1.

Introduction
The concept of Maintenance was introduced to provide support to those people who are not
capable to maintain themselves. It is basically provided to the spouse who is not independent
and is dependent on the other spouse. The principle of maintenance includes financial
support, means of livelihood and educational facilities.

In marriage, it is the obligation of the husband to maintain the wife and to provide her all
necessities. The whole concept of maintenance is to protect the rights of the wife and to
provide her a dignified life and even after the dissolution of marriage, the husband is in the
liability to provide maintenance to his wife if she is not able to maintain herself. The concept
of maintenance has broader aspect. It is not only provided to the wife but also to children,
parents, grandparents, grandchildren and other relations by blood. The amount of
maintenance depends on the financial position of the person who is bound to provide
maintenance.

Various laws and rules have been made on the principle of maintenance. The concept of
maintenance has also been added to personal laws. The Muslim Law also provides for
maintenance. Though Muslim Law does not properly define maintenance, its meaning has
been inferred from Hindu Law which provides that:

“in all cases, provisions for food, clothing, residence, education and medical attendance and
treatment; in the cases of an unmarried daughter, also the reasonable expenses of and
incident to her marriage.”
Under Muslim Law, women are considered weak as compared to men. It is believed that they
are not able to maintain herself on her own so it is the liability of the husband to provide
maintenance to her wife in all conditions even if she is capable of maintaining
herself. Maintenance is known as “Nafqah” which means what a man spends on his family. 
Nafqah basically includes food, clothing, and lodging.

The Muslim Law of maintenance may be discussed from the point of view of the persons
entitled to maintenance. Such persons are:

i. The Wife
ii. The Children
iii. The Parents and Grandparents
iv. The other relations.
But under Muslim Law, maintenance is provided to wife even if she is capable of maintaining
herself which differs it from other laws. But in case of Maintenance to Children, Parents and
other relations, it is given only when they are not able to maintain themselves. Here, we are
going to discuss the maintenance of wife and children under Muslim Law.

2. Maintenance of wife
Under Muslim Law, as discussed above men are considered superior to women and women
in all cases is considered to be dependent on men. It is the liability of husband under Muslim
Law to maintain his wife even after divorce.

2.1 Obligation of Husband to provide Maintenance

It is the obligation of the husband to provide proper maintenance to his wife in all
circumstances whether he is in good financial condition or not. His obligation to provide
maintenance is even after the dissolution of marriage. However, the obligation of husband
extends only when the wife remains faithful towards him and obeys all his reasonable orders.
In Baillie’s Digest of Mohammedan Law, it has been stated that:

“If and when called upon to remove 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 is ‘nashizah’ or rebellious, she has no right to maintenance until she returns to her
husband’s house. By this expression, it is to be understood that a woman who goes out from
her husband’s house and denies herself to him, in contradiction to one who merely refuses to
abide in her husband’s apartment, 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 own house or to hire a house
for her. When she ceased to be a nashizah or rebellious, she is again entitled to maintenance.”

2.2 Quantum of Maintenance

The quantum of maintenance is not prescribed under any matrimonial statute. It is decided as
per the discretion of court depending upon the condition of husband and wife.
Under the Shia Law, the quantum of maintenance is decided by taking into consideration the
requirements of the wife. Under Shafei Law, the quantum of maintenance is determined by
the post of the husband.

2.3 Maintenance under anti- nuptial agreements

Muslim marriage is a contract, an agreement is made between the parties to the marriage
which prescribes the rights and duties if husband and wife. The condition of agreement
should be valid otherwise the marriage should be considered as illegal. In this agreement, the
wife can stipulate some conditions for husband and in case of breach of such conditions, she
has a right to live separately and is entitled to maintenance. Such conditions are as follows:
• If the husband ill-treats her;
• Takes a second wife or concubine;

An agreement which stipulates that wife is entitled to maintenance after divorce is also valid.
But she is entitled to maintenance only during the period of iddat and not beyond that. The
husband’s liability is only till the iddat period.

Ali Akbar Vs. Mst. Fatima (1929) ILR II Lah.85

An allowance of Rs. 25.00 per month was fixed for Kharach-i-Pandan in addition to the
amount of maintenance which she is entitled to get from her husband. It was held that the
wife is entitled to it irrespective of the fact that she refuses to stay with her
husband. (Kharach-i-Pandan is a personal allowance and it cannot be transferred.)
2.4 Divorced wife’s right to maintenance under Muslim law and section 125 of Crpc and
dower
Under Muslim Law the rights of the wife to get maintenance during the marriage is absolute
but after the dissolution of marriage, her rights are limited. She is entitled to maintenance
from husband after divorce is only till iddat period ( Iddat is a period of three menstrual
courses or three lunar months). Muslim law does not provide maintenance to wife after the
iddat period is over. In Hanafi school of law, a divorced Muslim wife is entitled to
maintenance during iddat period whereas in Shefai law, a divorced Muslim wife is not even
entitled to maintenance.
In case of dower, which is the right of Muslim wife, which she is entitled at the time of
marriage, the husband is under the obligation to pay her whatever the amount of dower has
been agreed upon between the parties at the time of marriage or if no amount is decided then
a reasonable amount should be paid by the husband to wife for her maintenance.

But this creates hardship for Muslim wife as under Muslim Law it is very easy for men to
give divorce to his wife as the Law allows him to marry thrice. Muslim wife does not have
any proper means for herself in Muslim Law. If after the expiry of iddat period, she has no
means to maintain herself then in that case husband has no liability for her and she is left with
nothing.

Under section 125 of Crpc, provides for maintenance to divorced wife of all religion. It
stated that after divorce if the wife is not able to maintain herself, she is entitled to
maintenance from her husband until she gets married. The act applies this provision to
Muslim women also who are not entitled to the maintenance after the period of Iddat. This
act creates liability over husband to provide maintenance to wife even after the period of
Iddat.
But the provisions of this act are in conflict with the provisions of Muslim Law and a debate
was going on as which law should be applied. This matter was seen by the Supreme court in a
landmark judgment

Shah Bano Begum Vs Mohammad Ahmed Khan, AIR 1985 SC 945

In this case, Shah Bano Begum, a 62 years old lady filed a petition under section 125 of Crpc
before Judicial Magistrate of Madhya Pradesh. The petition stated that her husband has
pronounced Talaq to her and she has not even remarried and thus she was entitled to
maintenance. For which her husband has stated that he had no liability to provide
maintenance to her as under Muslim Law, a divorced wife has no right of maintenance after
Iddat period.
The magistrate, in this case, passed an order stating that the husband is entitled to provide her
maintenance of Rs.25 per month as per Section 125 of Crpc.
Shah Banu filed a revision petition against this order in the High court of Indore for
enhancement of the amount of maintenance. For which Indore High court has enhanced the
amount of maintenance to 179.20 Rs per month.

Against this order, Mohd. Ahmed Khan appealed to the Supreme court. Supreme court
rejected the appeal and stated that Muslim wife is entitled to maintenance even after the
period of Iddat if she is not able to maintain herself.

The Supreme court has observed that with this judgment the distinction between the Muslim
personal law and Civil Procedure code will come to an end. But the judgment has even
increased the controversy as a result of which the legislatures have to make a new law to
govern Muslim divorce i.e. Muslim Women (Protection of Rights on Divorce) Act 1986.
This act has enacted some provisions in support of Muslim Personal Law and has restricted
the application of Section 125 of Crpc regarding the maintenance of Muslim wife. The Act
has stated that the husband is entitled to provide maintenance only during the period of Iddat
and not beyond that. If the wife is not able to maintain herself after iddat period then, in that
case, she can seek maintenance through Wakf Board or relatives of her or her husband. This
act has not mentioned anything clearly and has created various confusions in the judicial
system and was considered as vague. The confusion of this act has been solved by the
Supreme Court of India under:
Daniel Latifi Vs. Union Of India, AIR 2001 SC 958
A writ petition was filed challenging the validity of the act. For which the court has stated as
under:
• As per Section 3 of the act, Muslim husband is entitled to provide fair and reasonable
maintenance to his wife and has to make proper arrangement for her maintenance after the
divorce.
• Muslim husband’s liability under this act is not limited to iddat period. He has to make
arrangement within the period of iddat for her wife’s maintenance.
• A divorced Muslim woman is entitled to maintenance under section 4 of this act from her
relatives who are entitled to her property after her death.
• If her relatives are not able to maintain her then, in that case, a Wakf board has been created
by this act who will take care of the maintenance of such women.
• The magistrate can direct this board to pay maintenance to them.
The Supreme Court on the basis of the above points has held the act constitutionally valid.
3. Maintenance of the Children
Children are the responsibility of their parents and they should be taken care of. They are
entitled to proper and adequate maintenance from their parents and especially the father. As
under Muslim Law, men are considered as superior and are in the obligation to maintain his
family, maintenance of the child is his primary responsibility.

3.1 Father’s obligation to maintain his child

Father is under an obligation to maintain his legitimate child until he earns puberty. Under
Muslim Law, the father has to maintain his son only until he attains majority and has to
maintain his daughter until she gets married. Under certain circumstances, father is bound to
maintain his widowed or divorced daughter.

Father is not bound to maintain his son or unmarried daughter if they refuse to live with him
without any reasonable cause. Under Muslim Law, father is under no obligation to maintain
his illegitimate child but an agreement between the parties to maintain his illegitimate child is
not valid.

Under section 125 of Crpc, if the father has sufficient means, he is under obligation to
maintain his child whether legitimate or illegitimate.

Pavitri vs. Katheesumma, AIR 1959 KER 319

In this case, it was stated that it is not at the discretion of the court to allow maintenance to an
illegitimate child. The court can allow only if asked for it.

3.2 Mother’s obligation to maintain his child

Mother’s obligation to maintain her child arises when the child is illegitimate and husband
has refused to maintain the child. But under Hanafi Law, if the father is poor and the mother
is rich then, in that case, it is the obligation of the mother to maintain the child. However, she
can recover the money when her husband gets into the condition to repay it.

Under Shefai Law, even if the father is poor and mother is rich,  then the mother is not
obliged on maintaining her child. In that case, it is the obligation of grandfather to maintain
the child.

3.3 Father’s obligation to maintain his major child

Under Muslim Law, father is obligated for the maintenance of his legitimate child only until
he attains puberty. But if the child is lunatic, mentally or physically disabled and not in the
condition to maintain himself, then, in that case, it is the obligation of the father to maintain
him.

Conclusion
Thus, from the above article, it can be stated that the maintenance provisions of Muslim Law
are different from other personal laws. The provisions for maintenance of child are not a
matter of concern as they are provided adequate maintenance under the law but the position
of the wife is poor as compared to other laws. Though the legislature has enacted an act, it
has not created much difference in the condition of the wives. The proper efforts and
contribution of legislature and judiciary is required to improve the position of wife under
Muslim Law.

CHAPTER 1
MAINTENANCE OF WIFE

Wife’s 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:
a. the wife should have attained an age at which she can render conjugal rights to the
husband;
b. except for some reasonable cause, she should be accessible for sexual intercourse; and
c. 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 Mulla’s 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:

1. 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.
2. 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 husband’s 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]

3. 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 husband’s 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 doesn’t 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 wife’s 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 husband’s neglect or refusal to
maintain her. S. 125 of the new code includes every divorcee-wife, 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 wife’s 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 Tahira’s 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 Rights on Section 125 Code of
Divorce) Act 1986 Criminal Procedure
Jurisdiction Application is filed in the area where Application where the
divorced woman resides husband is, or resides or
where he last resided with his
wife
Relief available Reasonable and fair provision and Allowed a monthly
maintenance, or the amount of mahr or allowance, not exceeding
dower paid, all properties given at the time Rs.500. No provision for
of marriage or after marriage. If unable to maintenance by children,
maintain herself, after Iddat period relatives relatives or Wakf Board after
ordered to pay maintenance and if no Iddat period.
relatives exist then Warf board pays.
Punishment on Imprisonment which may extend to one Imprisonment which may
failure to pay year. extend to one month.
Applies to Only to divorced woman To every married or divorced
woman.
Alteration No such Provision. On change of circumstances
/allowance Alteration maybe made.
Maintenance Woman to be maintained by her children or No such provision.
after Iddat parents or 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 wet-nurse 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 Father’s 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 husband’s 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 father’s obligation to maintain a daughter ceases immediately on her marriage( the
marriage should be validly solemnized).

2.6 Mother’s 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 husband’s 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 two-third 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 person’s 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 son’s son,
the daughter or the father must maintain. The son’s 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 grand-children, the liability would be of
both proportionately to the extent of their shares in inheritance. Thus, of there is a father’s
father and a son’s 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 Bano’s 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 women’s 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.