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Deciding on maintenance to spouses not under army’s jurisdiction
Major Amit Kumar Mishra Vs Union of India and others
The Armed Forces Tribunal, Regional Bench, Chandigarh
Original Application No. 1229 of 2017
About/from the judgment:
The power of granting maintenance can only be exercised by competent civil courts after examination of evidence, cross-examination and opportunity of hearing, says the tribunal.
In a landmark judgment, the Chandigarh Bench of the Armed Forces Tribunal (AFT), comprising justice MS Chauhan and Lt Gen Munish Sibal, has restrained the power of the military authorities to impose cuts on pay and allowances of defence personnel to be paid as maintenance to spouses on the request of the latter.
As per its orders dated July 31, 2018, the AFT has held that the power of awarding maintenance can only be exercised by competent civil courts after proper examination of evidence, cross-examination and opportunity of hearing. The AFT passed the orders on a petition by Major Amit Kumar Mishra whose spouse had been granted 27.5% of his salary as maintenance (22% to the spouse and 5.5% to the minor child).
“It cannot be through non-speaking orders that military authorities pass maintenance orders, based on a simple affidavit that the spouse submits,” it said, adding that the army had no jurisdiction in ordering maintenance allowance to the spouse from a serving personnel’s pay and allowance and cannot usurp the jurisdiction of civil courts in the matter. Currently, the army pays up to 33% of pay and allowances as maintenance on the spouse’s application.
The AFT has observed that the power of military authorities to deduct an amount for maintenance was essentially for exceptional circumstances to give effect to the decree of maintenance by competent courts since the pay and allowances of defence personnel were otherwise immune from attachment by court decrees.
While setting aside the order of military authorities, the AFT has held that the spouse was absolutely free to take recourse to a civil court of competent jurisdiction to claim maintenance.
Colonel NK Kohli (retd), the counsel for the Major said, “This judgment has removed a lot of confusion. All armed forces will now observe this practice.”
The grant of maintenance, in a summary manner, without investigation or examining evidence has remained a sore point for the affected personnel. In 2015, a committee of experts that the Union ministry of defence had formed had also given recommendations on these lines. These were also accepted in August 2016. Though the MoD had directed the defence services to curtail the procedure, no further action was taken toward implementation.
Over the past five years, there has been a massive rise in litigation on the subject with the army granting maintenance to spouses on almost all applications through non-speaking orders without providing reasons or discussing evidence or counter-claims.
The MoD panel had observed that exceptional provisions were being invoked in routine and the defence services did not have the wherewithal or the ability to examine the veracity of allegations and counter-allegations of both parties. It had also said that such cases were matter of evidence that only civil courts could weigh and deal with.
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