Islamic law is before the Supreme Court of India again, with the question of whether triple-ṭalāq is a valid way of dissolving a marriage: by a man simply pronouncing that his wife is divorced by saying that word three times. To understand where the Court might be going requires a bit of background. Following the 1985 Shah Bano case in India, the Indian Supreme Court was faced with protests from the Indian Muslim community over its perceived interference in Islamic personal law. This response revealed the political complexity of executing the Supreme Court’s dedication to defending the constitutional rights of all its citizens. India editor Akhila Kolisetty uses the passage of the 1986 Muslim Women (Protection of Rights on Divorce) Act in 1986 and the Danial Latifi v. Union of India (2001) that followed to explicate the Indian Supreme Court’s unenviable position of balancing gender and religious equity. The Muslim Women Act of 1986 limited maintenance payments to the iddat period (the three-month waiting period for divorce in Islamic law), leading to negative responses from women’s rights organizations. Danial Latifi, Shah Bano’s lawyer, challenged the constitutionality of the Act, calling it discrimination against Muslim women on the basis of their religion. Under the Act, women were excluded from the protections of the Indian Constitution’s Articles 14, 15, and 21. The Court resolved this constitutionality quagmire by finding that a Muslim husband must pay the “reasonable and fair amount needed to maintain his ex-wife for the rest of her life…in total during the iddat period.” This type of understated but sufficient solution “exemplifies a pattern within the Supreme Court’s approach to Muslim personal law: claims that “promote Muslim women’s gender equity while also limiting [the Court’s] intervention into Islamic personal law to avoid potential backlash.”
The Danial Latifi v. Union of India[1] case (2001) highlights tensions between the pressure of communal politics and the promotion of gender equity for Muslim women that has repeatedly confronted the Indian Supreme Court since the 1985 Shah Bano[2]case, which required maintenance of an ex-wife beyond what was required in Islamic law. In Danial Latifi, the Court tried to address this tension by interpreting Islamic family law in a way that struck a balance between promoting equality for Muslim women, while avoiding fundamentally altering the status of Muslim personal law in India and thus potential backlash, even if that meant the interpretation was an unusual one.
As described in a previous post, in the Shah Bano case 16 years prior, India’s Supreme Court held that a Muslim ex-husband would have to make continued maintenance payments to his divorced wife under Section 125 of India’s Criminal Procedure Code in addition to maintenance for a three-month iddat period after divorce required under Islamic law. In reaction, certain elements within the Muslim community rose up in protest of the decision, viewing this as an interference in their community’s personal law. This case led India’s Parliament to pass the 1986 Muslim Women (Protection of Rights on Divorce) Act[3] (1986 Act),[4] which was essentially a legislative override of the Shah Bano decision, limiting the provision of maintenance only to the iddat period (approximately three month period to finalize the divorce).[5] Afterwards, the question of whether maintenance was limited to the iddat period came up in numerous High Court decisions, with inconsistent outcomes.[6] While some courts interpreted the provision in an expansive manner, others took a more limited view. Women’s rights organizations chose to take the issue to the Supreme Court, hoping that the expansive interpretation would prevail.[7]
The 1986 Act’s constitutionality was then challenged in 2001.[8] The case was brought by Danial Latifi – who had been Shah Bano’s lawyer in her Supreme Court case – and others, who filed a writ in the Supreme Court challenging the Act’s constitutionality.[9]They argued that the 1986 Act violated Articles 14 (the right to equal protection of the laws), 15 (the right to freedom from discrimination on the grounds of religion or sex), and 21 (the right to life and liberty) of the Indian Constitution. The 1986 Act required maintenance for divorced Muslim women only during the iddat period, while women of other religions in India were able to benefit from Section 125 of the Criminal Procedure Code which granted them maintenance until their remarriage. Petitioners thus alleged that the Act unconstitutionally discriminated against Muslim women on the basis of their sex and religion.
In its analysis, the Supreme Court applied a canon of construction requiring it to choose the interpretation of the law that would save it from being struck down as unconstitutional.[10] As a result, the court upheld the impugned Act by interpreting it to provide Muslim women with the same maintenance that women of other religions are entitled to under Section 125. The Court examined §3(1)(a), which stated that a divorced woman is entitled to “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.”[11] The Court interpreted this as two separate obligations: (1) to make reasonable and fair provision and (2) to pay maintenance.[12] The Court then found “reasonable and fair provision” to mean a provision in advance for the future needs of the ex-wife, including her residence, food, clothes, and other necessities. [13] Ultimately, the Court found that the 1986 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. By construing the Act in this manner, the Supreme Court avoided holding it unconstitutional.
This case reflected tensions between pressure from certain actors within the Muslim community and women’s rights activists. The All India Muslim Personal Law Board (AIMPLB) and the Islamic Shariat Board, intervening in the case, argued on behalf of the 1983 Act and its attempt to redress the failure of the Shah Bano case to take the distinct identity of the Muslim community into account.[14] On the other side, the National Commission for Women intervened on behalf of an interpretation of the 1986 Act requiring maintenance payments extending beyond the iddat period.[15]
Ultimately, many Indians perceived the interpretation advanced by the Court as a stretch.[16] The Court promoted the claims of Muslim women to equal rights (albeit in a way that smacked of paternalism and the desire to ‘protect’ women they viewed as oppressed),[17] while framing the result in terms of Islamic law in order to preserve the legitimacy of Islamic personal law within India’s legal system. As in the Shah Bano case, the Court’s secularly trained Hindu justices chose to avoid the core question of fundamental rights in this case, instead focusing on interpreting Islamic personal law. The court knew that making judgments about the constitutionality of the 1986 Act would open the floodgates to future challenges to the constitutionality of Islamic personal law, which would further inflame communal tensions and conflict. As a result, the Court chose to avoid this question altogether by adopting an interpretation that would uphold the law and eradicate any differential treatment of Muslim women. Knowing the potential ramifications and possibility of social backlash, the Court was only willing to go so far.[18]
The Daniel Latifi case exemplifies a pattern within the Supreme Court’s approach to Muslim personal law claims. The decision illustrates the impact of communal tensions on the Court’s decision-making process since the reaction to the Shah Bano case, and the careful lines it attempts to draw in order to promote Muslim women’s gender equity while also limiting its intervention into Islamic personal law to avoid potential backlash.
[1] Also available at http://indiankanoon.org/doc/410660/.
[2] Also available at http://indiankanoon.org/doc/823221/.
[3] Also available at http://indiankanoon.org/doc/1933289/.
[4] Siobhan Mullally, Feminism and Multicultural Dilemmas in India: Revisiting the Shah Bano Case, 24 Oxford J. Legal Stud. 671, 672 (2004). Muslim Women (Protection of Rights on Divorce) Act, 1986, Art. (1)(2). See also Ayelet Harel-Shalev, Policy Analysis beyond Personal Law: Muslim Women’s Rights in India, 41 Politics & Policy 384, 393, 404 (2013).
[5] Muslim Women (Protection of Rights on Divorce) Act, 1986, Art. (3)(1)(a). For a comparative reference to legislative overrides in the United States, see Matthew R. Christiansen & William N. Eskridge, Jr., Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967–2011, 92 Tex. L. Rev. 1318, 1318–1479 (2014).
[6] Mullaly, supra note 1, at 672 (citing Arab Ahemadhia Abdulla v. Arab Ail Mohmuna Saiyadbhai & Ors, AIR 1988 (Guj.) 141; Ali v. Sufaira (1988) 3 Crimes 147; K Kunshashed Hazi v. Amena, 1995 Cr.L.J. 3371; K. Zunaideen v. Ameena Begum (1998) II DMC 468; Karim Abdul Shaik v. Shenaz Karim Shaik, 2000 Cr. L. J. 3560; Jaitunbi Mubaraka Shaikh v. Mubarak Farukddin Shaikh & Anr, 1999 (3) Mh.L.J. 694).
[7] Yuksel Sezgin, Human Rights Under State-Enforced Religious Family Laws in Israel, Egypt and India 191 (2013).
[8] Danial Latifi & Anr v. Union Of India, (2001) 7 S.C.C. 740, 742.
[9] Vrinda Narain, Reclaiming the Nation: Muslim Women and the Law in India 123 (2008).
[10] Danial Latifi & Anr v. Union Of India, (2001) 7 S.C.C. 740, 746. The canon of constitutional avoidance has been developed in United States law, and is known to be a canon of uniquely American-origin. For a comparative perspective on its application in the United States, see Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 Sup. Ct. Rev. 181, 181–223 (2009).
[11] Muslim Women (Protection of Rights on Divorce) Act, 1986, Art. (3)(1)(a).
[12] Danial Latifi & Anr v. Union Of India, (2001) 7 S.C.C. 740, 744.
[13] Danial Latifi & Anr v. Union Of India, (2001) 7 S.C.C. 740, 744.
[14] Jeffrey A. Redding, Constitutionalizing Islam: Theory and Pakistan, 44 Va. J. Int’l L. 759, 821–23 (2004). See also Mullally, supra note 1, at 683.
[15] See Mullaly, supra note 1, at 683.
[16] Redding, supra note 11, at 821–23. In addition, it appears that women from lower socioeconomic backgrounds appeal to the courts to obtain maintenance payments upon divorce; these cases do not seem to be limited to couples who are well-off. For instance, Flavia Agnes’ study of 243 maintenance judgments between 1987 and 2000 found that in 60% of the cases, the maintenance awarded was only 200 rupees a month, and only in 6% of cases more than 500 rupees a month. In the Shah Bano case, for instance, the maintenance amount at issue was less than 200 rupees, although the husband’s salary was 5000 rupees per month. Mathias Rohe, Islamic law in Past and Present 384 (2014).
[17] This view was apparent in statements made by the court which emphasized certain stereotypes about women and their need for protection. For instance, the court noted that an Indian woman, upon marriage, “gives up all her other avocations and entirely devotes herself to the welfare of the family,” and that upon divorce, “it is a small solace to say that such a woman should be compensated in terms of money towards her livelihood…” Danial Latifi & Anr v. Union Of India, (2001) 7 S.C.C. 740, 743, 757.
[18] Redding, supra note 11, at 823.
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