SHAHUL HAMEED AND OTHERS Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are before this Court seeking police protection to perform their religious rituals concerning the burial of their dead in the graveyard attached to the Jamaath Mosque belonging to the fourth respondent committee at Thalayolaprambu. It is claimed that the petitioners are members of Kerala Naduvathul Mujahideen, who are known as Salafis a liberal sect of Muslim community, engaged in the activities of eradication of superstitious beliefs and unislamic customs in the community guided by the principles of Holy Quran and tenets of Prophet Mohammed. The petitioners have their own Mosque, which is attended by persons belonging to Islam, including women. However, the Mosque does not have a burial ground. Thalayolaprambu Muhiyudeen Masjid Muslim Jamaath is a very old Mosque and the only one that has a graveyard. The petitioners claim that they have a right to bury their dead in accordance with their Salafi belief. The 2nd respondent is the present President and the 3rd respondent is the Secretary of the 4th respondent Jamaath Committee. The followers of the respondent Jamaath are harassing and threatening the petitioners and other Salafis. They are not allowing burial of dead, following the Salafi beliefs. A crime has been registered against the obstructors when they tried to prevent the funeral ceremonies of the mother of one Sakeer Hussain, who is a Salafi. The petitioners approached the Wakf Tribunal with a suit to get their rights established as W.O.S No. 18/2011. Ext.P1 judgment was passed in the suit against the petitioners. Though the suit was dismissed, the party respondents have admitted that the Salafis have the right to offer prayers in the Jamaath Mosque and bury their dead, though they have no right in the matter of administration or other special services. Despite such admission made by them in the above-said proceedings, they continued to prevent the burial of dead and are not allowing them to perform funeral ceremonies in accordance with their Salafi belief. A complaint was filed before the 5th respondent as per Ext.P2, but no action has been taken so far. The petitioners stated that they are entitled to practise their religion in the manner they follow and that it is their fundamental right, which cannot be obstructed by anyone. Hence, it is prayed that the 5th respondent may be directed to provide adequate and sufficient protection to the petitioners and other Salafis in the locality to bury their dead in the graveyard of Thalayolaparambu Muhiyudeen Masjid Musim Jamaath in accordance with the Salafi rituals and also direct the 5th respondent to take immediate action to prevent harassment and torture by the party respondents on the basis of Ext.P2 complaint.

(2.) The respondents 2 to 4 appeared through Counsel and filed a counter-affidavit. It is stated that the Jamaath is more than a century old Mosque and the petitioners herein were also members of the Jamaath. However, they started propagating a new school of thought, known as Salafi, and started a Mosque of their own for offering prayers. The suit filed before the Wakf Board was dismissed as per Ext.P1. The party respondents have stated in their counter-affidavit that they will not prevent anyone from burying their dead in the graveyard. The 8th petitioner, who was examined as a witness in that suit, has admitted that no one is preventing them from burying their dead. The 4th respondent is facilitating the burial of the dead and the allegation that the petitioners are prevented from using the graveyard is not true. The custom and practise followed for the purpose of burial is the one followed by the Jamaath for the last so many years and the petitioners cannot insist on altering that practise.

(3.) We heard the learned Senior Government Pleader appearing for respondents 1 and 5, learned Counsel for the petitioners as well as the Counsel appearing for respondents 2 to 4. Documents perused.