Faizan Mustafa and Jagteshwar Sohi
Court has dismissed a PIL filed by Swamy Dethathreya Sai Swaroop Nath,
president of Akhil Bhartiya Hindu Mahasabha (Kerala), seeking entry of women
into mosques. A division bench of the Kerala High Court on October 11, 2018,
had also dismissed this petition as the petitioner failed to demonstrate the
existence of a practice of denying entry to women.
A bench led
by Chief Justice of India said let a Muslim woman challenge the practice. But a
Muslim woman is already in the apex court. As a matter of fact, the Supreme
Court, in April, had issued a notice on a petition by a Muslim couple from
Pune, which sought to quash what they termed as prohibition on the entry of
Muslim women in the mosques of the Hanafi sect.
raised the fundamental issue that mosques are not statutory authorities or
“state” within the meaning of Article 12 of the Constitution and therefore,
writ jurisdiction cannot be invoked against them.
make a distinction between theology and law. Dalit entry into temples, women’s
entry into the Sabarimala temple and mosques do involve legal issues because of
the right to equality and non-discrimination. But as far as women entry in
mosques is concerned, it is to be kept in mind that the Supreme Court held in
Ismail Farooqui (1994) that mosque is not even an essential feature of Islam.
Court refused to reconsider this erroneous finding of the court in M Siddiq
(2018). The issue will again indirectly come up when the court starts hearing
the Babri masjid appeals. In any case, in Gurugram, Muslims were not permitted
to pray even in open fields.
religion in India is confined to only essential religious practices. Moreover,
the validity of prayers is a purely theological question. No one will go to the
temple if her/his prayer is not acceptable to her/his god or deity. That’s why
only a handful of women went to Sabarimala. No court has the power to pass
judgment on the validity of prayers.
unlike Hinduism, at least in theory, does not consider anybody untouchable.
Therefore, the concept of one person polluting another is unknown in Islam.
Islam does not have anything like Dalit exclusion from temples. Surprisingly,
the petitioners are not able to distinguish between a Hindu temple and a Muslim
sanctorum is all important in the former, whereas there is no such thing in the
latter. It is not necessary for even men to have auditory access to musalla
that has been wrongly called the main sanctuary in the petition. Even the men
who stand in the last row or on the upper floors of the mosques can validly
pray though they neither see the imam nor (in some cases) hear his recitations.
of the Constitution gives the freedom of religion not only to religions but
even to sects thereof. Most Indian Muslims belong to the Hanafi sect of Sunnis.
While the Shafi’i sect does permit women to pray in mosques if they so desire,
the Hanafi and Maliki sects are opposed to it. Going to the mosque five times a
day is quite an ordeal even for men in today’s hectic life.
There is a
consensus amongst schools that unlike men, women in Islam do not have a
religious obligation to offer the Friday or the five daily prayers in mosques.
They are permitted to offer prayers in their homes and get the same reward in
life hereafter. Women are thus not in any religious disadvantage. Islam does
make an exception even in obligations. Thus, while zakat (2.5 per cent
mandatory annual charity) and haj (pilgrimage) are obligations on the rich,
poor people are exempt from these. Similarly, women, children and elderly are
exempt from jihad (fight against injustices and oppression).
the Quran nowhere prohibits women from praying in the mosques. There is
concrete evidence that during the Prophet’s lifetime, women used to pray in
mosques. Prophet had said that “do not bar God’s handmaidens from God’s places
of worship”. Abu Hanifa, on the authority of Ibn Umar, quoted a tradition
wherein the Prophet permitted women to attend fajr (early morning) and isha
(late evening) prayers.
As far as
Eid prayers were concerned, women were asked by the Prophet to join
congregations outside the city called Eidgah, even if they were in their
menstrual cycle. They could join the supplications before and after the prayer,
but stay away from the Eid prayer.
and Abu Yusuf acknowledged this position, though the former disapproved all
women going out for prayers and tried to confine this permission only to the
older women. Al Shaybani and Al Tahawi too restricted this permission to the
older women as they were not comfortable with younger women going to mosques.
question is when women and men pray together in mosques without any barrier,
whose prayer gets invalidated. Hanafi jurist Al-Sarakhsi explicitly says that
“if a woman prays behind an imam who has ‘resolved’ to lead mixed communal
prayer and she stands in the middle of the row, then she invalidates the prayer
of the one man to her right, the one to her left, and the one immediately
Thus such a
woman’s own prayer remains valid, and the prayer of men praying in front of her
remains valid. It is clear that even the Hanafi School does not forbid women
from entering and praying in mosques. They may pray in mosques, and their
prayers remain valid.
pray in their rows in the mosques at the place designated for them, even men’s
prayers are not invalidated. There can also be all women prayers led by a
woman. It seems the Prophet himself had appointed one Umm Waraqa, who was a
scholar of the Quran, as imam of her household and even asked someone to act as
some jurists doubt the authenticity of this tradition. Reportedly, the
Prophet’s wives, Aisha and Umma Salama, also led all women prayers in their
homes. Ibn Hazm says that while Aisha led the sunset prayer, Umm Salama led the
afternoon prayer. Many jurists permit women to lead supererogatory prayers,
particularly, in Ramadan.
jurists started opposing women going to mosques because of the possibility of
men harassing them. Al Zalai says even Aisha, the Prophet’s wife, had said “had
the Messenger of God seen what we have seen, he would have barred women from
the mosque as the children of Israel (Jews) had barred their women”. Women had
begun to adorn themselves and wear perfume and jewellery. For this reason,
second caliph “Umar barred them”.
In a number
of Muslim countries, women are allowed to pray in a designated area. We live in
a modern and liberal world and therefore, let all mosques have a designated
space for women so that they can utilise the permission given to them by the
Due to the
possibility that they may be harassed, they cannot be stopped from praying in
mosques in designated spaces reserved for them. Let Muslim men learn to behave.
Let mosques’ management create facilities of washrooms and ablutions for them.
is Vice-Chancellor, NALSAR University of Law and Sohi teaches at NALSAR
University of Law
Source: The Indian Express