Aloke Chakrabarti, J.
1. The petitioner, a rifleman in the Unit 2/3 Gorkha Rifles under the respondents was discharged from Army service by a discharge certificate dated 10-1-1990 (Annexure-4 to the writ petition) and challenging the same, the petitioner filed the present writ petition seeking consequential reliefs also.
2. Admittedly, the ground of discharge is contracting plural marriage without divorcing the first wife contrary to instructions contained in paragraph 333 of the Regulations.
3. Facts are not disputed in the present proceeding. The contention of the petitioner is that though he admittedly contracted plural marriage, the petitioner is not liable to be discharged as petitioner belonging to Gorkha community and having Nepalese domicile, is entitled to exemption in respect of bar of contracting plural marriage. In support of such contention Mr. H. N. Singh, learned counsel for the petitioner relied on the language of the said Regulation 333 claiming that the petitioner enjoyed the exemption and as such the discharge order was liable to be set aside.
4. Mr. R. C. Shukla, learned counsel appearing for the respondents first contended that the said Regulation 333 had undergone an amendment whereby restrictions had been put even in respect of Gorkha community of Nepalese domicile. It was further contended on behalf of the respondents that even in respect of Gorkha community of Nepalese domicile, the prior permission is mandatory requirement. Therefore, violation of the said provision made the petitioner liable for order of discharge.
5. After considering the respective contentions of the parties and considering the materials on record, I find that the petitioner made a categorical case in paragraph 1 of the writ petition that he belonged to Gorkha community and is of Nepall domicile. His permanent residence also is in Nepal. This contention of the petitioner has not been denied by the respondents in the counter-affidavit. It is also a fact that the petitioner was enrolled in Gorkha Rifles.
6. With regard to the second marriage of the petitioner, the facts are admitted arid the petitioner contracted the said second marriage on 5,3.1982. This contention of the petitioner made in paragraph 6 of the writ petition relating to date of second marriage has also not been disputed by the respondents in their counter-affidavit. The amendment admittedly came into force in the year 1987 and the respondents could not show anything for the purpose of contending that the said amendment was having any retrospective effect. Therefore, the said amended provision need not be considered for the purpose of alleged offence contracting a second marriage in the year 1982.
7. In view of the aforesaid finding, the provisions of the unamended Regulation 333 which was in force on the date of contracting the second marriage of the petitioner are required to be considered and a copy of the said provision has been annexed at Annexure-7 to the writ petition.
8. The relevant extract of the said Regulation 333 is quoted below :
'333. Plural Marriages :
(A) The Special Marriage Act, 1954 and Hindu Marriage Act, 1955 lay down the rule of 'Monogamy', that is, neither party has a spouse living at the time of marriage. These Acts also provide for decrees of nullity of marriage, restitution of conjugal rights, Judicial separation and divorce and also orders for alimony, and custody of children. The Hindu Marriage Act applies to all Hindus, Budhists, Jains and Sikhs and also applies to all other persons (with certain exceptions), who are not Muslims, Christians, Parsls or Jews by religion. Christians, Parsis and Jews are also prohibited under their respective personal laws from contracting a plural marriage. Thus no person who has solemnised or registered his/her marriage under the Special Marriage Act or who is a Christian, Parsi or Jew or to whom the Hindu Marriage Act, 1955 applies, can now remarry during the lifetime of his or her, wife or husband. Sub-para (C) (a) and (b) below apply to such persons only. A Muslim or such other person to whom the Hindu Marriage Act does not apply and whose personal law does not prohibit polygamy or polyandry can marry during the life-time of his or her wife or husband and sub-para (B) (a) to (h) below apply to such persons only.
(B) Plural marriage by persons in whose case it is permissible :
(a) No person subject to the Army Act, except Gorkha personnel of Nepalese domicile, whose personal law permits plural marriage and whose previous marriage is subsisting, will many again without prior sanction of the Government.*** *** *** *** ***
9. A perusal of sub-paragraph (A) of the Regulation 333 shows that plural marriage has been considered in respect of various communities referring to some communities following various religions which do not permit plural marriages and other communities which permit plural marriages. In sub-paragraph (A), it has been specifically mentioned that a Muslim or such other person to whom the Hindu Marriage Act does not apply and whose persona! law does not prohibit polygamy or polyandry can marry during the life-time of his/her wife or husband and sub-para (B) (a) to (h) apply to such persons only. Admittedly, sub-para (C) relates to persons in whose case plural marriage is not permissible. Therefore, for resolving the present dispute, the only provisions are to be looked into as contained in sub-para (B).
10. Clause (a) of said sub-para (B) provides that no person subject to the Army Act except Gorkha Personnel of Nepalese domicile whose personal law permits plural marriage and whose previous marriage is subsisting, will marry again without prior sanction of the Government.
Other clauses of sub-para (B) relate to the grounds on which one may apply for sanction to contract a plural marriage and other procedural aspects relating to such application. Therefore, those clauses are also not relevant for the present dispute.
11. The language of clause (a) of sub-para (B) makes it clear that all persons in whose case plural marriage is permissible require a prior sanction of the Government and the only exception in such provision has been made in respect of Gorkha Personnel of Nepalese domicile.
12. The contention of the respondents that this exception provided in clause (a) of sub-para (B) does not allow a Gorkha personnel to enjoy exemption from prior sanction does not appear to be tenable as admittedly the said clause (a) of sub-para (B) related to persons for whom plural marriage were permissible making it compulsory for them to obtain prior sanction before such plural marriage. Therefore, the only possible conclusion regarding the said exception contained in clause (a) of sub-para (B) is that a Gorkha personnel of Nepalese domicile subject to Army Act enjoys exemption from prior sanction of the Government for contracting plural marriage.
13. The above view gets further support from the language of the amended provisions brought in after 1987 providing for some limitation in respect of such Gorkha personnel of Nepalese domicile, in particular. While considering the provisions of such prior sanction in clause (a) of sub-para (B) apparently such Gorkha personnel of Nepalese domicile have been treated as a separate class from other persons governed by a personal law permitting polygamy or polyandry.
14. In view of the aforesaid findings, as I am of the opinion that the petitioner being admittedly a Gorkha personnel of Nepalese domicile did not require any prior sanction of the Government before contracting second marriage and, therefore, the sole ground on which he was discharged is nonexistent.
15. The writ petition is, therefore, allowed and the impugned order of discharge at Annexure-4 to the writ petition is hereby quashed. There will be no order as to costs.