Right of Children to Maintenance under Muslim Law

Introduction

In every legal system, the right of children to maintenance is recognized as a fundamental human need, forming the basis of family obligations and social justice. Under Muslim law, the duty to provide maintenance (nafaqah) to children is rooted in religious texts, primarily the Quran, and developed through centuries of Islamic jurisprudence. In India, this obligation intersects with secular statutory law, notably Section 125 of the Criminal Procedure Code (CrPC), which ensures that children, regardless of religion, are not left destitute.

This blog delves into how maintenance for children is defined under classical Islamic law and how Indian courts have interpreted these responsibilities in light of evolving constitutional values, especially in cases of divorce or parental separation. It also explores how this obligation fits into the wider landscape of Muslim personal law in India, addressing issues of legitimacy, custody, and gender justice.

(🔗 Also read: Maintenance of Divorced Muslim Women: Shah Bano Case to Muslim Women Act, 1986)

Islamic Basis of Child Maintenance (Nafaqah)

Islam mandates that a father must financially support his children by providing for their food, clothing, shelter, education, and other needs until they reach an age where they can support themselves. This obligation finds strong grounding in several verses of the Quran:

“Let the wealthy man spend according to his means; and the one whose resources are restricted, let him spend according to what Allah has given him...”
(Surah At-Talaq 65:7)

“Mothers shall breastfeed their children for two whole years... the father of the child shall bear the cost of the mother’s food and clothing on a reasonable basis.”
(Surah Al-Baqarah 2:233)

Islamic scholars from all major schools have historically interpreted these verses to mean that the father is solely responsible for the maintenance of minor children, especially sons until they reach puberty and daughters until they are married.

Traditionally:

The father is the legal and financial guardian.
The mother, though a caregiver, is not obligated to bear financial responsibilities unless she volunteers.
If the father dies or is unable to provide, paternal relatives (agnatic heirs) are next in line.

However, while the Quran and Hadith lay down a just and compassionate structure, real-life enforcement often varies based on judicial interpretation and socio-economic conditions.

Secular Law and the Role of Section 125 CrPC

Section 125 CrPC is one of the most powerful tools for ensuring maintenance to those in need, regardless of religious affiliation. It empowers a Magistrate to order monthly financial support to:

Legitimate or illegitimate minor children, whether married or not.
Legitimate or illegitimate children who are adults but suffer from mental or physical infirmity and cannot maintain themselves.

For Muslims, this creates a dual structure: while personal law governs spiritual and family obligations, Section 125 CrPC acts as a universal protective umbrella to prevent destitution and ensure children's basic survival.

The Supreme Court of India has repeatedly clarified that Section 125 overrides all personal law limitations when the child's life or welfare is at risk. Thus, even if classical Muslim law restricts maintenance to certain periods or situations, Section 125 ensures that a child’s right to sustenance is not compromised.

Scope and Duration of Maintenance under Muslim Law

According to Islamic law as practiced in India:

Sons are entitled to maintenance until they attain puberty, unless they are disabled or pursuing religious education.
Daughters are entitled to maintenance until they are married, regardless of age or ability.

However, in Indian judicial interpretation:

Courts have extended the duty of fathers to maintain sons until they are educated or financially self-sufficient.
For daughters, maintenance is often extended to ensure that she receives dignified support until her marriage.

In the case of Rafiq v. Smt. Bashiran, the Allahabad High Court ruled that even if a daughter has reached majority, the father remains liable for her maintenance until she marries or is able to support herself.

In Noor Saba Khatoon v. Mohd. Quasim (1997), the Supreme Court reaffirmed that children have a statutory right under Section 125 CrPC regardless of whether Muslim personal law limits the duration. It ruled that even after divorce, the father's liability to his children does not cease, especially when custody is with the mother.

Illegitimate Children and Their Right to Maintenance

Under classical Muslim law, illegitimate children (walad-ul-zina) have no legal claims of maintenance or inheritance from the biological father. However, the secular provisions of Indian law do not follow this rule.

Section 125 CrPC treats legitimate and illegitimate children equally for the purpose of maintenance. This approach reflects the Indian Constitution’s commitment to equality, dignity, and child protection.

In Bharata Matha v. R. Vijaya Renganathan, the Supreme Court held that even illegitimate children are entitled to maintenance and may inherit the self-acquired property of their father.

Such judicial innovations have bridged the gap between religious orthodoxy and constitutional morality, ensuring no child is punished for the circumstances of their birth.

(🔗 Explore: Reforms in Muslim Divorce Law: Lessons from Muslim Countries)

What Happens in Cases of Divorce or Separation?

When parents divorce or separate, questions of custody and maintenance often arise. According to Muslim law:

The custody (hizanat) of minor children, especially daughters, generally rests with the mother.
The financial responsibility, however, remains with the father.

Even if the father is not granted custody, he cannot escape the obligation of maintaining his children. In fact, courts have emphasized that custody and maintenance are distinct legal issues.

In Iqbal Bano v. State of U.P., the Allahabad High Court stated that a father’s financial obligation toward his children is independent of the marriage status or custodial arrangement. The mother can legally claim maintenance on behalf of the children, even if she is divorced or estranged.

Enforcement: How Can Maintenance Be Claimed?

The mother or any lawful guardian can file a petition under Section 125 CrPC before a Judicial Magistrate First Class, seeking maintenance for the minor children. The procedure includes:

Submitting proof of income and expenses of the child.
Establishing paternity and custodianship.
Demonstrating neglect or refusal to provide maintenance.

Once maintenance is granted, it can be enforced through legal processes including warrants, property attachment, or civil imprisonment. The law also allows revision of the amount if circumstances change (e.g., increase in cost of living or father's income).

Progressive Trends and the Way Forward

While traditional Muslim law confines maintenance responsibilities within strict time frames and roles, Indian courts have significantly expanded the scope of child maintenance in light of constitutional values. Courts now view maintenance not just as a religious duty but as a legal and ethical imperative.

In this journey of reform:

The father’s obligation has been expanded in terms of time (until education or self-reliance).
The child’s status of legitimacy has been made irrelevant under secular laws.
The mother’s custodial rights have been strengthened by ensuring financial backup from the father.

Yet challenges remain. Many women face social stigma, legal illiteracy, and lack of financial means to file maintenance cases. Community-based awareness and legal aid programs are needed to make maintenance rights more effective.

Conclusion

The right of children to maintenance under Muslim law, as understood in India today, represents a combination of religious duty, social necessity, and constitutional enforcement. While classical jurisprudence limits maintenance obligations to certain stages of life, the Indian legal system—especially through Section 125 CrPC—has extended these protections to cover all vulnerable children.

Children, regardless of their parent’s marital status or their own legitimacy, deserve a dignified life. Maintenance ensures not just their survival but their growth, education, and self-respect. The evolving interpretation of Muslim personal law within India’s pluralistic legal framework reflects a broader commitment to justice, equality, and child welfare.

Let’s now move forward to understand the related and equally critical subject of Custody of Children (Hizanat) under Muslim Law — read it here.