The case of Danial Latifi v. Union of India was a landmark case in the Indian legal history in multiple aspects. Not only did the Court find itself in a quagmire dealing with the issue of intrusion of the legislature into the personal law of Muslims through legislation enacted after the watershed Shah Bano Begum case, but the judges were also in unchartered territories, in deciding on the extent of rights of Muslim women upon divorce to seek maintenance from their former husbands after the period of iddat had ended.
In Mohd. Ahmed Khan v. Shah Bano Begum, the Supreme Court was concerned with the issue of interpreting Section 127(3)(b) of The Code of Criminal Procedure, 1973.
This particular clause mandated that: “(3) Where an order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that – (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order…”
In essence, this meant that an order of maintenance granted in favour of any divorced woman under section 125 of the same statute, could be struck down and cancelled by the magistrate if such woman had received any amount as was payable on divorce under the personal laws of the parties. The question that arose now was whether the payment of the Mehr amount to the wife upon or after divorce would qualify in this scenario and absolve the husband from his obligation to maintain the divorced wife under section 125.
Concept of Mehr
Mehr, meaning dower in English, is the payment made by a groom to his bride-to-be at the time of marriage, although the time of actual payment can vary as per the type of Mehr. While prompt dower requires the payment to be made immediately on demand of the wife, in cases of deferred dower, this sum is paid at a particular event in the future until which it has been deferred. The payment of dower is usually deferred to the time of divorce or the death of the wife. The Mehr does not have to be in the form of money, rather it can also consist of property, jewellery, furniture or other goods as may be specified at the time of marriage.
In Shah Bano, the Court pointed out that the concept of Mehr was more closely connected with marriage than with divorce, although a significant portion of Mehr is payable at the time the marriage is dissolved, usually by death or divorce. Further, it was opined that “it is a sum payable on divorce within the meaning of Section 127(3)(b) CrPC and held that Mehr is such a sum which cannot ipso facto absolve the husband’s liability under the Act.” The Court then proceeded to consider the question of whether the payment of Mehr can serve as an alternative to maintenance. The contention advanced by the husband, in this case, was that Muslim law exempted him from any responsibility towards his divorced wife beyond payment of any Mehr due to her along with an amount to cover maintenance during the iddat period. It was put forth that section 127(3)(b) conferred statutory recognition on this principle of Muslim law.
The decision in Shah Bano
It was noted that if Mehr is not such a sum, then it cannot absolve the husband from the rigour of section 127(3)(b), but even in that case, Mehr is a part of the resources available to the woman and is taken into account when considering her eligibility for a maintenance order and the quantum of maintenance. Thus, it was concluded in the Shah Bano case that the divorced women were entitled to apply for maintenance orders against their former husbands under section 125 and such applications were not barred under section 127(3)(b).
After referring to various textbooks on Muslim law, it was held that the divorced wife’s right to maintenance ceased on the expiration of the customary iddat period but the Court observed that the general propositions reflected in those statements did not deal with the special situation where the divorced wife was unable to maintain herself. In such cases, it was stated that it would not only be incorrect but also unjust to extend the scope of the statements in situations where a divorced wife is unable to maintain herself. It was opined that the application of these statements of law must be restricted to those cases where there is no possibility of vagrancy or destitution to the divorced wife.
Muslim Women (Protection of Rights on Divorce) Act, 1986
After the Shah Bano case, the Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Statement of Objects & Reasons for the Act reads as follows:
“The Supreme Court, in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. has held that although the Muslim Law limits the husband’s liability to provide for the maintenance of the divorced wife to the period of iddat, it does not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973. The Court held that it would be incorrect and unjust to extend the above principle of Muslim Law to cases in which the divorced wife is unable to maintain herself. The Court, therefore, came to the conclusion that if the divorced wife is able to maintain herself, the husband’s liability ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 of the Code of Criminal Procedure.”
The 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; and (iii) if she is pregnant 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.
The relevant portion of Section 03 of this Act reads as follows: “Mehr 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.”
As held in the Shah Bano case, the true position is that if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance to her ceases with the expiration of the period of iddat; but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to section 125. Thus, it was held that there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance to his divorced wife, who is unable to maintain herself.
However, section 3 of the Act did not seem to reflect this position of law. It was not clear from the interpretation of the wordings of the provider whether the divorced wife was entitled to seek maintenance and other reasonable provisions from her husband if she was destitute and unable to maintain herself properly. From the terms used in this section, it was implied that the husband was liable for maintenance only in the period of iddat and not beyond that, which was contrary to the position established in the Shah Bano case and opposed to the very objects and reasons stated behind the enactment of this Act.
Contentions of the Parties
The petitioners submitted that the Court will have to examine the questions raised not on the basis of personal law, but on the basis that section 125 of CrPC as it is a provision made in respect of women belonging to all religions and the exclusion of Muslim women from the same will result in discrimination. It was argued that not only would there be gender injustice, but this discrimination will also further lead to the monstrous proposition of nullifying a law declared by this Court in Shah Bano’s case. Thus, there is a violation of not only equality before the law but also equal protection of laws. The petitioners put forth that if the object of section 125 is to avoid vagrancy, then Muslim women cannot be excluded from the remedy provided and there is no rhyme or reason to deprive the Muslim women of the applicability of the provisions of section 125. There is no nexus to deprive a Muslim woman of availing of the remedies available under section 125, notwithstanding the fact that the conditions precedent for availing of the said remedies is satisfied.
The Solicitor General, appearing in the matter for the Union of India, submitted that when a question of maintenance arises which forms part of the personal law of a community, what is fair and reasonable is a question of fact in that context. Under Section 3 of the Act, it is provided that a reasonable and fair provision and maintenance is to be made and paid by her former husband within the iddat period. It is clear that the maintenance 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 would not arise. The Solicitor General contended that the challenge raised in this petition was dehors the personal law. Personal law is a legitimate basis for discrimination, if at all, and, therefore, does not offend Article 14 of the Constitution.
On behalf of the National Commission for Women, it was submitted before the Court that the consequence of the interpretation of Section 3 of the Act is that a divorced wife is permanently rendered without a remedy so far as her former husband is concerned for the purpose of her survival after the iddat period. Such relief is neither available under Section 125 nor is it properly compensated by the provision made in Section 4 of the Act. A contention was made that the remedy provided under Section 4 of the Act is illusory as firstly, the divorced wife cannot get sustenance from the parties who were strangers to the marital relationship; secondly, Wakf boards would usually not have the means to support such destitute women since they are themselves perennially starved of funds and 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. Therefore, a realistic appreciation of the matter will have to be taken and this provision will have to be decided on the touchstone of Articles 14, 15 and also Article 21 of the Constitution. Thus, it was concluded that the denial of the right to life and liberty by the Act is exasperated by the fact that it operates oppressively, unequally and unreasonably only against one class of women.
The decision of the Court
The Court held that “A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood after the divorce and, therefore, the word provision indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce, the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs.”
Elaborating further, it was opined that reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles. It was held that the wording of the section would mean that the husband is bound to pay maintenance to the wife before the expiration of the iddat period and if he fails to do so then the wife is entitled to recover it as provided in section 3(3). However, it has not been provided anywhere that the reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. The Court declared that the liability of a husband to maintain his wife would extend to the whole life of the divorced wife unless she gets married for a second time.
The Court, while upholding the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, came to the following conclusions on the various issues raised by the parties in the course of the hearings:
1. That, a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife. Such provisions obviously include maintenance for the wife as well. The scope of making reasonable and fair provisions extends beyond the iddat period and must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.
2. That, the liability of a Muslim husband towards his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance and make reasonable provisions is not confined just to iddat period.
3. That, 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 in proportion to the properties which they inherit on her death according to Muslim law. If the relatives are unable to provide maintenance, the State Wakf Board may be directed to pay the same.
4. That, the provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
Thus, through this landmark judgement, the Supreme Court of India struck a fine balance between upholding the constitutionality of the Act and preserving the rule laid down in the Shah Bano case previously. A very wide net of interpretation was cast around Section 3 of the Act, which enabled the Court to declare that the husband’s liability does not extinguish on the expiration of iddat, rather in cases of vagrancy and destitution of the wife, the husband will have to maintain her and make reasonable and fair provisions for her even beyond such a customary period. Not only did the Court appear progressive in determining the rights of women, but they also kept themselves from meddling into the personal laws of the Muslim community. However, the Court must be criticised for exercising too much restraint and adopting an overly-cautious approach in this case where they refused to delve into many issues in a bid to avoid controversy.
Ritwik Tyagi hails from NLU Nagpur and is an enthusiast in reading and writing. He loves reading, researching and writing creations of his mind. Family law and contract law are his strongest areas. For any clarifications, feedback, and advice, you can reach him at firstname.lastname@example.org