THE COUNSEL ON BEHALF OF RESPONDENT

TABLE OF CONTENTS

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Table of Contents 1

List of Abbreviations2

Index of Authorities3

Statement of Jurisdiction6

Statement of Facts7

Issues raised8

Summary of Arguments9

Arguments Advanced: 10

Prayer29

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LIST OF ABBREVIATIONS

S.NO. ABBREVIATION EXPANSION

1. ¶ Paragraph

2. § Section

3. AIR All India Reporter

4. Art. Article

5. PIL Public Interest litigation

6. Co. Company

7. Ed Edition

8. IPC Indian Penal Code

9. J. Justice

11. Ors. Others

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12. SC Supreme Court

13. SCC Supreme Court Cases

14. u/s Under Section

16. v. Versus

17. Hon’ble Honourable

INDEX OF AUTHORITIES

BOOKS REFERRED:

S.N                       PARTICULARS
o

1. THE CONSTITUTION OF INDIA BY DJ DE,THIRD EDITION

2. CONSTITUTIONAL LAW OF INDIA BY DR. J.N. PANDEY

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3. BASU D.D.COMMENTARY ON CONSTITUTION OF INDIA

4. State and Minorities : What Are Their Rights and How to Secure Them
in the

Constitution of Free India- Dr. BR Ambedka

           STATUES REFERRED:

S.N       PARTICULARS 
o

1. DRAFT CONSTITUTION OF INDIA, 1948

2. THE CONSTITUTION OF INDIA, 1950

3. THE MUSLIM PERSONAL LAW (Shariat) Act,

1937

JOURNALS REFERRED:

S.N               PARTICULARS 
O

1.     ALL INDIA REPORTER (AIR)

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WEBSITES REFERRED:

S.N               PARTICULARS 
O

1. www.scconline.com

2. http://www.indiankanoon.org/

3. http://www.supremecourtonline.com/

4. http://www.advocatekhoj.com/

5. http://www.lawnotes.in/

6. http://www.legalserviceIndia.com

7.  http://www.casemine.com/

8. http://blog.ipleders.in/

CASES REFERRED:

S.NO PARTICULARS

1. The Commissioner, Hindu Religious Endowments, Madras V. Sri

Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 AIR 282,
1954 SCR 1005
2. Indian Young Lawyers Association v. The State of Kerala & Ors
WRIT PETITION (CIVIL) NO. 373 OF 2006
3. Ratilal Panachand Gandhi V. the State of Bombay 1954 AIR 388,
1954 SCR 1035

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4. Forward Construction Co. Vs. Prabhat Mandal (AIR of SC 391)

5. Bijoe Emmanuel & Ors. v. State of Kerala & Ors., (1986) 3 S.C.C.
615
6. S.C. Sharma vs Union Of India (Uoi) And Ors. LPA No. 511 of
2000
7. Indian Young Lawyers Association v.The State of Kerala & Ors.
WRIT PETITION (CIVIL) NO. 373 OF 2006
8. S.P. Mittal v. Union of India 1983 AIR, 1 1983 SCR (1) 729

9. N. Adithayan v. Travancore Devaswom Board and Ors AIR 2002

SC 3538
10. Acharya Jagdishwaranand Avadhut v. Commissioner of Police,
Calcutta (1984)4 SCC 522
11. Lily Thomas etc. v. Union of India AIR 2000 SC 1650

12. Pannalal Bhansilal Pitti & Ors. Etc vs. State of Andhra Pradesh &
Anr 1996 AIR 1023 ,1996 SCC (2) 498
13. Makku Rawther’s Children v. Manapara Charayi  AIR 1972 Ker
27

STATEMENT OF JURISDICTION

The respondents respectfully submit to this jurisdiction invoked by the petitioners, the
counsel on behalf of the respondent seeks permission for the disposal of the PIL on
the basis that there’s no fundamental right has been infringed. Under Article 32 of the
Constitution of Democratique Aryana, This Hon’ble court has the jurisdiction to try,
entertain and dispose of the present PIL.

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STATEMENT OF FACTS

In February 2020, Sakeena Mohammad and her husband Mohammad wrote a letter to
the Mohmdiya Jama Masjid, Indapuria to seek permission for Sakeena to enter local
mosques to offer namaz (prayer). The Mohmdiya Jama Masjid administration
responded, stating that women may not enter mosques in Indapuria and other areas.
However, they also stated that they referred the request to Daud Kajha and Daud
Ullum Devvand. After receiving no response from either Daud, the petitioners wrote a
reminder letter in March 2020. In response, the Imam of Jama Masjid, Indapuria

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refused the request, but again expressed that he would refer the matter to higher
authorities, saying that he was unsure about whether women could enter mosques.
Aggrieved by the vague reasons cited by the Imam, the petitioners approached the
Supreme Court by way of a Public Interest Litigation (PIL), filed on 4 May 2020.
Their PIL challenges practices prohibiting the entry of Muslim women into mosques
on the ground that they are unconstitutional. In particular, the petition argues that such
practices violate the fundamental rights to equality, life and liberty and freedom of
religion under Articles 14, 15, 21, 25 and 29 of the Constitution. Further, the
petitioners argue that practices that prohibit Muslim women from entering mosques
stand in conflict with the Holy Quran and various Hadiths, which do not require
gender segregation. The Quran does not prohibit women from offering prayers where
men do. Thirdly, the petitioners contend that customs that prohibit women from
entering mosques stand in conflict with Article 44 of the Constitution of India, which
encourages the State to secure a uniform civil code for all citizens, by eliminating
discrepancies between various personal laws currently in force in the country. 
In addition, the petition relies substantially on the Constitutional Bench judgment in
the Swami Hindu Temple Case. In December 2019, the Supreme Court struck the
Swami Hindu Temple's custom of prohibiting menstruating women from entering its
inner sanctum. In the present case, the petitioners argue that religious customs cannot
be used as cover deny rights of worship to women and, further, their dignity.

ISSUES RAISED

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1) Whether practices prohibiting the entry of women into mosques violate the
fundamental rights to equality, non-discrimination, freedom of religion, and life and
liberty under Articles 14, 15, 21 and 25 of the Constitution of Democratique Aryana?

2) Whether the fundamental right to equality of Muslim women can be enforced

against non-state actors, i.e. Mosques in this case?

3) Whether the act of preventing the females from entering mosque is violative of
Article 44 of the Constitution of Democratique Aryana, which encourages the State to
secure a uniform civil code for all citizens, by eliminating discrepancies between
various personal laws currently in force in the country?

SUMMARY OF ARGUEMENTS

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ISSUE 1: Whether practices prohibiting the entry of women into mosques violate
the fundamental rights to equality, non-discrimination, freedom of religion, and
life and liberty under Article 14, 15, 21 and 25 of the Constitution of
Democratique Aryana ?
The Counsel on behalf of the Respondent humbly submits before the Hon'ble
Supreme Court of Democratique Aryana that the prohibition of the entry of Muslim
women into the mosques does not violate Articles 14, 15, 21 and 25 of the
Constitution of Democratique Aryana.

ISSUE 2: Whether the fundamental right to equality of Muslim women can be

enforced against non-state actors, i.e Mosques in this case?
The Counsel on behalf of the Respondent humbly submits before the Hon’ble
Supreme Court of Democratique Aryana  that the fundamental right to equality of
Muslim Women cannot be enforced against non state actors like the mosques
which is mentioned in the present case.

ISSUE 3: Whether the act of preventing the females from entering mosque is
violative of Article 44 of the Constitution of Democratique Aryana, which
encourages the State to secure a uniform civil code for all citizens, by eliminating
discrepancies between various personal laws currently in force in the country?
The counsel on behalf of the Respondent submits before the Hon’ble Supreme Court
that the act of preventing the females from entering mosque is not violative of Article
44 of the Constitution of Democratique Aryana, which encourages the State to
secure a uniform civil code for all citizens, by eliminating discrepancies between
various personal laws currently in force in the country.

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ARGUMENTS ADVANCED

ISSUE 1: Whether practices prohibiting the entry of women into mosques violate
the fundamental rights to equality, non-discrimination, freedom of religion, and
life and liberty under Article 14, 15, 21 and 25 of the Constitution of
Democratique Aryana ?

The Counsel on behalf of the Respondent humbly submits before the Hon'ble
Supreme Court of Democratique Aryana that the prohibition of the entry of Muslim
women into the mosques does not violate Articles 14, 15, 21 and 25 of the
Constitution of Democratique Aryana.

It is humbly submitted before the Honourable Supreme Court of Democratic Aryana

that the practices of prohibiting the entry of women into mosques are not violative of
the fundamental rights to equality, non-discrimination, freedom of religion and life
and liberty which are mentioned under Articles 14, 15, 21 and 25 of the Constitution. 

In general, Islam does not prohibit the entry of women in mosques. However in the
religion of muslim, it is to be mentioned that it was not obligatory on muslim women
unlike men to offer Friday prayers in congregation as they have the option to pray at
home or in mosques. Whereas, Muslim men have to compulsorily offer prayers at
Friday congregation. 

When there is an infringement of any fundamental rights guaranteed in the Part III of
the Constitution, the person or group of persons whose rights are being infringed shall

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approach the Hon’ble Supreme Court directly by means of of writ petition or shall file
a Public Interest Litigation if the fundamental rights of a large common people are
being infringed under Article 32 of the Constitution. 

The fundamental issue here with regard to mosques is “whether a mosque is a

statutory authority or state within the meaning of Article 12 of the Constitution?”

Article 121 defines the term ‘state’ it says that - “Unless the context otherwise requires
the term ‘state’ includes the following - 
    1] The Government and Parliament of India that is Executive and Legislature of the
Union
    2] The Government and Legislature of each states
This clearly states that mosques according to Article 12 do not form a part of the State
and thus cannot invoke the writ jurisdiction against the state in the present case. Thus
the Public Interest Litigation which has been filed by the petitioner has to be quashed
by the Honourable Supreme court due to the demerit with regard to the jurisdiction of
the case. 

Freedom of 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 judgement on
the validity of prayers.

Islam, unlike Hinduism, atleast 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 to able to distinguish between a Hindu temple and a Muslim mosque.

1
Article 12 of the Indian Constitution, 1950

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The sanctum 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.
 
Article 26 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).
 
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 behind her.”
 
Hanafi 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

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to adorn themselves and wear perfume and jewellery. For this reason, the second
caliph “Umar barred them”.

The issues mentioned in the case do not pertain to any statute. And the rights alleged
of being infringed cannot be enforced against non-state entities like Mosques. The
matters in this case involved religious practices based upon beliefs of the religion and
the matters of religion differ from one religion to another. And to invoke the
allegation of infringement of fundamental rights under the Constitution, the matters in
this case are not concerned with the management of a religious place. The Masjids
involved in this case are purely private bodies regulated by the Muttawalis. 

Friday Namaz in congregation is not obligatory for women, though it is so, on

Muslim men. The Namaz which is held on Fridays of every week need not be
attended by women on a compulsory basis but it is compulsory for the men to attend it
without fail. There are certain doctrines in Islam which states that, a women is entitled
to the same religious reward [Sawab] for praying as per her option either in Masjid or
at home. A muslim women has the capacity to choose whether she needs to offer her
prayers at home or in masjids unlike men. 

It is humbly submitted before the Honourable Supreme Court that it is not appropriate
for the Apex court to enter into or interpret the religious principles/beliefs and tenets,
invoking Articles 14, 15, 21, 25 and 29 of the Constitution of Aryana. It can also be
stated that it is not appropriate for the Apex court to attempt to answer the issues that
are matters of faith alone, where there is no ‘threat to life and liberty’

In The Commissioner, Hindu Religious Endowments, Madras V. Sri

Lakshmindra Thirtha Swamiar of Sri Shirur Mutt2, the court granted
denomination ‘complete autonomy’ to determine the practices which are considered

2
The Commissioner, Hindu Religious Endowments, Madras V. Sri Lakshmindra Thirtha Swamiar of
Sri Shirur Mutt 1954 AIR 282, 1954 SCR 1005

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to be essential. This precedent clearly establishes that the court has already granted
complete autonomy to denominations regarding the practices which they tend to
follow for centuries. 

In the case of Indian Young Lawyers Association v. The State of Kerala & Ors3
Justice Indu Malhotra has quoted that “Judicial review of religious practises ought not
to be undertaken, as the Court cannot impose its morality or rationality with respect to
the form of worship of a deity. Doing so would negate the freedom to practise one’s
religion according to one’s faith and beliefs. It would amount to rationalising religion,
faith and beliefs, which is outside the ken of Courts.” From the above mentioned case
law, the council on behalf of the respondent would like to state that the honourable
court would not review the religious practices because it would limit the freedom of a
person’s practice to religion of their own choice. 

In the case of Ratilal Panachand Gandhi V. the State of Bombay4, the court upheld
the principle that the right to manage religious affairs cannot be abridged by any law.
The above precedent can be interpreted in following case by the way of considering
the practice of women not entering the mosques as practice which is being followed
by the muslim for over decades and the court cannot interfere with the religious
affairs of a religion. The religious practices which has been followed over decades
cannot be changed within a short span of time and the religious practices are not
violative of any fundamental rights. 

The Fundamental requirements of religious denomination are:

A] A spiritual organisation
B] A common bond
C] The existence of unique practices which flow from its beliefs.

3
Indian Young Lawyers Association v. The State of Kerala & Ors WRIT PETITION (CIVIL) NO. 373
OF 2006

4
Ratilal Panachand Gandhi V. the State of Bombay 1954 AIR 388, 1954 SCR 1035

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Each of these requirements is fulfilled by the Mohmdiya Jama Masjid. Therefore

Mohmdiya Jama Masjid is a denominational body under Article 26 of the
Constitution. 
 

2) Whether the fundamental right to equality of Muslim women can be enforced

against non-state actors, i.e. Mosques in this case?

The Counsel on behalf of the respondent, most humbly submits to this hon’ble
Supreme Court that the fundamental right to equality of Muslim women, can’t be
enforced against non- state actors as the Article 325 of the constitution clearly states
talks about against whom(state under article 12) and why a PIL (violation of
fundamental rights by the state) can be filed.

PIL CANT BE FILED AGAINST A NON-STATE ACTOR:

Looking at this, we can say that this hon'ble court is under an obligation to dismiss the
PIL filed by the petitioner as the mosque is a non-state actor and it’s a religious
institution within the scope of Article 266 and are purely private bodies regulated by
Muttawalis of the Mosques. The Muttawalis being body of experts, without any State
powers, can only issue advisory opinion, based on Islam. The Respondent, and this
Hon'ble Court for that matter, cannot enter into the arena of detailed arrangements of a
religious place, which is a completely privately managed entity for religious practices
of believers in particular religion and no fundamental rights of the Women have been
violated.

When considering the application of the fundamental right to equality on non-State

actors, the main objection that comes to mind is that fundamental rights are, typically,
enforceable only

5
Article 32 of the Indian Constitution, 1950

6
Article 26 of the Indian Constitution,1950 - Right to freedom of religion

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against the State and this concept has been established through various judgments of
the Supreme Court like . Consider also some fundamental rights like the right to
equality, which reads ‘The State shall not deny equality before law….’, indicating a
restriction to the state. Article 127 of the Constitution defines a State to include the
government, the parliament, the state legislatures and local or ‘other’ authorities.
Earlier, the judicial interpretation of the term ‘other authorities’, was restricted to
authorities related to the government and legislature, such as a governmental body.

In the case of Forward Construction Co. Vs. Prabhat Mandal (AIR of SC 391)8,
the Supreme Court, while dealing with the question of “Res judicata” in a PIL, held
that the principle would apply to a PIL but it must be proved that the previous
litigation was a PIL and not one relating to a private grievance and hence, now it
makes it more clear about the fact that such PIL shall not be entertained. In a
pluralistic society consisting of people with diverse faiths, beliefs and traditions, to
entertain PILs challenging religious practises followed by any group, sect or
denomination, could cause serious damage to the Constitutional and secular fabric of
this country9

Referring to the immediate questions that arise. “Is a mosque a ‘State’? Is a church a
‘State’? Is a temple a ‘State’? We talk about these places, we are not talking about the
cement and mortar that make mosques but the people in them. Can the fundamental
right of equality be imposed on another human being? The petitioner must be
referring to a different Article 14 that we do not know about... Article 14 starts with
the words ‘State shall not deny...’10

The relief is against the State only and this was stated by Justice Bobde in a pending
Supreme Court case. The petitioner approaches the Supreme Court and states that

7
Article 12 of the Indian Constitution, 1950 - Defines State
8
(AIR of SC 391)

9
Bijoe Emmanuel & Ors. v. State of Kerala & Ors., (1986) 3 S.C.C. 615
10
‘State shall not deny...’ Article 14of the Indian Constitution, 1950.

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women were not allowed to enter mosques to pray despite several letters to imams.
The petitioner had even sought police help to enter the mosque.

I would like to state this with an example of when we do not want someone to enter
our house. Can that person then get police help to enter our house? If persons in
mosques don’t want women to enter, can the petitioner agitate for the right to equality
against them? Fundamental right to equality is only available against the State and not
individuals.

Article 26 of the Constitution of India confers upon the trust a fundamental right to
manage its own affairs in matters of religion and as such interference is uncalled for
by third agency. It is submitted that, essentially the questions as raised in the petition
are relating to the doctrine of Islamic religious principles. The questions are directly
in relation to tenets of Islam as professed and practiced by followers of Islam in
different Islamic religious denominations in India.

The questions in the present petition are in relation to purely religious principles/
beliefs and it shall not be appropriate for this Hon'ble Court to enter into the religious
practices based upon beliefs of the religion by invoking Articles 14, 15, 21, 25 and 29
of Constitution of India. It is further clarified that the issues raised in this petition are
not the issues pertaining to statute(s). To put it differently, the rights claimed herein do
not merely concern the management of a religious place nor do they only concern
regulating the activities connected with religious practice. In essence, this Hon'ble
Court has been invited to interpret the religious beliefs and religious practices. It is
not appropriate for this Hon'ble Court to enter into that area. Hence, the Respondent is
of its firm view that the averments/dileadings in relation to Articles 14, 15, 21, 25 and
29 of the Constitution of India cannot be considered and looked into for the prayers as
claimed in the present petition.

The issues of this do not pertain to any statute and the alleged rights cannot be
enforced againstnon-state entities like Mosques as held in S.C. Sharma vs Union Of
India (Uoi) And Ors. The single Judge had held that “the writ petition was not
maintainable as the respondent No. 8 is an incorporated company and, therefore, does

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not come within the sweep of Article 12 of the Constitution of India.”11The

expressions 'any person' and 'for any purpose' by itself would not entitle a citizen to
file a writ petition against an incorporated company.

THE RIGHTS OF RELIGIOUS DOMINANCE

In the case of State of Bombay v. Narasu Appa Mali, the Supreme Court was face to
face with such a situation and M.C. Chagla J. upheld that such prohibition should not
be seen through the lens of religious discrimination and also argued that the Muslims
and Hindus differed from each other not only in religion, but in historical background
cultural outlook towards life and various other considerations. Quoting this we would
say that, it would be unreasonable for the court to look into the matter only because of
the previous judgement on the Sabarimala case as Muslims and Hindus differed from
each other not only in religion, but in historical background, cultural outlook towards
life and various other considerations.

The role of Courts in matters concerning religion and religious practises under our
secular Constitutional set up is to afford protection under Article 25(1) to those
practises which are regarded as “essential” or “integral” by the devotees, or the
religious community itself. Justice Indu Malhotra in the recent dissent on the
judgement on Indian Young Lawyers Association v.The State of Kerala & Ors.
quoted “Judicial review of religious practises ought not to be undertaken, as the Court
cannot impose its morality or rationality with respect to the form of worship of a
deity. Doing so would negate the freedom to practise one’s religion according to one’s
faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is
outside the ken of Courts.”12

It is humbly submitted that The Constitution does not itself define a religious
denomination and therein lies the wisdom of the makers of the Constitution. The

11
S.C. Sharma vs Union Of India (Uoi) And Ors. LPA No. 511 of 2000
12
WRIT PETITION (CIVIL) NO. 373 OF 2006

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absence of the definition itself is an indication that the Constitution makers

discouraged a rigid, fixed and mechanical approach to the concept and definition of a
religious denomination. This is because, in their wisdom, they were aware of the
limitations in prescribing the boundary conditions or contours of what constitutes a
religious denomination for all times to come, given this country’s immense appetite
for innovation and ingenuity in religion and spirituality. Therefore, to deny the status
of a religious denomination to Mohmdiya Jama Masjid merely because they defy the
conventional notions of religious denominations, is to defeat the very object of the
absence of definition.

It is humbly submitted that Several Supreme Court Judgements have laid down the
tests to qualify as a religious denominations under Article 26. For example, the
Constitution Bench in S.P. Mittal v. Union of India, this Court upheld the
constitutional validity of the Auroville (Emergency Provisions) Act, 1980. (para 80)
puts it thus:

“The word ‘religious denominations’ in Article 26 of the Constitution must take care
colour from the word ‘religion’ and if this be so, the expression ‘religious
denomination’ must also satisfy three condition 13:

1. A spiritual organisation

2. A common bond; and

3. The existence of unique practices which flow from its beliefs.

Each of these requirements is fulfilled by the Mohmdiya Jama Masjid and hence, it
could be stated that the right to every religious denomination, or any section thereof,
to exercise the rights that it stipulates and the interference of court would be
unjustifiable. Unlike Article 25, which is subject to the other provisions of Part III of
the Constitution, Article 26 is subject only to public order, morality, and health, and
not to the other provisions of the Constitution. As a result, the Fundamental Rights of
the denomination is not subject to Articles 14 or 15 of the Constitution.

13
1983 AIR, 1 1983 SCR (1) 729

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It was held in N. Adithayan v. Travancore Devaswom Board and Ors.14, Any

custom or usage irrespective of even any proof of their existence in pre-constitutional
days cannot be counted as a source of law to claim any rights when it is found to
violate human rights, dignity, social equality and the specific mandate of the
Constitution and law made by Parliament. No usage which is found to be pernicious
and considered to be in derogation of the law of the land or opposed to public policy
or social decency can be accepted or upheld by courts in the country.

THE RELIGIOUS BELIEF IN ISLAM

The answering Respondent submits and reply purely in the light of religious
doctrine/tenets/belief in Islam. Considering the said religious texts, doctrine and
religious belief of the followers of Islam, it is submitted that entry of women in the
Mosque for offering prayer/Namaz, inside the Mosque, Islam has not made it
obligatory on Muslim women to join congregational prayer nor is it obligatory for
woman to offer Friday Namaz in congregation though it is so on Muslim men. The
Muslim woman is differently placed because as per doctrines of Islam she is entitled
to the same religious reward (Sawab) for praying as per her option either in Masjid or
at home.

Namaz in congregation is not obligatory for women:

●It was learned that thought the permission was given to women to pray in the
mosque; but

the congregation is not obligatory for them like men; that's why women didn't attend
the congregation of mosque generally in the time of the Prophet peace be upon him,
Alauddir Kasani Hanafi says: sane, mature (major), independent, able to go the
mosque, non-disabled, on men, the prayer with congregation is obligatory, the
congregation is not obligatory on women. (Badae as Sanae:1/84-385)

14
AIR 2002 SC 3538

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● The Jurists of Shawafe school or thought also detined that participation or women
in congregation is not mandatory, Al jam commentary of Almohazzab:4/188, Bab
salatuljuma) The jurists of Ahnaf school of thought say that prayer with congregation
for women is not Farzain not Farzkifaya.

Friday prayer is not obligatory for women, in this regard different Prophet's sayings
and traditions are narrated:

● Tarique bin Shahab narrated by the Prophet peace be upon him: He said that the
performing Friday prayer with congregation on Friday is obligatorv tor al Musums
excent tour nersons and thev are: slave, child, woman and patient. (Sunan
Abudaud:1067)

● Narrated by Mohammad bin Kaab bin al -Qarzi: he said that the Messenger of Allah
peace be upon Him said: whoever believe in Allah and the Last Day, must perform the
Friday prayer on Friday excentwoman.chid.save. patient.(MosannafibnAbiShaiba,
Hadith number: 5149)

● Narrated by Jabir that the Messenger of Allah peace be upon Him said: whoever
believe in Allah and the Last Day, must perform the Friday prayer on Friday except
patient, traveler, woman, child, or slave. (Sunan al - Daar qutni:1579).

● Narrated by Abi Hazim master of Al-Zubbair: he said that the Messenger of Allah
peace be upon Him said: the Friday prayer is obligatory for every adult except four:
child, slave, woman, and patient. (Mosannafibn AbiShaiba, Hadith number: 5148, Al-
Sunan Al- Kubra lilBaihaqi, Hadith number:5635)

● Narrated by Abu Huraira that the Messenger of Allah peace be upon Him said: do
not forbid the female slaves of Allah to go to the mosques of Allah, however, they
must go in simple dresses (SunanAbudaud: 565, SahihlbnKhozaima: 1679)

● Narrated by Abdullah bin Umarthat the Messenger of Allah peace be upon Him
said: do not forbid the female slaves of Allah to go to the mosques of Allah.(Moatta
Malik:674, Musnad Ahmad :4655).

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● As far as Islamic jurists' opinion in this regard is concerned they all them are
unanimous that the Friday prayer is not obligatory for women, it is the reason for what
a great Islamic jurist Allaman Khitabi said: “Islamic jurists are unanimous that the
Friday prayer is not obligatory for women.” (Ma'alimussonan:1/243)

The prayer relating to appropriate writ of certiorari seeking quashing of Fatwa

restraining the Muslim women to enter into Mosque is an issue on which the the
Respondent submits that the said relief becomes irrelevant in view of what has been
stated above in relation to entry of women into Mosque for offering Namaz. The
present respondent has taken stand, as per Islamic texts, that entry of woman into
Mosque for Namaz. Any other fatwa to this effect may be ignored.

However, on the sanctity of Fatwa, it is submitted that it is an opinion based upon

religious texts, doctrine and their interpretation and has no statutory force. In case, if
some believer of Islam is of the opinion that he/she needs religious opinion/fatwa,
based upon interpretations religious texts, then delivering of Fatwa on that issue
cannot be restrained by judicial order of this Hon'ble Court as the same shall directly
hit the right and freedom of religious belief of an individual.

Upon having received the opinion, it is for the follower of Islam, who seeks Fatwa,
either to accept the same or not.

ISSUE 3: Whether the act of preventing the females from entering mosques is
violative of Article  44 of the Constitution of Democratique Aryana, which
encourages the State to secure a uniform civil code for all citizens, by eliminating
discrepancies between various personal laws currently in force in the country ?

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The Counsel on behalf of the Respondent humbly submits before the Hon'ble
Supreme Court that the act of preventing the females from entering mosques is not
violative of Article 44 of the Constitution of Democratique Aryana.

These petitioners directly want to impose Article 44 of the Constitution that talks
about uniform civil code. But all Muslims respect their personal law and no Muslim
wants to introduce uniform civil code in their personal law.

The Uniform Civil Code i.e. Article 44 which has been contentious was even the most
debatable topic in the constituent assembly. It was first introduced in 1947 in the
Constituent assembly the sub Committee desired to include the Uniform Civil Code in
the Directive Principle. 

The “directive principles” laid down in the Constitution says: “The State shall
Endeavour to secure for the citizens a UCC throughout the territory of India15.”As the
Constitution itself makes clear, the directive principles “shall not be enforceable by
any court”16.Nevertheless, they are “fundamental in the governance of the country”.
This shows that although our constitution itself says that UCC should be implemented
in some manner but its implementation is not mandatory. 

The Uniform Civil Code means a uniform personal law for all citizens of the country.
This code will replace the existing religious personal laws in India and have a uniform
law that will cater to all the citizens, irrespective of their religion. This has been
envisaged by the makers of our Constitution under Article 44. But it has been strongly
opposed because it is considered violative of Article 25 of the Constitution since it
does not let people enjoy the personal laws. The article 44 of the Directive principles

15
Article 44 of the Constitution of Democratique Aryana

16
Article 37 of the Constitution of Democratique Aryana

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of state policy states that it is the duty of the state to secure a Uniform Civil Code for
the citizens throughout the country. One country, one rule is another name for it. 

The personal laws of the major religious communities had traditionally governed
marital and family relations, with the Government maintaining a policy of non
interference in such laws in the absence of a demand for change from individual
religious communities8. India is a land of diverse religions Hindus, Buddhists, Jains,
Christians, Muslims, Parsees, and Sikhs form the Nation. Unity in diversity is the core
feature of the Indian Nation. Each community has its own laws governing marriage
and divorce, infants and minors, adoption, wills, and Succession. These personal laws
go with an individual across the States of India where they are part of the law of the
land, and the individual is entitled to have that individual’s own personal law applied
and not the law which would be applied in the local territory.
Personal laws are statutory and customary laws apply to particular religious or
cultural groups within a National Jurisdiction. They govern family relations in such
matters as marriage and divorce, maintenance and succession. India is a secular
Country where every community is allowed its own personal laws.17

The main objective behind implementation of a uniform Civil code in India is that it
sets a law to govern the personal matters of all the citizens irrespective of religion.
Personal laws are different from public laws as they cover marriage, inheritance,
adoption, divorce and maintenance and India practices a model of secularism in which
it has made special provisions for people of different religions and the main idea
behind Uniform Civil Code is to treat everyone equally irrespective of religion. Now
the problem exists in the fact that there are differences and discrepancies within the
personal laws. There is no uniformity.

Personal law, since it is envisaged as a means of securing community identity and

respecting religious difference, operates therefore within rather than despite a

17
United Nations, report of the Committee on the Elimination of Discrimination against Women, Supp.
No.38,A/55/38

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constitutional commitment to the secularism of the Indian state. Any proposed reform
or removal of personal laws becomes a fraught issue and is perceived as a threat to
community identity and/or traditional patriarchal arrangements.18

There is no restriction on Muslim women for praying in mosques. And even there is
no such gender discrimination to offer worship in Mecca, the Holy City. The faithful
both men and women, circle the Kaaba. There is not a single verse in the Quran which
prohibits women from entering mosques. In- fact Prophet Mohammed (peace be upon
him) encouraged women to pray in mosques. So, Islam permits women to pray in
mosques. They should have separate and equal facilities and rules do not permit inter
mingle of sexes. Now the plea seeking the entry of women in mosques is nothing but
to create a rift within the Muslim community and to disturb the peaceful situation in
all mosques. This all is happening because of no or half knowledge of people
regarding Islam.19

Critics argue that India is an amalgamation of different religions and cultures, one
civil code for the whole country is not a viable option to take. Several communities,
especially the minorities consider UCC as an encroachment on their right to freedom
of religion. Also, the Constitution of India has guaranteed its citizens the right to
freedom of religion under Article 25-26, but the unification of civil laws may reduce
the scope of these fundamental rights as it will include the interference of the state.
Also, India is a diverse country with home to almost all the religions of the world, it
will be a demanding task to make a single set of uniform codes that can govern these
diversities together. UCC is a sensitive and challenging task because most people
don’t know the actual meaning of the UCC, especially the backward classes and the
minorities. And those who slightly have a hint about the UCC think that one set of
rules will be imposed on them which will be influenced by majority religious
communities.

18
https://www.thehansindia.com/my-voice/entry-of-women-in-mosques--522492?infinitescroll=1
19

https://www.thehansindia.com/news/national/supreme-court-notice-on-plea-seeking-judicial-vista-for-d
ignified-working-conditions-732451?infinitescroll=1

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 THE COUNSEL ON BEHALF OF RESPONDENT

In Ahmadabad Women’s Action Group (AWAG) vs. Union of India, is the writ
against gender discriminatory laws of Hindu, Muslim, and Christian. The court held
that the removal of gender discrimination involves state polices and the court does not
ordinarily have a concern regarding this matter.

The implementation of UCC might lead to communal dispute, it would be much better
if some reforms are brought slowly and gradually by certain amendments in personal
laws making them suitable for modern times, The main focus should be on removing
the social differences raising due to religion and providing them with proper
information about what the basic idea behind Imple- menting the UCC which will not
hinder the religious rights of the people rather will be focused on providing them with
various benefits which they face due to different personal laws in the country.
Uniform civil code should be implemented but slowly starting with certain reforms.

Restoration of communal harmony which was weakened to a very great extent was in
the mind of the Constitution makers. Article 35 of the draft Constitution of India,
which merely proposes that the State shall endeavour to secure a civil code for the
citizens of the country. It does not say that after the Code is framed the State shall
enforce it upon all citizens merely because they are citizens. It is perfectly possible
that the future parliament may make a provision by way of making a beginning that
the Code shall apply only to those who make a declaration that they are prepared to be
bound by it, so that in the initial stage the application of the Code may be purely
voluntary. Parliament may feel the ground by some such method. This is not a novel
method.20 It was added as a part of the directive principles of the state policy in part
IV of the Constitution of India as article 44. It was incorporated in the Constitution as
an aspect which would be fulfilled when the nation would be ready to accept it and
the social acceptance to the UCC could be made.

20
Constituent Assembly Debates (Proceedings), Volume VII, Tuesday 23rd November, 1948

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 THE COUNSEL ON BEHALF OF RESPONDENT

We want to divorce religion from personal law, from what may be called social
relations or from the rights of parties as regards inheritance or succession. What have
these things got to do with religion.

In a traditional society like India, customary laws and religious practices are closely
followed by the people and any attempt to outlaw these is regarded as being a recipe
for trouble.

More recently, however, the Law Commission in a 2018, goes into detail about the
debates of the Constituent Assembly noting a complete lack of consensus on the
introduction of a UCC and what a potential uniform code, if any, would entail for
personal laws. After detailed deliberation, the Commission concluded that a UCC “is
neither necessary nor desirable at this stage”. The reason it cited was that a diverse
country like India has to have separate laws to respect the needs of all its people and
bringing uniformity would actually serve to complicate matters more than simplify
them. On the contrary, the Commission said that codification of personal laws and
doing away with specific rules and practices in different religions attract the rigour of
constitutional promises, including the guarantee against gender discrimination and
other practices which act as markers of ignorance and backwardness in society, need
immediate attention rather than the imposition of a ‘one size fits all’ law. Such
uniformity would be tantamount to strangulating the secular ethos of our society and
threaten national integrity thereby defeating its avowed ideal of unifying the nation.
To meddle with the essential aspects of their religion would be interfering with their
articles of faith, which cannot be permitted if we call ourselves secular. Therefore, the
key is not unifying but codifying the existing practices in tune with the constitutional
promises. The Commission has suggested a range of amendments to existing family
laws and also suggested codification of certain aspects of personal laws so as to limit
the ambiguity in interpretation and application of these personal laws. This way, some
of the differences within personal laws which are meaningful can be preserved and

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inequality can be weeded out to the greatest extent possible without absolute
uniformity.” 21

The opposition to the reforms is based on the Constitutional right to freedom of

conscience, guaranteed as a Fundamental right by Articles 25-28, which is claimed to
encompass the right to be governed by religious personal laws. Article 25 and Article
26 of the Constitution of India reserves fundamental rights concerning religion, such
rights are enforceable in a court of law however Article 44 concerning UCC is not
enforceable in any court, therefore, there is no possibility of UCC overlapping with
the right to religion. The objective of UCC is to bestow uniform laws concerning
marriage, lawful separation, succession, etc., and not to provide a uniform method of
practising religion, hence UCC cannot conflict with the right to religion.
Articles 25 and 26 of the Indian Constitution22guarantee the right to freedom of
religion. Article 25 guarantees to every person the freedom of conscience and the
right to profess, practice and propagate religion. But this right is subject to public
order, morality and health and to the other provisions of Part III of the Constitution.
Article 25 also empowers the State to regulate or restrict any economic, financial,
political or other secular activity, which may be associated with religious practice and
also to provide for social welfare and reforms. The protection of Articles 25 and 26 is
not limited to matters of doctrine of belief. It extends to acts done in pursuance of

21

https://economictimes.indiatimes.com/news/politics-and-nation/uniform-civil-code-neither-necessary-n
or-desirable-law-panel/articleshow/65627227.cms?utm_source=contentofinterest&utm_medium=text&
utm_campaign=cppst

22
Art 25 - 1) Subject to public order, morality and health and to the other provisions of this part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practice and
propagate religion. (2) Nothing in this Article shall affect the operation of any existing law or prevent
the State from making any law - a) regulating or restricting any economic, financial, political or other
secular activities which may be associated with religious practice; b) providing for social welfare and
reform or the throwing open of Hindu religious institutions of a public character to all classes and
sections of Hindus.
Art 26 - Subject to public order, morality and health, every religious denomination or any section
thereof shall have a right- a) to establish and maintain institutions for religious and charitable purposes;
b) to manage its own affairs in matters of religion; c) to own and acquire movable and immovable
property; and d) to administer such property in accordance with law.

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religion and, therefore, contains a guarantee for ritual and observations, ceremonies
and modes of worship, which are the integral parts of religion as was held in Acharya
Jagdishwaranand Avadhut v. Commissioner of Police, Calcutta.23
UCC is not opposed to secularism or will not violate Article 25 and 26. Article 44 is
based on the concept that there is no necessary connection between religion and
personal law in a civilised society. Marriage, succession and like matters are of
secular nature and, therefore, law can regulate them. No religion permits deliberate
distortion. The UCC will not and shall not result in interference of one's religious
beliefs. 
There is no clarity in the provisions of the Constitution itself as preamble makes India
a secular state as the term “secularism” added by the 42nd Amendment in the
Constitution and on other hand for its governance state has to interfere in the personal
laws of the citizens as being a secular State it should not do this. And furthermore Our
Constitution guarantees freedom of conscience and free profession, practice and
propagation of religion and freedom to manage religious affairs by Articles 25 and 26.
Article 44 also has been very cleverly worded in as much as it does not say that all
personal laws should be abrogated and that the proposed UCC imposed on all citizens.
Some provisions of the Constitution make implementation complicated as Art 44 of
the Constitution talks about UCC for the citizens and on other hand Art 37 states that
“the provisions of Part 4 shall not be enforceable in any Court.” 

Issues revolving around UCC are :

a. Different religions having different religious faiths which are based on the
basic practices of the religion causes difficulty in implementing a basic
platform of practices for every religion,
b. By attempting to implement this policy, the parliament is only duplicating the
western model of law,
c. The misconception of minorities that UCC will destroy their religious
practices and they will be complied to follow the religious practice of
majorities, i.e. Muslims, Sikhs, Christians, Buddhists, Jain, and Zoroastrians,

23
Acharya Jagdishwaranand Avadhut v. Commissioner of Police, Calcutta (1984)4 SCC 522

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d. The conflict of freedom of religion with equality before law and right to
equality,
e. The most significant issue is the unawareness of people regarding the objects
of UCC, and the reason for such unawareness is the lack of education, fake
news, irrational religious beliefs, etc.

The Apex Court pursued the same line in Lily Thomas etc. v. Union of India24 and
others and held: “The desirability of Uniform Civil Code can hardly be doubted. But
it can be concretized only when the social climate is properly built up by the elite of
the society, statesmen amongst leaders who instead of gaining personal mileage rise
above and awaken the masses to accept the change”.

In the case of Pannalal Bansilal Patil v. State of Andhra Pradesh25 ,the Supreme
Court of India held that “a uniform law, though is highly desirable, enactment thereof
in one go perhaps may be counter-productive to unity and integrity of the nation. In a
democracy governed by rule of law, gradual progressive change and order should be
brought about. Making law or amendment to a law is a slow process and the
legislature attempts to remedy where the need is felt most acute.”

In Makku Rawther’s Children v. Manapara Charayi26 Justice Krishna Iyer clearly

opined that the provisions of personal law must always run in accordance with the
provisions of the Constitution. It is the function of judiciary to construe the words of
personal laws with the passage of time which is the need of the hour in the light of
constitutional mandate. It is high time now to read the personal laws in the light of the
philosophy contained in Article 44. Thus, whenever the constitutionality of any
provision(s) of any personal law was challenged on the ground of being violative of
fundamental rights, the court exercised self-restraint and left the matter for the
wisdom of the legislature, the court practiced poise and left the issue for the insight of

24
Lily Thomas etc. v. Union of India AIR 2000 SC 1650
25
Pannalal Bhansilal Pitti & Ors. Etc vs. State of Andhra Pradesh & Anr 1996 AIR 1023 ,1996 SCC (2)
498
26
Makku Rawther’s Children v. Manapara Charayi  AIR 1972 Ker 27

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the legislatures saying that it involves state approaches, with which the court isn't
normally, concerned.

Two questions need to be addressed which are being completely ignored in the
present commotion around UCC. Firstly, how can uniformity in personal laws are
brought without disturbing the distinct essence of each and every component of the
society and What makes us believe that practices of one community are backward and
unjust? If one does not address these questions with gravity and depth, then we would
commit the same horrible mistake of the Americans who considered the indigenous
population as savages, needing to be liberated from their customs and rescued by the
progressive, civilized norms of Christianity.

The second question is whether uniformity has been able to eradicate gender
inequalities which diminish the status of women in our society? This question is
interlinked with the previous question. The definitions of inequality may differ from
community to community. It is necessary to determine the layers of gender injustices
and inequalities that work separately in one society than in the others. The personal
law of one society, without a doubt, are dotted with many aspects which are
contradictory to the sense of gender equality existing in that society. The first step
therefore is to eradicate those unjust practices which are endemic to that specific
society. Instead of hurriedly creating a uniform definition of injustice and inequality,
which is the dominant point of view, it is necessary that all these societies first
recognize the definitions of inequality and injustice within their peculiar sphere of
life. Otherwise, what is happening is that these societies become defensive against the
demands of uniformity and injustices within their communities are rendered invisible.

Therefore, The Counsel on behalf of the Respondent humbly submits before the
Hon'ble Supreme Court that the act of preventing the females from entering mosques
is not violative of Article 44 of the Constitution of Democratique Aryana, which
encourages the State to secure a uniform civil code for all citizens, by eliminating
discrepancies between various personal laws currently in force in the country. 

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PRAYER

Wherefore, in the light of facts stated, issues raised, authorities cited and
arguments advanced it is most humbly prayed and implored before the Hon’ble
Supreme Court of Democratique Aryana that it may be graciously pleased to
adjudge and declare that: 

a) To dismiss the PIL filed by the petitioner as no fundamental right has been
infringed and the PIL is not maintainable under Article 32
b) That fundamental right to equality of Muslim women can’t be enforced against
non-state actors, i.e. Mosques in this case.
c) That the denial of the status of a religious denomination to Mohmdiya Jama Masjid
is violates of Article 26.
d) That the mosque is a non-state actor and it’s a religious institution within the scope
of Article 26 and has right to manage its own affairs in matters of religion
e) That women’s fundamental rights to equality, non-discrimination, freedom of
religion, and life and liberty under Article 14, 15, 21 and 25 of the Constitution of
Democratique Aryana has not been violated.
f) That preventing the entry of women in mosque is not violative of Article 44 of the
Constitution of Democratique Aryana.

AND/OR

Pass any other order as the hon’ble court deems fit in the interest of equity, justice
,fair play and good conscience.

All of which is humbly prayed.

(Counsel on behalf of Respondent)

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