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HIGH COURT OF DELHI
W.P.(C) 3983/2022
SUNIL KUMAR .....Petitioner
Through: Mr. A.K. Trivedi, Adv.
Through: Mr. Farman Ali, Sr.PC
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
JUDGMENT
12.08.2025 C. HARI SHANKAR, J.
1. The petitioner stands removed from service under Rule 18(ii) read with Rule 11(2) and Rule 26 of the Sashastra Seema Bal[1] Rules, 2009, vide order dated 20 May 2019 issued by the Commandant 57th Bn SSB, and the punishment stands affirmed in the appeal order dated 17 January 2020, passed by the Deputy Inspector General, SSB as the Appellate Authority.
2. Aggrieved thereby, the petitioner has instituted the present writ petition before this Court.
3. We have heard Mr. A.K. Trivedi, learned Counsel for the petitioner and Mr. Farman Ali, learned Senior Panel Counsel for the “SSB”, hereinafter respondents at length.
4. Learned Counsel have also filed written submissions.
5. The only ground on which the petitioner was removed from service was that he had contracted a second marriage during the subsistence of his first marriage.
6. The petitioner married one Sunita Devi on 23 November 2007. The matrimonial relationship between them soured. The petitioner filed Misc (Civil) HMA Case No. 767/2013 under Section 13(1) (ia) of the Hindu Marriage Act, 1955[2] for divorce, before the Family Court, Jhunjhunu, Rajasthan.
7. As Sunita Devi did not appear, the learned Family Court proceeded ex parte against her and granted a decree of divorce on 7 February 2015.
8. Admittedly, before any notice of appeal or other challenge to the aforesaid order/judgment dated 7 February 2015, at the instance of Sunita Devi, was received by him, the petitioner married one Manoj Kumari on 1 May 2015, 82 days after the date of decree of divorce from Sunita Devi.
9. In the interregnum, Sunita Devi, instead of instituting an appeal, filed an application under Order IX Rule 13 of the Code of Civil “HMA”, hereinafter Procedure,1908 for setting aside the ex parte decree of divorce dated 7 February 2015.
10. Notice of the said application was received by the petitioner on 3 August 2015, after he had already contracted his second marriage with Manoj Kumari on 1 May 2015.
11. By order dated 24 June 2017, the application of Sunita Devi under Order IX Rule 13 of the CPC was allowed by the learned Family Court.
12. Following this, as a result, the divorce petition Misc (Civil) HMA Case No. 767/2013 was resuscitated. By judgment dated 7 March 2018, the learned Family Court dismissed the divorce petition of the petitioner against Sunita Devi.
13. This, therefore, revived the marriage between the petitioner and Sunita Devi, so that he was, at the same time, having two wives, Sunita Devi and Manoj Kumari.
14. The judgment and decree dated 24 June 2017 of the learned Family Court, dismissing Misc (Civil) HMA Case No. 767/2013 was challenged by the petitioner before the High Court of Rajasthan by way of CMA 2343/2018.
15. By judgement dated 17 April 2025, the High Court of Rajasthan has allowed CMA 2343/2018, and dissolved the marriage between the petitioner and Sunita Devi.
16. As a result, the petitioner has, once again, only one wife, i.e., Manoj Kumari.
17. On 16 May 2019, the petitioner was visited with a show cause notice under Rule 11(2)3 of the SSB Rules, alleging that, as he had contracted a second marriage during the subsistence of his first marriage, he was ineligible to be retained in service.
18. The petitioner filed a response, which was found unsatisfactory. By order dated 20 May 2019, the petitioner was removed from service. An appeal preferred by the petitioner thereagainst was also dismissed by the Appellate Authority on 17 January 2020. The petitioner has, therefore, approached this Court.
19. At a bare glance of the above facts, it is apparent that no real case of misconduct can be alleged against the petitioner.
20. The petitioner’s marriage with Sunita Devi was annulled by the decree of divorce dated 7 February 2015.
21. Section 154 of the Hindu Marriage Act permits a party to a
11. Ineligibility – ***** (2) Any person subject to the Act, who contracts or enters into a second marriage during the life time of his first spouse shall render himself ineligible for retention in service and may be dismissed, removed or retired from service on ground of unsuitability: Provided that the Central Government may, if satisfied that there are sufficient grounds for so ordering, exempt any person from the operation of this rule.
15. Divorced persons when may marry again. – When a marriage has been dissolved by a decree marriage which has been dissolved by decree of divorce to marry again, if (i) there is no right of appeal against the said decree, or (ii) no appeal has been preferred within the time available to appeal or (iii) an appeal has been preferred and dismissed.
22. In the present case, there was a right of appeal available against the order dated 7 February 2015. This Court has in Pallavi Mohan v Raghu Menon[5], held, following the judgment of Supreme Court in Arunoday Singh v Lee Anne Elton[6], that the period of limitation for filing an appeal against a judgment or order of the Family Court is 30 days.
23. Admittedly, no notice of any appeal having been preferred by Sunita Devi, challenging the judgment and decree of divorce dated 7 February 2015, was received by the petitioner within 30 days.
24. In fact, no appeal was preferred by Sunita Devi against the judgment and decree dated 7 February 2015. Sunita Devi, instead, preferred an application under Order IX Rule 13 of the CPC. While it may be debatable as to whether an application under Order IX Rule 13 of the CPC would be equivalent to an appeal for the purposes of Section 15 of the HMA, notice of the Order IX Rule 13 application of Sunita Devi was also received by the petitioner only on 3 August 2015, much after the petitioner had contracted his second marriage on of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.
25. As such, it cannot be alleged that the petitioner contracted his second marriage in violation of Section 15 of the HMA, or during the subsistence of his marriage with first wife.
26. As a result, the very basis of the case against the petitioner is found to be without substance.
27. As a consequence, the proceedings against the petitioner commencing with the show cause notice dated 16 May 2019, and proceedings through the order of the disciplinary authority dated 20 May 2019 and culminating in the appellate order dated 17 January 2020 are illegal. They are, accordingly, quashed and set aside.
28. The respondents are directed to reinstate the petitioner in service forthwith. The petitioner would not be entitled to any back wages, but would be entitled to notional fixation of his pay treating him as having continued to be in service.
29. The petitioner would be entitled to continuity in service for all other purposes as well, except for back wages, as though the order of removal had never been passed.
30. Let steps towards grant of consequential relief to the petitioner be positively taken within four weeks from today.
31. The writ petition is allowed in the aforesaid terms with no order as to costs.
C. HARI SHANKAR, J.
OM PRAKASH SHUKLA, J. AUGUST 12, 2025