TABLE OF CONTENTS

Table of Abbreviations...............................................................................................................3
A. INTRODUCTION.................................................................................................................4
B. BACKGROUND BEFORE & AFTER SHAH BANO......................................................5
i.

Position Before Shah Bano.............................................................................................5

ii. Position After Shah Bano................................................................................................6

C. DANIEL LATIFI V. UNION OF INDIA - AT HAND..........................................................7
i.

Factual Overview............................................................................................................7

ii. The Key Considerations..................................................................................................8

D. ANSWERING UNANSWERED QUESTIONS...................................................................8
i.

Challenging the Constitutional Validity of the Act.........................................................8

ii. Wakf Board & Ors. Strangers to A Divorced Woman..................................................9

iii.

Acid Test of the Constitution........................................................................................9

iv.

Middle Path Approach by the Supreme Court.............................................................10

E. CONCLUSION & PRESENT SCENARIO........................................................................11

BIBLIOGRAPHY....................................................................................................................13

Table of Abbreviations
AIR

All India Reporter

Art.

Article

ed.

Edition.

Govt.

Government

Ors.

Others

Pg. No.

Page No.

SC

Supreme Court

Sec.

Section

Ibid.

ibidem

v.

versus

Vol.

Volume

Vis--vis

face to face

A. INTRODUCTION
India is one of the many countries where rights of women are often directly at stake in the
conflict of religious and secular legal authorities.1 Prominent cause of this problem can be
attributed to matters relating to marriage and divorce. This is not accidental, and reflects the
perception that regulation of matters affecting women within the family are private or
personal, and do not raise constitutional issues.2 In many countries including India, this is a
legacy of colonial rule, which regularized commercial and criminal law in line with its own
legal heritage, but left family law to the existing religious communities. This has led to
conflict from time to time between Constitutional rights conferred upon an individual and
Personal laws of the community.
In light of this the most controversial question which has been politically significant
in the recent past in the background of a secular constitution and the concept of welfare state
is that whether or not a divorced Muslim woman after divorce post iddat period is entitled to
maintenance by her husband or not.3 Generally iddat period is taken to be three months. A
divorced Muslim woman is entitled to maintenance from her husband during the period of
iddat, after that Muslim personal law though nowhere expressly permits maintenance after
divorce but it also does not prohibits, specifically or impliedly, it anywhere. 4 In fact
interpretation of the Holy Quran shows that the Islam as a religion calls for providing
maintenance to a divorced woman on a reasonable scale, and this is duty of every righteous
god fearing person.5 But this interpretation was highly debated upon and was considered as

1 A. Scolnicov, Religious Law, Religious Courts, 4(4) INT'L J CON LAW 733, 735 (2006);
available at <http://www.jstor.org/stable/4227752> (last accessed on Oct. 18th, 2014).
2 Ibid at 736.
3 The iddat period is generally considered to be three menstrual courses if she is subject to
menstruation, three lunar months if she is not subject to menstruation or if she is pregnant at
the time of her divorce the period between her divorce and the delivery of child or the
termination of pregnancy, whichever is earlier.
4 Zoya Hasan, Minority Identity, Muslim Women Bill Campaign and the Political Process, 24 (1) Economic and
Political Weekly 44, 48 (1989).

5 Ibid at 45.
3

out of purview of the court as the court itself had decided that they would not be interpreting
the religious texts, when it was so discussed in the case of Shah Bano Begum.6
In this article author aims to critically analyse one of the landmark judgements i.e. Danial
Latifi v. Union of India7, in which a constitution bench of Supreme Court upheld the
constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act 1986.
The rationale for the judgment was that,
Reversal by Parliament of the effect of the decision in Shah Bano8 by Muslim
Women Act 1986 could not be in violation of art. 14 of the Constitution, which forbids
sex discrimination, as framers could not have intended to deprive Muslim women of
their rights.9
The author tries to analyse the judgment to understand the legal and social dilemmas attached
with the consequence of passing of this judgement. Apart from it, author tries to answer the
questions - whether Judiciary was right in upholding the constitutional validity of the Muslim
Women (Protection of Rights on Divorce) Act, 1986 in this judgment? And, whether the
approach adopted by Supreme Court in this case was practical and tactful to avoid a direct
conflict with its executive and legislative counterpart or was it pusillanimous in attitude?
B. BACKGROUND BEFORE & AFTER SHAH BANO
i.
Position Before Shah Bano - Under Islamic law maintenance or Nafaqa (Nafqa)
arise out of three reasons marriage, relations and property.10 Maintenance in this
context means food, raiment (clothing) and lodging, though it generally refers to only
food. A Muslim is required to maintain his other relations only if he has the means.
But a Muslim husband is duty bound to provide maintenance to his wife, even if he is

6 Infra note 8.
7 AIR 2001 SC 3958; (2001) 7 S.C.C. 70
8 Mohammad Ahmed Khan v. Shah Bano Begum, A.IR. 1985 S.C. 945 (divorced Muslim
woman's right to maintenance from former husband ceases with expiration of stipulated
payment period if she is possessed of independent means; otherwise, she is entitled to
continuing maintenance under the Code of Criminal Procedure, Sec.125).
9 Supra note 7.
10 Prof. G.C.V. Subba Rao, Family Law in India, 9th Edn. (2007).
4

poor, if the marriage is sahih or lawful. 11 But the wife never need to maintain the
husband. The quantum of maintenance is decided as per the classical law.12 The
Hanafi school does not permit past maintenance (including divorced wives) but the
other school of the Shia sect, the Shafei school allows past maintenance and in the
words of the renowned Muslim law scholar Tahir Mahmood opines that this rational
provision deserve to be applied to the Muslim women of all schools.13
In India the Shariat Act, 1937 also recognizes the Muslim wifes right to maintenance.
The section 488 of the old Code of Criminal Procedure1898 provides for criminal
action by virtue of magistrates orders for maintenance of wives which included
Muslim wives too, as held in the case of Shahulmeedu v. Subaida Beevi.14
The sections 125-128 of the new Code of Criminal Procedure 1973 retained the old
provisions and now included the divorced wives too. A divorced wife now could ask
for maintenance from the former husband if she was unable to maintain herself and
the former husband even after having sufficient means neglects or refuses to maintain
her. In various Supreme Court judgments in between 1979 and 1985 like Bai Tahira v.
Ali Hussain Fidaalli Chothia15 and Fazlunbi v. K. Khader Vali16 held that Muslim
ii.

women is entitled to maintenance under Section 125.

Position After Shah Bano - The main controversy arising in this situation is
regarding Muslim womens right to maintenance after the divorce. Prior to the
Supreme Court judgement in Mohd Ahmed Khan v. Shah Bano Begum , it was
generally held that the Muslim women did not have any right of maintenance once the
period of iddat (period of separation) is over. But in this case the Supreme Court held
that divorced Muslim women had the right to maintenance even after the period of
iddat was over.

11 Mulla on Muslim Law, 8th Edn, pg 237.

12 Under the Hanafi law position of both the spouses is taken into consideration, the Shafei
law considers only the husbands position and the Isna Ashari and Ismaili laws takes into
account the wifes needs and the local custom prevalent.
13 Supra note 11.
14 A.I.R. 1974 S.C. 1.
15 AIR 1979 SC 362.
16 1980 SCC Cri LJ 916.
5

This judgment was followed by various repercussions in the Muslim community who
felt their faith was under threat. 17 The Muslim Personal Law Board opined that the
Supreme Court was wrong in interpreting the holy Quran as per a judicial stand taken
whereby it was held that the court would not interpret religious scriptures or holy
books. The parliament to undo the effect of this judgement passed the Muslim Women
(Protection of Rights on Divorce) Act, 1986, which provided that under section 3(1)
(a) a divorced women is entitled to reasonable and fair provision and maintenance
within the iddat period. The Act while nullifying the Shah Bano ratio, tried to restrict
the divorced Muslim womans right to maintenance up to the iddat period only. A
classic example of how political considerations ate into the rights of a section of the
people, the Constitutional validity of the Act was challenged on the ground of being
violative of Article 14, 15 and 21.
Post legislation the basic question raised by right activists was the necessity of enacting an
Act, completely segregating a section of the population, while a secular remedy was already
available under Section 125 of the Code of Criminal Procedure. 18 In the face of this burning
controversy, the Supreme Court in the case of Daniel Latifi v. Union of India approached a
middle path and held that reasonable and fair provisions include provision for the future of
the divorced wife (including maintenance) and it does not confine itself to the iddat period
only. The Constitutional validity of the Act was also upheld.
The Danial Latifi judgment remains the final case law in this regard. However the
debate has still not been put to rest. In the light of the contentions and arguments raised, we
must thus critically examine the judgment.
C. DANIEL LATIFI V. UNION OF INDIA - AT HAND
i.
Factual Overview
A combined reading of Sections 3, 4 and 5 of the 1986 Act along with the Supreme Court's
verdict in Shah Bano Case gave birth to some vexed issues like19:
17 Narendra Subramanian, Legal Change and Gender Inequality: Changes in Muslim Family
Law in India, 33 (3) Law & Social Inquiry 631, 645 (2008); available at
<http://www.jstor.org/stable/20108777> (last accessed on Oct. 22nd, 2014).
18 Ibid.
19 Danial Latifi, para 10.
6

(1) Is it correct to say that the divorced Muslim women are now deprived of the
benefit of Section 125 CrPC due to Section 5 of the 1986 Act?
(2) Whether the claim of maintenance is limited only upto the period of Iddat? What
is the meaning of the expression "within the Iddat period" as used in Section 3(1)(a)
of the Act?
(3) Does the Section 3(1)(a) mean one-time payment? Whether the words 'Provision'
and 'Maintenance' in Section 3(1)(a) convey the same meaning and not two different
things? Why the word 'Provision' is used only in Section 3(1)(a) and is absent in
Section 4?
In the absence of authoritative and decisive judgment of the Supreme Court (till 2001
judgment of Danial Latifi Case), different High Courts interpreted these expressions
differently and the law was, therefore, neither certain nor uniform because of conflicting
judicial opinions. This state of legal affairs further worsened the situation of divorced Muslim
wives.20 Ultimately the constitutionality of the Muslim Women Act, 1986 had been
challenged in the Supreme Court under several Writ petitions and the fate of this Act had
been hanging in uncertainty for more than one decade. All the writ petitions challenging the
Constitutional validity of the Muslim Women Act, 1986 were clubbed together in PIL writ
petitions filed by Danial Latifi and others against the Union of India under Article 32 of the
Indian Constitution.21
ii.
The Key Considerations
Smt. Kapila Hingorani and Smt. Indira Jaisingh, the Counsels standing on behalf of the
petitioners contended that the expression 'wife' as included in the purview of the Section 125
of the Code of Criminal Procedure is a woman who has been divorced by, or has obtained a
divorce from her husband and has not remarried.22 The religion professed by a spouse or the
spouses has no relevance in the scheme of these provisions whether they are Hindus,
Muslims, Christians or the Parsis, pagans or heathens. 23 This provision is not a part of the
civil law applicable selectively to parties belonging to a particular religion but a criminal
remedy applicable to all on a secular basis, the basis there being, neglect by a person of
20 Supra note 17.
21 Danial Latifi, para 2.
22 Danial Latifi, para 12.
23 Danial Latifi, para 21.
7

sufficient means to maintain these and the inability of these persons to maintain themselves. 24
The very spirit of this provision was the moral edict of law and morality could never be
clubbed with religion.25 It was also further contended that Section 125 of the Code of
Criminal Procedure is a provision made in respect of women belonging to all religions to
avoid vagrancy after marriage and exclusion of Muslim Women from the same results in
discrimination between women and women and so violating Article 15 of the Constitution. 26
There is a violation of not only equality before law but also equal protection of laws and thus
violating Article 14 which in turn inherently infringes Article 21 as well as basic human
values.27
D. ANSWERING UNANSWERED QUESTIONS
i.
Challenging the Constitutional Validity of the Act:
The five judge bench of the Supreme Court consisting of Mr. G.B. Pattanaik, Mr. S. Rajendra
Babu, Mr. D.P. Mohapatra, Mr. Doraiswamy Raju and Mr. Shivaraj V. Patil upheld the
Constitutional validity of the Act. The forward step taken by the same Court in the Shah Bano
in the face of religious fanaticism was undone as the Court in the rationale said that,
Legislature does not intend to enact unconstitutional laws.28 It was said when, even the
court has conceded that the provisions of the Act appear to be prima facie violative of Article
14.29 While it accepts social reality of a male dominated society, it fails to take recognition of
the fact that the Act is inherently discriminatory.30 This can be very well proved by the fact
that it brings within its purview only divorced woman who has been married according to
Muslim law and has been divorced by or has obtained divorce from her husband in

24 Danial Latifi, para 22.

25 Ibid.
26 Danial Latifi, para 32.
27 Danial Latifi, para 23.
28 Danial Latifi, para 34.
29 Ibid.
30 KUSUM, CASES AND MATERIALS ON FAMILY LAW, 2 Universal Publication 213
(2010).
8

accordance with the Muslim law.31 But the Act excludes from its purview a Muslim woman
whose marriage is solemnized either under the Special Marriage Act, 1954 or a Muslim
woman whose marriage was dissolved either under Indian Divorce Act, 1969 or the Special
Marriage Act, 1954.32 The Act does not apply to the deserted and separated Muslim wives.33
ii.

Wakf Board & Ors. Strangers to A Divorced Woman:

Section 4 of the Act makes the relatives of the Divorced woman or the state wakf board
responsible for the maintenance of the Divorced woman. But reality is that it is quite
improbable that she will get sustenance from the parties who were only strangers to the
marital relationship which led to divorce. Also, wakf boards would usually not have the
means to support such destitute women since they are themselves perennially starved of
funds and the potential legatees of a destitute woman would either be too young or too old so
as to be able to extend requisite support.34 Furthermore, the Court fails to answer the
necessity of an Act, segregating Muslim women completely when a secular remedy is already
available under the Section 125 of the Code of Criminal Procedure. 35 Hindu women have
their right to maintenance recognized under the Hindu Adoptions and Maintenance Act, 1956
but that no way bars her from claiming maintenance under Section 125 of the Code of
Criminal Procedure. So why, this discrimination, the Court fails answer that.
iii.

Acid Test of the Constitution:

The proposition put forward in the judgment that the Act in spirit tries to respect the
provisions in the Personal Law does not hold good as it being a codified Law, has to pass the
acid test of the Constitution, which it miserably fails. 36 Another, fact to be noted is that
Section 5 of the Act gave option to the parties to the divorce, the husband and the wife, to
decide mutually to be governed either by Sections 125-128 of the Cr. PC or the provisions of
31 Ibid.
32 Vivek V. Vidwas, Maintenance to Divorced Muslim Women under 1986 Act; Law needs
an Amendment, AIR 2006, Journal Section, Pg. 49.
33 Ibid.
34 Ibid at 46.
35 Janak Raj Jai, Divorce Law & Procedures, Universal Publication 3rd ed, Pgs. 138-141.
36 Supra note 11.
9

the Act.37 But the main criticism levelled against this section was that which Muslim husband
would like to go through the rigours of the CrPC provisions when he can be governed by a
much easier law.38 The Section 7 of the Act also provided that the pending applications under
the CrPC were to be dealt within the purview of this Act. But Gujarat High Court has held in
the case of Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai 39 that a divorced
Muslim woman can directly move to the Court under the CrPC provisions.
iv.

Middle Path Approach by the Supreme Court:

Middle path approach undertaken by the Supreme Court in this case becomes evident as it
reiterates the stand of the Gujarat, Kerala and Bombay High Courts earlier in this regard. 40
The poorly drafted provisions of the Act, especially section 3, provided the Court with ample
scope of interpretation.41 The bench laid special emphasis on the two words- maintenance
and provision and distinguished between the precision of use of the two words as provision
to be made and maintenance to be paid. 42 The time frame or the iddat period mentioned
was held to be the time limit within which both maintenance for the iddat period and a
reasonable and fair provision for the future in the form of a lump sum was to be paid to the
divorced wife to avoid future vagrancy.43 The interpretation given to the Act by the Courts
thus codified the Shah Bano ratio, while it tried to nullify it. The Supreme Court through this
judgement put to rest the controversy relating to the interpretation of Holy Quran raised
during the Shah Bano case and did not delve into that, but concluded that the word mata as
interpreted in Muslim personal laws would support the Courts view of the term provision
as one time lump sum payment.44

37 KUSUM, CASES AND MATERIALS ON FAMILY LAW, 2 Universal Publication 213

(2008).
38 Supra note 10.
39 AIR 1988 Guj 141.
40 Danial Latifi, para 41.
41 Supra note 8.
42 Danial Latifi, para 34.
43 Supra note 11.
10

E. CONCLUSION & PRESENT SCENARIO

Before the Danial Latifi judgement, the expression provision and maintenance created
confusion as the High Court of Kerala in Ali v. Sufaira,45 the Bombay High Court in the case
of Abdul Rahman Shaikh v. Shehnaz Karim Shaikh46, and the Gujarat High Court in the case
of Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai47 said that the expression
reasonable and fair provision meant arrangement for a lump sum amount for the future
provision of the wife within the iddat period other than the iddat period maintenance. But
contrary opinions were given by the judgements of the Andhra Pradesh High Court in the
case of Usman Bahmani v. Fathimunnisa48 and the Calcutta High Court in the case of Abdul
Rashid v. Sultana Begum49 and it was held that both expressions provision and maintenance
meant the same, and it covered only maintenance for the iddat period only. After this
judgement the judiciary has held in the cases like in the cases of Bilkis Begum v. Majid Ali
Gazi50 it was held that claim of maintenance of the divorced wife cannot be proceeded under
Section 125 of the Cr PC after the enactment of the 1986 Act. But, in a two judge bench
decision given by Kerala High Court in year 2010, it was held that the divorced Muslim
wife's right to claim maintenance under Section 125 Code of Criminal Procedure does not
stand extinguished by the enactment of the Muslim Women (Protection of Rights on Divorce)
Act. Her right under Section 125 Code of Criminal Procedure shall stand extinguished only
when the payment under Section 3 is actually made and absolution is granted by the Court
44 Danial Latifi, para 36.
45 1988 (2) KLJ 141.
46 2000 CriLJ 3560.
47 AIR 1988 Guj 141.
48 1992 CriLJ 76.
49 1990 CriLJ 1364.
50 2002 (3) ACR 2169 (SC)
11

under Section 127(3)(b) of the Code. Till then, or till she remains a divorced Muslim wife,
she will be entitled to claim maintenance from her divorced husband. Death, remarriage or
actual payment of the amount payable under Section 3 of the Act alone shall extinguish her
right under Section 125 Code of Criminal Procedure to claim maintenance.51
The controversy still remains. The interpretation provided by the judiciary in the Danial Latifi
case fails to satisfy the minds of the reasonable people, as there are glaring defects on the face
of it. The justification of the law being non-discriminatory based on a reasonable
classification and so not violative of Article 14 of the Constitution of India (as given in
Danial Latifi judgement) does not hold good because a law for maintenance to divorced
women was already in force and available to every women of India, irrespective of their
caste, creed, religion. But we should also keep in mind the social perspective. On one hand
where it upholds the Constitutional validity of the Act, it also interprets the provisions of the
Act in favour of the divorced Muslim women. The Court could envisage that the country at
such a juncture of Economic and Social growth, could not bear the burden of aftermath of
another Shah Bano. But keeping in mind the changing times and the constantly evolving
meaning of Article 21of the Constitution, which has been held to include the right to live
with dignity under the case of Olga Tellis v. Bombay Municipal Corporation 52 and Maneka
Gandhi v. Union of India,53 it is a duty of the society to make sure that the divorced Muslim
wife have the provision to maintain herself with dignity and is not led to destitution and
vagrancy. The Personal law may connote a different thing but keeping the changing society in
mind, it should be open to interpretation only for positive changes. That only can help us
achieve the objectives of Social Justice laid down both expressly and implicitly in our
Constitution.

51 Kunhimohammed vs. Ayishakutty ILR 2010 (2) Kerala 140, para 40.
52 AIR 1986 SC 180.
53 AIR 1978 SC 597.
12

BIBLIOGRAPHY
Primary Material:Case Laws:1. Danial Latifi v. Union of India AIR 2001 SC 3958.
2. Mohammad Ahmed Khan v. Shah Bano Begum, A.IR. 1985 S.C. 945.
3. Shahulmeedu v. Subaida Beevi A.I.R. 1974 S.C. 1.
4. Bai Tahira v. Ali Hussain Fidaalli Chothia AIR 1979 SC 362.
5. Fazlunbi v. K. Khader Vali 1980 SCC Cri LJ 916.
6. Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai AIR 1988 Guj 141.
7. Ali v. Sufaira 1988 (2) KLJ 141
8. Abdul Rahman Shaikh v. Shehnaz Karim Shaikh 2000 CriLJ 3560.
9. Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai AIR 1988 Guj 141
10. Usman Bahmani v. Fathimunnisa 1992 CriLJ 76
11. Abdul Rashid v. Sultana Begum 1990 CriLJ 1364
12. Bilkis Begum v. Majid Ali Gazi 2002(3)ACR2169(SC)
13. Kunhimohammed vs. Ayishakutty ILR 2010 (2) Kerala 140
14. Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180.
15. Maneka Gandhi v. Union of India AIR 1978 SC 597.

Secondary Material:Books:1. Prof. G.C.V. Subba Rao, Family Law in India, 9th Edn. (2007).
13

2. Mulla on Muslim Law, 8th Edn, pg 237.

3. KUSUM, CASES AND MATERIALS ON FAMILY LAW, 2 Universal
Publication 213 (2010).
4. Janak Raj Jai, Divorce Law & Procedures, Universal Publication 3rd ed, Pgs. 138141.

14