1. This appeal has been preferred against a judgment of Mr. Justice Mehrotra by which he dismissed a petition of the appellant filed under Article 223 of the Constitution.
2. The appellant is an Engineer employed under the State of Uttar Pradesh in the Public Works Department He claims to be a Hindu by religion. He was married to respondent No. 3 in 1934. A daughter was bom of the marriage. Thereafter the respondent No. 3 began to miscarry. No son was ever born to her and it has been found that on medical grounds the respondent No. 3 was incapable of bearing a son.
Both the appellant and his father believe that according to Hindu Dharm Shastras salvation was not possible without a son and in the absence of a male child in the family a number of religious obligations would remain unfulfilled. The appellant, therefore, decided to marry a second wife in the hope that he will be able to get a son by her. The respondent No. 3 at first consented to the proposal but then changed her mind.
At her instance, relying on Rule 27 of the Government Servants' Conduct Rules the State Government directed the appellant not to marry a second wife without obtaining its permission. Both the appellant and his father then submitted applications to the State Government requesting it to permit the appellant to many a second wife. By that time the Hindu Marriage Act had come into fores which prohibited a second marriage during the life time of the first wife.
The permission sought for by the appellant was, therefore, refused. By the writ petition which has given rise to this appeal the appellant challenged the validity of Rule 27 of the Government Servants' Conduct Rules as well as the provisions of the Hindu Marriage Act which prohibited bigamy on the ground that they infringed the freedom of religion guaranteed by Article 25 of the Constitution. He prayed that the orders of the State Government refusing permission for his second marriage be quashed and that a direction be issued that his application should be decided in accordance with the personal law laid down in Dharm Shastras.
3. The petition was opposed on the grounds that the impugned provisions were perfectly valid, that the Government Servants' Conduct Rules constituted the conditions of the appellant's service and as long as he was in the service of the State he was bound to obey the rules and that no general declaration could be granted about the invalidity of the provisions of the Hindu Marriage Act.
4. The learned Judge who heard the petition was not impressed by the last two contentions but accepted the first mainly on two grounds. Firstly, that the impugned provisions were saved by Clause (2) (b) of Article 25 of the Constitution and secondly, that it could not be said that it was an obligatory or integral part of the Hindu religion to many a second wife in the life time of the first if the latter had no male child. The Hindu religion, thelearned Judge pointed out, permitted the adoption of a son and an adopted son was for all purposes as good as a natural born son. The petition filed by the appellant was, therefore, rejected.
5. In appeal the learned counsel for the appellant assailed both the grounds which had prevailed with the learned Judge. After hearing him in respect of the first ground, however, we did not find it necessary to hear him on the second ground. Learned counsel failed to satisfy us that the first ground was untenable or that it was not enough to justify the rejection of the petition.
6. Article 25 of the Constitution reads as fol-lows:-
'25.(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propogate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law --
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practise;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.-- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.-- In Sub-clause (b) of Clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.'
7. Three submissions were made on behalf of the appellant in support of the contention that Clause (2) (b) of Article 25 could not save the impugned laws.
1. Freedom of religion was guaranteed by Clause (1) of Article 25 of the Constitution. That clause not only guaranteed the freedom of beliefs but also protected all religious practices in pursuance of such beliefs. It was a part of the religious belief of all orthodox Hindus that no person could attain salvation without certain religious obligations being performed by a son. The practice of marrying a second wife in order to obtain a son when the first wife could not provide one was a practice followed in pursuance of that belief. The belief as well as the practice stood guaranteed by Clause (1) of Article 25. The guarantee had been made subject only to public order, morality, health and the other provisions of Part 3 of the Constitution. The impugned provisions had put an unjustified restriction on the right guaranteed by the clause and could not by any stretch of language be brought under any of the four grounds to which the right had been made subject.
2. The second clause of Article 25 should be construed so as to be in harmony with the first clause. It should not be interpreted as taking away by one hand something which was being given by the other. If there is a conflict between the two clauses it is the first clause which is to prevail.
3. Recourse could not be had to Clause (2) (b) of the Article for saving provisions which were being challenged because the operation of that clause was intended to be confined to social welfare and reform of Hindu religious institutions of a particular kind. The clause was not intended to permit the State to make laws affecting the religious beliefs and practices of individual Hindus under the pretext of social welfare and reform.
8. The first submission in our opinion Overlooks that the Constitution does not give any absolute or unrestricted guarantee in respect of freedom of religion. It is in our view not permissible to stress one part of the Article at the expense of the other. The entire Article has to be construed as a whole and as far as possible effect is to be given to every part of it. The extent to which freedom of religion is guaranteed is to be found in the whole of the Article and not in any particular part of it.
It has also to be noted that Clause (1) of Article 23 has been made expressly subject to the other provisions of Part 3 of the Constitution, Clause (2) of the Article is as much a provision of that Part as any other. It cannot, therefore, be said that Clause (1) of the Article is entirely independent of Clause (2) and is not to be read subject to that clause.
9. The two clauses of Article 25 have undoubtedly to be read so as to be in harmony with each other. There is, however, no real conflict between the two clauses. The question of one prevailing over the other does not in the circumstances arise. The opening words of Clause (2) viz. 'nothing in this Article shall affect' make it quite clear that if a certain piece of legislation falls within the four comers of Clause (2) and is covered by it, it will not be affected at all by the first clause.
In this sense Clause (2) enacts an exception to Clause (1). But for this exception the matters covered by Clause (2) would have been governed by Clause (1). Because of the exception expressly provided for in the second clause those matters will remain unaffected by the first clause. In effect, therefore, the second clause really provides an additional restriction on the right guaranteed by the first clause.
It follows that if some of the sections of the Hindu Marriage Act have been enacted as a measure of social welfare and reform nothing in the first clause of Article 25 can be allowed to affect that enactment. The legislature of the country is the best judge of what is necessary for the welfare or reform of a particular community at any particular stage. Nothing has been urged on hehalf of the appellant to show that this piece of legislation is not a measure of social welfare and reform. Tho first clause of Article 25 cannot, therefore, affect it in any way.
10. We find no justification for limiting the application of the words 'providing for social welfare and reform' used in Clause (2) (b) of Article 25 to Hindu religious institutions of a public character. We think Sub-clause (b) contemplates three classes of legislation.
1. Laws relating to social welfare.
2. Laws relating to social reform.
3. Laws made for throwing open of Hindu religious institutions to all classes and sections of Hindus.
If the words 'providing for social welfare and reform'' are interpreted in the manner suggested by the learned counsel for the appellant the sub-clause would really become meaningless for it would read 'providing for social welfare and reform ..... of Hindu religious institutions of public character to all classes and sections of Hindus'. The framers of the Constitution could not have intended the sub-clause to be read in this manner.
11. We, therefore, find no difficulty in agreeing with the learned Judge that the provisions of the Hindu Marriage Act which are being challenged in this case do not infringe Article 25 of the Constitution and are clearly protected by Clause (2) (b) of it. Rule 27 of the Government Servants' Conduct Rules only gives effect to those provisions. The appellant could not, therefore, avoid the provisions and the State was in the circumstances justified in refusing to grant him the permission he wanted. The petition of the appellant was thus rightly dismissed and the appeal must fail. It is accordingly dismissed with costs.