RIGHT TO MAHR AND MAINTENANCE UNDER ISLAMIC LAW

Author : PARVATHY C.B

ABSTRACT

In Muslim Law, marriage or nikah is considered as a contract between two individuals. The concept of marriage under muslim law is entirely different from other personal laws which deal with marital affairs. According to Muslims, marriage is an institution which legally validates the sexual relationship and intimacy between a male and a female. The ultimate objective of this contract is the procreation of children thereby promoting the formation of families. Mahr commonly known as dower is one of the most significant institutions under Muslim law. It refers to a sum of money or a property which the bridegroom promises to pay to the bride in consideration of the marriage. It is also termed as sadaq, sadakat, niglat, atiya and akr. Mahr is often given to the parents of bridegroom at the time of marriage. More than a consideration it is actually an obligation on the part of the husband to give the dower as a mark of respect and the wife is entitled to it. Thus mahr becomes an intrinsic factor of a marriage under Muslim law. Just like marriage Muslim law of right to maintenance is also unique in the sense that a person is obliged to provide maintenance to another only if the claimant is incapable to maintain herself. This obligation to provide maintenance usually arises out of a marriage, blood relationship etc. Most often liability to maintain occurs within a marital relationship. i.e., the wife and children.

INTRODUCTION

According to Muslim Law, Mahr often called as dower is something either a sum of money or a property which the bride receives from the bridegroom in consideration of the marriage. The term “consideration need not be interpreted in the sense of valid consideration enshrined in the Indian Contract Act, 1872. So it is considered as a mark of respect towards the wife.  Mahr may be settled before or after the marriage or even at the time of marriage. However it is also provided that even if the amount or quantum of dower is not specified, it doesn’t challenge the legality of marriage. The prime objective of providing mahr is to ensure safety or some sort of protection to the wife against the husband’s power to opt for divorce. And it aims to provide livelihood to wife and children at the time of divorce or in addition to the widow’s share in the husband’s property after his death. The Dowry Prohibition Act of 1961 specifically excludes the Muslim Law relating to mahr from the purview of this provision.

Unlike other personal laws, maintenance under Muslim Law is unique with distinct features. Because the liability of a person to maintain another come to light only when the person seeking maintenance is incapable to maintain their selves or is not having any assets or property by which the claimant can maintain himself. So a Muslim is not absolutely obliged to maintain their children if they are self capable and independent. Even a Muslim is not obliged to provide maintenance to their parents unless they are penniless. However the wife is absolutely entitled to claim maintenance from his husband even if he is not having sufficient income and the husband is liable to maintain the wife irrespective of her financial background.

Quantum of Mahr

 The most significant feature of Mahr under Muslim Law is that the maximum and minimum amount of mahr required to be given to the wife is not fixed under any schools of muslim law. But the minimum amount of dower has been recognized as ten dirhams under Hanafi Law and three dirhams under Maliki Law. Generally mahr is given in the form of money; however it can also be any kind of property or something which has a value. Thus it may be a land, house and even an instruction given in the Holy Quran.

The quantum of Mahr can be decided either by entering into an agreement or by the operation of law. Thus it can be classified into following heads

Specified Dower (Mahr-i-Musamma)

If the quantum of mahr is determined by the parties, it is a specified dower. Here the dower can be fixed either before or at the event of marriage and may be changed later. However the amount of dower should not be less than ten dirham.

The Specified Dower is further classified into two Prompt Dower and Deferred Dower

1. Prompt Dower: – The dower required to pay on demand after the marriage is termed as ‘Prompt Dower’. And if the wife desires, she can refuse to live with husband until the payment of prompt dower.
2. Deferred Dower: – It is payable when the marriage gets dissolved by death or divorce or as per the terms of agreement.
3. Proper Dower (Mahr-i-misl or Mahrul-Mithl)

Proper Dower is also known as Customary Dower. If the quantum of dower is not earlier determined by a contract, the wife can claim proper dower. And the proper dower shall not exceed Five Hundred Dirham under the Shia Law.

The dower debt is usually claimed from the husband and on his death, it can be obtained from the legal heirs of husband. The wife is entitled to dower on the consummation of nikah, on valid retirement or on the death of the parties even if the marriage is not fulfilled. If the husband refuses to pay the dower then the wife is entitled to claim it by institution of a suit against the husband. And the legal heirs are entitled to the dower on her death. Provided every claim shall be raised with in a period of three years. However the limitation is not applicable if the wife has a right of possession over the husband’s property until the payment of dower.

In addition to this there is a custom prevailing among muslims which is termed as  Kharch-i-pandan. It is basically a payment made by the husband to his wife and is normally mentioned in the agreement made by the parties or by the parents if the parties are minors.

Right of Remission

Under Muslim law a wife is entitled to remit the dower wholly or partially to the husband if she has attained puberty. And this renunciation is valid even if there is no consideration or the consent of the parties. But it will not be obligatory if it was made during when she was in serious illness.

Right of Retention

On the dissolution of a marriage by the death of either parties or on divorce, the wife shall have absolute right to the possession of her husband’s estate until the fulfillment of dower-debt. And this right of retention will not take effect during the existence of marriage until she has a right of lien over the properties of husband under any contract.

THE PROVISIONS FOR MAINTENANCE UNDER MUSLIM LAW

It is a bestial fact that Muslim law recognizes man to be more superior than woman since she depends on her husband for livelihood. Thus the wife is absolutely entitled to get support and the husband is bound to give maintenance even if she is able to maintain herself.  The wife’s right to alimony is regarded as a debt to the husband. Anyhow a wife’s right to get alimony and the responsibility of husband to support his wife occurs only if the wife is loyal and obedient to her husband.

The persons entitled to get maintenance are as follows:

1. The wife
2. Descendants including the children and grandchildren
3. Ascendants which includes the parents as well as the grandparents.
4. Other collaterals

The husband is bound to give alimony to his wife under the following cases; 

1. Based on the status emerging from a valid nikah
2. On the basis of pre-nuptial agreement between the parties or between the parents if both or any one of the parties is a minor
3. By Section 125 of CrPC
4. Based on the provisions  of Muslim Women(Protection of Rights on Divorce) Act

 Based on the status emerging from a valid Nikah

Under Islamic Law, the husband is liable to provide alimony to his wife if she is able to maintain herself also and he is forced to maintain the wife even if he does not have proper and sufficient income. Here maintenance means to provide food, cloth and proper accommodation. The husband is obliged to give alimony only to the wife in a valid nikah. Though he is not bound to maintain the wife in a void or irregular marriage, he becomes liable to give alimony to the wife if the marriage was irregular due to the absence of necessary witnesses. In Muslim Law this obligation does not arises on the event of marriage but on the attainment of puberty by the wife.

The husband is bound to give alimony as long as the wife is loyal and obedient to him. And in the following cases the wife is entitled to get proper alimony no matter how loyal or obedient she is.

1. If the husband is an adulterous man
2. If he has committed cruelty
3. If the marriage was not consummated due to non-attainment of puberty, illness, impairment and his absence from her without her prior consent or knowledge.

The amount of alimony required to be provided has not been determined by any personal law. It is left to the discrimination of the court to decide how much amount is to be provided as alimony on account of the income and assets of the spouses. However there is difference of opinion in various schools of Muslim Law

Maintenance with regard to an Anti-Nuptial Agreement

Usually in a Muslim Marriage the parties enter into an agreement which states the rights and liabilities of both the spouses and mention certain conditions to follow. And those conditions mentioned must be reasonable. So the wife may add a condition that if after nikah the husband betrays her or marry another or have an adulterous relation she can claim alimony from the husband. And if she can’t live him in the presence of second wife also she will be entitled to get alimony and live other life. And such a condition is reasonable and lawful under Muslim Law. Provided that the wife is entitled to maintenance only till the period of Iddat.

Provisions for maintenance under CrPC

By virtue of Section 125 of the Code of Criminal Procedure of 1973, a woman, whether Muslim or not, has the right to claim alimony against her husband because of his negligence or his refusal to maintain it.  This provision provides that if a person with sufficient income does not support his wife who is incapable to provide for her needs, her legitimate or illegitimate minor child, married or not, unable to provide for her needs, or her legitimate child  or illegitimate, not being a married girl (a minor girl though married can receive a maintenance allowance from the magistrate, until she reaches the age of majority, if the magistrate is convinced that the husband of the child does not have sufficient means) who has reached the age of majority, when this child is due to a physical or mental abnormality, or an injury unable to maintain himself, then magistrate of the first class may, order that person to pay a monthly alimony to his wife or child, at such monthly rate, not exceeding five hundred rupees in total, as the magistrate may thinks fit.

In a sensational case Shah Bano Begum v. Mohammed Ahmed Khan[1], the SC considered the obligation of husband to provide alimony even after the period of iddat. Mohammed Ahmed khan divorced Shah Bano Begum by way of talaq, and she claimed maintenance under section 125 of the Code of Criminal Procedure as she has no sufficient income to maintain herself and her 5children. Section 125 of CrPC itself mandates the husband to maintain his wife after divorce, if she is incapable to main herself for the want of sufficient means. And Mohammed contended that the case would come under the scope of Muslim Law whereby he is only bound to provide alimony during the period of iddat. And the hon’ble SC uphold the decision in favour of Shah Bano Begum and directed the union government to pass a legislation promoting the welfare of muslim women. This case was a groundbreaking judgement which meant to protect the lives of muslim women from persecution.

And in this context the Central Government passed Muslim Women (Protection of Rights on Divorce) Act, 1986 which strives to limit the provision under CrPC in relation to the maintenance of a divorced wife.

RIGHT TO ALIMONY OF A DIVORCED WOMAN

There exists many contrasting rules with respect to the right to alimony by the wife on dissolution of marriage. A wife is entitled to get proper alimony in the iddat period on the conclusion of marriage by divorce. After the iddat period also, if the wife is not informed about divorce then she can claim maintenance till the communication of divorce. Besides that, if the wife is pregnant at the time of divorce, then also she will get alimony till the birth of the child.

The right to maintenance is not available to the wife in the following instances.

• If the marriage was dissolved due to the betrayal, criminal behavior, or apostasy of the wife.
• If the marriage was dissolved by death, then this right will not be available even during the period of iddat.
• If the wife is remarried then she has no right to claim maintenance.

In Bai Tahira v. Ali Hussain[2], it was concluded that regardless of the quantum of dower mentioned in the marriage, the wife is entitled to a valid sum.  And by virtue of Section 125 of The Code of Criminal Procedure, the divorced wife is entitled to claim alimony until the payment of this sum.

In the case of Fazlumbi v. Khader Vali[3], The High Court of Kerala denied relief and equity provided under the Code Of Criminal Procedure against a husband though he had provided all the sums due under the Muslim Law. Justice Krishna Iyer warned the High Court since it doesn’t comply with the Supreme Court ruling in Bai Tahira’s case. The SC ruling in this case was held to be remarkable and sensational.

MAINTENANCE IN THE CASE OF CHILDREN AND OTHER RELATIVES

Under Muslim Law  the children are under obligation to provide maintenance to their parents even if they have sufficient means to maintain themselves. A mother is bound to maintain their kids if she is having better status than the father irrespective of the fact that their paternal father is rich except under Shia Law. A man is obliged to provide maintenance to the poor grandparents as if they would maintain their own parents. Persons having enough and more means are required to maintain other relatives out of a prohibited relationship to the extent of share which a person might receive from their estate  in the event of their death. 

CONCLUSION

Mahr and Maintenance are two major concepts in Muslim Law. Mahr is basically a financial deal with the bride by the bride groom. More than a consideration of marriage, it is the responsibility of the husband to provide mahr as a mark of respect. Mahr or dower plays vital role in a Nikah. In the same way maintenance is an important part of a marriage under Muslim Law. Maintenance means to provide food, cloth and proper lodging facilities to a person. It is actually a financial support given by the husband to the wife under certain circumstances based on the status emerging from a valid nikah or on the basis of pre-nuptial agreement between the parties or between the parents if both or any one of the parties is a minor. This article mention the instances where a person is absolutely obliged  to provide alimony and points out when the right of maintenance is available to a wife or a divorced women. It also deals with the provisions for maintenance under different statutes. And highlights the revolutionary ruling of the apex court which paved way for the enactment of a legislation that promotes the welfare of Muslim Women.

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[1]  Shah Bano Begum v. Mohammed Ahmed Khan, 1985 SCR (3) 844.

[2]  Bai Tahira v. Ali Hussain, AIR 1979 SC 362.

[3]  Fazlumbi v. Khader Vali, AIR 1983 SC 1730.