Muslim Law:- MAINTENANCE (NAFAQAH)

CHAPTER

MAINTENANCE (NAFAQAH)

Under Muslim law, the term ‘maintenance’ is known as nafaqah, which translates to what a man spends on his family.

Maintenance refers to the financial support provided by a person who is legally responsible for covering the essential needs of a family member, such as food, clothing, dwelling, and anything else that is necessary for their livelihood.

There are different laws on the basis of which the right to maintenance is ascertained. The right to maintenance is available under various personal laws, such as Hindu, Muslim, Christian, and Parsi personal laws.

The main aim behind providing maintenance is to protect the rights of the dependents and to give them a dignified life, which they are entitled to, even in case of dissolution of a relationship due to whatever reasons.

Maintenance under Muslim law is governed by Muslim personal laws and the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Further, it must be noted that, apart from these Muslim laws, Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Earlier- Section 125 of the Criminal Procedure Code, 1973) also applies to Muslim women.

Under Muslim law, the husband’s obligation to provide maintenance is not only limited to the wife but also extends to the children, parents, grandparents, and any other close relatives who are associated by blood.

However, it is pertinent to note that the amount paid for maintenance depends on the financial capacity of the person who is paying it.

The obligation to pay maintenance can be traced back to Islamic laws, which prescribe the guidelines and principles on the basis of which maintenance can be paid. The amount of maintenance can be enforced through a court’s intervention and failure to provide maintenance can result in legal consequences and punishments.

However, the amount of maintenance can be changed on the basis of changes in circumstances, the financial status of the dependents, and the person paying the compensation.

KHARCHA-E-PANDAN

This is the duty of the husband to maintain his wife and children. The wife is also under the duty to be obedient towards her husband and allow him free access at all reasonable times. In addition to this obligation, the spouses enter into an agreement that the husband will pay special allowance to his wife. Such allowance is called Kharcha-e-pandan guzara and mewa khori.

According to Mulla, Kharcha-e-pandan means betel box expenses and is a personal allowance to the wife customary among Muslim families of rank.

Kharcha-i-pandan is the absolute property of the wife and she is at liberty to use it according to her sweet will.

HISTORICAL BACKGROUND THAT LED TO EVOLUTION OF MAINTENANCE UNDER MUSLIM LAW

The concept of maintenance has been raised from the various sources of Muslim law, which are as follows –

Holy Quran

Sunnat

Ijma

All these sources of Muslim law form the basis through which the concept of maintenance has been aroused. These promote and preach the teachings of God and all these teachings and various sources led to the foundation on the basis of which the law of maintenance has developed.

PRINCIPLES INVOLVED IN GRANTING MAINTENANCE UNDER MUSLIM LAW

Principles that generally govern maintenance under Muslim law are as follows –

ENSURING A DECENT STANDARD OF LIVING –

Maintenance involves the basic elements, such as food, clothing, shelter, and other essentials that are required for the existence of human beings. The person who is responsible for providing these amenities must fulfil the needs of the dependents in order to provide them with a life of dignity and comfort.

DUTY TO SUPPORT –

Muslim law imposes a duty on the male member of the family to provide financial and other required support to his wife and children, as well as other close relatives, depending on the situation. This duty to provide support has been derived from the prophetic tradition, which encompasses the importance of providing basic needs to the dependents of the family.

JUST AND EQUITABLE PROVISIONS REGARDING MAINTENANCE –

The Muslim law stresses fairness and equality amongst the parties while deciding on the quantum of maintenance. The financial situation of the person who is under obligation to pay the maintenance and the needs of the dependents are taken into consideration and accordingly, the quantum of maintenance is decided.

MUTUAL DUTIES –

The amount of maintenance is a mutual arrangement amongst the family. The male member of the family has been provided with the primary responsibility of financial support and this duty is balanced with the other rights and obligations of the people who are dependent on them.

DURATION OF MAINTENANCE –

The duration of maintenance under Muslim law lasts as long as the dependents are in need of such maintenance. It usually comes to an end when an event such as death, remarriage, etc. takes place. The duration of maintenance may vary based on the situation, such as the age of the children, the financial position of the party who is under obligation to pay, and anything else that may affect the payment of maintenance.

FLEXIBILITY –

The order of maintenance under Muslim law is not permanent and may change according to changes in circumstances. For instance, if the financial situation of the party who is under obligation to pay maintenance changes significantly or the person who is dependent needs an increase in the amount of maintenance, then under such a situation, the court may order any alteration in the existing maintenance order.

CONDITIONS REQUIRED TO CLAIM MAINTENANCE

There must exist certain prerequisite conditions on the basis of which maintenance can be claimed. The various conditions are as follows:

INABILITY TO MAINTAIN ONESELF –

The person claiming maintenance should show that they are incapable of maintaining themselves financially. The inability to maintain oneself can arise due to many reasons, such as old age, disease, responsibilities, or any other reason that justifies their inability.

NEGLECT ON THE PART OF A PERSON UNDER OBLIGATION –

The person who is legally entitled to maintain has failed or neglected to maintain the person claiming maintenance. The neglect or failure to perform the obligation must have caused some difficulties for the party who is dependent.

PERSON MUST BE RELATED –

The person who is claiming the maintenance and the person from whom maintenance is sought must be related to each other through some relationship. Such a relationship can either be a parent-child relationship, a husband-wife relationship, or any other close relative.

OBLIGATION TO MAINTAIN –

The obligation of a person to provide maintenance must be recognized by the law. Therefore, if the law specifically imposes an obligation to provide maintenance, then that needs to be recognized as a legally valid obligation.

On the fulfilment of the above conditions, maintenance can be claimed by a person. The claim can be made during the subsistence of the marriage, during the pendency of any matrimonial suit, or after obtaining the decree of divorce by the court of law.

QUANTUM OF MAINTENANCE

The quantum of maintenance is not prescribed under any personal law. It is the discretion of the court to fix the amount of maintenance based on the nature and circumstances of the case. The primary factor that is considered by the court while deciding the quantum of maintenance is the financial position of the husband and wife and other necessary factors, such as standard of living, age, health of the claimant, duration of the marriage, etc.

BENEFICIARIES OF MAINTENANCE UNDER MUSLIM LAW

Under Muslim law, the following persons can claim maintenance –

1. WIFE

The men are liable to maintain their wives during the duration of marriage and even after the dissolution of the marriage.

Therefore, it is the obligation of the husband to provide maintenance to his wife, irrespective of whether the financial condition of the husband is good or bad.

2. CHILDREN

The father is under obligation to maintain his children until they attain the age of majority, under Muslim law.

However, once a male child attains the age of majority, the obligation to maintain him ends.

In the case of a female child, the father is under an obligation to maintain her until the date of her marriage. However, it is pertinent to note that the father has no obligation to maintain an illegitimate child.

Under Hanafi law, if the father is poor and the mother is rich, then it is the obligation of the mother to maintain the child. However, the mother can recover the amount when the husband is able to pay.

Under Shefai law, if the father is poor and the mother is rich, then there is no obligation on the mother to maintain the child. In such a situation, the grandfather is obliged to maintain the child.

3. PARENTS AND GRANDPARENTS

If there exist circumstances in which the parents or grandparents of a person are unable to maintain themselves, then it is the obligation of that person to maintain his/her parents and grandparents.

The parents occupy the next position in the right to be maintained, after the child.

Among parents, the mother is given preference over the father with respect to the payment of maintenance.

It is immaterial whether the child is male or female, adult or minor. If they have sufficient property, they are responsible for supplying maintenance to their parents and grandparents.

4. OTHER RELATIVES

Under certain conditions, if the other relatives are unable to maintain themselves, they may be entitled to maintenance if they do not have sufficient means of income and are hence in need of it.

CONDITIONS WHEN THE WIFE AND THE OTHERS ARE NOT ENTITLED TO CLAIM MAINTENANCE

The liability to pay maintenance to the dependents can cease to exist under certain situations. The various circumstances in which the dependents are not entitled to claim maintenance are as follows –

WIFE –

There are certain instances in which the wife is not entitled to receive maintenance-

when the wife abandons her husband without any reasonable cause or in the absence of any sufficient reason, or when the wife fails to comply with the reasonable requests of the husband.

CHILDREN –

Under Muslim law, the obligation to maintain children is until the period the child attains the age of majority in the case of a male child. Whereas, in the case of a female child the obligation to maintain her subsists till the date of her marriage.

Once a male child attains the age of majority and a female child gets married then their right to claim maintenance terminates.

PARENTS AND GRANDPARENTS –

The obligation to maintain parents and grandparents arises when there is an instance in which they are unable to maintain themselves.

However, if the situation changes and there is a reasonable source with which they can maintain themselves then they might not be entitled to claim maintenance.

OTHER RELATIVES –

The obligation to pay maintenance is based on the familial bond and the payment of maintenance is voluntary rather than legal compulsion, in case they are unable to maintain themselves.

Therefore, if the situation becomes favourable and they have some source of income then their right to claim maintenance terminates.

MAINTENANCE OF WIFE UNDER MUSLIM LAW

Under Muslim law, the wife’s right to maintenance by her husband is an absolute right. Even if the wife has her own source of income, there is an obligation on the husband to maintain her.

A claim of maintenance by the wife is preferred over that of the children because, under Muslim law, the wife is considered to be the root, and the child is considered a branch.

The maintenance by the wife can be divided into 4 parts, which are as follows –

Maintenance as an obligation of marriage

Maintenance on the basis of pre-nuptial agreement (A prenuptial agreement, or prenup, is a legally binding contract made before marriage that outlines the division of assets and debts in the event of divorce).

Maintenance can also be claimed by the wife under Section 144 of BNSS (Earlier-Section 125 of CrPC).

Maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986.

MAINTENANCE AS AN OBLIGATION OF MARRIAGE

The husband is under an obligation to maintain his wife so long as she remains faithful to him.

However, a wife can seek maintenance even if she disobeys her husband in the following situation –

If there exists a situation wherein the husband keeps a concubine (a woman with whom a man cohabits without being married).

If the husband is guilty of committing cruelty towards the wife.

If the marriage was not consummated, owing to any kind of disease or illness, malformation, absence of husband without the prior permission of the wife, or if the husband has not attained the age of puberty.

MAINTENANCE UNDER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

The Muslim Women (Protection of Rights on Divorce) Act, 1986, was enacted with the main purpose of safeguarding the rights of Muslim women, particularly those who have been divorced or have been separated from their husbands.

The Act provides a mechanism for the payment of maintenance to such Muslim women. Furthermore, the Act makes sure that the amount of maintenance paid is fair and reasonable.

ORIGIN OF THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

The Muslim Women (Protection of Rights on Divorce) Act, 1986, was enacted because of the controversy related to the case of Mohammed Ahmed Khan vs. Shah Bano Begum (1985).

MOHAMMED AHMED KHAN VS. SHAH BANO BEGUM (1985)

FACTS OF THE CASE

In the present case, Mohammad Ahmed Khan married Shah Bano and the amount of mehar (amount payable by the husband to wife, which she would receive in case of divorce or his death) was fixed at Rs. 3000.

Subsequently, 3 sons and 2 daughters were born out of wedlock. In the year 1978, the husband unilaterally divorced his wife by pronouncing “triple talaq,” known as talaq-ul-biddat.

In accordance with Islamic law, the husband pays the decided amount of mehar to the wife, during the period of iddat (a period of three months after the divorce, in which Muslim women are not allowed to remarry).

Having been trashed out of her matrimonial home, the wife filed a petition under Section 125 of the CrPC (at present – Section 144 of the BNSS), seeking maintenance.

The Judicial Magistrate ordered a maintenance of Rs. 25 per month. Dissatisfied with the amount of maintenance issued by the magistrate, the wife appealed to the Madhya Pradesh High Court in 1979. As a result, the amount of maintenance was increased to Rs. 179.20 per month.

Aggrieved by the decision of the Madhya Pradesh High Court, the husband filed a petition before the Supreme Court of India.

It was contended by him that according to the provisions of Muslim personal law, the amount of maintenance should extend till the period of iddat only and not beyond that.

Therefore, Section 125 of the CrPC (at present – Section 144 of the BNSS) must not be applicable in the present case.

The two-judge bench, in this case, was of the opinion that the present judgments on this particular issue have not been accurately pronounced. Therefore, to decide on the matter, a five-judge bench of the Supreme Court was constituted.

ISSUES OF THE CASE

The various issues that were considered by the court were as follows –

Whether Section 125 of the CrPC (at present – Section 144 of BNSS) is a secular provision?

Whether there is any conflict between the payment of maintenance under Section 125 of the CrPC (at present – Section 144 of BNSS) and the Muslim personal law?

Can maintenance be paid to a Muslim wife beyond the period of iddat?

JUDGEMENT OF THE CASE

It was observed by the Supreme Court of India that Section 125 of the CrPC (at present – Section 144 of BNSS) is a secular provision and is applicable to the spouse, whether they are Hindu, Muslim, Christian, Parsi, or of any other religion.

It was ruled that this provision is applicable to every person belonging to all religions and has no connection with the personal law of any religion.

It was further stated by the Court that the obligation of the husband, under Muslim personal law, to support his divorced wife remains only till the period of iddat.

However, under Section 125 of the CrPC (at present – Section 144 of the BNSS), there is no scenario as such in which the responsibility of the husband ceases to exist after a particular period.

It was added by the Court that if the divorced wife is capable of maintaining herself, the duty of the husband to provide maintenance is concluded after the period of iddat ends.

However, it was clarified by the court that if the divorced Muslim wife lacks the means to sustain and maintain herself, she has the complete right to seek relief under Section 125 of the CrPC (at present – Section 144 of BNSS).

Therefore, the major point that was delivered by the court in this case was that the husband is obligated to maintain his divorced Muslim wife even after the period of iddat.

CONSEQUENCES OF THE JUDGEMENT DELIVERED IN THE SHAH BANO CASE

After the judgement that was delivered in the case of Mohammed Ahmed Khan vs. Shah Bano Begum (1985), there was an uproar amongst the people.

There was scandalous media coverage, and apart from that, a huge protest and counter-protest from different religious groups were seen.

The judgement not only created differences among the different religions, but along with that, the division also arose among the different sects of Muslims.

There were a few groups that supported the decision, such as liberal Muslims, Hindus, and feminists. However, there were some groups, such as conservative Muslims, who vehemently opposed the decision.

They saw the judgement as an attack on their religion since their personal laws directed the payment of maintenance till the period of iddat, but the judgement directed the payment of maintenance beyond the period of iddat.

Due to huge political pressure and the ongoing protest regarding the judgement that was delivered, the Government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986.

It actually seemed to reduce the protection granted to the women by the Shah Bano case. The Muslim Women (Protection of Rights on Divorce) Act, 1986 stated that the liability of the husband to pay maintenance should subsist only till the period of iddat, and if after that period she is not able to maintain herself, then the relatives who have inherited any property from her would pay the maintenance.

PROVISIONS RELATED TO MAINTENANCE UNDER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

Different provisions, such as Section 3, Section 4, and Section 5 of this Act, deal with the maintenance of the Muslim wife and children.

SECTION 3

This Section discusses the mehar and other property of Muslim women to be given to her at the time of divorce. Under this Section, a divorced Muslim woman shall be entitled to the following –

A reasonable and fair amount of maintenance must be paid to her by the former husband within the period of iddat.

If a woman herself maintains the children that are born either before or after the marriage, then a reasonable and fair amount of maintenance must be paid by the former husband for the child. The maintenance must be paid for a period of two years from the date on which the child was born.

The amount of mehar that was discussed previously must be paid to the wife at the time of marriage or any time after the marriage, in accordance with Muslim law.

The properties that were given to her, either before or after the marriage, by relatives, the husband, friends, or any relative of the husband or his friends.

If there exists any situation wherein a reasonable and fair amount of maintenance or the amount of mehar, has not been paid or any other property that she is entitled to under this Section has not been delivered to her, she or any other person duly authorised by her can file an application before the Magistrate for an order of maintenance, mehar, or delivery of any other property, as the case may be. When an application is made by the divorced woman and the Magistrate is satisfied that –

The husband has sufficient means of earning and has failed or neglected to make a reasonable and fair payment of maintenance towards the divorced wife and the children.

The amount that was required to be paid as mehar and the other property that the divorced woman was entitled to receive were not transferred to her.

Then, under such conditions, the Magistrate may make an order, within one month of the date of filing of the application, directing the former husband to pay a reasonable and fair amount of maintenance to the divorced woman. If any person against whom the order has been made, fails to comply with the order without any reasonable cause, then the Magistrate may issue a warrant for levying the amount of maintenance in accordance with the provisions of the CrPC (at present – BNSS). The person can even be sentenced to imprisonment for a term that may extend to one year or until payment of the amount.

SECTION 4

Section 4 discusses the order for the payment of maintenance.

It has been stated under this Section, that once a Magistrate is satisfied that the divorced woman has not remarried and is unable to maintain herself after the period of iddat, an order can be made directing relatives to pay maintenance.

A relative can be a person who would be entitled to receive her property on her death in accordance with Muslim law.

The amount of maintenance to be paid by the relatives must be fair and reasonable, catering to the needs of a divorced woman and the standard of life enjoyed by her before the marriage. However, the financial means of the relatives must also be taken into consideration.

The maintenance would be paid by the relative, in the proportion to which they are entitled to inherit the property.

In case the divorced Muslim woman is unable to maintain herself and has no such relatives, or the relatives do not have enough means to pay maintenance, the Magistrate may, through an order, direct the State Waqf Board that is established under the Waqf Act, 1954 or any other law for the time being in force, to pay maintenance as determined by him.

SECTION 5

Section 5 of the Act discusses the amount of maintenance.

This Section states that the determination of the amount of maintenance is at the discretion of the court. However, while doing so, the court shall consider various factors, such as the following –

The status and position of the parties.

Reasonable amount of maintenance that the claimant wants.

If the claimant is living separately, then there must exist reasonable grounds for living separately.

The value of the claimant’s property and the amount of income derived from such property, along with the claimant’s own earnings, must be taken into consideration.

Any other factors that affect the amount of maintenance.

Finally, the different issues and difficulties pertaining to the legislation after commencement of this Act were resolved in the case of Danial Latifi vs. Union of India (2001), as discussed later on in this article.

DANIAL LATIFI V. UNION OF INDIA (2001)

CITATION:

Case Name: Danial Latifi & Anr. v. Union of India

Citation: (2001) 7 SCC 740

Court: Supreme Court of India

Bench: 5-Judge Constitution Bench

Date of Judgment: 28 September 2001

PARTIES INVOLVED:

Petitioner: Danial Latifi (Lawyer and women's rights activist)

Respondent: Union of India

BACKGROUND:

The case challenges the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, enacted after the Shah Bano case (1985).

The Shah Bano judgment had ruled that Muslim women were entitled to maintenance under Section 125 CrPC, but the 1986 Act was passed in response to protests from certain Muslim groups, aiming to protect Muslim personal law.

ISSUES BEFORE THE COURT:

1. Whether the 1986 Act violates Articles 14, 15, and 21 of the Constitution (equality, non-discrimination, and right to life)?

2. Whether the Act denies divorced Muslim women their right to fair and reasonable maintenance?

ARGUMENTS BY PETITIONERS:

The 1986 Act deprives Muslim women of the protection available under Section 125 CrPC.

It discriminates based on religion and violates fundamental rights.

It leaves Muslim women destitute after divorce, violating the right to life and dignity under Article 21.

JUDGMENT:

The Supreme Court upheld the constitutional validity of the 1986 Act.

However, it interpreted the Act progressively, in line with Shah Bano principles.

Thus A Muslim husband is legally obligated to make a “reasonable and fair provision” for his divorced wife, which must be made within the iddat period, but that provision should cover her future needs beyond the iddat period — potentially for her entire life — unless she remarries.

KEY FINDINGS:

The Act does not restrict the husband's liability to just the iddat period.

Rather, it mandates that the husband make a lump-sum provision during the iddat period, which should be sufficient for the woman’s entire future.

If the husband fails to make this provision, the divorced woman can approach the Magistrate, who can direct payment.

IMPACT:

Reinforced gender justice and protected Muslim women's rights under personal law without striking down the legislation.

Established that interpretation of personal laws must align with constitutional values.

Ensured Muslim women aren’t left destitute post-divorce.

RECENT RULING OF THE HON’BLE SUPREME COURT OF INDIA ON THIS ISSUE OF MAINTENANCE

MOHD. ABDUL SAMAD VS. STATE OF TELANGANA & ANR. (2024)

FACTS OF THE CASE

In the present case, the husband and wife got married on 15th November 2012. Subsequently, after the marriage, on account of differences among the spouses, their relationship deteriorated and the wife left the matrimonial home on 9th April 2016.

Eventually, the wife initiated a criminal proceeding against the husband for the offence which is punishable under Section 498A and Section 406 of the Indian Penal Code, 1860 (at present – Section 85 and Section 316(2) of the Bharatiya Nyaya Sanhita, 2023, respectively).

As a result, the husband pronounced triple talaq and moved before the office of Qazi to seek the decree of divorce.

The decree of divorce was granted ex-parte and the certificate of divorce was issued on 28th September 2017.

The husband claimed that he attempted to make the payment of approximately Rs. 15,000/- to the wife during the iddat period, which was refused by the wife.

Apart from that, the wife filed a petition for interim maintenance under Section 125 of the CrPC (at present – Section 144 of BNSS) before the family court, which was allowed via order dated 9th May 2023.

Aggrieved by such an order, the husband filed an appeal before the High Court of Telangana to quash the present order regarding the interim maintenance, eventually leading to the passing of the instant impugned order dated 13th December 2023.

Ultimately, an appeal was filed before the Hon’ble Supreme Court of India, challenging the order passed by the High Court.

ISSUE OF THE CASE

The major issue before the Court was whether, after the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, Muslim women were prevented from filing an application under Section 125 of CrPC (at present – Section 144 of BNSS)?

JUDGEMENT OF THE CASE

The Hon’ble Supreme Court of India, after considering the facts and issues associated with it, dismissed the appeal filed by the husband and allowed his ex-wife to seek maintenance under Section 125 of the CrPC (at present – Section 144 of the BNSS).

The Court ruled that Muslim women are allowed to seek maintenance under Section 125 of the CrPC as it is a secular provision, despite the fact that their marriage was dissolved under religious personal law.

It was further clarified by the court that if a Muslim woman is married and divorced under Muslim law, then under that situation, both Section 125 of the CrPC as well as the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, would be applicable.

The option lies with the Muslim divorced women to seek remedy either under any of the two laws or both.

The reason for this was that the Muslim Women (Protection of Rights on Divorce) Act, 1986, is not in derogation to Section 125 of the CrPC; instead, it is in addition to the said provision.

The court was of the opinion that Section 125 of CrPC (at present – Section 144 of BNSS) is embedded into the text as a social justice measure, and the remedy of maintenance is a crucial source of support for the impoverished, deserted, and deprived sections of women.