DANIAL LATIFI VS.

UNION OF INDIA

How did the Court pass a balanced judgment between the Muslim
Women (Protection of Rights on Divorce) Act, 1986 and Code of
Criminal Procedure?
INTRODUCTION

• The Muslim Personnel Law for maintenance or Nafaq states to give maintenance for wife even if he 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.
• Muslim Women (Protection of Rights on Divorce) Act, 1986, an Act to protect the rights of Muslim women who have
been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or
incidental thereto.
• Danial Latifi who 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.
• This case sought to question and challenge the constitutionality of the Muslim Women (Protection of Rights on
Divorce) Act, 1986.
SECTION 125 OF THE CrPC

• This code provides that any person who has sufficient means to maintain himself
cannot deny the maintenance to the wife, children, and parents if they are not able
to maintain themselves.
 SECTION 3 & 4 OF THE MUSLIM WOMEN ACT

• Section 3 : Mahr or other properties of Muslim woman to be given to her at the time of divorce.—
• (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to
—
• (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former
husband;
• Section 4 of the Act lists out the different persons she may receive maintenance from if she is unable to maintain herself and
has not remarried:
• 1) Relatives who would be entitled to inherit her property on her death;
• 2) In the case she has children, they would be ordered to pay her maintenance;
• 3) The parents of the woman would be ordered to pay her maintenance;
• 4) The State Wakf Board may be ordered to pay her maintenance if none of the persons have the means to pay her
maintenance.
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 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 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 only within the iddat period.
• But one of the Council of Shah Bano felt that the Act passed was constitutionally invalid and that the Act violated
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.
ARGUMENTS MADE BY THE PETITIONER

• 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.
• Article14 which states for equality is violated by discriminating the Muslim women. 
• The remedy provided under S. 4 of the Act is illusory as she cannot expect to receive
sustenance from parties who were strangers to the marital relationship the woman shared
with her former husband.
ARGUMENTS MADE BY THE PETITIONER

• The Court in Shah Bano’s case held that though the personal law governing the Muslim
community limits the husband’s liability, it doesn’t take into the account the situation
described in S. 125 of the CrPC. If a Muslim woman is able to maintain herself post the
iddat period, the liability of the husband would cease to exist, but if the woman is unable
to maintain herself, she is entitled to recourse under S. 125.
• S. 125 of the CrPC does not take into account religion in its essence and was made as a
secular code to be followed by and applied to all.
ARGUMENTS MADE BY THE RESPONDENT

• Personal laws in our country are different for each religion and does not become the basis for
discrimination. It has been accepted by the constitution and is not violative of Article 14.
• 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?
• Shah Bano’s Judgment was not only denied 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.
ARGUMENTS MADE BY THE RESPONDENT

• Neither the Legislature nor the Judiciary have the right nor the expertise to interpret religious texts
pertaining to a specific religious community.
• 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. 
• 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. 
JUDGEMENT PASSED

• The 5-judge Constitution Bench upheld the validity of the Act keeping in mind the Constitution.
• They stated that the “provision” that is mentioned under S.3 of the Act indicates that something is
provided in advance for meeting future needs. At the time of divorce, the Muslim husband must
contemplate the future needs of the divorced wife and make arrangements to provide for the same.
• The Act reads that “a reasonable and fair provision and maintenance” must be made and paid within
the period of iddat. It does not, however, say that it is to be paid “for” the period of iddat.
• The emphasis of the Section is not to specify the duration of the provision or maintenance, but
simply to specify the time by which the provision and maintenance has to be paid by.
BALLANCED JUDGEMENT PASSED

• 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.
• 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.
BIBLIOGRAPHY

• https://indiankanoon.org/doc/410660/
• https://www.law.cornell.edu/women-and-justice/resource/danial_latifi_v_union_of_india
• https://islamiclaw.blog/2017/01/23/the-danial-latifi-case-and-the-indian-supreme-courts-b
alancing-act/
• https://legislative.gov.in/sites/default/files/A1986-25_1.pdf
• https://lawcirca.com/danial-latifi-vs-uoi-2001-7-scc-740/
THANKYOU!