Muslims Of All Sects Entitled To Offer Prayers In Any Mosque, Bury Their Dead In Public Burial Grounds: Kerala High Court

The Kerala High Court recently ruled that every Muslim has the right to offer prayers in any mosque or bury their dead bodies in a public khabarsthan and that this cannot be obstructed merely because they belong to a different sect.

A Division Bench of Justice S.V. Bhatti and Justice Basant Balaji was dealing with a petition filed by a wakf arguing that since some of its members had changed to a different sect, they were not entitled to offer prayers and buried their dead bodies in its property. 

"The said contention will not stand in the eye of the law because every muslim is entitled to offer prayers in any mosque or buried dead bodies in a public khabarsthan. The 1st defendant's mosque and khabarsthan being a public one, the defendants cannot obstruct the plaintiffs in offering prayers and burying the dead."

A few members and beneficiaries of Elappully Eranchery mosque were ex-communicated from the Jama-ath (congregation) for attending a religious discourse conducted by the Kerala Naduvathul Mujahideen, commonly known as the Mujahideen Sect.

The wakf/Jama-ath thereby banned the members of the Mujahideen Sect from participating in marriages and ceremonies held in their houses. They were also not allowed to bury the dead bodies of such members or their family members. In fact, in 2007, there was a law and order problem revolving around the burial of one Mohammed and several police officers had to come to the property and mediate the matter for the dead body to be buried.

Arguing that they do not have any other Jama-ath or burial ground, the Mujahideen members approached the Wakf Tribunal apprehending that more burials would be obstructed. The suit was filed for declaration of their right and prohibitory injunction.

However, the wakf argued that it was administered by the committee of beneficiaries who are the followers of Allahu Sunnathu Val Jama-ath, while the Mujahideen members while being members of the Jama-ath, changed to Kerala Naduvathul Mujahideen and attempted to transform other members of the Jama-ath into that organization.

It was argued that Kerala Naduvathul Mujahideen has several religious institutions and wakf properties including mosques, madrasas and burial grounds of their own to accommodate their believers and bury their dead bodies. 

Nevertheless, the Tribunal declared that the Mujahideen members have the right to prayers in the mosque and to bury the dead bodies of their family members in the said Jama-ath. Therefore, the members of the wakf were permanently restrained from obstructing Mujahideen members from conducting prayers in the mosque or burying their dead in the plaint scheduled property.

Aggrieved by this decision, the Jama-ath filed a revision petition before the High Court. 

Advocates P. Jayaram and Sarath Chandran K.B appeared for the revision petitioners and submitted that the religious beliefs and practices of Allahu Sunnath Val Jama-ath and Kerala Naduvathul Mujahideen are different in many ways. It was asserted that the impugned decree of the Wakf Tribunal for two different fractions offering prayers and conducting funerals in the same mosque and graveyard will disturb the public order, morality and health of the Muslims. Therefore, they argued that the impugned judgment is violative of Articles 15 and 25 of the Constitution. 

On the other hand, Advocate T.H Abdul Azeez appeared for the respondents and contended that the act of the revision petitioners in not allowing them to offer prayers and bury dead bodies is illegal. Standing Counsel Jamsheed Hafiz appeared for the Wakf Board in the matter. 

The Court noted that the Jama-ath had no right to interfere with the right of a Muslim to offer prayers in a mosque. The Bench also noted that burying dead bodies is a civil right. 

" A mosque is a place of worship and every muslim offers prayer in the mosque. The 1st defendant has no right to obstruct a member of the Jama-ath or any other muslim from offering prayers. The burying of dead bodies is also a civil right. The graveyard situated in the plaint schedule property is a public graveyard. Every muslim is entitled to get a decent burial according to civil rights and the graveyard under the supervision of 1 st defendant is a public graveyard, any muslim or any member of the 1st defendant has a right to bury the dead."

Therefore, it was found that the Jama-ath cannot obstruct the respondents from offering prayers or burying their dead merely because it had been ex-communicated from the Jama-ath for following the Kerala Naduvathul Mujahidhin Sect. 

Accordingly, the revision petition was dismissed.

Case Title: Elappully Erancheri Jama-Ath Palli & Anr v. Mohammed Haneef & Ors.

Citation: 2022 LiveLaw (Ker) 358

Click Here To Read/Download The Order