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DIVORCE AND MAINTENANCE UNDER ISLAMIC MARRIAGES IN NIGERIA: THE 

NEED TO SAFEGUARD THE RIGHTS OF WOMEN AND CHILDREN* 

 

Abstract 

Divorce is severing the legal bond between a husband and wife and this can occur regardless of the 

kind of marriage the parties undertake. Under Islamic marriage a man may divorce his wife of fifty 

years or more by merely pronouncing the Talaq. A wife does not enjoy a concomitant right although 

under some circumstances she may validly divorce her husband by other more stringent means. What 

makes the plight of a divorced woman bad is the fact that she is not entitled to maintenance upon divorce 

of her husband unless she is pregnant for him or just put to bed. The children of an Islamic marriage 

are in a better place than their mothers as they are entitled to be taken care of until the boy hits puberty 

and the girl marries. The law does not provide any succour to the Islamic wife when there is a divorce 

therefore this work aims at elevating the wife of an Islamic marriage to the same pedestal as those of a 

woman married under the Act. The doctrinal methodology was adopted in the research. 

 

Keywords: Divorce, Maintenance, Islamic Marriages, Rights of Women and Children, Nigeria 

 

1. Introduction 

Dissolution of marriage and maintenance are two rights that should necessarily accrue to married 

people. Although people get married believing their marriages would endure the test of time but this 

does not happen in some cases as some marriages end in divorce. Where parties are unable to live in 

matrimonial harmony to the extent that either party or both party feels the need to severe the legal bond 

holding them together as husband and wife they would usually seek a divorce. It is only fair that when 

there is a divorce, parties are placed in the same financial position they were during the pendency of the 

marriage and this is the reason why maintenance is very important. An order for maintenance should 

necessarily follow an order granting dissolution of marriage in deserving cases. Children should not be 

left out as they should also be entitled to maintenance upon the divorce of their parents. 

 

2. Dissolution of marriage under Islamic Law1 
Islamic law recognizes dissolution of marriage. Under Islamic law the process of divorce is one that is 

unfairly prejudicial to women and children and it is important to safeguard their rights to that extent. 

There are no specifically laid down grounds for divorce under Islamic law as it is under the matrimonial 

Causes Act2; although it is said that among the things which have been permitted divorce is the worst 

and it is evil3. The basis of divorce under Islamic law is not fault finding, but that the parties are unable 

to continue to live together. Therefore a husband may validly divorce his wife even where she has done 

no wrong to him. A husband or a wife is competent to initiate divorce proceedings but the procedure 

will to a large extent determine who can access it. 

 

Talaq Mode of Dissolution of Marriage 

This is one of the ways of effecting a divorce. This procedure is only open to the husband. ‘Talaq is 

Arabic and it simply means to untie or to free. All the husband is required to do, and does not need to 

give reasons or justify his action, is just to pronounce, ‘I divorce you’. Usually a husband has the 

prerogative to divorce his wife three times. Therefore he may pronounce, ‘I divorce you’ once and 

subsequently settle with his wife and take her in again. This he can do three times. Alternatively he can 

pronounce, ‘I divorce you’ three times at once and that determines the marriage in that case he cannot 

remarry the said wife unless she marries someone else and gets divorced from that other person.4 It 

should be noted however that is not mandatory that the words used must be ‘I divorce you’ Islamic 

                                                           
*By Sylvia Chika IFEMEJE, PhD, Professor and Dean, Faculty of Law, Nnamdi Azikiwe University, Awka, Anambra State, 

Nigeria. Phone: 08135726962 Email: sc.ifemeje@unizik.edu.ng,  

*P.O. ITSUELI, PhD Candidate, Faculty of Law, Nnamdi Azikiwe University, Awka, Anambra State, Nigeria.; Lecturer, 

Delta state University, Department of Public Law, Faculty of law, Oleh Campus, Delta State, Nigeria. 
1Lawal Mohammed Banie Hamza pate, Journal of law, policy and globalisation, vol.42, 2015,  

<www.iiste.org>><pg>article>download> accessed 20/3/17 
2 Section 15 
3 Quran chapter 24 
4Lawal Mohammed, op.cit. 

mailto:sc.ifemeje@unizik.edu.ng


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scholar Ibn Abdul-Wahhab5 also asserts that other phrases like, ‘you are divorced,’ you are clear’ ‘you 

are irrevocable’ you are cut off’, ‘you are concluded’, ‘you are a free woman’, ‘you are forbidden’, 

would also suffice. A wife does not have a corresponding right to divorce her husband in the same vein 

and this is a clear demonstration of inequality in marriage. It is worse that Islamic law does not consider 

the wife to be entitled to explanation before her husband can pronounce the Talaq. For a husband to 

validly exercise his right to ‘Talaq’ he must have capacity. That is to say he must be of sound mind and 

must have attained puberty. A ‘Talaq’ pronounced by a minor or a man of unsound mind is invalid and 

ineffective. A third party, even the guardian of a husband who is a minor cannot pronounce the ‘Talaq’ 

on behalf of his son. The guardian of an insane person can pronounce the ‘Talaq’ on his behalf, also the 

Qadi or a Judge can validly dissolve the marriage in the interest of such a husband. The consent of the 

husband to pronounce the ‘Talaq’ must be freely given and not obtained by force or duress or by other 

illegal means. The exception to this is the Hanaafi law where even though the ‘Talaq’ was pronounced 

due to duress, undue influence, coercion voluntary intoxication, compulsion e.t.c the ‘Talaq’ shall still 

be valid and validly dissolves the marriage. This is not a general position of Islamic law, it is more an 

exception and it is not a good position and does not cohere with sound legal principles and reasoning. 

It should be noted however that involuntary intoxication makes the pronunciation of a ‘Talaq’ void and 

of no effect whatsoever. A ‘Talaq’ apart from being oral may be in writing and it need not be in the 

presence of witnesses although under the Shia Islamic law, a ‘Talaq’ must be pronounced orally and 

does not have to be in any particular form as long as it expresses the husband’s intention to divorce his 

wife. It must also be done in the presence of witnesses. Apart from the ‘Talaq’ another mode of 

dissolution of marriage is the ‘ILA.6 Here the husband takes an oath not to have sexual intercourse with 

his wife for four months. After the expiration of the fourth month the marriage is irrevocably dissolved. 

Under the Shia school after the expiration of four months the wife may apply to court for judicial 

divorce. 

 

Zihah Mode of Dissolution of Marriage 

There is also the ZIHAR7mode of dissolution of marriage in this case the husband simply likens his 

wife to his mother or sister and stops cohabiting with her for a period of four months. After the 

expiration of four months the wife may apply to court for dissolution of marriage or for restitution of 

conjugal rights. However, in the event that the husband has a change of heart and wants to resume 

cohabitation with his wife he must fast for two months or provide food for sixty people or free a slave. 

According to Shi'a law these must be done in the presence of witnesses. 

 

Wife’s Right to Apply for Dissolution of Marriage 

It should be noted that under Islamic law the husband and wife can divorce by mutual consent. A wife 

may petition the Qadi for dissolution of her marriage on the grounds that her husband has not had sexual 

intercourse with her for at least three months or that he does not provide necessaries such as food and 

shelter for her this is known as Kittul'l. She must however establish that she is not pregnant at the time 

she seeks a divorce. Another instance where a wife has the power of divorce over her husband is the 

Talaa-it-Tafweed8. In this case the husband delegates his power to pronounce a divorce to the wife. She 

is to exercise this power contingent on the happening of certain events. For example she may exercise 

this power where the husband marries another wife or fails to provide for her, but these are usually well 

stated and agreed upon by the parties. It should be noted however that where the contingent occurs and 

the wife does not exercise her powers of divorce the marriage remains valid. Another circumstance that 

may warrant a wife exercising a right of divorce from her husband is known a Li'an9. This is where the 

husband levels false allegations of adultery against his wife and such allegations are of a serious nature. 

It should be noted that where it is just an insult by the husband against his wife where they are 

quarrelling, it cannot be used by the wife to terminate the marriage. From the foregoing, it is clear that 

the wife of an Islamic marriage has less power of divorce over her husband   

 

 

                                                           
5 ibid 
6 ibid 
7 ibid 
8 ibid 
9ibid 



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3. Maintenance of a divorced wife and her children under Islamic Law 

The Muslim or sharia Law provides for maintenance. Its provisions are highly deleterious to the rights 

of women upon divorce. Children are in a better position than their mothers but even at that they still 

do not get the best safeguards to their rights. Muslim Law does not out rightly say exactly what the 

definition of Maintenance is as regards matrimonial causes, but it would seem that the definition of 

maintenance as provided for under Hindu Law is same as the Islamic perception of maintenance for a 

divorced wife and her children10, it defines maintenance thus; ‘in all cases, provisions for food, clothing, 

residence, education and medical attendance and treatment; in the cases of an unmarried daughter, also 

the reasonable expenses of, and incident to her marriage’11. Under Muslim Law, women are considered 

weak as compared to men. It is believed that they are generally unable to maintain themselves, therefore 

the responsibility of maintaining the wife and children falls on the husband. It does not matter that there 

is evidence to show that the wife can maintain herself12. Maintenance is known as ‘Nafqah’ which 

means what a man spends on his family.  Nafqah basically includes food, clothing, and lodging. 

Maintenance under Islamic or Sharia law can be for the benefit of the wife, children, parents and 

grandparents. In some cases other relatives like dependent brothers and sisters may benefit. One major 

difference in maintenance to wife and maintenance to children or other persons entitled is the fact that 

maintenance to wife does not depend on whether she can maintain herself or not, but where it is deemed 

that a child by any means has enough resources to maintain himself, such a child shall not be entitled 

to maintenance under Muslim Law.13 It should be noted however, that this provision to maintain is not 

applicable to a divorced wife14.The point of interest here however, is maintenance to wife and children 

after a divorce. 

 

Divorced Wife’s Right to Maintenance under Muslim law, the Code of Criminal Procedure, 

1973,section 125; and The Muslim Women (Protection of Rights on Divorce) Act 1986.15 

Under Muslim Law the rights of the wife to get maintenance during the marriage is absolute but after 

the dissolution of marriage, her rights are abridged. There are basically three laws that may be applicable 

to a divorced wife with respect to maintenance under Islamic law; the personal Islamic law of the 

parties, the Code of Criminal Procedure (CRPC)16and the Muslim Women (Protection of Rights on 

Divorce) Act, 198617; with The Muslim Women (Protection of Rights on Divorce) Act being the extant 

statutory provision on the subject. The Quran governs the application of the personal law of the parties 

where they are bound by Islamic law and submit to it. It provides for maintenance of a divorced wife in 

the following terms, ‘for the divorced women let there be a provision in kindness; this is an obligation 

for those who are mindful of God’18. The divorced wife’s right to maintenance is limited to the ‘Iddat’ 

period. 

 

The ‘Iddah’ or ‘Iddat’ Period 
‘Iddat’ which synonym is ‘iddah’ is a period of chastity which a Muslim woman is bound to observe 

after the dissolution of her marriage by the death of her husband or by divorce, before she can lawfully 

marry again. This is a period of abstinence imposed on the woman on the termination of her marriage 

in the interest of certainty of paternity when there is a divorce or death.19 The abstinence is imposed on 

her to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. It is 

only after the Iddat period she can validly enter into a new marriage. The primary object of Iddat is to 

                                                           
10Anusha vijayvargiya, ‘Maintenance of women and children under Muslim Law’(21 July,2018), retrieved from 

<https://www.legalbites.in/maintenance-wife-children-muslim-law/> accessed 8/10/2018 
11Baillie’s Digest of Mohammedan Law, 2nd Edition, page 442 
12 ibid 
13 ibid 
14Ishad Sayed, Maintenance of Divorced Woman under Muslim Personal Law’ retrieved from 

<http://www.shareyouressays.com/knowledge/maintenance-of-divorced-woman-under-muslim-personal-law/117500> 
15Anusha vijayvargiya, ‘Maintenance of women and children under Muslim Law’(ND), retrieved from 

<https://www.legalbites.in/maintenance-wife-children-muslim-law/> accessed 8/10/2018 
16 This is an Indian enactment made in 1973 but which came into force in 1974 it is applicable to all of India except Jammu 

and Kashmir as provided in s.1(2)Crpc 
17 This is also an Indian enactment which has jurisdiction and is applicable to all of India except Jammu and Kashmir 
18 Ayah al-Baqarah(The Cow)2:241 
19 Aanshi bhatnagar,’what do you mean by iddat period’(ND) retrieved from 

<http://www.shareyouressays.com/knowledge/what-do-you-mean-by-iddat-period/117454>, accessed 09/10/2017 

https://www.legalbites.in/maintenance-wife-children-muslim-law/
https://www.legalbites.in/maintenance-wife-children-muslim-law/
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impose a restraint on the marriage of the wife for a certain time. The Iddat maybe be imposed on the 

woman by the death of her husband or by divorce; both with different incidences. 

 

Iddat of Death: Iddat of death lasts: 

(a) In the case of a woman who is pregnant at that time, for four months and ten days, or until delivery, 

whichever period is longer; and (b) In the other cases, for four months and ten days. The Iddat of death 

commences from the date of the husband’s death. If the information of the husband’s death does not 

reach the wife until after the expiration of the period of Iddat, she is not bound to observe Iddat. If the 

marriage is dissolved by death, the wife is bound to observe the period of Iddat, whether the marriage 

was consummated or not. It should be noted that the ‘Iddat for death is four months and ten days within 

which period the wife is entitled to maintenance from the heirs of her deceased husband.20 

 

Iddat of Divorce: Iddat of divorce lasts for three menstrual periods. If the divorced wife is not subject 

to menstruation for any reason other than gestation, the period of Iddat lasts for three lunar months. If 

she is pregnant at the time, the Iddat lasts until delivery, irrespective of whether the period is shorter or 

longer than three months. Where a husband pronounces a Talaq in the absence of wife, she is required 

to observe the Iddat from the date on which she gets the notice of her divorce. Accordingly, where 

divorce is pronounced in her absence, the wife is entitled to be maintained from the date on which she 

came to know of her divorce21.Thus, where a husband served a notice of divorce on his wife, the wife 

was entitled to maintenance from the date on which she received the notice, although the notice 

mentioned an earlier date as the date of pronouncement of Talaq. In Mohommed Ali v. Fareedunnissa 

Begam22, the marriage was contracted in 1950, and a son was born to the couple; thereafter, the husband 

neglected the wife and refused to maintain her. The trial court passed a decree in her favour. The wife 

was informed by written notices from the husband that she had been divorced by him on the night of 

their wedding. The first notice was served on 12.5.1960. The husband’s plea was that as the wife had 

been divorced on the very first night, he was under no obligation to maintain her. It was held by the 

court that when a Talaq is pronounced through notice, the wife is required to observe ‘Iddat of divorce’ 

from the date on which the notice is served on her. The wife was therefore, entitled to maintenance 

during the period of Iddat which began from the date of the first notice i.e. 12.5.1960. The court further 

observed that the wife was not entitled to maintenance from the earlier date of divorce i.e. 1950. Under 

Muslim law a divorced wife cannot claim her past maintenance unless the claim is for the arrears of 

maintenance under any specific agreement. Muslim law does not prescribe any maximum or minimum 

amount to be given during Iddat of the divorced wife. The court is competent to fix any amount keeping 

in view the socio-economic status of the husband and wife23.In the case of an irregular (fasid) marriage, 

if the marriage is consummated, the duration of Iddat, on divorce, is three months. Under the Muslim 

Woman (Protection of Rights on Divorce) Act, 1986, the ‘Iddat’ period, with reference to a divorced 

woman, is defined to be: (a) Three menstrual courses after the divorce, if she is subject to menstruation; 

(b) Three lunar months after her divorce, if she is not subject to menstruation; and (c) If she is enceinte 

(pregnant) at the time of the divorce, the period between the divorce and the delivery of the child, or 

the termination of the pregnancy, whichever is earlier? 

 

Wife’s Rights during Iddat: 

1. The wife is entitled to lodging in the husband’s house during Iddat. 2. She is also entitled to 

maintenance during the Iddat of divorce. Khilwat-us-Sahiha. (Valid retirement).In Hanafi School of 

law, a divorced Muslim wife is entitled to maintenance during Iddat period whereas in Shefai law, a 

divorced Muslim wife is not even entitled to maintenance. If after the expiry of Iddat period, she has 

no means to maintain herself her husband has no liability for her and she is left with nothing. The Code 

                                                           
20 Ishad Sayed, ‘Different Periods of Iddat, which a woman is legally required to undergo under Muslim Law’ (ND) retrieved 

from < http://www.shareyouressays.com/knowledge/different-periods-of-iddat-which-a-woman-is-legally-required-to-

undergo-under-muslim-law/117535> accessed 9/10/2018 
21 Aanshi bhatnagar,’what do you mean by iddat period’(ND) retrieved from 

<http://www.shareyouressays.com/knowledge/what-do-you-mean-by-iddat-period/117454.> Op.cit 
22 AIR 1970 AP 298 
23Ishad Sayed, Maintenance of Divorced Woman under Muslim Personal Law’ retrieved from 

<http://www.shareyouressays.com/knowledge/maintenance-of-divorced-woman-under-muslim-personal-law/117500.> 

Op.cit 

http://www.shareyouressays.com/knowledge/different-periods-of-iddat-which-a-woman-is-legally-required-to-undergo-under-muslim-law/117535
http://www.shareyouressays.com/knowledge/different-periods-of-iddat-which-a-woman-is-legally-required-to-undergo-under-muslim-law/117535
http://www.shareyouressays.com/knowledge/what-do-you-mean-by-iddat-period/117454
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of Criminal Procedure, 1973 (CRPC) section 125, provides for maintenance for a divorced wife of all 

religion. It states that after divorce if the wife is not able to maintain herself, she is entitled to 

maintenance from her husband until she gets married. The act applies this provision to Muslim women 

also who are not entitled to maintenance after the period of Iddat. This act creates liability against 

husband to provide maintenance to wife even after the period of Iddat. The provisions of this act are in 

conflict with the provisions of Muslim Law and a debate was going on as which law should be applied. 

The issue was adjudicated upon by the Supreme Court in the landmark judgment of Shah Bano Begum 

v Mohammad Ahmed Khan24, Shah Bano Begum, a 62 years old lady filed a petition under section 125 

of CRPC before Judicial Magistrate of Madhya Pradesh. The petition stated that her husband has 

pronounced Talaq on her and she has not even remarried and thus she was entitled to maintenance. For 

which her husband has stated that he had no liability to provide maintenance to her as under Muslim 

Law, a divorced wife has no right of maintenance after Iddat period. The magistrate, in this case, passed 

an order stating that the husband is entitled to provide her maintenance of Rs.25 per month as per 

Section 125 of CRPC. Shah Banu filed a revision petition against this order in the High court of Indore 

for enhancement of the amount of maintenance. For which Indore High court has enhanced the amount 

of maintenance to 179.20 Rs per month. Against this order, Mohd. Ahmed Khan appealed to the 

Supreme Court, the Supreme Court rejected the appeal and stated that Muslim wife is entitled to 

maintenance even after the period of Iddat if she is not able to maintain herself. The Supreme Court 

reasoned that with this judgment the distinction between the Muslim personal law and Civil Procedure 

code would come to an end, but that did not happen as it deepened the controversy on the issue of Iddat 

as a result of which the legislatures had to make a new law to govern Muslim divorce and this gave 

birth to the enactment of the Muslim Women (Protection of Rights on Divorce) Act 1986. This Act has 

enacted some provisions in support of Muslim Personal Law and has restricted the application of 

Section 125 of CRPC regarding the maintenance of Muslim wife. The Act has stated that the husband 

is entitled to provide maintenance only during the period of Iddat and not beyond that. If the wife is not 

able to maintain herself after Iddat period then, in that case, she can seek maintenance from the Waqf 

Board25 or relatives of her or her husband. This act has not mentioned anything clearly and has created 

various confusions in the judicial system and was considered as vague. The confusion of this Act has 

been solved by the Supreme Court of India in the case of Daniel Latifi v Union of India26, where the 

court laid the issues to rest and provided that by virtue of s.3 of the act, a Muslim husband is entitled to 

provide fair and reasonable maintenance to his wife and has to make proper arrangement for her 

maintenance after the divorce but that a Muslim husband’s liability under this act is limited to Iddat 

period. He has to make arrangement within the period of Iddat for his wife’s maintenance. Further, the 

court held that a divorced Muslim woman is entitled to maintenance under section 4 of this act from her 

relatives who are entitled to her property after her death and if her relatives are not able to maintain her 

then, in that case, a Waqf board has been created by this act who will take care of the maintenance of 

such women. The magistrate can direct the Waqf board to pay maintenance to them. Therefore it is 

obvious that the rights of women are still not secured under this Act as the husband is still not bound to 

pay maintenance beyond the Iddat period, the only advantage she has is that she may be maintained by 

her relatives or the Waqf board as of right only where she cannot take care of herself. It is an outright 

derogation of the right of the wife who probably laboured to keep a home with her husband to be foisted 

upon her own relatives or the Waqf board when there is a divorce. Another issue that is worthy of note 

is whether an adulterous wife is entitled to maintenance during the Iddat period. It is clear from judicial 

authority available that an adulterous woman is also entitled to maintenance during the Iddat period27. 

In M. Alaviv v T.V. Safia28, the question before the court was whether a divorced woman living in 

adultery was entitled to maintenance under Section 3 of the Act. The court held that she is entitled to 

                                                           
24AIR 1985 SC 945 
25Literal the word waqf means ‘detention’. Waqf means detention of a property so that its produce or income may always be 

available for religious or charitable purposes. The board was established under the Waqf board Wakf Act 1954. The Wakf Act 

1954 defines Wakf as, “Wakf means the permanent dedication by a person professing the Islam, of any movable or immovable 

property for any purpose recognized by Muslim Law as religious, pious, or charitable.”Madhubala Solanki,‘Concept Of Waqf 

Under Muslim Law’ (October 8, 2017) retrieved from <https://www.lawctopus.com/academike/concept-waqf-muslim-law/> 
26AIR, 2001, SC, 958 
27Sanjyot c. ‘Whether a Divorced woman living in Adultery under Islamic Law was entitled to Maintenance?’(ND)retrieved 

from< http://www.shareyouressays.com/knowledge/whether-a-divorced-woman-living-in-adultery-was-entitled-to-

maintenance-under-muslim-law/117614>, accessed 8/10/2018 
28 AIR 1993 Ker 21 

https://www.lawctopus.com/academike/2017/10/08/
http://www.shareyouressays.com/knowledge/whether-a-divorced-woman-living-in-adultery-was-entitled-to-maintenance-under-muslim-law/117614
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maintenance, the court said that the Act nowhere provides that a divorced woman who is living in 

adultery will not be entitled to provision and maintenance, and one should not read something in the 

Act which is not there. The court added that ‘it is not proper to refuse maintenance to a divorced woman 

on the ground that it is an unjust burden to maintain a woman leading an adulterous life. Moreover, a 

divorced woman being not a married woman cannot commit adultery’. 

 

Maintenance of the Children 
Children are the responsibility of their parents and they should be taken care of. They are entitled to 

proper and adequate maintenance from their parents especially their fathers. Under Muslim Law, a man 

is considered as superior and is responsible for the maintenance of his family. Maintenance of the child 

is his primary responsibility. This is a good security for the rights of a child upon divorce under 

customary law.  

 

Father’s obligation to maintain his child 
A father is under an obligation to maintain his legitimate child until he reaches puberty. Under Muslim 

Law, the father has to maintain his son only until he attains majority and has to maintain his daughter 

until she gets married. Under certain circumstances however, like where the child suffers from insanity 

or has other health challenges which incapacitates him a father is bound to maintain that child where he 

is a son. He is also bound to maintain his widowed or divorced daughter in appropriate cases. A father 

is not bound to maintain his son or unmarried daughter if they refuse to live with him without any 

reasonable cause. Under Muslim Law, father is under no obligation to maintain his illegitimate child 

but an agreement between the parties to maintain his illegitimate child is not invalid. Under section 125 

of CRPC, if the father has sufficient means, he is under obligation to maintain his child whether 

legitimate or illegitimate. In Pavitri v. Katheesumma29, it was stated that it is not at the discretion of the 

court to allow maintenance to an illegitimate child. The court can allow only if asked for it. 

 

Mother’s Obligation to maintain her child 
Mother’s obligation to maintain her child arises when the child is illegitimate and husband has refused 

to maintain the child. However, under Hanafi Law, if the father is poor and the mother is rich then, in 

that case, it is the obligation of the mother to maintain the child. However, she can recover the money 

when her husband gets into the condition to repay it. Under Shefai Law, even if the father is poor and 

mother is rich, the mother is still not obliged to maintain her child. In that case, it is the obligation of 

grandfather to maintain the child30.The provisions for maintenance of children are not a matter of 

concern as they are provided adequate Maintenance under the law but the position of the wife is poor 

as compared to other laws. Though the legislature has enacted an Act, it has not created much difference 

in the condition of the wives. The proper efforts and contribution of both the legislature and the judiciary 

are required to improve the position of a divorced wife under Muslim Law. Muslim law does not 

prescribe any maximum or minimum amount to be given during Iddat of the divorced wife. The court 

is competent to fix any amount keeping in view the socio-economic status of the husband and wife31. 

From the foregoing it is obvious that generally speaking in places that the Muslim Women (Protection 

of Rights on Divorce) Act 1986 is applicable, it is not the personal Islamic law of the parties that is 

applicable, but this Act32. 

 

4. Conclusion and Recommendations 

The issues of the rights of a divorced wife to maintenance under Islamic Law are one that needs urgent 

intervention. A divorced woman and her children do not get as much as they should get when there is a 

divorce. In Nigeria, it is the personal Islamic laws of the parties that will apply since the Indian Code 

of Criminal procedure and the Muslim Women (Protection of rights on Divorce) Act does not have 

jurisdiction. The Code of Criminal Procedure was a watershed in the actualization of the rights of a 

                                                           
29AIR 1959 KER 319 
30Anusha vijayvargiya, ‘Maintenance of women and children under Muslim Law’ (ND), retrieved from 

<https://www.legalbites.in/maintenance-wife-children-muslim-law/ accessed 8/10/2018. Op.cit 
31 Ishad Sayed, Maintenance of Divorced Woman under Muslim Personal Law’ retrieved from    

<http://www.shareyouressays.com/knowledge/maintenance-of-divorced-woman-under-muslim-personal-law/117500>. 

Op.cit 
32 Ibid. 

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divorced wife under Islamic law with the Supreme Court decision in Begum’s case which protected the 

rights of women and children to the extent that a wife’s rights of maintenance from her husband subsists 

till she remarries. This represents a much better position for a divorced woman than the application of 

the party’s personal law and the Muslim Women (Protection of Rights on Divorce) Act. In Nigeria, a 

divorced wife is only entitled to maintenance for three months after her divorce and where she is with 

child after she puts to bed. This is a very unfortunate position for a woman who has devoted her life to 

a marriage. Divorce is very easy under Islamic law, therefore a man might drive his wife to abject 

poverty with the mere pronouncement of the words of the Talaq, divorce her and the woman is left 

without succour33 The same rules that apply under statute should apply under Islamic marriage to place 

a divorced wife in the same pedestal as her counterpart under the statute, alternatively, the provisions 

of the Code of Criminal Procedure with regards to Maintenance of the divorced wife should be adopted. 

The position of children under Islamic law, though good yet not enviable, once a child hits puberty or 

attains majority he loses his or her right to maintenance. The age of majority in Nigeria is eighteen 

years, an age at which a child would probably be in a tertiary institution. If he is no more entitled to his 

father’s maintenance it would work hardship on such a child; therefore, the age at which a child is 

entitled to maintenance under Islamic law should be reviewed upwards to a minimum age of twenty 

one years as under statute.  

  

 

 

                                                           
33Monika Sharma, ‘Maintenance of divorced wife in Muslim Law and implication ofs.125 of the CrPC’ (February 9 th 2017) 

retrieved from <https://www.legalbites.in/maintenance-divorced-woman-muslim-law-implication-section-125-cr-p-

c/>accessed 10/10/2018 

 

https://www.legalbites.in/maintenance-divorced-woman-muslim-law-implication-section-125-cr-p-c/
https://www.legalbites.in/maintenance-divorced-woman-muslim-law-implication-section-125-cr-p-c/

