Calcutta High Court (Appellete Side)
Suranjit Biswas vs Union Of India & Ors on 11 July, 2022
11.07.2022 IN THE HIGH COURT AT CALCUTTA
DL - 5 CONSTITUTIONAL WRIT JURISDICTION
(PP) APPELLATE SIDE
WPA 5190 of 2022
Suranjit Biswas
Vs.
Union of India & Ors.
Mr. Manoj Kumar Roy
....for the petitioner.
Mr. Subit Majumdar
...for Union of India.
The petitioner is a L/NK in the Army and is
working at 21 Corps Sig. Regt. The petitioner is
presently posted at Madhya Pradesh. The petitioner's
wife, Smt. Beauty Rani Biswas (respondent no.6) has
lodged a complaint at Habra Police Station, being P.
S. Case No.20/2021, G.R. Case No.98/2021 under
Section 498A/34 of Indian Penal Code and Section
3/4 of Domestic Violence Act, 2005 against the
petitioner. It is also an admitted position that the
petitioner has filed a matrimonial suit, being
Matrimonial Suit No.336/2021 under Section 9 of
Hindu Marriage Act, 1955 (hereinafter referred to as
the 1955 Act), inter alia for restitution of conjugal life.
The said suit is pending before the learned Additional
District and Sessions Judge, 5th Court at Barasat,
North 24-Parganas. The petitioner's wife (respondent
no.6) had made a prayer before the competent
authority of Indian Army for maintenance allowance
from the petitioner. This complaint is being
processed by the competent authority. It is an
admitted position that the petitioner was served with
a notice to produce his last pay slip at his present
place of posting at Madhya Pradesh. The petitioner
says that though he was informed about the
complaint lodged by his wife (respondent no.6), but
he has not been supplied with the complaint and
documents in support thereof. There is as such,
according to the petitioner, violation of principles of
natural justice against the petitioner while the
complaint made by his wife (respondent no.6) is being
processed.
The petitioner being posted at Madhya Pradesh
had received the notices at Madhya Pradesh. The
petitioner has challenged the action of the employer
in this High Court. The claim for maintenance as
against the petitioner at the instance of his wife
squarely falls under the provisions of section 3(o) of
the Armed Forces Tribunal Act, 2007 (hereinafter
referred to as the 2007 Act).
Even though the petitioner contends that the
proceedings does not arise out of a matter relating to
the conditions of the service but for the provisions of
section 3(o)(ii) of 2007 Act, I am of the view that the
petitioner's case is covered under this Act. I am also
unable to accept the petitioner's argument that the
cause of action relating to matrimonial discord
between the petitioner and respondent no.6 having
arisen within Habra jurisdiction, this Court has the
territorial jurisdiction to receive the writ petition
challenging the proceedings initiated against him on
the complaint of respondent no.6. The petitioner by
filing the matrimonial suit under section 9 of 1955
Act has admitted the respondent no.6 to be his wife.
The petitioner, being the husband and a member of
disciplined force, is bound to maintain his wife. The
petitioner has clearly indicated that he is not
interested to pay the maintenance of his wife as,
according to the petitioner, she is staying separately
out of her own volition though he wants his wife to be
back. The allegation whether the respondent no.6 is
staying separately out of her own volition is the
subject matter of the suit filed by the petitioner before
the Barasat Court.
The writ Court neither can usurp the jurisdiction
of such court nor can make any observation, which is
likely to have an impact on the said suit. The
petitioner's allegation as against his wife, therefor,
cannot be gone into at this stage while deciding this
writ petition. The end result is that the petitioner is
required to maintain his wife in befitting standard to
that of his until there is a verdict of a competent court
of law. The petitioner is also liable in law to meet the
legal expenses of his wife. The writ petition also
appears to be premature as no order has been passed
against the petitioner as yet. The petitioner's
contention that the provisions of Hindu Marriage Act,
1955 Act has an overriding effect over the Army Act,
1950 or the rules framed thereunder cannot also be
gone into this writ petition as there is no prayer
challenging the provision under the Army Act, 1950
and the rules framed thereunder to be repugnant and
has no application to proceedings against the
petitioner originating out of a complaint being lodged
by his wife (respondent no.6).
The judgments relied upon by the petitioner
reported in (2000) 7 SCC 640 (Navinchandra N.
Majithia Vs. State of Maharashtra & Ors.) and (2018)
7 SCC 303 (Lieutenant Colonel Vijaynath Jha Vs.
Union of India & Ors.) have no manner of application
in the instant case. Navinchandra (supra) is on
territorial jurisdiction. The facts which persuaded the
Supreme Court to pass such judgment has no
resemblance to the facts of the instant case.
Vijaynath (supra) does not persuade me to hold that
the case in hand falls outside the domain of 2007 Act.
The petitioner, therefor, is not entitled to any
relief as claimed in the writ petition. The writ petition
is misconceived firstly, as the writ petition is not
maintainable before this Court for lack of territorial
jurisdiction. Secondly, for the bar in view of the
provisions of 2007 Act. Thirdly, the petitioner, being
a part of disciplined force, has to obey the order and
command of his superior officers. A member of the
disciplined force is expected to follow the rules, have
control over his mind and passion, guard his instincts
and feelings and not allow his feelings to fly in a fancy
as held in Anil Kumar Upadhyay v. The Director
General, SSB & Ors. reported in 2022 SCC Online
SC 478. The petitioner has been directed to submit
his pay slip. Instead of submitting his pay slip, the
petitioner has questioned the proceedings by alleging
violation of principles of natural justice when no final
order has yet been passed.
The writ petition is, therefor, dismissed with cost
awarded at Rs.10,000/- as against the petitioner
payable to the respondent no.6. The payment of cost
is a pre-condition for the petitioner taking recourse of
any other provisions before any other forum against
the respondent no.6.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance
of necessary formalities.
(Arindam Mukherjee, J.)
