Maintenance – Muslim Law

Family Law II
 •Law of Maintenance
• It was contended that Maintenance is just a moral and
not legal obligation in Muslim Law.
• Bombay high court did deal with the issue in the case
Mohd. Jusab v Haji Adem (1911)
 Who is entitled
• A person is entitled to maintenance if:
– He has no property,
– He is related to the obligor within prohibited
degrees of relationship, or is his wife or child,
– The obligor is in position to support him.
 •Persons Entitled to Maintenance
• Wife
• Descendants
• Ascendants
• Other relations
• Also indigents (as per the tenets of Muslim
Religion)
 •Extent of Obligation
• Obligation is proportionate to the obligor’s
percentage of share in the recipient’s property.
• The duty to maintain is not absolute
– It depends on the economic condition of the
obligor and the recipient of the maintenance.
(Except in the case of Wife)
•MAINTENANCE OF WIFE
 ‘Kharcha-e-Pandan’
• It is the special allowances to the wife as per
the express terms of the contract of Marriage.
– Separate from legal obligation of maintenance
– Also called guzara, mewa-khori, etc.
– Terms may be agreed upon by parties to marriage
or even their parents if they are minors
– Can be realized by wife from father-in-law also
• Khawaja Mohammad Khan v. Nawab Hussain Begum
[1910]
 •Obligation for Husband
• Husband has to maintain his wife whether
Kitabiya or Muslim
– If he has not paid the dower
– If she refuses to live with him because of cruelty
• Cruelty – keeps second wife, mistress or concubine
• Exceptions
– If wife is too young for Matrimonial Intercourse
– When wife is not obedient
 Classification
• Maintenance can be classified as:
– During the continuance of marriage
• In case of Regular marriage
• By ante-nuptial agreement
– Maintenance after divorce
 •During Continuance of Marriage
• Husband is bound to maintain his wife as long
as she is obedient and faithful towards him.
– Marriage must be regular
– Immaterial whether wife is capable to maintain
herself
– Wife not entitled to claim past maintenance unless
it is based on ante-nuptial agreement
– Tyabji, JJ., A v. B [(1896) 21 Bom 71]
 •Wife Can Not Claim if…
• She is a minor, incapable of consummation
• Refuses free access to the husband at all reasonable times
– Exception – Husband keeps second wife or a concubine, is ill,
old age, or the husband is impotent
• Is disobedient
• Never visited his house
• Refuses to live with him in the conjugal home, without a
reasonable excuse
• Abandons conjugal home without any reasonable ground
• Deserts him
• Elopes with another person
 •By Pre-Nuptial Agreement
• Agreement may be made by husband and wife or
their gaurdians
• Contingent on happening of some specified event
– E.g. Illtreatment or disagreement, second marriage of
husband, etc.
• Agreement in contravention to entitlement of
wife to maintenance is void.
– Exception – Divorce by Khula or Mubara’at
• Agreement opposed to public policy is void.
 •Evolution of the Law
• Earlier wife was entitled to maintenance only
till the period of iddat.
• Section 125 CrPC, 1976 mitigated the evil
• Section 125(1)(b) included divorced wife also
to claim maintenance
– Section 125, eplaination (b):- "Wife" includes a
woman who has been divorced by, or has obtained
a divorce from, her husband and has not remarried.
 •Case: Bai Tahira v. Ali Hussain
Chothia
[AIR 1979 SC 362]
• Husband can not take refuge to Section 127(3)
(b) if the Mahr paid by him to wife on divorce
is not sufficient for her maintenance for rest of
life.
 •Case: Mohd. Ahmad Khan v. Shah
Bano Begum
AIR 1985 SC 945
• Mahr is not the sum which is paid for divorce.
• If a muslim wife is not able to maintain herself
on her own after divorce, she can always take
refuge to section 125 CrPC and she can claim
the maintenance from her husband for beyond
the period of iddat.
 •Muslim Women (Protection of
Rights) Act, 1986
Danial Latifi v. Union of India [2001]
• Whether husband is liable beyond period of iddat?
– S. 3(1)(a) says: … to be made and paid her within period of
iddat…
– It means provision should be made for the divorced women for rest
of her life and paid within period of iddat.
– So husbands liability spans beyond iddat.
• If divorced muslim women, not remarried is somehow not
able to maintain herself after period of iddat, she can proceed
under section 4 against her relatives and if still not remedied,
then the court may direct Waqf board to pay.
• Can Muslim women invoke chapter IX of the CrPC for
maintenance?
– Only by agreement as per section 5 & 7 of the act
•MAINTENANCE OF
CHILDREN
 Father’s Obligation
• Father is bound to maintain his sons until they
attain puberty
• Daughters till they are married
• Also responsible for the upkeep of his divorced or
widowed daughter
• Not liable for a minor son or unmarried daughter
who refuses to live with him without any
reasonable cause
• Father is liable even if the children are in custody
of mother
• Adult son to be maintained if he is infirm
 •Other’s Obligation
• If father is unable, then mother is bound to
maintain the children
• If mother is also incapable, paternal
grandfather is bound
 Law in the Matter
• Section 125 CrPC also extends protection to
legitimate or illegitimate minor children,
whether married or unmarried.
– Who are unable to maintain themselves
• Ancillary right under Section 3 of Muslim
Women (Protection of Rights on Divorce) Act,
1986.
GAURAV CHOUBEY
14th Feb’11