Q5. Discuss the principles of Maintenance (Nafaqa) under Muslim Law. Outline the persons entitled to maintenance and highlight the effect of conversion and differences between Shia and Sunni Law.
- Principles of Maintenance (Nafaqa)
Under Muslim Law, maintenance encompasses food, raiment (clothing), and lodging. It is a legal obligation arising out of marriage and blood relations.
- Persons Entitled to Maintenance
- The Wife: A husband is bound to maintain his wife of a valid (Sahih) marriage, regardless of her independent means, provided she is faithful and accessible to him (Tamkeen). A wife in an irregular (Fasid) or void (Batil) marriage has no strict right to maintenance.
- Children: A father is primarily responsible for the maintenance of his minor legitimate sons (until puberty) and unmarried daughters.
- Parents & Relatives: Children who have means are obligated to maintain their aged or infirm parents who are destitute.
- Effect of Conversion on Maintenance
- Under classical Islamic law, if a Muslim wife apostatizes (converts to another religion), she completely forfeits her right to maintenance under Muslim Personal Law.
- Note on Secular Law: However, Indian courts have often held that she may still seek maintenance under secular statutes like Section 125 of the CrPC if she remains a “wife” under the law and is unable to maintain herself.
- Differences Between Shia and Sunni Law
| Aspect of Maintenance | Sunni (Hanafi) Law | Shia (Ithna Ashari) Law |
| Maintenance of Relatives | Liability falls on the father. If he is poor, it falls on the mother, then the paternal grandfather. | Liability is shared. If the father is poor, liability falls jointly on the mother and the paternal grandfather based on inheritance shares. |
| Wife’s Right (Arrears) | A wife cannot claim past arrears of maintenance unless it was fixed by an agreement or court order. | A wife can claim arrears of maintenance even if there was no prior agreement or court order. |