Delhi court rejects plea against reuse of Shaheen Bagh grave

New Delhi:A Delhi court on Friday declined to restrain the management of the Shaheen Bagh graveyard from reusing a grave, observing that granting such protection would create a private right over limited public burial land meant to serve the Muslim community

New Delhi:

District judge Atul Ahlawat of the Saket Courts dismissed an appeal filed by M. Basharat Hussain, a Jasola Vihar resident, upholding a trial court order that had refused interim relief in the matter. (Representative photo)

A Delhi court on Friday declined to restrain the management of the Shaheen Bagh graveyard from reusing a grave, observing that granting such protection would create a private right over limited public burial land meant to serve the Muslim community.

District judge Atul Ahlawat of the Saket Courts dismissed an appeal filed by M. Basharat Hussain, a Jasola Vihar resident, upholding a trial court order that had refused interim relief in the matter.

Hussain’s wife was buried at the Shaheen Bagh graveyard, managed by Jamiat Ulema-i-Hind, in April 2021. A legal dispute arose last year when the graveyard management moved to bury another body over her grave.

In his plea, Hussain argued that Islamic law does not permit reuse of a grave until the body buried in it has completely decomposed. Citing Muslim Personal Law, he contended that disturbing his wife’s grave before that stage would violate both the dignity of the deceased and the constitutional right to a dignified burial. He maintained that he was only seeking protection for a period of seven years, and not permanently.

While rejecting the appeal, judge Ahlawat held that the trial court had correctly applied the principles of Muslim Personal Law relating to burial and reburial. He observed that neither the appellant nor the graveyard management had placed any scientific or other reliable material before the court to establish how long it ordinarily takes for a buried body to decompose completely.

The court also vacated the interim protection that had restrained the management from digging up Hussain’s wife’s grave, which had remained in force while the appeal was pending.

“The temporary injunction as sought by the appellant to preserve the dignity of the body of his deceased wife, could not be granted for any particular period of time, since it would have amounted to creating a private right on the scarce public land, which is utilized for the needs of the society as a whole and the Muslim populace in particular,” the court held.

Relying on Islamic jurisprudence, the court noted that authoritative writings of Islamic scholars state that while exhuming a grave is generally prohibited because it infringes upon the sanctity of the deceased, reuse of the same burial space is permissible when circumstances make it necessary.

The court further noted that Hussain had failed to produce “even prima facie scientific evidence” to show that his wife’s body had not yet fully decomposed. It said the burden to establish this fact rested on the appellant, and an assertion that decomposition would require at least seven years, unsupported by any foundational scientific evidence, was insufficient to justify the grant of an interim injunction.

The court, however, clarified that its observations were limited to the question of interim relief and that Hussain would still have the opportunity to lead evidence before the trial court to support his case during the course of proceedings.