According to the family laws in Pakistan, it is the duty of the father/husband to maintain his child and wife in a possible good manner.
In Islam husband is bound to maintain his wife throughout the period she remains in matrimonial bonds with him. Maintenance is neither a gift nor a benefit but is an undeniable legal obligation of a husband to provide maintenance to his wife. When a woman surrenders herself into the custody of her husband, it is incumbent upon husband thenceforth to supply her with food, clothing and lodging, whether she be a Muslim or an infidel because such is the precept in the Holy Quran. Maintenance is considered a debt upon the husband in conformity with his tenet. Maintenance is an obligation which is one of the essential ingredients of marriage, liable to suspension or forfeiture under certain circumstances.
Under Islamic as well as Pakistani law, a father or a husband is obliged to pay maintenance for his child and his wife, respectively. This obligation continues until the child reaches the age of majority in the case of a son, and until marriage in case of a daughter and to maintain his wife until the separation.
In Pakistan, maintenance is mainly governed by Muslim Personal law and precedents of the superior courts. Currently, the Family Courts Act 1964 and the Muslim Family Laws Ordinance 1961 (“MFLO”) deal with the issue of maintenance of minors and wife in Pakistan.
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Children are the focus of gravity in Islamic family tradition and law and when spouses are together, upbringing their children are paramount joint responsibility. Not only physical care and health, but emotional, educational and religious welfare and well being, are mutual responsibility.
When spouses separate by divorce or annulment, said responsibilities get split according to the best abilities of each parent. While fathers are vested with financial burden and legal guardianship roles, mothers are given the role of physical care of children.
Inherently, Islamic system balances between multitude levels of children’s needs. Father should have access to his children and would remain financially responsible for their maintenance and education, even though they could be under the care of their divorced mother or one of her relatives.
A Muslim divorced woman cannot remarry for three months and in case of death of husband for four months and ten days. This period of probation is called ‘Iddat’. She is entitled to get maintenance allowance for this period on account of the above condition.
In case of a divorce to a pregnant woman the Holy Qur’an in Verses No. 4 to 6 of Surah Al-Tallaq entitles her to maintenance till the delivery of the child. Surah Al-Tallaq comprises 12 verses. To understand the spirit of the Commands of Allah on the subject it will be expedient to reproduce the English translation of these verses as under:-
1. O’Prophet! (Say Unto the Muslims) When ye put away women, put them away for their (legal) period and reckon the period, and keep your duty to Allah, your Lord. Expel them not from their houses nor let them go forth unless they commit open immorality. And these are the limits imposed by Allah; and those who transgresseth Allah’s limits, he verily wrongeth his soul. Thou knowest not: it may be that Allah will afterward bring some new thing to pass.
2. Then, when they have reached their term, take them back in kindness or part from them in kindness, and call to witness two just men among you, and keep your testimony upright for Allah. Whoso believeth in Allah and the Last Day is exhorted to act thus. And whosoever keepeth his duty to Allah, Allah will appoint a way out for him
3. And will provide for him from (a quarter) whence he hath no expectation. And whosoever Putteth his trust in Allah, He will suffice him. Lo! Allah bringeth His command to pass. Allah hath set a measure for all things.
4. And for such of your women as despair of menstruation, if ye doubt, their period (of waiting) shall be three months, along with those who have it not. And for those with children, their period shall be till they bring forth their burden. And whosoever keepeth his duty to Allah, He maketh his course easy for him.
5. That is the commandment of Allah which He revealeth unto you. And whoso keepeth his duty to Allah, He will remit from him his evil deeds and magnify reward for him.
6. Lodge them where ye dwell, according to your wealth, and harass them not so as to straighten life for them. And if they are with a child, then spend time with them till they bring forth their burden. Then, if they give suck for you, give them their due payment and consult together in kindness; but if ye make difficulties for one another, then let some other woman give suck for him (the father of the child).
7. Let him who hath abundance spend of his abundance, and he whose provision is measured, let him spend of that which Allah hath given him. Allah does not lay on any soul a burden save that which He hath given it. Allah will vouchsafe, after hardship, ease.
8. And how many a community revolted against the ordinance of its Lord and His messengers, and we called it to a stern account and punished it with dire punishment.
9. So that it tasted the ill-effects of its conduct, and the consequence of its conduct was loss.
10. Allah hath prepared for them stern punishment; so keep your duty to Allah, O men of understanding! O ye who believe! Now Allah hath sent down unto you a reminder
11. A Messenger reciting unto you the Revelations of Allah made plain, that He may bring forth those who believe and do good works from darkness unto light. And whosoever believeth in Allah and doeth right, He will bring him into Gardens underneath which rivers flow, therein to abide for ever. Allah hath made good provision for him.
12. Allah is who hath created seven heavens, and of the earth the like thereof. The commandment cometh down among them slowly, that ye may know that Allah is Able to do all things, and that Allah surrounded all things in knowledge. Reference to this proposition, three other verses of the Holy Qur’an are also relevant. English
translation of these verses read below:–
Verse No.236 of Surah Al-Baqrah
“236. It is no sin for you if ye divorce women while yet ye have not touched them, nor appointed unto them a portion. Provide for them, the rich according to his means, and the straitened according to his means, a fair provision. (This is) a bounden duty for those who do good.”
Verse No.241 of Surah Al-Baqarah
“241. And for divorced women there is a provision for kindness. A duty for those who ward off (evil).”
Verse No.49 of Surah Al-Ahzab
“49. O ye who believe! If ye wed believing women and divorce them before ye have touched them, then there is no period that ye should reckon. But content them and release them handsomely.”
In the above quoted three verses, husbands have been directed to give ‘Mata’ to their divorced wives.
In verse No.6 of Surah Al-Tallaq a husband has been directed to give ‘Nafaqah’ to a pregnant divorced wife. The Arabic words ‘Nafaqah’ and ‘Mata’ used in the Holy Qur’an are ordinarily translated as ‘maintenance’ and ‘provision’ respectively by various English Translators and Interpreters of the Holy Qur’an.
Some of the Arabic Scholars expressing their dissatisfaction over the English translations have opined that these are poor translations. Needless to say that rendering the depth and shades of meaning of words of one language into another language and finding the equivalent is a difficult task.
So many English translators have confessed that the Holy Qur’an is not translatable because of this and perhaps for this reason they have titled their translations as interpretations. In various Arabic lexicons the word ‘Mata’ means ‘temporary gain’ or ‘benefit’. The Qamus-al-Quran al Wajuh An-Nazair published in Beirut gives the meaning of the word ‘Mata’ as ‘Munafah or profit or gain’. Imam Raghib Asgahani in his lexicon, namely Mufradat, defines the word ‘Mata’ as ‘something given to a divorced woman from which she can derive benefit’. According to it the word ‘Nafaqah’ means living expenses.
The lexicon Tartibul Qamus published in Egypt says that ‘Mata’ is a kind of maintenance given to a woman. Al-Qamus-al Asri (Modern Dictionary from Arabic to English) defines the word ‘Nafaqah’ as expenses on living and the word ‘Mata’ as ‘effects’ or ‘goods’. Imam Razi writes in Tafsir Kabir that ‘Mata’ covers only articles of temporary benefit given as a parting or a consolation gift. The author of Lisan ul Arab opined that ‘Mata’ is only a one time gift and not like maintenance which is payable over a period of time.
The Arabic words (Wa Matee o Hunna) and (Mata Um Bil Maroof) used in verse No.236 of Surah Al-Baqrah are translated as ‘provide for them’ and ‘a fair provision’ respectively.
The Arabic word (Mata Um Bil Maroof) used in verse 241 of Surah Al-Baqrah is translated as ‘provision of kindness’.
The Arabic words (fa matte o hunna wa saree hohunna sarahan jamila) used in verse 49 of Surah Al-Ahzab are translated as ‘but content them and release them handsomely’.
The Arabic words (wa in kunna aolati Hamlin fa unfiqo alihina hattaa yazana hamlahun) used in verse No.6 of Surah Al-Tallaq are translated as ‘and if they are with child, then spend for them till they bring forth their burden’.
The words (leyunfic) and (fal-unfic) used in verse No.7 of Surah Al-Tallaq are translated as ‘to spend’.
The Arabic words (Fa amati o Hunna) “to provide” and (fa anfiqo) “to spend” used in the above noted verses of Holy Qur’an are very significant. (Above quoted English translations are endeavored by a renowned scholar Muhammad Marmaduke Pickthall in his Translation of the Holy Qur’an).
In verse No.241 of Surah Al-Baqrah the word ‘Mata’ is qualified by the word (bil maroof) which means ‘well known’ or ‘customary’.
The Arabic text of verse No.241 of Surah Al-Baqra (Walil Mutallaqaat-e-Mataum bil Maroof; Haqqan Alal Muttaqeen) is translated by Abdullah Yusuf Ali as ‘for divorced women, maintenance (should be provided) on a reasonable scale. This is a duty on the righteous.’ Last part of verse No.241 manifests that the above said command is for those who fear Allah. In various Ahadith it is reported that the Holy Prophet Hazrat Muhammad (Peace be upon him) said that ‘Mata’ should be given even by those in straightened circumstances and it may be a few kilograms dates, some clothes or grain if they cannot give any thing better.
The ordains of Almighty Allah as revealed in the Holy Qur’an and practised by the Holy Prophet Hazrat Muhammad (Peace be upon him) manifest complete code of life to enable us to order our lives in the individual and collective spheres in accordance with the teachings of Islam. The words (Fa mate o hunna) “to provide” and (fa anfiqo) “to spend” used in above referred verses of the Holy Qur’an reveal the commands of Allah to a Muslim husband rendering him under obligation to maintain his divorced wife during the period of ‘Iddat’ as per injunctions of Islam.
It may be a one-time provision or in the shape of affordable instalments for the period of ‘Iddat’. Needless to say that intent and spirit of above referred Commands of Allah is to provide for maintenance to a divorced wife during the period of ‘Iddat’ for the simple reason that as per injunctions of Islam a divorced woman cannot remarry during the period of ‘Iddat’.
Above noted Commands of Allah therefore create a right of maintenance in favour of a divorced wife and an obligation upon a husband to maintain her during the period of ‘Iddat’.
In Pakistan, such right of maintenance is enforceable by a Family Court having exclusive jurisdiction under the Family Courts Act 1964.
Definition of “maintenance” was to be liberally interpreted which included the process of maintenance or being maintained and provisions of means to support life.
It was held by the August Supreme Court of Pakistan that when a husband is required to maintain his wife, former wife during her iddat period or child and is required to pay maintenance including the arrears of maintenance, his present and past earnings must be disclosed by him, because his financial status determines the amount of maintenance that should be awarded. In case of nondisclosure, an adverse inference can be drawn against him. Family judges should try to ascertain the salary and earnings of the husband/father who is required to pay maintenance.
Father is bound to maintain his sons until they have attained the age of puberty and to maintain his daughters until their marriage. So long as children are with their mother and unless their custody is disturbed as a result of proper legal proceedings, the responsibility of the father to provide them adequate maintenance is absolute and is not dependent or affected by their residence.
In other words, the father is bound to maintain his daughter until she gets married and the father is not bound to maintain a child which was capable of being maintained out of his own property. Father is bound to maintain a daughter and she is entitled to receive maintenance regardless of her age till such time she is married. Even on attaining the age of majority, the father was responsible for daughter’s maintenance.
As per concept of adoption in Islam, the wife can not claim maintenance from the husband for minor who had no rizai relationship with the adoptive mother; however from the angle of the concept of “constructive guardianship”, the adoptive mother is entitled to claim maintenance allowance for such adopted minor.
If adoptive parents voluntarily undertake, before the public at large, to perform the noble task of taking care of a minor, by doing so they not only create a relationship of trust with the minor but also assume the role and status of “constructive guardian” of the minor. Trust and constructive guardianship also created a fiduciary obligation/relation between the adopted parents and the minor.
Fiduciary is a person in a position of trust, or occupying a position of power and confidence with respect to another, such that he is obliged by various rules of law to act solely in the interest of the other, whose rights he have to protect.
Doctrine of “constructive guardianship” has been a part of the law of Guardians and Wards for a long time and such a situation arose where one assumes to act as a guardian or enters upon an infant’s estate, who has not been regularly appointed as guardian, which may result from a voluntary assumption of the duties, a void appointment by a court without jurisdiction, or acts performed by one who was by himself and other parties concerned, considered an “accommodation guardian”.
Recognition of the need for protection of the child resulted in giving such a child an election to treat such a person as a wrongdoer or as a guardian and in the later case a relation similar to that of trustee and cestui que trust was established and the guardian de son tort may be compelled to account as a guardian.