Danial Latifi v. UOI
Danial Latifi v. Union of India
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Shaping the law of maintenance of Muslim wives in India
Mahima Sharon Selvakumar
ID No. 214107
Family Law I
Winter Semester 2014/15
INTRODUCTION
The provision of nafqa, or maintenance, to Muslim women in the occurrence of a divorce has always been a debate of great controversy. The case of Mohd. Ahmed Khan v. Shah Bano Begum1 (the Shah Bano case) was a landmark maintenance case decided by the Supreme Court of India. The judgement passed in this case evoked numerous criticisms from the Muslim community which claimed that the decision was in contradiction to Islamic law. Subsequently, the decision of the Shah Bano case was nullified by the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The constitutional validity of this Act was later challenged by Danial Latifi before the Supreme Court.2
MAINTENANCE UNDER ISLAMIC LAW
The duty of a Muslim man to maintain his wife is a duty imposed upon him by the Qur'an. Maintenance is mandatory regardless of the financial situation of the husband. The duty is imposed once the wife attains puberty, and it remains so long as she pays heed to her husband’s reasonable orders. However, he is not obligated to maintain a wife who refuses him his conjugal rights or is otherwise defiant without any valid cause.3 Justifiable causes for misconduct would include the non-payment of mahr, or dower, or if she leaves her husband’s house due to domestic cruelty.4
A Muslim woman, after being divorced, is entitled to receive maintenance from her husband for the period of iddat, or three months. In the case of a pregnant woman, the right of maintenance may exceed three months until the time of delivery.5
Each school of Islamic law has a different position on the issue of maintenance. The Hanafi school does not allow past maintenance, which includes the sustaining of divorced wives, while
__________________________________________________________________________________________
Shaping the law of maintenance of Muslim wives in India
Mahima Sharon Selvakumar
ID No. 214107
Family Law I
Winter Semester 2014/15
INTRODUCTION
The provision of nafqa, or maintenance, to Muslim women in the occurrence of a divorce has always been a debate of great controversy. The case of Mohd. Ahmed Khan v. Shah Bano Begum1 (the Shah Bano case) was a landmark maintenance case decided by the Supreme Court of India. The judgement passed in this case evoked numerous criticisms from the Muslim community which claimed that the decision was in contradiction to Islamic law. Subsequently, the decision of the Shah Bano case was nullified by the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The constitutional validity of this Act was later challenged by Danial Latifi before the Supreme Court.2
MAINTENANCE UNDER ISLAMIC LAW
The duty of a Muslim man to maintain his wife is a duty imposed upon him by the Qur'an. Maintenance is mandatory regardless of the financial situation of the husband. The duty is imposed once the wife attains puberty, and it remains so long as she pays heed to her husband’s reasonable orders. However, he is not obligated to maintain a wife who refuses him his conjugal rights or is otherwise defiant without any valid cause.3 Justifiable causes for misconduct would include the non-payment of mahr, or dower, or if she leaves her husband’s house due to domestic cruelty.4
A Muslim woman, after being divorced, is entitled to receive maintenance from her husband for the period of iddat, or three months. In the case of a pregnant woman, the right of maintenance may exceed three months until the time of delivery.5
Each school of Islamic law has a different position on the issue of maintenance. The Hanafi school does not allow past maintenance, which includes the sustaining of divorced wives, while