First, Islam permits only those persons (except wife) to be maintained by others who are bound to depend on others, either because of immaturity (or old age) or because they have no means to support themselves. A person is entitled to be maintained by others only in the extreme situation when there is no alternative except begging and depending on alms (begging) for one’s livelihood. It is a corresponding duty of every able-bodied and well-to-do person to provide others so that they may not be compelled to live by begging.
Secondly, the obligation to maintain, and to bear the burden of fooding and lodging etc., of others, is reasonably restricted in Islam. The Islamic principle is that a person should not be allowed to suffer any monetary loss in maintaining others. In other words, maintenance of a person, except that of a wife, is to be provided out of the properties of the person who is being maintained, whether that person is infant or adult.
This is so, because under Islartt the property is basically an individual property, there is no concept of any joint-family property. However, the case of the wife is an exception. The wife is entitled to be maintained by her husband even if she has enough property to maintain herself. It may be noted that taken together, the two basic principles of Islamic law of maintenance may appear to be contradictory to each other.
This is obvious because, the texts and the authorities on Muslim law have not clearly separated the moral obligations from the legal one. The Kazi was the final authority on many important points such as, the quantity of maintenance, or the circumstances under which a person was entitled to be maintained by others. The Indian Courts cannot exercise such wide powers as were exercised by the Kazi Tyabji rightly observes thus:
“the details in the texts about the quantum of maintenance, the rules for determining when a person must be considered necessitous, and for fixing the standard of means, the possession of which imposes the obligation to provide maintenance, are hardly applicable to our times and conditions.”
The result is that Muslim law of maintenance which is enforceable in India, is r based on the Muslim personal law laid down by the courts and the law incorporated in the enactments such as the Indian Majority Act, 1875, the Criminal Procedure Code, 1973 (Chapter IX), and the Muslim Women (Protection of Rights on Divorce) Act, 1986. In the language of Muslim law, maintenance is called Nafkah. The Muslim law of maintenance, which is enforced in India, is discussed in the following pages.
Persons Entitled to Maintenance:
Under Muslim law, a person may have the right to be maintained by the other on the basis of: (a) the marriage, and (b) the blood-relationship. Wife is entitled to be maintained by her husband because of marriage and her right is absolute; the husband is bound to maintain the wife whether she is necessitous or not.
The second category of persons entitled to maintenance, are the blood-relations which include young children and necessitous parents and other relations within the prohibited degree. In this manner, under Muslim law the following persons are entitled to maintenance:
(2) Young children,
(3) The necessitous parents, and
(4) Other necessitous relations within the prohibited degrees.