd. Ibrahim[21] the question

before the court was that whether a Muslim wife who has
obtained divorce from her husband under Dissolution of Muslim
Marriage Act, 1939 entitled to claim maintenance under Section
125 of CrPC. Answering to this question the Allahabad High
Court was of the view that clause(b) of the explanation to
Section 125 would apply only if divorce proceeds from the
husband that is to say that the said clause would not apply
unless the divorce was given unilaterally by the husband or was

obtained by the wife from the husband. But on appeal the

Supreme Court held that the view taken by the Allahabad High
Court was erroneous and is based on wrong interpretation of
clause (b) of the explanation to Section 125. Therefore it
suggests that a Muslim wife whose divorce has been done
under the Dissolution of Muslim Marriage Act, 1939 may also
claim maintenance from the husband.
The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano
Begum and others[22] has held that if the divorced woman is
able to maintain herself, the husband's liability ceases with the
period of iddat, but if she is unable to maintain herself after the
period of iddat, she is entitled to maintenance under section
125 of the Code of Criminal Procedure. This led to controversy
as to the obligations of the Muslim husband to pay
maintenance to the divorced wife.

1.10 THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON

DIVORCE) ACT 1986 Objectives and consequences.
According to the Muslim Women's Act she is entitled to:
a.
a reasonable and fair provision and maintenance to be
made and paid to her within the iddat period by her former
husband;
b.
where she herself maintains the children born to her
before or after her divorce, a reasonable and fair provision and
maintenance to be made and paid by her former husband for a
period of two years from the respective dates of birth of such
children;
c.
an amount equal to the sum of mahr or dower agreed to
be paid to her at the time of her marriage or at any time
thereafter according of Muslim law; and
d.
all the properties given to her before or at the time of
marriage or after her marriage by her relatives or friends or the
husband or any relatives of the husband or his friends.

A divorced women as defined under Section 2(a) of the Act to

mean a divorced woman who has married according to Muslim
law and has been divorced by or has obtained divorce form her
husband according to the Muslim law.
Section 5 of the given Act provides for option to be
governed by the provisions of Section 125 to Section 128,
Cr.P.C. It lays down that if on the date of the first hearing of the
application under Section 3(2), a divorced woman and her
former husband declare, by affidavit or any other declaration in
writing in such form as may be prescribed, either jointly or
separately that they would prefer to be governed by the
provisions of Sections 125 to 128 of Cr.P.C. and file such
affidavit or declaration in the Court that the Magistrate shall
dispose such application accordingly.
A reading of the Act will indicate that it codifies and regulates
the obligations due to a Muslim woman divorcee by putting
them outside the scope of Section 125 of Cr.P.C. as the divorced
woman as defined in this Act is woman who has married
according to Muslim law and has been divorced by or has
obtained divorce form her husband according to the Muslim
law.

COMPARATIVE CHART - BROAD OUTLINE

Muslim Women(Protection of Section 125 Code
Rights on Divorce) Act 1986 of Criminal
Procedure
Jurisdiction Application is filed in the
Application where
area where divorced woman the husband is, or
resides
resides or where
he last resided with
his wife
Relief
available

Reasonable and fair

Allowed a monthly
provision and maintenance, allowance, not

or the amount of mahr or

exceeding Rs.500.
dower paid, all properties
No provision for
given at the time of
maintenance by
marriage or after marriage. children, relatives
If unable to maintain herself, or Wakf Board after
after Iddat period relatives Iddat period.
ordered to pay maintenance
and if no relatives exist then
Warf board pays.
Punishment Imprisonment which may
on failure extend to one year.
to pay

Imprisonment
which may extend
to one month.

Applies to

To every married or
divorced woman.

Only to divorced woman

Alteration / No such Provision.

allowance

On change of
circumstances
Alteration maybe
made.

Maintenanc Woman to be maintained by No such provision.

e after
her children or parents or
Iddat
relatives or the Warf board.

CHAPTER 2
MAINTENANCE OF CHILDREN AND GRAND-CHILDREN

2.1 Right of Children to maintenance.

The children have got the priority over parents as far as

maintenance is concerned. The mother cannot be compelled to
provide milk to a child and the father is under a duty to provide
a nurse, but this is subject to one condition that if the father
has no property then he has no such duty. After weaning the
father is under a duty to maintain but if the child has some
property then maintenance can be taken out from his property.
In case of daughters, the duty of the father to maintain extends
beyond puberty and also till they are married when they have
no property of their own.

2.2 Maintenance of minor children

Maintenance of children is incumbent upon the father only
where [the children] possess no independent property. The
father is also responsible for [the] maintenance of infant
children. There is no obligation upon the mother to suckle [her]
child at the breast. It is the duty of the father to provide a wetnurse who is to stay with or near the mother. He cannot hire his
own wife for the purpose but may hire one of his other wives, if
any.

2.3 Liability to maintain in case of legitimate or illegitimate

child

The Mohammedan law makes no specific provision for the grant

of maintenance to an illegitimate child against his father at the
same time there is no prohibition either. Muslim Law supports
the notion that an illegitimate child is a filius nullius ( a son of
nobody, illegitimate son), it owes no nasab to either parent In
Muslim Law, a son to be legitimate must be the offspring of a
man and his wife or that of a man and his slave; any other
offspring is the offspring of 'Zina', that is illicit connection, and
hence is not legitimate. Muslim laws does not confer any
obligation of maintenance of illegitimate children on either
parents. Though the Hanafis recognize the obligation of nurture
till the child attains the age of seven; the Shias do not
recognize this obligation.
Though the father under Muslim Law is not bound to
maintain his illegitimate child, it seems from the judgments
that Section 125 of the Criminal Procedure Code, 1973, (which
provides that all such unfortunate children are maintained by
their fathers) however binds such a father to pay for the
maintenance of the child. The father would be liable to pay this
amount even if the mother refuses to surrender the illegitimate
child to him.
In the case, Sukha v. Ninni, it was held that, "An
agreement to maintain an illegitimate child, for which the
Mohammedan Law as such makes no provision, will in
my opinion not have the effect of defeating the
provisions of any law. As a matter of fact, maintenance
of illegitimate children has been statutorily recognized
under Section 125 of the Criminal Procedure Code of
1973 in our country and it is in consonance with this
wholesome policy that the offsprings born under such
circumstances are to be provided for and should not be

left to the misfortunes of vagrancy and its attendant

social consequences."
Whereas, in Pavitri v. Katheesumma where an
illegitimate daughter born to a Muslim father and a
Hindu mother brought a claim for maintenance from the
assets of the dead father it was held that though "an
illegitimate does not inherit properties of its putative
father or his relations and from this it would follow that
an illegitimate child cannot claim maintenance from the
assets left by its putative father and which are in the
hands of the heirs of the putative father ....even though
S.125 of the Cr P C imposes a statutory obligation on a
Muslim father to maintain his child even an
illegitimate."
The Court further held, "whether the
principles of Hindu Law apply or whether the principles
of Muslim Law apply, the plaintiff in this case who was
an illegitimate daughter born of a Mohammedan male
and a Hindu female was not entitled to claim
maintenance from the putative father or from the assets
left by him apart from any rights that may have been
conferred on her by Statute (Cr P C). Since the plaintiff
had not based her claim upon any statutory right her
suit for recovery of maintenance from the assets of her
putative father was bound to fail."

2.4 Fathers Duty

Under Islamic law father is liable to maintain his sons till
they attain puberty and daughters till they are married
and such obligation cannot be denied on the ground of
his pecuniary incapacity or indigence so long as he has
the ability to earn and no one shares such obligation. He is
bound to maintain even if he is indigent or the children are in
the custody of the mother. In such cases, the Judge must pass a

decree for maintenance against him and direct the wife to

borrow money for it on the husbands credit. Further, the duty
of mother and grandfather arises only when the father is not
able to maintain the children even by earning. The father has a
right to refuse to maintain the children if they refuse to live
with him, except for a reasonable justification for the same.
[23]

2.5 Right of child to be maintained by father despite the

fact that the child is in the custody of the mother

The position of a child who has not attained the age of

discretion or who is not of its
free will or volition living away from the father is peculiar. If
such a child is kept in custody by the mother and is prevented
from returning to the father, it cannot be said that the child is
at fault and that its conduct has disentitled it to maintenance.
Even if a child prefers to live with the mother due to natural
affection or attachment for her, that would not affect the
liability of the father to maintain the child. In Mst. Akhtari
Begum v. Abdul Rashid[24], is a case in which the right
of a four year old child was upheld despite the fact that
the child was in the custody of the mother.

The fathers obligation to maintain a daughter ceases

immediately on her marriage( the marriage should be
validly solemnized).

2.6 Mothers Duty

The mother is liable to maintain the children if the

father is necessitous and she herself is not poor. There
are some conflicts of opinion regarding maintenance by mother
and by the grandfather in such cases. Some hold that the
mother alone has to maintain while others hold that the liability
has to be shared proportionately according to the share of
inheritance.
According to the Shia law - If the father is poor, the
liability rests on the nearest paternal grandfather how
highsoever, if he is not poor but not on the mother
though she is not poor. After this the liability shifts on
the mother. If the mother is dead or poor, then the
liability moves on to the maternal grandparents.
According to Shafei law- The duty of higher ascendants
arises only in default of mother or father.

2.7 Maintenance of grand-children

A grand-parent who is not poor is bound to maintain his

grand-children who has no father and mother or the
father is necessitous. However, such liability is subject
to the child having no property. If the child has some
property and the father is necessitous, the grand-parent
will be entitled to reimbursement.

2.8 Married Daughters

As a general rule, based on case laws, the duty of

maintaining sons even after puberty is, in certain cases,
is on the parents and similarly when a daughter gets
married the obligation passes into her husbands family
and there is no duty on the parents to maintain her. But

some Judges have taken the view that marriage does

not necessarily terminate the obligation of maintaining
a daughter. The father may be obliged to maintain a
widowed or divorced daughter.

2.9 When the right to maintenance ceases

According to Mohammedan law the right of the children
and the grand-children to maintenance terminates as
soon as puberty is attained except under certain
circumstances. Minority according to Mohammedan law
terminates on attainment of puberty but according to
Sec. 3 of the majority act. There is a difference of
opinion as to whether majority for purposes of
maintenance is attained on puberty or at the age of 18
years.

2.10 Step Children

It has been held that if a man married a widow with

encumbrances he is usually expected to take over the
encumbrances with the widow and feed them[25]. But
he is not bound to support except where there is an
agreement for that purpose.

2.11 Adult Sons

In case of maintenance of necessitous adult sons there is a

difference in opinion. One opinion is that the liability rests twothird in the father and one-third on the mother. This view has

been approved by Hedaya. The other opinion is that the father

alone is liable, if both mother and father are poor.

2.12 Statutory rights of the children

The hanafi law recognizes the relationship of an

illegitimate child with the mother with mutual rights of
inheritance. The Shia law does not recognize the
relationship even with the mother. The duty to maintain
rests, under the Hanafi law, on the mother and under
the Shia law on neither parent. The right is, however,
available against the father under Sec. 125 of Cr.P.C.

CHAPTER 3

MAINTENANCE OF PARENTS

3.1 Right of parents to maintenance

It is obligatory upon a man to provide maintenance for his

father, mother and grandfather and grandmother if they

happen to be in circumstances necessitating it. The fact that

they may belong to different religions makes no difference.
Except his wife, children, parents, grand-children and
grandparents, a man are not obliged to maintain other relations
belonging to other religions.
Maintenance is due to a relationship within the prohibited
degrees in proportion to inheritance. A poor man is under no
such obligation except in the case of a wife [with an] infant
child. A father and mother must provide maintenance to their
adult daughters and also to disabled adult sons in proportion to
their respective claims of inheritance.
In the event of divorce, whatever has been given to the wife by
his parents and whatever might have been given to her by her
husband, all belongs to her and she can take them with her.
The parents have the next position in the right of
maintenance after the children. The liability to maintain parents
rests only on the children and is not shared by anyone else. As
between the parents the mother is entitled to preference over
the father.
There is a difference of opinion on the question whether
father who is poor but can earn is entitled to maintenance.
If the son is poor but is earning something, he may be
compelled to maintain if he has any surplus. If he has got wife
and children all that he can be compelled to do is to bring his
father to live into his family but he is not obliged to give
separate maintenance.

Shia Law - the right of the two parents is equal. So also the
right of the parents and children are equal. Maintenance must
in each case be divided equally. But the parents are preferred
to grandparents.

Parents and children are jointly liable for a persons

maintenance. Thus, if a man has both father and a son who are
not poor, the liability falls equally upon them.

3.2 Proportions of liability

There is a difference as to the extent of liability of different

children to maintain the parents. Ameer Ali state that the
liability is in proportion to the shares inheritance. Another
opinion is that if there is a considerable difference in the
means, maintenance is to be provided in proportion to the
means. But the better opinion seems to be that duty to support
is equal. The right is equally incumbent upon a son and a
daughter.

Shia Law - the liability is apportioned according to the individual

means of the different persons who are bound to maintain.
Shafei Law there is a difference of opinion as to whether the
heirs are jointly liable for maintenance or only in proportion to
their respective shares.

CHAPTER 4
MAINTENANCE OF GRAND-PARENTS

4.1 Liability of Grand-children

The grand-children of a person would not be liable to maintain

if there is a husband, children or parents who would be under a
duty to maintain, even though they may be entitled to
daughter or the father must maintain. Thus, if a man has a
daughter or father and a sons son, the daughter or the father
must maintain. The sons son would not be bound to maintain
even though he is entitled to inherit. As in the case of sons, the
liability of all grand-children would be equal.
But where there are both grand-parents and grandchildren, the liability would be of both proportionately to the
extent of their shares in inheritance. Thus, of there is a fathers
father and a sons son they must provide maintenance in
proportion to one-sixth and five-sixths.

Shafei law maintenance is due from all the descendents

together but they are not equal in all respects. The obligation is
on the nearest. If there is equality in the degree of relationship,
the obligation is in the person who will be heirs. There is,
however, a difference in opinion as to whether the liability is
joint or only in proportion to shares in inheritance.

If both the ascendants and descendants are alive, the

latter would be primarily liable irrespective of the distance of
degree of relationship.

Ahmad Khan v. Shah Bano

Before to Shah Banos case several times it was argued before

the courts that the former husband is liable to provide
maintenance only up to Iddat period. The Supreme Court
judgment in the Shah Bano's case in 1985 also has to be seen
in this light and the subsequent law (Muslim Women's Act,
1986) upturning the Supreme Court judgment did not influence
judges minds and they continue to give judgments as before
even under the new law.
There came up the case of Ahmad Khan v. Shah
Bano[26] before the Supreme Court. Judgment by the Apex
Court in this case had caused much turmoil in the Muslim
community. The Supreme Court had allowed a Muslim divorcee
Shah Bano maintenance for life under the Cr.P.C. section 125
from her former husband. The Muslim leadership objected to
this judgment and maintained that in Islam a divorcee can get
maintenance only for the iddat period (i.e. a period of waiting
for three months after divorce is pronounced). The Muslim
leadership thought that the Supreme Court had no right to
interpret the holy Quran which only a Muslim alim can do.

There were massive demonstrations by the Muslims and

the Rajiv Gandhi Government was compelled to upturn the
Supreme Court Judgement by passing a new law known as the
Muslim Women (Protection on Divorce) Act. The new law
drafted with the help of Muslim clergy was supposedly based on
the Quranic verse 2:241 which says that "And the divorced
women, too, shall have (a right to) maintenance in a goodly
manner; this is a duty for all who are conscious of God." Thus it
is clear that the Holy Quran requires Muslims who fear God to
provide maintenance for their divorced wives. The Muslim
Ulama, however, argued that this maintenance could be given
only for the period of Iddat only i.e. for three months.

Then the learned judges came to the conclusion,

"Considering all the aspects we finally hold that a person after
divorcing his wife is bound to maintain her on a reasonable
scale beyond the period of iddat for an indefinite period that is
to say, till she loses the status of a divorcee by remarrying
another person." This is of course quite interesting
interpretation of the verse 2:241 and it seems to be quite in
keeping with the words of the verse. It is also interesting to
note that there was no resentment against this judgment by
the `Ulama in Bangladesh though this interpretation is not in
keeping with the orthodox view.
It is quite interesting to note that while the Indian
'Ulama and Muslim leaders agitated against the Supreme Court
judgment in mid-eighties and forced the Government of India to
adopt new legislation for Muslim women, the Bangladesh High
Court, in 1995 upheld the provision of Cr.P.C. 125 and allowed
maintenance for life to a Muslim divorcee.
Hence the Muslim Women's Act makes one time
provision only as against recurring payment until she remarries
or dies as provided for in Cr.P.C. According to the Muslim
Women Act, the husband, at the time of divorce, should pay the

mehr amount (if not already paid), should make one time
provision for her as provided for in the Quran and should give
three months' maintenance. Thus a Muslim divorcee will get a
lump sum amount at the time of divorce. The very first
judgment under this Act was given by the District Magistrate of
Lucknow Ms.Rekha Dixit who awarded Rs. 80,000 to a Muslim
divorcee. Rs. 60,000 were awarded as one time provision and
remaining amount was for mehr as well as for three months'
maintenance. The amount awarded was not so bad after all.
But it seems Muslim women were not satisfied and number of
cases continued to be filed in various courts for maintenance
under section 125 of Cr.P.C. despite the enactment to the
contrary.
Justice Panigrahi maintained that the Supreme Court
had unequivocally held that the provisions of section 125 of the
Cr.P.C procedure override the personal law and it necessitated
the enactment of the Act in Parliament in 1986. The judge said
that "A divorced Muslim woman is entitled to maintenance after
contemplating her future needs and the maintenance is not
limited only up to the iddat period. The phrase used in Section
3 (I) (A) of the Act, 1986 is reasonable and fair provision and
maintenance to be made to see that the divorced woman get
sufficient means of livelihood after divorce and that she does
not become destitute or is not thrown out on the street."
Several writ petitions were filed and again the same question
came before the Supreme Court in the case of Daniel Latifi v.
Union of India[27]. This time the Act was there in force and the
Section 3(a) and 3(b) were in question.
While upholding the validity of the Act, they gave the following
conclusions:
1)
A Muslim husband is liable to make reasonable and fair
provision for the future of the divorced wife, which obviously
includes her maintenance as well. Such a reasonable and fair
provision must b made by the husband within the Iddat period
in terms of Section 3(1) (a) of the Act.

2)
Liability of the Muslim husband to his divorced wife
arising under Section 3(1) (a) of the Act to pay maintenance is
not confined to Iddat period.
3)
A divorced Muslim woman who has not remarried and
who is not able to maintain herself after iddat period can
proceed as provided under Section 4 of the Act against her
relatives who are liable to maintain her in proportion to the
properties which they inherit on her death according to Muslim
Law from such divorced woman including her children and
parents. If any of the relatives being unable to pay
maintenance, the Magistrate may direct the State Wakf board
established under the Act to pay such maintenance.
4)
The provisions of the Act do not violate Articles 14, 15
and 21 of the Constitution of India.
Thus it will be seen that all courts now have been interpreting
the Section 3 (a) of MWA, 1986 such as to give benefit of
maintenance to Muslim divorcees beyond the iddat period
which is in fact the intention of the section 125 of the Cr.P.C.
Instead of giving maintenance every month as provided for in
Cr.P.C the husband under MWA, 1986 will have to pay lump sum
within the iddat period so as to benefit the divorcee beyond
iddat period. The Muslim theologians too were insisting during
the Shah Bano agitation that the Quran provides for one time
provision only as in the verse 2:241. There were of course
different interpretations of 2:241 by the companions of the holy
Prophet. But some companions like Abdullah bin Abbas did hold
that the provision (mata`) has to be substantial and not merely
symbolic.
Prior to the Muslim Family Laws Ordinance on 1961, Hanafi
Muslim women had no forum to raise the question of recovery
of arrears of maintenance. Under this Ordinance, the Arbitration
Council formed could and did deal with the question and found
in favour of womens claims. However, we must note that the
Ordinance, despite what was recommended by the 1956
Commission, only comprehended maintenance for married

women, and not mataa for divorced women. It has already been
pointed out that jurists are in agreement that it is permissible
to follow a non-Hanafi school when Hanafi law does not provide
relief. This is how our 1961 Ordinance came to be based on
Maliki law. Thus today cases coming before Bangladeshi courts
should not have a difficulty in finding a forum to provide relief
to divorced women. For example, in Gul Bibi v. Muhammad
Saleem[28] the argument was based on justice and common
sense and the position that it is possible to borrow from
another school of Muslim law when one school does not provide
relief. Thus the Court held According to Shiah and Shafi law the
wife is entitled to maintenance notwithstanding the fact that
she was allowed to get into arrears without having the amount
fixed by the Court, or by agreement with the husband...
In the instant case the parties admittedly follow Hanafi school
of thought... However, as some thinkers of Islam do favour the
positive view and such view is also consistent with reason, logic
and common sense, its adoption as a rule in case of such sects
which do not strictly follow that school of thought, would not be
unjustified.
Today we have the Family Courts Ordinance of 1985, which not
only has a streamlined procedure but also under which women
have to pay only their minimal fees. Now that the question of
mataa - post divorce maintenance, has been raised before the
Appellate Division of Bangladesh, we can be hope that the
question has at last found an appropriate forum for decision.
CONCLUSION

From the study of the various case laws, the Following general
principles can be laid down:
1.
A husband is legally bound to maintain his wife during the
subsistence of the marriage in accordance with his means and
position in life but this very right of the wife to maintenance is

subject to the condition that she must obey or she should not
refuse to live with her husband without a lawful cause such as
non-payment of dower.
2.
If the wife is a minor so that the marriage cannot be
consummated, there is no legal obligation on the husband's
part, according to the Hanafis, to maintain her. However,
desertion without leaving any means of support to the wife or
family entitles the wife to a separation.
3.
In case of a divorced wife, she is entitled to maintenance
during her period of probation (iddat) and further the wife
cannot re-marry a second time for three months and in the
case of death of the husband for four months and ten days.
This period is called iddat. Because of this condition, she is
entitled to get maintenance for this period.
4.
If the husband fails to pay prompt Mehr on the demand
of his wife or due to his cruel treatment, the wife leaves his
society, she is entitled to maintenance.
5.
In determining the quantum of maintenance, regard is to
be given to the status and condition of both the parties. If both
the parties are wealthy, he must support her in an opulent
manner; if both be poor, the husband is required to provide for
her accordingly; if he be rich and she poor, he is to afford her a
moderate subsistence such as is below the former and above
the latter.
6.
If a woman refuses to surrender herself to her husband on
account of non-payment of dower, her maintenance does not
drop and it would still incumbent be upon the husband.
7.
If a wife is disobedient or refractory and goes abroad
without her husband's consent, she is not entitled to any
support from him until she returns and makes submission. The
maintenance of the wife's servants is also incumbent upon her
husband, provided he is in opulent circumstances.

8.
If the maintenance of a wife is decreed by a Qazi or Court
at a time when the husband was poor but afterwards he
becomes rich, she can sue for a proportionate addition to her
maintenance, and a decree must be given in her favor.
9.
If a husband absents himself, leaving his effects in the
hands of another, his wife is entitled to get maintenance out of
the husband's effects. In fact, children and parents of the
husband will also get maintenance out of the assets.
10. The right of the wife to maintain depends on the following
conditions:
a. the wife must be capable of entering into matrimonial
relationship.
b. the wife must be accessible for conjugal
intercourse.
c. she must obey the reasonable commands of the
husband.
11. After weaning the father is under a duty to maintain but if
the child has some property then maintenance can be taken
out from his property. In case of daughters, the duty of the
father to maintain extends beyond puberty and also till they are
married when they have no property of their own.
12. In case of an illegitimate son, the father is bound to
maintain his illegitimate child (from the judgments that Section
125 of the Criminal Procedure Code, 1973, which provides that
all such unfortunate children are maintained by their fathers).
The father would be liable to pay this amount even if the
mother refuses to surrender the illegitimate child to him.
13. If a child prefers to live with the mother due to natural
affection or attachment for her, that would not affect the
liability of the father to maintain the child.
14. In case when the mother is not poor and the father is
necessitous, then the mother is liable to maintain the children.

15. The liability to maintain parents rests only on the children

and is not shared by anyone else. As between the parents the
mother is entitled to preference over the father.

16. The grand-children of a person would not be liable to

maintain if there is a husband, children or parents who would
be under a duty to maintain, even though they may be entitled
to daughter or the father must maintain.