Gyanvapi case | Varanasi court says Hindu petitioners’ plea maintainable

District judge A.K. Vishvesha ruled that the Hindu ‘plaintiffs will have right to prove their averments by cogent evidence’, as the next hearing is slated for September 22

Hindu women plaintiffs accompanied by their advocates on their way to court for the hearing of the Gyanvapi mosque case, in Varanasi. File | Photo Credit: PTI

A Varanasi district court on September 12 dismissed an application filed by the Anjuman Intezamia Masjid Committee challenging the maintainability of the suit filed by five Hindu women seeking the right to worship Hindu deities within the Gyanvapi mosque premises all-year round.

District judge A.K. Vishvesha ruled that neither the Places of Worship Act, 1991, nor the Waqf Act, 1995, nor the U.P. Shri Kashi Vishwanath Temple Act, 1983 bar the suit and that the “plaintiffs will have right to prove their averments by cogent evidence”, as the next hearing is slated for September 22.

The suit, filed by Rakhi Singh and four other women, claimed that Hindus had been worshipping Maa Shringar Gauri, Lord Ganesha and other visible and invisible deities daily at the said property till as recently as 1993, after which the Uttar Pradesh government restricted the worship to one day a year. 

Based on this averment of the plaintiffs in their suit, the court rejected the arguments that the Places of Worship Act, 1991 barred the suit. It ruled that to decide the challenge to the maintainability of the suit under Order VII, Rule 11 of the Code of Civil Procedure, it only needed to consider the averments made by the plaintiffs and not the defence of those averments. 

“Therefore, the Places of Worship (Special Provisions) Act, 1991 does not operate as bar on the suit of the plaintiffs and the suit of plaintiffs is not barred by Section 9 of the Act,” the court ruled. 

The 1991 Act seals the religious character of all places of worship as it stood on August 15, 1947, and mandates that any case seeking the conversion of such a place into that of another religion should be abated. 

Civil right

The court noted that the suit filed by the Hindu women “is limited and confined to the right of worship as a civil right and fundamental right as well as customary and religious right”. The court emphasised that the suit neither sought a declaration or injunction over the property in question, nor did it seek the conversion of the mosque into a temple.  

“The determination of religious character is a matter of evidence which can be laid by either of the parties. The plaintiffs have laid foundation to establish that the religious character of the property in dispute was of Hindu temple and deities were being worshipped within the property in dispute,” the court said, concluding, “Therefore, the parties to the suit are required to prove before the court regarding the religious character of the property as was prevalent on August 15, 1947.” 

Further, citing the Supreme Court’s Ayodhya judgment, the court asserted, “Even where the idol is destroyed or the presence of the idol is intermittent or entirely absent, the legal personality created by the endowment continues to subsist,” and that it does not result in the termination of the pious purpose and the subsequent endowment. 

As for the acquisition of a mosque by the state, the court held that irrespective of the immunity mosques have from state acquisition in Islamic countries, its status and immunity from acquisition in the “secular ethos of India under the Constitution is the same and equal to that of places of worship of other religions”. 

‘Extraordinary situations’

“It is neither more nor less than that of the places of worship of the other religions. Obviously, the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose, keeping in view that such acquisition should not result in extinction of the right to practise the religion, if the significance of that place be such. Subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. The right to worship is not at any and every place, so long as it can be practised effectively, unless the right to worship at a particular place is itself an integral part of that right,” Mr. Vishvesha held. 

The order added, “A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India.”

As for the Masjid panel’s argument that the Waqf Tribunal had jurisdiction in this matter over civil courts because the property in question was registered as a waqf property, the court shot it down saying that the decrees sought in the suit are not covered under the powers of the tribunal as outlined under Sections 33, 35, 47, 48, 51, 54, 61, 64, 67, 72 & 73 of the Waqf Act, thus bringing it under the purview of civil courts. 

The court also held that Section 85 of the Waqf Act does not operate in this case because “the plaintiffs are non-Muslims and strangers to the alleged waqf created at the disputed property”.

Revenue records

The Masjid panel had submitted various documents pertaining to entries in revenue records to show that the property in question was registered as that of the waqf but the court held, “merely on the basis of entries in revenue record, no presumption of title can be drawn regarding a mosque or a temple”.

In addition to this, the court ruled that the U.P. Shri Kashi Vishwanath Temple Act of 1983 does not specifically bar “a suit claiming right to worship idols installed in the endowment within the premises of the temple, or outside”.

Soon after the order was pronounced, the Hindu plaintiffs celebrated it as “the first victory” in their legal battle, whereas the lawyers part of the team representing the Masjid panel said they were looking to move the High Court concerned to challenge this order. 

Meanwhile, the district court has called for written statements from all parties to the suit and set September 22 as the date for when it is expected to frame the issues along which the suit will be tried.