MAINTENANCE AND CUSTODY OF CHILDREN

DAY 26

MAINTENANCE AND CUSTODY OF CHILDREN

What are the provisions regarding maintenance during marriage?

Maintenance as per the draft law of BMMA, includes an entitlement to food, clothing, residence, educational and medical expenses and all other personal expenses of wife. Since there is no comprehensive codification of Muslim law, some parts of maintenance like the post-divorce maintenance got codified in 1986, while the maintenance during marriage is left hanging in the air. Hence it is important to legally pin down where exactly a Muslim woman should go to claim her maintenance during marriage. In the absence of a codified law, she is entitled to maintenance under the law of the land. 

• The responsibility of maintaining the wife and children, even if she has an independent source of income is with the husband. 
• During the process of arbitration, the maintenance of the wife and children will be the responsibility of the husband. 
• During the subsistence of the marriage, if the custody of the child is with the mother then the responsibility of maintenance of the child is with the husband.
• Procedure for obtaining maintenance from the husband during the subsistence of marriage is the same as enlisted in S-125 Cr.PC. 
• The widow has a right to maintenance and right to stay in matrimonial home.
• Maintenance during iddat period is the same as that provided during the subsistence of the marriage 

What are the provisions regarding maintenance after divorce?

• The provisions of maintenance after divorce are to be governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986. 
• A divorced woman is entitled to stay in her matrimonial home.
• All matters related to dower, jewelry, household items, maintenance of the women and children, inheritance, custody, education of children, residence of divorced women must been amicably and fairly settled. 

What are the Quranic verses on maintenance?

• ...And on the child "s father (the husband) is their food and clothing... (2:233)
• And for divorced women is a provision according to what is acceptable – a duty upon the righteous (2:241).
• “And those who are taken in death among you and leave wives behind – for their wives is a bequest: maintenance for one year without turning (them) out. But if they leave (of their own accord), then there is no blame upon you for what they do with themselves in an acceptable way. And Allah is Exalted in Might and Wise.” [2:240]
• “Lodge them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until they give birth. And if they breastfeed for you, then give them their payment and confer among yourselves in an acceptable way; but if you are in discord, then there may breastfeed for the father another woman.” [65:6]
• “Let a man of wealth spend from his wealth, and he whose provision is restricted – let him spend from what Allah has given him. Allah does not charge a soul except [according to] what He has given it. Allah will bring about, after hardship, ease.” [65:7]

What are the provisions regarding custody of children?

• According to this draft law, both mother and father are considered natural guardians of the child. 
• In the event of a divorce, regardless of who amongst the spouse initiates the divorce, the decision regarding the custody of all children (male and female) will reside with the mother until they reach the age of 10 when the child can decide for himself/herself. In any case it is the responsibility of the father to provide maintenance for the child. 
• After reaching the age of 10 the parent not having the custody can apply for custody of the child to an Arbitrator. 
• The consent of the child will be sought by the Arbitrators.
• The parent who has lost the custody of the child will get fair visiting rights. 
• Only if the child is not able to take a decision the Arbitrators shall take the decision based on the principle of the best interest of the child which includes the child's physical, emotional and economic security. 
• In the event when the custody of the child is with the mother, it is the responsibility of the father to financially maintain the child. 

What are the provisions regarding the custody of the children of widows?

The mother continues to be the natural guardian of the children after she becomes a widow. 

In the event that the child is not able to take a decision the Arbitrators while making a decision should keep the following guidelines in mind: 

• Consider the quality of the upbringing of the child till date 
• The health, education, physical and emotional safety of the child. 

What are the Quranic injunctions regarding custody of children?

There are not too many verses on the same but verse 2:233 suggests no parent shall be subjected to torture for his being the parent of child. 

"The mother shall give suck to their children for two whole years,(that is) for those (parents) who desire to complete the term of suckling, but the father of child shall bear the cost of mother’s food and clothing on a reasonable basis. No person shall have a burden laid on him greater then he can bear. No mother shall be treated unfairly on account of his child, or a father on account of his child. And on the (father’s) heir is incumbent the like of that (which was incumbent on father). If they both decide on weaning, by mutual consent, and after due consultation, there is no sin on them. And if you decide on a foster suckling-mother for your children, there is no sin on you, provided you pay (the mother) what you agreed (to give her) on reasonable basis. And fear Allah and know that Allah is all-seer of what you do"

In what event is the custody of the child is not lost? 

• It is not the case that the custody of the child will be lost if either parent changes its religion or if either parent remarries. It is not automatic that the mother or father will lose custody if they change their religion. 
• Nothing about child’s custody is automatic.