About this topic
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Maintenance under Muslim law deals with who must support whom, the legal routes for enforcing that duty, and how a Muslim wife's right changes during the marriage, during iddat and after iddat. The topic runs through the Shah Bano judgment, the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Danial Latifi ruling and the 2024 decision in Mohd. Abdul Samad v. State of Telangana, and ends with the maintenance of children, parents and other relatives.
Three people are waiting outside a Family Court in Lucknow.
Zoya is a college lecturer with a good salary. Her husband has stopped giving money for the home. He says, "You earn more than I do, so why should I pay?"
Neha, aged 58, has been divorced after 30 years of marriage. Her husband has offered her mahr and three months of maintenance, and says, "That is all the law asks of me."
Hansa, a girl of six, lives with her mother after her parents separated. Her father refuses to pay, saying, "She does not live with me, so she is not my responsibility."
Who among them has a valid claim? The answers are worked out at the end of these notes.
Remember the whole topic through one formula: one duty, two tracks, three stages.
The framework: one duty, two tracks, three stages
One duty: nafaqa
The one duty is the duty to support a person who depends on you. In Muslim law this support is called nafaqa.
- Classical meaning: classical jurists describe nafaqa as food, clothing and lodging.
- Modern meaning: courts today read it more widely, as whatever is reasonably needed for a life of dignity, such as medical care, and, for children, education.
Nafaqa is owed to:
- the wife;
- children;
- parents and grandparents; and
- certain other poor relatives.
Between spouses, the duty runs only one way. A Muslim husband has no right under his personal law to claim maintenance from his wife.
Two tracks
The two tracks are the two legal routes for enforcing the duty of maintenance:
- Muslim personal law. Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 expressly names maintenance among the matters it governs.
- The secular track. Section 144 of the B.N.S.S., 2023, which applies to persons of every religion.
Beside these two tracks runs a special statute, the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Three stages
- During the marriage.
- At divorce and during iddat.
- After iddat.
Stage 1: Maintenance during marriage under personal law
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The rule stated by Mulla
Mulla, in his Principles of Mahomedan Law, states the rule this way: the husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him, or is otherwise disobedient, unless her refusal is justified.
The wife's own income is irrelevant
The rule says nothing about the wife's own income. Her right comes from her status as a wife, not from her poverty. It is like a salary attached to a post: it is paid because of the post, not because the holder is poor.
So a wife who owns property or earns well can still claim maintenance under personal law.
When is the wife's refusal justified?
The clearest case is unpaid prompt dower, that is, the part of the mahr payable on demand.
Renu's nikahnama fixes Rs. 1 lakh as prompt dower. She demands it, her husband does not pay, and she stays at her parents' home. Renu is not disobedient. She is using a right the law gives her, so her maintenance continues.
Textbooks add other cases where the fault lies with the husband:
- his cruelty;
- his keeping a concubine;
- a marriage left unconsummated because of something on his side, such as his illness, a physical defect, his absence without her permission, or his own minority.
The test is simple: ask who is at fault. If it is the husband, the wife keeps her maintenance.
Strengthening the wife's position by agreement
Because a Muslim marriage is a contract, the parties may add terms to protect the wife, provided the terms are not against Muslim law or public policy. Mulla gives these examples of valid agreements:
- an agreement before marriage to protect the wife against ill-treatment and to secure her suitable maintenance if she is ill-treated; and
- a husband's agreement that his wife may live in her parents' house while he pays her maintenance.
Courts, however, read such terms by their exact words.
Kharcha-e-pandan
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Agreements may also create a special allowance called kharcha-e-pandan, which literally means "betel box expenses".
Mulla describes kharcha-e-pandan as a personal allowance to the wife, customary among Muslim families of rank. It is meant for her own needs, not for running the household.
Where the bride and groom are minors, the agreement is usually made between their parents. The wife, as the person meant to benefit, can enforce it herself.
Ali Akbar v. Fatima (1929), Lahore High Court: a monthly kharcha-e-pandan of Rs. 25 had been stipulated. Held: the wife was entitled to it. Mulla cites this case, along with a Privy Council decision of 1910, for the rule that the wife can enforce such a promise. Principle: however small the sum, a promise securing the wife's personal needs is her own right.
Consequence of not maintaining the wife: dissolution of marriage
A husband who does not maintain his wife at all risks the marriage itself. Section 2 of the Dissolution of Muslim Marriages Act, 1939 allows a Muslim wife a decree dissolving her marriage on the ground, in clause (ii):
"that the husband has neglected or has failed to provide for her maintenance for a period of two years".
Stage 1 on the secular track: Section 144 of the B.N.S.S.
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Section 144 of the B.N.S.S. gives a quick, summary remedy before a Magistrate, whatever the religion of the parties.
Section 144(1)
"If any person having sufficient means neglects or refuses to maintain—
(a) his wife, unable to maintain herself; or
(b) his legitimate or illegitimate child, whether married or not, unable to maintain itself; or
(c) his legitimate or illegitimate child, not being a married daughter, who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself; or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct."
Essentials
- The person against whom the claim is made must have sufficient means.
- He must have neglected or refused to maintain the claimant.
- The claimant must be unable to maintain herself or himself.
Who may claim
| Clause | Claimant | Condition |
|---|---|---|
| (a) | Wife | Unable to maintain herself |
| (b) | Legitimate or illegitimate child, whether married or not | Unable to maintain itself |
| (c) | Legitimate or illegitimate child who has attained majority, not being a married daughter | Unable to maintain itself by reason of any physical or mental abnormality or injury |
| (d) | Father or mother | Unable to maintain himself or herself |
The married daughter and the first proviso
A married daughter is left out of clause (c) because her husband now carries the primary duty to maintain her. Still, the first proviso says:
"Provided that the Magistrate may order the father of a female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such female child, if married, is not possessed of sufficient means."
Interim maintenance: the second and third provisos
A wife without money cannot wait months for a final order. The second proviso therefore allows interim maintenance, meaning temporary maintenance while the case is pending:
"Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct."
The third proviso adds a time limit:
"Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person."
Interim maintenance and the expenses of the proceeding can be ordered while the case is pending, and the interim application should, as far as possible, be decided within 60 days from the service of notice.
The Explanation: a divorced woman is a "wife"
"For the purposes of this Chapter, 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."
This Explanation is the centre of the Shah Bano controversy: it brings a divorced woman who has not remarried within the meaning of "wife".
The husband's offer to maintain if she returns
A husband often says, "I will maintain her, if she comes back to me." The second proviso to Section 144(3) answers him:
"if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing."
Its Explanation adds:
"If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him."
When the wife is not entitled: Section 144(4) and (5)
"No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."
So a wife is disentitled if:
- she is living in adultery;
- she refuses to live with her husband without any sufficient reason; or
- they are living separately by mutual consent.
Under Section 144(5), proof of any of these facts requires the Magistrate to cancel an existing order.
Personal law and Section 144 compared
| Point | Personal law | Section 144 of the B.N.S.S. |
|---|---|---|
| Applies to | Muslims, through Section 2 of the Shariat Application Act, 1937 | Every religion; a secular, quick, summary remedy before a Magistrate |
| Basis of the wife's right | Her status as a wife | Her inability to maintain herself |
| Wife's own wealth or income | Does not matter | She must be unable to maintain herself |
| Analogy | A salary attached to a post | A safety net under a tightrope: it catches only those who would otherwise fall |
Examiners frequently ask this distinction: a wealthy wife may win under personal law but fail under Section 144, because Section 144 requires that she be unable to maintain herself.
Stage 2: Maintenance at divorce and during iddat
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Meaning of iddat
Iddat is the waiting period a woman observes before she may remarry. Section 2(b) of the 1986 Act defines it, for a divorced woman, as:
"three menstrual courses after the date of divorce, if she is subject to menstruation; three lunar months after her divorce, if she is not subject to menstruation; and if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy, whichever is earlier".
| Situation of the divorced woman | Period of iddat |
|---|---|
| Subject to menstruation | Three menstrual courses after the date of divorce |
| Not subject to menstruation | Three lunar months after divorce |
| Enceinte (pregnant) at the time of divorce | From divorce until delivery of the child or termination of the pregnancy, whichever is earlier |
The classical personal law rule
Under classical personal law, as Mulla states it:
- a divorced wife is entitled to maintenance during iddat;
- if the divorce is not communicated to her until after iddat expires, she gets maintenance until she learns of it;
- a widow gets no maintenance during the iddat after her husband's death.
The textbooks stopped there: once iddat ended, so did the husband's duty.
From the Code of 1898 to the B.N.S.S.
Under the old Code of Criminal Procedure, 1898, a wife's right before a Magistrate depended on her remaining a wife, so a husband could defeat an order simply by divorcing her.
The Code of Criminal Procedure, 1973 removed this hardship by including a divorced woman in the definition of "wife" (the Explanation now found in Section 144). But it also added a balancing rule, now in Section 146(3)(b) of the B.N.S.S. The Magistrate must cancel an order in favour of a divorced woman if:
"the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce".
The same sub-section also requires cancellation if:
- she remarries; or
- having obtained the divorce herself, she voluntarily surrendered her rights to maintenance after the divorce.
The question this raised
Is mahr a "sum payable on divorce"? If it is, a husband who pays the mahr is free of the order. That question, together with the larger one of whether a divorced Muslim woman can claim maintenance beyond iddat at all, reached a Constitution Bench of the Supreme Court.
The Shah Bano case (1985)
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Mohd. Ahmed Khan v. Shah Bano Begum was decided by five Judges on 23 April 1985, with Chief Justice Y.V. Chandrachud writing the judgment. It arose under the Code of Criminal Procedure, 1973, so the provisions involved were Section 125 and Section 127(3)(b).
Facts
- Mohd. Ahmed Khan, an advocate, married Shah Bano in 1932. They had three sons and two daughters.
- In 1975 he drove her out of the matrimonial home.
- In April 1978 she applied to the Judicial Magistrate at Indore, claiming Rs. 500 a month.
- On 6 November 1978 he divorced her by irrevocable talaq.
- His defence: she was no longer his wife; he had paid her maintenance at Rs. 200 a month for about two years; and he had deposited Rs. 3,000 in court as mahr during iddat.
- The Magistrate awarded only Rs. 25 a month. The High Court of Madhya Pradesh raised it to Rs. 179.20, and the husband appealed.
Why the matter went to five Judges
A Bench of two Judges had doubted two earlier three-Judge rulings, Bai Tahira and Fuzlunbi, which allowed divorced Muslim wives to claim under Section 125. The husband, supported by interveners including the All India Muslim Personal Law Board, argued that his liability ended with iddat, and that mahr was the sum payable on divorce.
Issues
- Does Section 125 apply to a divorced Muslim woman?
- Does it conflict with Muslim personal law?
- Is mahr a sum payable on divorce?
Decision
- The appeal was dismissed.
- The definition of "wife" contains no words excluding Muslim women, so a divorced Muslim woman who has not remarried is a wife for this purpose.
- The Court called Section 125 "truly secular in character": a quick and summary remedy meant to prevent vagrancy and destitution, to which the religion of the parties is wholly irrelevant.
- If there were a conflict, the Section would override personal law. But the Court found no conflict.
- The textbook rule limiting maintenance to iddat must be confined to cases where the divorced wife can maintain herself. If she cannot, she may use the Section.
- The Court drew support from verses 241 and 242 of Chapter 2 of the Quran, which speak of provision for divorced women.
- Mahr is not a sum payable on divorce. It is an amount the husband undertakes to pay as a mark of respect for the wife.
- The husband was ordered to pay Rs. 10,000 as costs.
- The Court observed that Article 44 of the Constitution, which directs the State to secure a uniform civil code, had remained a dead letter.
Mohd. Ahmed Khan v. Shah Bano Begum (1985): a husband, married to his wife since 1932, divorced her by irrevocable talaq while her maintenance claim was pending and pleaded that his duty ended with iddat and that the mahr he deposited was the sum payable on divorce. Held: a divorced Muslim woman who has not remarried is a "wife" under Section 125; the Section is secular and, in case of conflict, overrides personal law, but there is no conflict, because the iddat limit applies only where she can maintain herself; mahr is not a sum payable on divorce. Principle: a divorced Muslim woman unable to maintain herself after iddat can claim maintenance from her former husband under the secular provision.
These principles live on in the present law under Sections 144 and 146 of the B.N.S.S.
Stage 3: After iddat and the Muslim Women (Protection of Rights on Divorce) Act, 1986
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The Shah Bano judgment opened the third stage, life after iddat, because it set off strong protests. Many argued that the Court had interfered with personal law, and Parliament passed the 1986 Act, which the Supreme Court later said was perhaps intended to make the Shah Bano decision ineffective.
Section 3(1): what a divorced woman is entitled to
"Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to—
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
(b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends."
In short, the four entitlements are:
- a reasonable and fair provision and maintenance, made and paid within the iddat period by the former husband;
- a reasonable and fair provision and maintenance for the children she maintains, for two years from their respective dates of birth;
- an amount equal to the mahr or dower agreed; and
- all properties given to her before, at or after marriage by her relatives or friends, the husband, or his relatives or friends.
Enforcement under Section 3
- Application: if these are not given to her on divorce, she, or anyone duly authorised by her, may apply to a Magistrate of the first class where she resides.
- Order within one month: if satisfied that the husband, having sufficient means, failed to provide them, the Magistrate must pass an order "within one month of the date of the filing of the application". For reasons recorded, he may decide later.
- Measure of the amount: the amount must be "fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband".
- Penalty: a husband who disobeys the order without sufficient cause faces a warrant for recovery and imprisonment which may extend to one year, or until payment if sooner made.
The three factors for fixing the amount under Section 3: the needs of the divorced woman, the standard of life she enjoyed during the marriage, and the means of her former husband.
Section 4: relatives and the State Wakf Board
Section 4 looks beyond iddat. It applies where a divorced woman "has not re-married and is not able to maintain herself after the iddat period". The order of liability is:
- The Magistrate may order "such of her relatives as would be entitled to inherit her property on her death according to Muslim law" to pay her reasonable and fair maintenance, in the proportions in which they would inherit.
- If she has children, only the children are ordered to pay; if they cannot, her parents.
- If a parent cannot pay his or her share, other relatives with means may be ordered to pay it.
- If there are no such relatives, or they lack the means, the Magistrate may direct the State Wakf Board functioning in her area to pay.
Section 5: the option to be governed by the Code
If, on the date of the first hearing, the divorced woman and her former husband declare by affidavit or other written declaration, "either jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure", the Magistrate shall decide accordingly. Those provisions now correspond to Sections 144 to 147 of the B.N.S.S.
Since both parties had to opt for the Code under Section 5, the husband could simply refuse.
The apparent effect of the Act
Read quickly, the Act seemed to say that the husband pays only during iddat, and that after iddat the woman must look to her relatives or the Wakf Board. That reading led straight to a constitutional challenge.
Danial Latifi v. Union of India (2001)
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The case was decided by a Constitution Bench of five Judges on 28 September 2001. Danial Latifi, the advocate who had represented Shah Bano, filed a writ petition challenging the 1986 Act, and many similar petitions were heard with it.
Arguments
| Petitioners | Union of India |
|---|---|
| The Act took away from Muslim women a protection every other divorced woman enjoyed under Section 125, discriminating between women and women. | Personal law is a valid basis for classification. |
| This violated Articles 14, 15 and 21, the last of which includes the right to live with dignity. | The words "within the iddat period" plainly limited the husband's duty to iddat. |
Everything turned on one small word in Section 3(1)(a): what does "within" mean?
Held
- The Court upheld the Act, but read it to protect the woman.
- A provision is something arranged in advance for future needs. So at divorce the husband must look ahead and arrange for her future.
- The word "within" sets the deadline for doing this. It does not limit how long her needs will last.
- A Muslim husband is liable to make a reasonable and fair provision for the future of his divorced wife, which obviously includes her maintenance. This provision, extending beyond the iddat period, must be made within the iddat period. His liability is not confined to iddat.
- A divorced woman who has not remarried and cannot maintain herself after iddat may proceed under Section 4 against her relatives, and if they cannot pay, the State Wakf Board may be directed to pay.
- So read, the Act does not offend Articles 14, 15 and 21.
| The Act read quickly | The Act as read in Danial Latifi |
|---|---|
| The husband pays only during iddat. | The husband must make a reasonable and fair provision for her future; only the deadline for making it is iddat. |
| "Within the iddat period" limits the duration of his liability. | "Within" fixes the time for making the provision, not how long her needs last. |
| After iddat she must look to her relatives or the Wakf Board. | Section 4 (relatives, then the State Wakf Board) applies where she has not remarried and cannot maintain herself after iddat. |
Renu, aged 52, is divorced by Farhan, who owns two shops in Bhopal. She has never had an income of her own. Farhan cannot simply pay three months of expenses. Before her iddat ends, he must make a fair provision for her future, for example a fixed deposit whose monthly interest meets her needs, measured by her needs, the life she lived in the marriage, and his means.
Danial Latifi v. Union of India (2001): writ petitions challenged the 1986 Act as discriminating against divorced Muslim women in violation of Articles 14, 15 and 21. Held: the Act is valid; under Section 3(1)(a) the husband must, within the iddat period, make a reasonable and fair provision for the divorced wife's future, including maintenance, extending beyond iddat; if she has not remarried and cannot maintain herself after iddat, she may proceed under Section 4 against her relatives and then the State Wakf Board. Principle: iddat is the deadline for making the provision, not the limit of the husband's liability.
The Act survived, but the heart of Shah Bano survived with it: the deadline is iddat, but the provision must cover her future.
Mohd. Abdul Samad v. State of Telangana (2024)
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One question remained after Danial Latifi: is a divorced Muslim woman confined to the 1986 Act, or can she still use the secular track?
Mohd. Abdul Samad v. State of Telangana (2024), decided by the Supreme Court on 10 July 2024: a husband challenged an order of interim maintenance under Section 125 of the Code of Criminal Procedure, arguing that the 1986 Act excluded that remedy. Held: the Supreme Court rejected the argument; the 1986 Act does not take away a divorced Muslim woman's right under the secular provision. Principle: that remedy now lies under Section 144 of the B.N.S.S., so both tracks are open to her.
Maintenance of children and other relatives
The father's duty towards his children
Mulla states the father's duty this way:
- A father is bound to maintain his sons until they have attained the age of puberty.
- He is bound to maintain his daughters until they are married.
- He is not bound to maintain adult sons unless they are disabled by infirmity or disease.
- The children's custody with their mother in their early years does not relieve him of this duty.
- He need not maintain a child who can be maintained out of the child's own property.
- Where the father is entitled to custody and offers to keep and maintain a child in his house, a child who stays away without justifying circumstances cannot, under personal law, insist on separate maintenance.
When the father is poor
| Situation | Who must maintain the children |
|---|---|
| Father is poor and incapable of earning by his own labour | The mother, if she is in easy circumstances, must maintain them as the father would. |
| Father is poor and infirm, and the mother is also poor | The grandfather, if he is in easy circumstances. |
Illegitimate children
Under Hanafi law, a father has no duty under personal law to maintain an illegitimate child. Here the secular track becomes vital, because Section 144(1)(b) of the B.N.S.S. expressly covers a "legitimate or illegitimate child".
An illegitimate child who has no claim against the father under Hanafi personal law can still claim maintenance under Section 144(1)(b) of the B.N.S.S.
Parents and grandparents
The duty of maintenance also flows upwards:
- Children in easy circumstances must maintain their poor parents, even if the parents can earn something.
- A son, even in straitened circumstances, must maintain his poor mother.
- A poor son who earns something must support a poor father who earns nothing.
- Poor grandparents are to be maintained in the same way.
- On the secular track, Section 144(1)(d) of the B.N.S.S. protects a father or mother unable to maintain himself or herself.
Solving the opening problems
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| Claimant | Answer | Reason |
|---|---|---|
| Zoya, the earning wife | Succeeds under personal law; would fail under Section 144 | Under personal law her right flows from her status as a wife, not her need. Under Section 144 she would fail because she can maintain herself. |
| Neha, divorced after 30 years | Her husband is wrong | Mahr is not a sum payable on divorce, and after Danial Latifi three months of maintenance is not enough. He must make a reasonable and fair provision for her future within iddat. If she cannot maintain herself, she may also use Section 144. |
| Hansa, the six-year-old daughter | Her father is wrong | Her stay with her mother does not end his duty. Her claim succeeds under personal law, and under Section 144(1)(b) if he has sufficient means. |
Quick revision
- One duty: to support those who depend on us (nafaqa).
- Two tracks: Muslim personal law, and Section 144 of the B.N.S.S.
- Three stages: during marriage, during iddat, and after iddat.
- Place any maintenance problem on this map of duty, track and stage to find its answer.
