No restriction in Islam on women coming to mosque for namaz: AIMPLB to SC
New Delhi, Apr 23 (PTI) Urging the courts not to judicially determine religious practices, the All India Muslim Personal Law Board (AIMPLB) on Thursday told the Supreme Court that Islam does not restrict women from coming to the mosque for namaz, but it is preferable that they stay at home.
Senior Advocate M R Shamshad, appearing for the AIMPLB, told a nine-judge constitution bench headed by Chief Justice Surya Kant that women are allowed to offer namaz in the mosque subject to some discipline.
The issue, he submitted, has come up before the bench because a writ petition was filed seeking that women be allowed to pray in mosques.
"We have filed an affidavit to say that under all sects of Islam, women are allowed to enter mosques and offer prayers, subject to certain disciplines. There is no bar on them anywhere; they can come and be part of the congregation," he said.
He submitted that there is no sanctum sanctorum in the mosque, as was the impression given.
The AIMPLB counsel told the bench — also comprising Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan, and Joymalya Bagchi — it is preferable that women offer namaz at home and they will get the same religious rewards as men who offer prayers at a mosque.
Intervening, Justice Amanullah said the reason behind this was that if everyone from a household goes to the mosque, then who will take care of the children? Justice Nagarathna said that in Islam, women are not mandated to attend the congregation in a mosque.
Shamshad said the holy book, the Quran, asks to follow the Prophet, and that the manners of worship are mentioned in Hadiths.
He submitted that given the belief, practices, thought processes, adherence to religious teaching, flexibility with which a person is obliged to follow religious tenets, and the personal choice of a person to treat certain practices as essential for his belief system, it will not be prudent or possible to determine essential practices of a particular religion.
"Accordingly, it is submitted that the courts must not attempt to judicially determine the nature of religious practices. According to Article 25, to interpret what is religious practice, or for that matter, the core of the religion within the meaning of essential religious practices, these matters must be left for those who are scholars in the religion or the religious denominations, and/or the beliefs of the followers of that particular religion.
"Certain practices change with circumstances — like in the Hajj, the manner of namaz and many other acts commonly done by the followers of Islam get altered completely. The namaz offered at the time of a burial is completely different from what is offered normally," he submitted.
He said the exercise to determine an essential religious practice, in the context of Islam, is a rigorous one.
"Essential religious practice in Islam was also declared through Ijma (consensus of Ulemas) in the initial 400 years of Islam. It was applied in cases where the holy Quran has either indicated something without details or indications are found in authentic Hadiths, and to resolve serious differences that were found among different sections or were declared by general acceptance by companions of the Prophet," he submitted.
The AIMPLB counsel said the process of identification of essential religious practice has fallen into error in several judgments in the case, including in the 2019 Ismail Faruqui case, where it held that a mosque is not an essential part of the religious practice of Islam.
"Mosque is indeed an integral part of Islam. The issue was not whether the masjid was essential or not. But when the majority judgment came, it said that since namaz can be offered in the open, the masjid is non-essential. This parameter is completely wrong. It has been applied in so many judgments. Mosque is the core of Muslims' beliefs. All practices are ultimately relatable to the mosque," he said, urging the bench to make an observation in this regard.
Justice Nagarathna said it is as good as saying that a temple is not essential for the Hindu religion.
During the eighth day of hearing on petitions related to discrimination against women at religious places, including the Sabarimala temple, and on the ambit and scope of religious freedom practised by multiple faiths, the bench observed that it respects the views of all eminent authors and thinkers, but cannot accept information from "WhatsApp University".
Senior Advocate Neeraj Kishan Kaul, appearing for the head of the Dawoodi Bohra community, referred to an article written by Congress leader Shashi Tharoor, which talked about judicial restraint in religious matters.
At this juncture, CJI Kant said, "We respect all eminent persons, jurists, et cetera, but a personal opinion is personal opinion." Several senior lawyers Arvind Datar, Shyam Divan, Guru Krishna Kumar and others made submissions on essential religious practices and the issue of faith and fundamental rights.
The hearing would continue on April 28.
A five-judge constitution bench, by a 4:1 majority verdict in September 2018, lifted a ban that prevented women between the ages of 10 and 50 years from entering the Sabarimala Ayyappa temple and held that the centuries-old Hindu religious practice was illegal and unconstitutional. PTI MNL PKS MNL RUK RUK
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