In Danial Latifi & Anr v. Union of India, the Supreme Court of India (the “Court”) considers whether the Muslim Women Protection of Rights on Divorce Act, 1986 (“the Act”) abrogates its ruling in Mohd. Ahmed Khan v. Shah Bano Begum and Others (“Shah Bano”).[1] In Shah Bano, the Court held that divorced Muslim women unable to support themselves have a right to lifetime maintenance under Section 127 of the Indian Code of Criminal Procedure, which does not conflict with Muslim Personal Law[2] ostensibly limiting rights to mahr[3] and maintenance during the period of iddat.[4] [5] In Danial Latifi, the Court holds that the Act did not overturn Shah Bano, but instead that divorced Muslim women who are unable to maintain themselves are entitled to receive a one-time lump sum payment during the period of iddat sufficient for lifetime maintenance. The Court chiefly justifies this ruling by arguing that abrogating Shah Bano, would violate various constitutional rights of Muslim women. The Court also makes prudential arguments concerning the impact of abrogating Shah Bano on divorced Muslim women’s economic circumstances, and moreover holds that abrogation would be contrary to Islamic law.
[1] Danial Latifi & Anr v. Union of India (2001) 7 SCC 740 (India).
[2] India has a uniform criminal code, but different personal codes addressing family law for various religious communities. This dual system is very controversial in India.
[3] A sum agreed upon prior to marriage to be given to a wife in two parts (one deferred and one immediate).
[4] The roughly three-month period where re-marriage is forbidden to divorced women.
[5] Shah Bano produced political backlash resulting in the passage of the Act referenced above, with the intention of overturning the ruling. See supra note 1.