New Delhi: The Telangana High Court has affirmed the right of women members of Akhbari sect of Shia Muslims to perform majlis, jashans and other religious prayers in the Ibadat Khana (house of worship) of Darulshifa in Hyderabad.
The order was passed by Justice Nagesh Bheemapaka on 25 July. The court noted that in this case, women of the Akhbari sect of Shia Muslims are not allowed to perform majlis, jashans and other religious prayers, whereas women of the Usuli sect of the same community are allowed.
This, the judge said, was “clear discrimination”.
The court was hearing a petition filed by the Anjuman-e-Alavi Shia Imamia Ithna Ashari Akhbari Registered Society, represented by its secretary Asma Fatima. The petition asserted that not permitting women members of the Akhbhari sect of Shia Muslims to conduct religious prayers in the Ibadat Khana of Darulshifa violates Articles 14 (equality before the law) and 25 (freedom of conscience and free profession, practice and propagation of religion) of the Constitution of India.
The petition was filed against the Telangana Minorities Welfare Department, the Telangana State Waqf Board, and the Mutawalli Committee of Ibadat Khana Hussaini, Darulshifa.
The court had, in an interim order passed in December last year, allowed women members of the Akhbari sect of Shia Muslims to conduct majlis, jashans and other religious prayers in the Ibadat Khana.
The court has now affirmed this interim order.
What was the case about and what has the court said now? ThePrint explains.
What the petitioners said
The petitioner society had submitted that even Shia Muslim women are entitled to perform religious prayers in the Ibadat Khana. This, it said, was allowed through proceedings of the Waqf board in June 2007.
The 2007 proceedings were part of the interim order passed in December last year. These proceedings, from the chief executive officer (CEO) of the AP State Waqf Board, accorded permission to Moulana Syed Waheeduddin Hyder Jaffery Akhbari, secretary of Anjuman-e-Alavi, to have women members of the Shia community perform Majlis-E-Shahadat in the Ibadat Khana of Darulshifa.
The petitioner society’s lawyer told the court that the respondents’ actions denying access to women of the Akhbari sect go against the 2007 proceedings of the Waqf Board, and amount to discrimination.
The petitioner society claimed that it had submitted several representations to the Telangana State Waqf Board to permit Shia Muslim women to perform majlis, jashans and other religious prayers, but so far, no action had been taken by them. They also approached the police, who “became mute spectators”, the order dated 25 July said.
The petitioner further told the court that in January this year, a combined function was held in the Ibadat Khana, and men and women belonging to the Usuli sect were seen mingling in the men’s hall, while Muslim women belonging to the Shia Akhbari sect were prohibited from conducting majlis, jashans and other prayers in the same area of the Ibadat Khana.
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‘Decision of religious elders’
On the other hand, the court noted in its December interim order that the lawyer for the Waqf Board had failed to point out any verse from the Quran that denied entry to women of a particular sect into prayer halls.
“However, it is the sentiment, convention and the decision of the religious elders which have to be followed and respected by the individuals / societies who practice Islam and they cannot claim / agitate as a matter of right, emphasizes the learned counsel,” the court noted in its interim order passed in December last year.
In its latest order dated 25 July, the court noted that the Waqf Board told the court that Ibadat Khana Hussaini absolutely belongs to the Shia community which has two sects – Usuli and Akhbari. It further explained that the Usuli sect has to perform namaz, and give lectures in the madrasa, whereas the Akhbari sect has to perform prayers, majlis and jashans.
The court, in its latest order, also took note of submissions made by the Mutawalli committee, which said that after the interim order was made, members of the petitioner society were creating nuisance in the vicinity of Ibadat Khana, disturbing prayers by other members, and degrading the sanctity of the Waqf institution.
The committee’s lawyer further contended that being a society, the petitioners have no locus standi to file the writ petition. The committee also said that the issue of Akhbari women not being allowed to perform majlis, jashans and other prayers in the Ibadat Khana had also been pending before the Waqf Tribunal, as per the Waqf Act, in Hyderabad since 2021.
What the interim order said
In its interim order, the court asserted that when the Waqf Board permitted Shia Muslim women to enter prayer halls through their decision in June 2007, “it is not known why they have been prohibiting Akhbari sect of the same community to enter into Ibadat Khana”.
It then cited the Supreme Court’s 2019 judgment in the Sabarimala case, asserting that the Supreme Court has held that Article 25 confers on every individual in society, without distinction of any kind whatsoever, freedom of conscience, and freedom to profess, practise and propagate religion.
The order also noted that the judge went through the Telugu version of the Quran, and noted that “it is clear, nowhere, the Almighty prohibited women from entering into prayer halls to offer their prayers.”
It said in its December order that this “manifest clear discrimination on the part of the respondents”, and observed that the action of the respondents amounted to violation of the fundamental rights under Articles 14 and 25 of the Constitution.
“Therefore, there shall be an interim direction to the respondents to forthwith permit the women members of the Akhbari sect of Shia Muslim for conducting Majlis, Jashans, and other religious prayers in the Ibadat Khana situated in the subject premises,” the court observed.
Why the court affirmed the right
Affirming the interim order, the court now noted that the Waqf Board has also categorically stated that Ibadat Khana Hussaini absolutely belongs to the Shia community, and the said Ibadat Khana is meant for both Akhbari and Usuli sects, including Shia women.
“[T]hey (the Waqf Board) have strictly instructed the then Secretary Sri Syed Waheeduddin Hyderi Jaffery, Shia Imamia Ithna on 15.06.2007 to permit women members of Shia community to perform Majalis-e-Shahadath…in Ibadathkhana Hussaini Darusshifa, Hyderabad,” the court observed.
As for the matter being pending before the tribunal, the court also asserted that even though alternative remedy is available, the court can come to the rescue of a party, who complains of violation of his or her fundamental rights.
It, therefore, allowed the petition, and affirmed its interim order allowing Akhbari Shia Muslim women to perform religious prayers in the Ibadat Khana.
(Edited by Radifah Kabir)
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