ARMED FORCES TRIBUNAL, AFR

REGIONAL BENCH,
JABALPUR

OA/91/(J)/2017 Inre MA/18(J)/2016

Date of Order : 15.12.2017

Hon’ble Mr. Justice Amar Saran, Judicial Member

Hon’ble Lt Gen N.B. Singh, Administrative Member

Raj Kumar Kataria (No. 15671552 Havildar) S/o Shri Ramesh Kataria, R/o
House No. 1046/1 Model Town Bilhari Mandla Road, Jabalpur (M.P).
..…. Applicant
Versus

1. Union of India, through the Secretary, Ministry of Defence, Government

of India, New Delhi.
2. The Chief of Army Staff, Army Headquarters, DHQ, Post Office New
Delhi.
3. The General Officer, Commanding-In-Chief, Central Command, Lucknow
(U.P).
4. The General Officer, Commanding-In Chief, Northern Command C/o 56
APO.
5. The General Officer Commanding, Madhya Bharat Area Headquarters
Madhya Bharat Area Jabalpur (M.P).
6. The Officer In-Charge,
Signal Records, Jabalpur (M.P.)
7. The Commanding Officer, 1 Technical Training Regiment, 1, Signal
Training Centre, Jabalpur (M.P.)
8. The PAO (OR), Corps of Signals, Jabalpur, District Jabalpur (M.P.)
9. Smt. Rashmi Kataria, C/o Shri Samajik Lal, House No.37/24, Kasimpara,
Near Railway N.E. Colony No.978, Bilaspur (Chhattisgarh)
…… Respondents

Ld. Counsel appeared for the Applicant - Shri KC Ghildiyal

and Shri HC Singh
Advocates.

Ld. Counsel appeared for the Respondents - Mrs Kanak Gaharwar,

Central Govt. Counsel.
along with
Maj Gourav Verma
OIC Legal Cell.
 OA/91(J)/2017 Inre MA/18(J)/2016

ORDER
Delivered by Hon’ble Justice Amar Saran, Member (J)

1. We have heard Shri KC Ghildiyal learned counsel for the

applicant and Mrs Kanak Gaharwar, learned counsel for the Union of
India and other army respondents. However, neither the respondent
No. 9 has appeared in person nor has her counsel appeared in spite
of service of notice.

2. The applicant who was a Havildar in the Corps of signals has

filed this OA with the prayer to quash the order dated 19.10.2010
(Annexure – A/1) issued by the respondent No. 4 and to direct the
respondents to stop deductions from the salary of the applicant
towards maintenance allowance to respondent No. 9, Rashmi Kataria
with immediate effect or to issue any other appropriate, order or
direction which this Hon’ble Court deems fit and proper in the
circumstances of the case.

3. The applicant was enrolled in the Corps of Signals on

19.01.2002. On 20.04.2008, he got married to respondent No. 9 in
accordance with Hindu rites and the same was entered in the Army
record on 28.08.2008. On 07.09.2009, a daughter Aashi Kataria, was
born from the marriage of the applicant with Rashmi Kataria. The
respondent no.9 is said to have started living with her parents in
Chhatisgarh as she claimed that she was being ill-treated by the
applicant and her in-laws in their native place at Jabalpur and
petitions thereafter were filed by the respondent No. 9’s father and by
the Respondent 9 before the CO 49 RR Battalion on 13.02.2010 and
24.02.2010 complaining about the inappropriate behavior of the
applicant with Rashmi Kataria and also praying for maintenance
allowance. On 19.10.2010, in exercise of powers under section 91 (i)
of Army Act 1950 read with Rule 193 of the Army Rules, 1954, the
respondent no.4 GOC-in-C, Northern Command accorded sanction
for a deduction amounting to 27.5% per month from the pay and

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allowances of the applicant and the proportionate payment to Smt.

Rashmi Kataria for her maintenance @ 22% and to Miss Aashi
Kataria daughter @ 5.5%, subject to certain conditions as mentioned
in the impugned order dated 19.10.2010.

4. According to the applicant, as the respondent no.9 had got an

employment as a lecturer in a government school under the control of
Zila Panchayat, Korba vide order dated 21.02.2013 in the pay scale
of Rs.5300-8300 she was receiving a handsome salary and was thus
not entitled for maintenance under section 125 Cr.P.C. or under Para
333 of the Regulations for the Army read with Army Order 02 of 2001.
He therefore submitted an application dated 31.07.2014 before the
respondents to stop maintenance allowance to Respondent No. 9,
but no orders have been passed on the said application. The
contention of the learned counsel for the applicant is that as the
respondent no.9 is gainfully employed, she is not entitled for any
maintenance allowance in view of Army Order 02/2001. In this
connection he has drawn our attention to paragraph 4 (f) of the Army
Order 02/ 2001 which reads as follows:

“(f) Maintenance allowance may not be granted to wife or

children in case the petitioner has sufficient
income/means to maintain herself and children.”

5. It is further contended by the applicant that respondent no.9 is

receiving a total salary of Rs.15219/- and that in the counter-affidavit
she has admitted to receiving the said salary. The applicant has
pleaded other financial difficulties as he has to get two of his
unmarried sisters married of. His further contention is that in a petition
filed by the applicant, in the absence of any cross-appeal in view of
the law laid down in State of Mysore, 1976(1) SCC 286, the
respondents cannot pray for an enlargement of the relief. He also
referred to Ashok Kumar Nigam Vs State of U.P (2016), 12 SCC 796,
which has relied on Pradeep Kumar Vs UoI, (2005) 12 SCC 219, that
the superior Court could not place an applicant on a worse footing
than when he applied for the relief. The prayer of the applicant ought
to be granted as neither the respondent no.9, nor her counsel, in

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spite of service of notice, have cared to come forward to contest the

case at the time of hearing showing scant regard for the Court.

6. The contention of the respondent No. 9 in her counter affidavit

was that there is no illegality in the order dated 19.10.2010 whereby
the applicant had been directed to maintain his wife and daughter. It
has been further mentioned that the allegation that the Respondent 9
is living apart from the applicant is baseless as she left her husband
(the applicant’s house) when her daughter was only 4 months old
because of the ill treatment being meted out to the Respondent 9 by
the applicant and his family members and hence she was entitled for
maintenance for maintaining herself and her minor daughter whose
education and welfare can be best looked after by her mother
(Respondent 9). In fact the maintenance awarded by the Military
authorities was insufficient for her maintenance and for bringing up
her daughter looking to the rate of inflation and expenditures to be
incurred by Respondent 9. The stance of the Respondents 1 to 8,
(Union of India and other Army respondents) in their counter-affidavit,
and reply to the delay condonation application and during arguments
was that as per the applications by the Respondent 9 and her father
to the C.O. 49 RR she was being ill treated by her husband and in-
laws, hence she was living with her parents in Chhattisgarh. It was
admitted that the applicant had submitted an application dated
31.07.2014 for stopping payment of maintenance to Respondent 9
which was now pending consideration before the GOC-in-C, Eastern
Command, and it was confirmed from the Principal High School,
Mangamar Pali (Chhattisgarh) that she was employed there.
Respondent 9’s comments were sought by 1 STC by a letter dated
31.05.2016 as to why her maintenance be not discontinued, to which
she replied that the maintenance payment be maintained as she was
finding it difficult to maintain herself and her growing daughter who
was being educated on the meager income of a school teacher. As
per investigation ordered by the Competent authority, the
Respondent 9 had a take home salary of Rs. 15219, which was
insufficient for her survival. It was further contended that the

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Respondent 9 was not only entitled for maintenance for bare survival,
as a human being is not consigned to the life of an animal, but is
entitled to lead a life of dignity, similar to how she was earlier living. It
was further observed in the objection to the delay condonation
application that the applicant had belatedly challenged the order
dated 19.10.2010, without any reasonable explanation for the delay,
hence the MA and OA deserved to be dismissed on that ground also.

7. In the light of the aforesaid contentions and after considering the

case law on the point, we have examined the matter in hand. We find
that so far as the order dated 19.10.2010 passed by the respondent
no.4 is concerned, the said order does not appear to be suffering
from any intrinsic illegality as the said order appears to have been
passed at the time when the Respondent 9 was completely
unemployed, in accordance with the provisions of law after giving due
notice to the applicant as no plea has been raised by the applicant in
his petition that the order was passed without opportunity to him.
However, we are not inclined to dismiss the application on the ground
of delay, as the applicant has not only challenged the order dated
19.10.2010, but has also made a prayer in support of his application
dated 31.07.2014 for discontinuing the payment of maintenance to
the applicant in view of her landing a job as a Government School
teacher vide order dated 21.02.2013, (though the said job was also
obtained more than 3 years prior to the filing of the OA), and also as
the applicant has to make a recurrent payment for maintenance. The
MA is therefore admitted and disposed of.

8. We may now consider the OA on merit. From the mere fact that
the respondent no.9 has been unable to appear before the court on
the dates fixed or even to instruct her counsel to appear after
receiving notice, it ought not to be inferred that the Respondent 9 who
is supporting herself and her 6 or 7 year old daughter in Chattisgarh
was unable to personally appear or to instruct her counsel to appear
despite service of notice out of lack of respect for the Court, but
considering the series of litigations before the lower Civil court and

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the High Court in which she had been entangled by the applicant, she
may no longer have the means to contest each and every case in the
Courts at Jabalpur and to instruct counsel with her meager resources,
hence the prayer of the applicant cannot be allowed only on the
ground that the respondent no. 9 or her counsel have failed to appear
at the time of final hearing.

9. Also, we think that the matter needs to be investigated as to the

capacity of the Respondent 9 to maintain herself and her growing
child who is being maintained and educated by the Respondent 9.
The said investigation can be best carried out by the Competent
Military Authority. The submission of Mrs Kanak Gaharwal, that
maintenance is not only enabling a woman to survive and lead an
animal existence, but it is for providing a life of dignity comparable to
her earlier living standards is correct. In this regard it has been held in
Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353, at page 357 as
follows :

“2. Be it ingeminated that Section 125 of the Code of Criminal

Procedure (for short “the Code”) was conceived to ameliorate
the agony, anguish, financial suffering of a woman who left her
matrimonial home for the reasons provided in the provision so
that some suitable arrangements can be made by the court
and she can sustain herself and also her children if they are
with her. The concept of sustenance does not necessarily
mean to lead the life of an animal, feel like an unperson to be
thrown away from grace and roam for her basic maintenance
somewhere else. She is entitled in law to lead a life in the
similar manner as she would have lived in the house of her
husband. That is where the status and strata come into play,
and that is where the obligations of the husband, in case of a
wife, become a prominent one. In a proceeding of this nature,
the husband cannot take subterfuges to deprive her of the
benefit of living with dignity. Regard being had to the solemn
pledge at the time of marriage and also in consonance with
the statutory law that governs the field, it is the obligation of

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the husband to see that the wife does not become a destitute,
a beggar. A situation is not to be maladroitly created
whereunder she is compelled to resign to her fate and think of
life “dust unto dust”. It is totally impermissible. In fact, it is the
sacrosanct duty to render the financial support even if the
husband is required to earn money with physical labour, if he
is able-bodied. There is no escape route unless there is an
order from the court that the wife is not entitled to get
maintenance from the husband on any legally permissible
grounds.”

10. The provision [para 4(f) of AO 02/2001] cited by the learned

counsel for the applicant also speaks of denial of maintenance to the
wife only when she has sufficient means to maintain herself and her
children. It does not provide for denial of maintenance only because
the wife has some means, and might be able to survive and bring up
the child at the level of an animal existence.

11. Para 4 (g)(ii) of the same Army Order further provides that :

“However, the amount of maintenance allowance may be

increased upto 25% of the said allowances, where the
said child is dependent on the mother who is not entitled
to be maintained by the officer.”

12 Also in a number of decisions it has been held that the principal

responsibility for bringing up and economically supporting a minor
child lies on the father. In State of Haryana & Ors. vs. Smt. Santra
(24.04.2000-SC): MANU/SC/0295/2000, it has been held in
Paragraph 40 as follows:

“Under every system of law governing the patriarchal

society, father being a natural guardian of the child, is
under moral liability to look after and maintain the child till
he attains adulthood.”

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13. In Soummopriyo Chakrabarti vs. Twinkle Chakrabarty

(23.02.2016 - CALHC): MANU/WB/0090/2016 it has been laid down
in para 27 as follows:

“The Court being the guardian of the minors is required to

ensure the welfare and well-being of the minor and in
discharge of such duty is under a duty to direct the father
to maintain the child even if the mother is having sufficient
means to maintain the child as the father cannot evade
his moral and legal responsibility of maintaining his child.”

14. We also find that the appointment letter of the Respondent 9’s
appointment as a teacher (Annexure 7, filed by the applicant) shows
the appointment to be temporary, although learned counsel for the
applicant contends that the appointment is more or less permanent,
and none has appeared before us for the Respondent 9 to contest
this position. But the malaise of irregular payments to Panchayat
school teachers is well recognized.

15. Therefore, in view of the absence of representation of Counsel

on behalf of the Respondent 9 to contest the case, and the need for
determination of the issue whether the Respondent 9 would be still
entitled for maintenance, or whether her daughter would be entitled
for higher maintenance if maintenance is denied to the applicant, in
the aforementioned background and in the light of Army Order AO
02/2001 and other relevant legal provisions, and as the Competent
Authority has all the necessary powers to get the needed
investigations done on the issues that arise in this case, we think that
the better course would be to remand the matter to the Competent
Authority where the applicant’s application for determining the
Respondent 9’s entitlement for maintenance in the changed
circumstances is pending consideration. In another decision, the
Principal Bench at New Delhi in OA 60 of 2009 with MA 348 of
20001 and MA No.430 of 2010 Lt. Col. Pradipto Goswami vs.
Union of India and Ors., decided on 25.04.2011 filed by the learned
counsel for the applicant along with his rejoinder-affidavit, wherein the

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Respondent had similarly found employment in a school, the matter

was remanded to the army authorities for a decision in the matter
within a fixed time frame after giving notice to both parties and taking
into consideration the current facts about the maintenance of wife
and her child in accordance with law.

16. So far as the case laws cited by the learned counsel for the
applicant regarding the lack of option before the Respondent to seek
enlargement of the reliefs in the absence of a cross appeal and the
fetter on the Courts to grant more relief than is being prayed for, we
think that from a mere mention by the respondent no.9 in her counter-
affidavit and in her reply to the show-cause notice issued by the army
authorities dated 31.05.2016 that she has a growing daughter to
maintain and is unable to make both ends meet out of her meager
salary as a teacher, she is not setting up any cross-case in any
appeal, and as this Court is also not ordering payment of enhanced
maintenance to the Respondent No. 9 or her daughter at this stage,
hence the cases cited by the learned counsel for the applicant in this
connection have no bearing on the matter in hand. It is for the
competent authority who has plenary powers to whom the matter is
being remanded to consider all these aspects as indicated above.

17. The Competent authority is therefore directed to take a decision

on the aforementioned issues as far as possible within 4 months of
the communication of the order. The applicant as well as the
respondent no.9 may bring any further documents to the notice of the
competent authority or raise any further pleas in support of their
respective claims for a proper decision in the matter.

18. With the aforesaid observations the OA is disposed of.

(Lt Gen N.B. Singh) (Justice Amar Saran)

Member (A) Member (J)

Sc / 15.12. 2017