upa 1 wp6277-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6277 OF 2010 Major Yogesh Chandra Madhav and another ).. Petitioners Versus The Chief of Army Staff, Integrated Head Quarters ) (Army), Ministry of Defence, New Delhi and others ).. Respondents Ms. Lorraine Misquita i/b Mr. Prakash Mahadik for the Petitioners. Ms. Gauri Godse for Respondent Nos.1 and 2. Mr. Jaydeep Deo for Respondent No.6. CORAM : MOHIT S. SHAH, C.J. AND DR. D. Y. CHANDRACHUD, J. TUESDAY, OCTOBER 26, 2010 P. C. : In this petition under Article 226 of the Constitution of India, the petitioners have prayed for a declaration that the impugned Army Order 14/2004 annexed at Exhibit “E” to the petition is not applicable to petitioner no.1 and for a declaration that the said declaration does not apply to a foreign national who is also an Overseas Citizen of India. The petitioners have also prayed for a direction to the respondents to process the application of petitioner no.1 to release him from service to allow him to marry petitioner no.2 on terms and conditions that the Court may deem fit. upa 2 wp6277-10 2. Petitioner no.1 is a second generation Army Officer of 109 RAPID (Strike) Engineer Regiment. Petitioner no.1 joined the defence services on 10 June 2006 and holds the rank of a Major. Petitioner no.2 is an Overseas Citizen of India and a national of United States of America. The petitioners were engaged on 25 December 2009 and their wedding is scheduled to take place in December 2010. 3. In view of the Army Regulations, petitioner no.1 is required to obtain prior permission of the higher authorities to marry petitioner no.2 who is a foreign national. Since petitioner no.2 is not willing to renounce her US citizenship, Petitioner no.1 submitted an application dated 27 March 2010 requesting respondent no.2 – Director General of Military Intelligence (MI 10) at New Delhi to consider petitioner no.1’s application for release from service. As petitioner no.1 has not been granted permission to marry a foreign natural coupled with his request to release from service, petitioner no.1 has moved this Court. 4. The relevant regulations in this behalf are to be found in AO 14/2004-IMI – “Marriage with foreign nationals”. As per regulation 1 of the said Army Order, army personnel desirous of marring foreign nationals are required to obtain prior government sanction for such marriages. The Army Order lays down guidelines and rules/procedure governing the marriage of serving service personnel with foreign nationals. Application for obtaining sanction of AG (Adjutant General) is to be made in the prescribed form and to be forwarded through proper staff channels so as to reach at Army Headquarters with recommendations of various headquarters in chain of command atleast 120 days prior to the proposed date of marriage. upa 3 wp6277-10 5. The relevant regulations for the purpose of this petition read as under :- 5. Application will be accompanied by the following documents :- (a) An application from the service person for release from the Army for personal reasons as per Appendix “B” to this order. (b) A written undertaking from the foreign national to the effect that she/he will renounce her/his original nationality and accept Indian Citizenship as soon as the Indian Citizenship Act, 1955 permits her/him to do so, as per Appendix C to this order. Appx C will be countersigned by the Judicial Magistrate or notary or equivalent of the concerned country. (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 willfully delays acquisition of Indian Citizenship. 10. The application for release vide para 5(a) above will not be treated as automatically accepted. The disposal of each application will be regarded as a separate case and each will be decided on its own merit. 17. In case an Army personnel contracts marriage with foreign national without AG’s permission or purposes 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. upa 4 wp6277-10 19. In the event of failure/refusal by the spouse to change her/his nationality as per para 5(c) above, a 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. 20. The application for resignation of an officer will be routed to Army HQ, MS Branch through staff channel who in turn will obtain Govt. sanction in consultation with MI Dte (from security point of view) and MT Dte (for recovery of the cost of training) and process the case as per Govt’s sanction. 26. The above are general guidelines to ensure uniformity of action in processing the cases of marriage of service persons with foreign nationals and this supersedes AO 46/2001.” 6. In view of the fact that petitioner no.2 is not willing to renounce her US citizenship and to apply for Indian citizenship, petitioner no.1 was given the following reply by letter dated 30 May 2010:- “2. It is intimated that the subject application will be processed once the foreign national given a written undertaking to the effect that she is willing to renounce her original nationality i.e. US citizenship and accept Indian Citizenship as soon as the Indian Citizenship Act 1955 permits her to do so as per Appx `C’ of AO 14/2004/MI. 3. In view of the above the application for marriage with foreign national in r/o Ic-684631 Maj Yogesh Chandra Madhav Sayanakar of your unit recd vide your letter under ref is returned herewith unactioned in quadruplicate” upa 5 wp6277-10 7. In view of above, petitioner no.1 submitted a statutory complaint on 9 June 2010 against petitioner no.1 not being granted permission to marry. Petitioner no.1 requested that his resignation from the Army may be accepted in terms of paragraph 5(c). Petitioner no.1 further pointed out the facts about the Indian origin of petitioner no.2 which read as under :- “(c) I have been engaged to Miss Shruti Kiran Kulkarni since 25 Dec 2009. She was born in Mumbai (then Bombay), India on 23 Sep 1983. Her father Mr Subahu Mehta met with a fatal accident within two months of her birth. Her mother Mrs. Paru Mehta married Mr.Kiran Kulkarni when Shruti was two yrs. old. Mr.Kiran Kulkarni adopted her and changed her name to Miss Shruti Kiran Kulkarni. She is currently a citizen of the United States of America (USA) and holds the status of an Overseas Citizen of India (OCI). Her parents, Mr. Kiran Vyankatesh Kulkarni and (Mrs. Paru Subahu Mehta) now Mrs. Paru Kiran Kulkarni were both born in traditional hindu families and raised in India, however are not settled in USA and are citizens of USA. (d) My fiancee lived in Mumbai until 1990 and subsequently moved to the USA with her parents when they migrated to that country. Most of her close relatives are in Pune and Mumbai and she is a frequent visitor to India to meet her relatives. She also lived and studied in Pune from Aug 1996 to Oct 1998 in 8th and 9th standard at Vikhe Patil Memorial School. Most recently, she was staying in Pune with her grandparents from August 2008-Apr. 2009, when I met her while on leave there in Mar 2009 through a mutual friend.” 8. Reply of the respondent authorities to the above statutory complaint has been given on 29 January 2010 which indicated that the upa 6 wp6277-10 application of petitioner no.1 for permission of marriage was returned on account of not submitting the prescribed document/ The petitioner was further informed as under “- “...In case officer wishes to resign from Army, he can process PMR application as per the prescribed format.” 8. Hence, the present petition. 9. The learned counsel for the petitioners submits that petitioner no.1 had submitted the application well within time as far back as on 27 March 2010 seeking permission to marry petitioner no.2 who is an Overseas citizen of India and a national of United States of America but since petitioner no.2 refused to acquire Indian citizenship, petitioner no.1 is covered by paragraph 5(c) of the Army Order, which provides that petitioner no.1’s application for release from service may be processed automatically as per the application for release from service, if his spouse refuses to acquire Indian citizenship. It is submitted that in the above paragraph, spouse would mean “prospective spouse” because the Army Order under consideration contemplates only prior permission being sought. It is, therefore, submitted that when the officer makes an application for permission to marry a foreign national, the question of a spouse refusing to acquire Indian citizenship cannot arise and the reference has to be construed as to a “prospective spouse”. The learned counsel for the petitioners, however, submits that in any view of the matter, petitioner no.1 is prepared to refund the entire cost of his training as contemplated in paragraph 17 and paragraph 20 of the Army Order and, therefore, also even in absence of any undertaking referred to in clause (b) or clause (c) of paragraph 5, the respondents have to process upa 7 wp6277-10 the application of petitioner no.1 in accordance with paragraphs 17 and 20 of the Army Order. 10. On the other hand, the learned counsel for the respondent authorities submits that the claim of petitioner no.1 in the application dated 27 March 2010 that his case is covered by paragraph 5(c) cannot be accepted. According to the learned counsel, the scheme of paragraph 5 read with paragraph 19 of the Scheme is that the application of the officer seeking prior permission to marry a foreign national must be accompanied, amongst other documents by (i) a written undertaking from the foreign national to the effect that she will denounce her original nationality and accept Indian citizenship as per Appendix C, to be countersigned by a Judicial Magistrate or a notary public and (ii) an undertaking from the officer as per Appendix B 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 refuses to acquire Indian citizenship or willfully delays acquisition of Indian citizenship. 11. It is submitted that in the instant case, neither petitioner no.2 has given an undertaking that she will renounce her US citizenship and acquire Indian citizenship nor has petitioner no.1 given an undertaking as contemplated in clause (c) of paragraph 5. It is submitted that on the contrary petitioner no.2 has made her intention clear that she will not renounce her US citizenship and that, therefore, the question of any undertaking being given by petitioner no.1 under clause (c) cannot arise. It is further submitted that the undertaking clause (c) is to be given at the time of submitting application for permission to marry a foreign national but the contention that spouse in clause (c) would mean “prospective upa 8 wp6277-10 spouse” cannot be accepted though the undertaking is to be given by the officer under clause (c) prior to his marriage, what he is supposed to undertake is that even after the fiancee, who is a foreign national, agrees to renounce her original nationality and to accept Indian citizenship, after marriage if she refused to acquire Indian citizenship or willfully delays acquisition of Indian citizenship, the officer undertakes that his case for release as per the service rules may be processed automatically as per the application for release from service. 12. It is submitted that even in such a case the application is to be processed by the higher authorities from security point of view and also for the purpose of recovering cost of training and even if the officer is permitted to be released/retire, he is not to be given terminal benefit and he has to refund the entire cost of training. 13. It is also submitted that the claim of petitioner no.1 that he is entitled to have his application processed under paragraph 5 (c) of the Army Order is without substance and, therefore, the petition deserves to be dismissed. 14. Having heard the learned counsel for the parties, we are inclined to agree with the submissions made by Ms.Godse, learned counsel for the respondent authorities, that paragraph 5(a) and (b) of the Army Order contemplates that an application for permission to marry a foreign national is to be accompanied by three documents as referred to in the said paragraph. The undertaking referred to in clause (c) is an undertaking to be given by the officer after his fiancee, who is a foreign national, undertakes that she will renounce her US nationality and accept Indian citizenship. Thereafter the Army Officer gives an undertaking upa 9 wp6277-10 that in case after marriage the officer’s wife refuses to acquire Indian citizenship, the officer’s application already given under clause (a) will be processed for officer’s release from service automatically. 15. In the facts of the present case, since petitioner no.2, fiancee of petitioner no.2 and a foreign national, has made her intention clear not to renounce her US citizenship, paragraph 5 cannot now be invoked. 16. Even so we are entitled to consider the petitioners’ prayer for relief in terms of prayer (c) inasmuch as paragraphs 17 and 20 of the Army Order do contemplated that where an Army Officer proposes to resign in order to marry a foreign national, before completion of his term of his enrollment or before completion of the laid down retirement/ tenure of service, such an application will have to be considered in accordance with paragraphs 17 and 20 of the Army Order. Of course, at the time of such consideration, the authorities will be required to consider the application from the security point of view and also for recovery of the cost of training. 17. Accordingly, we see no impediment in the respondent authorities considering application dated 27 March 2010 of petitioner no. 1 in accordance with paragraphs 17 and 20 of the Army Order. Merely because petitioner no.1 had invoked clause (c) of paragraph 5 of the Army Order, which automatically is not applicable in the facts of the present case, it does not absolve the authorities from their duty to consider petitioner no.1’s application under paragraphs 17 and 20 of the Army Order. upa 10 wp6277-10 18. Before parting with the matter, we may like to observe that the facts emerging from the petition clearly indicate that though a foreign national, petitioner no.2 was born in India on 23 September 1983. Within two months of her birth her father met with a fatal accident and passed away on 11 November 1983. Thereafter on 30 March 1986, her mother married Mr Kiran Kulkarni who adopted petitioner no.2 and changed her name from Mansi Subahu Mehta to Shruti Kiran Kulkarni. Thereafter in December 1990 petitioner no.2 moved to USA along with parents. Even then she has been frequently visiting India and has a residence in Mumbai at 3B, Vikas Apartments, N.M. Kale Marg, Near Agarbazar, Dadar, Mumbai. Petitioner no.2 also lived in Pune between August 1996 to October 1998 and completed her 8th and 9th standards from Vikhe Patil Memorial School in Pune and thereafter petitioner no.2 went back to United States of America and started residing there. After acquiring her Bachelor’s degree in Arts from United States of America, petitioner no.2 gave up her job in August 2008 and stayed in Mumbai and Pune along with her grandparents from August 2008 to April 2009. Petitioner No.2 also worked in Mumbai from September to November 2008 and on 11 September 2008 petitioner no.2 became an Overseas Citizen of India under the Citizenship Act, 1955. It was during her stay in Pune in March 2009 that petitioner no.2 met petitioner no.1 and thereafter they got engaged in December 2009 after the parents of petitioner no.2 visited India in August 2009 to finalize her engagement with petitioner no.1. The engagement was also solemnized in Pune. 19. We wish that the concerned authorities will take into consideration the aforesaid facts before taking a final decision on upa 11 wp6277-10 petitioner no.1’s application dated 27 March 2010 which shall be treated as pending as an application for resignation to be processed under paragraphs 17 and 20 of the Army Order. A decision will be taken thereon as expeditiously as possible, preferably within six weeks from the date of receipt of this order. 20. Writ petition disposed of accordingly. 21. Parties to act on an ordinary copy of this order duly authenticated by the registry. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.