INTRODUCTION

Maintenance in muslim personal law is known as nafaq .

Nafaqah is the Islamic legal term for the financial support a husband must provide for his wife
or wives. In an Islamic marriage agreement, the husband is responsible to pay for his wife's
housing, food and clothing. Any money the wife earns is hers to do with as she wishes.
Nafaqa means something given as maintenance; provisions, food; the food, clothes, housing and
similar things that the head of the family has to provide. The word infaq, which is derived from
the root nafaqa means to spend money on charity. The plural of nafaqa is nafaqat. As a term,
it means the food, clothes and housing sufficient for one person.

Nafaqa is generally divided into two:

1. The nafaqa necessary for the person himself. It comes before the nafaqa a person will give to
others. The Prophet said, "Spend money on yourself first, and then on those whom you have to
look after."

2. The nafaqa a person has to give to others. That kind of nafaqa originates from three reasons:
marriage, blood relation and property (ownership).

In Islam, the duty of winning the bread for the wife and children lies on the father, as the head of
the family. In addition, if his mother, father, brothers, sisters and other relatives become needy
and dependent, their maintenance is included in this duty.

Maintenance under Muslim Personal Law

All those things which are necessary to support of life, such as food, clothes and lodging; many
confine too solely to food.[12] Nafaqa literally means which a man spends over his children; in
law it means feeding, clothing and lodging; in common use it signifies food.[13] Maintenance
comprehends food, raiment, lodging, though in common parlance it is limited to first. [14] can
also be said Kharcha-e-pandan.

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The main principles of maintenance may be recounted thus: (i) A person is entitled to
maintenance if he has n o property, (ii) is related to obligor in prohibited degrees, or is the wife
or child, and (iii) the obligor is in position to support him. The obligation of maintenance is also
hedged by the factor of their economic condition.

Persons entitled to maintenance:

(i) Maintenance of Wife

(ii) .Maintenance of Children
(iii) Maintenance of Parents, and
(iv) Other relations

(i) Maintenance of Wife:

When a woman marries and moves to her husbands house, all of her spending regarding food,
clothes and housing lies on her husband. They are provided without extravagance or stinginess in
accordance with the social levels of the spouses. If both of the spouses are rich, the money is
spent in accordance with their levels. If both of them are poor, the woman cannot ask her
husband to spend money on her like rich people. If one of them is poor and the other is rich, a
moderate level is maintained. However, some scholars say that only the state of the husband is
taken into consideration regarding the amount of the nafaqa.
.
The following is stated in verses: But the father shall bear the cost of their food and clothing on
equitableterms"(al-Baqara,2/233).

Let the man of means spend according to his means: and the man whose resources are
restricted, let him spend according to what Allah has given him. Allah puts no burden on any
person beyond what he has given him. After a difficulty, Allah will soon grant relief." (at-Talaq,
65/7).

The husband is bound to maintain his wife so long as she is faithful to him and obeys his
reasonable orders.It is decided in an interesting case1 by Strachy and Badruddin Tyabji, JJ., that
disobedient wife need not to be maintained. Strachy, J ., observed:

the husbands duty to maintain his wife is conditional on her obedience and he is not bound
to maintain her if she is disobeys him by refusing to live with him or otherwise.[18] Only paid
occasional visits to husband house, staying for a night or so returning on occasion to mothers
house I am clearly of the opinion that in such circumstances the Muhammadan husband is not
bound to give his wife separate maintenance

To some effect the observations of Tyabji, J ,. :

1
A v. B, ( ILR (1896) 21 Bom. 77 )

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it is impossible to hold that a Mussulman wife defying her husband, refusing to live with him,
and bringing scandalous charges against him, can yet claim to be maintained separately at the
expenses of her husband.

Where the marriage is valid and the wife is capable to render marital intercourse its the
husbands duty to maintain his wife even though she may have means to maintain herself 2. But if
she unjustifiably refuses to cohabit with her husband then she loses her right for
maintenance.3 The right of maintenance would also be lost if the wife refuses to obey the
reasonable commands of the Husband4 but not so if disobedience is justified by circumstances or
if she is forced to leave husbands house on account of cruelty,5 so that of the husband refuses to
maintain his wife without any lawful reasons/causes the wife may sue him for maintenance. She
is not however entitled to past maintenance. Maintenance is payable from the date of the decree
unless the claim is based on specific agreement.6

Where a wife is turned out or ill treated so as to make her impossible to stay or live together with
her husband, or where the breach between the wife and husband is irremediable she is entitled to
maintenance by living separate from him whether the question arises u/s. 125 of the Code of
Criminal Procedure 1973 (corresponding section. 488 of the Code of Criminal Procedure
1998)[26] or in a suit for restitution of conjugal life.7To summarise, the wife loose the right to
maintenance in the following circumstances:-

i. She is minor, incapable of consummation.

ii. Refuse free access to the husband at all reasonable times.
iii. Is disobedient.
iv. Never visited his house.
v. Refuses to cohabit with him without reasonable excuse.
vi. Abandon conjugal home without reasonable reasons.
vii. Deserts him.
viii. Elopes with another person.

The husband and wife or their guardian may enter into agreement whereby the wife is entitled to
recover maintenance from her husband, on the happening of some special event such as ill-
treatment, disagreement, husbands second marriage etc. but the agreement in the marriage
contract that the wife would not be entitled to maintenance is void.The key consideration is that
the agreement should not be opposed to the public policy and Muslim Law.

2
Said Ahmed v. Sultan Bibi (AIR 1943 Pesh. 73 )
3
Ali Akbar v. Fatima Begum ( AIR 1929 Lah. 660) ; Mst. Ismabai v. Umar Mahomed Sidik( AIR 1930 sind. 11 ) ;
Mahomed Ali v. Mt. Ghulam Fatima ( AIR 1935 Lah. 902 )
4
Khurshid Begum v. Abdul Rashid ( AIR 1927 Nag. 139 )
5
Amir Mohd. v. Mt. Bushra ( AIR 1956 Raj. 102 )
6
Abdool Fateh v. Zabunnessa ( 6 Cal. 631) ; Supra note 20 ; Mandy Mather v. Bijan Bai ( AIR 1930 Mad. 234 )
7
Chandbi v. Badesha ( AIR 1961 Bom. 121 )

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An agreement between a Muslim and his first wife, made after his marriage with a second wife,
providing for certain maintenance for her if she could not in future get on with the second wife,
was held not void on the ground of the public policy.8

Followings are the valid conditions for an agreement:

i. If the husband treats the wife with cruelty then the wife has a right to separate residence and
maintained to meet it.

ii. If he brings subsequent wife and the previous wife is unable to with her, she will get
maintenance allowance to live separately or even at her fathers house.9

iii. If he brings his other wife to the matrimonial home, she will reside at her fathers home and
he will give her maintenance. This view was reiterated by the Karnataka High Court.10

iv. In case of disagreement with each other, he will give her maintenance for her separate
residence.

After divorce the Mahomedan wife is entitled to maintenance during the time period
of Iddat 11 and also for the time, if any, that elapsed after the expiry of the period of Iddat and her
receiving notice of Talak.12 After expiry of the period Iddat the enforceability of the order of
maintenance ceases.

The wife is entitled to sue for maintenance at her normal place of residence at the time of divorce
and the place where she receives the notice thereof.13 Suit by divorced for Hiba-jewels lies where
the wife resides.

A widow is not entitled to maintenance out of the estate of her late husband in addition to what
she is entitled to by inheritance or under his will.14

Nafaqa is not necessary for a woman whose husband dies because when the man dies, all of his
property passes on to the inheritors. She becomes one of the inheritors at a rate of one-fourth or
one-eighth. In the first periods of Islam, the husband had to will that his wife would be given
nafaqa for a year after his death.

The following is stated in a verse: "Those of you who die and leave widows should bequeath for
their widows a year's maintenance and residence" (al-Baqara, 2/240).

8
Mansur v. Azizul ( AIR 1928 Oudh. 303 )
9
Sakina v. Shamshad Khan ( (1936) Pesh 195 )
10
Ashabi v. Bashasab Takke ( (2003) 2 Kant LJ 429 )
11
Munnisa Begum v. Nur Mohd. ( AIR 1975 AP 231 )
12
Rashid v. Anisha Khatoon ( (1932) 59 I.A. 21 ) ; Ahmed Kasin v. Khatun Bibi ( AIR 1933
Cal. 27 )
13
Mohd. Ibrahim v. Jaithoon Bibi (AIR 1951 Mad. 831)
14
Mohd. Jaffer v. Koolsum Beebee ( (1897) 25 Cal. 9 )

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However, the decree regarding one-year nafaqa and dwelling, and the decree of will were
abrogated by the 12th verse of the chapter an-Nisa; the one-year iddah was shortened by the
following verse: "If any of you die and leave widows behind; they shall wait concerning
themselves four months and ten days when they have fulfilled their term" (al-Baqara, 2/234).

The nafaqa responsibility of the husband continues during the period of iddah, whether the
divorce is revocable or irrevocable. It does not matter whether the divorce has taken place twice
or three times. However, according to Shafii, Malik and Ahmad b. Hanbal, only dwelling is
provided if it is the third divorce; other things like clothing, food, etc are not necessary.

The sustenance of the children, the nafaqa of the sons and daughters have to be provided by the
father. The nafaqa of the children covers food, clothing and dwelling needs of the children.

The following is stated in the 6th verse of the chapter at-Talaq: "and if they suckle your
(offspring), give them their recompense". Here, the verse gives the decree that a woman who
suckles her baby after her period of iddah is over has the right of receiving money. It shows that
the nafaqa of the child has to be provided by the father.

If a married woman does not want to breastfeed her baby and if the baby does not refuse to suck
at another womans breast, the babys mother cannot be forced to breastfeed her baby.

The following is reported from Hazrat Aisha (may Allah be pleased with her): Hind, the mother
of Mu'awiya said to Allah's Apostle, "Abu Sufyan (her husband) is a miser. He does not give me
and my children enough sustenance. Am I allowed to take from his money secretly?" The
Prophet said to her, "You and your sons may take what is sufficient reasonably and fairly." The
hadith above shows that it is wajib for a man to provide his wife and children with nafaqa.

(ii) Maintenance of Children:

In case of Legitimate Children the maintenance of the children is rest upon the father.
In Hedaya, the following verse of the Koran, namely ----

The maintenance of woman who suckles an infant rests on him to whom the infant is born,

Is mentioned and from which it has been inferred that the maintenance an infant child is rest
upon the father, because, as maintenance is decreed to the nurse on account of her sustaining the
child with her milk, it follows that the same is due to the child himself a fortiori.

Thus a father is bound to maintain his sons until they attain puberty and his daughter until they
are married. He is also responsible for the upkeep o0f his widowed or divorced daughter, or a
child in the custody of the mother. The father is not bound to provide separate maintenance for a
minor or an unmarried daughter who refuses to live with him without reasonable cause. An adult
son need not to be maintained unless he his infirm.The father is not bound to maintain a child
who is capable of being maintained out of his or her own property.

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If the father is poor or infirm then the mother is bound to maintain the children. And failing her it
is the duty of the parental grandfather.

In case of Illegitimate Children, Muslim Law the father is not bound to maintain illegitimate
children. U/S 488 of the Criminal Procedure Code, 1908 (as amended up to 1955), however did
bound the father to pay a reasonable amount even him the mother refuses to surrender the
illegitimate child to him.

In a case15 it was held, An agreement to maintain an illegitimate child, for which the
Muhammadan Law makes no provision, will in my opinion not have the effect of defeating the
provisions of any law. As a matter of fact the maintenance of the illegitimate children has been
statutorily recognised u/s 488 of the CrPC in our country and it is in consonance with this
wholesome policy that the offspring born under such circumstances are to be provided for and
should not be left to the misfortunes of the vagrancy and its attended social consequences.

It is, however not open to a Court to award maintenance u/s. 488 of the CrPC unless expressly
asked for.16

The conditions for the father to have the liability for providing nafaqa for his son

a) The son must be no older than the age of puberty. However, if the child has reached the age of
puberty but if he is disabled, crippled, paralyzed or chronically ill and if he is unable to earn his
living, the responsibility of the father continues.

b) The son must be poor. If the child has his own property, the money for his sustenance is taken
from it.

c) The father must afford to take care of his children. He is regarded to be so if he is rich or able
to work.

d) The father and his son must be free people, not slaves.

The conditions for the father to have the liability for providing nafaqa for his daughter

a) There is no condition of age or having reached the age of puberty for daughters. The
sustenance of the daughters has to be provided by the father until they get married. After they get
married, it has to be provided for the husbands. If the husband of the woman dies or if she is
divorced, she returns to her fathers house. The woman cannot be forced to work. However, it is
permissible for her to work if she finds a job in compliance with Islamic principles.

b) She must be poor. If she has her own property, the money for her sustenance is taken from it.

15
Sukha v. Ninni ( AIR 1966 Raj 163 )
16
Pavitri v. Katheesumma ( AIR 1959 Ker 319 )

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c) The father must be able to work and earn money or be rich.

d) The father and his daughter must be free people, not slaves.

It is stated in a hadith to whom a person should give priority in providing sustenance for his
relatives as follows: "A man came to the Messenger of Allah and said: O Messenger of Allah! I
have one dinar with me. How should I spend it? Hazrat Prophet said: Spend it on your needs.
The man said, I have one more dinar. The Prophet said, Spend it on your wife. The man
said, I have one more dinar. The Prophet said, Spend it on your children.

The man said, I have one more dinar. The Prophet said, Spend it on your servant. When the
man said he had one more dinar, the Prophet let him free what to do by saying, "You know it
better how to spend it. (Ahmad b. Hanbal, II, 251, 471; Nasai, Zakat, 54).

(iii) Maintenance of the parents and grandparents

If the parents become poor or if they become too old and cannot work, their sustenance and care
have to be provided by their children.

The following is stated in the verses regarding the issue:

" Thy Lord hath decreed that ye worship none but Him, and that ye be kind to parents " (al-Isra,
17/23). " Show gratitude to Me and to thy parents " (Luqman, 31/14). " But if they strive to make
the join in worship with Me things of which thou hast no knowledge obey them not; Yet bear
them company in this life with justice (and consideration)." (Luqman, 31/15).

The following is reported from Jabir b. Abdullah: A man came to Hazrat Prophet (pbuh) with his
father and said

"Oh Messenger of Allah! I have my own property; my father has his own property. My father
wants to have my property. The Messenger of Allah (pbuh) said, "You and your property
belong to your father." (as-Sarakhsi, al-Mabsut, V, 222-229; al-Kasani, Badayiu's-Sanayi, IV,
30; Ibnul-Humam, Fathul Qadir, III, 349 ff.).

However, the right of the parents on the property of their children were delimited by
interpretation and it was bound to the condition that they had to be poor and needy, because
when the verses regarding inheritance were sent down, the rights of the parents on the property
of their children who died were determined.

The conditions under which parents can receive nafaqa from their children: They must be poor.
Otherwise, their expenses are met from their own property. The child or grandchild that is
responsible for nafaqa must afford to pay it. He can afford it if he is rich or if he can work and
earn money.

(iv)Maintenance of relatives
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Conditions under which relatives are liable for maintenance are :

1. The relative must be poor. A person is poor if he has no property or if he cannot work. A
person cannot work due to young age, insanity or chronic disease. However, parents are excepted
because it is necessary to give them nafaqa even if they are healthy or they can work.
Accordingly, if ones relatives except his parents and wife are rich or if they can work, giving
them nafaqa is not necessary. According to the preferred view of Malikis, when parents can
work, they cannot demand nafaqa from their children.

2. The person to give nafaqa to his relative must be rich or be able to work and to be in a position
to provide sustenance for his relative. However, the father and the wife are excepted. A man has
to provide sustenance for his parents and wife even if he is poor. According to Malikis, a poor
child does not have to give nafaqa to his parents even if he can work and earn money.

The following is stated in a hadith reported by Jabir (may Allah be pleased with him): "If one of
you becomes poor, he should meet his own needs first. If he still has some money after meeting
his own needs, he should spend it on the members of his family. If he still has some money after
that, he should spend it on his other relatives."

3. The person to be provided nafaqa for must have a blood relation. However, the wife and the
female slave are excepted.

According to Hanafis, the person to give nafaqa must be such a close relative to the person to
receive nafaqa that he can be an inheritor to him. The evidence of this view is the following
verse:" ... No mother shall be treated unfairly on account of her child Nor father on account of
his child. An heir shall be chargeable in the same way if they both decide on weaning, by mutual
consent, and after due consultation. " (al-Baqara, 2/233). According to the verse above, the rights
and responsibilities that are valid between the parents and their children are also valid for other
inheritors. It contains the expenses of sustenance, too, when necessary.

The effect of being in different religions on nafaqa: Being in different religions does not hinder
the right for nafaqa unless the woman is disobedient or abandons the religion of Islam. As for the
responsibility for nafaqa for other relatives,

according to Hanafis, being in the same religion is not necessary for the nafaqa of the parents,
grandparents, children and grandchildren. Being in the same religion is necessary for the nafaqa
of the other relatives because no relation of inheritance is valid between a Muslim and non-
Muslim. Accordingly, nafaqa for the relatives other than the wife, parents, grandparents, children
and grandchildren is not necessary if they are not in the same religion. The responsibility for
nafaqa for parents, grandparents, children and grandchildren originates from the fact that they are
part of one another. The part of a person is like the person himself. Since a person cannot refrain
from providing sustenance for himself because he is an unbeliever, he cannot refrain from
providing sustenance for his parents, grandparents, children and grandchildren, either. However,
if they are harbi (person living in a non-Muslim country that is in a state of war with an Islamic
country) and even if they are foreigners with passports, they are not paid nafaqa because

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Muslims are prohibited from helping those who are in a state of war with them.
The reason why one provides sustenance for somebody else is being needy. It is not necessary to
provide sustenance for someone who is not needy. The expenses of a person who has property
are met from his property. It does not matter whether this person is a child or adult. However, the
wife of a person is excepted. Even if a woman is rich, her expenses are met by her husband
because the reason why the wife is given nafaqa is not being needy but living in the same house
due to marriage.

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