Critical Analysis of Daniel Latifi vs

Union of India

(For partial Fulfilment to Internal Assessment of Law of

Crimes - II Code of Criminal Procedure)
Submitted To, Submitted By,
Mr.Ashutosh Srivastava Arjun Beniwal
Faculty, Law of Crimes - II BCom LLB (H)-4th Sem
 Acknowledgement

No project may be deemed complete if it does not properly accredit those who played
irreplaceable roles in its completion
I would like to extend my sincere gratitude to Mr Ashutosh Kumar Srivastava for all her help
and guidance. Without his support this project would never have materialized.
I would also like to thank my classmates, as fruitful discussions with them helped considerably
in improving the content and layout of this project, and also the librarians and the support staff of
the library in extending me all the help I needed to be able to complete this project on time.

Arjun Beniwal
BCom LLB(H) IVth Sem
 Table of Cases
Shahulmeedu v. Subaida Beevi (1979) 2 SCC 316
Bai Tahira v. Ali Hussain Fidaalli Chothia (1979) 2 SCC 889
Fuzlunbi v. K. Khader Vali (1979) Cri. LJ 151
Mohd Ahmed Khan v. Shah Bano Begum (1985) Cri. LJ 875
Abdul Rahman Shaikh v. Shehnaz Karim Shaikh 2000 (4) All MR 258
Bilkis Begum v. Majid Ali Gazi 2002(2) WLC(SC) 104

Abbreviations

1. &And

2. AIRAll India Reporter

3. All.Allahabad High Court

4. Gov. Government

5. Honble........Honourable

6. S.....Section

7. SC...Supreme Court

8. SCC....Supreme Court Cases

9. v.....Versus
 Table of Contents
S.No. Title Page No.

1. Acknowledgement 2
2. Table of Cases and Abbreviations 3
3. Introduction 5-6
4. Case Background 7
5. Critical Analysis of Judgement 8-9
6. Conclusion 11
7. Bibliography 12
 Introduction

Under Islamic law maintenance or Nafaqa (Nafqa) arise out of three reasons - i) marriage ii)
relations and iii) property. Maintenance in this context means food, raiment and lodging , though
it generally refers to only food. A Muslim is required to maintain his other relations only if he
has the means. But a Muslim husband is duty bound to provide maintenance to his wife, even if
he is poor, if the marriage is sahih or lawful. But the wife never needs to maintain the husband.
The quantam of maintenance is decided as per the classical law, so under the Hanafi law position
of both the spouses is taken into consideration, the Shafei law considers only the husband's
position and the Isna Ashari and Ismaili laws takes into account the wife's needs and the local
custom prevalent. The Hanafi school does not permit past maintenance(including divorced
wives) but the other school of the Shia sect, the Shafei school allows past maintenance and in the
words of the renowned Muslim law scholar Tahir Mahmood opines that this rational provision
deserve to be applied to the Muslim women of all schools.

In India the Shariat Act, 1937 also recognizes the Muslim wife's right to maintenance. The
section 488 of the old Code of Criminal Procedure1898 provides for criminal action by virtue of
magistrate's orders for maintenance of wives which included Muslim wives too, as held in the
case of Shahulmeedu v. Subaida Beevi(1) The Kerala High Court held that s. 488(3) of the Cr.P.C,
applied to all Indian wives including Muslim wives.

The sections 125-128 of the new Code of Criminal Procedure 1973 retained the old provisions
and now included the divorced wives too. A divorced wife now could ask for maintenance from
the former husband if she was unable to maintain herself and the former husband even after
having sufficient means neglects or refuses to maintain her.

In various Supreme Court judgments in between 1979 and 1985 like Bai Tahira v. Ali Hussain
Fidaalli Chothia[1] and Fuzlunbi v. K. Khader Vali(2) held that Muslim women is entitled to
maintenance under Section 125 and dealt with question of payment of mahr under Muslim
personal law. The order of the magistrate stood cancelled under Section 127(3) only if the
women's entitlement was paid fully under Personal law and this post divorce entitlement did not
include the Maher which is considered as an attribute of marriage and not divorce or she
remarries or had voluntarily given up her right of maintenance. The main controversy arising in
this situation is regarding Muslim women's right to maintenance after the divorce. Prior to the
Supreme Court judgement in Mohd Ahmed Khan v. Shah Bano Begum(3), it was generally held
that the Muslim women did not have any right of maintenance once the period of iddat (period of
separation) is over. But in this case the Supreme Court held that divorced Muslim women ha

d the right to maintenance even after the period of iddat was over.

(1) (1979) 2 SCC 316

 (2) (1979) Cri. LJ 151

(3) (1985) Cri. LJ 875

This judgment was followed by various repercussions in the Muslim community who felt their
faith was under threat. The Muslim Personal Law Board opined that the Supreme Court was
wrong in interpreting the holy Quran as per a judicial stand taken whereby it was held that the
court would not interpret religious scriptures or holy books. The parliament to undo the effect of

this judgement passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which
provided that under section 3(1)(a) a divorced women is entitled to reasonable and fair provision
and maintenance within the iddat period. The Act while nullifying the Shah Bano ratio, tried to
restrict the divorced Muslim woman's right to maintenance up to the iddat period only. A classic
example of how political considerations ate into the rights of a section of the people, the
Constitutional validity of the Act was challenged on the ground of being violative of Article 14,
15 and 21. The basic question raised by right activists was the necessity of enacting an Act,
completely segregating a section of the population, while a secular remedy was already available
under Section 125 of the Code of Criminal Procedure. In the face of this burning controversy, the
Supreme Court in the case of Daniel Latifi v. Union of India[4] approached a middle path and
held that reasonable and fair provisions include provision for the future of the divorced wife
(including maintenance) and it does not confine itself to the iddat period only. The Constitutional
validity of the Act was also upheld.
 Case Background

In this case the constitutional validity of the Muslim Women (Protection of Rights on Divorce)
Act, 1986 is was challenged The first case in this regard is the case of Mohd. Ahmed Khan
v. Shah Bano Begum & Ors. The facts of this case are as follows:

The husband appealed against the judgment of the Madhya Pradesh High Court directing him to
pay to his divorced wife Rs. 179/- per month, enhancing the paltry sum of Rs. 25 per month
originally granted by the Magistrate. The parties had been married for 43 years before the ill and
elderly wife had been thrown out of her husband's residence. For about two years the husband
paid maintenance to his wife at the rate of Rs. 200/- per month. When these payment ceased she
petitioned under Section 125 CrPC. The husband immediately dissolved the marriage by
pronouncing a triple talaq. He paid Rs.3000/- as deferred mahr and a further sum to cover arrears
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 important feature of the case was that 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 independently supporting herself at that late state of
her life - remarriage was an impossibility in that case. The husband, a successful Advocate with
an approximate income of Rs. 5,000/- 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.

It was next considered whether the amount of mahr constitutes a reasonable alternative to the
maintenance order. If mahr is not such a sum, it cannot absolve the husband from the rigor 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 the Supreme 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 to be excluded from 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 so amount to cover maintenance during the iddat period and Section 127(3)
(b) CrPC conferred statutory recognition on this principle. Several Muslim Organization, 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 provision for
maintenance from her husband after the iddat period.
 Critical Analysis of Judgement

The most controversial question which has been politically significant in the recent past in the
background of a secular constitution and the concept of welfare state is that whether or not a
divorced Muslim woman after divorce post iddat period is entitled to maintenance by her
husband or not. The iddat period is generally considered to be three menstrual courses if she is
subject to menstruation, three lunar months if she is not subject to menstruation or if she is
pregnant at the time of her divorce the period between her divorce and the delivery of child or
the termination of pregnancy, whichever is earlier. Generally it is taken to be three months. A
divorced Muslim woman is entitled to maintenance from her husband during the period of iddat,
after that Muslim personal law though nowhere expressedly permits maintenance after divorce
but it also does not prohibits, specifically or impliedly, it anywhere. In 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 . But this
interpretation was highly debated upon and was considered as out of purview of the court as the
court itself had decided that they would not be interpreting the religious texts, when it was so
discussed in the case of Mohd. Ahmed Khan v. Shah Bano Begum.

Smt. Kapila Hingorani and Smt. Indira Jaisingh, the Counsels standing on behalf of the
petitioners contended that the expression 'wife' as included in the purview of the Section 125 of
the Code of Criminal Procedure is 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. This provision is not a part of the civil law applicable selectively
to parties belonging to a particular religion but a criminal remedy applicable to all on a secular
basis, the basis there being, neglect by a person of sufficient means to maintain these and the
inability of these persons to maintain themselves. The very spirit of this provision was the moral
edict of law and morality could never be clubbed with religion. It was also further contended that
Section 125 of the Code of Criminal Procedure is a provision made in respect of women
belonging to all religions to avoid vagrancy after marriage and exclusion of Muslim Women
from the same results in discrimination between women and women and so violating Article 15
of the Constitution. There is a violation of not only equality before law but also equal protection
of laws and thus violating Article 14 which in turn inherently infringes Article 21 as well as basic
human values.

The five judge bench of the Supreme Court consisting of Mr. G.B. Pattanaik, Mr. S. Rajendra
Babu, Mr. D.P. Mohapatra, Mr. Doraiswamy Raju and Mr. Shivaraj V. Patil upheld the
Constitutional validity of the Act. The forward step taken by the same Court in the Shah Bano in
the face of religious fanaticism was undone as the Court in the rationale said that, Legislature
does not intend to enact unconstitutional laws. While it accepts social reality of a male
dominated society, it fails to take recognition of the fact that the Act is inherently discriminatory.
This can be very well proved by the fact that it brings within its purview only divorced woman'
who has been married according to Muslim law and has been divorced by or has obtained
divorce from her husband in accordance with the Muslim law. But the Act excludes from its
purview a Muslim woman whose marriage is solemnized either under the Special Marriage Act,
1954 or a Muslim woman whose marriage was dissolved either under Indian Divorce Act, 1969
or the Special Marriage Act, 1954. The Act does not apply to the deserted and separated Muslim
wives. Section 4 of the Act makes the relatives of the Divorced woman or the state wakf board
responsible for the maintenance of the Divorced woman. But reality is that it is quite improbable
that she will get sustenance from the parties who were not only strangers to the marital
relationship which led to divorce. Also, wakf boards would usually not have the means to
support such destitute women since they are themselves perennially starved of funds and the
potential legatees of a destitute woman would either be too young or too old so as to be able to
extend requisite support. Furthermore, the Court fails to answer the necessity of an Act,
segregating Muslim women completely when a secular remedy is already available under the
Section 125 of the Code of Criminal Procedure. Hindu women have their right to maintenance
recognized under the Hindu Adoptions and Maintenance Act, 1956 but that no way bars her from
claiming maintenance under Section 125 of the Code of Criminal Procedure.

So why, this discrimination, the Court fails answer that. The justification of the law being non
discriminatory based on a reasonable classification and so not violative of Article 14 of the
Constitution of India (as given in Danial Latifi judgement) does not hold good because a law for
maintenance to divorced women was already in force and available to every women of India,
irrespective of their caste, creed, religion. The proposition put forward that the Act in spirit tries
to respect the provisions in the Personal Law does not hold good as it being a codified Law, has
to pass the acid test of the Constitution, which it miserably fails. Another, fact to be noted is that
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.
But the main criticism leveled against this section was that which Muslim husband would like to
go through the rigours of the Cr.PC provisions when he can be governed by a much easier law.
The Section 7 of the Act also provided that the pending applications under the Cr.PC were to be
dealt within the purview of this Act. But Gujarat High Court has held in the case of Arab
Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai that a divorced Muslim woman can
directly move to the Court under the Cr PC provisions.

However, in the middle path approach undertaken by the Supreme Court becomes evident as it
reiterates the stand of the Gujarat, Kerala and Bombay High Courts earlier in this regard. The
poorly drafted provisions of the Act, especially section 3, provided the Court with ample scope
of interpretation. 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 time frame or the iddat period mentioned was held to
be the time limit within which both maintenance for the iddat period and a reasonable and fair
provision' for the future in the form of a lump sum was to be paid to the divorced wife to avoid
future vagrancy. 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 judgement 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.
 Conclusion
Before the Danial Latifi judgement, the expression provision and maintenance created
confusion as the High Court of Kerala in Ali v. Sufaira the Bombay High Court in the case of
Abdul Rahman Shaikh v. Shehnaz Karim Shaikh[19] and the Gujarat High Court in the case of
Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai that the expression reasonable and
fair provision meant arrangement for a lump sum amount for the future provision of the wife
within the iddat period other than the iddat period maintenance. But contrary opinions were
given by the judgements of the Andhra Pradesh High Court in the case of Usman Bahmani v.
Fathimunnisa[20] and the Calcutta High Court in the case of Abdul Rashid v. Sultana Begum and
it was held that both expressions provision and maintenance meant the same, and it covered only
maintenance for the iddat period only. After this judgement the judiciary has held in the cases
like in the cases of Bilkis Begum v. Majid Ali Gazi[21] it was held that claim of maintenance of
the divorced wife cannot be proceeded under Section 125 of the Cr PC after the enactment of the
1986 Act.

The controversy still remains. The interpretation provided by the judiciary in the Danial Latifi
case fails to satisfy the minds of the reasonable people, as there are glaring defectes on the face
of it. But we should also keep in mind the social perspective. 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 Court could envisage that the country at such a juncture of
Economic and Social growth, could not bear the burden of aftermath of another Shah Bano. But
keeping in mind the changing times and the constantly evolving meaning of Article 21of the
Constitution, which has been held to include the right to live with dignity' under the case of
Olga Tellis v. Bombay Municipal Corporation and Maneka Gandhi v. Union of India, it is a duty
of the society to make sure that the divorced Muslim wife have the provision to maintain herself
with dignity and is not led to destitution and vagrancy. The Personal law may connote a different
thing but keeping the changing society in mind, it should be open to interpretation only for
positive changes. That only can help us achieve the objectives of Social Justice laid down both
expressedly and implicitly in our Constitution.
 Bibliography
Books:
The Code of Criminal Procedure, Ratanlal & Dhirajlal, with a Foreword Justice
M.N.Venkatachaliah, 19th edition, reprint 2012

Supreme Court on Criminal Procedure Code and Criminal Trial,By-Surender

Malik,Eastern Book

Prof. G.C.V. Subba Rao - Family Law in India, 9th Edition ,Allahabad Law Agency

M. Krishnan Nair - Family Law I,6th Edition,Eastern Book Depot

Mulla on Muslim Law, 8th Edition,Universal Book

Sarkar on Criminal Procedure,By-S.C Sarkar,Lexis Nexis Butterworth

Internet Sources:
www.manupatra.com
www.findlaw.com
www.lawguru.com
www.legalaidfoundation.org
www.wikipedia.com
www.google.com
www.judis.nic.in