Back
1997 Supreme(Cal) 484
IN THE HIGH COURT AT CALCUTTA
Debi Prasad Sircar, J.
Vivekananda Mondal – Petitioner
Versus
Minati Mondal & other – Opposite Parties
Criminal Revision No. 1801 of 1996
Decided On: December 23, 1997
Md. Qudrat E Kabir for the Petitioner.
Mr. Monish Sen for the Opposite Party No.1.
Mr. Amit Talukdar for the Opposite Party Nos.2 to 5.
Section 91(i) of the Army Act, 1930 provides for a procedure parallel to Section 125 Cr. P.C. and an Army wife is free to move the Army Authority for her maintenance. Such a procedure does not interfere with or override the order of a Magistrate.
Headnote:
MAINTENANCE - SECTION 91(I) OF THE ARMY ACT, 1930 - ORDER BY ARMY AUTHORITY - VALIDITY - JURISDICTION OF HIGH COURT - ARTICLE 227 OF THE CONSTITUTION OF INDIA - APPLICABILITY - SPECIAL LAW OVERRIDING GENERAL LAW.
Fact of the Case:
The petitioner, an Army personnel, challenged the order of his superior Army authority directing him to pay maintenance to his wife and child. The wife had earlier obtained a maintenance order from a Magistrate under Section 125 Cr. P.C. The Army Authority passed the impugned order under Section 91(i) of the Army Act, 1930.
Finding of the Court:
The High Court held that the impugned order was not maintainable as the order was passed by the Army Authority outside the territorial jurisdiction of the High Court. The Court further held that Section 91(i) of the Army Act provides for a procedure parallel to Section 125 Cr. P.C. and the wife was free to move the Army Authority for her maintenance. The Court also held that the impugned order did not in any way interfere with or override the order of the Magistrate.
Issues: 1. Whether the impugned order of the Army Authority was maintainable in the High Court? 2. Whether Section 91(i) of the Army Act, 1930 provides for a procedure parallel to Section 125 Cr. P.C.? 3. Whether the impugned order interfered with or overrode the order of the Magistrate?
Ratio Decidendi: 1. The High Court held that the impugned order was not maintainable as the order was passed by the Army Authority outside the territorial jurisdiction of the High Court. The Court relied on Article 227 of the Constitution of India, which restricts the power of Superintendence of the High Court to Courts and Tribunals within its territorial jurisdiction. 2. The Court held that Section 91(i) of the Army Act, 1930 provides for a procedure parallel to Section 125 Cr. P.C. The Court noted that the Army Act is a special law applicable to Army personnel and that the wife was free to move the Army Authority for her maintenance. 3. The Court held that the impugned order did not in any way interfere with or override the order of the Magistrate. The Court noted that the wife was receiving maintenance as per the order of the Magistrate and that the impugned order only provided for an additional amount of maintenance.
Final Decision: The High Court dismissed the revisional application.
Debi Prasad Sircar, J.
1. In this Revisional Application the petitioner, a personnel of the Army prays for quashing under Section 482 of the Cr. P.C. the order of his superior Army authority passed for GOC-in-C, Victor Force Provost Unit directing him to pay maintenance to his wife and child at the rate of 22% of his pay and allowances amounting to Rs. 732/- per month for the wife and Rs. 183/- per month for the child, from the month of March 1996, payable by the last date of each month.
2. The wife of the petitioner filed a case under Section 125 Cr. P.C. against the petitioner before the learned S.D.J.M. Suri for maintenance and accordingly in Misc. Case No. 61/80 of that Court, the learned S.D.J.M., Suri directed the Opposite Party in that case that is, the present petitioner, to pay Rs. 200/- per month to the present O.P. No.1, wife, for her maintenance on and from 31.1.86. The present petitioner, that is, the husband, Is a military personnel while the wife was receiving that maintenance at the rate of Rs. 200/- per month as ordered by the learned S.D.JM., Suri. She filed a petition on 10.2.88 before the GOC-in-C, 33 Mechanised Division, Andhra Pradesh, under which the husband was in service, to issue suitable direction to pay adequate maintenance submitting that a maintenance of Rs. 200/- per month was not at all sufficient for her with the child. Over this petition the Army Authority concerned took action against the present petitioner-husband, directed him to show cause in terms of Section 91(i) of the Army Act, 1930, read with Army Rule 193, and, after proceeding with the matter as per law as the Army Authority found proper, directed the husband-petitioner on 9.3.96 to pay maintenance as above taking into consideration and including the amount of Rs. 200/- as ordered by the learned S.D.J.M., Suri as stated above. The petitioner-husband challenges that order of the Army Authority and prays for quashing it............it interferes with the judicial order passed by the learned S.D.J.M., Suri as above. The Army Authorities as impleaded in this revisional application and the wife contest this case. The Army Authority produces copies of some documents of the proceeding before them under Section 91(i) of the Army Act under which the impugned order was passed.
3. On behalf of the petitioner-husband Md. Qudrat E Kabir argues that there having a judicial order passed for maintenance by the learned S.D.J.M., Suri under Section 125 Cr. P.C. on her own prays, if the wife required any enhancement she was to move the very same Court for alteration in allowances. When there is a lawful procedure before the competent Court of law it was quite illegal on the part of the wife to move the Army Authority for such revision and it was also illegal for the Army Authority to make interference with the judicial proceeding. The order of the Army Authority cannot override the order or the Magistrate or to interfere with it as desired by the petitioner. Hence, the order of the Army Authority as impugned in this case is quite illegal and must be quashed by this Court. Section 91(i) of the Army Act does not provide for any power to the Army Authority to override the judicial pronouncement. Under Articles 225, 226 and 227 of the Constitution of India the High Court is empowered to set aside the order of the Army Authority and to quash the proceeding before them. The learned Advocate for the petitioner-husband refers to the ruling reported in L.V. Veeri Chettiar & another vs. Sales Tax Officer, Bombay, AIR 1971 Madras 155; Damomal Kausomal Raisinghani vs. Union of India & other, AIR 1967 Bombay 355; Chaitanya Charan Das vs. State of West Bengal & other, AIR 1995 Cal 336 and Pottery Mazdoor Panchayat & another vs. Union of India & other, 1989 (1) CRN 369.
4. On behalf of the Army Authorities O.P. Nos. 1 to 5, Mr. Talukdar argues that Article 227 of the Constitution will not be appropriate in this case and it does not provide for any action to set
