Sandeep Kumar vs Union of India - 2024 Supreme(Pat) 44

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Pat) 44

IN THE HIGH COURT OF JUDICATURE AT PATNA
K. VINOD CHANDRAN, CJ. and RAJIV ROY, J.
LPA No.873, 1114 of 2023 in CWJC Nos. 16821, 16821 of 2021
(18.1.2024)
Lt. Col. Sandeep Kumar
(IC-6179M) (in 873)
Union of India & Ors. (in 1114) ... Appellants
vs.
Union of India & Ors. (in 873)
Smriti Verma & Anr.
(in 1114) ... Respondents

Advocates appeared:
For the Appellants : M/s Mohit Agarwal (in 873); Kanak Verma (in 1114).
For the Respondents: M/s Additional Solicitor General (in 873); Shashank Chandra (in 1114).

Headnote:
Army Act, 1950–Sections 90 & 91 read with Army Rules, 1954–Rule 193–Advisory dated 29.11.2018–clause (a)–maintenance to wife of an Army Officer–the advisory/order shows that its framers wanted that a proper order by the Civil Court is obtained, so that the wife is not at a disadvantageous position in case the official takes premature retirement and thus it has been repeatedly recorded that they be encouraged to take recourse to the Courts of Law–however, in the present case, encouraging the wife to seek alternate remedy and discontinuance of maintenance allowance after a period of five years in view of subsequent guidelines issued in the year 2015, cannot be squarely applied–the orders of 2015 in favour of estranged wife was to subsist till a subsequent marriage or death of herself–the wife who had obtained the order in 2015, who was also being paid maintenance, was informed about the new guidelines by letter dated 10.11.2020 for the first time–the decision was also to discontinue the maintenance allowance within one year, i.e. 10.11.2021–this is not in tune with the care and caution reflected from and the spirit of the new guidelines which reckoned laws–delays and provided interim relief to the wife–hence care should have been taken to provide sufficient time to approach a Court of Law and obtain orders–while the stand taken by the Army is appreciable that the estranged wife should be encouraged to take recourse to the Civil Court for grant of maintenance allowance, the observation in the present case cannot be appreciated that the maintenance allowance granted to her cannot be extended beyond five years when they on their own extended twice–the five year period, as asserted by the Army, was also prior to the guidelines of 2018, which was intimated to the wife only in 2020–the lady undertaking that she will be filing an appropriate petition before the Family Court in the Matrimonial case within a period of four weeks and on such undertaking 22% maintenance to be resumed w.e.f. February, 2024–appropriate orders to be passed by Family Court within six months–arrears of the maintenance to be taken into consideration–if the amount fixed by the Family Court is lesser, no refund from the wife to be done–if the maintenance fixed is higher, if shall be payable to the petitioner only for the future and the period from 10.11.2021 to February, 2022–amount of maintenance and the quantum to be at the discretion of the court and not governed by the present order–present order is in particular facts and circumstances of the case and no judgment passed on the changed guidelines/advisory of the Army relating to the grant of maintenance allowance–L.P.As. disposed of. (Paras 41 to 51)

Rajiv Roy, J.—Heard the parties.

2. The two appeals, one filed by the Union of India (LPA No. 1114 of 2023) and the other by Lt. Col. Sandeep Kumar (LPA No. 873 of 2023) arises out of the judgment and order dated 08.05.2023 passed in C.W.J.C. No. 16821 of 2021 by which the learned Single Judge has been pleased to allow the writ petition preferred by the respondent-writ petitioner, Smriti Verma.

3. The matrix of facts giving rise to the present appeals is/are as follows:—

4. The respondent no.6-petitioner (in LPA No. 873 of 2023), Smriti Verma tied her nuptial knots with the appellant herein (Lt. Col. Sandeep Kumar), then a Major serving with the Indian Army on 19.11.2013. She claims to have been subsequently ousted from her matrimonial house by her husband/in-laws within a year, on 19.06.2014.

5 As she had no other source of income, her parents being contractual Panchayat Teachers, she approached the Commanding Officer, 196 Field Regiment, C/o- 56 APO for grant of maintenance. Subsequently, on 13.07.2015, the respondents issued show cause notice on the appellant (Lt. Col. Sandeep Kumar).

6. The General Officer, Commanding in Chief, Western Command thereafter exercising his power conferred under Section 90 (1) of the Army Act (hereinafter referred to as ‘the 1950 Act’) read with Rule 193 of the Army Rules, 1954 (henceforth for short ‘the 1954 Rules), gave direction for deduction of 22 percent of the salary of the appellant per month towards payment as maintenance allowance to the respondent no. 6-petitioner. The paragraph 2 of the letter dated 20.11.2015 read as follows:—

“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.”

7. The respondent no. 6-petitioner also lodged Sakra P.S. Case No. 25 of 2015 on 20.01.2015 under sections 341, 323, 379, 504, 498A and 34 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act against her husband (Lt. Col. Sandeep Kumar).

8. As the story moves on, the appellant (Lt. Col. Sandeep Kumar) preferred Matrimonial Case (Divorce) vide Divorce Suit No. 402 of 2016 before the Court of Learned Principal Judge, Family Court, Deoria in the State of Uttar Pradesh under section 13(1-a) of the Hindu Marriage Act, 1955 (henceforth for short ‘the 1955 Act’).

9. The respondent no. 6-petitioner considering the difficult condition in defending the case filed at Uttar Pradesh preferred petition before the Hon’ble Supreme Court for transfer of the said matrimonial case from Deoria, (Uttar Pradesh) to Muzaffarpur, (Bihar) where she was staying with her parents.

10. The said Transfer Petition (C-7/2018) was allowed by the Hon’ble Apex Court on 30.08.2019 after which the Divorce Petition No. 402/2016 was transferred to the Court of Family Court within the jurisdiction of the District and Sessions Judge, Muzaffarpur, Bihar and re-numbered as Matrimonial Case No. 523 of 2019.

11. It was in the year 2020 that vide letter dated 10.11.2020, the respondent no. 6-petitioner was informed by the Colonel, Staff Officer (Human Rights), Western Command, C/o- 56 APO that as per the subsequent decision dated 29.11.2018 approved by the Ministry of Defence, New Delhi, the maintenance allowance to the spouse of serving Army Personnel will be provided for a finite period of three years further extendable by two more years. As such, she was asked to submit an affidavit whether any petition for maintenance allowance has been preferred by her before the appropriate civil/criminal Court or not, before a decision is taken in the matter. It was further informed that on failure to do so, the maintenance allowance shall be discontinued automatically on 10.01.2021. The respondent no.-6-petitioner claimed that this letter was not received by her.

12. Subsequently, on 28.04.2021, another letter was sent to her by the said Officer in which it was informed that the period of discontinuance of the maintenance allowance has be