The main legal point established is that the application for resignation to marry a foreign national should be considered under the relevant provisions of the Army Order 14/2004, and the rejection of the application was quashed and set aside.

Chief Justice

In this petition under Article 226 of the Constitution, petitioner No.1 a Major in the Engineering Regiment of the Indian Army, has challenged the communication dated 8th December 2010 of Joint Director MS/Premature Retirement for Military Secretary (Exhibit “A” to the petition) informing petitioner No.1 that the application of petitioner No.1 for resignation from Army service has been rejected by the competent authority.

2. The Petitioners’ case is that petitioner No.1 obtained a degree in Civil Engineering in first class from the Maharashtra Institute of Technology, Pune in June 2005 and immediately thereafter petitioner No.1 joined the Indian Military Academy and underwent training from 11th July 2005 to 10th June 2006 at the said Academy at Dehradun. Upon completion of the training, petitioner No.1 was commissioned in the same regiment, 109 RAPID (Strike) Engineer Regiment which was commanded by his father Col. (Retd) M.B. Sayankar in 1990-92. On 1st July 2006, petitioner No.1 was granted substantive promotion to the rank of Captain. Petitioner No.1 was promoted as Acting Major on 26th July 2009 and is presently rendering his services as Major in Jammu & Kashmir.

3. Sometime in March 2009, petitioner No.1 was on leave and went to Pune to spend his vacation where he met petitioner No.2 through a common friend. Petitioner Nos.1 and 2 got engaged on 25th December 2009. Petitioner No.2, Ms.Shruti Kulkarni is a US citizen and also holds status of an Overseas Citizen of India (OCI). Since the application of petitioner No.1 for resignation in order to marry petitioner No.2 Ms.Shruti Kulkarni has been rejected and the challenge in the present petition is to the said decision, it is necessary to give some background facts about petitioner No.2-Ms.Shruti Kulkarni, which facts were also pointed out by petitioner No.1 to the respondents in the Statutory Complaint dated 9th June 2010:-

“(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 now 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."

The above statutory complaint was given by petitioner No.1 against Respondent No.2 not being granted permission to marry petitioner No.2 an Overseas Citizen of India and holding citizenship of USA.

4. In view of 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. Under Army Order 14/2004-MI-Marriage with Foreign Nationals- army personnel desirous of marrying foreign nationals except the nationals of Bhutan, are required to obtain prior Government sanction for such marriages. The Army Order lays down guidelines and rules/procedure governing marriage of serving service personnel with foreign nationals. Application for such prior sanction is required to be given through proper channels 120 days prior t