9/11/23, 6:20 PM Case Analysis: Danial Latifi vs.

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 JULY 2, 2020  BY AIESHWARYAA NARAYANAN

Case Analysis: Danial Latifi vs. Union of India

Citation 2001 SC SCC 740

Court Supreme Court of India

Petitioner Danial Latifi

Respondent Union of India

Judges G.B Pattanaik, S. Rajendra Babu, D.P Mohapatra,

D.Raju & Shivraj P. Patil

Introduction
The Muslim Women (Protection of Rights on Divorce) Act, 1986 was felt to overrule the Supreme Court
decision in the case of Mohd. Ahmed khan v. Shah Bano Begum[i] usually called as Shah Bano’s case. There
were also many protests and issues after the landmark Judgment of Shah Bano’s case. It was felt as
confusion in the Muslim Personnel Law. The Muslim Personnel Law for maintenance or Nafaq states to
give maintenance for wife even if he is poor. Thus, to provide maintenance to the wife even after Divorce
within the iddat period the Muslim women Act of 1986 was passed by the Parliament. Danial Latifi who

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was one of the Council of Shah Bano filed the case challenging the Muslim women Act, 1986, and stated
it to be constitutionally invalid. Thus, the court gave a new dimension to the Muslim Personnel Law
stating that the wife should get maintenance even after the Iddat period.

Facts of the Case

Shah Bano’s Case was one of the important Judgments in the Muslim Personnel Law. This was a Case
that stated for the maintenance for the wife after Divorce. Shah Bano a 62-year-old woman from
Madhya Pradesh was divorced by her husband in the year 1978. Hence Shah Bano filed a Case in
Supreme Court under Section 125 of the Criminal Procedure Code for maintenance. This Section
provides to give maintenance to wife, children, parents who are dependent, and unable to maintain
themselves.

Shah Bano won the Case and got the Right to get Alimony from her Husband. This Judgment was
later changed by the Indian Parliament due to the pressure. The Parliament to revoke passed the
Muslim Women (Protection of Rights on Divorce) Act 1986. Section 3(1) of the Act states that any
divorced women are entitled to reasonable and fair maintenance within the iddat period.

But one of the Council of Shah Bano felt that the Act passed was constitutionally invalid as even
after the iddat period the wife who was dependent on her husband before marriage has the right to
life even after marriage. Thus this Act violates the fundamental right under Article 21 and also under
Article 14 and 15. Thus the case was filed in the Supreme Court by Daniel Latifi challenging the Act.

Issues
Whether Muslim Women (Protection of Rights on Divorce) Act, 1986 is constitutionally valid?

Arguments for the Petitioner

1. Section 125 of the Criminal Procedure Code states to provide for maintenance only in some
particular situation and not for every divorced Muslim woman. This does not take into account
Article 21 which is right to life to every human being and divorced wife who were dependent all
these days also have this right.
2. Article14 which states for equality is violated by discriminating the Muslim women. It is truly unfair
to nullify a Judgment given in favour of Shah Bano due to some political pressure. The fact was
discriminated the full community of Muslim women getting maintenance and equal protection from
Law.
3. The marriages in Muslim Law are contractual in nature and an element of consideration is one of the
main requisites for a valid contract. In Muslim marriages, they give mahr or dower as consideration.
In the same way, divorce becomes a binding contract between both the spouse and nothing being the
consideration makes it invalid.
4. Shah Bano’s case was filed in the Supreme Court under Section 125 of the Criminal Procedure Code
where the Judgment was nullified. Section 125 states for the maintenance of all divorced wife’s from
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their husbands under certain conditions. The main essence of Section 125 is to provide maintenance
to all women irrespective of religion. When there is such a law why is there a hindrance to provide
maintenance in the case?

The Argument for the Respondent

1. It was stated discrimination and no equal treatment for Muslim women. Personal laws in our country
are different for each religion and become the basis for discrimination. It has been accepted by the
constitution and is not violative of Article 14. If Section 125 of the Criminal Procedure Code applies
to the Muslims also, then the legislation has to state it and make other provisions for that.
2. The parliament in the Muslim woman’s protection Act 1986 under Section 3 has mentioned
reasonable and fair provision and maintenance to be provided by the husband to the wife within the
iddat period. Then why does the question of lifetime maintenance or only within the iddat period
arises?
3. Shah Bano’s Judgment was denied only because it did not make justice to the Muslim personnel law.
It was also stated that there was no discrimination in the Judgment rather the decision made did not
justify or was in correlation with personnel law.
4. Following what the personal law prescribes and been accepted by the constitution cannot be stated
as discriminatory. Personal laws are implemented such that the particular community can follow it
and has no idea for discrimination. The Act implemented by the parliament was to safeguard the
personnel law and prevent any interruption by other laws. The Act aims not to bring any peculiarity
or difference in the prescribed personnel law.

5. It is to be noted that the Muslim personal law has sufficient provisions to protect Muslim women, and
it is not necessary that only by extending Section 125 the Muslim women are protected. Muslim law
never intends to make the women suffer, and it is to be noted that Muslim law is made focusing on
women’s protection. Therefore, the Act prescribed cannot be stated invalid or unconstitutional.

Provisions
Section 125 of the Criminal Procedure Code- states to provide maintenance to the wife irrespective
of religion
Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 – states to provide
maintenance to the wife till the iddat period.
Article 14, 15, 21- states for Right to Equality, Right to not get discriminated based on Religion, Race,
caste, sex or Place of Birth, and Right to life.

Related Cases
1. Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh & Anr[ii]
2. Kaka v. Hassan Bano & Anr., II[iii]
3. Abdul Haq v. Yasima Talat[iv]
4. Maneka Gandhi v. Union of India[v]

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5. Iqbal Bano v. State of U.P[vi]

Judgment
This gave a new dimension and restored the values in the Shah Bano’s case. It basically mentioned
that the husband’s liability to provide maintenance extends even after the iddat period. Iddat is
nothing but a 3 menstrual period if the women can menstruate, three lunar months if the woman is
pregnant. Any three nearer months will be taken as the iddat period. The Act mentioned by the
parliament is against the principle stated in the Shah Bano’s case. Till Danial Latifi’s case, the Act was
not changed and any dispute regarding Muslim women’s maintenance was governed by the Act. It is
stated that every woman Hindu, Muslim, Christian, or Parse irrespective of their religion can avail
their right under Section 125 of the Criminal Procedure Code. A woman is exempted from not
getting maintenance under Section 125 when she gets fair or reasonable settlement under Section 3
of the Muslim women protection Act.

The wife will get maintenance under Section 125 till the husband completes his duty under Section 3 of
the Muslim Women (Protection of Rights on Divorce) Act, 1986. In the case of Shabana Bano v. Imran
Khan,[vii] the court held that the wife is entitled to get maintenance even after the iddat period as long
as she doesn’t remarry. Hence, a balanced judgment between the Muslim Women (Protection of Rights
on Divorce) Act, 1986 and Criminal Procedure Code was given by stating the Act to be constitutionally
valid and the women can also avail the maintenance irrespective of their religion under Section 125 of
the Criminal Procedure Code till the husband fulfils his duty mentioned in Section 3 of the Act.

Conclusion
Prior to Shah Bano’s case, there was no provision for Muslim women to get maintenance after her
divorce. After Shah Bano’s case, the Muslim divorced women got their maintenance within the iddat
period. This was felt as discriminatory under Article 14, 15, 21 of the constitution. One of the councils
Daniel Latifi filed a case in the Supreme Court challenging the act passed in Shah Bano’s case. A balanced
judgment was given by the Supreme Court by not compromising the personal law or the individual’s
rights. Still, Daniel Latifi’s judgment is not accepted by many but in any case of maintenance dispute the
rule laid down, in this case, is followed. If this judgment was given by using their religious conventions,
the society would have become more male-dominated. Many Muslim women are satisfied with this and
gave a positive response towards the judgment.

References
[i] Mohd. Ahmed khan v. Shah Bano Begum, AIR 1985 SC 945

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

[iii] Kaka v. Hassan Bano & Anr., II ,(1998) DMC 85 (FB)

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[iv] Abdul Haq v. Yasima Talat, 1998 Cr.L.J. 3433

[v] Maneka Gandhi v. Union of India, 1978 (1) SCC 248

[vi] Iqbal Bano v. State of U.P ,Appeal (crl.) 795 of 2001

[vii] Shabana Bano v. Imran Khan, Criminal Appeal No.2309 of 2009

[viii] Critical Study of Iddat, Swati Shalini, https://www.myadvo.in/blog/iddat/

POSTED IN JUDGEMENT ANALYSIS, MUSLIM LAW •

TAGGED ARTICLE 14 OF THE CONSTITUTION OF INDIA, IDDAT, SECTION 125 OF CRPC

Published by Aieshwaryaa Narayanan

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