FAMILY LAW PROJECT

MAINTENANCE
OF
WIFE

SUBMITTED TO: SUBMITTED BY:

DR. JAI MALA AKASH MALIK
184/15
B.COM LLB

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 ACKNOWLEDGEMENT
It is my privilege to express my sincerest regards to my teacher, Dr. Jai Mala, for
her valuable inputs, able guidance, encouragement, whole-hearted cooperation and
constructive criticism throughout the duration of my project. I would like to pay
my gratitude to my teacher for allowing me to present my project topic
”Maintenance of Wife” . I take this opportunity to thank all my lecturers who have
directly or indirectly helped our project. I pay my respects and love to my parents
and all other family members and friends for their love and encouragement through
out my career. Last but not the least I express my thanks to my friends for their
cooperation and support.

Akash Malik

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Table Of Contents

Concept of maintenance ...................................................................................... 4

Maintenance under Section 125 of CrPC …………………………………….5

Maintenance under Hindu Law ............................................................................. 9

Section 18 of HAMA ……………………………………………………… 10

Section 22 of HAMA ......................................................................................... 12

Section 23 of HAMA ………………………………………………………..13

Section 19 of HAMA ......................................................................................... 14

Section 24 of HAMA ......................................................................................... 16

Section 25 of HAMA ......................................................................................... 20

Maintenance under Muslim Law …………………………………………... 24

Shah Bano Begum Case history .......................................................................... 30

Case Law -Danial Latiff .................................................................................... 32

Bibliography………………………………………………………..……….. 36

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Concept of Maintenance

The concept of ‘maintenance’ in India is covered both under Section 125 of the
Code of Criminal Procedure, 1973 (Section 125) and the personal laws. This
concept further stems from Article 15(3) reinforced by Article 39 of the
Constitution of India, 1950 (the 'Constitution'). Under Indian law, the term
‘maintenance’ includes an entitlement to food, clothing and shelter, being typically
available to the wife, children and parents. It is a measure of social justice and an
outcome of the natural duty of a man to maintain his wife, children and parents,
when they are unable to maintain themselves.1 The object of maintenance is to
prevent immorality and destitution and ameliorate the economic condition of
women and children.

Maintenance can be claimed under the respective personal laws of people

following different faiths and proceedings under such personal laws are civil in
nature. Proceedings initiated under Section 125 however, are criminal proceedings
and, unlike the personal laws, are of a summary nature and apply to everyone
regardless of caste, creed or religion.2 The object of such proceedings however, is
not to punish a person for his past neglect. The said provision has been enacted to
prevent vagrancy by compelling those who can provide support to those who are
unable to support themselves and have a moral claim to support.3 Maintenance can
be claimed either at the interim stage, ie, during the pendency of proceedings, or
the final stage.

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Maintenance under secton 125 of CrPC:
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
e. 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,-
i. 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;
ii. wife" includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried.

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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 Sec. 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 Sec. notwithstanding such offer, if he is satisfied that
there is just ground for so doing.
4) 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.
5) No Wife shall be entitled to receive an allowance from her husband under
this Sec. 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.
6) On proof that any wife in whose favour an order has been made under this
Sec. 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.

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Explanation
Under CrPC, only wife (a woman who has been divorced by or has obtained
divorce from her husband & hasn’t remarried) can claim for maintenance. A wife
who refuses to stay with her husband due to legal grounds such as (bigamy, cruelty
& adultery) has the right to special allowance under this act. But a wife does not
possess right to claim maintenance if she’s living in adultery or she’s living
separately by mutual consent. The various Sections of CrPC are criminal in nature
and are used for the criminal charges. Under CrPC, only wife (a woman who has
been divorced by or has obtained divorce from her husband & hasn’t remarried)
can claim for maintenance. A wife who refuses to stay with her husband due to
legal grounds such as (bigamy, cruelty & adultery) has the right to special
allowance under this act. But a wife does not possess right to claim maintenance if
she’s living in adultery or she’s living separately by mutual consent. The
magistrate has the power to give the maintenance from the date of the order and if
he gives the allowance from the date of filling the application than in that case he
has to give reasons as to why he/she is giving the maintenance from the date of the
application. Bombay High Court which said in its judgment that no maintenance
will be granted to the second wife of a Hindu.” This judgment is in a way
differentiating amongst women and also there is an angle of gender bias to this
judgment.

Quantum of maintenance:

Maintenance apart from covering food, clothing and shelter, also includes other
necessities. The quantum of maintenance varies, considering the status of the
person, his financial condition and number of dependents and is at the court’s
discretion. The court takes into consideration any maintenance that may have been
already ordered under the personal law before passing an order under Section 125.

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The wife is entitled to live according to the same standards and status that she
enjoyed when she was living with her husband.

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 Maintenance under Hindu Law

Maintenance under Hindu Adoption and Maintenance Act, 1956

Maintenance

Maintenance means the right of dependents to obtain food, clothing, shelter,

medical care, education, and reasonable marriage expenses for marriage of a
girl, from the provider of the family or the inheritor of an estate. The basic concept
of maintenance originated from the existence of joint families where every member
of the family including legal relations as well as concubines, illegitimate children,
and even slaves were taken care of by the family. However, maintenance does not
mean unreasonable expectations or demands.

Historical Perspective

Joint family system has been a main feature of the Hindu society since vedic ages.
In a joint family, it is the duty of the able male members to earn money and
provide for the needs of other members such as women, children, and aged or
infirm parents.

In Manusmriti, it has been said that wife, children, and old parents must be
cared for even by doing a hundred misdeeds.

Since in the social structure of Hindu society the joint family system looms large,
the law of maintenance has a special significance in Hindu law. All members of a
joint family, whatever be their status and whatever be their age, are entitled to

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maintenance. Hindu law recognizes that a hindu has a personal obligation to
maintain certain near relations, such as wife, children, and aged parents and that
the one who takes another’s property has an obligation to maintain the latter’s
dependents. Thus husband has a direct obligation to maintain his wife. In modern
system of law, the obligation exists even after the dissolution of marriage. Thus, a
wife has right to maintenance in following situation:

 When the wife lives with her husband.

 When the wife lives separate from her husband, and
 When the wife lives separate under a decree of the court or when is
dissolved.

HAMA 1956 codifies a lot of principles governing the maintenance of dependents

of a Hindu male. Under this act, the obligation can be divided into two categories -
personal obligation and obligation tied to the property.

Dependents based on personal obligation

Personal obligation means that a Hindu is personally liable, irrespective of the

property that he has inherited or his earnings, to provide for certain relations who
are dependent on him. These relations have been specified in the following
sections of HAMA 1956.

Section 18(1) declares that whether married before or after this act, a Hindu wife
shall be entitled to claim maintenance by her husband during her lifetime.

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Sec 18(2) says that a wife is entitled to live separately without forfeiting her right
to claim maintenance in certain situations.

Sec 18(3) says that a wife shall not be entitled to separate residence and
maintenance of she is unchaste or ceases to be a Hindu.

In the case of Jayanti vs Alamelu, 1904 Madras HC held that the obligation to
maintain one's wife is one's personal obligation and it exists independent of any
property, personal or ancestral.

Dependents based on obligation tied to property

A person has obligation to support certain relations of another person whose

property has devolved on him. In this case, this obligation is not personal but only
up to the extent that it can be maintained from the devolved property.

Section 21 specifies these relations of the deceased who must be supported by the
person who receives the deceased property.

1. father
2. mother
3. widow, so long as she does not remarry
4. son, predeceased son's son, or predeceased son's predeceased son's son until
the age of majority. Provided that he is not able to obtain maintenance from
his father or mother's estate in the case of grandson, and from his father or
mother, or father's father or father's mother, in the case of great grandson.

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 5. daughter or predeceased son's daughter, or predeceased son's predeceased
son's daughter until she gets married. Provided that he is not able to obtain
maintenance from his father or mother's estate in the case of granddaughter,
and from his father or mother, or father's father or father's mother, in the
case of great granddaughter.
6. widowed daughter, if she is not getting enough maintenance from her
husband's, children's, or father in law's estate.
7. widow of predeceased son, or widow of predeceased son's son, so long as
she does not remarry and if the widow is not getting enough maintenance
from her husband's, children's or her father or mother's estate in the case of
son's widow.
8. illegitimate son, until the age of majority
9. illegitimate daughter, until she is married.

Section 22 (1) says that heirs of a Hindu are bound to maintain the dependents of
the deceased out of the estate inherited by them from the deceased. Thus, this
obligation is to be fulfilled only from the inherited property and so it is not a
personal obligation. 22(2) says that where a dependent has not received any share,
by testamentary or intestate succession, he shall be entitled to maintenance from
those who take the estate. 22(3) says that the liability of each heir is in proportion
to the estate obtained by him. 22(4) says that a person who himself is a dependent
cannot be forced to pay any amount of maintenance if the amount causes his share
to reduce below what is required to maintain himself.

How much maintenance: Section 23(1) says that courts will have complete
discretion upon whether and how much to maintenance should be given. While
deciding this, the courts shall consider the guidelines given in sections 23(2) and
23(3).

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Section 23(2) says that that while deciding the maintenance for wife, children, and
aged or infirm parents, the courts will consider:

1. the position and status of the parties.

2. the reasonable wants of the claimants.
3. If a claimant has a separate residence, is it really needed.
4. the value of the estate and the income derived from it or claimant's own
earning or any other source of income.
5. the number of claimants.

Section 23(3) says that while determining the maintenance for all other dependents
the courts shall consider the following points:

1. the net value of the estate after paying all his debts.
2. the provisions, if any, made in the will in favor of the claimants.
3. the degree of the relationship between the two.
4. the reasonable wants of the dependent.
5. the past relations between the deceased and the claimants.
6. claimant's own earnings or other sources of income.
7. the number of dependents claiming under this act.

Separate earning of the claimant

Whether the claimant has separate earning on income is a question of fact and not a
question of presumption. It cannot be, for example, presumed that a college
educated girl can maintain herself.
In the case of Kulbhushan vs. Raj Kumari wife was getting an allowance of
250/- PM from her father. This was not considered to be her income but only a

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bounty that she may or may not get. However, income from inherited property is
counted as the claimant’s earning.

Arrears of Maintenance

In the case of Raghunath vs Dwarkabai 1941 Bom HC held that right of

maintenance is a recurring right and non-payment of maintenance prima facie
constitutes proof of wrongful withholding.

Maintenance of widowed daughter-in-law (Section 19)

(1) A Hindu wife, whether married before or after the commencement of this Act,
shall be entitled to be maintained after the death of her husband by her father-in-
law:
PROVIDED and to the extent that she is unable to maintain herself out of her own
earnings or other property or, where she has no property of her own, is unable to
obtain maintenance-
(a) from the estate of her husband or her father or mother, or
(b) from her son or daughter, if any, or his or her estate.

(2) Any obligation under sub-section (1) shall not be enforceable if the father-in
law has not the means to do so from any coparcenary property in his possession out
of which the daughter-in-law has not obtained any share, and any such obligation
shall cease on the re-marriage of the daughter-in-law.

Wife's right to separate residence without forfeiting the right to maintenance

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Section 18(2) says that a wife can live separately and still claim maintenance from
husband in the following situations.

1. Desertion: It the husband is guilty of deserting the wife without her consent,
against wife's wishes, and without any reasonable cause, the wife is entitled
to separate residence. In the case of Meera vs Sukumar 1994 Mad., it was
held that willful neglect of the husband constitutes desertion.
2. Cruelty: If husband through his actions creates sufficient apprehension in the
mind of the wife that living with the husband is injurious to her then that is
cruelty. In the case of Ram Devi vs Raja Ram 1963 Allahbad, if the
husband treats the wife with contempt, resents her presence and makes her
feel unwanted, this is cruelty.
3. If the husband is suffering from a virulent form of leprosy.
4. If the husband has another wife living. In the case of Kalawati vs
Ratan 1960 Allahbad, is has been held that it is not necessary that the
second wife is living with the husband but only that she is alive.
5. If the husband keeps a concubine or habitually resides with one. In the case
of Rajathi vs Ganesan 1999 SC, it was held that keeping or living with a
concubine are extreme forms of adultery.
6. If the husband has ceased to be a Hindu by converting to another religion.
7. For any other reasonable cause. In the case of Kesharbai vs Haribhan 1974
Mah, it was held that any cause due to which husband's request of restitution
of conjugal rights can be denied could be a good cause for claiming a
separate residence as well as maintenance. In the case of Laxmi vs
Maheshwar 1985 Orrisa, it was held that if the husband fails to obey the
order of restitution of conjugal rights, he is liable to pay maintenance and
separate residence

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Section 18(3) says that a wife is not eligible for separate residence and
maintenance if she is unchaste or has ceased to be a Hindu.
In the case of Dattu vs Tarabai 1985 Bombay, it was held that mere cohabitation
does not by itself terminate the order of maintenance passed under 18(2). It
depends on whether the cause of such an order still exists.

Maintenance (Alimony) under Hindu Marriage Act, 1955

Various rights have been attributed to Hindu wife and husband on matrimonial
issues under the Hindu Marriage Act. Yet on few issues the rights of wife and
husband are different from each other but on many issues both the spouses stand
on equal footing. Right of alimony is also one of them.

Alimony means the allowances which husband or wife by court order pays to other
spouse for maintenance while they are separated or after they are divorced
(permanent alimony) or temporarily, pending a suit for divorce (pendente lite). The
principle is that one who is unable to maintain oneself, has a right to be
maintained. The object is not to publish but to make realize one’s legal liability, to
provide for those who are unable to support themselves, to make the weaker
section of the society to exist the live, to prevent destitution on public grounds and
on the basis of moral support as well, the subject is legally acknowledged.

Maintenance Pendente Lite:

The object of enacting the provision for maintenance and expenses during the
pendency of the proceeding in Section 24 is that a wife or husband, who has no
independent income sufficient for her or his support or enough to meet necessary
expenses of the proceedings, may not be handicapped. So the doctrine of pendente

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lite and permanent alimony is based on economic tutelage of a spouse. It aims at
administering justice and maintaining equilibrium between the parties.

This section applies to both husband and wife equally. Law has placed both the
spouses on the same footing for this purpose.

The power of the court of ordering alimony pendente lite in a pending proceeding
for matrimonial relief has been provided by Sec. 24 of Hindu Marriage Act, 1955.
The liability is on the person who initiates the proceedings to maintain the opposite
party during the pendency of the proceedings if the opposite party is unable to
maintain herself and to meet the expenses of the proceedings.

In order of alimony pendente lite should be supported by reasons and the applicant
is to establish that he or she has no independent income sufficient for his or her
support and for necessary expenses of the proceeding or if he or she has income the
nature of quantum of it, the income, of the respondent of the application for
alimony and the quantum thereof, the nature and extent of applicant’s needs both
for maintenance and expenses of proceedings.
The discretion in the matter of granting maintenance pendente lite and cost of
litigation is to be exercised on sound legal principles. If the applicant has no
independent means, he or she is entitled to interim maintenance and expenses
unless good cause is shown for depriving him or her of it. The matters that may
properly be considered in this connection are:
(i) whether applicant is being supported by an adulterer, and
(ii) whether the respondent has not sufficient means.
Thus, where the wife was prepared to go and live with the husband but the husband
did not wish to keep her with him on the ground of her inability of consummate the

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marriage the wife is entitled to maintenance. The fact that the petitioning spouse is
maintained by his or her parents is no ground to deprive the petitioner of his or her
maintenance and expenses of litigation. For considering the application for grant of
interim maintenance, only independent income of the petitioning spouse or the
conduct of her is material.

The expression ‘sufficient’ in the collocation of the word ‘sufficient’ means for his
or her support. ‘Sufficient’ is not ‘some’. The word ‘sufficient’ connotes that the
income of the applicant must be such which would be sufficient for a normal
person for his or her sustenance as well as to meet the necessary expenses of the
proceeding. So the fact that the wife sits in her father’s shop and earns a paltry sum
by knitting and by tuition is not relevant in deciding the question of alimony
pendente lite, neither the fact that the father of the wife is suporting her nor her
refusal to live with the husband could be any ground for denial of maintenance
under Sec. 24. The question whether the wife is guilty of desertion cannot be
decided at the time of passing order of maintenance pendente lite.

It is noticeable that Sec. 24 only refers to income and not other property. So in case
of alimony pendente lite other property of the spouses should not enter judicial
consideration. Therefore immovable property yielding no income cannot be
considered. Only the income out of it received by the applicant can enter judicial
consideration.

To have almony pendente lite it is not necessary that petitioners should have no
income of her or his own. If the income of the petitioners is found by court to be
insufficient to support her/him the court may order the other party to pay to the
petitioner an allowance monthly and litigation expenses. Even if the petitioner fails

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to aver that she has no source of income the petition is not liable to be dismissed.
The word sufficient is a relative term and has to be considered on facts of each
case.

The words “wife having no independent income insufficient for her support”
suggests that income of the wife must be independent and must be sufficient for
her support. So, even if the wife’s parents are affluent, the wife has no independent
income of her sufficient to support her is entitled to maintenance pendente lite
under Section 24 of the Act. The plea of having no job when the husband is
qualified and he refuses several offers of job on the pretext that it would not suit
him is not available as a defence against a petition for alimony pendente lite by
wife.

A husband who voluntarily incapacitates himself cannot be absolved of his

liability to maintain the wife. In Sousseau Mitra v. Chandana Mitra, the husband
graduate in science and a B.Ed. coming from respectable family and able bodied
capable of earning, contended that he was earlier working as a typist-cum-clerk but
had resigned and so was out of employment. The Court held that he couldn’t avoid
his liability to maintain his wife and child by voluntarily incapacitate himself. The
Court can legitimately take into consideration his ability to earn a reasonable
amount.

Alimony pendente lite and litigation expenses may be granted in any proceedings
under the Hindu Marriage Act provided other conditions for such grant are
satisfied.
Section 24 does not bar proceedings under Section 125 of Cr.P.C., being separate
and independent remedies. Also by reason of Section 4(b) of Hindu Marriage Act

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it does not prevail over the provisions under Cr.P.C. The amount of maintenance
fixed under Section 125 of Cr.P.C. may be taken into account while awarding
maintenance pendente lite.

Permanent Alimony: Section 25

Section 25 makes provisions for the grant of permanent alimony. The object of this
section is to treat both the husband and the wife on equal footing for the purpose of
financial assistance to be rendered permanently to the spouse who is poverty-
stricken without having any independent income of its own for maintenance and
support. This grant of permanent alimony and maintenance is circumscribed by
two conditions. First, this grant will remain in force till the applicant remains
unmarried and pursues the chaste life. Secondly, this grant is the personal right of
the applicant and extinguishes with the death of the applicant.
This section differs from the provisions of similar legislations on this issue to the
effect that under analogous laws permanent alimony is granted only to the wife,
but this section recognizes this right for both the spouses alike following the legal
principle of equality before law. Though Section 25 does not use the expression
‘permanent alimony’ in any part of the enactment, the marginal note to the section
clearly shows that the section is intended to deal with permanent alimony.

The concept of ‘permanent alimony’ is not an indigenous concept grown on the

soil and there was no law of divorce amongst Hindus in the country. The reason for
awarding permanent alimony to the wife seems to be that if the marriage bond
which was at one time regarded as indissoluble is to be allowed to be severed in
larger interest of society, the same considerations of public interest and social
welfare also require that the wife should not be thrown on the street but should be

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provided for in order that she may not be compelled to adopt a disreputable way of
life. The provision for permanent alimony is, therefore, really incidental to the
granting of a decree for judicial separation, divorce or annulment of marriage and
that also appears to be clearly the position if the language of Section 25 is looked
at.

The right of permanent alimony is statutory right and as such it cannot be abridged
or taken away by any contract of the parties to that effect. Thus the husband cannot
contract out nor is the wife bound by any such contract.

It is significant to note that the relief of permanent alimony is a relief incidental to

the granting of the substantive relief by the Court in the main proceeding. It is an
incidental relief claimed in the main proceeding, though an application is necessary
for claiming it. The application is an application in the main proceeding for
claiming an incidental relief consequent upon the granting of the substantive relief
by the Court.

Section 25 differs from Section 18 of the Hindu Adoptions and Maintenance Act,
1956. Though this section confers power on the Court to order the permanent
alimony and maintenance but this power is discretionary and is exercised with
reference to certain well established principles. On the other hand, Section 18 of
the H.A.M.A. does not provide any such discretionary power and as such the Court
is to pass order under this section on determination of question of facts and
questions of law. Thus, no question of judicial discretion is involved in this matter.
Further Section 4 of the HAMA, 1956 does not impliedly repeal Section 25 of the
Act. Under Section 18, husband is personally liable for his wife’s maintenance
because such right is an incident of the status of matrimony. For such right valid

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marriage is a pre-condition. This right of wife is a part of our ancient law but such
right does not accrue in case of void marriage. The right may be refused if decree
on restitution of conjugal right is operating against wife.

Section 25 does not deprive the wife of her right of maintenance even if the
divorce is granted on the ground of desertion on the part of the wife. The Court can
in appropriate cases grant relief of maintenance to women from the estate of her
deceased husband even though it is found by the Court that the marriage was void.
It may be noted that in sub-section (1) of Section 25, apart from various other
matters to be taken into account, the Court is also to take into account “the conduct
of the parties” when a request is made for payment of alimony and maintenance.
Sub-section (2) provides for the Court varying, modifying or rescinding any order
already passed under sub-section (1) on being satisfied that there is a change in the
circumstances of either party at any time after the order was passed under sub-
section (1). But there is another special provision contained in sub-section (3)
making it obligatory on the Court to cancel an order passed under sub-section (1),
under the circumstances mentioned in that sub-section, the Court has to cancel an
order passed under Section 25(1). These circumstances are:—

(i) The party in whose favour maintenance is awarded has remarried.

(ii) If that party is the wife, that she has not remained chaste, and
(iii) If such party is the husband, that he had sexual intercourse with any women
outside wedlock.
In the context of Section 25 the expression, “only decrees” means any of the decree
referred to in the earlier provision of the Act, i.e. nullity of marriage, or of divorce
passed under Sections 9 to 14 of the Act. When the main petition is dismissed and
no substantive relief is granted under Sections 9 to 14, there is no passing of a

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decree as contemplated by Section 25 and the jurisdiction to make an order for
maintenance under the section does not arise. The term “any decree” in the section,
however, cannot be construed to include “every decree”. In Bhau Saheb v.
Leelabai the issue involved was whether an order dismissing a wife’s petition
seeking declaration that marriage was valid can come under the return “any
decree”. The Court considered some hypothetical situation to indicate that the term
“any decree” cannot be expanded or streched too liberally to include any Court
order.

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Maintenance Under Muslim Law

Concept of maintenance

Under Muslim Law, a man is bound to maintain his wife irrespective of his and her
means and, his minor children, if he is not indigent. He is obliged to maintain his
other relatives from whom he can inherit, if he has means to do so, and they are
indigent.

The term maintenance ay relate to maintenance of wives, divorced wives, widows,

children, old and infirm parents concubines etc.

The Arabic equivalent of ‘maintenance’ is Nafaqa, which literally means, “What a

person spends over his family”. In its legal sense, maintenance signifies and
includes three things: (i) food; (ii)clothing, and (iii) lodging.1

Generally, maintenance includes food, clothing and lodging. Maintenance is the

name given to the weekly or monthly payments which may be ordered on a decree
of divorce, or nullity to be made for the maintenance and support of the wife.

(ii)Kharcha-i-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
allows him free access at all reasonable times. Kharch-i-pandan is the absolute
property of wives and she is at liberty to use it according to her sweet will. It is a
personnel allowance and it cannot be transferred even though payment secured on
immovable property.

Principle of maintenance – The principle upon which the Muslim law of

maintenance is based are briefly summarized as follows
1
Ameer Lai :Mohammedan Law, Vol II

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 i. Under Muslim law there are very few provisions for the maintenance of
the relatives. As general rule, no relation except a wife who is in ‘easy
circumstances’, has any claim for maintenance. But a Muslim is bound to
provide and is entitled to receive maintenance from his ascendants and
descendants except under certain circumstances.
ii. According to Muslim law only those persons are entitled to maintenance
who are indigent and necessitous and are unable to earn their livelihood.

Liability for maintenance – a person becomes liable for Nafaqa or maintenance on

account of a person:-

i. Being his wife

ii. Being his relative .i.e. children , grandchildren , aged parents and other
relatives;
iii. Being his servant.

Requisites for a claim- General Rule – Such person is entitled to maintenance (1)
that has no property of his own. (2) Who is related within prohibited degrees to the
persons, and (3) The person from whom he claims in ‘easy circumstances’.

The Meaning of easy circumstances – according to Muslim Lawyers, ‘easy

circumstances’ means such an amount of wealth as would render the processor
liable according to their religion to pay the Zakat (poor rate) and would prevent
him from being a proper receipient of alms out of the proceeds of Zakat.

Except when the claimant is wife and when the claimants are minor sons or
unmarried daughters.

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Persons entitled to maintenance- a Muslim is under an obligation to maintain the
following persons

(1) His descendants;

(2) His ascendants;
(3) His collaterals;
(4) And his wife.

 Descendants – Fathers liability- The father’s liability to maintain his

children are absolute and is not affected by his indigence so long as he can
earn. He is bound to maintain them even if they are in their mother’s
custody.

When the father has no means and is indigent the mother is liable to maintain the
children But, when both father and mother are unable to maintain their children the
liability of Grandparents paternal or maternal arises.

There is no obligation on father-in-law to maintain the widow of his son.

 Ascendants – Children’s Liability – as the parents are under an obligation to

maintain their children, so are children liable
 If there are; (i) no children, or (ii) the children are indigent, it is liability of
the grandchildren to provide maintenance to their grandparents.

Wife (a) during subsistence of marriage- according to the ordinary sequence of

natural events the wife comes first.2Her right of maintenance in this case is
absolute. Her right remains unprejudiced even if she has property or income of her
own and the husband is poor. A husbandd is bound to maintain his wife,

2
Fyzee: Outlines of mohammdan law 3rd edn p202

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irrespective, of being a muslim, non-muslim, poor or rich, young or old. Such
allowance are called kharch-i-pandan, guzara, mawa-khori. Etc. the husband is
bound to maintain if she fulfills the following conditions :

(1) She has attained puberty i.e. an age at which she can render to the husband
his conjugal rights.
(2) She places and offers to place herself in his power so as to allow free access
to herself at all lawful times and obeys all his lawful commands.

Duration of Maintenance- The wife’s right to maintenance ceases on the death of

her husband, for her right of inheritance supervenes. The widow is therefore, not
entitled to maintenance during the iddat of death.

But under Muslim law, a divorced wife is entitled to be maintained by her former
husband during the period of iddat.

Quaranic verses give clear cut picture that a divorced is entitled for maintenance
till the expiry of iddat period. In case she is pregnant this period extends upto the
delivery

Claim for maintenance under CrPC-

Under section 125 of the criminal procedure code 1973, the term , ‘wife’ include a
divorced wife or a wife who has obtained a divorce from her husband and has not
remarried. Under the muslim law, the husband is liable to maintain his divorced
wife till the period of iddat onlyand his liability to maintain the divorced wife
terminates after this period. But, under the Cr.P.C 1973, a divorced wife is entitled
to be maintained by her former husband beyond the period of iddat provided she
remains unmarried. But a divorced wife’s righ to maintainence is subject to section

27
127 (3) of the act which lays down that the order for the maintenance ein favor of a
divorced wife shall be cancelled , and such woman ahall not be entitled to
maintenance :

(1) Where she has remarried

(2) Where she has received the whole sum due to her under any customary or
personnel law, and
(3) Where she has voluntarily surrendered her rights to maintenance after her
divorce.

In Zohra Khatoon V Mohd Ibrahim3, the Supreme Court had held that the word
‘wife’ in section 125 (1) explanation (b) of Cr.P.C includes a woman who has
obtained a decree of dissolution of her marriage under any of the provisions of
dissolution of Muslim marriage act 1939.

Right of Muslim divorced woman to maintenance

In Shah Bano Begum v. Mohd. Ahmad Khan 4, the five judges bench of the SC
held that a Muslim husband having sufficient means must provide maintenance to
his divorced wife who is unable to maintain herself . whether the spouses are
Hindus, Muslims, Christians .etc. is wholly irrelevant to the application of section
125 of Cr.P.C . It was held that a Muslim Divorced woman who cannot maintain
herself is entitled to maintenance from her former husband till the time she gets
remarried.

The contention that deferred mahr (Dower) is a payment on the divorce of a wife
and hence such payment under the personnel law excludes the payment of any

3
AIR 1981 SC 1924
4
AIR 1985 SC 945

28
maintenance by the husband to the wife was also rejected. It was said that under
section 127 (3) (b) Cr.P.C Mahr is an amount which the wife is entitled to receive
from the husband in consideration of the marriage.5

Suit for maintenance - if the husband neglects or refuses to maintain his wife
without any lawful cause, the wife may sue him for maintenance either under the
Muslim law or under section 125 and S.126 of Cr.P.C, 19736.

Now the law relating maintenance of Muslim divorced woman is governed by the
Muslim woman (Protection of Rights on Divorce) Act, 1986, Section 125 Cr P C
has no application so far as Muslims are concerned.

The Statement of Objects and Reasons to the bill, which resulted in the Act,
reads as follows:

The decision of the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum
and Ors. has led to some controversy as to the obligation of the Muslim husband
to pay maintenance to the divorced wife. Opportunity has, therefore, been taken to
specify the rights which a Muslim divorced woman is entitled to at the time of
divorce and to protect her interests. The Bill accordingly provides for the following
among other things, namely:

(a) a Muslim divorced woman shall be entitled to a reasonable and fair provision
and maintenance within the period of iddat by her former husband and in case she
maintains the children born to her before or after her divorce, such reasonable
provision and maintenance would be extended to a period of two years from the
dates of birth of the children. She will also be entitled to mahr or dower and all the

5
Mst. Zohara Khatoon v. M. Ibrahim , AIR 1986 SC 587
6
Bai Tahirav. Ali hasan fasali , AIR 1979 SC 362; Fazlunbi v.K. Khadar Ali AIR 1980 SC 1730

29
properties given to her by her relatives, friends, husband and the husband's
relatives. If the above benefits are not given to her at the time of divorce, she is
entitled to apply to the Magistrate for an order directing her former husband to
provide for such maintenance, the payment of mahr or dower or the delivery of the
properties.

(b) Where a Muslim divorced woman is unable to maintain herself after the period
of iddat, the Magistrate is empowered to make an order for the payment of
maintenance by her relatives who would be entitled to inherit her property on her
death according to Muslim Law in the proportions in which they would inherit her
property. If any one of such relatives is unable to pay his or her share on the
ground of his or her not having the moans to pay, the Magistrate would direct the
other relatives who have sufficient means to pay the shares of these relatives also.
But where, a divorced woman has no relatives or such relatives or any one of them
has not enough means to pay the maintenance or the other relatives who have been
asked to pay the shares of the defaulting relatives also do not have the means to
pay the shares of the defaulting relatives the Magistrate would order the State
Wakf Board to pay the maintenance ordered by him or the shares of the relatives
who are unable to pay.

Shah Bano Begum Case history

The appellant, who is an advocate by profession, was married to the respondent in

1932. Three sons and two daughters were born of that marriage. In 1975 the
appellant drove the respondent out of the matrimonial home, in April 1978; the
respondent filed a petition against the appellant under Section 125 of the Code in
the court of the learned Judicial Magistrate (First Class), Indore asking for
maintenance at the rate of Rs. 500 per month. On November 6, 1978 the appellant

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divorced the respondent by an irrevocable talaq. His defense to the respondent's
petition for maintenance was that she had ceased to be his wife by reason of the
divorce granted by him, to provide that he was therefore under no obligation
maintenance for her, that he had already paid maintenance to her at the rate of Rs.
200 per month for about two years and that, he had deposited a sum of Rs. 3000 in
the court by way of dower during the period the of iddat. In August, 1979 the
learned Magistrate directed appellant to pay a princely sum of Rs. 25 per month to
the respondent by way of maintenance. It may be mentioned that the respondent
had alleged that the appellant earns a professional income of about Rs. 60,000 per
year. In July, 1980 in a revisional application filed by the respondent, the High
court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per
month. Indian Muslim women, especially those who shall be left destitute, are by
justice and by right, deserve financial support from their ex-husbands, even beyond
the iddat period. This was the position of the Supreme Court in the Shah Bano
case.
This position shall be justified by showing that this is in agreement with India’s
constitution and the criminal code with the Universal Declaration of Human Rights
and the Islam faith itself. The criminal code, specifically article 125-127, does
provide that husbands should give financially support to divorced, destitute
women. It should be noted that in India, the criminal code applies to everyone,
irrelevant of religion, because of the large number of ``minorities 'allows for
different personal laws to govern the Muslims, the Hindus, and the Christians,
which somehow gives certain autonomy among these groups of people. The
Supreme Court eventually decided in 1985 that the husband should give
financial support to Shah Bano, a decision which used a good number of the
Muslim population in India to protest. The Indian Muslims supported by
their leaders claimed that according to their personal laws , wives can only be

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supported by their husbands for up to three months , i .e , within the period of the
iddat.
Beyond this it is not anymore the responsibility of the husband. Instead,
responsibility is now vested on the female’s relatives or in cases of financial
incapacity of the female’s relatives, to the State Wakf Board. They claimed that
the decision of the Supreme Court is in transgression of their personal laws and
therefore not to be upheld. Muslim groups in turn proposed the Muslim Women
Bill (Protection of Rights on Divorce ) act 1986 which states that a divorced
woman shall be entitled to ``a reasonable and fair
provision and maintenance to be made and paid to her within the iddat period.

IN THE SUPREME COURT OF INDIA

Appellants: Danial Latiff and Anr.

Vs.
Respondent: Union of India (UOI)

Decided On: 21.09.2001

The constitutional and legal validity of the Act has been challenged in the
petitions. The Supreme Court in Mohd. Ahmed v. Shah Bano Begum and Ors.
(1985) 2 S.G.G. 556 after referring to various text books in Muslim Law held that
the divorced wife's right to maintenance ceased on expiration of Iddat period but
proceeded to observe that the general proposition reflected in these statements did
not deal with the special situation when the divorced wife was unable to maintain
herself. In such cases it was stated that it would be not only be incorrect but unjust
to extend the scope of the statements referred to in those text books in which a

32
divorced wife is unable to maintain herself and opined that that application of their
statements of law must be restricted to that class of cases in which there is no
possibility of vagrancy or destitution arising out of the indigence of the divorced
wife. The Court concluded that these Ayat leave no doubt that the Holy Quran
imposes an obligation on the Muslim husband to make provision for or to provide
maintenance to the divorced wife and that the contrary argument does less than
justice to the teaching of the Holy Quran. There was a big up-roar thereafter and
the Parliament enacted the Act with the intention of making the decision in Shah
Bano's case ineffective. Various arguments were raised for and against the validity
of the Act. It was contended, inter alia, that the Act is discriminatory as the more
advantageous provisions of the Code of Criminal Procedure in Sections 125 to 128
has been excluded, that liability created to provide maintenance beyond the Iddat
period is against the muslim personal law and against religious tents. Overruling
the contentions of the Petitioners.

Held

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 extending beyond the Iddat period must bemade by
the husband within the Iddat period in terms of Section 3(1)(a) of the Act Liability
of Muslim husband to hid divorced wife arising under Section 3(1)(a) of the Act to
pay maintenance is not confined to Iddat period.

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

33
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.

Muslim Women (Protection of Rights on Divorce) Act, 1986 (Central Act 25 of

1986)--By Exclusion of the application of Sections 125 to 128 of the Code of
Criminal Procedure, the Act is not violative of Articles 14, 15 and 21 of the
Constitution of India.

Held: A comparison of these provisions with Section 125 Code Of Criminal

Procedure will make it clear that requirements provided in Section 125 and the
purpose, object and scope thereof being to prevent vagrancy by compelling those
who can do so to support those who are unable to support themselves and who
have a normal and legitimate claim to support is satisfied.

Even under the Act, the parties agreed that the provisions of Section 125 Code of
Criminal Procedure would still be attracted and even otherwise, the Magistrate has
been conferred with the power to make appropriate provision for maintenance and,
therefore, what would be earlier granted by a Magistrate under Section 125 Code
of Criminal Procedure would not be granted under the very Act itself. This being
the position, the Act cannot be held to be unconstitutional

Muslim Women (Protection of Rights on Divorce) Act, 1986 (Central Act 25 of

1986)--Sections 3(1)(a) and 4--Muslim husband is liable to ' make reasonable and
fair provision for the future of the divorced wife which includes her maintenance
even beyond the Iddat period--Such provision has to be made within the period of
Iddat itself.

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While upholding the validity of the Act, the court concluded that:

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 extending beyond the iddat period must be
made by the husband within the iddat period in terms of Section 3(1)(a) of the
Act.

2. Liability of 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 offend Articles 14, 15 and 21 of the
Constitution of India.

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Bibliography

Tanzeem Fatima ; Islamic Law & Judiciary; Deep And Deep Publication.

Aquil Ahmad- I.A Khan; Mohammedan Law Central law Agency.

Internet

Majlis.com

www.legalyIndia.com

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