Muslim Law

Topics: Marriage, Divorce, Alimony Pages: 10 (3372 words) Published: December 15, 2010
Muslim Law
•It has been contended that the Mohammadan Law
as to maintenance is a law of imperfect obligation imposing a moral and not a legal obligation. According to the Fatawa-i-Alamgiri “maintenance comprehends food, raiment and lodging though in common parlance it is limited to the first.” •As per the Hedaya all those things which are

necessary to the support of life such as food, clothes
and lodging may confine its solely to food.
Thus a person is entitled to maintenance -
•If he has no property
•Is related to obligor within prohibited degree
•The obligator is in a position to support him
The persons entitled to maintenance as
per Muslim Law are:
i) Wife,
ii) Descendants,
iii) Ascendants,
iv) Other relations
Maintenance of Wife
•The maintenance of wife under Muslim Law can
be studied under two heads:
i) Maintenance during subsistence of marriage,
ii) Maintenance on divorce
•The obligation to pay maintenance to a wife
during the subsistence of marriage arises out of the status arising out of a valid marriage or a pre nuptial agreement. •Thus maintenance of wife can be studied under
the following heads -
Maintenance on
i) Subsistence of marriage
Arising out of
B) Ante-nuptial agreement
ii) Dissolution of marriage
A) Under Cr.P.C.
B) After Act of 1986
During continuance of marriage
i) Arising out of status – Under Muslim Law, the
husband is bound to maintain his wife as long as she is faithful to him and obeys his lawful and reasonable orders. The marriage however should be a valid marriage and not which is void or irregular. Also the obligation does not comments if the wife has not attained puberty but commences on the attainment of puberty. In Badruddin v. Aiyasha Begum (1957) All LJ 300, it was held that where a husband marries a second wife or keeps a mistress, the wife may refuse to live with the husband and still claim maintenance. ii) Arising out of Contract - Under Muslim

Law, certain ante nuptial and post nuptial agreements entered into between parties to a marriage are valid and enforceable. The husband and wife or their guardians may enter into an agreement whereby a 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. ON DISSOLUTION OF MARRIAGE

If a divorced woman and her former husband declare, by affidavit or any other declaration in writing, 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, and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly. The explanation to Section 125 states that “Wife” includes a woman who has been divorced wife, or has obtained a divorce from, her husband and has not remarried. Under the new section 125 Cr.P.C. the claim of the wife could not be defeated by divorcing her. However, under Section 127 (3) (b) the Magistrate was ordained to cancel his order passed under Section 125 on proof that the divorcee has received from her husband the whole of the sum which under customary of personal law was payable on such divorce. This under Muslim Personal Law was taken to be Mahr. A divorced woman means a Muslim woman who was married according to Muslim law, and has been divorced by, or obtained divorce from her husband in accordance with law. But under Fazlunbi v. Khader Vali, (1980) 4 SCC 125, the Supreme Court reiterated the decision in Bai Tahira case andJustice Krishna Iyersaid :

“The payment of an amount, customary or other……must inset the intent of preventing destitution and providing a sum which is more or less the present worth of the monthly maintenance allowance the divorcee may need until death or remarriage…. The Court by enacting Section 125 to...
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