Case BriefsHigh Courts

“The Holy Quran does not mandate wearing of hijab or headgear for Muslim women rather it was traditionally worn as a measure of social security”

Karnataka High Court: A Full Bench of Ritu Raj Awasthi CJ, Krishna S. Dixit J and J. M Khazi J. dismissed the petitions being devoid of merit.

Writ Petition Details

  1. W.P No. 2347 of 2022 praying for a direction to the respondents to permit the petitioner to wear hijab (head – scarf) in the class room, since wearing it is a part of ‘essential religious practice’ of Islam.
  2. WP No. 2146 of 2022 praying to initiate enquiry against the Respondent 5 college and Respondent 6 i.e. Principal for violating instruction enumerated under Chapter 6 heading of “Important information” of Guidelines of PU Department for academic year of 2021-22 for maintaining uniform in the PU college, conduct enquiry against the Respondents for their Hostile approach towards the petitioners students and interfering in the administration of Respondent no 5 school and promoting their political agenda.
  3. WP Nos. 2880 of 2022, 3038 of 2022 & 4309 of 2022 challenges G.O. dated 05-02-2022 issued under section 133 read with sections 7(2) & (5) of the Karnataka Education Act, 1983 (hereafter ‘1983 Act’) provides that, the students should compulsorily adhere to the dress code/uniform as follows:

a. in government schools, as prescribed by the government;

b. in private schools, as prescribed by the school management;

c. in Pre–University colleges that come within the jurisdiction of the Department of the Pre–University Education, as prescribed by the College Development Committee or College Supervision Committee; and

d. wherever no dress code is prescribed, such attire that would accord with ‘equality & integrity’ and would not disrupt the ‘public order’.

4. WP No.3424 of 2022 prayed to permit Female Muslim students to sport Hijab provided they wear the stipulated school uniform also.

5. WP No.4338 of 2022 prayed that the CBI/NIA or such other investigating agency should make a thorough investigation in the nationwide agitation after the issuance of the GO to ascertain the involvement of radical organizations such as Popular Front of India, Students Islamic Organization of India, Campus Front of India and Jamaat-e-Islami; to hold and declare that wearing of hijab, burqa or such “other costumes by male or female Muslims and that sporting beard is not an integral part of essential religious practice of Islam” and therefore, prescription of dress code is permissible.

 Issues Framed

  1. Whether wearing hijab/head-scarf is a part of ‘essential religious practice’ in Islamic Faith protected under Article 25 of the Constitution?
  2. Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?
  3. Whether the Government Order dated 05-02-2022 apart from being incompetent is issued without application of mind and further is manifestly arbitrary and therefore, violates Articles 14 & 15 of the Constitution?
  4. Whether any case is made out in W.P.No.2146 of 2022 for issuance of a direction for initiating disciplinary enquiry against respondent 6 to 14 and for issuance of a Writ of Quo Warranto against respondent 15 & 16?

Court’s Observations

Issue 1 

What is an essential religious practice?

Indian Young Lawyers Association surveyed the development of law relating to essential religious practice and the extent of its constitutional patronage consistent with the long standing view. Ordinarily, a religious practice in order to be called an ‘essential religious practice’ should have the following indicia:

  • Not every activity associated with the religion is essential to such religion. Practice should be fundamental to religion and it should be from the time immemorial.
  • Foundation of the practice must precede the religion itself or should be co-founded at the origin of the religion.
  • Such practice must form the cornerstone of religion itself. If that practice is not observed or followed, it would result in the change of religion itself and,
  • Such practice must be binding nature of the religion itself and it must be compelling.

That a practice claimed to be essential to the religion has been carried on since time immemorial or is grounded in religious texts per se does not lend to it the constitutional protection unless it passes the test of essentiality as is adjudged by the Courts in their role as the guardians of the Constitution.

Which authoritative Commentary on Holy Quran was relied by Court?

‘The Holy Quran: Text, Translation and Commentary’ by Abdullah Yusuf Ali, (published by Goodword Books; 2019 reprint), there being a broad unanimity at the Bar as to its authenticity & reliability. The speculative and generalizing mind of this author views the verses of the scriptures in their proper perspective. 

Is Hijab a Quranic injunction and Islam specific?

Indian jurist Abdullah Yusuf Ali referring to sūra (xxxiii), verse 59, at footnote 3765 in his book states: “Jilbāb, plural Jalābib: an outer garment; a long gown covering the whole body, or a cloak covering the neck as bosom.”. In the footnote 3760 to Verse 53, he states: …In the wording, note that for Muslim women generally, no screen or hijab (Purdah) is mentioned, but only a veil to cover the bosom, and modesty in dress. The screen was a special feature of honor for the Prophet’s household, introduced about five or six years before his death… Added, in footnote 3767 to verse 59 of the same sura, he opines: This rule was not absolute: if for any reason it could not be observed, ‘God is Oft. Returning, Most Merciful.’…” Thus, there is sufficient intrinsic material within the scripture itself to support the view that wearing hijab has been only recommendatory, if at all it is.

The Court observed that whatever is stated in the above sūras, we say, is only directory, because of absence of prescription of penalty or penance for not wearing hijab, the linguistic structure of verses supports this view. This apparel at the most is a means to gain access to public places and not a religious end in itself. It was a measure of women enablement and not a figurative constraint. 

Tracing the history of Hijab

Sara Slininger from Centralia, Illinois in her research paper “VEILED WOMEN: HIJAB, RELIGION, AND CULTURAL PRACTICE” wrote

“Islam was not the first culture to practice veiling their women. Veiling practices started long before the Islamic prophet Muhammad was born. Societies like the Byzantines, Sassanids, and other cultures in Near and Middle East practiced veiling. There is even some evidence that indicates that two clans in southwestern Arabia practiced veiling in pre-Islamic times, the Banū Ismāʿīl and Banū Qaḥṭān. Veiling was a sign of a women’s social status within those societies. In Mesopotamia, the veil was a sign of a woman’s high status and respectability. Women wore the veil to distinguish Slininger themselves from slaves and unchaste women. In some ancient legal traditions, such as in Assyrian law, unchaste or unclean women, such as harlots and slaves, were prohibited from veiling themselves. If they were caught illegally veiling, they were liable to severe penalties. The practice of veiling spread throughout the ancient world the same way that many other ideas traveled from place to place during this time: invasion.”

Thus the Court observed wearing hijab was recommended as a measure of social security for women and to facilitate their safe access to public domain. At the most the practice of wearing this apparel may have something to do with culture but certainly not with religion. The Quran shows concern for the cases of ‘molestation of innocent women’ and therefore, it recommended wearing of this and other apparel as a measure of social security. Thus, it can be reasonably assumed that the practice of wearing hijab had a thick nexus to the socio-cultural conditions then prevalent in the region. The veil was a safe means for the women to leave the confines of their homes. Ali’s short but leading question is premised on this analysis. 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 courts.

It is not an obligatory overt act enjoined by Muslim religion that a girl studying in all girl section must wear head-covering. The essence of Muslim religion or Islam cannot be said to have been interfered with by directing petitioner not to wear head-scarf in the school.” These observations should strike the death knell to Writ Petition Nos.2146, 2347, 3038/2022 wherein the respondent college happens to be all-girl-institution (not co-education).

 Is wearing Hijab a matter of conscience?

Conscience is by its very nature subjective. Merely stating that wearing hijab is an overt act of conscience and therefore, asking them to remove hijab would offend conscience, would not be sufficient for treating it as a ground for granting relief. Freedom of conscience as already mentioned above, is in distinction to right to religion as was clarified by Dr. B.R.Ambedkar in the Constituent Assembly Debates. There is scope for the argument that the freedom of conscience and the right to religion are mutually exclusive. Even by overt act, in furtherance of conscience, the matter does not fall into the domain of right to religion and thus, the distinction is maintained. There is no evidence that the petitioners chose to wear their headscarf as a means of conveying any thought or belief on their part or as a means of symbolic expression..

The Court thus held In view of the above discussion, we are of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.”

Issue 2

Whether prescription of school uniform to the exclusion of Hijab violates Articles 14, 14, 19(1)(a) and 21?

The prescription of dress code for the students that too within the four walls of the class room as distinguished from rest of the school premises does not offend constitutionally protected category of rights, when they are ‘religion-neutral’ and ‘universally applicable’ to all the students. There shall be two categories of girl students viz., those who wear the uniform with hijab and those who do it without. That would establish a sense of ‘social-separateness’, which is not desirable. It also offends the feel of uniformity which the dress-code is designed to bring about amongst all the students regardless of their religion & faiths. As already mentioned above, the statutory scheme militates against sectarianism of every kind. Therefore, the accommodation which the petitioners seek cannot be said to be reasonable. The object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms. Youth is an impressionable period when identity and opinion begin to crystallize. Young students are able to readily grasp from their immediate environment, differentiating lines of race, region, religion, language, caste, place of birth, etc. The aim of the regulation is to create a ‘safe space’ where such divisive lines should have no place and the ideals of egalitarianism should be readily apparent to all students alike. Adherence to dress code is a mandatory for students.

Court’s Observation on petitioner’s citing foreign decisions and policies

Malaysia being a theistic Nation has Islam as the State religion and the court in its wisdom treated wearing hijab as being a part of religious practice. We have a wealth of material with which a view in respectful variance is formed. Those foreign decisions cited by the other side of spectrum in opposing hijab argument, for the same reasons do not come to much assistance. In several countries, wearing of burqa or hijab is prohibited, is of no assistance to us. Noble thoughts coming from whichever direction are most welcome. Foreign decisions also throw light on the issues debated, cannot be disputed. However, courts have to adjudge the causes brought before them essentially in accordance with native law.

The Court thus held “In view of the above, we are of the considered opinion that the prescription of school uniform is only a reasonable restriction constitutionally permissible which the students cannot object to.” 

Issue 3

Validity of Government Order

The subject matter of the Government Order is the prescription of school uniform. Power to prescribe, avails in the scheme of 1983 Act and the Rules promulgated thereunder. Section 133(2) of the Act which is broadly worded empowers the government to issue any directions to give effect to the purposes of the Act or to any provision of the Act or to any Rule made thereunder. This is a wide conferment of power which obviously includes the authority to prescribe school dress code. It is more so because Rule 11 of 1995 Curricula Rules itself provides for the prescription of school uniform and its modalities. The Government Order can be construed as the one issued to give effect to this rule itself. Such an order needs to be construed in the light of the said rule and the 2014 Circular, since there exists a kinship inter se. Therefore, the question as to competence of the government to issue order of the kind is answered in the affirmative and thus the question of un-sustainability of some of the reasons on which the said Order is constructed, pales into insignificance.

Court’s observation on Impugned Order

Certain terms used in a Government Order such as ‘public order’, etc., cannot be construed as the ones employed in the Constitution or Statutes. There is a sea of difference in the textual structuring of legislation and in promulgating a statutory order as the one at hands. The draftsmen of the former are ascribed of due diligence & seriousness in the employment of terminology which the government officers at times lack whilst textually framing the statutory policies. Nowadays, courts do often come across several Government Orders and Circulars which have lavish terminologies, at times lending weight to the challenge. The words used in Government Orders have to be construed in the generality of their text and with common sense and with a measure of grace to their linguistic pitfalls. The text & context of the Act under which such orders are issued also figure in the mind. The impugned order could have been well drafted, is true. ‘There is scope for improvement even in heaven’ said Oscar Wilde.

The Court thus held In view of the above, we are of the considered opinion that the government has power to issue the impugned Order dated 05.2.2022 and that no case is made out for its invalidation.”

Issue 4

What the Chief Architect of our Constitution observed more than half a century ago about the purdah practice equally applies to wearing of hijab there is a lot of scope for the argument that insistence on wearing of purdah, veil, or headgear in any community may hinder the process of emancipation of woman in general and Muslim woman in particular. That militates against our constitutional spirit of ‘equal opportunity’ of ‘public participation’ and ‘positive secularism’. Prescription of school dress code to the exclusion of hijab, bhagwa, or any other apparel symbolic of religion can be a step forward in the direction of emancipation and more particularly, to the access to education. The petition is apparently ill-drafted and pleadings lack cogency and coherence that are required for considering the serious prayers of this kind.

Court’s observation on the writ of Quo Warranto

For seeking a Writ of this nature, one has to demonstrate that the post or office which the person concerned holds is a public post or a public office. In our considered view, the respondent Nos.15 & 16 do not hold any such position in the respondent-school. Their placement in the College Betterment (Development) Committee does not fill the public character required as a pre-condition for the issuance of Writ of Quo Warranto.

The Court thus held In view of the above, we are of the considered opinion that no case is made out in W.P. No.2146/2022 for issuance of a direction for initiating disciplinary enquiry against respondent Nos. 6 to 14. The prayer for issuance of Writ of Quo Warranto against respondent Nos. 15 and 16 is rejected being not maintainable.”

Court’s Concluding Remark

We are also impressed that even Muslims participate in the festivals that are celebrated in the ‘ashta mutt sampradāya’, (Udupi being the place where eight Mutts are situated). We are dismayed as to how all of a sudden that too in the middle of the academic term the issue of hijab is generated and blown out of proportion by the powers that be. The way, hijab imbroglio unfolded gives scope for the argument that some ‘unseen hands’ are at work to engineer social unrest and disharmony.[Resham v. State of Karnataka, 2022 SCC OnLine Kar 315, decided on 15-03-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Hot Off The PressNews

Karnataka High Court formulated a few questions:

  1. Whether wearing Hijab is a part of essential religious practise in Islamic faith protected under Article 25 of the Constitution?

  2. Whether the prescription of the School Uniform is not legally permissible as being violative of the petitioner’s fundamental rights inter alia guaranteed under Article 19(1)(a) and Article 21 i.e. Right to Privacy of the Constitution?

  3. Whether the G.O. apart from being incompetent is issued without application of mind and is further manifestly arbitrary and therefore violates Articles 14 and 15 of the Constitution?

  4. Whether any case is made out in WP 2146 of 2022 sought the issuance of direction for initiating disciplinary inquiry against respondents 6 to 14 and for issuance of quo warranto against respondents 15 and 16?


Answers


  • Wearing of Hijab by Muslim Women does not form a part of essential religious practise in Islamic faith.

  • Prescription of the School Uniform is only a reasonable restriction constitutionally permissible to which the students cannot object to.

  • Government has power to issue the impugned Order dated 05.2.2022 and that no case is made out for its invalidation.

  • No case is made out in WP No.2146/2022 for issuance of a direction for initiating disciplinary enquiry against respondents 6 to 14. The prayer for issuance of Writ of Quo Warranto against respondents 15 and 16 is rejected being not maintainable.

[Resham v. State of Karnataka, WP No. 2347 of 2022, decided on 15-3-2022]


Hijab Case | When Karnataka High Court temporarily restrained students from wearing hijab, religious flags, saffron shawls, etc.: Read Court’s interim order || A Recap

Hijab Case | Karnataka High Court to pronounce Judgment today | Whether wearing of Hijab an essential religious practise of Islam?

Case BriefsForeign Courts

As the proceedings in #hijabrow continue in Karnataka High Court, we bring you another interesting decision from Foreign Court, wherein the Federal Court of Malaysia laid down some very pertinent observations.


In the year 2006, the Federal Court of Putrajaya deciphered whether the wearing of Serban/turban was essential practice for Muslim boys.

The School Regulations 1997 stipulated that the uniform for male pupils comprised of blue-black long pants, a white short sleeved shirt, white rubber shoes and socks. Regulation 3(f)(v) provided that black or blue songkok was allowed to be worn. However, in Regulation 3(i)(i) all pupils were prohibited from wearing “jubah, turban (serban), topi, ketayap dan purdah.’

In this case from Malaysia, the minors were advised not to wear the turban so as to comply with the School Regulations 1997.

Since the minors continued to refuse to comply with the regulations, they were expelled from the school. On Challenging the said decision, the High Court found that the School Regulations 1997 were unconstitutional but the same was reversed by the Court of Appeal.

Federal Court considered the question, whether the School Regulations 1997, in so far as it prohibited the wearing of turban by the students of the school as part of the school uniform during school hours was constitutional or not?

The Court of Appeal decided whether the right to wear a “Serban” was an integral part of the religion of Islam. To answer this Court said that “there was not a shred of evidence before the learned judge confirming that the wearing of a serban is mandatory in Islam and is, therefore, an integral part of Islam.”

In applying “the integral part of the religion” test Court of Appeal referred to certain decisions from the Indian Supreme Court i.e. Commissioner, Hindu Religious Endowments, Madras, v. Sri Lakshmindra Thirtha Swamiar, AIR 1954 SC 282, Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853, Javed v. State of Haryana, (2003) 8 SCC 369 and Commissioner of Police v. Acharya Jagadishwaranada Avadhuta [2004] 2 LRI 39.

Proceeding further, the Court added that, the Court of Appeal was criticised for relying on Indian authorities, especially because of the differences between the provisions of the Indian Constitution and the Federal Constitution, in particular, the preamble to the Indian Constitution declares India to be a secular state and no religion of the state is provided. It is also said, who is to decide whether a particular practice is an integral part of a religion or not?

Federal Court asserted that it was only concerned with the word “practice his religion”.

“…in a country with many religions being practised, to allow a regulation or law to be declared unconstitutional just because someone claims that it prohibits his “religious practice” no matter how trivial it is and even though in a very limited way, would lead to chaos.”

The approach that the Court adopted to was that:

First, there must be a religion.

Secondly, there must be a practice.

Thirdly, the practice is a practice of that religion.

Once the above-said is proved, the Court should then consider the importance of the practice in relation to religion. To add to this, Court elaborated stating that if the practice is of a compulsory nature or “an integral part” of the religion, the Court should give more weight to it. If it is not, the court, depending on the degree of its importance, may give lesser weight to it.

The Court also stated that A total prohibition certainly should be viewed more seriously than a partial or temporary prohibition.”

“Islam is not about turban and beard.”

The Court expressed that, according to Shari’ah the obligation to perform even a mandatory practice like the five daily prayers is only mandatory on Muslims who have attained the age of majority, usually taken to be 15 years of age for boys. It could be seen that with regard to practices that are mandatory, the Shari’ah treats adults and children differently, like any law, for that matter.

In this case, the Court noted that the Al-Quran makes no mention about the wearing of turban and also there had been no “fatwa” in Malaysia on the wearing of the turban.

Bench expressed that,

“I accept that the Prophet (P.B.U.H.) wore turban. But he also rode a camel, built his house and mosque with clay walls and roof of leaves of date palms and brushed his teeth with the twig of a plant. Does that make the riding a camel a more pious deed than travelling in an aeroplane? Is it preferable to build houses and mosques using the same materials used by the Prophet (P.B.U.H.) and the same architecture adopted by him during his time? In Malaysia, Muslim houses and mosques would leak when it rains! There would be no Blue Mosque or Taj Mahal, not even the present Masjid Al-Haram and Masjid Al-Nabawi, Alhambra or Putrajaya that the Muslims can be proud of! Again, is it more Islamic to brush one’s teeth with a twig than using a modern tooth brush with tooth paste and water to wash in the privacy of one’s bathroom?” 

Talking about prohibition, the Court asserted that the students, primary school students of the school, are not allowed to wear the turban as part of the school uniform, ie, during school hours. They are not prevented from wearing the turban at other times.

Even in school, certainly, they would not be prevented from wearing the turban when they perform, say, their “Zohor” prayer in the school “surau” (prayer room). But, if they join the “Boy Scout”, it is only natural if they are required to wear the Scouts uniform during its activities. Or, when they play football, naturally they would be required to wear shorts and T- shirts. Should they be allowed to wear “jubah” when playing football because it was the practice of the Prophet (P.B.U.H.) to wear jubah?

Court even suggested changing the school in case there was an issue with the dress code, for e.g., to a “pondok” school that would allow them to wear the turban.

Interestingly, moving forward the Court detailed out by stating that the appellants were in their formative years and when they should be attending school, studying and playing, obeying the school discipline, etc. but they were made to spend those years being different from other students, disregard the school regulations, disobey the teachers, rebel against the authorities.

After placing down all the above observations, the Court held that the School Regulations 1997 in so far as it prohibited the students from wearing a turban as part of the school uniform during school hours did not contravene the provision of Article 11(1) of the Federal Constitution and it was not unconstitutional.


Read other decisions that were on similar lines


To Wear or Not to Wear? Precedents on dilemma of wearing ‘Headscarf’ from the Kerala High Court

Is the Bhinder case relevant in Hijab ban row? Canadian SC’s decision in Rule conflicting with religious tenet of an employee

https://www.scconline.com/blog/post/2022/02/18/what-bombay-high-court-held-when-a-muslim-girl-raised-the-issue-that-asking-her-not-to-wear-a-headscarf-in-school-violates-her-fundamental-right-under-article-25-of-the-constitution/

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit dismissed the petition being devoid of merits.

 The facts of the case are such that the parties are Sunni Muslims who contracted marriage in March 1991 and the marriage was a short lived one as the wife complained of dowry harassment and the petitioner husband uttered talaq and paid 5000 to her as mehr amount and additional 900 as her maintenance amount during iddat. The ex wife filed a civil suit for maintenance on grounds that the ex husband got married and has a child too wherein he was acquitted. A suit was thus instituted by the wife where the decree was given in favour for which she sought enforcement by filing an execution petition wherein the petitioner husband was sent to civil prison due to non payment but was later released. The petitioner husband then filed the instant writ petition after his interim application under Order XXI Rule 37 Civil Procedure Code, 1908 i.e. CPC seeking determination of his financial capacity got rejected.

Issues:

  1. Whether a Muslim is duty bound to make provision for his ex wife beyond iddat despite paying paltry Mehr if she remains un-remarried and is incapable of maintaining herself?
  • Contention: In Islam, Marriage is a civil contract.

The Court observed that marriage in Islam is not a sacrament unlike a Hindu marriage as it crowns the parties with status like husband, wife, in-laws, etc; if children are born, they earn the promotional status of father and mother and of grandparents and even when marriage is dissolved only the spousal tie is torn and the status comes to an end however the blood of divorced spouses flows in the veins of their children and grandsire, and demise of a spouse renders the other a widow/widower and succession also gets effected. Hence all the above shows that marriages even in Islam begins with the contract but graduates to the status as in any other community and thus gives rise to certain justifiable obligations and they are ex contractu.

Thus, even on dissolution by divorce will not annihilate all the duties and obligations of parties by lock, stock & barrel in law and new obligations may arise including providing sustenance to the ex wife who is destituted by divorce.

  • The Holy Quran also suggests to the fact that a pious Muslim owes a moral/religious duty to provide subsistence to his destitute ex wife:

“When you divorce women, and they (are  about to) fulfill the term of their (iddat), either take them back on equitable terms or set them free on equitable terms, but do not take back to injure them (or) to take undue advantage, if anyone does that, he wrongs his soul…”(Surah Al Bakhra Aiyat No.231);

“There is no sin on you, if you divorce women while you have not touched (had sexual relation with) them nor appointed them unto their Mehr, but bestowed on them (as suitable gift) the rich according to his means and the poor according to his means, a gift reasonable amount is a duty on  the doers of good” (Surah Al Bakhra Aiyat No.236). 

  • The Court relied on Danial Latifi v. UOI, AIR 2001 SC 3958, observed that in Islamic jurisprudence, ordinarily, the right of an ex-wife to maintenance does not extend beyond iddat however this norm has to be subject to the rider that the amount paid to the ex-wife, be it in the form of mehr or be it a  sum quantified on the basis of mehr, or otherwise, is not an  inadequate or illusory sum; it is a matter of common  knowledge that more often than not, mehr is fixed  inadequately, bride-side lacking equal bargaining power inter  alia because of economic & gender-related factors; this is not  to say that the inadequacy of mehr would affect the validity of nikah, that being altogether a different matter. It was further observed that for how long the right to maintenance enures to a  divorced muslim wife, largely is no longer res integra; subject  to all just exceptions, the duty of a muslim to provide  sustenance to his ex-wife is co-extensive with her requirement, the yardstick being the life essentials and not  the luxury. Hence a muslim is duty bound to make a reasonable & fair provision for the future of his divorced wife, and this duty, as of necessity, extends for a period beyond iddat.
  • The Court relied on Keshvananda Bharati v. State of Kerala, AIR 1973 SC 1461 and observed that if an illusory compensation for the public acquisition of private property is ‘no compensation’, then the reason & justice tell us that an illusory mehr cannot be the basis for the quantification of the amount of maintenance nor for limiting its duration to iddat. The analogy of “illusory compensation” is logically invocable since the payment of amount by the husband as mehr on talaq, by its very nature has compensatory elements. The tokenistic amount of Rs.5,000/- paid by the husband to the ex-wife as mehr or its quantification on  the basis of mehr, is militantly unjust and illusory; the  petitioner has paid another paltry sum of Rs.900/- to the  respondent ex-wife as maintenance during iddat i.e., for a  period of about three months, only celebrates the inadequacy & illusoriness; this amount will not be sufficient to buy a cup  of popcorn a day from the street carter too.
  1. Whether a decree for maintenance like any other money decree can be resisted on the ground of lack of financial capacity of the judgment debtor?

The Court observed that the decree in question is not a money decree and the decree holder is not a ‘money lender’ instead it is a hapless divorced woman who has secured a decree for her maintenance after years of struggle; she is relentlessly battling for its enforcement; it is a distinct case involving the jural correlatives resting on the shoulders of ex-spouses by virtue of Talaq. Hence, the maintenance jurisprudence as developed by legislative & judicial process in this country shows that this right to sustenance is not founded on contract; courts have repelled the argument of financial incapacity while awarding maintenance when the husband has an able body; therefore, the pecuniary incapacity of the judgment debtor that ordinarily avails as a ground for resisting the execution of a money decree does not come to the rescue of the petitioner.

  1. Whether a Muslim contracting another marriage and begetting children from it can resist execution of the maintenance decree obtained by his ex wife, on that ground per se?

The Court observed that a Muslim hurriedly contracting another marriage after pronouncing talaq upon his first wife, cannot be heard to say that he has to maintain the new spouse and the child begotten from her as a ground for not discharging the maintenance decree; he ought to have known his responsibility towards the ex-wife who does not have anything to fall back upon; the said responsibility arose from his own act of talaq and prior to espousing another woman; the responsibility & duty owed by a person to his ex-wife are not destroyed by his contracting another marriage.

The Court held this Writ Petition being devoid of merits, is liable to be dismissed and accordingly, it is, with a cost of Rs.25,000/-; the learned judge of Court below is requested to accomplish the execution on a war footing and report compliance to the Registrar General of this Court within three months.”

[Ezazur Rehman v. Saira Banu, Writ Petition No. 3002 of 2015, decided 08-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


For Petitioners: Mr. K N Haridasan Nambiar

For Respondents: Mrs. Rashmi C

Case BriefsHigh Courts

Allahabad High Court: J.J. Munir, J., observed that, in matrimonial matters, it is disconcerting to note that parties change his/her faith to the others just for the purpose of matrimony and nothing more.

Detenue Pooja, in compliance with the rule nisi issued by the Court on 24-09-2020, was produced before the Court.

Court ascertained the detenue’s stand in the instant matter, which is recorded verbatim:

Q. Aapka nam?
A. Pooja alias Zoya.
Q. Aapki aayu?
A. 19 saal.
Q. Aapke pita ji ka nam?
A. Pramod.
Q. Aapne shadi ki hai?
A. Haa.
Q. Kab ki hai?
A. 5.8.2020 ko.
Q Aapke pati ka nam?
A. Shahwej.
Q. Aap kisake sath jana chahti hai?

A. Apane pati ke sath.

Bench noted that Pooja had forsaken her native religion which is Hinduism and converted to Islam in order to marry Shavez.

Though under the Constitution, a citizen has the right to profess practise or propagate the religion of his/her choice but it is disconcerting that in matrimonial matters one party should change his/her faith to the others just for the of matrimony and nothing more.

Bench stated that “If two citizens of India professing different religions wish to marry, it is open to them to do so under the Special Marriage Act, 1954, which is one of the earliest endeavours towards a Uniform Civil Code.”

Detenue by her statement indicated her clear choice to stay with her husband with whom she claimed to have married and since she is a major she is free to do so.

In view of the above, Court stated that the rule nisi is made absolute. Hence, detenue is ordered to be set at liberty and she is free to stay with whomsoever she wants and go wherever she likes.

Therefore, petition was allowed.[Pooja v. State of U.P., Habeas Corpus WP No. 446 of 2020, decided on 8-10-2020]

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Shashi Kant Gupta and Ajit Kumar, JJ., while addressing a Public Interest Litigation held that,

Azan may be an essential and integral part of Islam but recitation of Azan through loud­ speakers or other sound amplifying devices cannot be said to be an integral part of the religion, warranting protection of the fundamental right enshrined under Article 25 of the Constitution of India.”

Background

Member of Parliament (Lok Sabha), Afzal Ansari wrote a letter stating that fundamental right to religion of people at Ghazipur may be protected and State Administration may be directed to permit the recitation of Azan by only one person “Muezzin” from respective mosques of District Ghazipur, since it does not violate any of the directives issued in view of COVID-19 containment.

Senior Advocate of Supreme Court of India, Salman Khurshid also approached Allahabad High Court through Advocate Syed Mohd, Fazal to seek permission of recitation of Azan for the Muslims at Farrukhabad, Hathras, Ghazipur as Azan recitation is an integral part of Islam.

With the prayer of similar relief, Senior Advocate S. Wasim A. Qadri also wrote a letter.

In view of the above, a Public Interest Litigation was filed by Afzal Ansari .

Relief sought was that,

Muslims in the Districts Ghazipur and Farrukhabad, may be permitted to recite Azan through “Muezzin”, by using sound amplifying devices and the restrictions imposed by the administration are wholly arbitrary and unconstitutional since they do not, in any way, violate the guidelines issued for the containment of the pandemic.

Further it was submitted that pronouncement of Azan is not a congressional practice but is simply an act of recitation by a single individual which in no manner violates any of the conditions of lockdown.

Petitioner also added that caretaker of the Mosque is usually responsible for the recitation of Azan who resides in the mosque, in other cases person assigned the duty of recitation Azan is the closes available person, in both the stated cases, no violation of lockdown norms would be observed.

Also ban on Azan through sound amplifying devices is a violation of fundamental right under Article 25 of Constitution of India

Azan is integral to religion and in no way undermines the society’s collective response to the pandemic.

-Senior Advocate, Salman Khurshid

Additional Advocate General while appearing on behalf of the State, supported the Counter Affidavit filed by the Government, wherein it was submitted that, Azan is a call for congregation to offer prayers at the Mosque which clearly is a violation of COVID-19 guidelines.

A meeting was also convened by District Magistrate, Ghazipur on 24th march, 2020 which was attended by several religious leaders wherein it was decided that no religious activities will be conducted during the period of lockdown at any public place of worship and no loudspeakers/amplifiers would be used for the said purpose.

“In the new guidelines issued by Government in view of lockdown, it was stated that all religious places/places of worship shall be closed for public. Religious congregation strictly prohibited.”

Further it was submitted that,

During the period of lockdown with cooperation of religious groups no loud speakers/amplifiers have been used during the festivals like Navratri, Ram Navmi, Hanuman Jayanti and Parasu Ram Jayanti. People of different religions have been following the guidelines and no religious activities are being carried out at any religious place of worship or public place, and no loudspeakers have been used since 24.03.2020

Additional Advocate General stated that right contained under Article 25 of the Constitution of India is subject to public order, morality, health and Part III of the Constitution of India. Rule 5 of The Noise Pollution (Regulation and Control) Rules, 2000 also states that a loud speaker or a public address system shall not be used except after obtaining written permission from the authority.

Bench Analysis & Decision

While referred to the decision of Calcutta High Court in Moulana Mufti Syed Mohammed Noorur Rehman Barkati v. State of W.B.,wherein it was held that,

use of microphone and loud­speakers were not an essential and an integral part of Azan.

There is catena of judicial decisions which recognizes the right to live in freedom from noise pollution as a fundamental right protected by Article 21 of the Constitution of India. Noise pollution beyond permissible limit is hazardous which violates the fundamental rights of citizens.

In the Supreme Court decision of Church of God (Full Gospel) in India v. K.K.R. Majestic, (2000) 7 SCC 282, it was held that

“No religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums.”

Court also observed the fact that petitioner’s counsel could not explain why the Azan could not be offered without the use of amplifying devices.

There is no such religious order which prescribes that Azan can be recited only through loud­speakers or by any amplifiers. Azan is certainly an essential and integral part of Islam but use of microphone and loud­speakers is not an essential and an integral part thereof.

Thus, Court for the above also stated that Right to religion by no stretch of imagination, ought to be practised, professed and propagated saying that microphone has become an essential part of the religion.

Azan may be an essential and integral part of Islam but recitation of Azan through loud­speakers or other sound amplifying devices cannot be said to be an integral part of the religion warranting protection of the fundamental right enshrined under Article 25 of the Constitution of India, which is even otherwise subject to public order, morality or health and to other provisions of part III of the Constitution of India.

Another point of significance to be noted is that, until and unless there is a license/permission from the authorities concerned under the Noise Pollution Rules, under no circumstances, Azan can be recited through any sound amplifying devices.

Hence it is ruled that while the right to offer Azan by voice, without the use of sound amplifying devices is a right protected under Article 25 of the Constitution. However, the right to recite Azan though sound amplifying devices is not protected under Article 25, since it is not an integral part of Islam.

Further, the Court stated that,

Azan can be recited by Muezzin from minarets of the Mosques by human voice without using any amplifying device and the administration is directed not to cause hindrance in the same on the pretext of the Guidelines to contain the pandemic­ Covid­-19.

With the above observations, PIL stands disposed of. [Afzal Ansari v. State of U.P., 2020 SCC OnLine All 592 , decided on 15-05-2020]