Heard Sri M.P. Tiwari, learned counsel for the petitioners, Sri S.S. Srinet, learned Standing Counsel for the respondent nos. 1, 2 and 3 and Sri S.K. Pundir, learned counsel for the respondent nos. 5,6,7 and 8.
2. It is stated in paragraph no. 3 and 4 that both the petitioners are major. It is stated in paragraph 6 that petitioners have solemnized their marriage on 2nd October, 2014 as per Muslim rites and customs. In support a copy of alleged ''Nikahnama' dated 2nd October, 2014 has been filed.
3. An application for impleadment has been filed by the respondent nos. 5 to 8, which has been allowed today.
4. In paragraph 2 of the affidavit to the impleadment application it is stated that the respondent no. 5 was married with the petitioner no. 2 on 9th October, 2003 and out of their wedlock there are two sons and one daughter namely respondent no. 6 to 8, who all are minor. It is also stated that the respondent no. 5 is pregnant. A copy of the said ''Nikahnama' dated 9th October, 2003 has been filed as annexure no. 1 of the affidavit. It is stated in paragraph no. 3 of the affidavit that the petitioner no. 1 is a minor girl. It is stated in paragraph no. 4 of the affidavit that the alleged ''Nikahnama' dated 2nd October, 2014 of the petitioner is a manufactured one and no marriage was solemnized. In support, an affidavit of the alleged signatory (Vakeel) of the alleged ''Nikahnama' dated 2nd October, 2014 has been filed as annexure no. 2. It is stated in paragraph no. 7 that the petitioner no. 2 has filed a fake Voter I.D. Card bearing No. HTB 2085504. From internet enquiry the said voter ID card has been found to be issued in the name of one Sri Pahal Singh, S/O Karam Singh, R/o Village Bandukhedi, Pargana & Tehsil Nakur, District-Saharanpur. In support, copy of the internet enquiry report of the aforesaid Voter I.D. card has been filed as annexure -3 to the affidavit. A copy of family register and some photographs have also been filed along with the affidavit to demonstrate that the respondent no. 5 is a legally wedded wife of the petitioner no. 2 and she still continues to be his wife.
5. Respondent no 5. along with her children i.e. respondent nos. 6, 7 and 8 and Sri Riaz Ahmad, who is father-in-law of respondent no. 5 and father of the petitioner no. 2 are present. Sri Riaz Ahmad, father of the petitioner no. 2 states that respondent no. 5 is legally wedded wife of petitioner no. 2 and she has three minor children and she has pregnancy of about 8 months. He states that by no means he can justify the action of petitioner no. 2, who allegedly solemnized ''Nikah' with a minor girl i.e. petitioner no. 1. He states that as per Holy '' Quran' he cannot perform second marriage with the petitioner no. 1 which would result in injustice to his first wife and three minor children. Sri Riaz Ahmad states that he owns about 5-6 bighahas agricultural land which is the only source of livelihood of the family which consist of him, his wife and respondent nos. 5 to 8. He states that he and his wife shall take full care of respondent nos. 5 to 8. He states that he has serious threat to his life and property from the family of petitioner no. 1 and as such in case of any inconvenience the police of the concerned police station may be directed to give protection.
6. Learned counsel for the petitioners does not dispute the facts stated in the impleadment application of respondent nos. 5 to 8 and also the facts stated by the father of the petitioner no. 2 before this Court, as briefly noted above.
7. Learned counsel for the respondent nos. 5 to 8 submits that the writ petition has been filed concealing material facts of the case, making false averments and annexing fake papers and as such the writ petition deserves to be dismissed with heavy cost, which may be paid by the petitioner no. 2 to the respondent no. 5.
8. Learned Standing Counsel submits that it is wholly undisputed that the writ petition has been filed concealing material facts and making false averments and as such it deserves to be dismissed with cost.
9. I have carefully considered the submissions of counsel for the parties.
10. It is not disputed that this writ petition has been filed by the petitioner no. 2 concealing material facts of the case namely ; that the petitioner no. 2 is already married with the respondent no. 5 and respondent nos. 6, 7 and 8 are their sons and daughter. It has also been concealed by the petitioner no. 2 that the respondent no. 5 is his legally wedded wife and she has pregnancy of about 8 months. A false averment has been made by the petitioner no. 2 in paragraph no. 7 that his father has 20 bighas of land in which he is working as farmer and earns about 2 lakhs in a year. Father of the petitioner no. 2 has stated before this Court that he owns merely 5-6 bighas agricultural land, which is the only source of livelihood for himself, his wife and also for respondent nos. 5 to 8. A copy of fake Voter I.D. has been filed by the petitioner no. 2 along with writ petition. The alleged ''Nikahnama' of the petitioners filed by the petitioner no.2 as annexure no. 3 to the writ petition also appears to be not genuine in view of the notary affidavit of Sri Mohamad Kazim, S/o Sri Kasmi, R/o Dhobi Vala , District- Saharanpur filed along with affidavit to the impleadment application in which he denied the 'Nikah' of the petitioners and stated to be forged. The facts so stated are not disputed by the petitioners.
11. Thus, it is apparent on record that the present writ petition supported by an affidavit of petitioner no. 2 has been filed concealing material facts of the case and making false averments. Fake papers have also been filed along with the writ petitions. Thus, the petitioners have approached this Court with unclean hands, unclean mind and unclean heart. They deserve no sympathy or leniency.
12. In the case of United India Insurance Company Ltd. Vs. B. Rajendra Singh and others, JT 2000 (3) SC 151, considering the fact of fraud, Hon'ble Supreme Court held in paragraph 3 as under:
"Fraud and justice never dwell together." (Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper overall these centuries. Lord Denning observed in a language without equivocation that" no judgement of a Court, no order of a Minister can be allowed to stand if it has been obrtained by fraud, for fraud unravels everythin " (Lazarus Estate Ltd. V. Beasley 1956 (1) QB 702).
13. In the case of Vice Chairman, Kendriya Vidyalaya Sangathan and Another Vs. Girdhari Lal Yadav, 2004 (6) SCC 325, Hon'ble Supreme Court considered the applicability of principles of natural justice in cases involving fraud and held in paragraph 12 as under :
"12. Furthermore, the respondent herein has been found guilty of an act of fraud. In opinion, no further opportunity of hearing is necessary to be afforded to him. It is not necessary to dwell into the matter any further as recently in the case of Ram chandra Singh v. Savitri devi this Court has noticed :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16.Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad."
19. In Derry V. Peek (1889) 14 AC 337 it was held: "In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person make it liable to an action of deceit."
14. In the case of Ram Chandra Singh Vs. Savitri Devi and others, 2003(8) SCC 319, Hon'ble Supreme Court held in paragraphs 15, 16, 17, 18, 25 and 37 as under :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata.
37. It will bear repetition to state that any order obtained by practising fraud on court is also non-est in the eyes of law."
15. In the case of S.P. ChengalVaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853, the Hon'ble Supreme Court held in para 7 as under :
"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
16. In the case of Jainendra Singh Vs. State of U.P., 2012 (8) SCC 748, Hon'ble Supreme Court considered the fact of appointment obtained by fraud and held in para 29.1 to 29.10 as under :
"29.1 Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
29.2 Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.3 When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
29.4 A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
29.5 Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
29.6 The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
29.7 The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
29.8 An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
29.9 An employee in the uniformed service pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
29.10The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable."
17. Lastly learned counsel for the petitioners submits that as per Muslim Law the petitioner no. 1 can have four wives and since the respondent no. 5 is stated to be first and the only wife and as such there is nothing wrong to marry with the petitioner no. 1, who shall be his second wife. Submission is wholly misconceived. The only source of livelihood disclosed by the petitioner no. 2 in paragraph 7 of the petition is the 5-6 Bighas agricultural land of his father. The petitioner no. 2 has legally wedded surviving wife i.e. respondent no. 5 and from their wedlock they have three children namely respondent nos. 6, 7 and 8. The respondent no. 5 is said to have pregnancy of about 8 months. On these facts the alleged second Nikah by petitioner no. 2 with the petitioner no. 1 would cause injustice to the respondent nos. 5 to 8 and the child in womb of the respondent no. 5.
18. Under the circumstances the alleged action of the petitioner no. 2 is against the verses of Holy "Quran" i.e. Sura 4 Ayat 3 english translation of which is reproduced below:-
"If ye fear that ye shall not Be able to deal justly With the orphans, Marry women of your choice, Two, or three, or four; But if ye fear that ye shall not Be able to do justly (with them), Then only one, or (a captive) That your right hands posses. That will be more suitable, To prevent you From doing injustice."
19. In view of mandate in the Holy Quran it is amply clear that bigamy is not sanctified unless a man can do justice to orphans, who in the present set of facts are the respondent nos. 5 to 8. As per mandate of the Holy Quran as noted above all Muslims men have to deal justly with the orphans. A married Muslim man having his wife alive cannot marry with another muslim women, if he cannot deal justly with the orphan. A mandate has been given that in such circumstances a Muslim man has to prevent himself to perform second marriage, if he is not capable of fostering his wife and children. The religious mandate of Sura 4 Ayat 3 is binding on all muslim men which specifically mandates all Mulim men to deal justly with orphans and then they can marry women of their choice two or three or four but if a Muslim man fears he will not be able to deal justly with them then only one. If a muslim man is not capable of fostering his wife and children then as per above mandate of Holy Quran, he cannot marry the other woman.
20. In case of Dilbar Habib Siddiqui Vs. State of U.P. and Others 2010 (69) ACC 997 a Division Bench of this Court held in paragraph 8 as under:
" Thus for a valid muslim marriage both the spouses have to be muslim. In the present writ petition this condition is not satisfied as the writ petition lacks credible and accountable material in this respect on which reliance can be placed.
Coming to another limb of argument raised by counsel for the petitioner that a muslim man is entitled to marry four time, we once again revert back to recognised treatises. We find that Sura 4 Ayat 3 of The Holy Quran provides for giving due care and provisions for a Muslim women. The said Ayat, as is referred to in the treatise by I.Mulla, is referred to below:-
"(vi) Number of wives- If ye fear that ye shall not be able to deal justly with the orphans ( orphan wives and their property); marry woman of your choice, two or three or four; But if you fear that ye shall not be able to deal justly (with them), then only one...........that would be more suitable to prevent you from doing injustice."
From the perusal of above Ayats it is abundantly clear that bigamy is not sanctified unless a man can do justice to orphans. The said Ayat mandates all Muslims men to 'deal justly with orphans and then they can marry women of their choice two or three or four but if they fear that they will not be able to deal justly with them then only one. We are of the view, that such a religious mandate has been given to all the Muslims for a greater social purpose. If a Muslim man is not capable of fostering his wife and children then he cannot be allowed the liberty to marry other women as that will be against the said Sura 4 -Ayat-3.This aspect of the matter should not vex our mind further as the same came up before the apex court as well in Javed And Others versus State of Haryana: AIR 2003 SC 3057 and therefore we conclude this aspect of the submission by referring to the words of the apex court in that decision, which are as follows:-
"The Muslim Law permits marrying four women. The personal law nowhere mandates or dictates it as a duty to perform four marriages. No religious scripture or authority provides that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion. The question of the impugned provision of Haryana Act being violative of Art. 25 does not arise."
21. The law laid down by the Division Bench of this Court in case of Dilbar Habad Siddiqui's Case (Supra) is clearly attracted on the facts and circumstances of the present case. In the present set of facts the first wife of petitioner no. 2 is surviving and from their wedlock there are three children namely respondent nos. 6, 7 and 8 and the wife (respondent no. 5) is said to have pregnancy of about 8 months.
22. Apart from this the writ petition is based on concealment of facts and false averments. Fake paper have also been filed with the writ petition.
23. Under the circumstances and facts of the case this writ petition deserves to be dismissed with heavy costs.
24. In result, the writ petition fails and is, hereby, dismissed with costs or Rs. 50,000/- on the petitioner no. 2, which shall be paid by him to the respondent no. 5 within two months.
25. The father of the petitioner no. 2 i.e. Riaz Ahmad is the person, who along with his wife is presently looking after the well being of the respondent nos. 5 to 8. He expressed serious apprehension of threat to his life and property by the petitioner no. 1 and respondent no. 4. Under the circumstances it is provided that if Sri Riaz Ahmad (father of the petitioner no. 2) or respondent no. 5 approaches to the respondent no. 2 or respondent no 3 in case of any threat to their life or property then they shall take effective steps in accordance with law.
26. The writ petition is dismissed with costs of Rs. 50,000/- as aforementioned.
Order Date :- 2.12.2014 A. Pt. Singh Court No. - 1 Case :- WRIT - C No. - 63170 of 2014 Petitioner :- Smt. Isharat And Another Respondent :- State Of U.P. Thru' Secry. And 3 Others Counsel for Petitioner :- M.P. Tiwari Counsel for Respondent :- C.S.C.
Hon'ble Surya Prakash Kesarwani,J.
Re: Civil Misc. Impleadment Application No. 397292 of 2014 Heard Sri S.K. Pundir, learned counsel for the applicant and Sri M.P. Tiwari, learned counsel for the petitioners on impleadment application.
This impleadment application has been moved by Smt. Gulshad Begum and her three minor children alleging that she is wife of petitioner no. 2. However, the petitioner no. 2 has not impleaded her as respondent in the writ petition. Learned counsel for the petitioners do not oppose the application.
In view of aforementioned facts, impleadment application is allowed. Petitioners are directed to implead the applicants as respondent nos. 5 to 8, during the course of the day.
Order Date :- 2.12.2014 A. Pt. Singh