Introduction

“The law of maintenance suffers in point of definiteness,” says Tayabji, “ as the Muslim texts
has no object of keeping legal rights distinct from obligations of a moral nature. The powers
of a kazi are different from those of a court of law in India, that rules sufficient to guide the
Muslim courts can at times hardly be stated in a concrete form, without violence to some
necessary but merely implied, reservation or qualification. The whole of law cannot,
however, be said to be merely imperfect obligation.”1

The distinction between legal and moral duty to maintain has been well brought out by the
Bombay High Court in Mohd. Jusaib v. Haji Adam2.

“ It has been contended that Muhammadan law as to maintenance is a law of imperfect

obligation imposing a moral and not a legal obligation. The distinction between the laws of
perfect and imperfect obligation has been discussed in detail by Abdur Rahim in his
Principles of Muhammadan Jurisprudence, where he has described the laws as to domestic
relations to be the laws of perfect and not imperfect obligation. He has also referred to the
maintainance of the children as the right against their father. So also Wilson in his Anglo-
Muhammadan law has asserted the rights of minor sons to maintenance from their father on
the authority of P. 456 of Baillie’s Digest so that there would appear to be no reason to doubt
that the rights of maintenance are enforceable under Anglo-Muhammadan Law. That being
so, the right to enforce them in the civil courts under Section 9, of CPC, is unaffected by the
fact that there is a concurrent provision for their enforcement in criminal courts under Section
488 of the Criminal Procedure Code, as pointed out in Ghana Kanta Mohanta v Gereli”.3

It must be appreciated that whereas the Muslim jurists left legal and moral obligations to
maintain overlapping each other, they remedied this “deficiency” by giving extended powers
to the Kazis. However, since the present day, law courts do not possess such powers, the
difficulty remains. Thus, though it may be conceded that Muslim law of maintenance
imposes a legal obligation.

After accepting the view that maintenance is a legal obligation, and the first obligation arises
on marriage and it is obligatory to maintain his wife and children.

1
Tyabji(4th Edition) at p.254.
2
ILR (1911) 37 Bom 71.
3
ILR (1904) 32 Cal 479.
Maintenance of wife during the continuation of marriage.

The husband is bound to maintain his wife as long as she is faithful to him and obeys his
reasonable orders. In an interesting case4 decided by Strachy and Badruddin Tyabji, JJ., it
was held that disobedient wife need not to be maintained.

“the husband’s duty to maintain his wife is conditional on her, obedience, and he is not bound
to maintain her if she disobeys him by refusing to live with him or otherwise5. In this case the
wife only paid occasional visits to his husband’s house, staying for a night or so at the time
from the 6th March to 23rd June 1895, returning on each occasion to her mother’s house…. I
am clearly of the opinion that in such circumstances a Muhammadan husband is not bound to
give his wife separate maintenance…”

To the same effect were the observations of Tyabji, J.

“… it is impossible to hold that a Mussulman wife defying her husband, refusing to live with
him, and bringing s

4
A v B, ILR (1896) 21 Bom 77.
5
Baillie, at p. 438.