Saturday, 28 November 2015

Whether performing second marriage during existence of first marriage without permission of govt amounts to misconduct by public servant?

 In our view, a statutory provision casting
disqualification on contesting for, or holding, an
elective office is not violative of Article 25 of the
Constitution.
60.. ……….It may be permissible for Muslims to
enter into four marriages with four women and for
anyone whether a Muslim or belonging to any other
community or religion to procreate as many
children as he likes but no religion in India dictates
or mandates as an obligation to enter into bigamy
or polygamy or to have children more than one.
What is permitted or not prohibited by a religion
does not become a religious practice or a positive
tenet of a religion. A practice does not acquire the
sanction of religion simply because it is permitted.
Assuming the practice of having more wives than
one or procreating more children than one is a
practice followed by any community or group of
people, the same can be regulated or prohibited by
legislation in the interest of public order, morality
and health or by any law providing for social
welfare and reform which the impugned legislation
clearly does.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1662 OF 2015
(ARISING OUT OF SLP (C) NO.5097 OF 2012)
KHURSHEED AHMAD KHAN …APPELLANT
VERSUS
STATE OF U.P. & ORS. …RESPONDENTS
Citation;(2015) 8 SCC439

2. This appeal has been preferred against final judgment and
order dated 1st March, 2011 of the High Court of Judicature at
Allahabad in W.A. No.36738 of 2008.
3. The question raised for consideration relates to validity
of order dated 17th June, 2008 removing the appellant from
1Page 2
service for proved misconduct of contracting another marriage
during existence of the first marriage without permission of the
Government in violation of Rule 29(1) of the U.P. Government
Servant Conduct Rules, 1956 (for short “the Conduct Rules”) .
4. The appellant was employed as Irrigation Supervisor,
Tubewell Division, Irrigation Department, Government of Uttar
Pradesh and posted at IVth Sub Division, Hasanpur. He was
served with a charge sheet alleging that during existence of
first marriage with Sabina Begum, he married Anjum Begum
and thereby violated Rule 29 of the Conduct Rules and further
alleging that he had given misleading information to the
authorities that he had given divorce to Sabina Begum. The
appellant denied the charge by stating that the complaint made
by Shagufta Parveen, sister of his first wife was due to her
personal enmity. He had duly divorced his first wife, before
performing the second marriage. However, he had made a
statement to the contrary in enquiry proceedings initiated by
the National Human Rights Commission due to fear of the
police. It was only a mistake that he could not get the name of
his first wife corrected in the service book. It is on record that
before the charge sheet, on a complaint by the sister of the first
wife of the appellant, the National Human Rights Commission
2Page 3
had issued notice to the appellant dated 27th October, 2006 and
conducted an inquiry through the Superintendent of Police,
District Moradabad who submitted a report to the effect that
the appellant had in fact performed a second marriage without
the first marriage having been dissolved. The S.S.P.,
Moradabad also wrote to the department for taking action as
per rules. It is on that basis that the department appears to
have initiated action. In disciplinary proceedings, an inquiry
officer was appointed who gave a report that the charge was
fully proved. The appellant was furnished a copy of inquiry
report and given an opportunity to respond to the same vide
letter dated 21st January, 2008. His reply being not satisfactory,
the disciplinary authority imposed the punishment of removal
on 17th June, 2008.
5. Aggrieved by the order of removal from service, the
appellant filed the W.A. No.36738 of 2008. He impleaded his
first wife as respondent No.5 and her sister as respondent No.4
to the writ petition. He also filed an affidavit of his first wife
that the divorce had in fact been taken place in the year 1999
before his second marriage in the year 2005. However, the first
wife-respondent No.5 filed a counter affidavit denying that a
divorce had taken place as claimed by the appellant. She relied
3Page 4
upon the statement of the appellant on 3rd December, 2006
before the S.S.P., Moradabad in pursuance of order of the
National Human Rights Commission to the effect that both the
wives were living with him comfortably. She further stated that
on legal advice, the appellant took her signatures on blank
papers and manipulated the affidavit which was relied upon in
support of the writ petition.
6. The High Court after considering the submissions,
dismissed the writ petition. It was held :
“In view of above, this Court has no reason to
believe the defence of petitioner which has
already been disbelieved by the departmental
authorities and they have found petitioner
guilty. It is admitted that petitioner never
informed the department about divorce of the
first wife she was nominated and also did not
inform anything about second marriage. The
petitioner, in my view, has rightly been held
guilty of charge leveled against him. Finding
of bigamy recorded by authorities concerned
are based on petitioner’s own admission and
explanation and having not been shown
perverse or contrary to record, I find no reason
to interfere with such finding of fact.”
7. In this appeal, apart from challenging the finding of fact
recorded by the disciplinary authority and upheld by the High
Court, the appellant has raised the question of validity of the
impugned Conduct Rules as being violative of Article 25 of the
Constitution.
4Page 5
8. We have heard learned counsel for the parties.
9. As regard the charge of misconduct in question, it is
patent that there is no material on record to show that the
appellant divorced his first wife before the second marriage or
he informed the Government about contracting the second
marriage. In absence thereof the second marriage is a
misconduct under the Conduct Rules. The defence of the
appellant that his first marriage had come to an end has been
disbelieved by the disciplinary authority and the High Court.
Learned counsel for the State has pointed out that not only the
appellant admitted that his first marriage was continuing when
he performed second marriage, first wife of the appellant
herself appeared as a witness during the inquiry proceedings
and stated that the first marriage was never dissolved. On that
basis, the High Court was justified in holding that the finding of
proved misconduct did not call for any interference. Learned
counsel for the State also submits that the validity of the
impugned Conduct Rule is not open to question on the ground
that it violated Article 25 of the Constitution in view of the law
laid down by this court in Sarla Mudgal vs. Union of India1
 .
He further submitted that the High Court was justified in
1 (1995) 3 SCC 635
5Page 6
holding that the punishment of removal could not be held to be
shockingly disproportionate to the charge and did not call for
any interference.
10. We have given due consideration to the rival submissions.
We are of the view that no interference is called for by this
Court in the matter.
11. As already mentioned above, there is adequate material
on record in support of the charge against the appellant that he
performed second marriage during the currency of the first
marriage. Admittedly, there is no intimation in any form on
record that the appellant had divorced his first wife. In service
record she continued to be mentioned as the wife of the
appellant. Moreover, she has given a statement in inquiry
proceedings that she continued to be wife of the appellant. The
appellant also admitted in inquiry conducted on directions of
the Human Rights Commission that his first marriage had
continued. In these circumstances, the finding of violation of
Conduct Rules cannot be held to be perverse or unreasonable
so as to call for interference by this Court. In these
circumstances, the High Court was justified in holding that the
penalty of removal cannot be held to be shockingly
6Page 7
disproportionate to the charge on established judicial
parameters.
12. Only question which remains to be considered is whether
the impugned Conduct Rule could be held to be violative of
Article 25 of the Constitution.
13. The matter is no longer res integra.
14. In Javed vs. State of Haryana2
 , this Court dealt with the
issue in question and held that what was protected under
Article 25 was the religious faith and not a practice which may
run counter to public order, health or morality. Polygamy was
not integral part of religion and monogamy was a reform within
the power of the State under Article 25. This Court upheld the
views of the Bombay, Gujarat and Allahabad High Courts to this
effect. This Court also upheld the view of the Allahabad High
Court upholding such a conduct rule. It was observed that a
practice did not acquire sanction of religion simply because it
was permitted. Such a practice could be regulated by law
without violating Article 25. This Court observed :
“49. In State of Bombay v. Narasu Appa Mali [AIR
(1952) Bom 84] the constitutional validity of the
Bombay Prevention of Hindu Bigamous Marriages Act
(25 of 1946) was challenged on the ground of
violation of Articles 14, 15 and 25 of the Constitution.
A Division Bench, consisting of Chief Justice Chagla
2 (2003) 8 SCC 369
7Page 8
and Justice Gajendragadkar (as His Lordship then
was), held: (AIR p. 86, para 5)
“[A] sharp distinction must be drawn
between religious faith and belief and
religious practices. What the State
protects is religious faith and belief. If
religious practices run counter to public
order, morality or health or a policy of
social welfare upon which the State has
embarked, then the religious practices
must give way before the good of the
people of the State as a whole.”
50. Their Lordships quoted from American
decisions that the laws are made for the
governance of actions, and while they cannot
interfere with mere religious beliefs and opinions,
they may with practices. Their Lordships found it
difficult to accept the proposition that polygamy is
an integral part of Hindu religion though Hindu
religion recognizes the necessity of a son for
religious efficacy and spiritual salvation. However,
proceeding on an assumption that polygamy is a
recognized institution according to Hindu religious
practice, Their Lordships stated in no uncertain
terms: (AIR p. 86, para 7)
“[The right of the State to legislate on
questions relating to marriage cannot be
disputed. Marriage is undoubtedly a social
institution an institution in which the State
is vitally interested. Although there may
not be universal recognition of the fact,
still a very large volume of opinion in the
world today admits that monogamy is a
very desirable and praiseworthy
institution. If, therefore, the State of
Bombay compels Hindus to become
monogamists, it is a measure of social
reform, and if it is a measure of social
reform then the State is empowered to
legislate with regard to social reform
under Article 25(2)(b) notwithstanding the
fact that it may interfere with the right of
a citizen freely to profess, practise and
propagate religion.”
51. What constitutes social reform? Is it for the
legislature to decide the same? Their Lordships
8Page 9
held in Narasu Appa Mali case that the will
expressed by the legislature, constituted by the
chosen representatives of the people in a
democracy, who are supposed to be responsible for
the welfare of the State, is the will of the people
and if they lay down the policy which a State
should pursue such as when the legislature in its
wisdom has come to the conclusion that
monogamy tends to the welfare of the State, then
it is not for the courts of law to sit in judgment upon
that decision. Such legislation does not contravene
Article 25(1) of the Constitution.
52. We find ourselves in entire agreement with the
view so taken by the learned Judges whose
eminence as jurists concerned with social welfare
and social justice is recognized without any demur.
Divorce, unknown to ancient Hindu law, rather
considered abominable to Hindu religious belief,
has been statutorily provided for Hindus and the
Hindu marriage which was considered indissoluble
is now capable of being dissolved or annulled by a
decree of divorce or annulment. The reasoning
adopted by the High Court of Bombay, in our
opinion, applies fully to repel the contention of the
petitioners even when we are examining the case
from the point of view of Muslim personal law.
53. The Division Bench of the Bombay High Court
in Narasu Appa Mali also had an occasion to
examine the validity of the legislation when it was
sought to be implemented not in one go, but
gradually. Their Lordships held: (AIR p. 87, para 10)
“… Article 14 does not lay down that any
legislation that the State may embark
upon must necessarily be of an allembracing
character. The State may
rightly decide to bring about social reform
by stages and the stages may be
territorial or they may be
communitywise.”
54. Rule 21 of the Central Civil Services (Conduct)
Rules, 1964 restrains any government servant
having a living spouse from entering into or
contracting a marriage with any person. A similar
provision is to be found in several service rules
framed by the States governing the conduct of
their civil servants. No decided case of this Court
9Page 10
has been brought to our notice wherein the
constitutional validity of such provisions may have
been put in issue on the ground of violating the
freedom of religion under Article 25 or the freedom
of personal life and liberty under Article 21. Such a
challenge was never laid before this Court
apparently because of its futility. However, a few
decisions by the High Courts may be noticed.
55. In Badruddin v. Aisha Begum [(1957) All LJ 300]
the Allahabad High Court ruled that though the
personal law of Muslims permitted having as many
as four wives but it could not be said that having
more than one wife is a part of religion. Neither is it
made obligatory by religion nor is it a matter of
freedom of conscience. Any law in favour of
monogamy does not interfere with the right to
profess, practise and propagate religion and does
not involve any violation of Article 25 of the
Constitution.
56. In R.A. Pathan v. Director of Technical
Education [(1981) 22 Guj LR 289] having analysed
in depth the tenets of Muslim personal law and
their base in religion, a Division Bench of the
Gujarat High Court held that a religious practice
ordinarily connotes a mandate which a faithful
must carry out. What is permissive under the
scripture cannot be equated with a mandate which
may amount to a religious practice. Therefore,
there is nothing in the extract of the Quaranic text
(cited before the Court) that contracting plural
marriages is a matter of religious practice amongst
Muslims. A bigamous marriage amongst Muslims is
neither a religious practice nor a religious belief
and certainly not a religious injunction or mandate.
The question of attracting Articles 15(1), 25(1) or
26(b) to protect a bigamous marriage and in the
name of religion does not arise.
57. In Ram Prasad Seth v. State of U.P. [AIR (1957)
All 411] a learned Single Judge held that the act of
performing a second marriage during the lifetime of
one’s wife cannot be regarded as an integral part of
Hindu religion nor could it be regarded as practising
or professing or propagating Hindu religion. Even if
bigamy be regarded as an integral part of Hindu
religion, Rule 27 of the U.P. Government Servants’
Conduct Rules requiring permission of the
Government before contracting such marriage

must be held to come under the protection of
Article 25(2)(b) of the Constitution.
58. The law has been correctly stated by the High
Courts of Allahabad, Bombay and Gujarat, in the
cases cited hereinabove and we record our
respectful approval thereof. The principles stated
therein are applicable to all religions practised by
whichever religious groups and sects in India.
59. In our view, a statutory provision casting
disqualification on contesting for, or holding, an
elective office is not violative of Article 25 of the
Constitution.
60.. ……….It may be permissible for Muslims to
enter into four marriages with four women and for
anyone whether a Muslim or belonging to any other
community or religion to procreate as many
children as he likes but no religion in India dictates
or mandates as an obligation to enter into bigamy
or polygamy or to have children more than one.
What is permitted or not prohibited by a religion
does not become a religious practice or a positive
tenet of a religion. A practice does not acquire the
sanction of religion simply because it is permitted.
Assuming the practice of having more wives than
one or procreating more children than one is a
practice followed by any community or group of
people, the same can be regulated or prohibited by
legislation in the interest of public order, morality
and health or by any law providing for social
welfare and reform which the impugned legislation
clearly does.”
15. In view of the above, we are unable to hold that the Conduct
Rule in any manner violates Article 25 of the Constitution.
16. As a result of the above, we do not find any merit in this appeal
which is dismissed. No costs.
……………………………………………J.
 (T.S. THAKUR)
……………………………………………J.
 (ADARSH KUMAR GOEL)
NEW DELHI
FEBRUARY 9, 2015

Print Page

No comments:

Post a Comment