Page 1

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

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. Leave granted.

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  

1

Page 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  

2

Page 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  

3

Page 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.

4

Page 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 India  1  .  

He  further  submitted  that  the  High  Court  was  justified  in  

1 (1995) 3 SCC 635

5

Page 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  

6

Page 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 Haryana  2  , 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

7

Page 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   

8

Page 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  all- embracing  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   

9

Page 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  

10

Page 11

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

11