An analytical study on the intricacies of the concept of maintenance under Muslim Personal Law

Posted On : July 11, 2023
An analytical study on the intricacies of the concept of maintenance under Muslim Personal Law
Maintenance, plays a vital role in Muslim Personal Law, aiming to ensure the financial support of women and children within the family unit. This article explores the principles governing maintenance under Muslim Personal Law, addresses the contemporary challenges in its application, and highlights the perspectives emerging from modern societal and legal developments. It also draws a comparison between maintenance under the Muslim personal law and section 125 of the CrPC and tries to analyse which provision is more adequate and reasonable
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Table of Contents

Research Question

Does Muslim personal law put women on a lower pedestal in claiming maintenance?


The concept of maintenance (nafaqah) for women and children under Muslim family law is governed by several key principles. These principles, rooted in Islamic jurisprudence, aim to ensure the financial well-being and support of women and children within the family unit. However, contemporary challenges have arisen in the application of these principles due to evolving societal and legal developments. Understanding the interaction between these principles and modern dynamics is crucial for a comprehensive analysis of maintenance under Muslim law.

Key Principles of Maintenance under Muslim Family Law

The key principles of maintenance (nafaqah) under Muslim Personal Law can vary slightly depending on the interpretation and application within different jurisdictions. However, the following principles generally govern maintenance under Muslim Personal Law:

  1. Duty of Support

    Muslim Personal Law imposes a fundamental duty on male family members, particularly husbands and fathers, to provide financial support for their wives and children. This duty is derived from Quranic injunctions and Prophetic traditions, emphasizing the importance of providing for the basic needs of dependents.

  2. Reasonable Standard of Living

    Maintenance encompasses the provision of food, clothing, shelter, and other essential needs to ensure a reasonable standard of living for the dependents. The obligated party is expected to provide support that enables the recipients to maintain a dignified and adequate lifestyle.

  3. Fairness and Equity

    Islamic principles emphasize fairness and equity in determining maintenance. The financial means of the obligated party, the needs of the dependents, and the family's circumstances are considered in arriving at a just and balanced maintenance arrangement. The maintenance amount should be proportionate to the obligated party's income and financial capacity.

  4. Reciprocity and Mutual Obligations

    Maintenance is seen as a reciprocal arrangement within the family unit. While male family members bear the primary responsibility for financial support, this duty is balanced by the rights and obligations of the supported party. It is considered a form of social solidarity, promoting mutual care and support within the family.

  5. Continuity and Duration

    Maintenance obligations continue for as long as they are required and are typically terminated upon specific events such as the death or remarriage of the supported spouse. The duration of maintenance may vary depending on factors such as the age of the children, the financial capacity of the obligated party, and the circumstances of the case.

  6. Modifiability and Adjustment

    Maintenance orders under Muslim Personal Law are not necessarily fixed for a lifetime. They can be modified or adjusted based on changing circumstances of the obligated party or the dependents. For example, if the obligated party experiences a significant change in financial capacity or the dependent's needs increase, the court may consider modifying the maintenance amount accordingly.

Comparison of maintenance under Muslim personal law and Section 125 of CrPC


Muslim Personal Law: Maintenance under Muslim Personal Law applies specifically to Muslims in India. It is governed by the Muslim Personal Law (Shariat) Application Act, 1937.

Indian Statutory Law(Section 125 CrPC): Maintenance under Indian statutory law, on the other hand, is applicable to individuals from all religions and is governed by various statutes, such as the Hindu Adoption and Maintenance Act, 1956, the Code of Criminal Procedure, 1973, and the Protection of Women from Domestic Violence Act, 2005.

Grounds for Maintenance

Muslim Personal Law: Under Muslim Personal Law, a Muslim wife is entitled to maintenance from her husband during the subsistence of the marriage. She is eligible for maintenance if she proves that her husband has failed to provide for her maintenance or if he has neglected or refused to maintain her.

Indian Statutory Law: Indian statutory law provides for maintenance to various categories of individuals, including wives, children, aged parents, and even divorced women. Grounds for maintenance can include factors like inability to maintain oneself, desertion, physical or mental cruelty, or any other reasonable cause.

Quantum of Maintenance

Muslim Personal Law: The quantum of maintenance under Muslim Personal Law is determined based on the husband's financial capacity. The amount should be reasonable and adequate to meet the wife's needs and standard of living.

Indian Statutory Law(Section 125 of CrPC): The quantum of maintenance under Indian statutory law varies depending on factors such as the financial capacity of the person liable to pay maintenance, the claimant's needs, and the standard of living they were accustomed to.

Method of Determination

Muslim Personal Law: Maintenance under Muslim Personal Law is typically determined through negotiations or by a Shariah court. The court takes into account the financial status, earning capacity, and other relevant factors while determining the amount.

Indian Statutory Law: Maintenance under Indian statutory law is generally determined by the family court or a magistrate. The court considers various factors, including the income, property, and other obligations of the person liable to pay maintenance, as well as the needs and expenses of the claimant.

Enforcement and Redressal

Muslim Personal Law: In case of non-payment of maintenance under Muslim Personal Law, the wife can approach the Shariah court or a Qazi to seek enforcement and redressal.

Indian Statutory Law: Non-payment of maintenance under Indian statutory law can be addressed through legal remedies. The claimant can approach the family court or magistrate, which has the power to issue orders for maintenance, enforce compliance, and take punitive action for non-compliance.



Muslim Personal Law

Indian Statutory Law(CrPC)


Specifically applies to Muslims

Applicable to individuals of all religions

Grounds for Maintenance

Neglect, refusal, or failure to provide maintenance

Various grounds, including inability to maintain oneself, desertion, cruelty, etc.

Quantum of Maintenance

Determined based on husband's financial capacity and the wife's needs and standard of living

Determined based on financial capacity, needs, and standard of living of the person liable to pay maintenance

Method of Determination

Negotiations or Shariah court

Family court or magistrate

Enforcement and Redressal

Approach Shariah court or Qazi

Approach family court or magistrate


Is Muslim Personal law better than CrPC in claiming maintenance?

Under the personal law, a Muslim woman can claim maintenance only during the period of iddat. As per the Hedaya, maintenance refers to “all those things necessary for the maintenance of life(food, clothing, shelter). This definition is very narrow and cannot be interpreted liberally. Thus, we can form an opinion that maintenance under Muslim personal law includes only a limited amount of benefits for the wife and that to only during her iddat period.

In contrast to the Muslim Personal Law, the CrPC grants even divorced women the right to maintenance. Moreover, maintenance is granted under CrPC looking at the standard of living of the wife during the period of marriage and is not limited to basic, physiological expenses. It depends on the discretion of the judge based on his interpretation of the social and economic status of the party. Hence, maintenance under CrPC is a more liberal provision 

There has been a controversy about the inclusion of mehr within the ambit of section 127(3)(b) which was settled in the case of in the landmark case of  Mohd. Ahmed Khan V Shah Bano Begum which held that mehr does not come under Section 127(3)(b), as it is an obligation on the husband and is paid as a mark of respect for the wife, and not the amount payable to the wife on divorce.

  1. Shabana Bano v. Imran Khan (2010 (1) SCC 666) In this case, the Supreme Court clarified that Muslim divorced women are entitled to maintenance under Section 125 of the CrPC, irrespective of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The court emphasized the obligation of Muslim husbands to provide for their divorced wives and rejected the contention that the Act provided the exclusive remedy for maintenance.
  2. Shayara Bano v. Union of India (2017 (9) SCC 1) This significant case dealt with the constitutional validity of triple talaq (instant divorce) among Muslims. Although not specifically related to maintenance, the judgment addressed issues of gender equality and the rights of Muslim women. The Supreme Court held that instant triple talaq is unconstitutional, arbitrary, and violative of women's rights, highlighting the need for reform in personal laws to ensure gender justice.

Contemporary Challenges

Muslim women in India face various contemporary challenges regarding maintenance. Some of these challenges include:

  1. Lack of Uniformity

    One of the primary challenges faced by Muslim women in India regarding maintenance is the absence of a uniform and standardized maintenance law. Unlike other personal laws, such as Hindu or Christian law, Muslim personal law does not have a codified set of provisions for maintenance. This lack of uniformity leads to discrepancies in the interpretation and application of maintenance principles, causing difficulties for Muslim women seeking maintenance.

  2. Interpretation and Gender Inequality

    The interpretation of maintenance provisions under Muslim personal law often tends to be influenced by patriarchal norms and traditional gender roles. Some interpretations may favor men over women, resulting in unequal treatment and inadequate maintenance amounts for women. This gender bias can perpetuate economic vulnerability and hinder the financial independence of Muslim women.

  3. Limited Awareness and Access to Legal Remedies

    Many Muslim women in India face challenges in accessing legal remedies for maintenance due to limited awareness of their rights and the legal procedures involved. The lack of knowledge about available legal provisions and the complexities of the legal system can make it difficult for women to navigate the process of seeking maintenance effectively.

  4. Social Stigma and Pressure

    Muslim women seeking maintenance may encounter social stigma and face pressure from their families or communities, which can discourage them from asserting their rights. Cultural and social norms that prioritize family harmony and discourage open disputes may deter women from pursuing their legitimate claims for maintenance.

  5. Financial Constraints

    Economic factors pose significant challenges for Muslim women in obtaining maintenance. Many women may lack financial resources to hire legal representation or pursue prolonged legal battles. Limited access to financial resources can impede their ability to assert their rights and seek adequate maintenance amounts.

  6. Ineffective Implementation and Enforcement

    Even when maintenance orders are obtained, the implementation and enforcement of these orders can be challenging. Delayed or non-compliance by the obligated party can further exacerbate the financial struggles faced by Muslim women, leading to prolonged legal battles and emotional distress.

  7. Intersecting Personal Laws and Conflicting Jurisdictions

    Muslim women who are in interfaith marriages or marriages governed by different personal laws may face challenges in determining the applicable maintenance provisions. Conflicting jurisdictions between personal laws and the potential lack of clarity on which law governs the maintenance claim can create legal complexities and uncertainties for Muslim women seeking maintenance.

  8. Impact of Socioeconomic Factors

    Socioeconomic factors, such as poverty, unemployment, and inadequate social welfare systems, exacerbate the challenges faced by Muslim women in obtaining maintenance. Economic constraints may limit the ability of the obligated party to provide sufficient maintenance, leaving women and their children financially vulnerable.

Addressing these contemporary challenges requires a comprehensive approach, including legal reforms, raising awareness about rights and remedies, empowering women, promoting gender equality within interpretations of personal laws, and ensuring effective implementation and enforcement mechanisms. By recognizing and addressing these challenges, it is possible to improve the maintenance framework for Muslim women in India and enhance their economic well-being and empowerment.


Maintenance under Muslim Personal Law is a multifaceted and dynamic concept that plays a vital role in ensuring the financial security and support of women and children within the family unit. Grounded in Islamic principles, it reflects the duty of support, reasonable standards of living, fairness, and reciprocity. However, contemporary challenges have emerged due to shifting gender roles, legal reforms, transnational families, and economic considerations.

In response to these challenges, modern perspectives have emerged, emphasizing women's empowerment, legal reforms, alternative dispute resolution, and socioeconomic factors. These perspectives seek to address gender inequalities, harmonize maintenance laws with evolving societal norms, and adapt to changing economic landscapes.

Moving forward, a balanced approach that respects Islamic principles while considering the evolving needs and rights of individuals is essential. This requires continued dialogue, research, and collaboration between scholars, policymakers, and stakeholders to navigate the complexities of maintenance under Muslim Personal Law.

Ultimately, a comprehensive understanding of maintenance under Muslim Personal Law requires the exploration of historical foundations, engagement with contemporary challenges, and a commitment to equitable and inclusive interpretations that safeguard the welfare and dignity of women and children within the framework of Islamic jurisprudence.


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