Smriti Verma vs The Union Of India
2023 Latest Caselaw 2160 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.16821 of 2021
     ======================================================

Smriti Verma, W/o Lt. Col. Sandeep Kumar, D/o Tarkeshwar Prasad, resident of Village- Alisarai, Post Office - Machhahi, P.S.- Sakra, Distt.- Muzaffarpur.

... ... Petitioner Versus

1. The Union of India through the Secretary, Ministry of Defence, Govt. of India, South Block, New Delhi.

2. The Additional Directorate-General, Discipline and Vigilance DV- 4 (A), Adjutant General's Branch, Integrated Head-Quarters, Ministry of Defence (Army), DHQPO, New Delhi- 110105.

3. The General Officer Commanding-in-Chief, Western Command, Chandimandir, PIN - 908543, C/o 56 A.P.O.

4. The Brigadier, Staff Officer (Discipline and Vigilance) For General Officer Commanding-in-Chief, Western Command, PIN- 908543, C/o 56 APO.

5. The Colonel, Staff Officer/Officiating Colonel A (Human Rights) For General Officer Commanding-in-Chief, Western Command, PIN- 908543, C/o 56 APO.

6. Lt. Col. Sandeep Kumar (IC- 61794M), S/o Late Ramchandra Prasad, resident of House No.- 455, Ward No.- 03, New Colony, Deoria, P.S.- Deoria, Distt.- Deoria (U.P.) At present posted at H.Q. 26, Artillery Brigade (A), PIN- 908026, C/o 56 APO.

... ... Respondents ====================================================== Appearance :

     For the Petitioner/s    :       Mr. Suman Kumar Verma, Advocate
     For the UOI             :       Ms. Kanak verma, CGC
     For the Resp. No. 6     :       Mr. Mohit Agarwal, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 08-05-2023

Heard learned counsel for the petitioner, learned counsel

representing the Union of India and learned counsel for the

respondent no. 6.

2. The petitioner in the present case is seeking the

following reliefs:-

"(i) For issuance of a writ in the nature of certiorari quashing thereunder the letter being no. 0420/477/Stop/DV-3 Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

dated 24.06.21 issued by the Colonel, officiating Colonel A (Human Rights) For General Officer Commanding-in-Chief, Western Command (Respondent No. 5) seeking to dis- continue the Maintenance Allowance of the Petitioner by virtue of being the wife of IC-61794M Lt. Col. Sandeep Kumar (Respondent No. 6), with effect from 10th November, 2021 as a consequence of letter no. 0420/01/DV-3 dated 10.11.2020 and further letter no. 0420/stop/01/DV-3 dated 28.04.2021.

(ii) For further issuance of a writ in the nature of Certiorari quashing thereunder the letter being no. 0420/01/DV-3 dated 10.11.2020 issued by the Colonel, Staff Officer (Human Rights) for General Officer Commanding-in Chief, Western Command (Respondent No. 5) directing thereunder the petitioner to submit an affidavit in Original duly attested by Notary Public/Judicial Magistrate, 1st Class pertaining to case/cases filed by the Petitioner for maintenance allowance under any act or Code of Criminal Procedure before Civil/Criminal code in view of fresh policy/guideline/advisory notified vide the letter being no. 71902 dated 29.11.2018 issued by the Integrated Headquarters of Ministry of Defence (Army).

(iii) For further issuance of a writ quashing the letter being no. 0420/Stop/01/DV-3 dated 28.04.2021 issued by the Colonel, Colonel A (Human Rights) for General Officer Commanding-in-Chief, Western Command (Respondent No.

5) seeking thereunder discontinuation of Maintenance Allowance sanctioned earlier in favour of the Petitioner dated 20.11.2015 by virtue of being the wife of IC-61794 M Lt. Col. Sandeep Kumar (Respondent No. 6) with effect from 10.11.2021 placing reliance upon Head Quarters Western Command Letter No. 0420/01/DV-3 dated 10.11.2020.

(iv) For further issuance of an appropriate writ quashing thereunder letter no. 0420/477/Stop/DV-3 dated 26.07.2021 issued by the Colonel, Colonel A (Human Rights) for General Officer Commanding-in-Chief, Western Command (Respondent No. 5) directing the Petitioner to file a petition for grant of permanent Maintenance Allowance in Civil Court, if aggrieved, as there is no provision for grant of Maintenance Allowance after completion of finite duration of three years extendable by two years.

(v) For issuance of a writ in the nature of Mandamus or any appropriate order/direction instructing and asking thereunder the concerned Respondent/Respondents to bring on record a Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

copy of the Advisory on Maintenance Allowance issued vide letter no. 71902/MT/MISC/AG/DV-4A by the Integrated Head Quarters, Ministry of Defence (Army) (Respondent No. 2) as the same has not been made available to the petitioner.

(vi) To any other relief/reliefs to which the petitioner is found entitled to in the facts and circumstances of the case."

Brief Facts of the Case

3. The petitioner was married to respondent no. 6 on

19.11.2013 in accordance with the Hindu Rights and Customs. It

is the case of the petitioner that soon after her arrival in the

matrimonial house, demands for post-marriage dowry were made

by respondent no. 6 who is serving as Major in Indian Army. This

led to a matrimonial dispute between the parties. The petitioner

claims that she has been ousted from the matrimonial house on

19.06.2014 and has been denied her legitimate rights to live a

dignified life being wife of an Army Officer. She claims that

having no source of income on her own, she chose to approach

the Commanding Officer, 196 Field Regiment, C/o 56 APO by

way of a letter which was handed over to Major K. K. Charan (IC

65581W) at Gurgaon which was the place of posting of

respondent no. 6 at the relevant time.

4. Considering the grievance of the petitioner and the

issue of financial insecurity and crisis raised by the petitioner, the

Brigadier, Staff Officer (Discipline & Vigilance) issued a show Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

cause notice dated 13.07.2015 to respondent no. 6 in connection

with grant of maintenance allowance to the petitioner.

5. It is stated that the General Officer, Commanding-in-

Chief, Western Command exercised his power conferred under

Sections 90(i) of the Army Act 1950 (hereinafter referred to as the

'Act of 1950') read with Rule 193 of the Rules framed thereunder

and accorded a sanction for deduction of 22% per month from the

salary of respondent no. 6 towards payment of maintenance to the

petitioner. The copy of letter by which the maintenance has been

sanctioned has been brought on records as Annexure '3' to the writ

application. Learned counsel for the petitioner points out

paragraph '2' of Annexure '3' which reads as under:-

"2.The deduction of maintenance allowance in respect of the wife will continue till the marriage of the lady with the officer subsists or till her death whichever is earlier."

6. Learned counsel further submits that the petitioner

lodged a first information report against her husband and in-laws

giving rise to Sakra P.S. Case No. 25 of 2015 dated 20.11.2015

under Sections 341, 323, 379, 504, 498A 34 of the Indian Penal

Code and 34 of the Dowry Prohibition Act. The criminal case is

still pending at the stage of trial.

7. It is stated that the respondent no. 6 has preferred a

Matrimonial Case (Divorce) under Section 13(1-a) of the Hindu

Marriage Act 1955 in the court of learned Principal Judge, Family Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

Court Deoria (U.P.) registered as Divorce Suit No. 402 of 2016 in

which the petitioner has been noticed. She has appeared in the said

case.

8. Learned counsel for the petitioner submits that the

petitioner is a single lady having no brother and both the parents of

the petitioner being a contractual teacher in the primary school in

the State of Bihar are living in extremely difficult situations. Since

the petitioner found it difficult to defend herself in the divorce

case, she filed a transfer petition in the Hon'ble Supreme Court

and her application has been allowed. The Divorce Case No. 402

of 2016 which was filed before the learned Principal Judge,

Family Court, Deoria (U.P.) has been transferred to the court of

learned Principal Judge, Family Court, Muzaffarpur in the State of

Bihar.

9. It is stated that the respondent no. 6 moved this Court

for grant of anticipatory bail in Cr. Misc. No. 29722 of 2016 and

impressed upon this Court that 22% of his salary is being

deducted and paid to the petitioner as maintenance with effect

from 08.10.2014. He further gave an impression to this Court that

the matrimonial dispute is likely to be reconciled. Taking note of

these submissions, this Court granted privilege of pre-arrest bail to

the respondent no. 6 vide order dated 15.05.2017 passed in Cr. Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

Misc. No. 29722 of 2016 (Annexure '6' to the writ application). It

is further submitted that at one stage the petitioner had cleared

written examination of the Bihar Judicial Service Civil Judge

(Junior Division) and appeared in interview but she could not

come in final select list. She was waiting her result of the

Jharkhand A.P.O. Examination. It is stated that she has not yet

taken up the practice of law in any court.

Notice of Discontinuance of Maintenance

10. It is pointed out vide letter dated 24th June, 2021

(Annexure '7' to the writ application), the Army Headquarter,

Western Command informed the petitioner that the maintenance

allowance granted to her shall be discontinued with effect from 10

November 10, 2021. In Annexure '7' reference has been made to

the HQ Western Command letters No. 0420/01/DV-3 dt. 10

November, 2020 and 0420/Stop/01/DV-3 dt 28 April 2021 which

were sent to the petitioner but it is the specific case of the

petitioner that she had not received the earlier two letters. On

receipt of the letter as contained in Annexure '7', the petitioner

wrote to the Army Headquarter vide Annexure '8' to the writ

application in which she has stated that she had not received any

letters earlier.

Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

11. The petitioner was later on made available the copies

of the two letters but the copy of Advisory/Guidelines/Norms said

to have been issued by the Additional Directorate General,

(Discipline & Vigilance, DV-4(A), Adjutant General's Branch

Integrated Head Quarters, Ministry of Defence (Army) letter no.

71902/MT/MISC/AG/DV-4 A dated 29.11.2018 was not served

upon the petitioner.

12. It is stated that the petitioner was served with a

letter dated 26.07.2021 by which she was intimated that there is

no provision for grant of maintenance allowance after completion

of finite duration of three years extendable by two years. The

petitioner was given liberty to file petition for grant of permanent

maintenance allowance in civil court as she had already received

maintenance at the rate of 22% of the salary of her husband for a

period of five years. The letter dated 26.07.2021 refers a letter

dated 10.11.2020 issued by the Colonel, Staff Officer (Human

Rights) For General Officer Commanding-in-Chief, Western

Command whereunder the finite duration clause and its purpose

has been discussed. Learned counsel for the petitioner has placed

before this Court the copy of letter dated 26.07.2021 and another

letter dated 20.11.2015 which are part of Annexure '10' series. It

is pointed out from the letter dated 26.07.2015 that there was a Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

change in the policy of the respondents in the matter of grant of

maintenance to the spouse of an Army Officer. Paragraph '2' and

'3' of the letter dated 26th July, 2021 is quoted hereunder for a

ready reference:-

"2. It is intimated that there is no provision for grant of maintenance allowance after competition of finite duration of three years extendable by two years. In your case, you have already completed period of five years from 08 October 2014 till 08 October 2019."

"3. You may file petition for grant of permanent maintenance in civil court, if aggrieved please."

13. It is submitted that what has been stated in the letter

dated 26th July, 2021 is in complete conflict with the earlier letter

dated 20.11.2015 wherein it is stated that the deduction of

maintenance allowance shall continue till the marriage of the lady

with the officer subsists or till her death whichever is earlier.

Learned counsel submits that the Advisory for grant of

maintenance allowance issued vide letter no. 71902 dated 29

November, 2018 has been circulated in July, 2020. Paragraph '2',

'3' and '4' are as under:-

"2. Advisory on 'Grant of Maint Allce', approved by Hon'ble RM, was cisseminated to all Comd Hqs for implementation. The advisory stipulates grant of maint allce for a finite duration of three yrs extendable to five yrs in case of non-finality of the judicial process. Post the dissemination of Advisory, all Comd. HQs are in receipt of numerous representations for stoppage of maint allce, wherein the payee has already been paying the same for more the five yrs."

"3. Comments were asked from Comd. HQ's for application of finite duration clause for grant of maint allce Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

for cases sanctioned prior to issue of Advisory on grant of maint allce approved by Hon'ble RM fwd vide DV dte letter No 71902/MT/Expert Committee dt 29 Nov 18. "4. Based on suggestion reced from environment following procedure is suggested to be followed for maint cases decided prior to 29 Nov 18:-

(a) Notice be issued to all affected pers highlighting approval of fresh policy by GOI wherein sanction for maint allce needs to be accorded for a duration of 3 yrs extendable to mad 5 yrs. Importance of approaching Civ Court of law for final settlement of the case be emphasized.

b) The affected pers be asked to submit fresh affidavit with regard to dt of filing of Court case and present posn of the same within three months of issue of the Notice. In case of no reply is recd within stipulated time, a reminder be issued for reply within a fresh time period of two months.

(c) It is recom that after the issue of the letter to the spouse who have been getting maint allce for prior to 29 Nov 18 a pd of one yr be granted to settle the case through civ court.

(d) However, if relief is provided by the Court earlier than that, then the grant of maint allce by the Army autho, will cease immediately on occurrence of such an Order."

14. Learned counsel for the petitioner submits that the

petitioner has been served with a letter dated 10 November 2020

(Part of Annexure '10' series) which is a notice for discontinuation

of maintenance allowance and according to this notice the

petitioner was called upon to file an affidavit pertaining to case(s)

filed by her for maintenance under any Act or Code of Criminal

Procedure before a Civil or Criminal Court. It is stated that if the

affidavit is not received within three months from the date of

receipt of the notice, it will be assumed that she has no inputs to

forward. The maintenance allowance in such case shall be Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

discontinued automatically on 10th January, 2021. The copy of

format of the affidavit is enclosed with this letter. Later on she

was informed vide letter dated 20.04.2021 about the amendments

made in paragraph 4 of the letter dated 10th November, 2020 and it

was informed that in case the affidavit is not received within

three months from the date of receipt of the notice, it will be

assumed that she had no inputs to forward and her maintenance

allowance shall automatically discontinued from 10th November,

2021.

Challenge to the Order of discontinuance

15. Learned counsel for the petitioner has brought to the

notice of this Court the Additional relief prayed in the Interlocutory

Application seeking quashing of the letter being no. 0420/477/DV-3

dated 25.08.2021 issued under the signature of Colonel a (Human

Rights) for General Officer Commanding-in-Chief, Western

Command (Respondent no. 5) disclosing thereunder supersession of

the Head Quarters Western Command Letter No. 0420/477/DV-3

dated 20.11.2015 granting maintenance allowance in favour of the

petitioner. It is submitted that on perusal of the letter dated 25 th

August, 2021 (Annexure '11') it would appear that the same has

been issued in exercise of power under Section 90(i) of the Act of

1950 read with Rule 193 of the Rules and the earlier sanction has

been discontinued with effect from 10 th November, 2021 which states Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

that the amount already deducted but not paid to the lady will be

refunded to the officer.

16. Learned counsel for the petitioner submits that the

Army Adjutant General's Branch has issued Army Order No.

06/2020/AG/DV whereunder the matters relating to payment of

maintenance allowance to wives and children of Army personnel

under the Army Act has been dealt with. According to Army

Order, Section 90(i) and 90(ii) read with Rule 193 of the Army

Rules, empowers the competent authorities to order deduction

from the pay and allowances of an officer, JCO or an OR for the

maintenance of his wife and children including legitimate

children. It further says that all cases for grant of maintenance

allowance will be decided at the level of GOC-in-C, Command

Headquarters, after due investigation and as per the channel of

processing laid down in paragraph 7 of the Army Order.

17. It is submitted that the Army Order itself provides

that powers to grant maintenance under the Army Act are

independent of the provisions of the Code of Criminal Procedure,

1973 or for that even under Section 24 of the Hindu Marriage Act,

1955. It states that a case of maintenance will be processed

simultaneously while court proceedings are in progress and such

court proceedings do not debar the Army authorities to process and Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

grant maintenance allowance to a petitioner subject to the

conditions explained in the Army Order.

18. Learned counsel submits that in such circumstance,

the orders sanctioning the maintenance allowance at the rate of

22% per month of the salary of the respondent no. 6 has been

wrongly withdrawn on the ground that the petitioner has received

the amount for a period of five years. It is submitted that the only

reason for such withdrawal is that the petitioner has not filed any

maintenance application before the Family Court and five years

have gone. It is submitted that the Army Order itself provides that

22% of the pay allowances will be payable as maintenance of the

wife.

19. Learned counsel submits that a copy of the Army

Order has been enclosed with the counter affidavit filed on behalf

of the respondent no. '6' and the same would amply demonstrate

that in the case of the petitioner the sanction for payment of

maintenance allowance has been withdrawn on irrelevant

considerations.

Reply on behalf of the Union of India

20. A counter affidavit has been filed on behalf of

Union of India (Respondent Nos. 1 to 5). It is stated that Section

90 and 91 of the Act of 1950 are reflective of Section 145 of the Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

Army Act 1881 of the British Times, these are the enabling

provisions that were to be used to give effect to maintenance

decree of a competent civil court. However, it was discovered over

the years that the said enabling provisions were being started to be

used as a routine and regular recourse rather than what it was

meant for, i.e. exceptional provisions for exigent circulates.

21. According to respondent nos. 1 to 5, this routine

manner of exercise of power under Section 90 and 91 of the Act of

1950 resulted in grave civil consequences since merely based upon

administrative orders, without ascertaining the veracity of

statements of the spouse or the financial implications on the

parties, maintenance used to be ordered by the military

authorities. In such circumstances the matter was flagged before a

Committee of Experts constituted by the then Defence Minister

which went through the issue in detail and noted that issues

pertaining to grant of maintenance in marital and family disputes

are essentially civil and private in nature and should be ordinarily

dealt with by civil courts and statutory authorities under specific

laws meant for the said purpose. The defence services do not have

the wherewithal, capacity or ability to check the veracity of

allegations and counter allegations in such disputes which are

essentially based upon appreciation of evidence, a role that cannot Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

be performed by the defence services but only by a competent civil

court.

22. Paragraph 3.2.2. by which the present issue has

been flagged have been brought to the notice of this Court vide

Annexure 'B' to the counter affidavit.

23. Learned counsel for the Union of India has relied

upon the judgment of the Hon'ble Supreme Court in the case of

Belsund Sugar Co. Ltd. Vs. State of Bihar & Others reported in

(1999) 9 SCC 620 by which a Constitution Bench of the Hon'ble

Apex Court held that in cases where there are two different

legislations dealing with the same subject matter and providing

for two different authorities acting statutorily which are also likely

to arrive at independent diverse conclusions, then in order to avoid

such conflict, the general legislation must take way for specific

legislation qua the overlapping subject matter.

24. Learned counsel has also placed a judgment in the

case of Gujarat Urja Vikas Nigam Ltd. vs. Essar Power Ltd.

reported in (2008) 4 SCC 755 wherein the Hon'ble Supreme Court

oberved that it is a well settled law that specific law overrides

general law. It is therefore, submitted that the Hindu Marriage Act

1955 provides special provision for grant of maintenance and Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

therefore, the same ought to have been resorted to by the petitioner

in place of invoking the writ jurisdiction of this Court.

25. Opportunity was, though granted to the Union of

India twice to file additional counter affidavit but it has not been

filed. In any case, the contention of the Union of India remains the

same to defend the impugned order dated 25.08.2021 (Annexure-

'11').

Stand of the Respondent No. 6.

26. By filing a counter affidavit, respondent no. 6 has

contested the writ application. It is submitted that the petitioner

has an equally efficacious remedy under the Hindu Marriage Act,

1955, therefore, the present writ application is fit to be dismissed

on the ground of alternative remedy. Learned counsel for the

respondent no. 6 raised an issue of territorial jurisdiction on the

ground that in this case the impugned orders have been passed by

the authorities who are not sitting within the territorial jurisdiction

of this Court.

27. At the bar, learned counsel has placed reliance on the

judgment of the Hon'ble Supreme Court in the case of Lt. Col.

Khajoor Singh v. Union of India, reported in AIR (1961) SC

532, Alchemist Ltd. v. State Bank of Sikkim reported in (2007)

11 SCC 335 and Shanti Devi v. Union of India reported in Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

(2020) 10 SCC 766 and Nawal Kishore Sharma Vs. Union of

India and Others reported in (2014) 9 SCC 329 have been

placed.

28. Learned counsel for respondent no. 6 submits that

Sections 90 and 91 and the Act of 1950 are in the nature of a

summary provisions pertaining to deduction of pay and allowances

of military personnel for maintenance of their spouse. These

provisions cannot be used as a routine recourse remedy under law.

29. This Court has noticed from the tone and tenor of the

counter affidavit of the respondent no. 6 that the same is on same

line and some of the paragraphs contents are verbatimly the same

and advancing a similar argument and relying upon the same

judgment of the Hon'ble Supreme Court on which reliance has

been placed by and on behalf of the respondents Union of India.

The counter affidavit of respondent no. 6 has though been sworn

on 4th February, 2022 and the counter affidavit of the Union of

India has been sworn on 24th February, 2022 , it would appear on

comparing of both the counter affidavits that they are in the same

language. To this Court, therefore, it appears that either the stand

of the Union of India was already leaked to respondent no. 6 or

the respondent Union of India copied the submissions made by

respondent no. 6 in his counter affidavit. It is for the competent Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

officer of respondent no. 1 to 5 to find out the truth behind it and

satisfy themselves.

Consideration

30. Having heard learned counsel for the parties and on

perusal of the records, this Court finds that admittedly, vide

Annexure 3 to the writ application, the competent authority

sanctioned grant of maintenance at the rate of 22 % per month to

the petitioner from the pay and allowances of respondent no. 6.

Paragraph 2 of Annexure '3' clearly states that the deduction of

maintenance allowance in respect of the wife will continue till the

marriage of the lady with the officer subsists or till her death

whichever is earlier.

Army Order- Procedure Prescribed

31. The Army Order which has been brought on record

by respondent no. 6 issued on 17th July, 2020 vide 06/2020/AG/DV

clearly states the legal position whereunder it is stated that the

powers to grant maintenance under the Army Act are independent

of the provisions of the Code of Criminal Procedure 1973 (Section

125 of the Cr.P.C.) for that matter even under Section 24 of the

Hindu Marriage Act, 1954. It states that a case of maintenance

will be process simultaneously while court proceeding are

progressing and such court proceeding do not bar the Army Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

Authority to process and grant maintenance allowance to a

petitioner subject to conditions explained in the said order.

32. This Court further finds that the procedure for

allowing maintenance allowance are admittedly provided in the

Army Order. It requires an affidavit from the wife about her

employment, her salary and emoluments and any other

independent source of income She is also required to disclose her

movable and immovable properties and any income therefrom. It

is only after considering the said affidavit and on being satisfied,

the officer /other than officer from whom salary deduction is to be

made will be issued a show cause notice and a formal approval

shall be obtained from the competent authority under Section 90(i)

or 91(i) of the Act of 1950. While passing such order the reply of

the officer from whose salary the deduction is to be made is to be

considered.

33. This Court finds from one of the clauses i.e. Clause

(m) that it talks of encouraging the wife to seek simultaneous

redress through a court of law. It further says that the maintenance

allowance will be initially granted for a finite duration, of a period

of three yeas, while duly advising her to get the matter adjudicated

through a civil court. This period may be further extended by two

years in case of non finality of the judicial process for which the Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

applicant will be asked to submit proof at the end of three years.

The practice of ensuring maintenance allowance through a court

of law should be encouraged and the rational of a wife being

rendered helpless in case an individual proceeds on premature

retirement be advised to the lady.

34. It appears on a bare reading of Clause (m) of the

Army Order that even as it talks of encouraging the wife to seek

simultaneous redress through a court of law, it no where says that

in case of non-filing of a maintenance case in a court of law, the

maintenance allowance already granted by the competent authority

in exercise of power under the Act of 1950 shall be liable to be

withdrawn. So far as the case of the present petitioner is

concerned, she was granted maintenance allowance vide Annexure

'3' dated 2 November, 2016 with a specific stipulation that it will

continue till the marriage of the lady with the officer subsists or

till her death. It is not the case of the respondent no. 6 that this

petitioner has got any independent source of income or has got

movable or immovable properties which she had concealed at the

time of making her request for grant of maintenance to the

competent authority. While granting the maintenance allowance

vide Annexure '3', the petitioner was never asked to seek redressal

of her grievance through a court of law. She had no reason to Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

believe that her maintenance allowance shall be discontinued on

expiry of five years period.

35. It appears from the records that later on an Advisory

was issued in July, 2020 to all the Command Headquarters

wherein it is stated that in the maintenance cases decided prior to

29th November, 2018 , notice be issued to all affected persons

highlighting of approval of fresh polciy by GOI wherein sanction

for maintenance allowance needs to be accorded for a duration of

three years extendable to maximum five years and importance of

approaching civil court for final settlement of the cases be

emphasized. It was further directed that the affected persons be

asked to submit a fresh affidavit with regard to date of filing of

court cases and present position of the same within three months

of issue of notice. In case of no reply is received within stipulated

time, a reminder be issued for reply within a fresh time period of

two months. What is finally stated in this letter no. 71902/Gtd MA

3/5yrs/AG/DV-4 (A) July 2020 is that "However, if relief is

provided by the Court earlier than that, then the grant of main allce

by the Army auth, will cease immediately on occurrence of such

an Order."

36. Again this Court finds that the communication no

where states that where the wife has not approached the court of Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

law within the given period and /or where the court has not

decided the application for grant of maintenance within the given

period, the maintenance allowance which is being paid to a wife is

to be stopped.

A glance over the relevant provision of the Army Act 1950

37. In the aforementioned background, when this Court

examines Section 90 and 91 of the Act of 1950, it is noticed that

both the sections fall under Chapter VIII with the heading

'PENAL DEDUCTIONS'. Section 90 (i) specifically states that

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. Thus,

under clause (i) there is a statutory mandate that a sum required by

order of the prescribed officer to be paid for the maintenance of

the wife or legitimate or illegitimate child are liable to be

deducted. Similarly under Section 91 (i) applies to the person other

than an officer. It is worth mentioning that the penal deductions

made under Section 91 is subject to Section 94 which limits the

deductions from the pay and allowance of a person made under

clauses (e), (g) to (i) of Section 91. Section 94 reads as under:-

"94. Limit of certain deductions.- The total deductions from the pay and allowances of a person made under Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

clauses (e), (g) to (i) of section 91 shall not, except where he is sentenced to dismissal, exceed in any one month one-half of his pay and allowances for that month."

38. Since in this case the sanction has been granted by

competent authority in exercise of power under Section 90(i) and

91(i) read with Rule 193 of the Rules of 1954, it would be

important to note that Rule 193 provides that the prescribed

officer for the purpose of Clause (i) of Section 90 and clause (i)

of Section 91 shall be the Chief of Army Staff or the officer

commanding the Army.

39. It is an admitted position in the present case that the

sanction vide Annexure '3' has been granted by a prescribed

officer as per Rule. A bare reading of the two provisions i.e.

Sections 90(i) and 91(i) of the Act of 1950 would show that these

provisions have been incorporated to ensure that a wife or

legitimate or illegitimate child of an officer or a person other than

an officer should get minimum relief by way of maintenance. For

this purpose a Prescribed Officer has been provided. The statement

of objects and reasons of the Act of 1950 would reveal that the

legislatures decided to revisit the the three Acts, namely, the

Indian Army Act, 1911, the Indian Navy Discipline Act, 1934 and

the Indian Air Force Act, 1932 with a view to make them self

sufficient and complete codes in themselves. The object was to Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

make them as closely similar in form and arrangement of matter as

the special requirements of each service might demand. One of the

main objects of the revision of the Army Act is to make itself

sufficient by incorporating the relevant provisions from certain

other related enactments.

40. This Court therefore, finds that there is a purpose

behind incorporating Clause (i) under Section 90 as well 91 of

the Act of 1950. It provides a mechanism to the wife, legitimate

and illegitimate child of an officer and a person other than an

officer serving in the Army in the matter of getting relief by way

of maintenance. There is no provision under the Act of 1950

providing for grant of maintenance to a wife in terms of Clause (i)

of Section 90 of the Act of 1950 for a limited period of five years.

Under these circumstances, the contention of the respondents that

the powers conferred under Section 90 and 91 of the Act of 1950

can be invoked only in extra ordinary circumstance and when an

individual is not complying with the orders of a civil court for

paying maintenance to his family, is not only against the law as

also against the very spirit behind grant of maintenance to a wife,

legitimate or illegitimate child. Such contention if accepted by this

Court would result in creating a clog over the provisions of

Section 90(i) and 91(i) of the Act of 1950.

Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

41. The Act of 1950 is a complete code in itself,

therefore, the contention of respondents that the issue of

maintenance is in the nature of a civil and a private dispute,

therefore, it should be ordinarily dealt with by a civil court cannot

be accepted in the present case. The procedures for grant of

maintenance to a wife are duly prescribed in the Army Order,

those are the same and one which are followed by a court of law.

The Prescribed Officer under the Rule 193 of the Rules is well-

educated having skill and ability and he is a competent officer

occupying the most responsible position in the defence services,

therefore, it would not be correct to take a plea that the defence

services do not have the wherewithal, capacity or ability to check

the veracity of allegations and counter allegations in such disputes.

42. In the case of Capt. Suneel v. Union of India and

others reported in AIR 2004 Delhi 95 the Hon'ble Division

Bench of Delhi High Court held inter alia that the powers to grant

maintenance under the Army Act are independent of the provisions

of the Code of Criminal Procedure 1973 (Section 125 Cr.P.C.) or

for that matter even under Section 24 of the Hindu Marriage Act,

1954. The Hon'ble Delhi High Court held that for this reason the

respondent no. 3 in the said case instead of seeking grant of

maintenance by filing an application under Section 125 Cr.P.C. or Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

under Section 24 of the Hindu Marriage Act, preferred to approach

the Army authorities for the same. She was not debarred from

claiming maintenance for herself by making an application though

the Army authorities. In fact, this Court finds that what has been

held by the Hon'ble Delhi High Court is duly acknowledged in

the Army Order which has been brought on the record.

43. This Court therefore, finds that the impugned orders

as contained in Annexure '7' and '10' series to the writ application

by which a decision has been taken to discontinue the

maintenance allowance of the petitioner are liable to be set-aside

and those are accordingly, set-aside.

Issue of Territorial Jurisdiction

44. Learned counsel for the respondent no. 6 has raised

an issue of territorial jurisdiction, however, the same is liable to be

rejected at the threshold. Admittedly, the petitioner after having

been allegedly ousted from matrimonial house is living with her

parents at Muzaffarpur in the State of Bihar. Considering her

hardship in defending herself in the Divorce Case in the Family

Court of Deoria (U.P.) the Hon'ble Apex Court decided to transfer

the Divorce case to the court of learned Principal Judge, Family

Court, Muzaffarpur. She was getting her maintenance at

Muzaffarpur which has been stopped by the impugned orders. Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

45. The judgments of the Hon'ble Supreme Court in the

case of Shanti Devi (Supra) and Nawal Kishore Sharma

(Supra) would help the contentions of the petitioner that this

Court has territorial jurisdiction to entertain this case. In the case

of Shanti Devi (supra) the Hon'ble Apex Court has been pleased

to set-aside the order of this Court when the writ application filed

by the petitioner who was affected by the impugned orders was not

maintained. The relevant part of the judgment of the Hon'ble Apex

Court in paragraph '15' is being reproduced hereunder:-

"15. The second reason given by the learned Single Judge that the petitioner ought to have filed the writ petition before the Jharkhand High Court also does not commend us. For a retiree, who is settled in Darbhanga and receiving pension at District Darbhanga, it cannot be said that it was necessary for him to file his petition in the Jharkhand High Court where his earlier writ petition was pending. The subject-matter of the earlier writ petition was entirely different and the dismissal of the writ petition does not preclude the petitioner to file subsequent writ petition in the same High Court"

46. Similarly, in case of Nawal Kishore Sharma

(Supra), in Paragraph '17', the Hon'ble Apex Court held as under:-

"17. We have perused the facts pleaded in the writ petition and the documents relied upon by the appellant. Indisputably, the appellant reported sickness on account of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment.

Finally, the respondent permanently declared the appellant unfit for sea service due to dilated cardiomyopathy (heart muscle disease). As a result, the Shipping Department of the Government of India issued an Order on 12-4-2011 cancelling the registration of the appellant as a seaman. A copy of the letter was sent to the appellant at his native place in Bihar where he Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

was staying after he was found medically unfit. It further appears that the appellant sent a representation from his home in the State of Bihar to the respondent claiming disability compensation. The said representation was replied by the respondent, which was addressed to him on his home address in Gaya, Bihar rejecting his claim for disability compensation. It is further evident that when the appellant was signed off and declared medically unfit, he returned back to his home in the district of Gaya, Bihar and, thereafter, he made all claims and filed representation from his home address at Gaya and those letters and representations were entertained by the respondents and replied and a decision on those representations were communicated to him on his home address in Bihar. Admittedly, the appellant was suffering from serious heart muscle disease (dilated cardiomyopathy) and breathing problem which forced him to stay in his native place, wherefrom he had been making all correspondence with regard to his disability compensation. Prima facie, therefore, considering all the facts together, a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation"

47. These two judgments would squarely cover the case

of the petitioner. She was getting her maintenance at Muzaffarpur

in the State of Bihar which has been stopped by the impugned

order.

48. In result, this writ application is allowed. The

impugned orders are quashed. The respondents are directed to pay

the entire arrears as well as the current maintenance allowance

subject to adjustment of amount, if any, paid by the respondent no.

6 during the intervening period to the petitioner. Subject to such

order/orders as may be passed by a competent court of law, the Patna High Court CWJC No.16821 of 2021 dt.08-05-2023

Respondent Nos. 1 to 5 shall act in terms of the Sanction Order as

contained in Annexure '3' to the writ application keeping in mind

the limits within which the over all deductions are to be made

from the salary and allowances of the respondent no. 6. The

competent authority shall fix installment in which the arrears of

maintenance shall be deducted from the salary of Respondent No.

49. This Court has already held that the Act of 1950 is a

complete code in itself, still the petitioner, if so advised, will be at

liberty to file an application in court of law.

50. So far as the respondents are concerned, they are

liable to continue with the maintenance as per Annexure '3' to the

writ application.

51. This writ application stands allowed to the extent

indicated above.

(Rajeev Ranjan Prasad, J) avin/-

AFR/NAFR                 AFR
CAV DATE
Uploading Date           10.05.2023
Transmission Date