Case Study: Danial Latifi and Another v. Union of India

By Dushyant Pratap Singh 10 Minutes Read

Citation: (2001) 7 SCC 740

Date of Judgement: 28th September, 2001

Bench: S. Rajendra Babu, D.P. Mohapatra, Doraiswamy Raju, G.B. Pattanaik, Shivaraj V. Patil

Facts:

The case follows its interest from the famous case of Mohd. Ahmed Khan v. Shah Bano Begum[1], commonly known as the Shah Bano case. Shah Bano, a Muslim mother of five, aged 62 years, from Indore, Madhya Pradesh, was separated (divorced) by her husband in 1978. She then lodged a criminal case under Section 125 of the CrPC, after appealing in Supreme Court of India, she got the right to alimony. But later, she was denied her right, when the Parliament of India overturned the judgment by enacting the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act). This Act watered down the Supreme Court decision and, it even denied alimony, to those women who are unable to maintain themselves, from her previous husband. According to Sec 3(1)(a)[2] of the act, a divorced woman is entitled to reasonable and fair provisions, and maintenance within the ‘iddat’ period, in this manner, denying the subsequent and future maintenance to such wives from their divorced husbands. Muslim lady was left to be kept up on the hands of their family members after the iddat period. In this way, the constitutional validity of the Act was challenged before the Supreme Court in this case (Danial Latifi) through a writ petition.

Petitioners contended that the Act is unconstitutional and infringing Article 14, 15, and 21[3]. As the exclusion of Muslim women from S. 125Cr.PC results in discrimination between women and women, which is like treating equals as unequal. Already there is the gender injustice caused in the country, but this further leads to outraging a law declared by the Supreme Court in Shah Bano’s case. Thus, there is a violation of equality before the law and equal protection of laws, and by leaving the wife in poverty, it is an infringement of Art. 21, as well as basic human values. 

Key Law Points:

1. Whether a Muslim husband is liable to make reasonable and fair provision extending beyond the iddat period in terms of Sec. 3(1)(a) of The Muslim Women (Protection of Rights on Divorce) Act, 1986?

Yes.

The husband is bound to make and pay maintenance to the wife, and if he fails to do so, then the wife is entitled to recover it by filing an application before Magistrate. After careful reading provisions of the Act, it is clear that divorced women shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.

Therefore, it was stated by the Court that, Parliament seems to intend that the divorced woman gets sufficient means of livelihood after the divorce and, thus, the word provision indicates that something is provided in advance for meeting some needs in the future. At the time of divorce, the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance to meet those needs. Reasonable and fair provisions may include provisions for her residence, food, clothes, and other articles. If he fails to do so, then the wife is entitled to recover it by filing an application before the Magistrate as provided in Sec. 3(3) of the act. Still, nowhere the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the divorced wife’s whole life unless she gets married for a second time.

2. Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986, is unconstitutional in light of Article 14, 15, and 21 of the Constitution of India, 1950?

No.

The Magistrate has been conferred with power to make appropriate provision for maintenance and, therefore, what could be earlier granted by the Magistrate u/s. 125, CrPC, 1973 would now be given under very Act itself.

Court further observed that this Act could be construed in two ways, first, that the Parliament seems to intend that the divorced woman gets sufficient means of livelihood, after the divorce & the period of iddat and second if the wife is not entitled to maintenance after the iddat. Therefore, it is clear that on the first rule of construction, which is permissible, the Act remains effective and operative. The Court will prefer this on the ground that Legislature does not intend to enact unconstitutional laws. Therefore, the interpretation placed by us results in upholding the validity of the Act. It is well settled that by an appropriate reading of enactment, the validity of the Act can be upheld, such interpretation is accepted by courts and not the other way.

This being position, Act cannot be held to be unconstitutional – That Act actually and in reality, codifies what was stated in Shah Bano’s case.

3. Whether a husband under Muslim law is exempted from any responsibility towards his divorced wife beyond the payment of any mahr due to her and an amount to cover maintenance during the iddat period and Sec. 127(3)(b) of CrPC, 1973?

If a divorced wife can maintain herself, then the husband’s liability ceases with the expiration of the iddat period. But divorced Muslim women who have not remarried and is unable to maintain herself after the iddat, then she is entitled to file an application u/s Sec.4 of the Act against her relatives, who are liable to maintain her in proportion to the properties, which they would inherit on her death according to Muslim law from such divorced woman, including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.

Essential Observations of the Court:

  1. The distinction between ‘provision’ and ‘maintenance’ has to be made. The provision would mean that the Muslim husband is required to contemplate and fulfill the future needs of his wife, and he has to make the preparatory arrangements in advance for meeting those needs. The reasonable and fair provision includes the provision for her residence clothes, food, etc.
  2. The word ‘within’ used in S. 3(1)(a) of the Act should be read as “on or before, not beyond.” Therefore, this provision would mean that on or before the expiration of the iddat period, the husband is bound to make provision and pay the maintenance to the wife. Such responsibility of the husband would extend to the whole life of a woman unless she remarries.
  3. Court also observed that if we see Sec. 3(1)(a) r/w S. 3(3) of the 1986 Act, the Muslim divorced women’s right to provision and maintenance has been subjected to the condition of husband having sufficient means. In contrast, the Muslim personal law makes it an unconditional obligation of the husband to provide maintenance to the wife till the iddat period expires. Therefore, it appears contrary to Muslim Law as well as Shah Bano’s case.

Conclusion:

The Court interpreted it as two obligations:

(1) to make reasonable and fair provision and

(2) to pay maintenance.

Ultimately, the Court found that the 1986 Act requires a Muslim husband to provide maintenance of a reasonable and fair amount needed to maintain his ex-wife for the rest of her life, but that he must pay this amount in total during the iddat period.


[1] (1985) 2 SCC 556.
[2] The Muslim Women (Protection of Rights on Divorce) Act, 1986.
[3] The Constitution of India, 1950.

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