By Nikhil Goyal
This post is part of the Digital Islamic Law Lab (DILL) series, in which a Harvard student analyzes a primary source of Islamic law, previously workshopped in the DIL Lab.
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”). 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 ostensibly limiting rights to mahr and maintenance during the period of iddat. 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.
Source: Danial Latifi & Anr v. Union of India (2001) 7 SCC 740 (India).
On the whole, this case can be viewed as a continuation of the Court’s effort to harmonize Muslim law with secular law and push for a Uniform Civil Code, irrespective of what Muslim law actually says. But unlike in Shah Bano, the Court seems to be aggressively pushing for uniform treatment in areas beyond divorce. It is very important to consider that the Court is interpreting “secular” Indian criminal law in tandem with religious law. The Court attempts to apply Indian secular law to Muslims while avoiding conflict with religious law – the court neatly accomplishes this objective by assuming that Shah Bano accurately reflects Islamic divorce law. The Court does not seriously reexamine primary Islamic sources, instead only cursorily dismisses scholars with opposing viewpoints. In particular, the Court assumes that its Shah Bano analysis concerning mata (provision or maintenance as defined in the Quran) is correct, in that divorced women unable to maintain themselves are entitled to maintenance beyond the period of iddat. The Court’s ruling may seem like a foregone conclusion given its adherence to Islamic law as defined in Shah Bano, but the Court must also show why the Act conflicts with secular law, which governs this matter.
In essence, the Court argues that the Act, as written, would violate basic constitutional rights like the “right to live with dignity” under Article 21 of the Indian Constitution, and the right to equal protection of the law under Article 14. The Court considers the problem of divorced women not being able to sustain themselves as well as the problem of Muslim women having different rights from non-Muslim women. Here, the Court assumes that financial stability is necessary for dignity. The Court also thinks that Section 127 of the Code of Criminal Procedure is good public policy in providing for women who might become vagrants. On this front, the Court cites arguments to the effect that the remedy of seeking support from relatives and the State Wakf Board as provided by the Act is illusory, and that leaving Muslim women as vagrants is undesirable, particularly given India’s patriarchal structure. More fundamentally, the Court worries that the Act would “undermine the secular character” of the Indian Constitution.
The Court does consider the actual language of the Act. In a relevant part, the Act states that “a Muslim divorced woman shall be entitled to a reasonable and fair provision of maintenance within the period of iddat by her former husband.” Women’s remedies are limited to seeking support from relatives and the local State Wakf Board. The Court acknowledges that the plain meaning of the Act would abrogate Shah Bano, but holds the opposite meaning to be correct. The Court holds that a reasonable alternative reading is that the Act is really intended to ensure reasonable and fair provision of maintenance, essentially eliding the “within the period of iddat” limitation. The Court justifies ignoring the plain meaning by suggesting that the word “provision” incorporates the Court’s conception of mata into the Criminal Code and by applying a canon of construction that the Court should choose any plausible interpretation that is constitutional over any unconstitutional interpretation, even if the unconstitutional interpretation might be more plausible.
This case reads as an attempt by the Court to accomplish its goal of harmonizing the rights of divorced women across communities while strenuously avoiding any implication of conflict with Islamic law. More broadly, the Court’s opinion can be viewed as part of a political effort to push for a Uniform Civil Code in India, as the Court makes strong arguments for equality in rights for women generally, that could be applied outside of the context of divorce. The case also indicates the danger that Islamic law in post-colonial states may simply be adapted by courts to fit within the colonial superstructure of law, even at the cost of ignoring consensus among Islamic law scholars and jurists. In other words, countries like India may strip Islamic law of its content, while maintaining its status formally.
 Danial Latifi & Anr v. Union of India (2001) 7 SCC 740 (India).
 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.
 A sum agreed upon prior to marriage to be given to a wife in two parts (one deferred and one immediate).
 The roughly three-month period where re-marriage is forbidden to divorced women. 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.