Stating that the Hindu deities are worshipped even after August 15, 1947, in the Gyanvapi complex, the Places of Worship (Special Provisions) Act, 1991, are not a bar on hearing a petition by Hindu plaintiffs in this case.
Syed Khalique Ahmed
NEW DELHI—The Varanasi District and Sessions Court on Monday rejected a petition of the Anjuman Masajid Intezamia Committee that had challenged the maintainability of a petition filed by five Hindu women who had demanded the right to worship within the Gyanvapi Mosque compound on a daily basis.
With this development, the court will begin hearing the Hindu women’s petition, and September 22 is now fixed as the next hearing date.
Currently, Hindus are allowed to perform worship once a year only in an open space in the northeast corner outside the Western wall of the mosque compound. In local revenue records, the land where Hindus are allowed to worship belongs to the Gyanvapi mosque, registered as a wakf property with UP Sunni Central Wakf Board. Outside the mosque’s Western wall, there are two tombs (where Muslims are allowed to perform ‘urs’ – birth anniversary celebrations of Sufi saints in the Indian sub-continent – once a year) and a Chabutara, or a raised platform. A barricade has been erected between the Chabutara and the place where Hindus worship once a year to ensure peace and law and order. Through this open space on the Western side, Muslims are allowed to climb to the mosque’s terrace to offer prayers when the number of ‘namazis’ grow on Fridays and Eid and cannot be accommodated on the ground floor.
Varanasi district Judge Dr. Ajay Krishna Vishvesha rejected the Muslim party’s petition on the ground that the Hindu plaintiffs are not barred from filing petitions by the provisions of the Places of Worship (Special Provisions) Act, 1991, The Wakf Act of 1995, and Shri Kashi Vishwanath Act, 1983. The Muslim party had challenged the Hindu petitioners’ contentions by giving reference to provisions in these Acts.
The court rejected the Masajid Intezamia Committee’s petition specifically on two grounds. The first ground was that the plaintiffs(five Hindu women) worshipped “at the disputed site incessantly for a long time till 1993”. But after 1993, they were allowed to worship once a year only under the regulations of the UP government. However, the petitioners did not mention the date or year since the Hindu worship was happening at the “dispute site”. But the court held that since Hindu deities were worshipped within the mosque complex, the provisions of the Places of Worship (Special Provisions) Act, 1991, would not apply in this case; hence, women petitioners could not be barred from filing the suit. Section 3 & 4 of the 1991 Act says that the religious character of a place of worship as it existed on August 15, 1947, shall remain the same, and it will not be allowed to be changed. In the present case, since the Hindu women did not demand changing the character of the “disputed place”, the court said that the provisions of the 1991 Act would not be applicable in this particular case.
Quoting petitioners, the court pointed out that “the Hindus continued in possession of the cellar (tehkhana) towards South and other parts of the demolished temple with its ruins and Lord Adi Visheshwar is still in existence in its original shape in the western part of the old temple at the property in question.” And hence, provisions of the 1991 Act will not apply in this case. Moreover, the Hindu petitioners claimed that Gyanvapi mosque stands over the demolished temple.
The court also pointed out that the plaintiffs are not claiming ownership right over the “disputed land”, nor have they filed the suit for declaration of the “dispute land” as a temple; therefore, the Places of Worship Act do not apply again in this case.
The court said that the Muslim party’s case could not be considered at this stage because “…it is clear that deities mentioned in the suit (read Hindu women plaintiffs’ petition) exist within the suit property since before 15th August 1947”. Hence, the provisions of the 1991 Act could not be applicable in this case at all. “Under the Hindu law, the property once vested in the deities shall continue to be deity’s property, and its destruction, if any, cannot change the nature of the property.”
Quoting a 2019 judgment of the Supreme Court to prove further that the 1991 Act does not apply in this case, the Varanasi court held that “the idol constitutes the embodiment or expression of the pious purpose upon which legal personality is conferred. The destruction of the idol does not result in the termination of the pious purpose and, consequently, the endowment. Even where the idol is destroyed, or the idol’s presence is intermittent or entirely absent, the legal personality created by the endowment continues to exist.”
The court rejected the second contention of the Intezamia Committee, in which the latter had challenged the jurisdiction of the Varanasi district court. The Committee argued that since the Gyanvapi Mosque is a wakf property, any suit regarding it can be filed in the Wakf Tribunal only, not in a regular court. But the court rejected this contention, saying that since the women petitioners were Hindus and provisions of the wakf laws did not apply to them; hence the Varanasi district court has the jurisdiction to hear the petitions of the women plaintiffs.
The court also observed that the provisions contained in the Shri Kashi Vishwanath Act, 1983, also do not prohibit the women petitioners from performing worship within the temple premises or outside.
The 26-page court order has also referred to the Gyanvapi mosque as an “old temple”, as claimed by the Hindu women plaintiffs in their petition. The plaintiff contended that Aurangzeb demolished the Kashi Vishwanath temple, and a mosque was constructed over it.
Clever Drafting : Varanasi Court
As the Muslim party had mentioned in its petition that the Gyanvapi mosque complex under the Wakf board is completely separated from the Shri Kashi Vishwanath Temple Trust and the entire Gyanvapi building complex is under the control of the Masajid Intezamia Committee, the court remarked that “….it is clear that the whole plaint relates to Gyanvapi Mosque which is a clever drafting.”
The Intezamia Committee submitted documents to the court in which the UP government and Board of Trustees of Kashi Vishwanath Temple Trust have admitted that the Gyanvapi Mosque was a wakf property.
