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Judgment
B.S. Patil
The first petitioner is a Major in the Indian Army. He intends to marry the 2nd petitioner, who is a foreign national being the citizen of Srilanka. The 2nd petitioner is studying in Bangalore and she also intends to marry the 1st petitioner.
The request made by the 1st petitioner for getting permission to contract the marriage with the 2nd petitioner has been injected by the Director General of Military Intelligence, General Staff Branch, New Delhi, stating that it was mandatory for the applicant-petitioner No.1 to get the willingness of the 2nd petitioner to renounce the foreign citizenship after marriage with the 1st petitioner, but the 2nd petitioner had refused to change her foreign citizenship prior to contracting the marriage. It is this order that is challenged in the writ petition. The petitioners have also sought for a direction to the respondents to process and allow the 1st petitioner''s application submitted on 29.06.2011 vide Annexure-D, seeking to resign from his post.
As per the Army Order 14/2004-MI, any a army personnel desirous of marrying foreign nationals except the nationals of Bhutan, are required to obtain prior Government sanction for such marriage.
The procedure for submission of application is provided at Clause 4 of the Army Order, which reads as under :
Submission of application
Application for obtaining sanction of the AG will be made on the form given at appendix-A to this Army Order and fwd through proper staff channels, so as to reach at Army HG (DGMI/M1-10) with recommendations of various HGs in clam of Comd at least 120 days prior to the proposed date of marriage. The application for the marriage with foreign national will be processed within 120 days after its receipt at DGMI/M1-20 through proper channel. On receipt of the sand application (not the advance copy) through proper channel DGMI/M1-10 will fwd acknowledgement to the individual concerned with copy to the following :-
(a) AG/MRPS (O) - For Med/Dental/ MNS Offrs.
(b) AG/ MP 5/6 -- For all Army Offrs other than Med/ Dental/ MNS Offrs.
(c) Record Offices concerned - For JCOs and OR.
Clause 5 (c) makes mention of the documents that are required to be enclosed to the application. It reads as under :
Application will be accompanied by the following documents: -
(c) An undertaking from the Service person as per Appendix ''D'' to this order to the effect that his/ her case for release from the service may be processed automatically as per the application for release from service submitted vide para 5(a) above, if his/ her spouse refuses to acquire Indian Citizenship or willfully delays acquisition of Indian Citizenship.
As it is clear from Clause 5 (c), an undertaking from the person concerned as per Appendix ''D'' to the Artsy Order to the effect that his case for release from the service may be processed automatically as per the application submitted by him, if he/ her spouse to acquire Indian Citizenship or willfully delays acquisition of Indian Citizenship.
In the instant case, the petitioner has submitted an application dated 29.06.2011 vide Annexure-D, wherein in paragraph 3 it is stated that the foreign national i.e. the 2nd petitioner whom he intends to marry has not submitted her willingness to change her foreign citizenship and therefore his application may be processed for relieving him from service as per the rules. It is further stated in the said application that, their marriage has been fixed on 17.11.2011 and therefore his request may be processed well in time.
The application submitted is accompanied by the request made by the petitioner seeking retirement from the service which is submitted in the prescribed format by referring to paragraph 5 (a) of the army order. The said application clearly mention that the petitioner submits his resignation from the service for personal reasons and he will refund the entire cost of training to the Government in one lump sum before he was relieved of his duties. He had made a request that his resignation from the service be accepted at the earliest without any terminal benefits. An undertaking is also given by the petitioner as required in Clause 5 (c) of the Army Order to the prescribed format thereby stating that on failure or refusal of his spouse to acquire Indian Citizenship as per Indian Citizenship Act, 1955, has case for resignation from service be proceeded automatically as per the application for resignation submitted by him at the time of seeking permission for marriage with the foreign spouse.
The petitioner, along with the application seeking permission to contract marriage with the foreign national has submitted his resignation making it clear that the foreign national with whom he intends to contract marriage had expressed her unwillingless to change her citizenship. As per Clause 17 of the Army Order produced at Annexure-C, in ease an Array personnel contracts marriage with foreign national without AG"s permission or proposes to resign, in order to be able to marry a foreign national, before completion of the term of his enrolment or before completion of the laid down retirement/ tenure of service he or she shall have to refund the entire cost of his/ her training. Similarly, paragraph/ Clause 19 of the Army Order makes it clear that in the event of failure/ refusal by the spouse to change her/ his nationality as per para 5(c) case shall be processed with a view to release/ retire the individual from service without terminal benefit and obtain refund of entire cost of training.
It is therefore clear that, the respondent-Authority ought to have considered the request of the petitioner for relieving him from service in view of the refusal of the 2nd petitioner (foreign national) to give up her foreign citizenship and accept the Indian Citizenship after marriage with the 1st petitioner. In fact, in the application it is made specifically clear, stating that the 2nd petitioner has expressed her unwillingless to give up her nationality and therefore he may be permitted to resign from his service. The Army Order does not make it mandatory for the petitioner to first contract marriage with the foreign national then apply for release on the ground that his spouse has refused to give up her nationality.
The learned counsel for the petitioner has relied upon the judgment of the High Court of Bombay in the case of Major Yogesh Chandra Madbav Sayanakar and Shruti Kulkarni Vs. The Chief of Army Staff Integration Head Quarters (Army) Ministry of Defence and Others in W.P.No. 289/2011 decided on 25.03.2011, to contend that in similar circumstances dealing with the provisions contained in the Army Order, the Bombay High Court has held that paragraph 17 and 20 of the Army Order specifically provide for an application for resignation in order to be able to marry a foreign national and such a desire to many a foreign national is a valid ground for resignation.
In paragraph 17 of the judgment, the Bombay High Court it has dealt with the tenor of the Army Order relating to the application regarding the required undertaking from the Officer to the effect that his application for release from the service may be processed automatically as per the application for release from service, if his spouse had refused to acquire Indian citizenship or willfully delays acquisition of Indian citizenship. It is further stated that where the Army Officer proposes to resign in order to be able to merry a foreign national and submits an application for resignation, the concerned authority will obtain Government sanction in consultation with military intelligence and process the application as per Government''s sanction.
In the aforementioned judgment, the Division Bench of the Bombay High Court has observed in paragraph 23 answering the apprehension expressed by the Authorities that the Officer might not marry after acceptance of resignation, stating that the same could be easily taken care of by accepting resignation with effect from the date of marriage which was scheduled to be held on 28.05.2011 (in that case) and subject to proof of the marriage being furnished, In the instant case also such a condition can be imposed by the respondent-Authorities. The rejection of the application on the ground that the 2nd petitioner (foreign national) had expressed her unwillingness to renounce foreign citizenship is therefor, contrary to the relevant Army Order.
In the light of the above, it is clear that the 1st petitioner has made the application enclosing his undertaking and also expressing his willingness to resign from his service. He has agreed to forego the terminal benefits and has consented for recovery of the charges incurred for training him. In this view of the matter, them was admittedly no justification for the respondent to issue the impugned communication rejecting his application on the ground that the 2nd petitioner (foreign national) had expressed her unwillingness to renounce her foreign citizenship. In fact, it is on account of her unwillingness to renounce the foreign citizenship, the petitioner had come up with the application to resign form service agreeing to give up his terminal benefits and also consenting for recovery of the training charges. Therefore, instead of considering the application in terms of the Army Order referred to supra,, the respondents have illegally issued the Impugned endorsement rejecting the application.
Therefore, the impugned endorsement is unsustainable in law. Hence, the same is set aside. The respondents are directed to process the application submitted by the petitioner for relieving/ reigning from the service in the army strictly in accordance with the Army Order and keeping in mind the observation made herein above. The respondents shall consider the application and pass appropriate orders within a period of 60 days from the date of receipt of a copy of this order.