INTRODUCTION
Under Islamic law, the husband is bound to maintain his wife. The woman in Islam is exempted from any financial earning liability. She is entitled to maintenance under Islamic law.
RELEVANT PROVISIONS
Section 369 of Muhammadan Law
LITERAL MEANING
Literally, the term maintenance means food, clothing, and lodging. In the Arabic Language, the term NAFAQAH has been used for maintenance which means what a person has to spend over his family. Hence maintenance is the provision of the basic facility of life which is food, clothing, and lodging.
DEFINITION OF MAINTENANCE
Maintenance includes food raiment and lodging Maintenance allowance is the consideration for the control which the husband exercises over the movements of the wife It includes proper food accommodation and clothing.
REFERENCE IN QURAN
Regarding Maintenance, it has been provided in Surah Al Baqara Ayat, 241.
“For divorced women maintenance (should be provided) on a reasonable scale. This is a duty on righteous”
MAINTENANCE DURING MARRIAGE
Even if the wife of a husband is rich and she has sources to maintain herself, it is the duty of the husband to maintain his wife during the continuance of valid marriage. The maintenance is the night which has been conferred by Islam on every wife.
PRIMARY DUTY OF MAINTENANCE
It is the primary duty of the husband to maintain her wife. And even If she is residing in the house of her father and her husband does not require her to his own house and cohabit with her there.
MAINTENANCE AFTER THE DISSOLUTION OF MARRIAGE
As a husband is bound to maintain his wife during the subsistence of management, similarly duty may arise on the husband to maintain his wife after the dissolution of management. Duty of maintenance of the wife may be after the dissolution of the marriage either by the dissolution by divorce or dissolution by death.
DISSOLUTION BY DIVORCE
Under certain circumstances, the wife is entitled to maintenance after the dissolution of the marriage by divorce.
Communication of Divorce: If the divorce has been communicated to the wife, she is entitled to the maintenance.
Period of Maintenance After Divorce: A wife who is divorced from her husband can claim the maintenance from her husband till the expiry of iddat. A Muslim wife who is divorced is entitled to get maintenance from her husband during the period of iddat.
DIVORCE IN OTHER FORM
A wife is entitled to the maintenance during the period of iddat in case of the divorce in other forms. A husband may divorce her wife by way of illa, zihar, lian. If a marriage is dissolved by any of the above mentioned ways, even then the wife is entitled to the maintenance.
REMEDIES FOR WIFE
- Wife may file suit in the family court for maintenance.
- Wife can also file application in the office of chairman of union council
COMMENCEMENT OF HUSBAND’S DUTY TO MAINTAIN
The husband’s duty to maintain commences when the wife attains puberty and not before provided always that she is obedient and allows him fée access at all lawful time. If a wife deserts her husband she loses her right to maintenance.
FAILURE TO MAINTAIN
According to the Dissolution of Muslim Marriage Act, 1939, Section 2(ii), a wife is entitled to dissolution of mamage if he husband has failed or neglected to provide maintenance for a period of two years
HANFI LAW: According to neither inability nor refusal, nor neglect to maintain were sufficient grounds to maintenance.
MALKI LAW: According to inability or refusal or neglect to maintain was sufficient grounds to maintenance.
SHAFI LAW: According to inability or refusal or neglect to maintain was sufficient grounds to maintenance.
SPECIAL ALLOWANCES TO WIFE
In addition to the legal obligation to maintain there may be stipulations in the marriage contract which may render the husband liable to make a special allowances to the wife. Such allowances are called Kharcha Pandan, Guzara etc.
Example: A husband may have a lawful agreement with the first wife that on his marrying a second wife, the first wife that on his marrying a second wife, the first wife may reside wither her parents and obtain a regular allowance or similarly an agreement with a second wife to allow her to reside in her parent’s house and to pay her maintenance.
WHEN WIFE IS NOT ENTITLED FOR MAINTAINANCE
Disobedient:
When wife become disobedient. Then wife is not entitled to the maintenance
Incapable to perform matrimonial intercourse:
If she is incapable to perform matrimonial intercourse. Then wife is not entitled to the maintenance.
Wife refuse to live with husband:
If she refuses to live with her husband unjustifiably Then the wife is not entitled to maintenance.
Wife become prostitute:
If she becomes widow by the death of her husband. Then wife is not entitled to maintenance.
Wife became able to maintain
If she become able to maintain herself. Then wife is not entitled to the maintenance.
Irregular or void marriage:
In case of irregular or void marriage. Then wife is not entitled to the maintenance.
Taken away forcible
Where she has been taken away forcibly b. another person. Then wife is not entitled the mainterlance.
Fault of wife:
In case the fault is on her own part. Then wife is not entitled to the maintenance.
Imprisoned
If she has been imprisoned. Then wife is not entitled to the maintenance.
CASE WHERE WIFE IS NOT INFORMED ABOUT DIVORCE
If the divorce is not communicated to her. She is entitled for the maintenance until she is informed of the divorce.
ARREARS OF MAINTENANCE
The arrears of maintenance are recoverable as the arrears of land revenue.
FIXING THE AMOUNT OF MAINTENANCE
According to Hedaya and Fatwa–Alamgir, in fixing the amount of maintenance the rule is that the judge is exercising his discretion should consider the rank and the circumstances of both the spouses
DECREE OF MAINTENANCE UPTO ONE THOUSAND
Decree of the court of maintenance upto one thousand rupees is non appealable.
CONCLUSION
It is concluded that maintenance means expenses for food lodging health etc. If husband fails or neglects to maintain her wife she can seek legal remedy and past maintenance can also be claimed and Recoverable as arrears of land revenue. The widow is not entitled to maintenance during the iddat of death.
FAQs
Write a short note on Maintenance.
(2015-S)
Can a divorced wife claim right of maintenance after divorce process is complete, support your answer with arguments.
(2009-S)
