Not Proper For Writ Court To ‘Ride Roughshod’ Over Traditional Customs: Madras HC Relegates Plea Seeking Urgent Burial Rights To Waqf Board

In the matter, dispute had arisen because the petitioner (husband of the deceased) belonged to Tamil Nadu Thowheed Jamaat while the ‘Kabristan’ was run and managed by Sunnat-ul-Jamaat, and the members of Thowheed Jamaat and Sunnat – ul – Jamaat disagree on the rites and customs to be followed at the time of burial.

A bench of Justice G.R. Swaminathan of the Madurai bench thus observed, “Considering the urgency, I am not in a position to go into the merits of the matter. The counsel for the petitioner relied on certain earlier orders and insisted that interim direction can be given for burial in the “Kabristhan” maintained by the fifth respondent. I am not inclined to accept the said request. Granting interim relief will amount to allowing the main writ petition itself. That cannot be done without formal notice being served on the fifth respondent. It would not be proper on the part of the writ court to ride roughshod over the customs and practices traditionally followed by the fifth respondent. I, therefore, relegate the matter to the Tamil Nadu Wakf Board. I am conscious that the Wakf Board had already passed a resolution mandating that the facility of burial should not be denied”.

Advocate SMA. Jinnah appeared for the petitioner Special Government Pleader K. Balasubramani appeared for the District Collector.

The writ petitioner's wife passed away in the evening, a day prior to the day when the matter was heard and the Court passed orders. The writ petition was taken up by way of lunch motion.

According to the bench, the only question that called for consideration was the manner of burial of her body. The Court noted that the jurisdictional police convened peace meeting, however, the issue could not be resolved. Further, that the local police facilitated conversation with the petitioner over WhatsApp.

The bench further took note of the fact that the Wakf Board had already passed a resolution mandating that the facility of burial should not be denied, which in the present case the fifth respondent- Syed Meeran also did not refuse the burial facility. However, the insistence was that the traditional practice should be followed.

“In fact, the father of the deceased is also a member of the Sunnat-ul-Jamaat. The jurisdictional police also state that in the peace meeting, members of the Sunnat-ul-Jamaat from Tirunelveli Town are only present. In Pathamadai Village, more than thousand families of Sunnat-ul-Jamaat are present. It is for this reason that I decline to go into the merits of the matter today itself”, the bench further observed in the matter.

Accordingly, the Court directed the Chief Executive Officer of the Tamil Nadu Wakf Board to take a call in the matter the same day itself. Further directed to render his decision in writing after a virtual conference over Zoom or WhatsApp with the writ petitioner and the fifth respondent.

“It shall be communicated through e-mail or any other mode. He can seek the assistance of revenue and police authorities. Section 50(2) of the Wakf Act, 1995 states that it shall be the duty of every Mutawalli to carry out the directions of the Board. I am conscious that the Chief Executive Officer cannot be equated with the board. But in the special facts and circumstances of the case, the Chief Executive Officer of the Board shall take a call in the matter”, the order further read.

Cause Title: S. Jamal Mohideen v. The District Collector