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2017 Supreme(Gau) 53
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
A.K.GOSWAMI, J.
P/C Ranjan Kumar Baruah S/o Late Loknath Baruah – Petitioner
Versus
The State of Assam, Represented by the Commissioner and Secretary to the Government of Assam, Home Department – Respondent
WP (C) No. 4439 of 2010
Decided On : 19-01-2017
For the Petitioners: Mr. H.R.A. Choudhury and Mr. R.A. Choudhury.
For the Respondents: Mr. T.C. Chutia and Mr. A.L. Mandal.
Headnote:
Second Marriage without First wife consent - Granted maintenance - Claim for reimbursement - Petitioner at time of filing instant writ petition in year was a Platoon Commander in Tea Plantation Security Force and was posted at Tea Estate - His case is that he is married to one and his marriage was solemnized - Writ petition was filed by him assailing the validity of order dated passed by respondent No. 4 - Perusal of aforesaid order goes to show that petitioner was asked to appear before respondent No. 4 on in view of a complaint lodged by respondent No. 5, namely - Based on the hearing, respondent No. 4 recorded finding that petitioner had married a second time and that respondent No. 5 is first wife of petitioner - Accordingly, by said order respondent No. 4 granted maintenance of per month, to be deducted from salary of petitioner and same is to be credited to account mentioned in said order, which stood in name of respondent No. 5 - Appearance of petitioner in orderly room on made his confession that respondent No. 5 Puja Boruah is his wife - But die to non-conceiving of a child for long period he married another lady - Besides that maintains a good relationship with respondent No. 5 physically, mentally as well as financially - They stayed at Hotel Lodge on room No. 107 and registered themselves as husband and wife - Moreover, they also lived as husband and wife in house – Held, Petitioner has not filed any reply affidavit to affidavit filed by respondent No. 4, but question is: whether a declaration of marital status could have been made by respondent No. 4 in his capacity as Commandant declaring respondent No. 5 to be first wife of petitioner - Order of maintenance rests on finding recorded by him that respondent No. 5 is first wife of petitioner - Non-filing of any rejoinder to affidavit of respondent No. 4, in considered opinion of Court, will not detract Court to go into question as to whether respondent No. 4 could have pronounced such judgment declaring status of respondent No. 5 - Answer to this question has to be in negative - Impugned order cannot be sustained as same is without any authority of law - Accordingly, impugned order is set aside – Court however hastens to add that this Court has not considered materials which weighed with respondent No. 4 in passing impugned order and impugned order is set aside only on the ground that such order was passed without any authority of law - Respondent No. 5 will be at liberty to pursue her remedies before an appropriate forum - It is also provided that petitioner will not be entitled to claim for reimbursement of amount already deducted from his salary either from respondent No. 5 or from State respondents - But henceforthno amount shall be deducted from salary of petitioner towards maintenance of respondent No. 5 - Writ petition is allowed
1. Heard Mr. R.A. Choudhury, learned counsel for the petitioner. Also heard Mr. A.L. Mandal, learned counsel, appearing for respondent No. 5 and Mr. T.C. Chutia, learned State counsel, appearing for the State respondents.
2. The petitioner, at the time of filing the instant writ petition in the year 2010, was a Platoon Commander in Assam Tea Plantation Security Force and was posted at Naharkatia Tea Estate. His case is that he is married to one Rumi Bhuyan and his marriage was solemnized on 07.05.2010. The writ petition was filed by him assailing the validity of the order dated 16.06.2010 passed by the respondent No. 4. The order reads as follows:
“ORDER
In view of the complaint lodged by Mrs. Puja Baruah, w/o Ex-service P/C Ranjan Baruah deployed at Naharkatia T.E., he was asked to appear in O.R. on 18.05.2010 vide this office letter No. AISF-II/R/110/2009-10/1372 dated 14.05.2010.
Accordingly, he appeared in O.R. before me on 18.05.2010 and heard him in person. During hearing, it is found that the complaint lodged by his wife Mrs. Puja Baruah is true. P/C Baruah has married 2nd wife in presence of his first wife Puja Baruah without her consent.
Although Sri Baruah wants to keep his first wife with him, but Mrs. Baruah is not agreed to stay with the newly married 2nd wife of Sri Baruah.
Since P/C Ranjan Baruah has violated the provision of Govt. servant Conduct rules, for marrying 2nd wife in presence of 1st wife without her consent, it is therefore ordered to pay Rs. 5,000/- from the salary of P/C Ranjan Kr. Baruah from June/2010 to onwards to his first wife Mrs. Puja Baruah for her maintenance.
The amount of Rs. 5,000/- should be directly debited to the SBI A/C No. 11647520988 of Mrs. Puja Baruah.
Sd/-
Commandant
AISF Bn.-II, Niz Chabua,
Dibruagarh, Assam”
3. A perusal of the aforesaid order goes to show that the petitioner was asked to appear before respondent No. 4 on 18.05.2010 in view of a complaint lodged by respondent No. 5, namely, Mrs. Puja Baruah. Based on the hearing, respondent No. 4 recorded the finding that the petitioner had married a second time and that the respondent No. 5 is the first wife of the petitioner. Accordingly, by the said order, the respondent No. 4 granted maintenance of Rs. 5,000/-, per month, to be deducted from the salary of the petitioner and the same is to be credited to the account mentioned in the said order, which stood in the name of respondent No. 5.
4. Respondent No. 5, though entered appearance through Mr. Mandal, did not file affidavit.
5. Respondent No. 4 has filed an affidavit. In paragraph 5, 7 and 9, it is stated as follows:
“5. That with regard to the statements made in paragraph 5 of the writ petition the deponent begs to state that however the appearance of the petitioner in orderly room on 18.05.2010 made his confession that respondent No. 5 Puja Boruah is his wife. But die to non-conceiving of a child for long period he married another lady. Besides that P/C Ranjan Baruah maintains a good relationship with respondent No. 5 Mrs. Puja Baruah physically, mentally as well as financially. They stayed at Hotel Monalisha Lodge, Bokakhat on 20.04.2007, room No. 107 and registered themselves as husband and wife. Moreover, they also lived as husband and wife in the house of one Sri Jiten Gogoi of No. 1 Dibhasigaon Moran and one Sri Manoj Borah of Dergaon town. Moreover, the petitioner opened a seven years Insurance plan with respondent No. 5 Mrs. Puja Boruah and in that plan he mentioned the name of respondent No. 5 as nominee quoting her relationship as wife. He never mentioned anything that he married Smti. Ruma Bhuyan on 07.05.2010.
A photocopy of the register maintained by the Hotel authority as well as the certificate issued by the landlord are annexed hereto and marked as Annexure-B & C respectively.
6. *** *** ***
7. That with regard to the statements made in paragraph 7 of the writ petition the answering deponent beg to state that whenever respondent No. 5 was admitted at
