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Repercussions of contracting a second marriage during the subsistence of earlier marriage by a Gover

A man and a woman tied together by wedlock form the least unit of our complex society and whenever a man and woman lived as husband and wife for a fairly long time and were so reputed, law presumes that they are living as husband and wife and not in a state of concubinage. Presumption is both with regard to factum of marriage and legality of it. It is a strong presumption as it goes to the root of the structure of society and the persons who challenge it will have to rebut it by clear, cogent and satisfactory evidence. This burden is heavy on them."[1]

Rule 19 of the All India Services (Conduct) Rules, 1968 provides restriction regarding marriage. The restriction is to an extent that no member of the Service[2] shall enter into, or contract a marriage with a person having a spouse living; and no member of the Service having a spouse living, shall enter into, or contract, a marriage with any person. Irrespective of the personal laws every member is bound by this general rule. The dilution is in favour of those, where the personal laws validate polygamy and even in that case a prior permission is to be sought by the appropriate state or central government and the appropriate government may permit a member of the Service to enter into or contract, any such marriage as is aforementioned and if it is satisfied that such marriage is permissible under the personal law applicable to such member of the Service and the other party to the marriage and there are other grounds for so doing.

The bar applies not only to a marriage between Indian residents and a member of the Service who has married or marries a person other than of Indian Nationality shall forthwith intimate the fact to the Government.

Likewise Rule 21 of the Central Civil Services (Conduct) Rules, 1964 provides similar restriction regarding marriage for Government servants.

The Validity of the rule has been challenged by way of Writs under Article 226 and Article 32 several times but the Petitioners have failed to overpower the thought of Uniform Civil Code enshrined under these rules and provided under Article 44 whereby the State is duty bound to secure for citizens a uniform civil code throughout the territory of India.

In Khursheed Ahmad Khan Vs. State of U.P. and Ors.[3], question with regard to Validity of order removing the Appellant from service for proved misconduct of contracting another marriage during existence of the first marriage without permission of the Government was raised and Apex Court while upholding the Rules held, the Conduct Rule in no manner violates Article 25 of the Constitution. A sufficient room by way of proviso where the personal laws apply have been left open. The same mandates prior permission sans which the intent behind the legislation cannot be appraised.

The Hon’ble High Court of Tripura in a similar case where a member was dismissed from service for contracting a second marriage while his personal law & customs approved of the same ordered in the writ petition[4] “Ignorance of law is no excuse but at the same time, we cannot ourselves ignore the hard truth that a large number of employees are not aware of the details of the rules. Whatever be the case, the petitioner is a person who served the BSF for about 20 years and the allegation against him is that he misconducted himself by contracting a second marriage while his first spouse was living. This is not a criminal offence of bigamy because the personal law permits such conduct. Misconduct is the technical misconduct in not seeking permission of the authorities concerned. We are, therefore, of the opinion that though the misconduct of the petitioner is serious enough to warrant his non-continuation in service but it is not so serious as to warrant forfeiture of all his service benefits.”

An attempt is seen to indulge the employees of the State to undertake, abide and uphold the principles enshrined under the Constitution; acting upon their duties this time by calling out a second marriage by a government servant during subsistence of first marriage even though allowed by the personal laws or customs a misconduct, looking at the umbrella of the norms prevailing in the society.

[1] Parameshwari Bai v. Muthojirao Scindia, AIR 1981 Kant 40
[2] member of the Service means a member of an All India Service as defined in section 2 of the All India Services Act, 1951 (61 of 1951)
[3] AIR 2015 SC 1429
[4] W.P. (C) 588 of 2015

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