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The Muslim Women (Protection of Rights on Divorce) Act was passed by India's Parliament in 1986, allegedly to protect the economic rights of Muslim women upon divorce. The Act, however, has been controversial as it essentially overrode the Shah Bano judgment and limited the maintenance Muslim women could receive after divorce to the iddat period (a three month period).

In Danial Latifi, the Indian Supreme Court found that the 1986 Muslim Women (Protection of Rights on Divorce) Act requires a Muslim husband to provide maintenance of a reasonable and fair amount needed to maintain his ex-wife for the rest of her life, but that he must pay this amount in total during the iddat period (three month post-divorce period).

In Sarabai, the Bombay High Court upheld "triple talaq" (the pronunciation of talaq, or male-initiated divorce, three times) to be a valid form of irrevocable divorce.

The Indian Supreme Court held that for talaq (unilateral, male-initiated divorce) to be valid, there must be (1) a reasonable cause and (2) proof of an effort of reconciliation; a simple utterance of talaq, or the presentation of a written statement stating that the respondent had divorced the plaintiff sometime previously, was not sufficient to effect unilateral divorce.

The Constitution of India does not refer to Islamic law, and is largely secular. However, Art. 44 does refer to a uniform civil code. 

The Indian Supreme Court here held that polygamy was not an ‘integral’ part of the Muslim religion and could therefore be regulated by the state.

In Narasu Appa Mali in 1952, the Bombay High Court limited its own ability to address the constitutionality of Muslim personal law in India, holding that personal laws are not “laws in force” within the purview of Article 13 of the Constitution, and thus need not satisfy the fundamental rights test.

Decided by the Supreme Court of India, Vishwa Lochan Madan v. Union of India decreed that fatwās issued by sharīʿa courts hold no legal leverage. 

Constitution for India in English, published with the permission of Constitute.

The Khoja Case, also known as the Aga Khan Case, is one of the rare cases profiling the Shia Imami Nizari Ismaili community (henceforth “Ismailis”). Decided in the High Court of Bombay in 1866 by the Honourable Sir Joseph Arnould, this case was brought by a series of Ismaili plaintiffs who argued that the Ismaili Community was a Sunni community, and therefore did not owe allegiance to the Aga Khan as its leader. The Court held that the Ismaili Community was in fact a Shi’a community, that the Aga Khan was the authoritative head of the community, and therefore, that he had the right to exercise his traditional modes of authority.

The Shah Bano case is a landmark and controversial case in India’s Supreme Court which dealt with the question of the length of time a Muslim ex-husband would have to provide his ex-wife with monthly maintenance payments after a divorce, considering Muslim personal law and Indian civil law.

In Shayara Bano v. Union of India (2017), the Supreme Court of India declared the practice of triple ṭalāq (instant divorce) a violation of Muslim women’s constitutional rights. This legislative act is the result of that judgment and criminalizes the practice of triple ṭalāq.

In a 3-2 decision, the Supreme Court of India declared triple ṭalāq unconstitutional and gave India’s parliament six months “to consider legislation” for handling triple ṭalāq. In its opinion, the Court cited global advances in Islamic family law (in India, called Muslim personal law) in “even theocratic Islamic states” as evidence of the need for reform.  The Court also noted that the Muslim Personal Law (Shariat) Application Act of 1937, which protects the religious freedom of Muslims in India, does not constitutionally protect practices deemed “anti-Qur’anic.” Asserting that triple ṭalāq is such a practice, the Court held that it could not be protected under the Indian Constitution.

“Held, where the plaintiff sued for the custody of her minor sister, as her legal guardian under Muhammadan law, that the fact of the plaintiff being a prostitute was, although she was legally entitled to the custody of a minor, a sufficient reason for dismissing the suit in the interests of such a minor.”

A legislative act produced under British India that consolidates and amends the law relating to the solemnization of the marriages of Christians. Broken into nine sections, it also includes legal forms related to marriage, such as a marriage certificate and notice of marriage.

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.

In Javed & Ors. v. State of Haryana & Ors.,[1] the Supreme Court of India (the “Court”) considers whether a non-retroactive state law barring elected members of various local governments from having more than two children is violative of various articles of the Indian Constitution (the “Constitution”). The law was challenged by disqualified candidates who argued that the law was discriminatory, arbitrary and unreasonable, that it violated fundamental rights per Article 21, and interfered with religious freedom guarantees in Article 25.[2] The Court holds that the law is reasonable and not arbitrary or discriminatory given India’s overpopulation problem and the perception of a clear nexus between reducing population and encouraging local leaders to be role models.[3] The Court also holds that contesting and holding elected office are not fundamental rights, and even if they were, the public health limitation would mean that the law does not encroach on such rights.[4] But the focus of this paper is on the Court’s analysis with respect to religious freedom, where the Court in effect holds that the public health and welfare limitation must govern and that regardless, polygamy, and having more than two children is not an “integral part” of Islam and there is no conflict with the Muslim personal law.[5]

[1] Javed & Ors. v. State of Haryana & Ors. (2003) 8 SCC 369 (India).

[2] Supra note 2 (Article 25 of the Indian Constitution is analogous to the American 1^st amendment’s religious freedom protections, but with an explicit public health limitation).

[3] Id.

[4] Id.

[5] See id. (India has separate personal codes addressing matters such as marriage for different religious communities..

The Karnataka High Court ruled that the ḥijāb is not "essential" in Islam and upheld a Government Order dated 05.02.2022, issued under sections 7 & 133 of the Karnataka Education Act of 1983. That order directs the College Development Committees all over the State to prescribe the ‘Student Uniform,’ presumably in terms of Rule 11 of Karnataka Educational Institutions Rules of 1995 (Classification, Regulation & Prescription of Curricula, etc.), which bans headscarves in classrooms. A full bench of Justices on the High Court sat to hear several petitions filed by Muslim students who attend government pre-university colleges in the region and who were alleged prejudice from the ban. The Court issued this order, restricting girls from wearing headscarves, or ḥijāb, deeming it as not “essential” in Islam arguing that “what is not religiously made obligatory therefore cannot be made a quintessential aspect of the religion through public agitations or by the passionate arguments in court,'' and as a use of religious symbols by students in governmental educational institutions that have established dress codes noting that Muslim women’s  ḥijāb goes against their “constitutional spirit of ‘equal opportunity’ of ‘public participation’ and ‘positive secularism’.”

On 9 November 2019, the Supreme Court of India declared the final judgement in the case regarding disputed land in the Ayodhya region in the District of Faizabad, India where the Babri masjid once stood. The court decided that the 2.77 acres of land be transferred over to a governmental trust for the purpose of building the Ram Janmabhoomi temple and an alternative 5 acres of land be given to the Sunni Waqf Board in order to build a mosque. This decision overturned the 2010 decision by the Allahabad High Court to divide the disputed land among three parties. Until its demolition in 1992, the 16th century Babri masjid existed at this site. Based on archaeological evidence that examined the foundations of the Babri masjid, as well as biographical evidence pulled from Sikh scriptural texts, the Supreme Court reasoned that land’s Hindu history predates the construction of the mosque and should thus be the site of a newly constructed Hindu temple.

The President of the All India Majlis-e-Ittehadul Muslimeen in India, Asaduddin Owaisi, responded to a recent Karnataka High Court decision ruling that ḥijāb, or wearing a headscarf,  is not "essential" in Islam, and that state colleges could validly bar Muslim women from wearing it on their campuses. He disagrees with the Court decision on grounds that it goes against the Indian constitution's fundamental rights to freedom of religion, culture, speech, and expression. He further concludes that the decision interferes in an individual’s right to worship. More broadly, his concern lies with secular state courts making decisions on what is or is not essential religious practice, noting that such questions are between an individual and God. He concludes that the High Court's decision will force Muslim women to decide between “Allah’s command to be educated” and God’s commands that facilitate spiritual connectedness in responding to what they understand to be a religious obligation, such as wearing ḥijāb.