RAM PRASAD SETH Vs. STATE OF U P

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution praying that the orders dated the 13th July, 1955 and 4th of November, 1955 be quashed and further for a writ of mandamus commanding the State of U. P. to dispose of the petitioner's applications dated the 24th April, 1955 and 4th August, 1955 in accordance with the personal law as laid down in the Dharam Shastras as the provisions of Sections 5, 9, 10 and 13 and other provisions of the Hindu Marriage Act, 1955 are ultra vires of the Constitution particularly when they debar the petitioner to exercise hia fundamental rights guaranteed by the Constitution. The reliefs which I have quoted above on the face of it appear to be very widely worded but the direction or the orders which the petitioner really asks this Court to issue will be clear from the facts which have been set out in the affidavit filed along with this petition and are mentioned below.

(2.) The petitioner passed the examination of the Civil Engineering from the Thomson College, Roorkee in or about the year 1936 and is at present occupying the post of Sub-Divisional Officer, Public Works Department, working at Karan-prayag in the district of Garhwal. In the year 1934 he was married to Smt. Shanti Devi who has been impleaded as opposite party No. 3 to this petition, and had four children born of her. According to the petitioner the opposite party No. 3 after the birth of the girl miscarried five times during the period between 1960 and 1954. The petitioner contends that according to the Hindu Dharam Shastras he cannot attain salvation without a son and that a number of religious obligations will remain unfulfilled unless there is a male child in the family. Having that in mind the petitioner asked the opposite party No. 3 to consent to his marrying again and she willingly gave her consent but subsequently she changed her mind and refused to give her consent under the influence of her brother. The petitioner, however, settled his marriage with certain family of his community. The opposite party No. 3 requested the State Government to ask the petitioner to refrain from marrying. The petitioner was, therefore, served with a telegraphic message from the Chief Engineer, Public Works Department, to the effect that he should not marry a second wife without obtaining the permission of the State Government. On the 24th April the petitioner made an application to the State Government for permission to take a second wife. Another application to the same effect on the 10th July, 1955 was made by his father. At that time Hindu Marriage Bill was pending before the Parliament. After the passing of the Hindu Marriage. Act the petitioner was informed that he could not be permitted to marry. The Hindu Marriage Act was passed on the 18th May, 1955. On the 4th August, 1955 the petitioner submitted another application enquiring from the Chief Engineer the reasons on which the conclusions had been arrived at against the petitioner. To that letter he received a reply on the 22nd November 1955 to the effect that the grounds could not be supplied to him. By a Government order dated the 31st of January 1955 in exercise of the powers conferred by the proviso to Article 809 of the Constitution the Governor of U. P., was pleased to make the following amendment in the Government Servants Conduct Rules:

(3.) The petitioner has contended that the rule which provides that a Government servant cannot marry a second wife during the presence of the first wife without the permission of the State Government infringes the fundamental right guaranteed to the petitioner under Article 25 of the Constitution. It was contended by the Standing Counsel that it is open to an employer to retain as a condition of service that the employee must obtain permission before he marries a second time during the presence of his first wife and an employee having entered into service under that condition cannot turn round and say that such a condition is invalid as it contravenes the provisions of the Constitution. In effect this argument is that what the State Government is doing is only enforcing a certain term of the conditions of service. It may, therefore, legitimately be argued that the rules made in exercise of the powers under Article 309 of the Constitution by the Governor are laws within the meaning of section 13 and If they infringe any of the fundamental rights guaranteed under part 3 of the Constitution, they can be held as invalid and any order passed in the exercise of that rule by the State or by the authorities can be quashed by this Court under Article 226 of the Constitution. It is, therefore necessary to go into the question whether the rule is violative of the fundamental right guaranteed under Article 25 of the Constitution.