KHURSHEED AHMAD KHANversusSTATE OF U.P. & ORS.

                       [2015] 1 S.C.R. 1032


A                  KHURSHEED AHMAD KHAN
                                  v.
                      STATE OF U.P. & ORS.
                   (Civil Appeal No.1662 of 2015
                       FEBRUARY 09, 2015
B
       [T.S. THAKUR AND ADARSH KUMAR GOEL, JJ.]

        U.P. Government Servant Conduct Rules, 1956 - r. 29(1)
  - Validity of - Removal from service - Misconduct of
C contracting another marriage during existence of the first
  marriage without pennission of the Government in violation
  of r. 29(1) - Upheld by the disciplinary authority and the High
  Court - Cha/fenge to, as also validity of the Conduct Rules
  as being violative of Art. 25 - Held: There is adequate
o material in support of the charge against the appeflant -
  Finding of violation of Conduct Rules not perverse or
  unreasonable - Penalty of removal not shockingly
  disproportionate to the charge on established judicial
  parameters - Further, the Conduct Rufe not violative of Article
E 25 since the religious faith is protected under Article 25 and
  not a practice which may run counter to public order, health
  or morality - Constitution of India, 1950 - Article 25 - Service
  law.

        Dismissing the appeal, the Court
F
       HELD: 1.1. There is adequate material on record in
  support of the charge of misconduct against the
  appellant that he performed second marriage during the
  currency of the first marriage. In these circumstances, the
G finding of violation of U.P. Government Servant Conduct
  Rules, 1956 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
H                             1032
  KHURSHEED AHMAD KHAN v. STATE OF U.P. & 1033
                  ORS.
shockingly disproportionate to the charge on established       A
judicial parameters. [Para 11] [1033-A-D]
     1.2. The Conduct Rule in any manner could not be
held to be violative of Article 25 of the Constitution. What
was protected under Article 25 was the religious faith and     8
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. [Paras 14 & 15] [1042-D;
1037-F]
                                                               c
    Javed vs. State of Haryana 2003 (1) Suppl. SCR 947:
(2003) 8 sec 369 - relied on.
   Sar/a Mudgal vs. Union of India 1995 (1) Suppl.
SCR 250: (1995) 3 SCC 635 - referred to.                       D
                    Case Law Reference :
   1995 (1) Suppl. SCR 250     Referred to         Para 9
   2003 (1) Suppl. SCR 947 Relied on               Para 14
                                                               E
    CIVIL APPELLATE JURISDICTION : CIVIL APPEAL
No(s). 1662 of 2015

    From the Judgment and Order dated 01.03.2011 of the
High Court of Judicature at Allahabad in Writ Appeal No.
                                                               F
36738 of 2008.

    Javed Ahmed, Firasat Ali, Ugranath Kumar, Ram Swarup
Sharma for the Appellant.

    Aarohi Bhalla, Ardhendumauli Kumar Prasad, Ram             G
Kishore Singh Yadav for the Respondents.

    The Judgment of the Court was delivered by

    ADARSH KUMAR GOEL, J. 1. Leave granted.
                                                               H
    1034     SUPREME COURT REPORTS                 (2015] 1 S.C.R.


A        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
8   service for proved misconduct of contracting another marriage
    during existen_ce 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") .
c         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
D   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
E   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
F   the charge sheet, on a complaint by the sister of the first wife
    of the appellant, the National Human Rights Commission 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
G   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
H   was appointed who gave a report that the charge was fully
  KHURSHEED AHMAD KHAN v. STATE OF U.P. & 1035
       ORS. [ADARSH KUMAR GOEL, J.]

proved. The appellant was furnished a copy of inquiry report              A
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.
                                                                          B
      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          C
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 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              D
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.
                                                                          E
    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             F
     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              G
     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."
                                                                          H
    1036       SUPREME COURT REPORTS               (2015] 1 S.C.R.


A       7. In this appeal, apart from challenging the finding of fact
    recorded by the disciplinary authorit',t 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.
B
         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
C   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.
D   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
E   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
F   laid down by this court in Sar/a Mudga/ vs. Union of lndia 1 • He
    further submitted that the High Court was justified in holding
    that the punishment of removal could not be held to be
    shockingly disproportionate to the charge and did not call for
    any interference.

G        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.


H   1.   (1995) 3 sec 635.
     KHURSHEED AHMAD KHAN v. STATE OF U.P. & 1037
          ORS. [ADARSH KUMAR GOEL, J.]

      11. As already mentioned above, there is adequate                A
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                B
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         c
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
disproportionate to the charge on established judicial                 0
parameters.

     12. Only question which remains to be consi.dered is
whether the impugned Conduct Rule could be held to be
violative of Article 25 of the Constitution.
                                                                       E
       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
                                                                       F
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         G
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 :

2.    c2003) a sec 369.                                                H
    1038   SUPREME COURT REPORTS                 [2015) 1 S.C.R.


A      "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
B      Bench, consisting of Chief Justice Chagla 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.
c             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
D             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
E      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, proceedinflti.on an
F      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
G             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
H             praiseworthy institution. If, therefore, the State of
KHURSHEED AHMAD KHAN v. STATE OF U.P. & 1039
     ORS. [ADARSH KUMAR GOEL, J.]
        Bombay compels Hindus to become                            A
        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     B
        freely to profess, practise and propagate religion. n

 51. What constitutes social reform? Is it for the legislature
 to decide the same? Their Lordships held in Narasu
 Appa Mali case that the will expressed by the legislature,        C
 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              D
 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          E
  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        F
  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            G
  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              H
    1040    SUPREME COURT REPORTS                [2015) 1 S.C.R.

A      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
B
              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,
c      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 has
D      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
E      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
F      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
G      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,
H      a Division Bench of the Gujarat High Court held that a
KHURSHEED AHMAD KHAN v. STATE OF U.P. & 1041
     ORS. [ADARSH KUMAR GOEL, J.]

 religious practice ordinarily connotes a mandate which         A
 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     B
 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        c
 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 D
 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 E
 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           F
 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                 G
 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             H
    1042         SUPREME COURT REPORTS            [2015] 1 S.C.R.

A        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
B        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
c        by any community or group ofpeople, 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."

D       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
E this appeal which is dismissed. No costs.

    Nidhi Jain                                      Appeal Dismissed .