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Maintenance (Nafqah) Under Muslim Law

In Arabic, 'maintenance' translates to Nafqah. It's a term that refers to "what one spends on their family." In law terms, Nafqah encompasses three key things: food, clothing, and lodging. That's according to Ameer Ali: Mohammedan Law, Volume II, page 358. Hedaya also describes maintenance. They define it as life's necessities like food, clothes, and a place to stay. Fatwa-i-Alamgiri has a similar view. They believe maintenance includes food, clothing, and shelter. But in common parlance, people usually just mention food.

Legally, maintenance encompasses three essential components: food, clothing, and shelter. Individuals bear responsibility for maintenance under distinct categories, including obligations to their wives, relatives, children, and even servants.

Within the framework of Muslim law, the primary obligation for maintenance lies in supporting one's wife and children. Muslims are mandated to provide and are concurrently entitled to receive maintenance from both their ancestors and descendants. Only those individuals who are genuinely indigent and in need are eligible for maintenance. The entitlement to maintenance adjusts based on various conditions and circumstances.

Maintenance of Poor Relatives
Relatives facing financial hardship, unable to sustain themselves, and entitled to inherit a person's property have a legitimate claim to maintenance from that individual. These relatives should be in close proximity and within the restricted degrees of relationship.

The foundation of the obligation for maintenance is rooted in the relationships between parties, such as between fathers and children, spouses, grandparents, and grandchildren. Consequently, the principles governing maintenance under Muslim law exhibit a considerable degree of generosity.

Maintenance of Aged Parents under Muslim Law
In adherence to Muslim Law, children bear the responsibility of supporting their elderly parents. According to Mulla, specific guidelines outline this duty:
  1. Children in comfortable circumstances are obliged to provide for their financially challenged parents, even if the parents can earn something for themselves.
  2. A son, even in challenging circumstances, is obligated to support his mother if she is impoverished, irrespective of her physical health.
  3. A son, even if facing financial constraints but earning an income, is bound to assist his father who may not be earning.

Tyabji further emphasizes, under Hanafi law, that parents and grandparents in indigent conditions are entitled to maintenance from their children and grandchildren who possess the means, regardless of the latter's ability to earn a livelihood.

Both sons and daughters are duty-bound to support their parents under Muslim law, contingent on their financial capacity to do so. The legal obligation for children to maintain their parents persists, and those with financial resources are obligated to provide support, even if the parents could potentially sustain themselves.

Maintenance of Children (Sons and Daughters)
  • A father is obligated to provide for his sons until they reach the age of majority and for his daughters until they are married.
  • If a child possesses a personal source of income, they are precluded from claiming maintenance from their father.
  • In cases where the father is impoverished and incapable of sustaining the children, the mother is obliged to provide maintenance if she has the means.
  • If both parents are ailing and financially disadvantaged, the responsibility for maintaining the children falls upon the grandfather.
  • Exceptional circumstances aside, a daughter is eligible for separate maintenance only if she declines an offer to reside with her father.
  • Diverse perspectives exist regarding maintenance during periods of widowhood and divorce.
  • According to Hanafi law, an illegitimate child is entitled to maintenance from its mother but not from its father. Conversely, in the Ithna Asharia School of Shia Law, neither parent is obligated to provide maintenance for the illegitimate child. Nevertheless, under section 125 CrPC, a father is legally bound to maintain his illegitimate children.

Maintenance of the Wife
Irrespective of whether the wife possesses property, she maintains an unequivocal entitlement to maintenance, with the husband being legally obligated to provide for her.

The husband's duty to maintain his wife is contingent upon the following conditions:
  • Upon the wife attaining puberty.
  • When the wife grants unrestricted access to herself at all lawful times.
Should the husband unjustifiably refuse maintenance without lawful cause, the wife has the recourse to file a suit for maintenance, invoking Section 125 CrPC. The court, in such cases, may grant maintenance, albeit not exceeding a stipulated limit.

However, the wife is not entitled to maintenance under specific circumstances:
  • If she unreasonably refuses to live with the husband.
  • When she displays disobedience and behaves unjustifiably.
  • Due to her own fault, if she voluntarily separates from the husband.
  • In the event of her becoming a widow.
  • If the marriage isn't lawfully done.
  • When the wife is barely an adult and cannot engage in sexual intercourse.
  • If she has been forcibly taken away by another person, eloped from the husband, or has been imprisoned for the commission of any offense.

Maintenance during the Iddat Period
Iddat is the break observed by women in accordance with Islamic laws after their husbands die or separate from them due to divorce. She isolates herself during this period and does not marry another man.
  • During the iddat period a Muslim woman is entitled to receive compensation from her husband if he divorces her after consummation of marriage.
  • A Muslim woman is entitled to receive maintenance during the iddat period from her husband if they divorce post-consummation.
  • In the event of an unconsummated marriage, the wife shall receive maintenance until she is officially notified of her divorce.
  • A widow is not entitled to claim maintenance during the iddat period from her husband after his death.
  • The wife, if adult, is entitled to maintenance if the husband is minor and unable to consummate.
  • When the minor husband does not have a source of income, it will be the duty and responsibility of his father to provide maintenance.

Maintenance under Agreement
In cases where an agreement exists between the parties or their guardians, provided it is against neither public policy nor the principles of Muslim law, it grants the wife the right to receive anti-nuptial maintenance from her husband. For instance, a wife may legitimately stipulate that, in the event of ill-treatment by the husband, the taking of a second wife, or the keeping of a concubine, she is entitled to live separately and claim a specified amount as outlined in the agreement.

Similarly, a wife may enter into an agreement specifying that the husband will provide a special allowance. These allowances, such as Kharcha-i-pandan, guzara, and mewa khori, have distinct meanings. Kharcha-i-pandan, defined by Mulla, refers to betel box expenses and constitutes a personal allowance for the wife, customary among affluent Muslim families. This allowance is entirely the wife's property, and she has the freedom to use it at her discretion, with the husband having no control over these funds.

Quantum of Maintenance under Muslim Law
There is no statute that defines the maintenance amount for children under Muslim Law. Based on the father's financial state and the children's necessities, the court determines the required quantity. Hanafi Law states that the amount should take into account both the husband's and the wife's circumstances. However, Shafei Law suggests that only the husband's position should be considered.

The maintenance of children is provided for by Section 125 of the Criminal Procedure Code, 1973, which states that a fair and reasonable sum must be paid.

When the Rights of Maintenance do come to an end?
For followers of Muslim Law, once a child has reached adolescence, they lose the right to request financial support from their parents unless certain conditions are met. In the event of physical or mental illness or a lack of means to provide for themselves, children can still demand maintenance after adolescence. Interestingly, while Muslim Law considers adolescence as the age of majority, the Indian Majority Act, 1875, sets the age of majority at eighteen years old.

Legal Decisions:
In the case of Noor Saba Khatoon v. Mohd. Quasim, the Supreme Court asserted that a divorced Muslim woman has the right to claim maintenance for her children until they reach the age of majority. The court emphasized the absolute obligation of the father under both Muslim Personal Law and Section 125 of the CrPC, particularly when the children reside with the divorced wife.

In the matter of Shah Bano Begum v. Mohammad Ahmed Khan, it was established that a Muslim divorced woman, unable to sustain herself, is entitled to maintenance from her former husband until she remarries, rejecting the argument that the husband is not liable for maintenance post the Iddat period upon payment of dower. The Parliament overturned the Supreme Court's judgment through the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

According to this Act, the husband's maintenance liability ceases upon full payment of dower. In the event that the divorced wife is unable to maintain herself, her eligible relatives are obligated to provide support. If she possesses no properties, the State Waqf Board is responsible for her maintenance. Section 125 CrPC applies only if both the husband and wife mutually agree to its applicability.

The Kerala High Court has held, under section 4 (2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, that the waqf board has been made liable for giving the maintenance to the divorced Muslim women.

The Supreme court upheld in the case of Shabana Bano v. Imran Khan that a divorced Muslim woman may demand maintenance from her ex-husband under section 125 CrPC, for any duration following the iddat period provided she has not remarried.

Maintenance laws vary among different personal laws, including Muslim Law. Under Muslim Law, a man's role to support his wife and family is obligatory. His obligation to look after his minor son is mandatory. But, his responsibility to his adult son may depend on unique situations. Daughters are entitled to maintenance until they are wed.

  1. Aqil Ahmad, Mohammedan Law, Central Law Agency
  2. Family Law  II, Usha Jaganath Law Series
  3. Mulla, Principles of Mahomedan Law, LexisNexis

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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