The Muslim husband’s obligation to maintain his wife arises in the following two circumstances:
1. On account of status arising out of a valid marriage, and
ADVERTISEMENTS:
2. On account of a pre-nuptial agreement entered into between the parties to the marriage or between the parents in case both the parties and one of them is a minor.
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1. Obligation Arising out of Status:
A Muslim husband is bound to maintain his wife even if she is rich, i.e., has means of her own, and notwithstanding that the husband is without any means. In the words of Schacht: ‘The maintenance of the wife comprises food, clothing and lodging, i.e., a separate house or at least a separate room which can be locked, for the well-to-do also a servant; she is not obliged to bear any part of the expenses of the matrimonial establishment”.
Under Muslim law wife’s right of maintenance is a debt against the husband and has priority over the right of all other persons to receive maintenance. In respect of priority of wife’s right of maintenance over the children, the Dull-ul-muhtar, gives the reason thus; the wife is ASL (root) the children are far (branch).
ADVERTISEMENTS:
A Muslim husband is bound to maintain his wife of a valid (sahih) marriage, and not the wife of a void or irregular marriage. Only in one case he is bound to maintain the wife of tin irregular marriage, viz., when the marriage is irregular for want of witnesses.
According to the Durr-ul-Muhtar, maintenance is due only to the wife who has been regularly married (i.e., when the marriage is Sahih), and if the marriage is found irregular, such as when he had married her while in idda for another husband, or if the marriage is void, such as when he had married his father’s wife, then the man may demand back any money that he might have given to her for her maintenance.
However, it is immaterial that the wife is rich or poor, Muslim or non-Muslim, young or old, enjoyed or un-enjoyed. The wife has also the right to pledge the credit of her husband for providing herself with maintenance.
Muslim wife is entitled to maintenance. Husband filed a revision against order of maintenance claiming that he has divorced his wife. The court held that this fact can be decided in main suit and not in revision petition.
ADVERTISEMENTS:
In Muslim law, the obligation to maintain a wife does not commence on marriage, if the wife has not attained puberty. It commences on the attainment of puberty by the wife. Imam Shafii took a different view and opined that the wife is entitled to maintenance immediately on marriage, even though she has not attained puberty. But, it seems that Imam Shafii changed his views later on. Today in India, in all the schools of Muslim law, a wife who has not attained puberty is not entitled to maintenance.
The husband’s obligation to maintain his wife exists only so long as the wife remains faithful to him and obeys all his reasonable orders. In the words of Tayabji: “she is entitled to maintenance from her husband only when she places, or offers to place, herself in his powers, so as to allow him free access to herself at all lawful times, and obey all his lawful commands”.
A wife does not lose her right to maintenance, if: (a) she refuses access to him on some lawful grounds, such as when the husband keeps a concubine, or is guilty of cruelty towards her (wife), or (b) marriage cannot be consummated owing to: (i) husband having not attained puberty, (ii) his absence from her without her prior permission, or (iii) his illness, or (iv) malformation.
A wife cannot release her right of maintenance except after it has become due.
Quantum of Maintenance:
There is a difference of opinion among Muslim authorities as to the amount of maintenance a wife is entitled to receive from her husband. Should the financial position of the husband alone be considered, or, should the financial position of the wife be also considered?
The Hedaya lays down that the quantum of maintenance should be determined on the basis of rank and financial position of both the parties. Imam Shafii was also of the view that the financial position of both the parties should be taken into consideration. It seems that under the Hanafi law, rank and the financial position of both the parties are to be considered, while under the Shafii law only that of the husband.
The Shias lay down that the amount of maintenance is to be determined on the basis of wife’s requirements of condiments, food, clothing, residence, service and implements of anointing, due regard being also had to the custom of her equals among her own people in the same city. The above requirements apply to each of the wives, where a person has more than one wife.
It appears that the wife (and when there are more wives, each wife) is also entitled to a separate apartment for herself, free from intrusion of any person other than her husband.
Under the Hanafi law, when maintenance becomes due, it is payable in monthly installment, unless the court otherwise directs. Among the Shias it is payable on daily basis.
The Muslim authorities give many details about maintenance to which wife is entitled against the husband, such as whether she is entitled to one servant or more, or what type of food, clothing and residence she is entitled to.
They also lay down, surprisingly enough, that she is not entitled to perfumes or to medical attendance at the cost of her husband. Tayabji rightly says that these details are of little use under the changed social conditions.
2. Maintenance under Ante-nuptial Agreements:
It has been seen in Chapter VI of this work that certain ante-nuptial and post-nuptial agreements entered into between parties to marriage are valid and enforceable under Muslim law.
Thus, a wife may validly stipulate that in case the husband ill-treats her, takes a second wife or keeps a concubine, she will be entitled to live separately and claim certain amount (as laid down in the agreement) of maintenance against the husband.
Similarly, an agreement with the first wife at the time of the second marriage of the husband stipulating that if she would not be able to live amicably with the second wife, she would be entitled to live separately from him, and claim maintenance from him, is valid and enforceable. An agreement with the second wife that she will live at her parents’ home and that the husband will pay her certain amount of maintenance is also valid.
An agreement under which the wife is allowed maintenance even after divorce is valid. In all these cases the wife is entitled to claim the amount of maintenance as stipulated in the agreement.
The wife is also entitled to the special allowance known by the name of Kharch-i-pandan, guzara or mewa-khori if stipulated in an ante-nuptial agreement between the parties to the marriage, or between their parents, in cases where the parties are minors.
In Ali Akbar v. Fatima, under an anti-nuptial agreement it was agreed that, in addition to the amount of maintenance, the husband would also pay to the wife a sum of Rs. 25 monthly even when the wife lived separately from the husband. The agreement was held enforceable.