Laws of maintenance specially to wife and children has been discussed here, because according to Islamic concept women are the incarnation of beauty of their man houses and they have to live inside of it and take care of children and other household activity, so husband on the other hand is bound to meet the financial needs of family and there are many laws for the protection of rights of women and children has been laid down, because women and children are weak and there are some cases they have no guardian on their head so Islam bounds man to provide them protection and meet their essential needs.
This is how maintenance rules applicable there. But how it works in Pakistan it is stated as under:
WHAT IS MAINTENANCE?
The word maintenance has not been defined in the Family Court Act, therefore we have to look at the dictionary meaning. Varies dictionaries defined it as under:
Black’s Law Dictionary: Financial support given by one person to another. Paid as a result of legal separation or divorce: esp Alimony. Maintenance may end after specified time or upon the death, cohabitation or remarriage of the receiving party.
Chambers Dictionary: Maintenance: A money paid by one person to support another, as ordered by a court of law. e.g. money paid to an ex-wife and/or children following a divorce.
Permanent edition Volume 26: Maintenanceâ has been defined as a word of general welfare and comprehends food clothing and medical care.
Besides above, in some reported cases, the Honorable Courts have defined the definition of the word Maintenance:
2000 CLC 725: The definition of maintenance in Islam is Nifka, in a language of law it signifies all those things which are necessary to the support of life, such as food clothes and lodging.
At page No.607 Fatawa Alamgiry Volume 2 Quanoni Kutab Khana Lahore it has been stated that if father is not disabled but extremely poor to maintain his children then may be ordered to maintain the minor and amount so spent will be debt against father.
Section 370 of Muhammadan Law by D.F. Mullah provides as under:Maintenance of children and grandchildren: A father is bound to maintain his sons until they have attend the age of puberty. He is also bound to maintain his daughters until they have married. But he is not bound to maintain adult sons unless they are disabled and infirmity or disease.
In the light of the above, it is quite evident that to maintain his child is obligatory on the father and his responsibilities cannot be absolved merely on the basis that mother is an earning hand.
MAINTENANCE OF WIFE AND/OR CHILDREN UNDER MUSLIM FAMILY LAWS ACT.
The following versus of the Holy Quran gave rise to the rights and obligations of Maintenance:
Let the men of means spend according to his means, and the men whose resources are limited, let him spend according to what God has given him.
1 Let the women live (in iddat) in the same style as live, according to your means.
2 But he shall bear the cost of their food and clothing on equitable terms.
Maintenance can be said as nafqah or nan-o-nafqah, have to be on shoulders on husband towards his wife and children. He have to bear their basic expenses and here are some rights and remedies available which wife can attain , if husband didn’t discharge his obligation.
The Holy Quran says:
The women have almost the same rights over men as men have certain rights over the women in kindness.
Beloved Prophet (Peace be upon him) has said:
Best among you are those who behave well with their women.
Duties of Husband
Following are certain duties owed by husband in relation to his wife and children, in violation of it he have to face serious penalties and punishment as laid down by the court, he is bound to maintain his spouse and legitimate children because in Islam Man have given all the authorities and burden his shoulder to maintain his house i.e. wife and children. He is obliged to provide sufficient means so his wife and children feel protected and free from fears of hunger and social security.
Duties of husband towards his wife is to maintain her adequately by maintenance means food, shelter, safety and basic amenities of life (Section 9 Muslim Family Laws Ordinance 1961) It is his duty if he has more than one wife then treat them equitably (Section 9 Muslim Family Laws Ordinance 1961) It is also the duty of husband that not to indulge and involve in criminal activities, if he does so wife got a right a to have talaq under Section 7 Muslim Family Laws Ordinance 1961).
These are the duties of husband when then women is her wife but after separation , divorce and iddah what duties accrue to husband simultaneously what rights does a woman incurred in a situation where that man is no longer pronounced to be her husband, is she still got a remedy ? yes she has, There are certain situations here:
When a women is divorced,
When a women took khula,
When a women uses her right of talaq e tafwiz,
When a women is divorced by her husband on reasonable ground then she can claim for (haq meher) Dowry.
When a women took khula her right of dowry extinguished but if she is pregnant then shall be maintained by his husband, and As:
Holy Prophet PBUH SAW said that:
if both of you have conflicts in between you leave them , and bear the expense of women till she is feeding your child.
When women used her right of talaq e tafwiz as given in nikah namas so she can have her dowry amount to, it’s basically a delegated right of divorce own to her as well.
When a women becomes widow from the estate of the dead man she can be compensated, as well as according to law of succession and inheritance, she can hold maintenance be compensated from there. But basic liability to maintain women by her husband is only during the iddah period.
Provided this according to section 10 of Muslim Family Ordinance Where no details about the mode of payment of dower are specified in the nikahnama or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand In Mulla’s Muhammadan Law, it is stated as follows:278. Order for maintenance: If the husband neglects or refuses to maintain his wife, without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement. Or, she may apply for an order of maintenance under the provisions of the Code of criminal Procedure, 1898, s. 488, in which case the court may order the husband to make a monthly allowance in the whole of her maintenance not exceeding five hundred rupees. If a length of time should elapse during which the wife has not received any maintenance from her husband, she is not entitled to demand any for that time except when the Kazee had before determined or decreed it to her; section 5 of the limitation act in Pakistan can allow that parties after delay can be compensated and have remedies available to. If there is a prior agreement between husband and wife then wife can claimed for that amount to under maintenance. Divorce wife having children also get additional maintenance amount as per their requirement.Divorced women are entitled to maintenance not only for iddat period from their former husband but also to reasonable and fair provisions for future maintenance. S.3 of the Muslim Women (Protection of Rights on Divorce) Act has to be given under the liberal interpretation to help divorced women. K. Zunaideen v. Ameena Begum (1998) 1 ctc 566When Wife Is Not Entitled To Compensation When she have not attained puberty nor become major according to the majority act When she is not loyal and obedient to his husband When she is not living with her husband When abandons conjugal right without any reasonable cause Maintenance For Children Maintenance of children is generally the responsibility of a father and it’s a consensus of scholar that father holds this duty to provide all monetary and economic needs of a child, even after women married to another person and it’s fathers duty to bare all his expenses related to upbringing, education and for other pre-requisite facilities etc.Let the rich man spend according to his means; and the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what He has given him. Allah will grant after hardship, ease [al-Talaaq 65:7]. It is to be noted and remember here that it is the primary duty of the father to maintain the child.Intent and purpose of the child maintenance Intent and purpose of the maintenance allowance to a minor child is to enable her/him to continue living at least in the same state of affairs as the child was used to live prior to separation/divorce amongst the parents and it would be quite unjust and against the norms of proprietary if due to separation amongst the parents the child has to relegate to a lower level of living standard or he/she is declined the level or standard of education which was achieved by him/her prior to such happening i.e. separation of parents. At the same time, there is no escape from the fact that financial status of the father is also to be taken into consideration while awarding maintenance.Procedure of Filing A Suit for Maintenance. If husband fails to maintain his wife adequately, or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may file a suit for recovery of maintenance amount under West Pakistan Family Court, Act 1964 against her husband.Institution of Suit under West Pakistan Family Court Act, 1964 Presentation of Suit for recovery of maintenance amount shall be filed by a woman (married under Muslim Family Law) under West Pakistan Family Court Act, 1964 or guardian in case of child maintenance. As per section 9 the Suit for recovery of maintenance of wife and/or children shall contain all material facts relating to the maintenance. It is worth mentioning here that the suit for maintenance may also cover other family disputes such as khula, dowry, dower, custody of child, personal property and belongings of wife etc.Notice to Defendant (Husband)After institution of the suit by the wife, the Family Court shall issue notice to the Defendant (husband) through different modes of services such as Through Court bailiff, TCS and Registered AD.If the above notice did not receive by the Defendant on the reasons whatever in nature, the Family Court may issue same notice by way of pasting the notice at the door/wall of the given address, as provided under Order V of the Civil Procedure Code.However, despite issuance of notice through pasting, the defendant fails to appear before the Family Court at the given date, the Family Court may issue notice by way of Publication in the Newspaper.Finally, the Court may debar him from filling of written statement and issue ex-parte decree against the Defendant after completion of Plaintiff (wife) statement/evidence/pre-trail process.Written Statement. When the notice as issued by the Family Court is received by the Defendant and he appeared before the Family Court, he shall file written statement along with all relevant documents and the copy shall be supplied to the Plaintiff (wife)Recording of evidence After framing of issues, both parties will record their evidences. Wife has to show that husband has failed to maintain his wife adequately. While husband may produce his evidence in support of his plea.Award of Maintenance. Award of maintenance can be claimed on Quantum merit principle, after the considering the social status of man and his earning. Poor man’s pocket. Child-Support-Image cannot be burdened upon. While awarding the maintenance, condition of both husband and wife is to be looked upon by the court.Time duration. The trail under West Pakistan Family Court Act, 1964 shall be disposed off within a period of six month. However, practically, it takes more time then the stipulated in the law.Interim Relief. Women can claim maintenance during a suit and after it too, this right is only given to the wife. Interim (on temporary basis women can claim for maintenance on immediate grounds) wife suit can be maintained till only 6 months and can file within 60 days. Pendente lite (during the pendency of suit what losses she suffers can be maintained. Permanent maintenance is that she can be financially compensated in future too. Punishment: This amendment provides punishment for the person who violates above rules.Amendment) Act 2015 (XIII of 2015) for the following:On conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both.