Detail of MAINTENANCE (NAFAQA)

MAINTENANCE (NAFAQA)

MAINTENANCE (NAFAQA)

The main principles of maintenance are: (i) A person is to maintenance if he has no property, (ii) is related to the obligor in prohibited degrees, or is the wife or child, and (iii) the obligator is in position to support him. Though a person is under a greater liability to maintain his wife, minor sons, unmarried daughters, mother, father, father's father and father's mother, this obligation is also hedged by the factor of their economic condition.

        Kharch-e-pandan is something different from maintenance. It is a special allowance to which the wife may be entitled in addition to maintenance allowance. Its source is an express agreement between the parties to the marriage or their parents (if they are minors) at the time of marriage. The agreement may stipulate that even if the parties lived separately at any time after their marriage the wife would be paid kharch-e-pandan by the husband; such an agreement would be enforceable. It can be realised by the wife from her father-in-law also.

Maintenance of wife

It is incumbent on a husband to maintain his wife, whether she be Muslim or Kitabiyyah, poor or rich, enjoyed or unenjoyed, young or old. However, if the wife is too young for matrimonial intercourse, she has no right to maintenance from her husband, whether she is living in his house or with her parents.

    If the husband has not paid the prompt part of dower or she refuses to live with her husband because of his cruelty, the husband is bound to maintain her.

    The question of maintenance of wife may arise in the following two cases:

    During the continuance of marriage. - The husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders.

    It is immaterial that she has the means to maintain herself while the husband has no means.  

The marriage must be regular; but a marriage which is irregular solely because of the absence of witnesses is deemed regular for the purposes of maintenance.

    The wife is not entitled to sue her husband for past maintenance, unless the claim is based on a specific agreement.

    To summarise, the wife loses her right to maintenance in the following circumstances:

        i.    She is minor, incapable of consummation.

      ii.    Refuses free access to the husband at all reasonable times.

     iii.    Is disobedient.

     iv.    Never visited his house.

       v.    Refuses to live with him in the conjugal home, without a reasonable excuse.

     vi.    Abandons conjugal home without any reasonable ground.

    vii.    Deserts him.

  viii.    Elopes with another person.

The exceptions to the ground of refusal to free access are his cruelty and keeping a concubine by him. Similarly, there are exceptions to the ground of want of consummation - her pre-puberty age, her illness, old age, his inability to consummate, where she retains right to maintenance.

     Maintenance by agreement. - The husband and wife or their guardians may enter into an agreement whereby wife is Entitled to recover maintenance from her husband, on the happening of some specified event, such as ill-treatment or disagreement, or husband's second marriage, etc. But an agreement in the marriage contact that wife would not be entitled to maintenance is void.

    The key consideration is that the agreement should not be opposed to public policy or Muslim Law. Thus, an agreement for future separation between husband and wife and providing maintenance to wife is bad in law.

    Nevertheless, agreements to provide betel allowance (Kharch-e-pandan) or allowance for dry fruits (mewa khori) are valid and binding. These are not opposed to public policy, and thus such agreements even entered into by the guardians of minor parties to a marriage, are valid and binding on the husband.

    Maintenance by agreement is a pecuniary aspect of the wider point of conditions of marriage. In that sense, conditions which are not against (i) any express provision of law, or (ii) public policy, or (iii) principles of Muslim Law, are enforceable. Thus following types of conditions are valid:

      i.      If the husband treats the wife cruelty, she will have a right to separate residence and maintenance to meet it.

     ii.      If he brings subsequent wife and the previous wife is unable to adjust with her, she will get maintenance allowance to live separately, or even at her father's house.

   iii.      If he brings his other wife to live in the matrimonial home, she will reside at her father's home and he will give her maintenance.

    iv.      In case of disagreement with each other, he will give her maintenance for separate residence.

     v.      He will pay maintenance even after divorce.

A stipulation that the wife will be disentitled to maintenance in all circumstances is void. But in a divorce by Khula or Mubarat' at, such stipulation can be entered. Section 23 of the Indian Contract Act also voids an agreement that in case of separation in future at the option of the wife the husband will give her maintenance allowance.

     Maintenance under the Criminal Procedure Code.- Section 125(1) Explanation (b) defines the term "wife" as to include the woman who was divorced by or who had obtained divorce from her husband and had not remarried. So now a battered wife's maintenance suit cannot be frustrated by the husband by divorcing her. The relevant conditions are that the person responsible (husband/father/son) should have the means to maintain, yet, he neglects or refuses. The  recipient wife should not refuse to live with the husband if he so requires, should not be living separately by mutual agreement, or should not be living in adultery. However, she can live separate or refuse to join him if he has brought another wife to live with him, or keeps a concubine or treats her with cruelty or is impotent. In these conditions the Magistrate can pass an order for maintenance granting a sum up to 500 per month.

    The objective of Section 125 is to ameliorate the economic condition of neglected wives and discarded divorcees. One achievement towards this welfare goal was to extend the protection to the divorcee; and second major step was taken by the judiciary by taking mahr to the doorsteps of maintenance. Mahr has assumed the negative role as a representative of the "customary or personal law sum" mentioned in Section 127(3)(b). Section 127(3)(b) ordains that the Magistrate shall cancel his order passed under Section 125 on proof that the divorce has received from her husband the whole of the sum which under customary or personal law was payable on such divorce, and "the customary or personal law sum under Section 127(3)(b) envisaged the mahr", held the Supreme Court in Bai Tahira v. Ali Hussain.

    Judicial alertness is sharply visible, and more prominently in Fuzlunbi v. K. Khader Vali, where the Court held that the payment of liquidated sum at the time of divorce can release the husband from the continuing liability only if the sum paid is realistically sufficient to maintain the ex-wife.

   Thus, by making mahr with maintenance the court produced the result conceived by Section 125. Then the watershed line was authoritatively drawn by the Supreme Court in Shah Bano. The ruling that "payment of mahr money as a customary discharge is within the cognisance of that provision"- was overruled.

Muslim Women (Protection of Rights on Divorce) Act, 1986

The Act accords relief to the divorced wife; it does not say that mahr is a consideration for divorce, or is the sum referred to in Section 127(3)(b) CrPC; it does not lay down that no maintenance is to be paid to the divorcee after iddat or that she is to be abandoned for the life after iddat; it does not make the secular law (like CrPC) inapplicable to Muslims, it does not overrule the Shah Bano case.

    Section 3 of the Act entitles a divorced woman to (i) reasonable and fair provision, and (ii) maintenance to her, (iii) provision and maintenance to her children for two years, (iv) mahr  amount and (v) all properties given to her before, at the time of and after her marriage. Out of these, the "provision" and the "maintenance" are to be "made and paid to her in the iddat period by her former husband".  

    Section 5 of Act gives the parties an option to declare jointly, to be governed by either the CrPC or the new Act.

    The Act nowhere nullifies the orders passed under Section 125. Once that order is passed, her rights are crystallised and she gets vested right to recover maintenance allowance from her former husband. That vested right has not been taken away by Parliament.

    A reasonable and fair provision has got to be distinct from maintenance. The word "provision" has a future content. It is an amount kept aside to meet a known liability. In the context of Section 3(1)(a) it would mean an amount as would be necessary for the divorced Muslim woman to look after herself after the iddat period. This may involve amount for her residence, food, clothing, medicine and like expenses. It is precisely for this reason that like Section 125 of the Code no maximum amount is fixed here, but the quantum has got to be substantial having regard to the future needs of the woman.

   Nowhere had Parliament, through the Act provided that reasonable and fair provision and maintenance were limited to the iddat period and not beyond. It would extend to the whole life unless she got married for the second time. At the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance. The emphasis of this Section 3 is not on the nature or duration of any such provision or maintenance, but on the time by which an arrangement for payment should be concluded namely, within the iddat period. If he has made such arrangement and discharged his liability, he would be exempted for the post post-iddat period liabilities. Section 4 of the Act contains no reference to "provision". This right is enforced only against her former husband, in addition to maintenance. 

   In conclusion it was held:

1)     A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well, extending beyond the idadat period; and must be made by him within the iddat period, in terms of Section 3(1)(a) of the Act.

2)     His liability under Section 3, to pay maintenance is not confined to iddat period.

3)     A divorced Muslim woman, not remarried and unable to maintain herself after iddat period can proceed, under Section 4 against her relatives who are liable to maintain her in proportion to the properties which they would inherit from her. If none of them is able to maintain her, the Magistrate may, the Magistrate may direct the State Wakf Board to pay.

4)     Provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution.

Maintenance by children, relatives, parents and Wakf Board

Section 4 of the Act provides that if a divorced woman has not remarried and is unable to maintain herself after the iddat period, the Magistrate will order the following "persons", and in that order, to maintain her:

     (i) Children. - Section 4 casts the liability to maintain her on her children: "The Magistrate shall order only such children to pay maintenance to her." Since the term "children" has not been defined, "children" will include male and female, married or unmarried, legitimate or illegitimate. The question of major or minor has also been left open, and perhaps their capacity will guide the Magistrate.

    (ii) Parents. -"In the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her". The term includes father and/or mother.

    (iii) Relatives and (iv) Other relatives.- On proof of the inability of the parents being furnished to the Magistrate, he will order that such relatives as would be entitled to inherit her property on her death will pay such reasonable and fair maintenance Further, if her needs still remain unattended, the Magistrate may order that the share of such relatives in the maintenance ordered by him may be paid by such of the other relatives as may appear to him to have the means of paying the same. In the case of "relatives" the Magistrate will take into consideration their means, her needs and their proportionate share in the prospective inheritance of her property. In the case of "other relatives" their proportion will be such as he may think fit to order.  

     (v) Wakf Board.- Sub-section (2) of Section 4 says that where a divorced woman is unable to maintain himself and the relatives and other relatives also have no means to support her, the Magistrate may order the local Wakf Board (i.e. of the area in which she resides) to pay her entire maintenance allowance as per his orders or share the relatives in the discharge of their obligations. The period is also left to the discretion of the Magistrate.

Nature of the Wakf Board's obligation

In Secy., Tamil Nadu Wakf Board v. Syed Fatima Nachi, it was held that the aggrieved wife is entitled to plead and prove relevant facts in one proceeding as to the inability of her relations mentioned in Section 4(1) to maintain her by directing her claim against State Wakf Board in first instance. She is not required to proceed against her relatives mentioned in Section (4)(1) in the order they are mentioned and then to touch the Wakf Board. The provision is one integrated whole. It is, however, open to the Wakf Board to controvert to the effect that the relations mentioned in the provision have means to pay maintenance to her. The Magistrate would then add them as parties.

    Legitimate children.- The maintenance of infant child rests upon the father. The maintenance of an infant child also rests upon the father, because, as maintenance is decreed to the nurse on account of her sustaining the child with her milk, it follows that the same is due to the child himself a fortiori.

    Thus, a father is bound to maintain his sons until they attain puberty, and his daughters until they are married. He is also responsible for the upkeep of his widowed or divorced daughter, or a child in the custody of the mother. The father is not bound to provide separate maintenance for a minor son or unmarried daughter who refuses to live with him without reasonable cause. An adult son need not be maintained unless he is infirm. The father is not bound to maintain a child who is capable of being maintained out of his or her own property.

    If the father is poor or infirm, the mother is bound to maintain the children. And, failing her, it is the duty of the paternal grandfather. A father-in-law is under no obligation to maintain his widowed daughter-in-law.

    Illegitimate children.- In Muslim Law, the father of an illegitimate child is not bound to maintain it. Section 488 of the Criminal Procedure Code, 1908 (as amended up to 1955), however, did bind such a father to pay up to Rs 500 per month by way of maintenance. The father would be liable to pay this amount even if the mother refuses to surrender the illegitimate child to him.

    Right to maintenance ceases.-(i) At puberty or 15 years, according to Muslim Law; and (ii) at 18 years, according to the Indian Majority Act, 1875.

Children's right of maintenance: CrPC & 1986 Act - Run parallel

The right of the child to claim maintenance under Section 125 of the Code of Criminal Procedure either by itself or through its mother acting on its behalf remains intact in spite of the right of the mother under Section 3 of the Act of 1986 to claim maintenance for the child for a period of two years from her former husband where she herself maintains the child. Under Section 125 the child can claim maintenance from its father irrespective of the question as to who maintains the child. Under Section 3 of the Act it is limited to the period of 2 years form birth, while under Section 125 of the Code of Criminal Procedure it is logged with the attaining of majority, i.e. 18 years.

     A daughter of 10 years of age can also claim maintenance under Section 125 CrPC. Section 3 does not exclude the application of general and secular law of maintenance as enunciated in Section 125 CrPC. The latter provides for maintenance to minor children. Section 3 of the Act cannot stand on the way of claim by a child when the latter is more than 2 years.

Maintenance of parents

This obligation to maintain does not end by the mere fact that the parents are able to earn something for themselves. If a son is earning something, he is bound to support his poor father who is earning nothing. Or even if the father is capable of earning something, but with much labour and pain.

    The children's obligation to maintain their poor parents is irrespective of sex and wealth. Any son or daughter in easy circumstance may be forced to pay the whole amount of maintenance that may be required, and having done so, may call upon others to contribute equally.

Maintenance of other relations

All persons who are in "easy circumstances" are bound to maintain their poor relations who are within the prohibited degrees by consanguinity in proportion to the shares which they would inherit at the time of the death of such poor relations.

Liability under the enacted laws

Besides the above personal law position, the Criminal Procedure Code, 1973, and the Muslim Women (Protection of Rights on Divorce) Act, 1986 also deal with the subject. Section 125 CrPC requires a person having sufficient means, to maintain, besides his wife, (a) a minor child, legitimate or illegitimate who is unable to maintain itself, including a minor married daughter whose husband has no sufficient means to maintain her; (b) a major child who is so disabled as to be unable to maintain itself; (c) his parents unable to maintain themselves. The maximum burden with respect to any can be 500 per month. The First Class Magistrate of the area has been empowered to order the payment of the maintenance, and can imprison the defaulter up to one month for each of default.

    The Muslim Women (Protection of Rights on Divorce) Act, 1986 states in Section 3(1) that "Notwithstanding anything contained in any law for the time being in force, a divorced woman shall be entitled to -(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." The Act makes the child only a medium entitling her to the particular right. The child is only indirectly a beneficiary though her. It is she who will receive that amount as her maintenance allowance.