LAW OF MAINTENANCE
Adv Zahid Ahmed Hero
Maintenance means provisions for fooding, lodging and other essential for the livelihood. Duty to maintain is an obligation under which a person is legally bound to provide fooding, lodging, clothing etc to another person. The advent of Islam has ordained that marriage imposes an obligation on the husband to maintain his wife likewise the birth of a child imposes an obligation on the father to maintain his children so long as they are unable to support themselves. The wife is entitled to be maintained by her husband even if she has enough property to maintain herself. On the contrary, the wife is under no legal obligation to maintain his unemployed husband.
Under the Muslim sharia Law, the persons who have the rights to be maintained by the other are determined on the basis of a. the marriage b. the blood-relationship. A wife is entitled to be maintained by her husband because of her marriage and her right is absolute. The husband is legally bound to maintain his wife whether she is necessitous or not. The second category of persons entitled to maintenance is the blood-relations which include young children and necessitous parents. So wife, children and necessitous parents have absolute legal rights to be maintained under Muslim Law.
As it is told earlier that wife’s right to be maintained by her husband is absolute, this right arises out of her status. It is a legal obligation of every husband to maintain his wife although the wife may have means to support her and even if the husband has no means to provide her maintenance. A wife’s right to be maintained by her husband get’s priority over the rights of maintenance of all other persons. It is interesting to note that in maintenance, the wife is preferred even over the young children wife is considered to be the source or root and a child is the offspring or a branch. It is implied in every contract of marriage that husband would maintain his wife throughout her life. The Wife’s right to claim maintenance from her husband is independent right. This right does not depend on any separate agreement of maintenance. The wife’s right exist whether she is Muslim or non-Muslim, rich or poor, of sound health or unsound mind. Even if where the wife lives separately because of the cruel behavior of her husband, she is entitled to be maintained by him.
A wife, whose husband neglects to maintain her without any lawful justification, is entitled to file a suit for maintenance in a Civil Family Court, under Family Courts Ordinance, 1985.She is also entitled to enforce her rights under the Code of Criminal Procedure. The amount of maintenance to the wife may be any reasonable sum of money to be decided by the court taking into account the requirements of the wife according to her life status and the socio-economic conditions of the husband.
A divorced woman is entitled to claim maintenance from her former husband. However a divorced wife can claim maintenance from her former husband only for that period during which she is observing her iddat. The duration of iddat on divorce is three menstruation period or if pregnant, till delivery of the child. The husband’s liability to maintain a divorce wife terminates after the expiry of iddat even if she remains unmarried.
In context of second category, a father is the legal guardian of his children. Therefore, it is the father who is responsible for the maintenance of his male and female children. A father is under an obligation to maintain his son till the son attains majority, it is generally upto the age of eighteen years. But a father is not bound to maintain his adult son unless such a son is infirm or disabled. And a father is liable to maintain his daughter till she gets married. The father is also liable to provide maintenance to his widowed or divorced daughter, if she is unable to maintain herself. A father is bound to maintain his son and daughter even if they are not in his custody, may be in the custody of their mother or any other person legally entitled to their custody. Where the father has no means to provide maintenance to his children, the mother is liable to maintain them if she is in easy circumstances. But where the mother too is unable to maintain them, then the responsibility is shifted to the paternal grandfather.
In the last but not least, The children are bound to maintain their necessitous parents. The principle of law is that as the children have rights to be maintained by their parents, they have also a corresponding duty to provide maintenance to their parents. The children are legally bound to maintain their parents who are poor, in other words, only the needy or necessitous parents are entitled to get maintenance from their children.IN this case the sons and daughter both are equally liable to maintain their parents, no difference between a son and a daughter in respect of this liability. Even now in our Country Parents can go to the Court and file a suit against their children for their maintenance under The Parents Protection Act, 2013.
But a son is not bound to maintain his step-mother. Thus he is not bound to maintain that wife of his father who is not his own mother.
LL.B (Hon’s) 1ST Class
LL.M 1ST Class
Advocate , Supreme Court of Bangladesh