Gyanvapi-Shringar Gauri case: Explaining the arguments of Masjid Committee application, objections of the Hindu side and the Court verdict

A Varanasi court on the 12th of September gave the verdict dismissing the application by Anjuman Intezamia Masjid Committee challenging a plea by Hindu women, seeking permission to worship the Hindu deities residing in the Gyanvapi complex. The decision by the Varanasi court is being considered a massive win for Hindus in the Gyanvapi-Shringar Gauri case and the Hindu side may now ask for a court-mandated ASI survey of the premises and also, carbon dating of the Shivling found inside the “wuzukhana” of the disputed premises, where thousands of Muslims would wash their hands and feet.

The verdict comes after a district court in Varanasi reserved its order in August on a plea brought by the Anjuman Islamia Masjid Committee, which challenged the maintainability of the Gyanvapi-Shringar Gauri suit filed by five Hindu women. The Court heard arguments on the merits of a petition filed by five Hindu women seeking permission to worship at the Shringar Gauri Sthal in the disputed Gyanvapi complex of Kashi Vishwanath on a daily basis.

It is in this case that the Varanasi court ordered a video survey of the disputed complex on May 12 this year. Stunning revelations were made after the survey including the discovery of a Shivling in the Wuzukhana of the disputed Gyanvapi complex. Following the survey, Civil Judge (Senior Division) Ravi Kumar Diwakar ordered the sealing of the disputed Gyanvapi structure as requested by Advocate Hari Shankar Jain to safeguard the premises.

Ajay Mishra, the court-appointed commissioner entrusted with inspecting the Gyanvapi complex, stated in his report that there are stone sculptures of Hindu Gods and Goddesses on the walls of the disputed edifice. According to Mishra’s report, the stone carvings on the eastern and western sides of the so-called masjid are comparable, indicating that they were all part of a bigger edifice that was destroyed.

The present litigation regarding the disputed Gyanvapi complex is centred on five female petitioners. On April 18, 2021, Rakhi Singh, Laxmi Devi, Sita Sahu, Manju Vyas, and Rekha Pathak filed a lawsuit demanding the right to regularly worship and perform rituals at Shringar Gauri, Lord Ganesh, Lord Hanuman, and Nandi, as well as prohibiting opponents from harming the statues inside the disputed Gyanvapi structure.

Gyanvapi verdict: What did the Anjuman Intezamia Masjid Committee say in its application against the Hindu side

The application by the Masjid committee was filed under Order 7 Rule 11 of the CPC. This rule was essentially cited to claim that the suit (by the Hindu women) was barred in law. One of the provisions of Order 7 Rule 11 or CPC says that the suit will be dismissed by the court “where the suit appears from the statement in the plaint to be barred by any law”. The application by the Masjid committee said, “In this mosque, the common Muslims of Varanasi city and the nearby area have been offering Namaz of five times and Namaz of Eid & Jumma without any interference. The Parliament enacted the Places of Worship (Special Provisions) Act, 1991 in the year 1991. In this Act, it has been provided that the places of worship will remain in the same position in which they were on 15th August 1947 and regarding such places of worship, no suit will be maintainable in any court. Further, in 1983, Shri Kashi Vishwanath Act, 1983 was enacted in Uttar Pradesh. In this Act, it has been provided that Board of Trustees will be created which will look after Shri Kashi Vishwanath Mandir and all Gods and Goddesses in its compound”. The Masjid Committee said that the Gyanvapi Mosque (disputed) has been situated in the same place for 600 years and therefore, such suits are barred by the Places of Worship Act 1991.

The Masjid committee further said, “It has also been mentioned in application 35C that Gyanvapi Mosque, which has been described in para 12 of the plaint and its sub-paragraphs from I to XIV, is a Waqf property and it has been entered at Sl. No. 100 (Varanasi) as property of U.P. Sunni Central Board of Waqf, Lucknow. It has also been alleged in the application that the suit is barred by Act no.42 of 1991 and Act no.29 of 1983 and Act no.43 of 1995”.

Therefore, the Masjid Committee claimed that the suit by the Hindu women should be dismissed since it is barred by 3 acts – the Places of Worship (Special Provisions) Act, 1991; the Waqf Act, 1995 and the Uttar Pradesh Shri Kashi Vishwanath Temple Act, 1983.

Gyanvapi verdict: What was the Hindu side’s arguments in their objection to the application by the Masjid committee

The Hindu side, in its objection to the application filed by the Masjid Committee made the following points, in essence:

1. The Hindu side said that the plea based on the Places of Worship Act 1991 has been made by the Masjid Committee only to prolong the proceedings because they do not want the suit to be heard and decided on its merits.
2. There is no Mosque within settlement plot no. 9130 situated in the area of Dashashwamedh ward Police Station-Dashashwamedh, District Varanasi which has been described as the property in question in the suit. It has been averred in the suit that the entire property in question vests in the deity from time immemorial.
3. The suit says that if any person without the sanction of law, occupies a place and starts offering namaz, it does not turn the property into a mosque automatically.
4. Nobody has the right to encroach upon the land/property already vesting in the deity. The principle of ‘first in existence’ or ‘prior in existence’ is the paramount consideration for determining the right of worship at a particular place where two communities are claiming the right to worship. 
5. The nature of the suit has been specified clearly – The suit has been filed inter alia for restraining the defendants from interfering in the performance of Darshan, Pooja of Goddess Maa Shringar Gauri, Lord Ganesha, Lord Hanuman, Nandi Ji, Visible and Invisible deities, Mandaps and Shrines existing within the whole temple complex i.e. at the property in question.
6. The plaintiffs (Hindu women) have said that the deities existed on the premises before 15-08-1947 and the devotees have the right to protect and worship the same. The right in question here flows from Article 25 of the Constitution of India (Freedom of conscience and free profession, practice and propagation of religion).
7. The Hindu side has argued that Shri Adi Visheshwar Jyotirlingam exists along with the images of Maa Shringar Gauri, Lord Hanuman, Lord Ganesh and other Visible and invisible deities within the temple complex at land no. 9130 commonly known as Shri Adi Visheshwar Temple which are being worshipped by devotees of Lord Shiva from time immemorial despite the fact that Aurangzeb during his barbarous rule got demolished a portion of the Temple, over which Muslims without any authority of law raised some constructions over the land of the deities but the deities continued to be dejure owner of the property.
8. The image of Maa Shringar Gauri exists within the property in question at the back side of Gyanvapi in Ishan Kon. The Hindus are continuously performing pooja of Maa Gauri, Lord Hanuman, Lord Ganesha and other Visible and invisible deities with rituals and are doing circumambulation (Parikrama) of the temple of Lord Visheshwar. The Hindus continued in the 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. The plaintiffs have already moved an application for appointing an Advocate Commissioner for an inspection of the property in question in the light of the averments made in the plaint.
9. The Hindu side argued that according to Order 7 Rule 11 of the CPC, the court is supposed to take cognisance of the arguments made in the suit, not the arguments made by the defendants (in this case, the Masjid committee). Hindus said that from the arguments made in the suit, it is clear that the deities have existed within the temple property before 15th August 1947 and therefore, the Places of Worship Act 1991 cannot be applicable to the case.
10. Under Hindu law, the property once vested in the deities shall continue to be the deity’s property and its destruction, if any, cannot change the nature of the property.
11. Further detailing why the Places of Worship (Special Provisions) Act, 1991 does not apply to this case, the Hindu side cited the Ayodhya judgement. The Supreme Court had, in their verdict, said that the “idol constitutes the embodiment or expression of the pious purpose upon which legal personality is conferred”. Therefore, even if the idol is destroyed, it does not end the property from being vested with the idol.
12. The Hindu side has said that Shri Kashi Vishwanath Act, 1983 has not taken any step for proper Darshan, Pooja and performance of rituals of Maa Shringar Gauri, Lord Ganesh, Lord Hanuman and other visible and invisible deities within the whole temple complex. In the Ayodhya case, the Supreme Court had made clear that a devotee can bring a suit to protect the rights of the deities and the devotees if the shabait/trust fails in its duties.
13. Section 4 of the Places of Worship Act 1991 says that the ‘religious character of a place of worship existing on the 15th Day of August 1947’ shall remain unchanged. Now, what the nature of the place of worship was on that day has to be proven in court. The Hindu side says that they have laid the foundation for the argument that the premises were indeed a Hindu temple on that date.
14. The premises mentioned in the suit is already a ‘temple’ as defined in Section 4 (9) of the Uttar Pradesh Kashi Vishwanath Temple Act, 1983. The religious character of the entire property in the suit has already been declared by the U.P. State Legislature and there is no question of applicability of the provisions of the Act of 1991. The U.P. State Legislature has already recognised the existence of Jyotirlinga within the definition of a ‘temple’ which is in existence beneath the disputed structure and is being called Gyanvapi Mosque by Muslims.
15. The property is not a Waqf property and the registration of this property as such is illegal and void.

The Hindu side, in detail, refuted all the points that were presented by the Anjuman Intezamia Masjid Committee challenging the plea of the Hindu women, who wanted their right to worship in the temple.

Gyanvapi verdict: What did the court rule after listening to the Masjid Committee and the Hindu side

The Muslim side had three contentions mainly:

(a) The suit of the plaintiffs is barred by Section 4 of the Places of Worship (Special Provisions) Act, 1991 (Act no.42 of 1991).

(b) The suit of the plaintiffs is barred by Section 85 of the Waqf Act, 1995 (Act no.43 of 1995).

(c) The suit of the plaintiffs is barred by the Uttar Pradesh Shri Kashi Vishwanath Temple Act, 1983 (Act no.29 of 1983).

The court went into the details of each act, explaining why the suit is not barred under any of the three laws.

Places of Worship Act 1991

Sections 3 and 4 of the Places of Worship (Special Provisions) Act, 1991, says that conversion of any place of worship of any religious denomination or any section thereto into a place of worship of a different section of the same religious denomination or of a different religious denomination is prohibited. It is also noteworthy that the religious character of a place of worship as it existed on 15th August 1947 shall remain the same and it will not be allowed to be changed.

The court then proceeded to examine if the relief sought in the suit is barred by the Places of Worship Act.

The 4 main reliefs sought by the Hindus are as follows:

1. Deities are entitled to worship the deities present, visible and invisible, on the premises.
2. The Muslim side cannot create any hindrance to the Darshan, Aarti, puja etc by the Hindus.
3. Restraining the defendants from demolishing, damaging, destroying or causing any damage to the images of deities Goddess Maa Sringar Gauri at Asthan of Lord Adi Visheshwar along with Lord Ganesh, Lord Hanuman, Nandiji and other visible and invisible deities within the old temple complex situated at settlement Plot No. 9130 in the area of Ward and P.S. Dashashwamedh, District Varanasi.
4. Directing the Government of Uttar Pradesh and District Administration to make security arrangements for devotees doing Darshana, puja, etc.

Taking into account that Hindus have been worshipping the deities, it is after 16/4/2021 that devotees have been stopped from doing puja, that the government of Uttar Pradesh in 1993, without any sanction of the law, directed authorities to stop devotees from performing daily puja and entering the premises after the Ayodhya movement in 1990 to appease Muslims and that the Hindus have had continuous possession of the Taikhana, the Court said according to plaintiffs, “even after 15th August 1947 they were worshipping Maa Sringar Gauri, Lord Ganesh and Lord Hanuman daily up to the year 1993. If this contention is proved then the suit is not barred by Section 4 of the Places of Worship (Special Provisions) Act, 1991. At this stage, the averments made in the plaint are to be seen and plaintiffs will have the right to prove their averments by cogent evidence”.

The court said, “The main argument of the learned counsel for the plaintiffs is that the plaintiffs have not sought declaration or injunction over the property/land plot no.9130. They have not sought relief for converting the place of worship from a Mosque to Temple. The plaintiffs are only demanding the right to worship Maa Sringar Gauri and other visible and invisible deities which were being worshipped incessantly till 1993 and after 1993 till now once a year under the regulatory of the State of Uttar Pradesh. Therefore, the Places of Worship (Special Provisions) Act, 1991 does not operate as the bar on the suit of plaintiffs. The suit of the plaintiffs is limited and confined to the right of worship as a civil right and fundamental right as well as customary and religious right. I agree with the learned counsel for the plaintiffs”.

Section 85 of The Waqf Act 1995

The Masjid Committee argued that the suit of the Hindus (plaintiffs) is barred by Section 85 of The Waqf Act 1995 because the subject matter of the suit is a Waqf property and only Waqf Tribunal Lucknow has right to decide the suit.

Section 85 of the Waqf Act says ‘no suit or other legal proceeding shall lie in any Civil Court, revenue Court and other authority in respect of any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal’.

The Muslim side cited several case laws to claim that whether a property is a Waqf property or not cannot be decided by the Civil Court, but only a Tribunal constituted under Waqf Act can adjudicate such cases and therefore, the Hindu side suit should be dismissed. The contention of the Muslim side is that the said property of Gyanvapi is Waqf property. It is pertinent to note that the Hindu side has claimed that the said registration as Waqf property is void and illegal.

Against this argument, the Hindu side argued that in para 7 of the plaint, it is mentioned that it is undisputed that no waqf can be created over the property belonging to and vested in the deity. A mosque can be constructed only on waqf property. There is no evidence up till now that Aurangzeb had created any waqf for the construction of the mosque. Therefore, the Muslim community is an encroacher on the land and they have no right to use the land for the performance of any religious act concerning the Muslims. The. Hindu side also cited several case laws to bolster its position.

Taking this into consideration, the court ruled:

“In the present case, the plaintiffs have claimed relief that they should be allowed to worship the deities of Maa Sringar Gauri and other Gods and Goddesses in the disputed property but such relief is not covered under Sections 33, 35, 47, 48, 51, 54, 61, 64, 67, 72, & 73 of the Waqf Act. Therefore, the jurisdiction of this court to entertain the present suit is not barred. Therefore, I have come to the conclusion that the bar under Section 85 of the Waqf Act does not operate in the present case because the plaintiffs are non-Muslims and strangers to the alleged Waqf created at the disputed property and the relief claimed in the suit is not covered under Sections 33, 35, 47, 48, 51, 54, 61, 64, 67, 72 & 73 of the Waqf Act. Hence, suit of the plaintiffs is not barred by Section 85 of the Waqf Act 1995”.

Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983

“In my view, the defendant no.4 failed to prove that the suit of the plaintiffs is barred by the U.P. Kashi Vishwanath Temple Act, 1983 (Act no.29 of 1983). Section 5 of the Act declares that the ownership of the temple and its endowment shall vest in the deity of Shri Kashi Vishwanath. Section 6 of the Act provides that with effect from the appointed date, the administration and governance of the Temple and its endowments shall vest in a Board to be called the Board of Trustees for Shri Kashi Vishwanath Temple”, said the court.

The court cited Section 4(5), saying that endowment includes any property, movable or immovable, endowed for the support of the Temple or to perform rituals etc. Section 4(9) defines the “temple” as, the “Temple of Adi Visheshwar, popularly known as Sri Kashi Vishwanath Temple, situated in the City of Varanasi which is used as a place of public religious worship, and dedicated to or for the benefit of or used as of right by the Hindus, as a place of public religious worship of the Jyotirlinga and includes all subordinate temple, shrines, sub-shrines and the Asthan of all other images and deities, mandaps, wells, tanks and other necessary structures and land appurtenant thereto and additions which may be made thereto after the appointed date”.

The court said that from the perusal of these sections, that no bar has been placed on a suit asking for the right to worship at the endowment within the temple or outside the temple.

Concluding their observations, the court said, “In view of the above discussions and analysis, I have come to the conclusion that the suit of the plaintiffs is not barred by the Places of Worship (Special Provisions) Act, 1991 (Act no.42 of 1991), The Waqf Act 1995 (Act no.43 of 1995) and the U.P. Shri Kashi Vishwanath Temple Act, 1983 (Act no.29 of 1983) and the application 35C filed by the defendant no.4 is liable to be dismissed”.

The court then fixed 22nd September 2022 as the date for filing of written arguments and framing of the matter presented by the Hindu side.