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TitleCHAPTER 3 WOMEN'S RIGHT OF MAINTENANCE: STUDY OF THE VARIOUS PERSONAL LAWS ...
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CHAPTER 3

WOMEN’S RIGHT OF MAINTENANCE: STUDY OF THE

VARIOUS PERSONAL LAWS AND SOCIAL WELFARE

LEGISLATIONS



3.1 Introduction

India being a multi religion Country stands for unity in diversity

which comprises various regions, religions and cultures. Being diverse

about the cultural and religious beliefs, every religion has got certain

norms and conditions as far as there various religious aspects are

concerned.

Even the maintenance jurisprudence which aims to establish and

provide a social and financial security to the destitute females vary

from religion to religion and the set of rules applicable to the various

categories vary as per their own religious beliefs which are applicable

in the same conditions on the same segment of the fair sex. Our law

makers have always shied away from legislating on the various points

of personal laws which are considered to be that of controversial or

sensitive nature, for the fear that such legislation being labeled as

intrusion on their rights thereby resulting in strong backlash.

Even the Constitution of India1 incorporates in the Seventh

Schedule that concept of Marriage, Divorce, Adoption, Wills,

Intestacy, Joint Family; Succession, Partition etc. are to be subjected

by the Personal Laws of the individual, which are amended from time


1 Seventh Schedule: Concurrent List, Entry 5 states that, �Marriage and divorce;

infants and minors; adoption; wills, intestacy and succession; joint family and
partition; all matters in respect of which parties in judicial proceedings were
immediately before the commencement of this Constitution subject to their personal
law�.

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to time by the various communities to incorporate the changing times

and to keep pace with the requirement of time.

In the present chapter an attempt has been made to study and

analysis the diversified provisions related to maintenance as far as the

claim of various categories of women is concerned the various

parameters which are to be achieved for a successful claim of

maintenance will be elaborately discussed in relation to the various

religions in India namely Hindu, Muslim, Christians and Parsis.

Though many personal laws have incorporated the provision related to

the husband’s entitlement to claim the maintenance from the wife as

well, but this aspect has not been covered under the present work.

The Chapter has been divided in to following parts:

I. Law of maintenance under the Hindu Law:

• The Hindu Adoption and Maintenance Act, 1956

• The Hindu Marriage Act, 1955

II. Law of maintenance under Muslim Law:

• Obligation under the Muslim Personal Law

• The Muslim Women ( Protection of Rights on

Divorce0 Act, 1986

III. Maintenance under the Special Marriage Act, 1954

IV. Maintenance under the Indian Divorce Act, 1869

V. Maintenance under the Parsi Marriage and Divorce Act,

1936

VI. Maintenance of Parents and Childless Senior Citizens

under the maintenance of Parents and Senior Citizens

Welfare Act, 2007

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person who is poor is bound to provide maintenance nor is a person

who is not necessitous entitled to receive maintenance.369

The obligation to maintain and bear the expenses under the

Muslim law are reasonably restricted, as the principle lying

underneath is that no one should himself suffer the monetary loss in

order to maintain the other people. Altogether the Islam also states

that other than wife, only those people are entitled to be maintained,

who are dependent on others either because of tender age/ old age or

they have actually left with no means of subsistence. The entitlement

to claim the maintenance from some other person only arises in the

extreme case where the person is left with no other alternative, other

than begging.370

3.3.1 Definition of Maintenance under Muslim Law

Maintenance is called in Arabic as Nafaqah371 in Muslim Law,

which, in the language of the law, signifies all those things which are

necessary to the support of life, such as food, clothes and lodging,

although many confine it solely to food. It has been further laid down

that it is payable in three causes of maintenance established by law.

(1) Marriage: (2) Relationship (3) Property (i.e. in case of a slave).372

According to Hedaya ,373 maintenance is and includes, �All those

things which are necessary to the support of life, such as food, clothes

and lodging; many confines it solely to food�.

According to Durr-Ul-Mukhtar,374 �Nafaqa Literally means that

which a man spends over his children; in law it means feeding,

clothing and lodging; in common use it signifies food�.


369 Paras Diwan & Piyushi Diwan, Muslim Law in Modern India, 280 (2008).
370 Mufti Samiya Tabasum, Status of Muslim Women in India, 208 (2013).
371 Thomas Patrick Hughes, Dictionary of Islam (1895) available at http://answering-

islam.org/Books/Hughes/, (accessed on 12 December 2014).
372 Ibid.
373 Hamilton, The Hedaya or Guide, 140 (1957).

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According to Baillie,375 �maintenance signifies all those things

which are necessary for the support of life and includes suitable food,

raiment and lodging�.

According to Fatwa-I-Alamgiri,376 �maintenance comprehends

food, raiment and lodging, though in common parlance it is limited to

first�.

According to Tahir Mahmood,377 �maintenance of wife (called

Nan-Nafaqa in Hindustani) includes:

(a) Food;

(b) Clothing; and

(c) And a separate place to live (in the husband�s house)�378

According to Dr. Paras Diwan,379 �maintenance� includes food

and lodging and, in the case of� the wife, the use of a separate

apartment to which no one except the husband may have access

without her consent, and if the husband is rich, the cost of maintaining

one female servant of the choice of the wife.

As clear from the above definitions given by various eminent

jurists in the Muslim Law, it is clear that the word �maintenance� not

only includes food, clothing, lodging and but also cost of education.

Further the word �maintenance� does not exclude other necessary

expenses for mental and physical well-being of a minor according to

the status in society of the family. As ideas of social needs and social

justice alter, no such hard and fast rule can be laid down for all time,

as to what should be the standard of education to form part of


374 Muhammad Ala-ud-din Haskafi,The Durr- Ul-Mukhtur, 316 (1992).
375 Supra note 368 at 441.
376 Fatawa-I-Alamgiri, Vol. I, 732.
377 Tahir Mahmood, The Muslim Law in India, 79 (1980).
378 Ibid.
379 Supra note 369 at 281.

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heard in person or through a duly authorized

representative.

(6) The Appellate Tribunal shall make an endeavor to

pronounce its order in writing within one month of the

receipt of an appeal.

(7) A copy of every order made under sub-Section (5) shall

be sent to both the parties free of cost”.733

3.7.20.1 Who May File an Appeal

Under Section 16 of The maintenance & Welfare of Parents &

Senior Citizen Act, 2007, any senior citizen or the parent, aggrieved

by the order of tribunal, may file an appeal to the Appellate

Tribunal734 Appeal may be filed only by the applicant under the

following cases:

(a) If they are aggrieved or not satisfied by the amount of

maintenance;

(b) On the rejection of the application of maintenance.

From the reading of this sub Section it is apparently clear that,

it does not provide any right of appeal to the children or the relative in

case they feel aggrieved by the order of the Tribunal. Such children or

the relative will have the remedy to move to High Court under Article

227 of the Indian Constitution, challenging the legality of the order,

but the high Court in such a case cannot exercise the powers of

appellate Court and powers will be remained confined to that of the

revisional Court.735 But Hon’ble P&H high Court has recently

contended that Section 16(1) is valid and must be read to provide the


733 Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
734 Section 15 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
735 Supra note 67 at 288.

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right of appeal to the both parties and not the parents / senior citizens

only.736

3.7.21 Legal Assistance under the Act

Section 17 of the Maintenance & Welfare of Parents & Senior

Citizen Act, 2007prohibits the representation of senior citizens or the

parents by the advocate in any manner by whatsoever. Recently

Hon�ble P&H High Court in the case titled Paramjit Kaur Saroya v.

Union of India,737 has held that at the time of the enactment of the Act,

Section 30 of the Indian Advocates Act, 1961 which confers the right

on the Legal practitioner was not in force. However subsequently, the

position changed and the act came into force on 15 June 2011. Thus

the anomaly created would require the central government to look in

to the matter, since Section 17 still being on the statue book and

would not come in to way by any means in the way of legal

representation.

Thus on the analysis of the various personal laws and the

provisions of maintenance incorporated there in, it is apparently clear

that though every religion has attempted to take care of the various

needs by providing maintenance, but still there are great variations at

the religious fronts and even in the secular statutes, which needs to be

rectified in order to provide equal relief to all women despite of the

religion to which they belong.




736 Paramjit Kaur Saroya v. Union of India, AIR 2014 P&H 121.
737 Ibid.

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