JUDGMENT
R.M. Lodha, J.
1. Heard Mr. Nusrat Shah, learned counsel
for petitioner and Mr. K.P. Ravi, learned
counsel for respondent Nos.1 and 2.
2. The petitioner Ms. Fathema Hussain Sayed
(minor) is a student of standard VI in Karthika
English School (respondent No.2). It is her case
that she was asked by the Principal of the School
to not to attend class from 28.11.2001 if she
wore the head scarf. This direction given by the
Principal to the petitioner on 28.11.2001 is
under challenge in this writ petition. The
petitioner says that she hails from Muslim family
and follows the Islam religion and since the Holy
Quran provides that a female child after 9 years
of age should cover her head by scarf, she
started wearing head-scarf from June, 2001.
According to her, head-scarf does not violate the
dress code or the discipline of respondent No.2
school and therefore, the direction given by the
Principal on 28.11.2001 is violative of
petitioners fundamental right of freedom of
conscience and professing, propagating and
practicing Islam religion.
3. Before we advert to the merits of the
matter, we observe that the petitioner for the
self-same relief filed earlier writ petition No.
357 of 2002. The said writ petition was
withdrawn by the petitioner and dismissed
accordingly vide order dated 11th February, 2002.
The order reads thus-
“The learned counsel appearing
for the petitioner seeks leave to
withdraw the petition. Leave granted.
Petition is dismissed as withdrawn.”
4. It is clear from the aforesaid order that
neither liberty to approach the court again was
sought nor granted. It is against public policy
to permit a litigant to approach the court again
and again once the matter has been withdrawn by
him unconditionally. Mr. Nusrat Shah, learned
counsel for the petitioner submitted that there
is no estoppel against statute and if there is
violation of fundamental right, the petitioner
can file 100 writ petitions again and again and
again so long as infraction of fundamental right
continues. We are afraid, the sweeping statement
of the learned counsel cannot be accepted. If a
litigant exercises his right in approaching the
court and complains infraction of fundamental
right, the process must be taken to logical
conclusion. Such litigant, if withdraws the
proceeding unconditionally and without liberty to
file fresh proceeding, he may not be permitted to
approach the court again and again because it is
against the public policy even though there is no
question of res-judicata or estoppel.
5. Even if we assume that petitioner may be
permitted to file second writ petition though
first writ petition was withdrawn without
liberty, we find it difficult to accept the
submission of the learned counsel that by not
permitting the petitioner to wear head-scarf, the
fundamental right of the petitioner under Article
25 is violated. Article 25 of Constitution of
India reads thus-
“25.Freedom of conscience and free
profession, practice and propagation of
religion.- (1) Subject to public order,
morality and health and to the other
provisions of this Part, all persons are
equally entitled to freedom of conscience
and the right freely to profess, practise
and propagate religion.
(2) Nothing in this article shall
affect the operation of any existing law
or prevent the State from making any law-
(a) regulating or restricting any
economic, financial, political or
other secular activity which may
be associated with religious
practice;
(b) providing for social welfare
and reform or the throwing open
of Hindu religious institutions
of a public character to all
classes and sections of Hindus.
Explanation I.- The wearing and
carrying of kirpans shall be deemed to be
included in the profession of the Sikh
religion.
Explanation II.- In sub-clause
(b) of clause (2), the reference to
Hindus shall be construed as including a
reference to persons professing the Sikh,
Jaina or Buddhist religion, and the
reference to Hindu religious institutions
shall be construed accordingly.
6. By asking petitioner who is student in
class VIth standard of respondent No.2 school to
maintain the dress code prescribed by the school,
how can it be said that the petitioners
fundamental right of freedom of conscience and
free profession, practice and propagation of
religion is violated. Article 25 guarantees that
every person in India shall have freedom of
conscience and shall have the right to profess,
practice and propagate religion, subject to
restrictions imposed by the state on the grounds
of (i) public order, morality and health; (ii)
other provisions of the Constitution; (iii)
regulation of non-religious activity associated
with religious practice; (iv) social welfare and
reform etc. There does not seem to be such
established practice and profession of the Islam
religion from covering their heads by the girls
studying in all girls school. The learned
counsel for the petitioner however, sought to
place reliance upon verse 31 of chapter 24-64 of
Holy Quran (Quran-E-Majid). Verse 31 reads thus-
“31. And say to the believing women
that they cast down their looks and guard
their private parts and not display their
ornaments except what appears thereof,
and let them wear their head-coverings
over their bosoms, and not display their
ornaments except to their husbands or
their fathers, or the fathers of their
husbands, or their sons, or the sons of
their husbands, or their brothers, or
their brothers sons, or their sisters
sons, or their women, or those whom their
right hands possess, or the male servants
not having need (of women), or the
children who have not attained knowledge
of what is hidden of women; and let them
not strike their feet so that what they
hide of their ornaments may be known; and
turn to Allah all of you, O believers!
so that you may be successful.
7. A girl student not wearing the head-scarf
or head covering studying in exclusive girls
section cannot be said to in any manner acting
inconsistent with the aforesaid verse 31 or
violating any injunction provided in Holy Quran.
It is not an obligatory overt act enjoined by
Muslim religion that a girl studying in all girl
section must wear head-covering. The essence of
Muslim religion or Islam cannot be said to have
been interfered with by directing petitioner not
to wear head-scarf in the school.
8. We, therefore, do not find any merit in
the contention of the learned counsel for the
petitioner that direction given by the Principal
to the petitioner on 28.11.2001 to not to wear
head-scarf or cover her head while attending
school is violative of Article 25 of Constitution
of India.
9. It would not be out of place to mention
here that after 28.11.2001 the petitioner has
been attending school regularly without wearing
the head-scarf or head-covering.
10. No case for interference in writ
jurisdiction is made out.