MAINTENANCE
Introduction:
Maintenance consists of the provisions of accommodation, food, and clothing. It is a lawful right of the wife under a valid marriage irrespective of her means or religion. The entitlement of the wife to maintenance derives its authority from the Quran, Prophet’s tradition and consensus. In
Surah Al-Nisa, Verse 34, The Quran says:
“Men are the protectors and maintainers of women because God has given the one more (strength) that the other, and because they support them from their means”.
I.) Assessment of Maintenance:
The scale of maintenance was not discussed in The Holy Quran or the Sunna, but it was rather left to juristic opinions. It is calculated in
Hanafi, Maliki and
Hanbali law as the mean between the resources of the husband and the previous living standard of the wife. However,
Shafis and
Shia’s fix it according to the means of the husband alone.
The husband is required to provide the wife with a house that is safe both structurally and in location and is free from any other members of his families, including other co–wives. The only exception is that the husband can require his wife to live with infant children of his previous marriage, although Shia school differs.
The right to be maintained belongs to the wife even if she is wealthy and her husband poor. When the husband has no means at all, this is a misfortune that has to be shared by the wife.
II.) Entitlement & Loss of Maintenance:
Maintenance shall be due to the wife during the subsistence of a marriage if all the following conditions are fulfilled:
1. A Valid Marriage – In a Batil (void) or Fasid (irregular) marriage, the wife shall not be entitled to maintenance, since the husband has no lawful right of access to her. The wife shall also lose her right to maintenance if she apostasies because apostasy renders the marriage contract void.
2. Lack of Access – It is tamkeen, i.e. availability of the wife for her husband, and not the marriage itself, that makes maintenance the right of the wife, this right shall be lost if the husband is denied access to the wife at all lawful times. Thus, a woman in jail is not entitled to maintenance, even if she is innocent and consummation has occurred. The same rule applies for a kidnapped wife.
3. Obedience – A disobedient wife has no right to maintenance. The husband’s duty to maintain begins when the wife submits her to husband. If the wife declares herself ready to start cohabiting with the husband, he is to maintain her even if she is living in the house of her guardian, as she has done everything she could. Even a minor husband is obliged to maintain his wife, if he is of an age where consummation is possible.
Sharia defines a disobedient wife as a woman who leaves the matrimonial home without a lawful excuse. The Shias consider as a lawful excuse, wife visiting her sick father who needs her to stay with him, having nobody else to look after him, even if the husband denied permission. Both Sunnis and Shias agree that there will be no maintenance for a wife who goes to work without the husband's permission. The disobedient wife’s lost right to maintenance shall be revived on the removal of the cause.
Similarly, the wife’s maintenance shall be suspended if she travels, unaccompanied by her husband. The wife is bound to travel with her husband to whatever he wishes, provided that she is safe and unless otherwise stipulated in the marriage contract.
However, if the wife disobeys her husband for some lawful reason, then the right to maintenance does not extinguish. Non-payment of prompt dower is a reasonable ground for a wife to refuse to live with her husband e.g.
“Rahim Jan v. Muhammad”.
III.) Termination of Wife’s Maintenance:
The wife’s maintenance terminates on two occasions:
(a) death; or
(b) divorce. Regarding divorce, all schools agree that if the divorce is “revocable”, the wife is entitled to maintenance throughout the idda, because repudiation is a matter in the husband’s hands and wife still remains under his control.
If, however, the divorce is “irrevocable”, then only Hanafis allow maintenance during idda. The Malikis states that such a woman is entitled to full maintenance only when she is actually pregnant. If she is non-pregnant, then the wife is entitled to lodging only during the idda.
All schools agree that a divorced Muslim woman is entitled to no maintenance after the idda period, the rationale being that these women would normally return to their natural family or would remarry. However, if a man wants to provide maintenance for the rest of her life is not preventing from doing so by any provision of Muslim law. This area has been a subject of considerable reforms.
Surah Al-Baqara, Verse 236 provides that Mutat is payable in deserving cases as a matter of goodwill and of custom. However, this remedy is not a general entitlement. Various Muslim states have incorporated the Mutat payments in their statutes. In Syria, Jordan and Egypt, the law agree on the principles in general but they differ on the amount payable. Generally, the wife will be entitled to Mutat, on repudiation by the husband after consummation, as compensation for an arbitrary talaq i.e. if it is proven to a qadi that the husband exercised talaq without a lawful justification. In Syria, the amount payable should not be in excess of the amount of maintenance for her equals for three years. In Jordan, the amount is equivalent of the maintenance due to her for a year. In Egypt, the amount is equivalent of the maintenance due to her for two years.
In South Asia, rather on Mutat, reforms have taken place on the wife’s right of maintenance itself. In India,
S.2(2) DMMA 1939 allows Muslim women to seek divorce if her husband fails to maintain her for two years. However, in India, the reforms started with the coming of
S.125 of the Code of Criminal Procedure 1973 in which the definition of a wife, entitled to maintenance, also included an unmarried “divorcee”.
In the controversial case of
“Shah Banu”, a Muslim husband drove his wife, an old lady, out of the house after contracting a second marriage. She filed a petition for maintenance under the 1973 Code. The husband gave the respondent an irrevocable talaq and his defence to the lady’s claim for maintenance was that she had ceased to be his wife. The Supreme Court confirmed the High Court’s decision that she was entitled to maintenance.
The Supreme Court stated that that there is inadequate proof to support the proposition that a Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, “who is unable to maintain herself”. The court said that the true position is that the classical Islamic law provides no maintenance, with the expiration of idda, for a divorcee who “can” maintain herself. However, if she “cannot” maintain herself, then she can take recourse to S.125. The court supported this proposition with the
Surah Baqara, Verse 236 and 241-42 which provided that for divorced woman, maintenance should be provided on a reasonable scale and this was a duty on the righteous Muslim.
The decision in this case was opposed by various Muslim scholars. Mahmood argued that once the idda period is over, it is the duty of the wife’s natural parents to maintain her. In his view women were being treated too favourably by the law and that the basic principles of Muslim law were being violated in the process.
However, I disagree with his views. The Supreme Court did nothing than to reflect the true Islamic position. Though one may say that it’s unfair to force an ex-husband to maintain his ex-wife till death, but conversely it is equally unfair to a let a woman die on the streets that has on other means of survival. It is not correct to say that Muslim law is being violated, because the above mentioned Quranic verses themselves say that divorced women should be provided maintenance on a reasonable scale and it is not unfair to the husband because the scale of reasonable payment is judged according to the means of the husband alone, i.e. a poor ex-husband should pay less for maintenance and a rich ex-husband should pay more. It is very harsh to say that this decision favours women heavily just because of the fact that the decision hits the pockets of many Muslim husbands.
In explicit reaction to this case, the Muslim Woman (Protection of Rights on Divorce) Act 1986 was promulgated. This has done precisely what its name suggests and has proved rather beneficial to divorced Muslim wives who were unable to maintain themselves appropriately after the idda.
S.3 of 1986 Act offers a more or less instant remedy today to any divorced Muslim wife in India who, at the end of the idda period, finds that her ex-husband has not made reasonable provisions for her future maintenance. After this Act, there are a number of High Court cases which supports the view that the divorcing husband remains liable for his former wife’s welfare. Only the very few cases go the other way.
In
Ali v. Sufaira, the judge again turned to the Quranic text and said that
Surah 2, verse 236-37 and 241-42 makes it clear that any Muslim must give a reasonable amount by way of gift or maintenance to the divorced lady and they are not limited to the period of idda. It was therefore held that under S.3(1)(a) of the Act a divorcee is entitled to maintenance for the period of idda as well as a reasonable and fair provision for her future.
Contrastingly, in
Usman Khan v. Fathimunnisa Begum, the judge examined the precise wording of S.3(1)(a) in particular the phrase “within the idda period” and concluded that the husband is not liable to make reasonable and fair provisions beyond idda period. However, the decision in this case seemed faulty ignoring the intention behind the 1986 Act and the idealistic spirit of the Quranic provisions.
Under the Quranic law Mutat is payable in deserving cases only and not unconditionally to every female divorcee. The cloak under the 1986 Act gives an absolute right to all divorcees irrespective of the circumstances.
In
Pakistan and Bangladesh S.9 MFLO 1961 places an obligation on the Muslim husband to maintain his wife(s) during marriage. The socio religious problems of maintenance are same, but in Pakistani law a divorcee is no longer a wife and therefore gets no maintenance beyond idda. Neither the Pakistani law makers nor the Pakistani courts had considered the matter in any depth and the current situation is that the burden of maintaining divorced women is normally borne by the natural family, rather than the divorcing husband or his family.
However, Bangladesh also seems to follow India. In
Md. Hefzur Rahman v. Shamsun Nahar, it was held that a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the idda till she remarries.