Second Marriage Not Sufficiently Proved: Allahabad High Court Sets Aside Govt Servant's Dismissal From Service On Bigamy Allegations

The Allahabad High Court recently set aside the dismissal of a government employee for allegedly entering into a second marriage during the subsistence of his first marriage, finding merit in the petitioner's argument that the punishment was unjust since the alleged second marriage was not sufficiently proven.

Justice Kshitij Shailendra further held that even if the second marriage was subsisting, the petitioner could not have been dismissed from service as Rule 29 of the UP Government Servants Conduct Rules only provides for minor punishment in case of a second marriage of a government servant.

"Considering the factual and legal proposition, as explained in the Hindu Marriage Act, 1955 and Indian Evidence Act, 1872 and there being no other material before this Court or before the Authorities, I find that punishing the petitioner by presuming performance of second marriage during subsistence of first marriage was not according to fact and law...even when misconduct to the aforesaid effect is established on the part of the government servant, only a minor penalty can be awarded and not a major penalty." 

Factual Background:

The petitioner had been appointed as an Apprentice in the office of the District Development Officer, Bareilly, on April 8, 1999. The controversy arose when allegations were made that he had married a second time while his first marriage was still ongoing. A charge sheet was issued to the petitioner, alleging misconduct, however, he denied his second marriage.

The petitioner claimed that no proper enquiry was conducted before dismissing him from service. The departmental appeal was also summarily dismissed.

Counsel for the Petitioner contended that there was no evidence to prove his second marriage other than the statement of the first wife and sale deed in which Ms Khandelwal had named the Petitioner as her husband. The sale deed relied upon was also corrected by way of a supplementary deed to remove the Petitioner’s name.

It was argued that while imposing a minor punishment on Ms. Khandelwal it had been recorded that no marriage was solemnized between her and the Petitioner. Further Rule 29 of the U.P. Government Servants Conduct Rules, 1956 provides that, in case, the government servant having a wife contracts another marriage without obtaining permission of the Government, only minor punishment can be awarded in the nature of withholding of increments for three years. Thus, at best, the petitioner could be awarded a minor punishment and not be dismissed from service.

Per Contra, the respondent argued that the factum of marriage is established once the lady had described herself as the wife of the petitioner. No further oral or documentary evidence is necessary to prove the relationship.

High Court Verdict:

The Court held that to prove before a Court or any administrative authority that a valid Hindu Marriage has been performed, conditions of a valid Hindu marriage as provided under Section 5 of the Hindu Marriage Act, 1955 have to be established.

The Court cited Section 50 of the Indian Evidence Act stating that such self-declaration is not sufficient proof of marriage, especially when dealing with charges like bigamy. It further highlighted that the punishment for such misconduct, as per Rule 29 of the U.P. Government Servants Conduct Rules can only be withholding of increments for three years.

“Meaning thereby that whenever a question arises as to whether an offence has been committed by a person which is punishable under any of the provisions of the aforesaid Sections of I.P.C., the proviso attached to Section 50 of the Act, 1872 would save that person as regards to forming an opinion in connection with second marriage which might be an offence under I.P.C. This principle would apply in examining the aspect of misconduct also in a service matter particularly when the issue is the same, i.e., performance of second marriage during the subsistence of first marriage.”

Accordingly, the court directed the reinstatement of the petitioner within a month from the receipt of the certified copy of the order. It also ordered that the petitioner should receive all financial and other consequential service benefits from the date of his dismissal until his reinstatement and thereafter.

Case Title: Prabhat Bhatnagar vs. State of U.P. and Others

Case Citation: 2023 LiveLaw (AB) 279

Counsel for Petitioner: Sanjay Kumar Om

Counsel for Respondent :- C.S.C.

Click Here To Read/Download Order