Chandigarh Bench of the Armed Forces Tribunal (AFT) has held that the Army does not ordinarily have jurisdiction to entertain claims for maintenance made by aggrieved spouses of its personnel.
The order passed by Justice MS Chauhan and Lieutenant General Munish Sibal clarifies,
"… the Army Authorities have no jurisdiction to adjudicate such [Maintenance] claims and Sections 90 (i) and 91 (i) of the Act only empower the prescribed officers to pass an order directing deductions from the pay and allowances of a person subject to the Act, only to give effect to a decree passed by a Court of competent jurisdiction granting maintenance in favour of the wife and or child of such person, not otherwise."
By way of background, Major Amit Kumar Mishraapproached the AFT challenging an order granting his estranged wife and minor daughter maintenance.
Mishra's wife had initially filed her maintenance petition under Section 125 of the Code of Criminal Procedure (CrPC) before the concerned judicial magistrate.
However, she later approached the Army authorities with her maintenance plea. A show cause notice was eventually issued to Major Mishra in August 2015. Mishra replied to the same in October 2015.
However, in February 2016, the Army proceeded to pass an order directing that maintenance payments be deducted from Mishra's pay and allowance.
Importantly, the order was passed without considering Mishra's objections or granting him an opportunity to be heard.
This eventually lead Mishra to approach the AFT, arguing that order was illegal and usurped the concerned court's jurisdiction under the CrPC and the Hindu Marriage Act, 1955. The challenged order was passed invoking Section 90 (i) and 91 (i) of the Army Act (1950), Rule 193 of the Army Rules (1954) and Army Order 02 of 2002.
The Army officials contended that by virtue of these provisions, they had parallel powers to grant maintenance independently of Section 125 CrPC and Section 24 of the Hindu Marriage Act.
On the other hand, Mishra pointed out that these provisions only allow for the intervention of the Army authorities to enforce orders passed by the Central government or a prescribed officer. The Army does not otherwise have inherent powers to sanction maintenance for spouses by directing pay cuts of army officers.
The AFT ruled in favour of Major Mishra in light of the following observations.
No power under Army Act to direct pay cuts in absence of earlier orders
Sections 90 and 91 of the Act authorise the Army to deduct sums required by an order of the Central government or any prescribed officer for the payment of maintenance from an Army officer's salary.
For instance, if an Army Officer fails to comply with a decree for maintenance passed by a competent court, the Central government can pass an order to enforce the court's decree.
Pursuant to this Central government order, Sections 90 and 91 can be invoked to direct cuts in the errant officer's allowances, to be paid towards the court-ordered maintenance.
Save for such exceptional circumstances, the Army cannot impose pay cuts on their personnel towards the payment of spousal maintenance.
These provisions were intended to get over the effect of Sections 25 and 28 of the Army Act, by virtue of which Army officers are generally immune from attachment by court decrees.
"Maintenance" not a subject under Section 191 of Armed Forces Act
The AFT noted that the subject of maintenance is conspicuous by its absence in Section 191 of the Act, which deals with the subjects on which the Central government can make rules qua the Army. In this background, it was observed,
"This also indicates that the Legislature did not intend to empower the authorities under the Act to adjudicate claims for maintenance of wives/children of the personnel subject to the Act."
Expert Committee Report recommendations
The report submitted by the Raksha Mantri's Committee of Experts in 2015 was also critical of the procedures adopted by the Army in processing claims for maintenance.
In fact, the Report had specifically noted that,
"… the authorities under the Act have no jurisdiction to adjudicate a claim for maintenance. This view is fortified by the fact that the Act and the Rules do not provide any mechanism and procedure for adjudication of claims of maintenance."
Inter alia, the Committee Report had also laid down the following principles:
- The grant of maintenance and family disputes are essentially civil and private in nature. They should ordinarily be dealt with by civil courts and statutory authorities.
- Grant of maintenance by the defence services must be an exception and not the rule.
- Maintenance, whenever awarded, must be preceded by some kind of inquiry related to the allegations and executed by way of a proper speaking order and also after providing the parties an opportunity of hearing.
Acting on the report, the Ministry of Defence had directed that defence services curtail such practices, as far back as August 2016. Unfortunately, no progress was made on this front. The Court noted,
"The matter, it seems, is resting in peace in the files as nothing is shown to have been done in the matter and the authorities are still banking upon the procedure laid down in Army Order 02 of 2001."
Army Order 02 of 2001 has no legal sanctity
This order lays down the procedure to be followed when Army authorities deal with maintenance cases.
However, the AFT noted that the Army was unable to prove the legal sanctity of this Army order.
Notably, the AFT found that the 2002 order runs contrary to the Army Act, insofar as it gives the Army concurrent jurisdiction to adjudicate on maintenance claims along with civil courts.
Natural Justice principles violated
The AFT noted that the maintenance order was a non-speaking, unreasoned order, passed without affording the applicant an opportunity to be heard.
Therefore, the order was bad in law for having violated principles of natural justice. In this regard, a number of precedents were quoted.
Notably, even while referring to earlier judgments which mandated that natural justice principles be followed, the AFT noted that these precedents were erroneous insofar as they assumed that the Army had the jurisdiction to entertain maintenance claims.
"With respect, we wish to differ with the observations made in the cited judgments as regards jurisdiction of the Army Authorities to adjudicate claims for maintenance…"
Ultimately, these observations led the AFT to conclude that the challenged maintenance order passed by the Army in favour of Mishra's wife was without jurisdiction, illegal and unsustainable.
However, while quashing the order, the AFT made it clear that its observations would not affect the merits of the case, should Mishra's wife choose to approach a competent court with her maintenance claim.
Source: Bar and bench