The right of the following five classes of persons to claim maintenance will be considered in:
1. Infant children and unmarried daughters
2. Adult children
ADVERTISEMENTS:
3. Grand-parents
4. Wife.
1. Infant Children and Unmarried Daughters:
The father is bound to maintain his sons until they attain the age of puberty, and his daughters until they are married.
An unmarried daughter has no absolute right to separate maintenance. She cannot claim it unless and until she makes out necessary grounds for it. (Bayabai v. Ismail, 43 Bom. L.R. 823, below.)
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ADVERTISEMENTS:
Bayabai v. Ismail:
In this case, a Muslim daughter lived with her mother, who was divorced by her father in 1940. The father married a second wife, and some time thereafter, became a lunatic. In August 1940, the daughter, who had till then been maintained by her mother and was unmarried, attained majority, and filed a suit against her father for maintenance and for arrears of maintenance prior to August 1940.
The Court held that, under the above circumstances, the daughter had made out a good case for separate maintenance. Howerver, as regards the arrears of maintenance, it was held that she was not entitled to it, as neither the daughter had ever claimed it. nor was it ever denied to her.
ADVERTISEMENTS:
If the father is poor and infirm or weak, the liability to maintain the children falls upon the mother. If the mother is financially unable to do so, it devolves upon the father’s father, if he is in sound financial circumstances.
Statutory Obligation of Father to Maintain his Children:
If a father has sufficient means he may be compelled to maintain his legitimate or illegitimate children (who are unable to maintain themselves) under the Code of Criminal Procedure.
2. Adult Children:
Adult children are not entitled to maintenance, unless they are infirm or weak.
Illegitimate children have no right of maintenance under Muhammadan law.
Although Muhammadan law imposes no duty on the father to maintain his illegitimate children, an agreement to maintain an illegitimate child is not void. Children in good circumstances are bound to maintain their poor parents.
Problem:
B, а Hanafi Muslim, has a son A, who is 30 years old, and lives separate from his father 6. After a lapse of some years, В has become aged, infirm and blind in one eye. As a result, he has fallen in poverty and is unable to maintain himself. A, on the other hand, has done well and prospered, and refuses to maintain В. В wants to know whether he can successfully file a suit against A for maintenance, and consults you advise.
Ans:
B will succeed. Children in good circumstances are bound to maintain their poor parents.
3. Grand-Parents:
If the grand-parents are poor, they are to be maintained by their grand-children.
4. Wife:
The husband is bound to maintain his wife, as long as she is faithful to him (unless, of course, she is too young for matrimonial intercourse) and obeys all his reasonable orders.
However, a husband is not bound to maintain a wife, —
(i) If she refuses herself to him, or
(ii) If she is disobedient.
Unless the refusal or disobedience is justified by non-payment of prompt dower.
Even after divorce, the wife is entitled to maintenance during iddat. It may be noted that a declaration of divorce is operative from the date of filing the written statement in proceedings for maintenance. See Enamal Haque v. Bibi Taimunissa, (1967) A.R 344.
During widowhood, the wife is not entitled to maintenance, even during iddat. The reason for this is that she is entitled to inheritance, and maintenance is in lieu of inheritance.
The right of the wife to maintenance exists in spite of the fact that she can maintain herself out of her own property. A divorced wife is entitled to maintenance during the period of iddat. However, a widow has no right of maintenance during the iddat consequent upon her husband’s death.
Maintenance under the Criminal Procedure Code:
Under S. 125 of the Criminal Procedure Code, 1973, the Court can order a husband to maintain his wife who is unable to maintain herself. For this purpose, the term “wife” includes a woman who is divorced from her husband provided she has not re-married.
A Muhammadan wife may also apply for an order of maintenance under the Criminal Procedure Code, in which case the court may order the husband to pay a monthly maintenance allowance to her. However, if the wife exercises her right under Muhammadan Law and refuses to live with her husband on the ground of non-payment of prompt dower, she cannot enforce her right to maintenance under the Criminal Procedure Code (Muhammad Azizullah v. Abdul Halim (1936) 154 I.C. 561).
The question whether a divorced Muslim “wife” is entitled to maintenance attracted all-India interest in the much talked about Shah Bano’s Case. However, even before this five-member Bench decision of the Supreme Court, this question was, in fact, well- settled.
Thus, in Bai Tahira v. Ali Hussain (1979 2 S.C.C. 316) and in Fuzlunbi v. Khader Vali (1980) 4 S.C.C. 175), the Supreme Court had held that a divorced Muslim “wife” was entitled to apply for maintenance under the Criminal Procedure Code.
This view was reiterated by the Supreme Court in Shah Bano’s Case (Mohd. Ahmed Khan v. Shah Bano Begum, 1985 2 S.C.C. 556), where ther Court observed as follows:
“These provisions (i.e., provisions of the Criminal Procedure Code) are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions.”
The real controversy, however, in Shah Bano’s Case was the interpretation of the Muslim Personal Law by the Supreme Court in the matter of payment of mahr. Under S. 127 of the Criminal Procedure Code, if the Court is satisfied that the wife has received from the husband, any amount, which under any customary or personal law, was payable on divorce, a change can be made in the maintenance which the “wife” is entitled to claim under S. 125.
In Bai Tahira’s case (referred to above), the Supreme Court held that if the payment made by the husband by way of mahr can fairly be taken to be a capitalised substitute for the periodic payments under S. 125 of the Code, the husband may be relieved under S. 127.
The much criticised decision in Shah Bano’s Case (above) broke new ground when it interpreted the concept of mahr under Muslim Personal Law, as not being a sum payable on divorce. It was, therefore, held that mahr does not fall within the ambit of S. 127 of the Code.
(Shah Bano’s case is discussed at length in Appendix II, at the end of the book, to which a reference may be made.)
Arrears of Maintenance:
Under Muslim law, arrears of maintenance cannot be claimed by any relative other than a wife. (Saiyad Jaffar El-Edroos v. Saiyad Muhammad El-Edroos, 38 B.L.R. 277)
Unless there is failure on the part of the defendant to provide maintenance, a decree for arrears is not justified. The wife may either sue her husband for maintenance or proceed against him under the Criminal Procedure Code.
Agreement for Future Maintenance:
An ante-nuptial agreement between a Muslim and his prospective wif6 entered into with the object of securing the wife against ill-treatment and of ensuring her suitable maintenance in the event of ill-treatment is not void as being against public policy.
Nor is an agreement between a Muslim and his second wife, allowing her to live in her parent’s house and paying her maintenance, against public policy. (Nizamul Haque v. Begum Noor Jehan, A.I.R. 1966 Cal. 465)