Maintenance (Nafaqa)

Theoretical overview

Under Muslim law the husband cannot be entitled to get the maintenance but in Hindu law the husband is entitled for the same. Maintenance, under Muslim law include food, clothing, residence, education and medical treatment. In case of an unmarried daughter, it also includes her wedding expenses. 

People who are entitled to get maintenance are: – 

• wife 
• children 

Wife 

The wife can claim the maintenance under 4 conditions: –

1.  As an obligation of marriage

The husband has an obligation to maintain his wife as long as the wife remains faithful to him and obey all his reasonable order. 

She can claim maintainance even if she does not obey her husband if: –

• the husband keeps a concubine 
• the husband is guilty of cruelty to the wife 
• the marriage has not been consummated owing to her illness or impotency or the husband being a minor.

2. On the basis of pre-nuptial agreement

 the wife can place condition before the contract of marriage so that she can claim maintenance in certain conditions. She is also entitled for the special allowance known as kharcha-a-pandan

 husband liability is only limited to the iddat period 

3. under section 125 of CRPC

 interim maintenance and expense of integration is given to the wife. This particular section is secular in nature which governs all the personal laws in India. It state that judicial magistrate of first class can order for the monthly allowance if the court gets sufficient proof that: –

• he is refusing to maintain wife who is unable to be maintained
• legitimate or a illegitimate minor child married or unmarried 
• legitimate or illegitimate major child with physical or mental disability 
• father or mother who are unable to maintain himself

In a leading case law, the supreme court held that it is a criminal law and not a civil law and there is no conflict between section 125 and other provisions of Muslim law as it applies to all the cast, creed and religion.

After this leading case law, protests were held as it was considered as an attack on religion because the husband was entitled to maintain his wife until the iddat period and it was presumed that the court has neglected so.

The Muslim women (protection of rights and divorce) act 1986 came into force. This act limited the duty of the husband to maintain till the iddat period only. It further states that, if a woman is unable to maintain herself, then her relative, who were going to inherit her property will maintain her and if they are unable to maintain her, the waqf board will pay for her maintenance

In Another judgement of Daniel latifie vs union of India 2001, it was held that the husband has to make arrangement within the period iddat so that wife can maintain herself later as well. The court also held this particular law as constitutional.

Maintenance of children 

• father is bound to maintain his son till he attains the majority and daughter till she gets married.
• he is also entitled to maintain her major son in case he is lunatic or mentally or physically disable
• father is not bound if child refused to live with him without any reasonable cause
• no obligation for illegitimate child under Muslim law but he is liable under section 125 CRPC
• mother has little obligation when husband is poor or she is rich enough but later she can recover the same from him

Relevant sections

Section 125 in The Code Of Criminal Procedure, 1973

125. Order for maintenance of wives, children and parents.

(1) If any person having 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 rate not exceeding five hundred rupees in the whole, 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. Explanation.- For the purposes of this Chapter,-

(a) ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (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.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply 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 allowances 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 date 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 be 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 if 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.

Important case laws

Mohd Ahmad Khan vs. Shah Banu Begum(1985) – supreme court held tthat a muslim women can file for maintenance under section 125 of CrPC as it is a criminal law and not a civil law. There should be no conflict as section 125 applies to all irrespectibve of caste, creed, religion.

Daniel Latifie vs. Union of India(2001) – it was held that husband has toi make the arrangement in the iddat period so that wife can maintain herself after the iddat period itself. It also held the The Muslim women (protection of rights and divorce) act as constitutionl.

Ali Akbar vs. Fatima (1929) – Rs. 25 were given to wife as monthly allowance under kharcha-a-pandan.

Points to remember

• Under Muslim law the husband cannot be entitled to get the maintenance but in Hindu law the husband is entitled for the same
• The husband has an obligation to maintain his wife as long as the wife remains faithful to him and obey all his reasonable order. 
• the wife can place condition before the contract of marriage so that she can claim maintenance in certain conditions. She is also entitled for the special allowance known as kharcha-a-pandan
• under section 125 of CRPC, interim maintenance and expense of integration is given to the wife
• husband liability is only limited to the iddat period