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: Delhi High Court
W.P.(C) 13556/2021
VIRENDRA KUMAR v. UNION OF INDIA & ORS.
Petitioner seeks quashing of Section 92 (i) of the Air Force Act, 1950 and Air Force Order 03/2013 dated 06.02.2013 as ultra vires to 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. Petition before HON’BLE MR. JUSTICE SANJEEV SACHDEVA and HON’BLE MR. JUSTICE RAJNISH BHATNAGAR
FACTS OF THE CASE:
Learned counsel for the Petitioner prays that the order on 17.06.2019 is erroneous and is liable to be set aside. The counsel also submits that the said provisions are unconstitutional and further that the lawfully wedded wife of the Petitioner (Respondent no. 3) has not disclosed this order in the proceedings filed under Section 125 Cr.P.C (Order for maintenance of wives, children and parents.) seeking maintenance for herself and her child.
The counsel submits that a sum of Rs. 15,000/- was originally being paid to the Respondent No. 3 (wife) and respondent no.4 (son of the Petitioner) for the purposes of their maintenance. The said amount was stopped on their refusal to join the mediation proceedings.
Section 92 (i) of the Air Force Act, 1950 stipulates that the Central Government or a prescribed officer is empowered to make deduction from the pay and allowance of the person towards payment for maintenance of his wife and child. This Section is, however, subject to Section 95 of the same Act which stipulates that the total deduction under Section 92 shall not exceed more than one-half of his pay and allowances for that month.
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. The Office Order lays down the procedure which the competent authority needs to be follow for grant of maintenance and also to recommend the quantum of maintenance allowance.
The Office Order relying on Section 92 (i) of the Air Force Act, 1950 specifies that a maximum period of five years at a time or grant of maintenance allowance by civil court, such liable to be reviewed after the expiry of five years. Similarly, with 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.
JUDGEMENT
The Court finds that both the provisions of section 92 (i) Air Force Act, 1950 as well as the Office Order 03/2013 are beneficial provisions providing for beneficial relief to the dependent family members. Such a provisions grant urgent beneficial relief to the dependent family members and, in fact, have been made subject to any order being passed by a civil court on their respective petitions.
The division bench stated that the learned counsel for the Petitioner was not successful to show that the provisions in question are ultra vires to the Constitution or breach any fundamental rights of any individual including the Petitioner. Hence, the court found no ground to quash the petition.
With respect to the Air Force Order 03/2013 concerned with the order of grant of maintenance, the Court noticed that the 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.
The Court stated that the provisions of the Air Force Act, 1950 stipulates that the order of maintenance shall continue till the time an order is passed by the civil court. It was noted that, proceedings have already been initiated by the Respondent under Section 125 Cr.P.C. for grant of maintenance.
The Court could not find any ground to interfere with the above order. The Court further stated 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 in question in the current case shall be appropriately taken into account.
The Court found no merit in the petition and dismissed it.
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JUDGEMENT REVIEWED BY ADITYA G S.