Maintenance
 

Maintenance

1. Introduction:
Maintenance is called nafaq, and it ‘comprehends food, raiment and lodging, through in common parlance, it is limited to the first. Under Islamic law, husband is duty bound to maintain his wife. The woman in Islam is exempted from any financial earning liability. She is entitled for maintenance under Islamic Law.
2. Primary Duty of Maintenance:
It is the primary duty of husband to maintain her wife. And even if she is residing in house of her father and her husband does not require her to his own house and cohabit with her there.
Case Law
Abdul Satar vs. Anwar Begum 1992 ALD 506
It was held that wife is entitled to receive maintenance allowance from husband, if she had not refused to live with him without any sufficient reasons.
3. Remedies for Wife:
i. Wife may file suit in the family court for maintenance.
ii. Wife can also file application in the office of chairman of union council.
4. When wife is not entitled for maintenance:
In the following cases the wife is not entitled for maintenance:
i. If she becomes disobedient.
ii. If she is incapable to perform matrimonial intercourse.
iii. If she refuses to live with her husband unjustifiably.
iv. If she becomes widow.
v. If she becomes able to maintain herself.
vi. In case of irregular or void marriage.
vii. Where she has been taken away forcibly by another person.
viii. In case the fault is on her own part.
ix. If she has been imprisoned.
x. Apostasy.
5. Obligations arising on Marriage:
(i) Wife’s right
• The wife is entitled to maintenance from her husband although she may have the means to maintain herself, and although her husband may be without means.
• The husband’s duty to maintain commences when the wife attains puberty and not before; provided always that she is obedient and allows him free access all lawful times. In addition to the legal obligation to maintain, there may be stipulations in the marriage contract which may render the husband liable to make a special allowance to the wife. Such allowances are called kharch-I pandan, guzara, mewa khori, etc.
• An agreement for future sepration, however, and for the payment of maintenance in such an event is void and against public policy.
• A Muslim wife has a just ground for refusal to live with her husband and she can claim separate maintenance against him where he has taken a second wife or keeps a mistress.
(ii) Right to sue:
If a husband refuses to pay maintenance, the wife is entitled to sue for it. Her right may be based on the substantive law or she sue under the Code of Criminal Procedure, 1980, Section 448 in which case the Court cannot order the husband to pay more than a sum of Rs. 500 per month. But the wife is not entitled to past maintenance, except under Shi’ite and Shafe’I law, or where there is a distinct agreement. In fixing the sum by way of maintenance, the Hedaya and Fatawa ‘Alamgiri lay down the rule that the judge in exercising his discretion should consider the rank and the circumstances of both the spouses, a rule which appears to be eminently fair and just.
(iii) Duration of right:
The wife’s right to maintenance ceases on the death of her husband. The widow is therefore not entitled to maintenance during the ‘idda of death. It is otherwise in the case of divorce, where she is entitled to maintenance during ‘idda.
(iv) Failure to Maintain, Desertion:
• Under the Dissolution of Muslim Marriages Act, 1939, Section 2(ii), a wife is entitled to dissolution if the husband has failed or neglected to provide maintenance for a period of two years.
• In Hanafi Law neither inability, nor refusal, nor neglect to maintain were sufficient grounds, but the schools of Imam Malik and Imam Shafe’I considered these as proper grounds for granting dissolution.
(v) Children and Descendants
• A father is bound to maintain his sons until they attain puberty and his daughters until they are married. He is also responsible for and unkeep of his widowed or divorced daughter. An adult son need not be maintained unless he is infirm.
• If the father is poor, the mother is bound to maintain the children. And, failing her, it is the duty of the paternal grandfather. Thus, grandchildren and other lineal descendants also possess rights of maintenance.
(vi) Daughter-In-Law
A father-in-Law is under nor obligation to maintain his widowed daughter-in-law.
(vii) Illegitimate Child
A father is not bound to maintain an illegitimate child; but in the Hanafi school the mother is bound to support her natural son or daughter.
6. Obligations Arising out of Blood Relationship:
(i) Ascendants:
A person in easy circumstances is bound to maintain his indigent parents, and also his grandparents, paternal as well as maternal.
(ii) Other relations:
The general principle is laid down in the Fatawa ‘Alamgiri:
“Every relative within the prohibited degrees is entitled to maintenance, provided that, if a male, he is either a child and poor, or, if adult, that he is infirm or blind and poor and if a female, that she is poor whether a child or adult.”
Poor or not, a man is bound to maintain his wife and children; but distant relatives are only to be maintained if they are poor and he himself is ‘in easy circumstances’.
View of D. F. Mulla:
According to D. F. Mulla in his book ‘Principles of Muhammadan Law’:
“If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances.”
“Persons who are not themselves poor are bound to maintain their poor relations within the prohibited degrees in proportion to the share which they would inherit from them on their death.”
7. Liability of husband after divorce:
After the divorce the wife is entitled to maintenance doing the period of Iddat.
8. Case where wife is not informed about divorce:
If the divorce is not communicated to her, she is entitled for maintenance until she is informed of the divorce.
9. Arrears of Maintenance:
The arrears of maintenance are recoverable as the arrears of land revenue.
10. Decree of maintenance up to one thousand is not appeal able:
Decree of the court of maintenance up to one thousand rupees is non appeal able.
11. Conclusion: