# DANIAL, LATIFI AND ANR v. UNION OF INDIA

- **Citation:** [2001] Supp. 3 S.C.R. 419
- **Court:** Supreme Court of India
- **Decided:** 2001-09-28
- **Bench:** G.B. Pattanaik, S. Rajendra Babu, D.P. Mohapatra, B Doraiswamy Raju, Shivaraj V. Patil
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/danial-latifi-and-anr-v-union-of-india-18159
- **Pages:** 27

## Headnote

Muslim Law:
Muslim Women (Protection of Rights on Divorce) Act, 1986:
Constitution validity-Act excluded Muslim divorced woman from the
provisions of Section 125 Cr.P.C.-Further, under S.3 Muslim divorced woman
was entitled to reasonable and fair provision and maintenance within the
period of iddat by her former husband-Held: The Act is constitutionally
c
,(,.J
valid-Reasonable and.fair provision extending beyond the iddat period must
D
be made by the husband within the iddat period-Liability of Muslim husband
to pay maintenance to his divorced wife is not confined to iddat period-A
divorced Muslim woman, who has not remarried, may proceed against her
-
relatives for her maintenance-{{ relatives unable to pay maintenance State
Wakf Board to pay such maintenance-The Act does not offend Arts. 14, 15 and
E
21-Constitution of India, 1950 Arts. 14, 15 and 21-Code of Criminal
Procedure, 1973, S.125.
-.
Interpretation of Statutes:
Rule of construction-Provisions of a Statute-Possibility of two
constructions-Preference of-Held: That construction, if permissible, which
makes the Statute effective and operative has to be preferred-Whereas that
construction which renders the Statute ultra vires or unconstitutional has to be
rejected.
Words & Phrases :
"Divorce wonwn": and "iddat period"-Meaning of-In the context of
S.2( a) o.f the Muslim Woman (Protection o.f Rights on Divorce) Act, 1986.
F
G
"Maintenance:, "provision" and "mahr"-Meaning of-In the context
H
419
420
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
A
of S.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
The Petitioners filed a writ petition before this Court challenging the
constitutional validity of the Muslim Women (Protection of Rights on
Divorce) Act, 1986.
B
On behalf of the petitioners it was contended that the Act was unc
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Islamic, unconstitutional and it undermined the secular character which
was the basic feature of the Constitution; that there was no rhyme or
reason to deprive the Muslim women from the applicability of Section 125
of the Code of Criminal Procedure, 1973 and consequently the Act must be
held to be discriminatory and violative of Articles 14 and 21 of the
Constitution.
On behalf of the respondents it was contended that a reasonable and
fair.provision and maintenance for the divorced Muslim woman had been
provided under Section 3 of the Act; that personal law was a legitimate
basis for discrimination; that the Act was good enough to take care of the
vagrancy of Muslim divorced woman; that the interpretation of the Act
should be in consonance with the Muslim Personal Law; that the social
ethos of the Muslims should be borne in min.d while interpreting the Act;
that the Act resolved all issues and, therefore, the Act was not invalid or
unconstitutional.•
Dismissing the petition, the Court
HELD : 1. In interpreting the provisions where matrimonial
relationship is involved, one has to consider the social conditions prevalent
in the Indian society. In Indian society, whether one belongs to the majority
or the minority group, what is apparent is that there exists a great disparity
in the matter of economic resourcefulness between a man and a woman.
· Indian society is male dominated both economically and socially and women
are assigned, invariably, a dependent role, irrespective of the class of
society to which she belongs. A woman on her marriage very often, though
G
highly educated, gives up her all other avocations and entirely devotes
herself to the welfare of the family, in particular she shares with her
husband, her emotions, sentiments, mind and body , and her investment in
the marriage is her entire life - a sacramental sacrifice of her individual
self and is far too enormous to be measured in terms of money. When a
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relationship of this nature breaks up, in what manner one could compensate ·
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DANIAL LATIF! v. U.0.1.
421
her so far as emotional fracture or loss of investment is concerned, there
can be no answer,. It is a

## Text

_Characters 0–39,764 of 68,826. This is a partial read: ask again with offset=39764 for what follows._

DANIAL, LATIFI AND ANR.
A
v.
UNION OF INDIA
SEPTEMBER 28, 2001
[G.B. PATTANAIK, S. RAJENDRA BABU, D.P. MOHAPATRA,
B
DORAISWAMY RAJU AND SHIVARAJ V. PATIL, JJ.]
Muslim Law:
Muslim Women (Protection of Rights on Divorce) Act, 1986:
Constitution validity-Act excluded Muslim divorced woman from the
provisions of Section 125 Cr.P.C.-Further, under S.3 Muslim divorced woman
was entitled to reasonable and fair provision and maintenance within the
period of iddat by her former husband-Held: The Act is constitutionally
c
,(,.J
valid-Reasonable and.fair provision extending beyond the iddat period must
D
be made by the husband within the iddat period-Liability of Muslim husband
to pay maintenance to his divorced wife is not confined to iddat period-A
divorced Muslim woman, who has not remarried, may proceed against her
-
relatives for her maintenance-{{ relatives unable to pay maintenance State
Wakf Board to pay such maintenance-The Act does not offend Arts. 14, 15 and
E
21-Constitution of India, 1950 Arts. 14, 15 and 21-Code of Criminal
Procedure, 1973, S.125.
-.
Interpretation of Statutes:
Rule of construction-Provisions of a Statute-Possibility of two
constructions-Preference of-Held: That construction, if permissible, which
makes the Statute effective and operative has to be preferred-Whereas that
construction which renders the Statute ultra vires or unconstitutional has to be
rejected.
Words & Phrases :
"Divorce wonwn": and "iddat period"-Meaning of-In the context of
S.2( a) o.f the Muslim Woman (Protection o.f Rights on Divorce) Act, 1986.
F
G
"Maintenance:, "provision" and "mahr"-Meaning of-In the context
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419
420
SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
A
of S.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
The Petitioners filed a writ petition before this Court challenging the
constitutional validity of the Muslim Women (Protection of Rights on
Divorce) Act, 1986.
B
On behalf of the petitioners it was contended that the Act was unc
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Islamic, unconstitutional and it undermined the secular character which
was the basic feature of the Constitution; that there was no rhyme or
reason to deprive the Muslim women from the applicability of Section 125
of the Code of Criminal Procedure, 1973 and consequently the Act must be
held to be discriminatory and violative of Articles 14 and 21 of the
Constitution.
On behalf of the respondents it was contended that a reasonable and
fair.provision and maintenance for the divorced Muslim woman had been
provided under Section 3 of the Act; that personal law was a legitimate
basis for discrimination; that the Act was good enough to take care of the
vagrancy of Muslim divorced woman; that the interpretation of the Act
should be in consonance with the Muslim Personal Law; that the social
ethos of the Muslims should be borne in min.d while interpreting the Act;
that the Act resolved all issues and, therefore, the Act was not invalid or
unconstitutional.•
Dismissing the petition, the Court
HELD : 1. In interpreting the provisions where matrimonial
relationship is involved, one has to consider the social conditions prevalent
in the Indian society. In Indian society, whether one belongs to the majority
or the minority group, what is apparent is that there exists a great disparity
in the matter of economic resourcefulness between a man and a woman.
· Indian society is male dominated both economically and socially and women
are assigned, invariably, a dependent role, irrespective of the class of
society to which she belongs. A woman on her marriage very often, though
G
highly educated, gives up her all other avocations and entirely devotes
herself to the welfare of the family, in particular she shares with her
husband, her emotions, sentiments, mind and body , and her investment in
the marriage is her entire life - a sacramental sacrifice of her individual
self and is far too enormous to be measured in terms of money. When a
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relationship of this nature breaks up, in what manner one could compensate ·
<.. >-
DANIAL LATIF! v. U.0.1.
421
her so far as emotional fracture or loss of investment is concerned, there
can be no answer,. It is a small solace to say that such a woman should be
compensated in terms of money towards her livehood and such a relief
which partakes basic human rights to secure gender and social justice is
universally recognised by persons belonging to all religions and it is difficult
to perceive that Muslim law intends to provide a different kind of
responsibility by passing on the same to those unconnected with the
matrimonial life such as the heirs who were likely to inherit the property
from her or the Wakf Boards. Such an approach appears to be a kind of
distortion of the social facts. Solutions to such societal problems of universal
magnitude pertaining to horizons of basic human rights, culture, dignity
and decency of life and dictates of necessity in the pursuit of social justice
should be invariably left to be decided on considerations other than religion
or religious faith or beliefs or national, sectarian, racial or communal
constraints. Bearing this aspect in mind, one has to interpret the provisions
of the Muslim Women (Protection of Rights on Divorce) Act, 1986 in
question. [435-B-G]
2. The provisions of the Act would indicate that a divorced woman is
entitled to a reasonable and fair provisions for maintenance. 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. Reasonable and fair provision may include
provision for her residence, her food, her cloths and other articles. The Act
would mean that on or before the expiration of the iddat period, the husb:,md
is bound to make and pay maintenance to the wife and if he fails do so then
the wife is entitled to recover it by filing an application before the Magistrate
as provided in Section 3(3); but nowhere the Parliament has provided that
reasonable and fair maintenance is limited only for the iddat period and not
beyond it. It would extend to the whole life of the divorced wife unless she
gets married for a second time. [439-A-D]
3.1. The provisions of the Act depriving the divorced Muslim woman
of a right to maintenance from her husband providing for her maintenance
to be paid by the former husband only for the period of iddat and thereafter
to make her run from pillar to post in search of her relatives one after the
other and ultimately to knock at the doors of the Wakf Board does not
appear to be reasonable and fair substitute of the provisions of Section 125
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SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
A
of the Code of Criminal Procedure, 1973. Such deprivation of the divorced
Muslim women of their right to maintenance from their former husbands
under the beneficial provisions of the Code which are otherwise available
to all other women in India cannot be stated to have been effected by a
reasonable, right, just and fair law and, if these provisions are less beneficial
B
than the provisions of Chapter IX of the Code, a divorced Muslim woman
has obviously been unreasonably discriminated against and has got out of
the protection of the provisions of the general law as indicated under the
Code which are available to Hindu, Buddhist, Jain, Parsi or Christian
women or women belonging to any other community. The provisions prima
facie, therefore, appear to be violative of Article 14 of the Constitution
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mandating equality and equal protection of law to all persons otherwise
similarly circumstanced and discrimination on the ground of religion as
the act would obviously apply to Muslim divorced women only and solely
on the ground of their belonging to the Muslim religion. [442-E-H]
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3.2. It is well settled that on a rule of construction a given statute will
become 'ultra vires or 'unconstitutional' and, therefore, void, whereas on
another rule of construction which is permissible, the statute remains
effective and operative the court will prefer the latter on the ground that
Legislature does not intend to enact unconstitutional laws. The latter
interpretation should be accepted and, therefore, this interpretation results
in upholding the validity of the Act. It is well settled that when by
appropriate reading of an enactment the validity of the Act can be upheld,
such interpretation is accepted by court'i and not the other way. [443-A-B]
4. While upholding the validity of the Act, the conclusions are summed
up as follows :
(a) A Muslim husband is liable to make reasonable and f?ir provision
for the future of the divorced "\\'ife, which obviously includes her maintenance
as well. Such a reasonable and fair provision extending beyond the iddat
period must be made by the husband within the iddat period in terms of
Section 3(1)(a) of the act.
(b) 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. [444-G-H]
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( c) A divorced Muslim woman who has not remarried and who is not
DANIAL LATIFI v. U.O.I.
423
able to maintain herself after the 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 from such divorced woman inchiding 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.
(d) The provisions of the Act do not offend Articles 14, 15 and 21 of
the Constitution of' India. [445-A-B]
A
B
Mohd Ahmed Khan v. Shah Bano Begum, [1985] 2 SCC 556; Bai Tahira
C
v. Ali H1:1ssain Fidaalli Chothia, [1979] 2 SCC 316; Fuzlunbi v. K. Khader
Vali, [1980] 4 SCC 125; AgaMahomed Jaffer Bindaneem v. Koolsom Bee Bee,
241A 196; Olga Tellis v. Bombay Municipal Corporation, [1985] 3 SCC 545
and Maneka Gandhi v. Union of India, [1978] 1 SCC 248, referred to.
Arab Ahmadhia Abdulla v. Arab Bail Mohmuna Saiyadhbhai, AIR (1988)
(Guj) 141; Ali v. Sufaira, [1988] 3 Crimes 147, K. KunhashedHazi v.Amena,
(1995) Crl. L.J. 337;K. 'Zunaideen v. Ameena Begum, (1998) II DMC 468,
Karim Abdul Shaik v. Shenaz Karim Slzaik, (2000) Crl. L.J. 3560, Jaitunbi
Mubarak Shaikh v. Mubarak Fakruddin Shaikh, (1999) M.L.J. 694 and Kaka
v. Hassan Bano, II (1998) DMC 85 (Pun) (FB), approved.
Umar Khan Bahamami v. Fathimnurisa, (1990) Cr. L.J. 1364; Abdul
Rashid v. Sultana Begum, [1992] Cr.L.J. 76; Abdul Haq v. Yasima Talat,
(1998) Cr. L.J. 3433 and Md. Marahim v. Raiza Begum, (1993) 1 DMC 60,
overruled.
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 868of1986.
Under Atticle 32 of the Constitution of India.
WITH
W.P.(C) Nos. 996, 1001,1055, 1062, 1236, 1259, 1281/86, TC. (C) No.
22/87, 86, 68/88, T.P. (C) No. 276-77/87, Crl. A. No. 702/90, SLP(Crl.) Nos.
655/88, 596-97/92, WP. (C) No. 12273/84 SLP(Crl.) No. 2513/94, Crl. A. Nos.
508, 843/95, 102-103/89, 292/90, SLP(Crl.) Nos. 2165/96, 3786, 2462/99.
Harish N. Salve, Solicitor General, Ms. Indira Jaising, Y.H. Muchhala,
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SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
N.N. Goswami, Dr. A.M. Singhvi, Sona Khan-In person in W.P. (C) No. 868/
86, Ms. K. Hingorani, N. H. Hingorani, Aman Hingorani, Ms. Priya Hingorani,
Ms. Kamini Jaiswal, Ms. Anitha Shenoy, Sanjoy, Ghose, Ms. Anuja Mirchandani,
Ms. Malini Poduval, Ms. Lansinglu Rongmei, Surya Kant, Sona Khan, K.M.K.
Nair, S.C. Patel, Rajesh Prasad Singh, Petition in-person for T.C. (C) No,. 22/
87, Gopal Singh, Sushil Kr. Jain, A. Mishra, Anjali Doshi, Rani Chhabra,
Bhaskar Y. Kulkarni, K.C. Dua, E.M.S. Anam, A.K. Sanghi, Badar D. Ahmed,
Parijat Sinha, Anees Ahmed, Shakeel Ahmed, Mushtaq Ahmed, Ms. Lily Isabel
TI10mas, Ranjit Kumar, Binu Tamta, A.A. Khan, C. V. Subba Rao, Indra Sawhney,
W.S.A Quadri, Amitesh Kumar, Ms. Susluna Suri, B.K. Prasad, V.B. Joshi, M.
Mohsin Israily, T.N. Singh, Sueshta Bagga, Smya Kant, Respondent in-Person
in W.P. (C) No. 12273/84, C.N. Sree Kmnar, Ajit Pudussery, K. Sarada Devi,
T.C. Sharma, Rajiv Sharma, Ms. Neelam Sharma, N.R.Choudhary, J.P.Pandey,
Somnath Mukhe1jee, Avijit Bhattachaijee, Ms. Apa.ma Bhat, R;akesh Prasad,
Syed Sa.if Malunood, P.C. Sen, S.M. Jadhav, Gaurav Jain and Ms. Abba Jain
for the appearing parties.
The Judgment of the Court was delivered by
RA.lENDRi\. BABU, ,J. The constitutional validity of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 [hereinafter refened to as 'the
Act'] is in challenge before us in these cases.
The facts in Mohd. Ahmed Khan v. Shah Bano Begum & Ors., [1985]
2 sec 556, are as follows.
The husband appealed against the judgment of the Madhya Pradesh High
Court directing him to pay to his divorced wite Rs.179/- per month, enhancing
the paltry sum of Rs.25 per month originally granted by the Magistrate. The
patties had been matTied for 43 years before the ill and_ elderly wife had been
tlu-own out of her husband's residence. For about two years the husband paid
maintenance to his wife at the rate ofRs.200/- per month. When these payments
ceased she petitioned under Section 125 CrPC. The husband immediately
dissolved the marriage by pronouncing a triple talaq. He paid Rs.3000/- as
defeITed ma hr and a further sum to cover airears of maintenance and maintenance
for the iddat period and he sought thereafter to have the petition dismissed on
the ground that she had received the amount due to her on divorce under the
Muslim law applicable to the parties. The irnportatit feat~e of the case was that
the wife had .managed the matrimonial home for more than 40 years and had
borne and reared five children and was incapable of taking up any career or
DANIAL LATIF! v. U.0.1. [RAJENDRA BABU, J.]
425
independently supporting herself at that late stage of her life - remarriage was
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an impossibility in that case. The husband, a successful Advocate with an
approximate income of Rs.S,0001- per month provided Rs.200/- per month to
the divorced wife, who had shared his life for half a century and mothered his
five children and was in desperate need of money to survive.
Thus, the principle question for consideration before thi"l> Court was the
interpretation of Section 127 (3 )(b) Cr PC that where a Muslim woman had been
divorced by her husband and paid her mahr, would it indemliify the husband
from his obligation under the provisions of Section 125 CrPC. A Five-Judge
Bench of this Court reiterated that the Code of Criminal Procedure controls the
proceedings in such matters and overrides the personal law of the parties. If
there was a conflict between the terms of the Code and the rights and obligations
. ~f the individuals, the former would prevail. This Court pointed out that mahr
is more closely connected with marriage than with divorce though mahr or a
significant portion of it; is usually payable at the time the marriage is dissolved,
whether by death or divorce. This fact is relevant in the context of Section 125
CrPC even if it is not relevant in the context of Section 127(3)(b) CrPC.
Therefore, this Court held that it is a sum payable on divorce within the
meaning of Section 127(3)(b) CrPC and held that mahr is such a sum which
cannot ipso facto absolve the husband's liability under the Act.
It was next considered whether the amount of mahr constitutes a
reasonable alternatiye to the maintenance order. If mahr is not such a sum, it
cannot absolve the husband from the rigour of Section 127(3)(b) CrPC but even
in that case, mahr is part of the resources available to the woman and will be
taken into account in considering her eligibility for a maintenance order and
the quantum of maintenance. Thus this Court concluded that the divorced
women were entitled to apply for maintenance orders against their former
husbands under Section 125 CrPC and such applications were not barred under
Section 127(3)(b) CrPC. The husband had based his entire case on the claim
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to be excluded fronf the operation of Section 125 CrPC on the ground that
Muslim law exempted from any responsibility for his divorced wife beyond
payment of any mahr due to her and an amount to cover maintenance during
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the iddatperiod and Section 127(3)(b) CrPC conferred statutory recognition on
this principle. Several Muslim organisations, which intervened in the matter,
also addressed arguments. Some of the Muslim social workers who appeared
as interveners in the case supported the wife brought in question the issue of
'mata' contending that Muslim law entitled a Muslim divorced woman to claim
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provision for maintenance from her husband after the iddat period. Thus, the
issue before this Court was: the husband was claiming exemption on the basis
of Section 127(3)(b) CrPC on the ground that he had given to his wife the
whole of the sum which, under the Muslim law applicable to the parties, was
payable on such divorce while the woman contended that he had not paid the
whole of the ~um, he had paid only the mahr and iddat maintenance and had
not provided the mata i.e. provision or maintenance referred to in the Holy
Quran, Chapter II, Sura 241. This Court, after referring to the various text
books on Muslim law, held that the divorced wife's right to maintenance ceased
on expiration of iddat period but this Court proceeded to observe 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 be not only incorrect but unjust to extend the scope
of the statements referred to in those text books in which a divorced wife is
unable to maintain herself and opined that the application of those· statements
of law must be restricted to that class of cases in which there is no possibility
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of vagrancy or destitution arising out of the indigence of the divorced wife.
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This Court concluded that these Aiyats [the Holy Quran, Chapter II, Suras 241242] leave no doubt that the Holy Quran imposes an obligation on the Muslim
husband to make provision for or to provide maintenance to the divorced wife.
The contrary argument does less than justice to the teaching of the Holy Quran.
On this note, this Court concluded its judgment.
There was a big uproar thereafter and Parliament enacted the Act perhaps,
with the intention of making the decision in Shah Bano's case ineffective.
The Statement of Objects & Reasons to the bill, which resulted in the
Act, reads as follows :
"The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum &
Ors., AIR t1985) SC 945, has held that although the Muslim Law
limits the husband's liability to provide for mai~nance 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 ofMus_lim 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
DANiAL LATIF! v. U.0.1. [RAJENDRA BABU, J.]
427
entitled to have recourse to Section 125 of the Code of Criminal
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Procedure.
2. This decision has led to some controversy as to the obligation of the
Muslim husband to pay maintenance to the divorced wife. Opportunity
has, therefore, been taken to specify the rights which a Muslim divorced
woman is entitled to at the time of divorce and to protect her interests.
The Bill accordingly provides for the following among other things,
namely:-
(a) a Muslim divorced woman shall be entitled to a reasonable and fair
provision and maintenance within the period of iddat by her former
husband and in case she maintains the children born to her before or
after her divorce, such reasonable provision and maintenance would
be extended to a period of two years from the dates of birth of the
children. She will also be entitled to mahr .or dower and all the
properties given to her by her relatives, friends, husband and the
husband's relatives. If the above benefits are aot given to her at the
time of divorce, she is entitled to apply to the Magistrate for an order
directing her former husband to provide for such maintenance, the
payment of mahr or dower or the deliver of the properties;
(b) where a Muslim divorced woman is unable to maintain herself after
the period of iddat, the Magistrate is empowered to make an order for
the payment of maintenance by her relatives who would be entitled to
inherit her property on her death according to Muslim Law in the
proportions in which they would inherit her property. If any one of
such relatives is unable to pay his or her share on the ground of his or
her not having the means to pay, the Magistrate would direct the other
relatives who have sufficient means to pay the shares of these relatives
also. But where, a divorced woman has no relatives or such relatives
or any one of them has not enough means to pay the maintenance or
the other relatives who have been asked to pay the shares of the
defaulting relatives also do not have the means to pay the shares of the
defaulting relatives the Magistrate would order the State Wakf Board
to pay the maintenance ordered by him or the shares of the relatives
who are unable to pay."
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The object of enacting the Act, as stated in the Statement of Objects &
Reasons to the Act, is that this Court, in Shah Bano's case held that Muslim
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Law limits the husband's liability to provide for maintenance of the divorced
wife to the period of iddat, but it does not contemplate or countenance the
situation envisaged by Section 125 of the Code of Criminal Procedure, 1973
and, therefore, it cannot be sai_d that the Muslim husband, according to his
personal law, is not under an obligation to provide maintenance beyond the
period of iddat to his divorced wife, who is unable to maintain herself.
As held in Shah Bano '.I- case, the true position is that if the divorced wife
is able to maintain herself, the husband's liability to provide maintenance for
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 CrPC. Thus it was held that there is no conflict between the
provisions of Section 125 CrPC 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. This view is a reiteration of
what is stated in two other decisions earlier rendered by this Court in Bai Tahira
v. Ali Hussain Fidaalli Chothia, [1979] 2 SCC 316, and Fuzlunbi v. K. Khader
Vali & Am:, [1980] 4 SCC 125.
Smt. Kapila Hingorani and Smt. Indira Jaisingh raised the following
contentions in support of the petitioners and they are summarised as
follows :
1. . Muslim marriage is a contract and an element of consideration is
necessary by way of mahr or dower and absence of consideration
will discharge the marriage. On the other hand, Section 125 CrPC
has been enacted as a matter of public policy.
· 2.
To enabie a divorced wife, who is unable to maintain herself, to
seek from her husband, who is having sufficient means and
neglects or refuses to maintain her, payment of maintenance at
a monthly rate not exceeding Rs.500/-. The expression 'wife'
includes a woman who has been divorced by, or has obtained a
divorce from her husband and has not remarried. The religion
professed by a spouse or the spouses has no relevance in the
scheme of these provisions whether they are Hindus, Muslims,
Christians or the Parsis, pagans or heathens. It is submitted that
Section 125 CrPC is part of the Code of Criminal Procedure and
not a civil law, which defines and governs rights and obligations
of the parties belonging to a particular religion like the Hindu
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DANIAL LATIF! v. U.0.1. [RAJENDRA BABU, J.]
429
Adoptions and Maintenance Act, the Shariat, or the Parsi
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Matrimonial Act. Section 125 CrPC, it is submitted, was enacted
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in order to provide a quick and summary remedy. The basis there
being, neglect by a person of sufficient means to maintain these
and the inability of these persons to maintain themselves, these
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provisions have been made and the moral edict of the law and
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morality cannot be clubbed with religion.
3.
The argument is that the rationale of Section 125 CrPC is to offset or to meet a situation where a divorced wife is likely to be
led into destitution or vagrancy. Section 125 CrPC is enacted to
prevent the same in furtherance of the concept of social justice c
embodied in Article 21 of the Constitution.
4.
It is, therefore, submitted that this Court will have to examine the
questions raised before us not on the basis of Personal Law but
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on the basis that Section 125 CrPC is a provision made in respect
of women belonging to all religions and exclusion of Muslim
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women from the same results in discrimination between women
and women. Apart from the gender injustice caused in the country,
..
this discrimination further leads to a monstrous proposition of
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nullifying a law declared by this Court in Shah Banos case. Thus
there is a violation of not only equality before law but also equal
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protection of laws and inherent infringement of Article 21 as well
as basic human values. If the object of Section 125 CrPC is to
avoid vagrancy, the remedy thereunder cannot be denied to
Muslim women.
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5.
The Act is an un-islamic, unconstitutional and it has the potential
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of_ suffocating the muslim women and it undermines the secular
character, which is the basic feature of the Constitution; that there
is no rhyme or reason to deprive the muslim women from the
applicability of the provisions of Section 125 CrPC and
consequently, the present Act must be held to be discriminatory
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and violative of Article 14 of the Constitution; that excluding the
application of Section 125 CrPC is violative of Articles 14 and
21 of the Constitution; that the conferment of power on the
Magistrate under sub-section (2) of Section 3 and Section 4 of
the Act is different from the right of a muslim woman like any
other woman in the country to avail of the remedies under
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SUPREME COURT REPOR'fS
[2001] SUPP. 3 S.C.R.
Section 125 CrPC and such deprivement would make the Act
unconstitutional, as there is no nexus to deprive a muslim woman ·
from availing of the remedies available under. Section 125 CrPC,
notwithstanding the fact that the conditions precedent for availing
of the said remedies are satisfied.
The learned Solicitor General, who appeared 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 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 would not arise. Challenge raised in this petition is 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. 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 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(l)(a) is not in discord with the personal law.
Shri Y.H.Muchhala, learned Senior Advocate appearing for the All India
Muslim Personal Law Board, submitted that the main object of the Act is to
undo the Shah Banos case. He submitted that this Court has hazarded
interpretation of an unfamiliar language in relation to religious tenets and such
a course is not safe as has been made clear by Aga Mahomed Jaffer Bindaneem
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v. Koolsom Bee Bee & Ors., 24 IA 196, particularly in relation to Suras 241
and 242 Chapter II, the Holy Quran. He submitted that in interpreting Section
3(l)(a) of the Act, the expressions 'provision' and 'maintenance' are clearly
the same and not different as has been held by some of the High Courts. i-Ie
contended that the aim of the Act is not to penalise the husband but to avoid
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vagrancy and in this context Section 4 of the Act is good enough to take care
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DANIAL LATIF! v. U.O.l. [RAJENDRA BABU, J.]
431
of such a situation and he, after making reference to several works on
interpretation and religious thoughts as applicable to Muslims, submitted that
social ethos of Muslim society spreads a wider net to take care of a Muslim
divorced wife and not at all dependent on the husband. He adverted to the
works of religious thoughts by Sir Syed Ahmad Khan and Bashir Ahmad,
published from Lahore in 1957 at p. 735. He also referred to the English
translation of the Holy Quran ~o explain the meaning of 'gift' in Sura 241. In
conclusion, he submitted that the interpretation to .be placed on the enactment
should be in consonance with the Muslim personal law and also meet a
situation of vagrancy of a Muslim divorced wife even when there is a denial
of the remedy provided under Section 125 CrPC and such a course would not
lead to vagrancy since provisions have been made in the Act. This Court will
have to bear in mind the social ethos of Muslims, which are different and the
enactment is consistent with law and justice.
It was further contended on behalf of the respondents that the Parliament
enacted the impugned Act, respecting the personal law of muslims and that
itself is a legitimate basis for making a differentiation; that a separate law for
a community on the basis of personal law applicable to such community, cannot
be held to be discriminatory; that the personal law is now being continued by
a legislative enactment and the entire policy behind the Act is not to confer a
right of maintenance, unrelated to the personal law; that the object of the Act
itself was to preserve the personal law and prevent inroad into the same; that
the Act aims to prevent the vagaries and not to make a muslim woman, destitute
and at the same time, not to penalise the husband; that the impugned Act
resolves all issues, bearing in mind the personal law of muslim community and
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the fact that the benefits of Section 125 CrPC have not been extended to muslim
women, would not necessarily lead to a conclusion that there is no provision
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to protect the muslim women from vagaries and from being a destitute; that
therefore, the Act is not invalid or unconstitutional.
On behalf of the All India Muslim Personal Law Board, certain other
contentions have also been advanced identical to those advanced by the other
authorities and their submission is that the interpretation placed on the Arabic
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word 'mata' by this Court in Shah Bano's case is incorrect and submitted that
the maintenance which includes the provision for residence during the iddat
period is the obligation of the husband but such provision should be construed
synonymously with the religious tenets and, so construed, the expression would
only include the right of residence of a Muslim divorced wife during icldat
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SUPREME COURT REPORTS
[2001] SUPP. 3 S.C.R.
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period and also during the extended period under Section 3{1)(a) of the Act
and thus reiterated various other contentions advanced on behalf of others and
they have also referred to several opinions expressed in various text books,
such as, -
I.
The Turjuman al-Quran by Maulana Abu! Kalam Azad, translated
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into English by Dr. Syed Abdul Latif;
2.
Persian Translation of the Quran by Shah Waliullah Dahlavi
3.
Al-Manar Commentary on the Quran (Arabic);
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4.
Al-Isaba by Ibne Hajar Asqualani [Part-2); Siyar Alam-in-Nubia
by Sharnsuddin Mohd. Bin Ahmed BinUsman Az-Zahbi;
5.
Al-Maratu Bayn Al-Fiqha Wa Al Qanun by Dr. Mustafa AsSabai;
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6.
Al-Jamil' ahkam-il Al-Quran by Abu Abdullah Mohammad Bin
Ahmed Al Ansari Al-Qurtubi;
7.
Commentary on the Quran by Baidavi (Arabic);
8.
Rooh-ul-Bayan (Arabic) by Ismail Haqqi Affendi;
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9. . Al Muhalla by Ibne Hazm (Arabic);
10. Al-Ahwalus Shakhsiah (the Personal Law) by Mohammad abu
Zuhra Darul Fikrul Arabi.
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On the basis of the aforementioned text books, it is contended that the
view taken in Shah Bano'.f case on the expression 'mata' is not correct and the
whole object of the enactment has been to nullify the effect of the Shah Bano '.s
case so as to exclude the application of the provision of Section 125 CrPC,
however, giving recognition to the personal law as stated in Sections 3 and 4
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of the Act. As stated earlier, the interpretation of the provisions will have to
be made bearing in mind the social ethos of the Muslim and there should not
be erosion of the personal law.
On behalf of the Islamic Shariat Board, it is submitted that except for Mr.
M. Asad and Dr. Mustafa-as-Sabayi no author subscribed to the view that the
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Verse 241 of Chapter II of the Holy Quran casts an obligation on a former
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DANIAL LATIFI v. U.0.1. [RAJENDRA BABU, J.]
433
husband to pay maintenance to the Muslim divorced wife beyond the iddat
period. It is submitted that Mr. M. Asad's translation and commentary has been
held to be unauthentic and unreliable and has been subscribed by the Islamic
World League only. It is submitted that Dr. Mustafa-as-Sabayi is a well-known
author in Arabic but his field was history and literature and not the Muslim law.
It was submitted that neither are they the theologists nor jurists in terms of
Muslim law. It is contended that this Court wrongly relied upon Verse 241 of
Chapter 11 of the Holy Quran and the decree in this regard is to be referred
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to Verse 236 of Chapter II which makes paying 'mata' as obligatory for such
divorcees who were not touched before divorce and whose Mahr was not
stipulated. It is submitted that such divorcees do not have to observe iddat
period and hence not entitled to any maintenance. Thus the obligation for
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'mata' has been imposed which is a one time transaction related to the capacity
of the former husband. The impugned Act has no application to this type of
case. On the basis of certain texts, it is contended that the expression 'mata'
which according to different schools of Muslim law, is obligatory only in
typical case of a divorce before consummation to the woman whose mahr was
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not stipulated and deals with obligatory rights of maintenance for observing
ilk/at period or for breast-feeding the child. Thereafter, various other contentions
were raised on behalf of the Islamic Shariat Board as to why the views
expressed by different authors should not be accepted .
Dr. A.M.Singhvi, learned Senior Advocate who appeared for the National
Commission for Women, submitted that the interpretation placed by the decisions
of the Gujarat, Bombay, Kerala and the minority view of the Andhra Pradesh
High Courts should be accepted by us. As regards the constitutional validity
of the Act, he submitted that if the interpretation of Section 3 of the Act as
stated later in the course of this judgment is not acceptable then the consequence
would be that a Muslim divorced wife is pemJ.anently rendered without remedy
insofar as her former husband is concerned for the purpose of her survival after
the iddat period. Such relief is neither available under Section 125 CrPC nor
is it properly compensated by the provision made in Section 4 of the Act. He
contended tQat the remedy provided under Section 4 of the Act is illusory
inasmuch as -
firstly, she cannot get sustenance from the parties who were
not only strangers to the marital relationship which led to divorce; secondly,
wakfboards 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, realistic appreciation of the
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SUPREME COURT REPORTS
[2001) SUPP. 3 S.C.R.
matter will have to be taken and this provision will have to be decided on the
touch stone of Articles 14, 15 and also Article 21 of the Constitution and thus
the denial of right to life and liberty is exasperated by the fact that it operates
oppressively, unequally and unreasonably only against one class of women.
While Section 5 of the Act makes the availability and applicability of the
remedy as provided by Section 125 CrPC dependent upon the whim, caprice,
choice and option of the husband of the Muslim divorcee who in the first
place is sought to be excluded from the ambit of Section 3 of the post-iddat
period and, therefore, submitted that this provision will have to be held
unconstitutional.
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This Court in Shah Bano 's case held that although Muslim personal law
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limits the husband's liability to provide maintenance for his divorced wife to
the period of iddat, it does not contemplate-a situation envisaged by Section
125 CrPC of 1973. The Court held that it would not be incorrect or unjustified
to extend the above principle of Muslim Law to cases in which a divorced wife
is unable to maintain herself and, therefore, the Court came to the conclusion
that ifthe 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 recourse to Sect.ion 125 CrPC. This
decision having imposed obligations as to the liability of Muslim husband to-
. pay maintenance to his divorced wife, Parliament endorsed by the Act the right
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of a Muslim woman to be paid maintenance at the time of divorce and to protect
her rights.
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The learned counsel have also raised certain incidental questions arising
in these matters to the following effect-
( 1) Whether the husband who had ilot complied with the orders
passed prior to the enactments and were in arrears of payments
could escape from their obligation on the basis of the Act, or in
other words, whether the Act is retrospective in effect?
(2) Whether Family Courts· have jurisdiction to decide the issues
under the Act?
(3) What is the extent to which the Wakf Board is liable under the
Act?
The learned counsel for the parties have elaborately argued on a very
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wide canvass. Since we are only concerned in this Bench with the constitutional
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DANIAL LATIF! v. U.0.1. [RAJENDRA BABU, J.]
435
validity of the provisions of the Act, we will consider only such questions as
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are germane to this aspect.