Case Law Details
Smt Resham Vs State of Karnataka (Karnataka High Court)
Hon’ble Karnataka High Court held that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.
In order to establish their case, claimants have to plead and prove that wearing of hijab is a religious requirement and it is a part of ‘essential religious practice’ in Islam in the light of a catena of decision of the Apex Court that ultimately ended with INDIAN YOUNG LAWYERS ASSOCIATION. The same has already been summarized by us above. All these belong to the domain of facts. In NARAYANA DEEKSHITHULU, it is said: “…What are essential parts of religion or religious belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence-factual or legislative or historic-presented in that context is required to be considered and a decision reached…” The claimants have to plead these facts and produce requisite material to prove the same. The respondents are more than justified in contending that the Writ Petitions lack the essential averments and that the petitioners have not loaded to the record the evidentiary material to prove their case. The material before us is extremely meager and it is surprising that on a matter of this significance, petition averments should be as vague as can be. We have no affidavit before us sworn to by any Maulana explaining the implications of the suras quoted by the petitioners’ side. Pleadings of the petitioners are not much different from those in MOHD. HANIF QUARESHI, supra which the Apex Court had critized. Since how long all the petitioners have been wearing hijab is not specifically pleaded. The plea with regard to wearing of hijab before they joined this institution is militantly absent. No explanation is offered for giving an undertaking at the time of admission to the course that they would abide by school discipline. The Apex Court in INDIAN YOUNG LAWYERS ASSOCIATION, supra, has stated that matters that are essential to religious faith or belief; have to be adjudged on the evidence borne out by record. There is absolutely no material placed on record to prima facie show that wearing of hijab is a part of an essential religious practice in Islam and that the petitioners have been wearing hijab from the beginning. This apart, it can hardly be argued that hijab being a matter of attire, can be justifiably treated as fundamental to Islamic faith. It is not that if the alleged practice of wearing hijab is not adhered to, those not wearing hijab become the sinners, Islam loses its glory and it ceases to be a religion. Petitioners have miserably failed to meet the threshold requirement of pleadings and proof as to wearing hijab is an inviolable religious practice in Islam and much less a part of ‘essential religious practice’.
In view of the above discussion, we are of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.
FULL TEXT OF THE JUDGMENT/ORDER OF KARNATAKA HIGH COURT
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