CASE ANALYSIS OF

DANIEL LATIF V. UNION OF INDIA

BY
AKRITI SHARMA
INTERN
2ND YEAR
NEW LAW COLLEGE, BHARATI VIDYAPEETH
(DEEMED TO BE UNIVERSITY), PUNE.
Mob:- 7830130825
Email :- akritiksharma42@gmail.com

26 APRIL, 2020
 DANIEL LATIF CASE AND IT’S IMPACT ON THE PROTECTION OF

MUSLIM WOMEN'S RIGHTS ON DIVORCE

BACKGROUND OF THE CASE

In the case of Mohd. Ahmed Khan v. Shah Bano Begum1, Shah Bano Begum filed a case of
maintenance against her husband and won it. Muslim Politicians criticized the judgment which
was later reversed. This triggered the congress government to pass the Muslim Women’s
Protection Of Rights on Divorce Act, 1986. According to this Act a husband is liable to pay for
the maintenance of wife after divorce till the period of iddat only and after such period the onus
of maintaining the woman would shift on to her relatives. In this case the constitutional validity
of the Muslim Women Protection Of Rights On Divorce Act, 1986 was challenged on the
grounds that the law was discriminatory and violative of the right to equality guaranteed under
Article 14 of the Indian Constitution as it deprived Muslim women of maintenance benefits
which were equal to those provided to other women under Section 125 of Criminal Procedure
Code, 1973. Further, it was argued that the law would leave Muslim women poor and without
any resources to look after herself and thus was violative of the right to life guaranteed under
Article 21 of the Indian Constitution. The Supreme Court, on a creative interpretation of the
Muslim Women Protection of Rights On Divorce Act, 1986, upheld its constitutionality. It held
that a Muslim husband is liable to make reasonable and fair provision for the future of his
divorced wife extending beyond the period of iddat. DANIEL LATIF V. UNION OF INDIA 2
is important because, it established for the first time that a Muslim husband’s liability to provide
maintenance to his divorced wife extends beyond the period of iddat, and he must realize his
obligation within the iddat period, thus a balance was maintained between the Muslim personal
law and the Criminal Procedure Code, 1973.

INTERNATIONAL LAWS RELATING TO PROTECTION OF

WOMEN’S RIGHTS ON DIVORCE.

The Protection Of Women’s Rights On Divorce in an International Level is mentioned in the

United Nations Convention on the Elimination of All Forms of Discrimination against
1
Mohd. Ahmed Khan V. Shah Bano Begum [1985 (1) SCALE 767 = 1985 (3) SCR 844 = 1985 (2) SCC 556 = AIR
1985 SC 945]
2
Daniel Latif V. Union Of India AIR 2001 SC 32
Women(CEDAW), agreed in 1979, it defines what gender discrimination is and provides ways
to achieve Gender Equality. Countries that have ratified the convention are legally bound by its
provisions and must regularly report on the measures they take. The binding nature of CEDAW
gives women’s movements the right to demand its implementation and legitimises their
proposals. Article 16(1). States Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family relations and in
particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into
marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their
free and full consent; (c) The same rights for both spouses in respect of the ownership,
acquisition, management, administration, enjoyment and disposition of property, whether free of
charge or for a valuable consideration.

FACTS IN ISSUE
In this case the petitioner challenged the constitutional validity of The Muslim Women’s
Protection Of Rights On Divorce on the following grounds: i) The Act was un-islamic,
unconstitutional having potential of suffocating the Muslim women, ii) Excluding the application
of section 125, Cr.P.C. was violative of Article 14 and 21 of the constitution; iii) The conferment
of power on the Magistrate under subsection (2) of sections 3 and 4 of the Act was different from
the right of a Muslim woman like any other woman 7 AIR 1993 Ker. 308. 8 1994 Suppl(l) sec
713 9 AIR 2001 SC 3958 142 in the country to avail of the remedies provided under section 125
Cr.P.C.

PETITIONER’S ARGUMENTS
1. The Act was unconstitutional and un-islamic having potential of suffocating the Muslim
women.
2. The Act was discriminatory and unequal between all the women of the country and the
Muslim women.
3. It was violative of Article 14 Right to Equality and Article 21 Right to Life and Personal
Liberty.
4. The remedy provided under the Act is illusory as , she could not get sustenance from the
parties who were not only strangers to the marital relationship. Secondly, Wakf Boards
would usually not have means to support such poor women. Thirdly, the potential legatees
 of a destitute woman would either be too young or too old so as to be able to extend
requisite support.
5. The Act is contradictory to Section 125 of Code of Criminal Procedure.

RESPONDENT’S ARGUMENTS

1. The Act wasn’t un-islamic, it didn’t bring down women. Women were allowed maintenance
from the husband till the period of iddat.
2. The provisions of the Act did not offend Articles 14, 15 and 21 of the Constitution of India.
3. Under Section 3 of the Act, it is provided that a reasonable and fair provision and
maintenance to be made and paid by her former husband within the iddat period would make
it clear that it cannot be for life but would only be for a period of iddat and when that fact
has clearly been stated in the provision, the question of interpretation as to whether it is for
life or for the period of iddat .
4. 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
the Act.

MUSLIM WOMEN’S RIGHTS ON DIVORCE

In the case of Mohd. Ahmed Khan v. Shah Bano Begum. Pursuant to a prima facie reading of
the Muslim Women Protection of Rights On Divorce (MWPRDA), 1986, a Muslim husband was
responsible to maintain his divorced wife only for the iddat period and after such period the onus
of maintaining the woman would shift on to her relatives.

The issues relating to the MWPRDA of 1986 were looked into by the Orissa and Kerala High
Courts. First the constitutionality OF Section 5 was tested before the Orissa High court in
Bishnu Charan Mohanty V. Union of India 3^. it was argued that section 5 providing option to
a Muslim to be governed either by section 125 of the code of criminal procedure or by the Act of
1986 in respect of maintenance to divorced wife was violative of Articles 15(1) of the
constitution as the discrimination was practiced solely on the grounds of 'religion.

3
Bishnu Charan Mohanty V Union of India (AIR 1993 Ori 176, II (1993) DMC 451, 1993 II OLR 252)
In Syed Fazal Pookaya Thangal v Union of India 4 . It was argued by the petitioner that section
4(2) of the Act directing Wakf Board to pay maintenance to divorced Muslim women violated
Articles 25 and 26 of the constitution as Wakf being a 'pious religious activity' intended to please
God, and beneficial to the spiritual well being of the Muslim faithful. It was held that section
4(2) was not violative of Articles 26 of the constitution because the rights guaranteed by Articles
26 were available only to religious denomination and Wakf was not a denomination. It was a
creative of Wakf Act and not a representative body of the Muslim community.

In Maharshi Avadesh v Union of India5, a writ petition was filed under Article 32 of the
constitution for declaring he Act of 1986, violative of Articles 14,15,44,38,39 and 39-A of the
constitution. The court was requested to issue the writ to union of India for the enactment of
Uniform civil code. Holding that the writ was not maintainable, the Supreme court observed that
it may not interfere with the policy of legislature.

AUSTRALIA AND INDIA

● In Australia, marriage is a good example where there can readily be dual compliance. The
Marriage Act (Cth) accommodates Islamic marriages by allowing marriages to be performed
and registered by a Muslim marriage celebrant, usually an Imam, without the need for a
separate registering event or ceremony.
● With divorce, compliance with both systems is possible. A husband and wife can serve out
the 12-month period of separation both to have a valid divorce under Australian law on the
grounds of irretrievable breakdown of marriage in accordance with Family Law Act 1975
(Cth) and also comply with the extra-judicial form of divorce, known as talaq in Islamic
law. A husband is able to pronounce talaq and, if all the legal requirements are met, the
marriage is terminated, although there is a three-month reconciliation period.
● Compliance for both is different for both husband and wife. Husband has more extra judicial
powers as compared to the wife. If her husband does not agree to pronounce talaq, she is left
to find someone with authority to hear her case and hopefully to grant her an Islamic
divorce. Islamic law has always provided divorce options for wives, but each requires a third
party - usually a judge or a body of legal scholars - to make the determination. In Muslim

4
Syed Fazal Pooaya Thngal V Union Of India (AIR 1993 Ker 308, II (1993) DMC 285)
5
Maharshi Avadesh V. Union of India (AIR 1991 All 52)
 countries, the role is typically fulfilled by Sharia courts, but in Australia there is no judicial
equivalent.

● The difference between Australia and India regarding the divorce between a Muslim
marriage is that in India the rights on divorce between the husband and wife is equal, both of
them have their fair share of grounds where they can demand a divorce whereas in Australia
the Muslim men have more power over the women to demand divorce, the wife does not
have the same extra-judicial divorce option.

SECTION 125 OF CODE OF CRIMINAL PROCEDURE

Section 125 of the Code of Criminal Procedure is an economic protector that makes provisions
for maintenance to be provided to divorced wives to help them to maintain and support
themselves both during and at the conclusion of Divorce. Section 125 is a secular provision
governing maintenance laws across all personal laws. No conflict may arise between the
provisions in any personal laws and the CrPC since the provision works parallel to all personal
laws. The Supreme Court has held that the maintenance rights of a wife cannot be limited by
personal laws. Maintenance provision under Section 125 is not treated as a means to punish the
husband but as a means to ensure support for the estranged woman who is unable to support
herself.In various Supreme Court judgments in between 1979 and 1985 like Bai Tahira v Ali
Hussain Fidaalli Chothia6 and Fazlunbi v K. Khader Vali7 held that Muslim women is
entitled to maintenance under Section 125 and dealt with question of payment of maher under
Muslim personal law.

ARTICLE 14

Petitioner submitted that the Act violates Article 14 of the Constitution. Personal law is a
legitimate basis for discrimination, therefore it does not offend Article 14 of the Constitution. If
the legislature, as a matter of policy, wants to apply Section 125 CrPC to Muslims, it could also
be stated that the same legislature can, by implication, withdraw such application and make some
other provision in that regard. Parliament can amend Section 125 CrPC so as to exclude them
6
Bai Tahira v Ali Hussain Fidaalli Chothia 1979 AIR 362, 1979 SCR (2) 75
7
Fazlunbi v K. Khader Vali 1980 AIR 1730, 1980 SCR (3)1127
and apply personal law and the policy of Section 125 CrPC is not to create a right of
maintenance dehors the personal law.

He further submitted that in Shah Banos case, it has been held that a divorced woman is entitled
to maintenance even after the iddat period from the husband and that is how Parliament also
understood the ratio of that decision. To overcome the ratio of the said decision, the present Act
has been enacted and Section 3(1)(a) is not in discord with the personal law.

IDDAT PERIOD

Iddat period is defined under Section 2(b) of the Act to mean, in the case of a divorced woman,-
(i) three menstrual courses after the date of divorce, if she is subject to menstruation; (ii) three
lunar months after her divorce, if she is not subject to menstruation (iii) if she is enceinte at the
time of her divorce, the period between the divorce and the delivery of her child or the
termination of her pregnancy whichever is earlier. Sections 3 and 4 of the Act are the principal
sections, which are under attack before us. Section 3 opens up with a non-obstante clause
overriding all other laws and provides that a divorced woman shall be entitled to -

(a) a reasonable and fair provision and maintenance to be made and paid to her within the period
of iddat by her former husband;

(b) where she maintains the children born to her before or after her divorce, a reasonable
provision and maintenance to be made and paid by her former husband for a period of two years
from the respective dates of birth of such children;

(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to Muslim Law;

(d) all the properties given to her by her before or at the time of marriage or after the marriage
by her relatives, friends, husband and any relatives of the husband or his friends.

SECTION 4 OF THE ACT

Section 4 of the Act provides that, with an overriding clause as to what is stated earlier in the Act
or in any other law for the time being in force, where the Magistrate is satisfied that a divorced
woman has not re-married and is not able to maintain herself after the iddat period, he may make
an order directing such of her relatives as would be entitled to inherit her property on her death
according to Muslim Law to pay such reasonable and fair maintenance to her as he may
determine fit and proper, having regard to the needs of the divorced woman, the standard of life
enjoyed by her during her marriage and the means of such relatives and such maintenance shall
be payable by such relatives in the proportions in which they would inherit her property and at
such periods as he may specify in his order.

SECTION 5 OF THE ACT

The Section 5 of the Act Sates that the Muslim husband and wife have an option to be governed
by the provisions of section 125 to 128 of Act 2 of 1974.—If, on the date of the first hearing of
the application under sub-section (2) of section 3, a divorced woman and her former husband
declare, by affidavit or any other declaration in writing in such form as may be prescribed, either
jointly or separately, that they would prefer to be governed by the provisions of sections 125 to
128 of the Code of Criminal Procedure, 1973 

ON VAGURENCY

A comparison of these provisions with Section 125 CrPC will make it clear that requirements
provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by
compelling those who can do so to support those who are unable to support themselves and who
have a normal and legitimate claim to support is satisfied. If that is so, the argument of the
petitioners that a different scheme being provided under the Act which is equally or more
beneficial on the interpretation placed by us from the one provided under the Code of Criminal
Procedure deprive them of their right loses its significance.

The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are
under an obligation to support those who are unable to support themselves and that object being
fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners. Even
under the Act, the parties agreed that the provisions of Section 125 CrPC would still be attracted
and even otherwise, the Magistrate has been conferred with the power to make appropriate
provision for maintenance and, therefore, what could be earlier granted by a Magistrate under
Section 125 CrPC would now be granted under the very Act itself. This being the position, the
Act cannot be held to be unconstitutional.

ON HOLY QURAN

As on the date the Act came into force the law applicable to Muslim divorced women is as
declared by this Court in Shah Banos case. In this case to find out the personal law of Muslims
with regard to divorced womens rights, the starting point should be Shah Banos case and not the
original texts or any other material all the more so when varying versions as to the authenticity of
the source are shown to exist. Hence, we have refrained from referring to them in detail. That
declaration was made after considering the Holy Quran and other commentaries or other texts.
When a Constitution Bench of this Court analysed Suras 241-242 of Chapter II of the Holy
Quran and other relevant textual material. All that needs to be considered is whether in the Act
specific deviation has been made from the personal laws as declared by this Court in Shah Banos
case without mutilating its underlying ratio. After careful analysis the conclusion that the Act
actually and in reality codifies what was stated in Shah Banos case. n 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 a duty of every righteous god fearing person .

SECTION 3 (1)(a)

In Arab Ahemadhia Abdulla and etc v Arab Bail Mohmuna Saiyadbhai & Ors. etc. 8; Ali
vs. Sufaira9; K. Kunhashed Hazi v. Amena10; K. Zunaideen v. Ameena Begum11; Karim
Abdul Shaik v. Shenaz Karim Shaik 12 and Jaitunbi Mubarak Shaikh v. Mubarak
Fakruddin Shaikh & Anr.13, while interpreting the provision of Sections 3(1)(a) and 4 of the
Act, it is held that a divorced Muslim woman is entitled to a fair and reasonable provision for her
future being made by her former husband which must include maintenance for future extending
beyond the iddat period.

8
Arab Ahemadhia Abdulla and etc v Arab Bail Mohmuna Saiyadbhai & Ors. etc., AIR 1988 (Guj.) 141
9
Ali vs. Sufaira, (1988) 3 Crimes 147
10
K. Kunhashed Hazi v Amena, 1995 Crl.L.J. 3371
11
K. Zunaideen v Ameena Begum, (1998] II DMC 468)
12
Karim Abdul Shaik v Shenaz Karim Shaik, 2000 Cr.L.J. 3560
13
Jaitunbi Mubarak Shaikh v Mubarak Fakruddin Shaikh & Anr., 1999 (3) Mh.L.J. 694
It was held that the liability of the former husband to make a reasonable and fair provision under
Section 3(1)(a) of the Act is not restricted only for the period of iddat but that divorced Muslim
woman is entitled to a reasonable and fair provision for her future being made by her former
husband and also to maintenance being paid to her for the iddat period.

A Full Bench of the Punjab and Haryana High Court in Kaka v. Hassan Bano & Anr. 14, II
(1998) DMC 85 (FB), has taken the view that under Section 3(1)(a) of the Act a divorced
Muslim woman can claim maintenance which is not restricted to iddat period. To the contrary it
has been held that it is not open to the wife to claim fair and reasonable provision for the future
in addition to what she had already received at the time of her divorce; that the liability of the
husband is limited for the period of iddat and thereafter if she is unable to maintain herself, she
has to approach her relative or Wakf Board, by majority decision in Umar Khan Bahamami v.
Fathimnurisa15; Abdul Rashid v. Sultana Begum16; Abdul Haq v. Yasima Talat17; Md.
Marahim v. Raiza Begum18.

JUDGMENT IN A GLANCE

1) a Muslim husband is liable to make reasonable and fair provision for the future of the
divorced wife which obviously includes her maintenance as well and that too beyond the
period of iddat.
2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act
to pay maintenance is not confined to iddat period.
3) A divorced Muslim woman who has not remarried and who is not able to maintain
herself after iddat period can proceed as provided under Section 4 of the Act against her
relatives who are liable to maintain her will pay
4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of
India.

14
Kaka v. Hassan Bano & Anr., II (1998) DMC 85 (FB),
15
Umar Khan Bahamami v. Fathimnurisa, 1990 Cr.L.J. 1364
16
Abdul Rashid v. Sultana Begum, 1992 Cr.L.J. 76
17
Abdul Haq v. Yasima Talat; 1998 Cr.L.J. 3433
18
Md. Marahim v. Raiza Begum, 1993
 OVERVIEW OF THE JUDGMENT

The judgment which was passed in this case was an impactful one, it overruled the Shah Bano
Case decision and further stated that Muslim husbands are liable to pay their wives maintained
after divorce beyond the period of iddat. This is an economic protector for the Muslim wives
who are not able to look after themselves. This decision also made the Section 125 of the Code
of Criminal Procedure at par with this judgment. The judgment is made by looking thoroughly
to all the provisions of the Act as well as going through Quran and the Articles of the Indian
Constitution. The judgment 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 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 judgment 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
Court's view of the term ‘provision' as one time lump sum payment.

The economic well being of the women is just and fair. If the husband is not able to provide for
maintenance then her relative will pay the maintenance and even they are not able to then the
Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.

The judgment was made by 5 bench judges which 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'.

The judgment in all made a balance between the provisions of Muslim personal law as well as
the Section 125 of the Code of Criminal Procedure.

A total of 16 cases were used for the analysis of this case. This Case takes into account Article
14,15 and 21 and states that they are both violated. In this analysis there is a comparison done
between Australia and India over the Muslim Women Rights on divorce, the power which both
husband and wife have.

The analysis further talks about Section 3, Section 4 and Section 5 of the Muslim Women
Protection of Rights on divorce Act, 1986. Section125 of the Code of Criminal Procedure,
Article 14, Vagrancy, iddat period and Holy Quran.
Through this judgment it is taken into consideration that the economic power of the women is
not weakened that they are getting their fair share of the provision and maintenance.

REFERENCES

¹ Mohd. Ahmed Khan v Shah Bano Begum [1985 (1) SCALE 767 = 1985 (3) SCR 844 = 1985
(2) SCC 556 = AIR 1985 SC 945]

² Daniel Latif V Union Of India AIR 2001 SC 32

³ Bishnu Charan Mohanty v Union of India (AIR 1993 Ori 176, II (1993) DMC 451, 1993 II
OLR 252)

⁴ Syed Fazal Pooaya Thngal v Union Of India (AIR 1993 Ker 308, II (1993) DMC 285)

⁵ Maharshi Avadesh v Union of India (AIR 1991 All 52)

⁶Bai Tahira v Ali Hussain Fidaalli Chothia 1979 AIR 362, 1979 SCR (2) 75

⁷Fazlunbi v K. Khader Vali 1980 AIR 1730, 1980 SCR (3)1127

⁸Arab Ahemadhia Abdulla and etc v Arab Bail Mohmuna Saiyadbhai & Ors. etc., AIR 1988
(Guj.) 141

⁹ Ali vs. Sufaira,(1988) 3 Crimes 147

¹⁰ K. Kunhashed Hazi v Amena, 1995 Crl.L.J. 3371

¹¹ K. Zunaideen v Ameena Begum, (1998] II DMC 468)

¹² Karim Abdul Shaik v Shenaz Karim Shaik, 2000 Cr.L.J. 3560

¹³Jaitunbi Mubarak Shaikh v Mubarak Fakruddin Shaikh & Anr., 1999 (3) Mh.L.J. 694

¹⁴ Kaka v Hassan Bano & Anr., II (1998) DMC 85 (FB),

¹⁵ Umar Khan Bahamami v Fathimnurisa, 1990 Cr.L.J. 1364;

¹⁶ Abdul Rashid v Sultana Begum, 1992 Cr.L.J. 76

¹⁷ Abdul Haq v Yasima Talat; 1998 Cr.L.J. 3433

¹⁸Md. Marahim v Raiza Begum, 1993

 BRIEF ABOUT AUTHOR

Akriti Sharma is pursuing B.B.A L.L.B from New Law College, Bharati Vidyapeeth (deemed to
be university), Pune. She is currently in her 2nd year. She is interested in Commercial, Corporate
and Constitutional Law and would like to pursue a career in one of them. She is an avid reader
and likes to write. She loves to travel the world and want to help other people out. Currently
she’s and intern in ProBono India contributing to the Society through Legal Aid.