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2007 DIGILAW 302 (GAU)

Nath Singh Mahar v. Union of India

2007-04-18

A.B.PAL

body2007
JUDGMENT A.B. Pal, J. 1. The petitioner Shri Nath Singh Mahar was enrolled in Assam Rifles on 15.3.1975. Before employment he was married to one Ganga Debi. On 8.3.1985, after a period of more than ten years in service, he contracted a second marriage with one Smti. Sarda Devi when his first wife was alive. This being a misconduct he faced a disciplinary proceeding initiated in January, 1996. Two charges were framed against him. The first charge is that in 1985 when he was Naik Subadar he gave a false declaration that his first wife Ganga Devi died on 15.10.1984. The said declaration was published in the Unit BRO as 42.9.85. Thereafter he married Smt. Sarda Devi. But from the letter dated 19.1.1993 of Smt. Ganga Devi, forwarded by Soldier Welfare and Rehabilitation Branch, it came to light that the petitioner gave a false declaration which is unbecoming of a government servant. The second charge is that he contracted a second marriage on 8.3.1985 with Smt. Sarda Devi when his first marriage with Ganga Devi was subsisting. Such a second marriage without prior permission is illegal for a government servant. 2. After a detail inquiry the petitioner was given benefit of doubt in respect of the first charge. But the second charge was found to be established. The petitioner was punished by compulsorily retiring him from service by an order dated 6.6.1997 after about 23 years of service. Aggrieved, he filed an appeal on 13.9.1997 to the Secretary, Ministry of Home Affairs, Government of India, New Delhi. After waiting for about four months, when the appeal was still pending, he has approached this Court on 7.1.1998 by means of the present writ petition. He has called in question the correctness and legality of the penalty imposed. 3. The only charge proved against the petitioner being his contracting a second marriage during the lifetime of his first wife, the petitioner has challenged the inquiry and the resultant penalty firstly on the ground that his first wife Ganga Devi was not examined by the inquiring officer. Though she reached Agartala after the inquiry was closed, even then it was necessary for the ends of justice to examine her. However, when she was not examined in spite of repeated request by the petitioner, she filed an affidavit sworn before a judicial Magistrate 1st Class, Agartala (Annexure-R-4). Though she reached Agartala after the inquiry was closed, even then it was necessary for the ends of justice to examine her. However, when she was not examined in spite of repeated request by the petitioner, she filed an affidavit sworn before a judicial Magistrate 1st Class, Agartala (Annexure-R-4). In that affidavit she clearly stated that she deserted her first husband, the petitioner herein, and got married in the year 1977 with one Man Bahadur Nepali. Her second marriage was solemnized after the dissolution of her marriage with the petitioner. This affidavit of Smt. Ganga Devi was not given due consideration by the disciplinary authority. Secondly, before marrying Smt. Sarda Devi the petitioner submitted a prayer to the Commandant on 15.2.1985 seeking permission, which was accorded. Thus, the second marriage by him cannot be said to be without permission from the competent authority. Thirdly, the inquiry authority examined only one witness, Smt. Sarda Devi, and relied on nine documents. But those documents were not formally accepted and he was not afforded opportunity to defend himself. There were four witnesses including Smt. Ganga Devi noticed by inquiry officer, but none of them was examined causing thereby serious prejudice to the petitioner. He prayed for setting aside and quashing the order of punishment and a direction to the respondents to re-instate him to the post of Naik Subadar with the benefits of pay and allowance from 1.7.1997. His further prayer is to promote him to the post of Assistant Commandant with retrospective effect from 8.1.1993 as he passed pre-qualifying test for the said post on 8.1.1993. 4. The respondents in their counter affidavit contended that the petitioner submitted a declaration in prescribed form on 12.7.85 (Annexure-R-2) that his wife Ganga Devi died on 15.10.1984 and he married again Smt. Sarda Devi on 8.3.1985 according to Hindu rites. But the said declaration regarding death of Ganga Devi was later found to be false. She was very much alive and there was no decree of divorce dissolving her marriage before the petitioner married Smt. Sarda Devi. Thus the allegation of the petitioner that Ganga Devi married another person and bore children to her second husband was unfounded. As regards the second charge it is contended by them that the petitioner could not produce any documentary evidence to show that his marital tie with Smt. Ganga Devi was dissolved by a decree of divorce. Thus the allegation of the petitioner that Ganga Devi married another person and bore children to her second husband was unfounded. As regards the second charge it is contended by them that the petitioner could not produce any documentary evidence to show that his marital tie with Smt. Ganga Devi was dissolved by a decree of divorce. Thus the fact remained that his first wife Ganga Devi was alive when he contracted the second marriage which indeed is violative of the relevant provision of the conduct rules applicable to him. Regarding the procedure followed by the Inquiry Officer it is contended that every opportunity was afforded to the petitioner to defend himself. The inquiry report would show that he along with his defence assistant participated in all the stages of the inquiry. It has, however, been admitted that as Ganga Devi reached Agartala only after the inquiry was concluded she could not be examined. But the affidavit submitted by her which stated certain misleading contentions was taken into consideration. As there has been no irregularity in the procedure followed by the Inquiry Officer affording all reasonable opportunity to the petitioner and as the second marriage during life time of the first spouse with the first marriage subsisting was proved, the order of penalty suffers from no vice calling for interference by this Court. 5. Mr. B. Das, learned senior advocate submitted that non examination of Smt. Ganga Devi by the Inquiry Officer, though she was a vital witness, has vitiated the entire proceeding. As the only charge proved, leading to the penalty of compulsory retirement, is the charge of second marriage when the first marriage was subsisting, Mr. Das strongly argued that only the first wife could say the correct factual position as to whether the marriage between her and the petitioner was really subsisting when Smt. Sarda Devi came to the life of the petitioner. 6. Mr. Arindam Lodh learned Counsel for the respondents on the other hand would submit, per contra, that without any valid document regarding dissolution of the first marriage by a decree of divorce, the statement of the first wife in her affidavit alone cannot establish such dissolution. The law does not permit a dissolution of a Hindu marriage in any manner other than a decree of divorce. 7. The law does not permit a dissolution of a Hindu marriage in any manner other than a decree of divorce. 7. I have carefully gone through the inquiry report which states in para 2.1 that the Charged Officer assisted by his Defence Assistant participated through out the inquiry. During inquiry it was noticed from Ext. S-5 that the petitioner was married to Smt. Ganga Devi before his enrollment. On 15.2.1985 he submitted an application (Ext. S-7) intimating his decision of marrying Smt. Sarda Devi on 8.3.1985. A perusal of the said application would show that no where he indicated his marital status, as to whether his first wife was still alive or whether his marriage with her had been dissolved. The permission was only for solemnization of the marriage within the Unit line of the Battalion. Later, he made a declaration in presence of two witnesses counter signed by an adjutant on 4.7.1985 (Ext. S-8) that his first wife Ganga Devi died on 15.10.1984. The petitioner herein produced no death certificate along with the said declaration. Subsequently, the DIG of the battalion received a letter purportedly written by Smt. Ganga Devi (Ext. S-9) that though she was alive, her husband falsely declared her dead. On 4.3.1993 another communication was received from the President, village Panchayat Sibti, that Smt. Ganga Devi made a statement to the said President that she did not send any letter against the petitioner. Though it was found from subsequent correspondences that two daughters were born from the wedlock of the petitioner and Smt. Ganga Devi, the inquiry authority further noticed that publication of the declaration about death of Smt. Ganga Devi, the first wife of the Petition herein, suffered from some infirmities. Consequently, the petitioner was given the benefit of doubt in respect of the first charge. 8. The controversy has, thus, narrowed down to the second charge only, whether the petitioner married Smt. Sarda Devi when his first marriage with Smt. Ganga Devi was subsisting. From the rival contentions noticed above what would crystallise is that admittedly Smt. Ganga Devi was alive when the petitioner married Smt. Sarda Devi. The stand now taken by the petitioner is that his marriage with Ganga Devi was dissolved when he married Smt. Sarda Devi. In support of this contention he could not produce any proof about the decree of a competent court dissolving his first marriage. The stand now taken by the petitioner is that his marriage with Ganga Devi was dissolved when he married Smt. Sarda Devi. In support of this contention he could not produce any proof about the decree of a competent court dissolving his first marriage. A Hindu marriage can be dissolved only by a decree of divorce, not by any other way. A mere declaration even by the first wife cannot substitute such decree. Accepting the grievance that Smt. Ganga Devi was not examined by the Inquiry Officer who reached Agartala late, it has to be seen whether the position could be improved even if she was examined. What she could say before the Inquiry Officer has been stated in her affidavit. A perusal of the said affidavit would show that according to her the marriage with the petitioner was solemnized in 1971. Thereafter the marriage was dissolved according to their social customs. She married again in 1971 one Man Bahadur Nepali and since then she had no relation with the petitioner. But a careful perusal of the contents of the said affidavit would show that nowhere she stated when her marriage with the petitioner was dissolved any why. The social customs which permitted such a dissolution has also not been explained. Nowhere it has been contended in the writ petition that the petitioner and his first wife were not subject to the Hindu Marriage Act or Hindu Laws which does not recognize any other form of dissolution. No evidence, oral or documentary could be placed on record to show the manner of ceremonies or acts of social customs, if any, dissolving a Hindu marriage. The statement of Smt. Ganga Devi in the affidavit would give the only impression that she was managed to give such a statement to save the petitioner. She understood that after such a long lapse of time no useful purpose would be served to drag a dead relation when her husband had married another woman more than ten years before she was persuaded to swear the affidavit. 9. From the above it is abundantly clear that the petitioner married Smt. Sarda Devi when his first marriage with Smt. Ganga Devi was subsisting and such marriage being illegal the second charge has been rightly found to be proved. It is noticed that a good number of documentary evidence were exhibited and taken into consideration. 9. From the above it is abundantly clear that the petitioner married Smt. Sarda Devi when his first marriage with Smt. Ganga Devi was subsisting and such marriage being illegal the second charge has been rightly found to be proved. It is noticed that a good number of documentary evidence were exhibited and taken into consideration. Even without such documents and oral evidence it can be held, on the basis of the facts admitted by the petitioner, that his marriage with Smt. Ganga Devi was not dissolved legally by a decree of divorce and therefore, his second marriage with Smt. Sarda Devi is illegal. The impugned penalty of compulsory retirement has been imposed on 6.6.1997 when he completed about 23 years of service. Had he been in service he would have completed by now more than 32 years. The writ proceeding was instituted in 1998, more than nine years ago. If he was in service he would have nearly re-tired from service. 10. Considering the facts and circumstances in its entirety, I do not find any good ground to interfere with the impugned penalty of compulsory retirement. Consequently, this writ petition having no merit is liable to be dismissed which I hereby do. No cost. Petition dismissed.