Freedom to contract marriage v. statutory prohibition as per the service rules: Rule upheld by Supreme Court

A bench of  Justice Adarsh Kumar Goel & Justice T.S.Thakur today upheld constitutional validity of Rule 29(1) of the U.P. Government Servant Conduct Rules, 1956. The impugned rule lays down ground for removal from service as a misconduct by contracting another marriage during existence of the first marriage without permission of the Government. The appellant who was employed as an Irrigation Supervisor, Irrigation Department, Government of Uttar Pradesh had contracted second marriage during subsistence of the first marriage and was consequently terminated after giving charge sheet. His contention that he had divorced the first wife was throughout rejected based on his earlier statement denying such divorce.

In the petition before the Apex Court, apart from the challenge to the High Court's order affirming removal, the appellant also challenged the abovesaid rule to be violative of Article 25 of the Constitution. It was argued that under muslim personal law, it is permitted to contract four marriages. Such a rule prescribing punishment in form of removal from service is ultra vires the constitutional scheme of freedom to practice one's religion. It was submitted that the state cannot legislate restricting one's freedom to follow his religion in a duly approved manner and that the only reasonable restrictions under Art 25 are Public Order, Morality and health. The respondent state opposed this contention relying on Sarla mudgal's case.

The bench speaking through Justice Goel, held that the matter has been squarely covered by the judgment in Javed v State of Haryana [(2003) 8 SCC 369]. Quoting and relying cxtensively on this judgment, it was held that the impugned rule was not violative of Art 25. Para 60 of the 2003 judgment said –

"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."

This judgment, once again sets the standards of effective maintenance of constitutional serendipity high enough from the reach of personal laws tending to interfere with statutory regulations laid down irrespective of one's religion or faith. The impugned rule is equal for any individual practicing any religion. A deliberate breach amounts to wilfull misconduct, which cannot be excused on a claim of freedom of religion. The judgment also strengthens the constitutional mandate of secularism as a phenomenon of equal treatment of all religions in the country.

Read the Judgment here.