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The Majority Opinion of Shayara Bano Case

The Shayara Bano case known more popularly by its moniker, the ‘triple Talaq case' in its operative part invalidates the practice of instantaneous Talaq in a split 3:2 verdict. In what is one of the most complex and fragmented set of reasoning of recent times, the judges arrive at their conclusion by sometimes contradicting and sometimes agreeing with each other.

The minority opinion delivered by the Chief Justice and the sole Muslim judge on the bench, Justice Nazeer, elevates personal law to the status of a fundamental right and protects instantaneous Talaq as an essential practice under Islam.

While the majority invalidate the practice of instantaneous Talaq, there is no majority in the reasoning leading to it, rendering the reading of this judgment a challenging process. The two sets of opinion comprising the majority invalidate triple Talaq as unislamic (Justice Joseph) and as unconstitutional (Justice Nariman and Justice Lalit). 

Justices Nariman's opinion with which Justice Lalit concurs, goes in the opposite direction. Nariman takes the view that the function performed by the 1937 Act was not only to abrogate the application of customary law to Muslims. It also performed a positive function, in that it also provided what was the applicable law.

The entity Muslim personal law according to on this view, was brought into existence by the state in exercise of its civil authority, which brought it squarely within the phrase laws in force in Article 13. Thus, according to Nariman, even uncodified Muslim personal law can be tested for compliance with the Fundamental Rights.

The judge contradicts the rationale on which Narasu was based. Further, he sets aside an earlier two-judge bench decision of the Supreme Court that had relied on Narasu. But curiously, having rejected Narasu in both substance and application, he notes that the question of whether Narasu is still valid law should be examined in a suitable case.

The centerpiece of Justice Nariman's opinion is the position that what is manifestly arbitrary is also unreasonable and can be struck down under Article 14, which is concerned with equality before law and equal protection of the laws. Justice Nariman notes that Instaneous Triple Talaq is an irregular or heretical form of Talaq since though lawful, it is considered to be incurring the wrath of God. For him, the arbitrariness of IIT, when seen through the lens of constitutional reasoning, its arbitrariness is thrown into sharper focus.

The judge concludes: …It is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.

Thus, in Nariman's analysis, the religion-based finding that Instaneous Triple Talaq was irregular and sinful, coincided with the constitutional reasoning-based finding that Instaneous Triple Talaq was manifestly arbitrary. Justices Nariman and Lalit therefore struck down the 1937 Act, to the extent that it recognised Instaneous Triple Talaq.

Justice Joseph does not fully join either of the above positions, but follows a different path. On the question of the nature of the 1937 Act, he agrees with Justice Khehar and disagrees with Justice Nariman.

Thus, though he agrees with Justice Nariman's view of arbitrariness as an appropriate test for Article 14, he holds that the 1937 Act cannot be subjected to it. But he disagrees with Justice Khehar too. Justice Khehar held against determining the validity of Instaneous Triple Talaq by referring to the Hadiths, as he felt that it was beyond the judicial role and expertise. Justice Joseph on the other hand is of the opinion that the 1937 Act, having declared Shariat to be the law applicable to Muslims, had essentially left it to the judges to find out what the Shariat said on an issue.

Therefore, leaving the question of constitutionality aside, what he pursues in his opinion is:
...whether what is Quranically wrong can be legally right …. the simple question that needs to be answered in this case is only whether triple Talaq has any legal sanctity.
His reading of the relevant verses leads him to conclude that an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before Talaq attains finality (Shayara Bano v Union of India 2017: para 10).

This was the view adopted by a number of high courts since the 1980s and this was endorsed by the Supreme Court in Shamim Ara v State of UP in 2002. Further, between 2002 and 2017, a number of high court benches had relied on the Shamim Ara case and invalidated Instaneous Triple Talaq. Thus, Justice Joseph disagrees with Justice Khehar on two more points: one, that Shamim Ara dealt with the valid procedure for Talaq in general, but did not contain a rule on Instaneous Triple Talaq and two, that Instaneous Triple Talaq was integral to the religious faith of the Muslims.

On the first, he notes that Shamim Ara had effectively invalidated Instaneous Triple Talaq, though it did not say it in so many words. On the second issue, he notes that since the purpose of the 1937 Act was to abolish customs that were contrary to Shariat and Instaneous Triple Talaq was contrary to the Quranic tenets, it was abolished by the 1937 Act. Hence, it could not be said to be an integral part of the Muslim faith and could not be immunised by resorting to Article 25. 

Here, he again disagrees with Justice Nariman, who held that the 1937 Act authorised Instaneous Triple Talaq. Justice Joseph reiterates that the Shamim Ara judgment be upheld and finds Instaneous Triple Talaq to be lacking legal validity, concluding. 

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