Guardianship, Custody And Maintenance under Muslim law With Section 144 BNSS 2023

Guardianship, Custody And Maintenance under Muslim law.

Guardianship, custody, and maintenance under Muslim law are critical for protecting the rights and welfare of children and dependents. These concepts clarify who has the legal authority over a minor, who is responsible for the child's physical care, and who holds the financial obligation for their upbringing. Based on the Qur’an, Hadith, and teachings of classical Muslim jurists, Muslim law views guardianship, custody, and maintenance as separate but related rights and responsibilities. Understanding these principles is important for law students, those aspiring to work in the judiciary, and anyone involved in family law disputes under Muslim law. This topic is also increasingly relevant in modern courts, where personal law is considered alongside child welfare and justice.

Guardianship under Muslim Law

Guardianship means the legal right and duty of a person (called a guardian) to take care of a minor person, property, or both, when that minor is not capable of doing so on their own due to age or mental incapacity.

The principles of guardianship are essentially based on the express teachings of the Quran. 

Under Islamic law the minority of male or female terminates when he or she attains the age of puberty. 

In Islamic law guardianship of minor primarily lies with the father. He is a natural guardian of a minor. 

When the father is dead, the guardianship of his minor devolves upon his executor. However, if the father dies without appointing an executor, then the guardianship devolves upon the grandfather.

Guardianship in Marriage for Minor 

A Guardian for Marriage is a person who has the legal authority to contract a marriage on behalf of a minor or an incompetent person under Muslim law. 

The person who can act as guardians in the marriage of a minor in order of preference are: 

Father 

Paternal Grandfather 

Brother 

Other male relatives from the father's side (according to proximity)

 This is called Wali-ul-jabir i.e. guardianship in marriage of minor.

Consent of an Adult Woman

After attaining the age of puberty, the consent of an adult man or woman to be married is must and wali's role is intermediary and facilitator. It is not approved to use force or com-pulsion for the adult man and woman in case of Nikah. 

It is against hadith. Once a woman came to the Prophet (SAW) and complained that her father is forcing her to marry to a person whom she does not like. She inquired, can her father force her' The Prophet (SAW) replied in negative. It is mentioned in the Kitabun Nikah of Bukhari. So it is not approved to use force and coercion against daughters and sons for marrying them. 

The Hanafis hold that an adult and sound woman is always entitled to give her consent without the intervention of a wali. When a wali is employed and found acting on her behalf, he is presumed to derive his power solely from her, so that he can-not in any circumstances act in contravention of her authority or instructions. When the woman has authorized her wali to marry her to a particular individual, or has consented to a marriage proposed to her by a specific person, the wali has no pow-er to marry her to another

Under Shia law, a woman who is 'adult and discreet' is herself competent to enter into a contract of marriage. She re-quires no representative or intermediary through whom give her consent. Among the Shaafi's and Maalik is, although the consent of the adult virgin is an essential like Hanafis and Shi-as, but she cannot contract herself in marriage without the intervention of wali.

Guardianship of Minor's Property

In case of guardianship of minor's property, the guardians under Muslim law may be classified in the order of preference as legal or natural guardian, Guardian appointed by the Court (certified guardian) and de-facto guardian i.e. voluntary guardian. 

The legal guardians of the minor's property in the order of preference are the father, the executor appointed by the father by the will, the father's father and the executor appointed by the will of father's father. Mother can be appointed by will as guardian, but not as legal guardian. The court while appointing guardian of minor's property must take the welfare of the minor into consideration.

Custody under Muslim law

Custody of infant children in Islamic law means 'hizanat' and the custodian of children means 'haazina'. Custody of an infant child primarily lies with the mother.

According to Tanwir-ul-Absar as laid down in Radd-ul-Mukhtar 'hazina' is the woman to whom belongs the rearing up of a child. Hazina should be free, adult, trustworthy and capable of bringing up the child and not married to a stranger. 

According to Fatawai Alamgiri the mother is of all the persons the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution. 

Under the Hanafi law the mother is entitled to the custody of a male child till he attains the age of seven years and of a female child till she attains by the father of the child, unless she marries a second husband, in which case the custody belongs to the father. Under the the age of puberty. 

The right continues, though she is divorced Shia law the mother is entitled to custody of a male child until he attains the age of two years and of a female child until she attains the age of seven years. After that the father is entitled to custody in preference to the mother; but the father may allow the mother to retain the custody of children of both the sexes beyond the period specified by the law.

Under Maliki law, mother is entitled to custody of a male child until such the male child's custody lies with mother till the age of seven. time as he arrives at puberty. 

Under Shafie and Hanbali law However, at the age of seven he is allowed to exercise the choice of living with either of its parents. If he prefers to continue with his mother, he is allowed to do so until he attains the age of puberty. It has been observed that under Shafei Law the mother is entitled to the custody of her daughter even after she has attained puberty and until she is married.

When Custody is Lost by the Mother:

The right of hizanat or custody of the mother is lost, according to all the schools by:

The subsequent marriage of the hazina with a per-son not related to the infant within the prohibited degrees. This is based on this presumption that while marrying with a stranger a woman enters into a new family and therefore will not have the same love and affection for the child before.

Her misconduct e.g she lives an immoral life, or lives with the women of ill fame, or she is convict-ed of theft etc.

Her changing of domicile so as to prevent the father or guardian from exercising the necessary supervi-sion over the child.

Her renunciation of Islam, i.e apostasy.

Her neglect of or cruelty to the child.

In Zynab Bi v. Mohammad Ghouse

The court held that the mother can keep custody of her children even if she is living separately from the father. Simply being separated from her husband is not a valid reason to disqualify her from being the custodian. 

Mohammed Shafi v. Shamim Bano 

In this case, the court made it clear that the welfare of the child is the top priority in guardianship decisions. Even if the father is the natural guardian under Muslim law, the court will not automatically hand over the child to him. If the mother is better suited to care for the child, the court can allow her to keep custody.

Maintenance Under Muslim Law

Maintenance is Nafaqah in Arabic, which literally means 'what a man spends over his family'. In its legal sense maintenance signifies and includes three things: food, clothing and lodgement.' Hedaya defines maintenance as all those things which are necessary to the support of life, such as food, clothes and lodging, many confine it solely to food. 

Fatawa-i-Alamgiri says "maintenance comprehends food, clothing and lodging though in common parlance is limited to the first. This means maintenance fundamentally comprises of three components, i.e. food clothing and shelter. 

However, it may not be confined to only these three components because the standard of living varies from place to place, society to society, community to community. What is a one time luxury becomes at another time a necessity and need.

Therefore the nature of maintenance may vary and may be determined on the basis of needs and status in society. Accordingly, it will cover those expenses which are necessary for the physical and mental well-being like medical expenses and educational expenses.

Similarly, the social and economic positions of the claimants and provider are to be taken into consideration.

Maintenance under Shariah Law of:

1. Wife

One of the essential legal effects of a valid Muslim marriage is that the wife becomes entitled to maintenance during the continuation of the marriage. The husband is bound to maintain his wife so long she is faithful to him and obeys his reasonable orders, even though she may be able to maintain herself and husband may not have sufficient means to maintain her. 

The husband's liability to maintain his wife begins when she attains the puberty and is able to consume the marriage and allows him free access for all lawful times. But he is not bound to maintain a wife who refuses herself to him or is otherwise disobedient. However, if the refusal is based on reasonable cause like non-payment of prompt dower or she leaves the husband's house on account of his cruelty, then she is still entitled to maintenance. 

If a wife deserts her husband or elopes with another person she loses her right to maintenance. If the husband refuses to maintain his wife, she has every right to sue her for maintenance. In fixing the sum by way of maintenance the judge should consider the rank and circumstances of yourselves in the acceptable way; but if you are in discord, there may breastfeed for the father another woman.

3. Widow:

The widow's right to maintenance ceases on the death of her husband because her right of inheritance supervenes. The widow is therefore not entitled to maintenance during the iddat period on death of her husband. It is to be noted that formerly widow was entitled to maintenance from the husband's proper-ty for one year, and then subsequently this rule was cancelled by the laws of inheritance under the principle of nasikh mansookh.

4. Children

The primary responsibility of maintaining their children lies on father. Sons are entitled to maintenance till they attain the age of puberty (age of majority in Islam) and Daughters are entitled to maintenance till they are married. If the children are in the custody of the mother during their infancy, still father is bound to maintain them. 

But the father is not bound to maintain a child who is capable of being maintained out of his or her own property. If the children attain majority, but still are unable to maintain themselves out of their own means, then the father is still liable to maintain them. If the father is poor and incapable of earning by his own labour, then the liability of maintaining the children shifts to the mother if she is well off with an eventual right of recovery against her husband even though the children may have a rich paternal grandfather. 

If mother is also poor, then the obligation to maintain the children lies on the grandfather provided he is in easy circumstances." However under Shia Law, if the father is poor, then the liability rests primarily on grandfather if he has means; then on mother if she is rich. A father is bound to maintain his son's wife when such a son is young, or infirm, or engaged in study." In case of inability of father and mother as well as grandfather then the liability shifts to the elder brother of children or uncle of the children. If they are unable, accordingly the liability shifts to near relatives, 

Under Hanafi Law, an illegitimate child is entitled to maintenance from its mother, but not from its father. But under the Ithna Asharia school of Shia Law, the illegitimate child cannot claim maintenance either from the father or from the mother." Unable to maintain' includes the consideration of infirmity, disability, paralytic, cripple, insanity, social position, insufficient means for both claimant and provider. Maintenance of children includes their educational expenses as well.

5. Parents

When children (sons as well as daughters) have means, they are bound to maintain their parents if in strained circum-stances and it makes no difference in their liability whether the parents are Muslims or Non-Muslims. 

According to Hedaya 'it is incumbent upon a man to provide maintenance for his father, mother, grandfather and grandmother if they should be in necessitous circumstances, although they are of a different religion but their poverty is a condition of the obligation'."

If a son is in a position to maintain only one of the parents, then the mother has preference over father in such a case. If both son and daughter are rich, then both are liable to maintain the parents equally." 

According to Hanafis when there are several persons on whom the liability of maintaining any individual lies, then the liability should be apportioned according to the shares to which such person would be entitled in the inheritance of the one to whom they are maintaining. For example, if a man who is poor have a son and a daughter, both possessed of sufficient means, the son will have to contribute two-thirds of the maintenance and the daughter one-third. 

According to Shias and Maalikis apportioning the liability to maintain in such case should be according to the individual means of the parties. For example, if the daughter is rich and the son is comparatively poor, the larger proportion of the maintenance devolves on her. A rich son is bound to maintain the father's wife (which is not his real mother) but if the father has more than one wife then such son is bound to maintain only one. 

Similarly in case of other relations 'nearer in degree with the claimant' rule shall be followed. For example father's maintenance is incumbent upon son than grandson so on and so forth. If a person has a sister and son, the son is bound to maintain. Similarly, if a person has a brother and a grandchild, the grand-child is bound to maintain such person. 

Similarly, if a person has a father as well as son. In such case, the son is liable to maintain such person." Persons who are not themselves poor are bound to maintain their poor relations within their prohibited degrees in proportion to the share which they would inherit from them on their death.

Maintenance under BNSS 2023

Section 144-147 BNSS deals with maintenance. It is a secular provision applicable to all the citizens of India irrespective of their religious background. It ensures right to seek maintenance by the claimants who are: Wife, children and parents from their husband, parents and children respectively. A wife, child or parents have two remedies for securing maintenance. 

The first is a suit in Civil Court and the second is a proceeding under section 144 BNSS. Under section 144 BNSS following three conditions shall met:

The provider has sufficient means (resources and earning capacity) but he has neglected or refused to maintain claimant;

The claimant has insufficient means and is/are un-able to maintain himself/herself/themselves. (un-able to earn their livelihood)

There is a proof of such neglect or refusal presented before magistrate.

Let us very briefly discuss position of each of the claimant under Section 144 BNSS.

Wife

The Wife who is married as a result of a valid marriage is entitled to maintenance, i.e. the marriage must be valid under the personal law applicable to the parties. However, where man and woman are living together for a reasonably long period of time, even without a valid marriage, in such cases also the courts have held women to be entitled to maintenance under section 144. 

Thus wife living in 'live-in' relationship or 'consensual' relationship is also entitled to maintenance un-der this section. If the wife is living in adultery or if without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent, then in such cases wife is not entitled to maintenance under Section 144 BNSS.

However if refusal to live together by wife is on this ground that husband has contracted marriage with another woman or keeps a mistress (concubine), it shall be just ground and wife would still be entitled to maintenance while living separately. If court has passed an order of maintenance in favour of wife and subsequently on the basis of proof it is found that such wife is living in adultery or refuses to live with her husband without any reasonable cause or they are living separately, then the Magistrate shall cancel the order of maintenance passed earlier. 

The decree of restitution of conjugal rights is not a bar to the proceedings under this section. This means if the husband has obtained a decree of restitution of conjugal rights against wife still she is entitled to maintenance if she has been able to establish it under this section.

Divorced woman

The woman who has been divorced by, or has obtained a divorce from her husband and has not re-married is also entitled to maintenance under section 144 BNSS. This means if a divorced lady has not remarried and is unable to maintain herself, she can claim maintenance from her former husband till she remarries. In other words, if she does not re-marry she is claimant of the former husband. 

However, separate income of such a lady would be taken into consideration while deciding the maintenance application by the magistrate. Section 144 includes divorced woman in the definition of wife." In the light of this section Shah Bano was awarded maintenance beyond iddat period. This means for the purpose of this section a divorced lady continues to remain wife of the former husband. The divorce used in this section includes divorce by mutual consent also.

In Shah Bano case Supreme Court held that Muslim women are entitled to maintenance beyond the Iddat period. In this case Supreme Court directed Shah Bano's former Husband to pay her maintenance, according to law laid down in section 125 of Cr.pc (144 BNSS) applicable to other Indians. The court rejected the argument of Shah Bano's former husband that since she was paid maintenance during the period of iddat, now she was not entitled to any further maintenance under the Muslim Personal Law.

In Noor Saba Khatoon v Mohd. Quasim

The Supreme Court held that a Muslim woman is entitled to claim maintenance for her children till they become major. Both under the MPL and under section 125 of the Criminal Procedure Code, 1973 the obligation of the father is absolute when the children are living with the divorced wife.

Children

The legitimate or illegitimate minor child, whether married or not, who are unable to maintain itself are entitled to claim maintenance under section 144. Similarly the major legitimate or illegitimate child who is unable to maintain itself due to physical or mental abnormality is also entitled to claim maintenance.

However, major married daughter is not entitled to claim maintenance from her parents under this section. It is to be noted that the adultery ground, which bars maintenance to wife, does not bar maintenance of the child of that wife from the father of the child.

Parents

Father or mother who is unable to maintain himself or her-self is entitled to claim maintenance from his or her son or sons. It is to be noted that in Sec. 144 'his' has been used, so literally daughters are absolved from liability of maintaining their parents. 

Vijaya Manohar Arbat v/s Kashi rao Sawai 

Supreme Court held that this clause does not exclude the parents claiming maintenance from daughter. But it must be seen that the daughter has sufficient means of her own independently from that by means of income of her husband (sufficient means of husband do not mean, sufficient means of wife) and the father or mother as the case may be is unable to maintain himself or herself.

Maintenance of Divorced Muslim Women under Muslim Women Protection of Rights on Divorce Act, 1986.

This Act was enacted to protect the rights of Muslim women who have been divorced by, or have obtained a divorce from their husbands and to provide for matters connected therewith or incidental thereto. 

This law was passed in the year 1986 in the backdrop of Shah Bano" Judgment in which the Apex Court held that if the divorced wife is able to maintain herself, the husband's liability ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to section 125 of the Code of Criminal Procedure, 1973 (section 144 BNSS).

This decision aggrieved Muslim community of the country as they thought it interfered in the matters of Shariah which limits the husband's liability to pro-vide maintenance of the divorced wife only up to the period of iddat only. Therefore, to change the effect of the Shah Bano decision the Muslim Women (Protection of Rights on Divorce) Act 1986 was passed to specify the rights which a divorced Muslim woman is entitled to at the time of divorce and to protect her interests.

Section 2(a) of the Act defines divorced woman as a Muslim woman who was married according to Muslim Law and has been divorced by, or has obtained divorced from, her husband in accordance with Muslim Law. Section 3 of the Act lays down that a divorced woman shall be entitled to:

A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;

Where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;

An amount equal to the sum of mahr or dower agreed to be paid to her at time of her marriage or any time thereafter according to Muslim law; and

All the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

Under Section 4 of the Act, if the divorced woman is unable to maintain herself after the period of iddat, then the liability to pay maintenance is devolved upon the relatives and if the relatives are not available then on the Wakf Board. Section 5 of the Act provides that the divorced woman and her former husband would be governed by section 144-147 BNSS, only if they declare in the court by affidavit or any other declaration in writing either jointly or separately that they would prefer to be governed by the provisions of 144 to 147 BNSS.

In Danial Latifi v/s Union of India

The validity of Muslim Women (Protection of Rights on Divorce) Act, 1986 was challenged as being violative of Arts. 14, 15 and 21 of the Constitution. It is to be noted that this Act was passed in order to undo the effect of Shah Bano judgment. 

Muslims in India had raised the voice against the Shah Bano judgment calling it interference in the sharia. The Supreme Court in this case held that the provisions of the Act do not offend the provisions of the Constitution. 

However the Court interpreted the provisions of the act widely and held that Muslim divorced women has right to maintenance even after the iddat period under the 1986 Act. The court said that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which clearly extend beyond iddat period in terms of section 3(1)(a) of the Act.