In a reiteration of its earlier decision in Javed v.State of Haryana, the Supreme Court observed that polygamy isn’t an essential part of Islam. The Supreme Court was hearing an appeal filed by one Khursheed Ahmad Khan, against his dismissal by the Uttar Pradesh Government for alleged misconduct violating Uttar Pradesh Government Servants Conduct Rules, 1956. The appellant had argued that the State Government action was in violation of Art. 25 of the Constitution which guarantees the freedom to profess, practise and propagate religion. However, the Court dismissed his appeal on the ground that Art. 25 protects faith in a particular religion and not a practice, ritual or custom which may be contrary to public order, health and/or morality.
Khursheed Ahmad Khan, an employee in Uttar Pradesh Irrigation Department was dismissed on account of contracting a second marriage with one Anjum Begum, while he was still lawfully wedded to one Sabina Begum. He had apparently misled the authorities by stating that he had divorced his first wife. Even though Khan argued that it was a case of personal vendetta being refurbished before the authorities by the sister of his first wife and that there was no evidence to prove that he had not divorced his first wife; the Court refused to accept his plea owing to his admission before the National Human Rights Commission and testimony of Sabina Begum.
Earlier, the Allahabad High Court had upheld the order of the State Government dismissing Khan under Rule 29(1) of UP Government Servants Conduct Rules, 1956 on account of his failure to take prior permission for contracting second marriage while his first marriage was still in existence. The Supreme Court, affirming the same also held that the said rule does not violate Art. 25 of the Constitution.
Art. 25 of the Constitution provides the freedom to profess, practise and propagate religion. However, the Bench comprising T S Thakur and Adarsh Kumar Goel, followed the judgment of the apex court in Javed v. State of Haryana. The Javed judgment held that polygamy was not an integral part of religion and it was within the power of the State to reform the institution of marriage by making monogamy the norm. Various decisions of the Bombay, Gujarat and Allahabad High Court along with several international judgments, had also decided to the same effect.
The Bench quoted para. 60 of the Javed judgment wherein the Court had observed that a Muslim may be permitted by his religion to take more than four wives at a time or procreate as many children as he likes. However, merely because a particular ritual is permitted or not prohibited under a religion, it does not become a religious practice or an essential tenet of the religion. Art. 25 of the Constitution only protects essential practice or tenets of the religion and not every antecedent or incidental custom, which may be contrary to public order, health and morality. As such, if the State wishes to undertake social or legislative reform, it is entitled to do so.
Consequently, the Bench held that Rule 29(1) is not contrary to the scheme of Art. 25 of the Constitution.
by Siddhartha Singh
Judgement Reference Pdf: Khursheed Ahmad Khan Vs State Of U.P. & Ors