This article elucidates the birth and evolution of maintenance under Muslim law. Every law has its various features and a different set of rules or as you can say preachings. These laws are written in holy scriptures or books.
Muslim Law is also known as Islamic law. This law is considered the divine or Supreme law for Muslims. They believe and consider only one lord, Allah. His teachings and scriptures are mentioned in the holy book of the Quran. This traditional law and the legal system are named by the Muslims as Sharia meaning “as the way”. The Sharia comprises the legal system as well as the principles of Prophet Muhammad. This law has revolutionized and given birth to the concept of maintenance under the law assuring basic amenities and facilities for the needy.
Sources of Muslim law:
The Muslim law has its primary source in the holy book known as Quran. It is derived from the teachings of God given to Prophet Mohammed which were communicated to him by Gabriel. The teachings are for the benefit of humans and mankind. It consists of 114 chapters known as suras in the Arabic language.
Ijma is a legal decision when no law is formed to solve a problem. The people making these decisions are known as Mujtahids, who are jurists in simple legal language. It cannot contradict the Quran and the Sunnat.
The traditions of The Prophet Muhammad are known as The Sunnat. The acts, regulations, precedents, procedures, or ways of action form the Sunnat.
There are other primary and secondary sources of law in Muslim Law. They promote and preach the teachings of Allah. Various customs and traditions are followed by these people based on the Quran. The teachings have led to the development of maintenance under the law.
Concept of maintenance under Muslim law:
There are various sections of society that consists of people who are deprived or incapable of basic maintenance for themselves. This concept was first considered after the judgment in the case of Ahmed Khan V. Shah Bano Begum. It highlighted the struggle of women for maintenance after talaq or divorce. Shah Bano Begum was deprived of basic maintenance after her talaq hence she approached the court under sec 125 of CrPc. Ahmed Khan pleaded that under the Muslim Law a person is only liable to pay maintenance till the Iddat period. The court overruled his plea and sentenced that Muslims are not excluded from exercising secular laws.
However, the Muslims considered this as an encroachment on the Shariat Law and persistently disregarded this judgment. Hence provisions were put in place by the Congress government, and they legislated the Muslim Women Act 1968 to gain the support of Muslim voters against the BJP but also to ensure the protection of the Muslim minority. Even though the introduction of the law was politically oriented it was a boon for many individuals, especially women in the Muslim community.
The main aim of maintenance includes providing basic amenities required for survival and including shelter, food, clothes, education, etc. The persons eligible for this maintenance are women, children irrespective of gender, parents, grandparents, or any relatives.
Maintenance of women/wives:
The Muslim law defines maintenance as Nafqah. The man in the family is liable to pay or provide Nafqah to the wife irrespective of whether she can maintain herself or not. Hence earning and non-earning are considered eligible for maintenance under Muslim law. The Sharia Act states that women are liable for this maintenance only until the Iddat period.
However, many a time this is not sufficient for women. The Muslim Women Act hence states that women are liable for maintenance not only until the Iddat period but beyond that, which will extend until she re-marries in case of divorce. However, if a divorcee does not re-marry, she will be eligible to procure this maintenance from her relatives who are entitled to her share in the property after her death under Sec 4. This provision becomes applicable after the end of the Iddat period.
Maintenance of children:
The father is responsible to provide maintenance only to his legitimate child. He is not liable to provide maintenance to his illegitimate child. The father must provide this maintenance only until the son’s puberty or as you can say maturity. However, in the case of the daughter, this maintenance needs to be carried out until she is married off and has her new home at her husband’s.
Amount of Maintenance:
No specific amount is mentioned, or a provision drawn to specify the amount of maintenance provided to the wife or children by the husband or father respectively. However, a reasonable amount should be paid by him to ensure their maintenance.
Restrictions on Maintenance:
There are certain restrictions on the provision of maintenance provided to the wife and children. These restrictions state that the woman is not eligible for maintenance if she has not attained puberty, abandoned her family and husband for reasonable reasons, elopes with another man, or disobeys her husband’s reasonable requests. She has prohibited maintenance if she is living in adultery, refuses to live with family or husband beyond or without sufficient reason, or if she is living separately with mutual consent. In the case of children, they will not be eligible for maintenance if they are the illegitimate child of their father.
Various religions have their law and teachings. Every law has its unique requirement or set of rules. Muslim law is one of these laws providing teachings and legal regulations through the teachings of Prophet Muhammad. This ranges from the Quran, Sunnat, Ijma, the Sharia Act, and many more components of the law. The concept of talaq has many times in the past deprived women of their right to basic amenities due to the Iddat period.
The introduction of the Muslim Women’s Act has ensured the protection and well-being of these women even after the Iddat period in many ways.
However, in many parts, there is still a controversy or lack in providing justice to these women over their rights to basic amenities. In the more traditional families or regions, the act has not been accepted with open arms and is provided with no or unreasonable amount of maintenance only until the iddat period. Hence not only the law but also the education of such individuals regarding women’s rights and their requirements is necessary. The law only ensures positive rates up to 10-20% but still, there is a lack in many areas of development and acceptance of the law.
The acceptance of the law will be useful only when everyone is made to understand the basic purpose of the law. Then only a better world will be created for everyone in conformity with both the traditional as well as modern laws.
- Mahima Mishra, Muslim Law: Origin, Sources and Who is A Muslim? https://www.legalserviceindia.com/legal/article-2828-muslim-law-origin-sources-and-who-is-a-muslim-.html
- Team@Law Times Journal, Maintenance in Muslim Law, (2019), https://lawtimesjournal.in/maintenance-in-muslim-law/
- Mharismir, Maintenance of Divorced Women Under Muslim Personal Law, https://www.legalserviceindia.com/legal/article-1131-maintenance-of-divorced-women-under-muslim-personal-law.html