Delhi Court Rejects Muslim Man's Plea Against Re-Use Of Wife's Grave, Says No Proof Body Hasn't Decomposed

A Delhi Court has refused to restrain the re-use of a grave in the Shaheen Bagh graveyard observing that it would amount 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.

District Judge Atul Ahlawat of Saket Courts dismissed an appeal filed by one M. Basharat Hussain challenging a trial court order refusing interim protection against the alleged re-use of the grave of his wife, who was buried in April 2021 at the Shaheen Bagh Qabristan managed by Jamiat Ulema-i-Hind.

The appellate court had upheld the trial court's decision and vacated the interim protection that had been operating during the pendency of the appeal.

The man submitted that under Muslim Personal Law and Hadith, graves cannot be re-used until the previously buried body has completely decomposed.

He argued that disturbing the grave before then would violate the dignity of the deceased and the constitutional guarantee of a dignified burial. He also claimed that he sought protection only for seven years and not an indefinite period.

The respondents, however, argued that the man had no legal, contractual or religiously enforceable right to reserve a particular grave in a public cemetery.

It was submitted that the graveyard was maintained for the benefit of the Muslim community at large and that the re-use of burial space has become necessary due to acute scarcity of land.

Dismissing the appeal, the Court said that the Trial Court had correctly appreciated the facts of the case in light of the Muslim Personal Law governing the burial and reburial on the same piece of land, since neither party could adduce any scientific or cogent other evidence with respect to the approximate time that is required for a body to fully decompose and turn into dust.

“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 judge said.

It was also observed that the words of the Prophet Mohammad as recorded in the authoritative texts of the Islamic Scholars record that although under the Islamic Law digging of the grave is generally forbidden since it violates the sanctity of the deceased, however re-use of the same space is allowed in case of necessity.

The judge concluded that the appellant did not bring any scientific evidence to even prima facie establish that the body of his wife was yet to be fully decomposed.

“No such effort was made on behalf of the appellant to bring on record any cogent evidence, even in the present appeal before this Court. The onus remained on the appellant and merely by asserting a fact that the body of his deceased wife is yet to fully decompose or that it would require minimum 7 years, without there being any foundational scientific evidence to support the said assertions, could not satisfy the test of prima facie case, in absence of which no temporary injunction could have been granted to the appellant, and the Ld. Trial Court had rightly dismissed his application under Order XXXIX Rule 1 and 2 CPC, 1908,” the Court said.

However, the Court clarified that its observations were only with respect to the issue of the temporary injunction as sought by the appellant and that the appellant can still adduce the evidence in support of his case before the Trial Court.

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