Family Law

Family Law - Maintenance under Muslim Law

INTRODUCTION

The principles of maintenance are determined by the strength of claims and affections and duties of persons on whom such obligation has been cast. The Muslim jurists did not keep legal and moral obligations distinct. The moral and legal duties, in case of maintenance, are connected with each other. Such right of maintenance, apart from being a legal obligation, is a moral obligation also. Maintenance includes all those things which are important for survival and contains suitable food, raiment and lodging and cost of education. The term “Maintenance” also includes expenses for mental and physical well being of a minor child in accordance to the status of the family in the society. In case of education under maintenance there is no hard and fast rule as to what should be the standard of education.

In some cases there are conditions laid down on the duty of providing maintenance and the right of receiving maintenance. And also in some cases the right and duty of providing and receiving maintenance depends on the circumstances and condition of the persons bound to maintain and the persons who are entitled to receive respectively.

The persons entitled to maintenance are: 1.Wife, 2.Children,

3.Grandchildren, 4.Parents, 5.Grandparents, 6.Son’s wife, 7.Step-mother, and 8.Other relations by blood.

Now the relations, which are liable to maintain, can be divided into two classes:

1. relations by blood who area.ascendants or descendants; or b.collaterals within the prohibited degrees; and

2. relations by affinity -

a. the husband;

b. father of the husband; and

c. step-son.

Conditions for the right to maintenance

Under Mohammedan law every person’s maintenance should be given from his own property whether he is a minor or a major. As a general rule, the right of maintenance is available only to the necessitous persons who are poor and cannot earn their maintenance. The exception to this general rule provides that in certain cases the persons who are not necessitous are also entitled to maintenance. One such example is the right of the wife even though she has the means to maintain herself. Also the parents and grandparents are entitled to maintenance even if they are not necessitous but provided that they are poor then only they can claim the maintenance. Maintenance of sons, till they attain puberty, and daughters, till they are married, is also considered as an exception.

It may be noted that the wife is the only one who is entitled to maintenance even if she has got some means of maintaining herself, and the husband is without any means. Also the children before puberty are not entitled to maintenance if they are not poor and have got their own means of maintaining themselves.

A Muslim husband is bound to maintain the wife as long as she is faithful to him and obeys such orders which can be considered as reasonable in the eyes of law. But he is not bound to maintain her if she refused herself or is otherwise disobedient. In Baillie’s Digest of Mohammedan Law, it has been stated: [1]

“If, when called upon to remove to 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 be a nashizah or rebellious, she has no right to maintenance until she returns to her husband’s house. By this expression is to be understood a woman who goes out from her husband’s house(manzil) and denied

herself to him, in contradiction to one who merely refuses to abide in her husband’s apartment(beit), 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 won house, or to hire a house for her. When she ceased to be a nashizah or rebellious, she is again entitled to maintenance.”

Also it has been observed in Ameer Ali’s Mohammedan Law[2]: “but the right of the wife to maintenance is subject to the condition that she is not refractory or does not refuse to live with her husband without the lawful cause.

Priority of obligations to maintain shall be in the following order: 1.firstly, on the husband, 2.secondly, on the father, 3.thirdly, on the mother, 4.fourthly, jointly on the grand-parents and grand-children, 5.fifthly, on the children, 6.finally, on the collateral relations.

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 illtreatment 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 divorceewife, 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 Divorce) Act 1986

Section 125 Code of Criminal Procedure

Jurisdiction

Application is filed in the area where divorced woman resides

Application where the husband is, or resides or where he last resided with his wife

Relief available

Reasonable and fair provision and maintenance, or the amount of mahr or dower paid, all properties given at the time of marriage or after marriage. If unable to maintain herself, after Iddat period relatives ordered to pay maintenance and if no relatives exist then Warf board pays.

Allowed a monthly allowance, not exceeding Rs.500. No provision for maintenance by children, relatives or Wakf Board after Iddat period.

Punishment on failure to pay

Imprisonment which may extend to one year.

Imprisonment which may extend to one month.

Applies to

Only to divorced woman

To every married or divorced woman.

Alteration /allowance

No such Provision.

On change of circumstances Alteration maybe made.

Maintenance after Iddat

Woman to be maintained by her children or parents or relatives or the Warf board.

No such provision.

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 nonHanafi 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 nonpayment 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.

[1] Baillie’s Digest, Mohammedan Law, 2nd Ed., p.442.

[2] Ameer Ali, Mohammedan Law, vol. II, 5th Ed., p. 407

[3] Said Ahmad v. Sultana Bibi; AIR 1943 Pesh. 73

[4] Mulla, Mohammedan law, 18th Ed., at p.300

[5] AIR 1918 Mad. 722

[6] Ali Akbar v. Fatima Begum, AIR 1929 Lah 902

[7] Sirajmohmedkhan Janmohammadkhan v. Hafizunnisa Yasinkhan, AIR 1981 SC 1972

[8] Aamir Ali, Mohammedan Law, Vol. II, at p . 419

[9] Abdool Fateh v. Zubinissa, ILR 6 Cal. 631

[10] Mohammad Ali v. Fareedunissa, AIR 1970 A.P. 298

[11] Agha Mohd. Jaffar v. Koolsom Babi, ILR 25 Cal 1 (PC)

[12] Rashid Ahmad v. Anisa Khatun, AIR 1932 PC 25

[13] Mohd. Ibrahim v. Jaithoon, AIR 1951 Mad. 831

[14] Mohd. Tyabji’s, Mohammedan Law, 3rd. Ed. at p. 322

[15] 1987 (I) DMC 374

[16] Bal Fatima v. Ali Mohd. , ILR 37 Bom 280

[17] Sikandar Ara v. Hasan Ara, AIR 1936 Oudh. 196

[18] Abdul Gaffar v. Bibi Hafeeza Khatoon, AIR 1968 Pat. 307

[19] s.125. Order for maintenance of wives, children and parents.

(1) If any person leaving sufficient means neglects or refuses to maintain-

(a) His wife, unable to maintain herself, or

(b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) His father or mother, unable to maintain himself or herself,

A Magistrate of' the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate1[***] as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct::

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of' sufficient means.

2[Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person]

Explanation. For the purposes of this Chapter.

(a) Minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority;

(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

3[(2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]

(3) If any Person so ordered fails without sufficient cause to company with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's 4[ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to just ground for his wife's refusal to live with him.

(4) No wife shall be entitled to receive an allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to, live with her, husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

[20] AIR 1979 SC362

[21] 1981 Cr LJ 754

[22] AIR 1985 SC 945

[23] Baya Bai v. Esmail Ahmad, AIR 1941 Bom. 369

[24] AIR 1937 Lah. 236

[25] Mohd. Sultan v. Abdul Rehman, AIR 1937 Rang. 175

[26] AIR 1985 SC 945

[27] AIR 2001 SC 3958

[28] PLD 1978 Quetta 117