Delhi High Court
Virendra Kumar vs Union Of India & Ors. on 6 January, 2023
NEUTRAL CITATION NO: 2023/DHC/000105
$~4
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 06.01.2023
+ W.P.(C) 13556/2021
VIRENDRA KUMAR ..... Petitioner
versus
UNION OF INDIA & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Ms. Vibha Sharma, Advocate.
For the Respondent: Ms. Arunima Dwivedi, CGSC along with Ms. Pinky Pawar,
Advocate for R-1 & 2.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner seeks quashing of Section 92 (i) of the Air Force Act,
1950 (hereinafter referred to as 'the Act') and Air Force Order
03/2013 dated 06.02.2013 as ultra vires the Constitution and further
seeks setting aside of order of maintenance dated 17.06.2019 passed
by the Air Chief Marshal, Chief of the Air Staff.
2. Learned counsel for the Petitioner submits that the impugned
order dated 17.06.2019 is erroneous and is liable to be set aside.
Signature Not Verified
Digitally Signed By:KAMAL
Signing Date:07.01.2023
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NEUTRAL CITATION NO: 2023/DHC/000105
3. Learned counsel for the Petitioner submits that the said
provisions are unconstitutional and further that the Respondent no.
3/wife has not disclosed this order in the proceedings filed under
Section 125 Cr.P.C. seeking maintenance for herself and her child.
4. She submits that a sum of Rs. 15,000/- was originally being
paid to the Respondent No. 3 and 4 for the purposes of their
maintenance, however, since they refused to join the mediation
proceedings, said amount was stopped.
5. It is not in dispute that the Respondent No. 3 is the lawfully
wedded wife of the Petitioner and Respondent No. 4 is the son of the
Petitioner. It is also not in dispute that no amount of maintenance was
being paid to them at the time when the order impugned herein was
passed rather the admission is that initially a sum of Rs. 15,000/- was
being paid but it was subsequently stopped.
6. Section 92 (i) of the Air Force Act, 1950 reads as under:-
"92. Deductions from pay and allowances of airmen.--Subject to the
provisions of section 95, the following penal deductions may be made from
the pay and allowances of an airman, that is to say,--
xxxxx
(i) any sum required by order of the Central Government or any
prescribed officer to be paid for the maintenance of his wife or his
legitimate or illegitimate child or towards the cost of any relief given by
the said Government to the said wife or child."
7. Section 92 (i) of the Act stipulates that the Central Government
or a prescribed officer is empowered to make deduction from the pay
and allowance of the person being paid for maintenance of his wife
Signature Not Verified
Digitally Signed By:KAMAL
Signing Date:07.01.2023
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NEUTRAL CITATION NO: 2023/DHC/000105
and child. This Section is, however, subject to Section 95 of the Act
which stipulates that the total deduction under Section 92 shall not
exceed, in any one month, one-half of his pay and allowances for that
month.
8. The Office Order 3/2013 lays down the procedure for grant,
modification or cessation of maintenance allowance to the wife and
the children of Air Force personnel. It also provides for systematic
steps to be taken inter alia for maintenance allowance to the wife and
the children of the Air Force personnel. The Office Order lays down
the detailed procedure to be followed by the competent authority for
grant of maintenance and also the quantum of maintenance allowance
which is to be recommended.
9. The Office Order further stipulates that the duration of
maintenance allowance for the wife under Section 92 (i) of the Act
would be a maximum period of five years at a time or grant of
maintenance allowance by civil court which order is liable to be
reviewed after expiry of five years. Similarly, in respect of a son,
maintenance allowance is to be granted till he attains the age of 25
years or till he is granted maintenance by a civil court.
10. We find that both the provisions of 92 (i) as well as the Office
Order 03/2013 are beneficial provisions providing for beneficial relief
to the dependent family members of the person. Said provisions are
for grant of an urgent beneficial relief to the dependent family
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Digitally Signed By:KAMAL
Signing Date:07.01.2023
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NEUTRAL CITATION NO: 2023/DHC/000105
members and, in fact, have been made subject to any order being
passed by a civil court on their respective petitions.
11. Learned counsel for the Petitioner has not been able to show
that the said provisions are ultra vires the Constitution or breach any
fundamental rights of any individual including the Petitioner.
12. Consequently, we find no ground to quash the said provisions
on the ground of being ultra vires the Constitution.
13. So far as the impugned order of grant of maintenance is
concerned, we notice that admittedly, Petitioner was initially paying a
sum of Rs. 15,000/- to the wife and the child but has thereafter
stopped paying the same. The competent authority has granted a sum
of Rs. 16,500/- as maintenance to the wife and the child which is
nearly 1/3rd of the pay and allowance being drawn by the Petitioner.
14. The provisions of the Act themselves stipulate that the order of
maintenance shall continue till the time an order is passed by the civil
court. As per the Petitioner, proceedings have already been initiated by
the Respondent under Section 125 Cr.P.C. for grant of maintenance.
15. We find no ground to interfere with the order, however, we
clarify that in case any order is passed by the competent court under
Section 125 Cr.P.C., the maintenance already being paid under the
order impugned herein dated 17.06.2019 shall be appropriately taken
into account.
Signature Not Verified
Digitally Signed By:KAMAL
Signing Date:07.01.2023
19:43
NEUTRAL CITATION NO: 2023/DHC/000105
16. Thus, we find no merit in the petition. The petition is,
consequently, dismissed.
SANJEEV SACHDEVA, J
RAJNISH BHATNAGAR, J
JANUARY 6, 2023/p
Signature Not Verified
Digitally Signed By:KAMAL
Signing Date:07.01.2023
19:43
