Although their personal law permits men to have four wives, the Supreme Court on Monday ruled that a Muslim's fundamental right to profess Islam did not include practicing polygamy.Not sure for how long India will stay secular: SC
"What was protected under Article 25 (right to practice and propagate any religion) 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," said a bench of Justices T S Thakur and A K Goel.
The bench said that polygamy was not integral to religion and the practice of polygamy did not acquire sanction of religion simply because it was permitted.
It upheld the UP government's decision to sack one of its employees on the ground of misconduct for opting for a second marriage during existence of the first marriage without its prior permission.
Referring to its earlier verdict, the bench said that Article 25 protects religious faith, not a practice. It noted that the court had upheld the views of the Bombay, Gujarat and Allahabad high courts in this regard.
The bench upheld conduct rules framed by UP Government Servant Conduct Rules, saying that it did not violate Article 25 of the Constitution.
In this case Khursheed Ahmad Khan, employed as irrigation supervisor, had married Anjum Begum during existence of first marriage with Sabina Begum. Sister of his first wife had filed a complaint before National Human Rights Commission which ordered a police probe in the case.
The police submitted its report before the commission saying that Khan had married a second time during the existence of the first marriage. On this basis, the state government had initiated proceedings and later removed him from service for failure to take prior permission for second marriage as was required under rule 29 of the conduct rules.
Khan had then approached the Allahabad high court and challenged his removal from service. The HC had dismissed his plea.
The Supreme Court on Monday said that India is a secular country today, but it is not sure for how long it will stay that way. The court also stressed that religious decrees cannot override the written code of law.
“India till now is a secular country… we don’t know for how long it will remain a secular country. We have to stamp out religion from civil laws. It is very necessary. There are already too many problems,” said a bench of Justices Vikramjit Sen and C Nagappan.
The bench was hearing a PIL by advocate Clarence Pais, who wanted the apex court to put its stamp of approval on the decrees of divorce and other such decrees issued by an ecclesiastical court or tribunal. An ecclesiastical court, set up under the Canon Law, is an institution for Catholic Christians. Pais (85), who is the former president of the Catholic Association of Dakshina Kannada in Karnataka, pleaded with the Supreme Court to ratify decrees of dissolution of marriage granted by an Ecclesiastical Court. He also sought a declaration that no criminal court in India could prosecute Roman Catholics under Section 494 of the Indian Penal Code for the offence of bigamy without considering the Canon Law.
Arguing for Pais, senior advocate Soli Sorabjee urged the bench to consider this as an important question of law and religious freedom, and said that the issue impacted more than one crore citizens who are Indian Christians governed by the Canon Law on marriage and its dissolution.
However, the bench retorted, “This cannot be accepted, otherwise every religion will say it has a right to decide various issues as a matter of its personal law. We don’t agree with this at all. It has to be done though a decree of a court.”
It said that religion and institutions primarily meant to propagate religious faith must keep out of issues governed under the statutes. “Consider a situation totally opposite to this. Can this court ask an Ecclesiastical court to either recognise a marriage or a divorce? It cannot. How can one compel civil laws of the land to recognise Ecclesiastical courts?” asked the bench.
The apex court cited honour killing as an illustration of the perils of religious or self-styled socio-political institutions in case they are legally backed. “Look at the cases of honour killings. Then there is ostracisation of young boys and girls. You don’t follow what they state as a law of the society and you get ostracised,” it said.
Sorabjee submitted that if the Supreme Court did not recognise marriage and its dissolution under the Canon Law, men will be exposed to the dangers of being prosecuted for bigamy. The bench, however, replied: “Of course, such cases can be filed. But who is asking you to go to Ecclesiastical court?
Ecclesiastical court is on one side and the civil law on the other and only the latter is recognised. Ecclesiastical court should only be for religious purposes.” It gave the central government four weeks to file its formal response to the PIL and fixed the case for further hearing in April.
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