MAINTENANCE OF WIFE AND/OR CHILD UNDER MUSLIM FAMILY LAWS ACT, IN

PAKISTAN:
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
These personal family laws varies with custom to custom and depends upon the culture and society,
so they differ in many ways
Likewise in Saudi Arabia females love when their husband (sheikh) remarry because they are bound
by their to give exact same things to their previous wives which they are buying for new brides
On the contrary polygamy and bigamy consider a crime in European countries, in fact in our laws it
has been made a wrongful act under family laws ordinance section 6 but there are certain limitations
to it
In European countries if man and women being divorced so their estate and property divided
equally, then distributed among them equally. 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.
WORDS AND PHRASES; Permanent edition Volume 26
“Maintenance” 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”.
In case reported in 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 asye 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 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 Qur’an says: “The women have almost the same rights over men as men have certain
rights over the women in kindness.”
Beloved Prophet SallAllaho Alaihi wa Sallam 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) Dowery. 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 Muhhamedan 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 566[10]
When 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
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 meriut principle, after the considering the social
status of man and his earning. Poor man’s pocketChild-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.”