September 30, 2022

Is it legal to not allowed another sect’s muslims from praying in a mosque?

The tussle between sects in muslims is an old problem. The disputes between shia and suuni; deobandi and brailwi; wahabi and sunni; sunni and qadiani; over the pray in a mosque, are coming before the courts from a long time.

A dispute also arose in the case of ‘Mohd. Wasi and anr. V. Bacchan Sahib & other’ (1954)’. In this case, the dispute was regarding to a mosque, in which both shia and sunni used to pray. Despite the long cohabitation, two sunni persons brought a suit claiming it on behalf of the entire sunni community of the town, that Shia should not be allowed to do rituals of muharram in mosque and mosque is only for the purpose of pray only.

However, some persons from sunni community applied to the court that they do not wish to be associated with the plaintiff and nor to represent them and therefore impleaded as defendants.

Bone of Contention

Plaintiffs

As we said earlier, the dispute was regarding a mosque. The plaintiffs’ contention was that it was constructed by a Sunni Musalman, that the Azan and the prayers had all along been said in the Sunni form and that the Shia Musalmans had nothing to do with this mosque, nor did they say their prayers in it, but with the aid of the police the Shia Musalmans had started forcibly decorating Tabut and Gahwara -inside the mosque after doing Matam etc., that according to the belief of the Sunni Musalmans the said action was “against Shariyat and it insults, debases and injures their feelings”.

Defendants

Defendants’ group, who applied earlier to be defendant from plaintiffs, supported the Shia defendants and pleaded that they consider Tazias and Taziadari as part of Islamic religion, that they join and participate in the Gahwara procession and they have no objection to the said acts being done as before.

According to them the plaintiffs were a troublesome group who believed in creating disputes between different communities and they realise subscription for the purpose of litigation and misappropriate a part of it.

The Shia defendants denied that the mosque had been constructed by a Sunni. They claimed that they had been saying their prayers in the said mosque and that the decoration of Gahwara and Matam etc., had been performed in the mosque from a long time and the procession was taken out from there and it was recently that the plaintiffs had started creating trouble.

That the mosque was originally constructed by one Ramzani Halwai who had built an Imambara and Kachcha Idgah and he used to do Taziadari in honour of Hazrat Imam Husain. The Rajas of Mahmudabad (who admittedly belong to the Shia sect) had, it was said rebuilt the mosque when it had fallen down and had been responsible for its upkeep and maintenance.

The court’s observation and decision

The court said that, they shall assume that the primary object of dedication of a mosque is the saying of prayers to God and the entire Muslim public are the beneficiaries for that purpose.

The court then referred several authorities, which are mentioned below-

In ‘Akbarally A. Adamji v. Mohomedally’, AIR 1932 Bom 356 (B), Tyabji J. observed at page 362,

“it has been laid down as a principle in a decision of great authority that a mosque must be a mosque for all, that it must be a building dedicated to God and not a building dedicated to God with a reservation that it should be used only by persons holding particular views of the ritual; that it is a place where all Mohomedana are entitled to go and perform their devotions as of right according to their conscience:”

A Hanifi Muslim says the word “amen” at the end of his prayer silently or under his breath while Wahabis say it loudly. A Wahabi Muslim for saying “amen” in a loud voice was prosecuted under Sections 79 and 296, Penal Code (1860). He was convicted by the lower court. There was an appeal to the High Court. The case was referred to a Full Bench and the Chief Justice and three other learned Judges sent the case back for a retrial to find out whether the accused had caused any disturbance at the time of saying of the prayers. See –‘Queen-Empress v. Ramzan’, 7 All 461 (E).

 Mahmood J. wrote a dissentient judgment in which he said:

“As to the merits of the present case itself upon this particular point, I have to observe that a Muhammedan mosque is in many respects different, so far as I know, from an ordinary Christian church; because it is not only a place for divine worship, but also intended for religious and moral teaching and discussion, and it is not unusual that in places where the Muhammadan community is still flourishing, a library and a school form part of the mosque. I cannot, therefore, hold that to carry on religious discussion in a mosque, even though the majority of the people present at the time do not approve of such discussion constitutes a criminal offence.”

In — ‘Muthala Kandi v. Pulli Veetil Abu Baker’, 17 Ind Cas 386 (Mad) (J), it was held by a Bench of the Madras High Court that every Muhammadan worshipper has the right both to offer prayers and to recite the Koran as a part of his right of worship in a mosque but he cannot claim the right to use the mosque for the purpose of collecting subscriptions or distributing sweetmeats.

Court’s decision

The court said that, in a country like India, where people are free to follow their own faith, according to their own belief, the policy of live and let live must govern the relationship between followers of various religions or sects, so long as it does not conflict against the rules of public morality or decency. It is not open to a member of a particular sect to claim that the others should not follow their faith according to their belief because it offends against his susceptibilities.

The court finally decided the matter while laying down certain points,

(1) a Mosque is dedicated for the purpose that any Muslim belonging to any sect can go and say prayers therein;

(2) it cannot be reserved for Muslims of any particular denomination or sect;

(3) no one can claim to have the form of congregational prayer usually said in a mosque altered to suit him;

(4) even though the congregational prayers are said in a mosque in a particular form any Muslim belonging to any other sect can go into a mosque and say his prayers at the back of the congregation in the manner followed by him so long as he does not do anything ‘mala fide’ to disturb the others;

(5) the object of the dedication can neither be altered nor the beneficiaries limited or changed; and

(6) a Muslim will have a cause of action if he is deprived of his right to say prayers in a mosque or is prevented from doing so.”

The court also dismissed the suit of plaintiffs with costs.

Reference

Mohd. Wasi And Anr. vs Bachchan Sahib: AIR 1955 All 68