GANESHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition is directed against an order at Annexure -A, dated 17 -9 -1998 issued by GOC -in -C Southern Command directing that the petitioner be discharged from service. The petitioner is also challenging Annexure -B an order dated 8 -10 -1998 issued by the Officer Commanding Training Battalion No. I of MEG. He seeks a direction to the respondent to reinstate the petitioner with all benefits in accordance with law. The petitioner was enrolled in the Madras Engineer Group of the Regular Army on 17th December, 1983 as a Sapper Clerk. After successful completion of training he was posted out from the MEG and centre and served in Engineer units. He earned his, promotion to the Non -gazetted Officer rank of Naik, and was serving with 163 Bridging Company of 16 Engineer Regiment located then at Ambala Cantonment during 1990, On 16 -2 -1990, the petitioner married one Sreedevi D/o. Achuthan of Neerthattil House, Vadakkekad, Thrissur District, Kerala. It was an arranged marriage. Marriage was done in accordance with the custom prevalent in their community, namely, 'Thiyyas'. According to the petition averments, the relation between the petitioner and the wife was not cordial. His wife could not adjust with the other inmates in the petitioner's house. After spending a month, according to the petitioner, she left the house immediately. The petitioner had to return to duty to his unit on the expiry of his leave. The petitioner's wife thereupon left her matrimonial home immediately on the very next day and went back to her parental house to live there permanently. A son was born to the couple. In March 1991, the petitioner went home to see the son. His wife did not join the petitioner and his wife and her father denied access to the child. The petitioner could not countenance in his sexual relations with her. The relation of the petitioner's wife treated the petitioner with utmost contempt and cruelty in terms of the averments made in para 4. In these circumstances, the elders in the community intervened and brought about a resolution of the marriage in terms of the customs of the community. Thereafter a certificate was obtained at the hands of the village officer in terms of Annexure -C. In terms of the Regulation regarding documentation of service of persons, the petitioner made official report to his Company of his having contract marriage with the said Sreedevi in the year 1990. It had accordingly been notified to the 4th respondent, whose duty is to carry out the documentation relating to all personal occurrences in respect of Junior Commissioned Officers and other Ranks of the MEG. After dissolution of his marriage, he submitted a correct report of the said divorce to the authorities. The Commanding Officer acting under provisions of para 333(C)(a) of the Regulations made a reference to the civil authority that is the jurisdiction District Collector/Magistrate about the information furnished by the petitioner to the Unit that he had been divorced from his erstwhile wife Sreedevi according to the customary rites of their community. The Commanding Officer, called for verification of facts and the report, before acting on the information submitted by the petitioner. On receipt of the verification report dated 19 -6 -1993 from the said District Collector, Thrissur, confirming that petitioner's marriage had been dissolved according to the customary practice of the community. The unit published Daily Order Part II notifying under law that the petitioner's marriage with the said Sreedevi had stood dissolved from 17 -5 -1991. Annexure -1) is the report. The publication is filed at Annexure -E. According to the petitioner, promulgation of the marriage provided without attracting the bar on and penalty for, contracting plural marriage, applicable to the Government servants. On 23 -5 -1992, Sreedevi submitted a representation to the Military Superior Authorities seeking maintenance. Despite representation by the petitioner against grant of such maintenance to the deceitful lady, the superior military authorities acted on her representation addressed to the 4th respondent, directed him to deduct a sum of Rs. 598/ - per month out of the petitioner's salary to be paid to the said Sreedevi by way of maintenance to her and her son -According to the petitioner, in the light of the verification of the Court and the | subsequent publication there exists no impediment for the second marriage. He therefore contracted another marriage with one Jayasree on 15 -94993 without S concealing anything. A copy of the marriage certificate dated 15 -9 -1993 is filed at t Annexure -F. The petitioner thereafter initiated Original Suit No. ,891 of 1992 seeking a declaration that the marriage between the petitioner and his erstwhile wife has been dissolved in accordance with the customary rites. The Court after hearing the parties has dismissed the suit.

(2.) THE petitioner in the meanwhile completed the criteria and eligibility and qualifications for his next promotion to the rank of Naik to that of Havildar Clerk. He was promoted and an order was issued to him. In the meanwhile, the first wife Sreedevi filed a Original Suit No. 97 of 1993 in the Family Court of Ernakulam contending that the customary divorce did not constitute a valid divorce and claiming maintenance for the child and herself for the past period from May, 1991 onwards. The said petition was allowed and a sum of Rs. 600/ - was ordered.

(3.) IN the meanwhile, based on the representation made by the said erstwhile wife of the petitioner Smt. Sreedevi alleging that the petitioner had contracted by marrying Smt. Jayasree, initiated proceedings against the petitioner for having allegedly contracted plural marriage. A show -cause notice dated 154 -1998 was issued to the petitioner. The petitioner was called upon to show cause as to why his services could not be terminated under the provisions of para 333 of the Regulations for the Army lead with Army Act, 1950. Section 20 and Army Rule 17. A show -cause notice is at Annexure -J. The petitioner submitted a detailed reply objecting to the allegations in terms of Annexure -C. In the meanwhile, the petitioner also filed a. original suit in O.S. No. 10445 of 1998 seeking for permanent injunction restraining the respondent from carrying out the discharge from service in terms of the Army Act, 1950, Section 22 read with Clause III(v) of the Table to Army Rule 13 for contracting plural marriage in violation of para 333 -C(a) of the Reductions for the Army, 1987. The petitioner is challenging Annexure -A in the given circumstances.