Introduction

In the judgement of Danial Latifi v. Union of India, the right of a woman to maintenance was upheld for a lifetime or until she remarried. In the landmark case of Mohd. Ahmed Khan v. Shah Bano Begum & ors.[1], Shah Bano was represented by Danial Latifi, who went on to file a writ petition in the apex court challenging the constitutional validity of the act which overturned the verdict of the case.

In the field of Islamic family law in India, this case plays a significant role. Additionally, it was necessary to advance women’s rights, to resolve the gaps in Muslim personal laws and to alleviate the chaos created by the 1985 judgment of Shah Bano.

Background

The Shah Bano case was a turning point in history, permitting such rights to women under Islamic personal laws. The topic of maintenance was the key issue here. Maintenance, also known as ‘Nafaqah’ under Muslim law, refers to the duty of the husband to provide financial support for his wife and other basic necessities of life such as food, shelter, clothing, education etc. during the iddat period. Under Islamic law, the iddat period refers to the waiting period a woman must follow after the death of her husband or divorce, during which she cannot marry another man. The length of the term may vary but from the date of death or divorce, it is typically three lunar months or ninety days. Shah Bano Begum sued her husband, Mohd. Ahmed Khan in 1978 after she was refused this maintenance. She and her husband had divorced and he kicked her out of the house along with their children in 1975. Her husband gave her irrevocable triple talaq in order to get rid of paying maintenance. Shah Bano sued her husband for maintenance and her right to it was upheld by the Madhya Pradesh High Court. Her husband challenged this decision of Madhya Pradesh High Court in the Supreme Court of India. Chief Justice Y. V. Chandrachud upheld the decisions of the lower courts and delivered the judgement. The honourable court held that the act of Mohd. Ahmed Khan breached Section 125 of The Code of Criminal Procedure. It deals with the issue of maintenance and consists of the condition that the right to maintenance persists even after the iddat period if a spouse is unable to fend for themselves. Furthermore, it was also proposed in the same judgement that a Uniform Civil Code should be set up to avoid such issues in future. To set a Uniform Civil Code means to frame one law which, regardless of religion, is applicable to all in personal matters. In India, only the state of Goa has a Uniform Civil Code till date.

The case triggered unrest and had a widespread effect all over the country as it dealt with a clash of personal laws and codified laws. It was also an instance in which the judiciary had interfered with religious matters.

What followed next was the election of the Rajiv Gandhi government in 1984, who passed the Muslim Women (Protection on Divorce Act), 1986. This act was against the judgement of the Shah Bano case and made Section 125 inapplicable on Muslim women, effectively stating that the right to maintenance exists only in the iddat period.

Facts

The validity of the Muslim Women (Protection on Divorce Act), 1986, was challenged by Danial Latifi, who was Shah Bano’s counsel. It was argued that it is discriminatory against Muslim women and violated of the right to equality under Articles 14 and 15 and Right to life under 21 of the Indian Constitution. The act was passed in order to appease certain sections of the society who claimed that the decision propounded in the Shah Bano case was contrary to the Shariat law.

Issues

Whether the Muslim Women (Protection on Divorce Act), 1986 is constitutionally valid?

Arguments

From the side of the petitioner:

On behalf of the petitioners, Smt. Kapila Hingorani and Smt. Indira Jaisingh claimed that the word ‘wife’ was included in the framework of Section 125 of The Code of Criminal Procedure, disregarding the religion practiced. Additionally, Section 125 is not a civil law but a part of the Code of Criminal Procedure which is secularly applicable to all. Moreover, the purpose behind the implementation of the provision was to prevent vagrancy for women in case of exigency and exclusion of Muslim women in its scope would only question the same. The exclusion of Muslim women is also contrary to the concept of secularism and since it discriminates on the basis of religion, therefore it violates Articles 14 and 15 of the Constitution of India. It also goes against fundamental human principles and thus, infringes Article 21 of the Constitution of India as well. Marriage is a contract in Islam and the aspect of consideration is essential. This is achieved by mahr or dower. Mahr refers to the money or property given by the groom to his bride at the time of marriage. Similarly, divorce is also a contract and is void without consideration. Therefore, the act must be held unconstitutional.

From the side of the respondent:

Shri Y.H.Muchhala, the lawyer on behalf of the All India Muslim Personal Law Board, argued that the interpretation of the Code must be in line with the Muslim personal laws. Furthermore, respecting the personal laws of the Islamic community is a legitimate ground for differentiation and thus, cannot be held discriminatory. The purpose of the Act was to maintain the personal law and not to circumvent it. Additionally, it was also argued that the verdict of the Shah Bano case failed to take into account the distinct identity of the Islamic community. Above all, the court relied on an erroneous interpretation of the Islamic scriptures and hence, violated its ethos. He also contended that the Court has hazarded interpretation of an unfamiliar language in relation to religious tenets and such a course is not safe.[2] It should be noted that Muslim personal laws are not meant to wrong women but protect them.  Therefore, the act cannot be unconstitutional.

Analysis

The Muslim Women (Protection on Divorce Act), 1986 was considered valid. The provisions of the same do not oppose the ideals of the Constitution of India. A balance was struck between the Act and The Code of Criminal Procedure by the court. It revived the principles of the Shah Bano case that the liability of the husband to maintain his wife does not end with the iddat period. As long as the husband fulfills his obligations under Section 3 of the Muslim Women (Protection on Divorce Act), 1986, the women are also entitled to maintenance under Section 125 of the CrPC. A divorced Muslim woman who has not remarried and is unable to sustain herself after the iddat period can be maintained by her relatives who are liable for the same in proportion to their inheritance on her death under Section 4 of the Muslim Women (Protection on Divorce Act), 1986.

Conclusion

The Danial Latifi case succeeded in integrating both the personal laws and the codified laws effectively in a way that it addressed all parts of the society and reduced the possibility of communal conflicts and political disputes. The judgement showed how social responses play an important role in the decision making process of the judiciary. Even though the controversy still remains, the Danial Latifi case succeeded in safeguarding the rights of Muslim women with respect to the maintenance under personal laws. It was instrumental in its approach to delineate the laws.

References

  • Danial Latifi, 1917- 2000, https://www.epw.in/journal/2000/27/commentary/danial-latifi-1917-2000.html
  • Feminism and Multicultural Dilemmas in India : Revisiting the Shah Bano Case,https://www.jstor.org/stable/3600532?seq=1
  • Legal Change and Gender Inequality: Changes in Muslim Family Law in India by Narendra Subramanian,https://www.researchgate.net/publication/227663550_Legal_Change_and_Gender_Inequality_Changes_in_Muslim_Family_Law_in_India
  • Dead Letters? The Uniform Civil Code through the Eyes of the Indian Women’s Movement and the Indian Supreme Court by Tanja Herklotz, https://www.jstor.org/stable/2616007seq=1
  • What is triple talaq? By Krishnadas Rajagopal ,https://www.thehindu.com/news/national/the-hindu-explains-triple-talaq/article18590970.ece
  • Commentary :: The Danial Latifi Case and the Indian Supreme Court’s Balancing Act, https://islamiclaw.blog/2017/01/23/the-danial-latifi-case-and-the-indian-supreme-courts-balancing-act/
  • Who really influenced Rajiv Gandhi to act against Shah Bano judgment? By Rasheed Kidwai, https://theprint.in/opinion/who-really-influenced-rajiv-gandhi-to-act-against-shah-bano-judgment/87263/
  • What is Shah Bano case?, https://indianexpress.com/article/what-is/what-is-shah-bano-case-4809632/
  • Danial Latifi & anr. v. Union of India 7 SCC 740
  • Mohd. Ahmed Khan v. Shah Bano Begum & ors. 1985 AIR 945
  • 1985 AIR 945
  • Aga Mohamed Jaffer Bindaneem v. Koolsom Bee Bee & Ors. [2001] MANU SC 0595

Author: Simran Bherwani

National Law University, Jodhpur