This article has been written by Harshita Varshney from Aligarh Muslim University. This article deals with the provisions of maintenance of children under the Muslim Law.
Children are a beautiful gift from God. They are not merely an addition to a family but they are the future of a family and hold a huge responsibility to carry on the generations. In the initial stages of their life, they are not capable of taking care of themselves. So, the parents must take care of them till they become independent. In this article, the provisions related to the maintenance of children under Muslim Law are discussed.
As the Muslim Law is completely uncodified, there is no specific provision that deals with the maintenance of children. Under Muslim Law, the term maintenance is denoted by the term ‘Nafaqah’. Under Islam, it is the moral duty of a person to take care of his wife. Along with his wife, he is also duty-bound to take care of his children until they become independent. He also has a moral duty to take care of his brother, sister, parents and other relatives, if they are in need. The conditions of a person providing such maintenance should also be considered. If a person is not financially sound, then no question of proving maintenance can arise.
The concept of maintenance
In Arabic, the word “maintenance” is equal to the word “Nafaqah”, which literally means ‘an amount spent by a person over his family’. According to many Muslim legal scholars, maintenance include all those things which are essential to lead a life such as food, clothing and residence. They conclude this by relying on the concept of Kinship. A person is duty-bound to provide the basic necessities of life to his family members. Islam prescribes the three grounds based on which one can claim maintenance from a person. And these grounds are marriage, children and ownership of slaves.
Under the Muslim Law, one is entitled to claim ‘nafaqah’ or ‘maintenance’ if he or she is a person’s:
- Relatives such as parents, grandparents and others
The husband is under the obligation to provide maintenance to his wife despite the fact whether she is capable of taking care of herself or not. But he is not duty-bound to provide maintenance to his children and parents if they are financially sound to take care of themselves.
Quantum of maintenance
The quantum of maintenance for the children has not been defined by any statute. The quantum of maintenance is decided by the court according to the financial conditions of the father and the needs of the children. To determine the quantum of maintenance, the Hanafi Law says that the condition of both the husband and wife should be considered. But under the Shafei Law, only the position of husband should be considered.
However, Section 125 of the Criminal Procedure Code, 1973 prescribes for a reasonable and fair amount for the maintenance of the children.
Maintenance of children
According to me, children take birth on earth in the form of blessing from God. In their initial years, they are not in a position to maintain themselves. They are the future generation of a family. So, the parents have to invest in them for a fruitful result. Apart from being a legal duty, it is also the moral duty of parents to provide aid to their children until they hit adolescence. Muslim law imposes a duty on the parents to take care of their children and provide them with basic necessities to sustain their life. Their primary duty is to provide financial help to their children.
Father’s duty to maintain his children
Under Muslim law, the father’s liability is fixed to maintain his children. A father is duty-bound to provide maintenance to the following persons:
- His son until he hits adolescence;
- His unmarried daughter;
- His married daughter, if her husband is not in a position to maintain her;
- His major son, if he is disabled, lunatic or not in a position to maintain himself.
As per Muslim law, a father has no liability to take care of his children if they deny living with him without any logical cause. A daughter doesn’t have an unlimited right to claim maintenance from her father, she can only claim it under special circumstances.
Mother’s duty to maintain her children
The position of maintenance of children by a mother is different under different schools of Muslim law. According to Hanafi Law, the liability to maintain children gets transferred from father to mother, if the father is not financially sound to take care of his children. But under Shefai Law, the liability to maintain children gets transferred from father to grandfather, if the father is not in a position to take care of his children, even though the mother is financially sound and capable of taking care of her children.
When children are in the custody of their mother
If a child is residing with his mother, then the mother can claim maintenance from the father till her son hits adolescence and her daughter gets married to someone legally. The same has been held in the case of Akhtari Begum v. Abdul Rashid, where a four-year-old child was living with his mother. The court made his father liable to pay for his maintenance.
Divorce of parents
According to Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim woman can claim a reasonable maintenance amount from her husband, if she maintains children born to her, before or after divorce, for two years from the date of birth of such children. It should be noted that this right of a woman has no relation with the independent right of the children. It does not matter whether the children were born before or after the divorce, the wife can compel her former husband to provide maintenance to the children. This right of a divorced wife (mother) is separate from the right of children to claim maintenance from their father.
The same was held in the case of Hazi Farzand Ali v. Noorjahan (1987). The facts of the case are: Noorjahan filed an application under Section 125 of CrPC for claiming maintenance for herself and her three children. The learned magistrate awarded Rs 300 per month as the maintenance. The husband moved to the court against this order and contended that the right of children to claim for maintenance is subordinate to the mother’s right and she has no right to claim under Section 125 of the Code. He also referred to Section 7 of the 1986 Act, which says that the magistrate shall dispose of matters filed under Section 125 of the Code, by following the provisions of the 1986 Act. The court denied and held that the right of children and their mother to claim maintenance under Section 125 of the Code are independent of each other’s right.
Section 3(3) of the 1986 Act gives power to the Magistrate for the enforcement of such rights. According to this section, the magistrate may make an order, if the husband fails to pay the amount to his divorced wife for the maintenance of children. The magistrate may direct the husband to pay the fair and reasonable amount to his divorced wife according to her needs or the life which she has enjoyed during her married life.
Status of Illegitimate Children
Muslim law considers the maintenance of a legitimate child only. It is silent on the maintenance of an illegitimate child as there is no such provision on this issue. However, it does not impose any duty on the parents to take care of the illegitimate child. The two schools of Muslim law i.e. the Hanafi and Shia school of Muslim Law have a different opinion on this issue.
Under the Hanafi Law, an illegitimate child can claim maintenance from his mother, but not from his father. However, under the Ithna Asharia school of Shia Law, there is no provision under which an illegitimate child can claim maintenance either from the father or from the mother. Though the personal laws have no provisions to safeguard the rights of an illegitimate child, Section 125 of the Criminal Procedure Act, 1973 protects the rights of the illegitimate children. Section 125(1)(b) imposes a duty on the father, if he is having sufficient means to maintain his minor illegitimate child, no matter if he or she is married or not, as they are unable to maintain themselves. Section 125 (1)(c) imposes a duty on the father to maintain his major illegitimate child if they are unable to maintain themselves due to any physical or mental injury. Under this section, a magistrate of the first class can enforce such rights by passing an order against the father to pay a monthly allowance, not more than five hundred rupees, for the maintenance of such children.
The issue of maintenance of an illegitimate child was discussed in the case of Sukha v. Ninni (1965). The facts of the case are: a girl child named Jamila was born to Ninni. Ninni moved to court under section 488 (now, section 125) of CrPC to claim maintenance for Jamila from Sukha. The Sub-divisional Magistrate ordered Sukha to pay a sum of Rs. 10 per month to Ninni for Jamila’s maintenance. Sukha filed an application against this order before the Sessions Judge. But later he withdrew his application as he made an agreement with Ninni that he would pay a sum of Rs. 6 per month to her instead of Rs. 10 for the maintenance of their illegitimate child, Jamila until she got married. Later, he didn’t pay the amount as per the agreement. Ninni filed a suit against him in the court. He contended that under Muslim Law, a father is not bound to provide maintenance to his illegitimate child. Therefore, an order passed by the sub-divisional magistrate was against the provisions of Muslim Law. He also contended that according to Section 23 of the Indian Contract Act 1872, the agreement is void as the consideration was against the provisions of the Muslim Law.
The court held that no doubt Mohammedan Law does not recognize the maintenance of an illegitimate child but Section 488 of CrPC protects the rights of an illegitimate child. The court also held that an agreement made for the maintenance of an illegitimate child would not defeat any provisions of Muslim Law. Hence, the agreement was not void.
When does the right of maintenance comes to an end?
According to the provisions of Muslim Law, the right of children for their maintenance ceases when they hit adolescence. After this, they cannot claim any money for their maintenance except under some circumstances. The children can claim maintenance after adolescence if they are suffering from any physical or mental illness or they are not in a position to maintain themselves. Under Muslim Law, a person becomes major as soon as he hits adolescence but as per the Indian Majority Act, 1875, a person is said to be a major when eighteen years of age is attained.
Important case law
Noor Saba Khatoon v. Mohd. Quasim (1997)
The facts of the case are: The husband allegedly threw his wife and children out from his house due to some disputes and also refused to pay maintenance to them. The wife was unable to maintain herself and her children. Therefore, she filed an application under Section 125 of CrPC before the judicial magistrate. She contended that her husband has proper means to earn a livelihood from his business. So, she claimed Rs 400 per month for herself and Rs 300 per month for each of her three children. The Trial Court found that the husband has failed to provide maintenance to his wife and children despite having proper means. The court ordered him to pay Rs. 200 per month for his wife and Rs 150 per month to his children till they attain the age of majority. After this, the husband divorced the wife and filed an application before the trial court to modify its previous order by keeping in view the provisions of the 1986 Act. The court held that the rights of children to get maintenance under Sec. 125 of CrPC is not affected by any provision of the 1986 Act.
However, according to it, the wife is entitled to get maintenance only for three months i.e. the Iddat period. He again filed a revisional petition in which the High Court held that the rights of divorced women to get maintenance under Section 3(1) of the 1986 Act was restricted to the Iddat period. And the motive of the 1986 Act was to protect the rights of divorced Muslim women, not their children.
The Supreme Court negated this and held that a divorced Muslim woman has a right to claim maintenance from his former husband till their children attain majority. The Court held that the duty of a father to provide maintenance to his children when they are living with their mother is fixed under both Muslim law and Sec. 125 of CrPC. The right was not affected by the divorcee’s (wife) right to claim maintenance under Section 3(1) of the 1986 Act. Both are independent of each other.
The laws on maintenance under Muslim Law and other personal laws are different. Under Muslim Law, the prime duty of man is to take care of his wife. However, his duty is further extended to his children and other blood relations. He is duty-bound to take care of his minor son. He is also bound to take care of his major son only under special circumstances. In the case of a daughter, he has to provide maintenance to her until she gets married.
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