Judgment:
SadhanKumar Gupta, MEMBER (Judicial)
1. This original application has been preferred against the order of maintenance, as passed against the applicant on 4.5.2010 by the respondent No. 1.
2. The case of the applicant is that he married the respondent No. 6, Mrs. Mona Singh Tomar on 22.6.2002. Out of the said wedlock, a male child was born on 23.5.2004. But unfortunately, the said child was suffering from Global Developmental Delay, which needs regular medical treatment. While the respondent No. 6 was staying with the applicant, marital dispute arose due to various family problems. Ultimately, the respondent No. 6/wife left the matrimonial house and started staying with her parents at Mohali, Chandigarh. The applicant tried to persuade the respondent No. 6 to stay in his house but failed. It is the specific case of the applicant that his wife intentionally and without any just excuse, preferred to leave the matrimonial house and is staying with her parents with the child.
3. Subsequently, the applicant came to know that the respondent No. 6 made a complaint with the authority stating therein that the applicant was ill-treating her and also failed and neglected to maintain her, which, he is duty bound to do as per law. On the basis of the said complaint, the Commanding Officer (respondent No. 1) issued a show cause notice in the name of the applicant, who submitted his reply wherein he clearly denied the allegations, as made against him, by the respondent No. 6 and also stated therein that without any reason whatsoever, the wife left the matrimonial house and as such, she was not entitled to get any maintenance, as claimed. It has further been stated therein that after the wife left the matrimonial house, he could get a certificate dated 22.6.2009 wherefrom it was clear that the wife was employed in the capacity of an executive in a private firm from 7.2.2003 to 30.3.2009. By pointing this fact, the applicant tried to make out a case that since the wife had no sufficient reason for living separately with her parents and since she is an earning lady, so, no maintenance amount should be allowed in her favour.
4. However, the respondent No. 1 by an order dt. 4.5.2010, which is the impugned order so far as this application is concerned, granted maintenance allowance in favour of the respondent No.6 (wife) to the extent of 22% of the salary of the applicant and 5.5% of the salary was allowed in favour of the minor child towards maintenance. It was further directed that the applicant should pay the arrear amount w.e.f. 28.11.2009.
5. Being aggrieved by the said order of respondent No. 1, the applicant has filed this OA challenging the said order. According to him, the impugned order was passed without giving any opportunity of hearing to the applicant, which is in clear violation of the principle of natural justice. It has further been stated that there was no logical basis in granting 22% of the salary of the applicant in favour of the respondent/wife towards maintenance. He has further claimed that the respondent No. 1 failed to take into consideration the fact that the applicant is to look after his widow mother and grand mother, who are totally dependent on him. However, in the reply to the show cause notice, in para 6, the applicant has clearly stated that he was willing to pay maintenance allowance in favour of his son but he expressed his apprehension that such money may be mis-utilised by the respondent/wife and for that he requested the authority to make proper safeguard in that respect.
6. The application was not contested by the respondent No. 6, i.e. the wife, although notice was served upon her from this Tribunal. In reply to the said notice, as was issued in the name of the respondent No. 6, she informed in writing that it was not possible for her to contest the matter, as she is staying at Chandigarh. Under such circumstances, the application was heard in absence of the respondent-wife. 7. The respondent Nos. 1,2,3,4 and 5, however, have contested the application by filing a counter affidavit wherein the allegations, as mentioned in the original application, have been denied. According to them, the wife submitted a written complaint stating therein about the mental and physical abuse caused to her by her husband, i.e. the present applicant. She prayed for maintenance, as she was unable to maintain herself being not employed anywhere. On the basis of such written complaint, a show cause notice was issued in the name of the applicant, who replied the same denying the allegation made by the wife. The claim of maintenance allowance was duly processed at different offices of the respondents. Ultimately, the Headquarters, Eastern Command, by the order dt. 4.5.2010 directed deduction of 27.5% per month from the pay and allowance of the applicant and to pay the same in favour of the respondent/wife towards maintenance allowance. According to the respondents, after due deliberation, the order of maintenance was passed by the competent authority U/s 90(i) of the Army Act read with Rule 193 of Army Rules. Such maintenance allowance was granted in favour of respondent No. 6, as the applicant failed to maintain his wife and son. The reply to the show cause notice, as submitted by the applicant, was not at all satisfactory. The respondents have also denied that no opportunity of hearing was given to the applicant. According to them, the case was dealt with in the light of the evidence available and on the request of the wife to grant maintenance allowance in her favour, to which she is legally entitled. The respondents have prayed for dismissal of the application.
8. We have considered the submissions of the ld. Advocates for both the sides. There is no dispute that the respondent No. 6 is the legally married wife of the applicant and out of the said wedlock, a male child was born. It is the settled position of law that the husband is duty bound to maintain his wife and child and for this, special provision has been made in the Army Acts and Army Rules. In this respect, Ss. 90 and 91 of the Act and rule 193 of the Rules are relevant. There is nothing mentioned in the Army Act or Army Rules regarding the procedure to be adopted in processing a claim for maintenance. In this respect, Army Order has been issued from time to time wherefrom it will appear that when such an application is submitted, then, the applicant would be asked to file an affidavit stating therein her status and also whether she has any independent income of her own or not. Thereafter, the reply of the husband would be obtained and considered by the authorities. In the Army Order, it has clearly been mentioned that maintenance allowance cannot be granted to wife if she has sufficient income of her own to maintain herself. That apart, if it is established by the husband that the wife has left the matrimonial house without any sufficient reason and that she refused to live with her husband, then no maintenance order should be passed and in such circumstances, if the authorities think it proper, they will ask the parties to approach the civil court of law.
9. Keeping all these things in mind, let us now consider whether the order of maintenance allowance, as passed by the competent authority, is justified or not. We have already pointed out that the authority directed payment of maintenance allowance to the extent of 22% in favour of the wife and 5.5% in favour of the minor child from the salary of the applicant. The competent authority has been given this power by the Army Acts and Rules, which has been supported by the Army Orders issued from time to time. As discussed above, it is the responsibility of the competent authority to, first of all, satisfy himself about the prima facie genuineness of the complaint, as submitted by the wife. For that reason, she should be asked to submit an affidavit stating therein her status as well as financial position and as to whether she has got any independent income of her own. So far as this case is concerned, it appears that the wife has submitted such an affidavit wherein she stated that due to the misbehaviour of the applicant, it was not possible for her to stay with him any further, as he (the applicant) was in the habit of treating his wife with cruelty. The wife further stated in the affidavit that she had no income of her own.
10. On the contrary, it appears that as per direction of the competent authority, the applicant submitted his reply to the show cause notice wherein he denied the allegations of the wife and categorically claimed that, in fact, the wife treated him with cruelty on various occasions as mentioned therein and that she ultimately left the matrimonial house without any sufficient reason whatsoever. It has further been claimed by the applicant that the wife has got sufficient income of her own and as such, the applicant prayed that the prayer for maintenance allowance should be rejected.
11. In this respect, as per our direction, the entire case record was produced before us. We had an opportunity to go through the case record. It appears that there are noting to the effect that some preliminary enquiries were made from different units by the competent authority. However, the result of such enquiry could not be available in the said record. The Commanding Officer, being respondent No. 1, it appears from the record, was satisfied that the husband neglected to maintain his legally married wife and has got no just excuse. However, that finding has not been supported by any reasoning whatsoever. We have already pointed out that the husband submitted his reply to the show cause notice where he made counter allegation against the wife. Under such circumstances, in our considered opinion, it was desirable that the competent authority should have offered reasonable opportunity of hearing to the applicant/husband and thereafter, after hearing both the sides, he could come to the conclusion after assigning reasons thereof. In fact, no reasoning has been given as to why 22% and 5.5% was to be deducted from the salary of the applicant towards maintenance of the wife and the child. True it is, in the relevant Army Order, it has been provided that the amount of maintenance allowance sanctioned will not exceed 33% of the pay and allowance and will not be at a rate higher than 22% of pay and allowance in respect of the wife and 5.5% of pay and allowance in respect of the child. Nowhere it has been mentioned that even if the competent authority is satisfied that maintenance allowance should be granted in favour of the wife and the child, then it should be to the extent of maximum i.e. 22% and 5.5% respectively. It could have been a lesser amount and the amount so fixed by the competent authority, must bear good reasoning. No doubt, he is empowered under the rules to grant maintenance allowance in favour of the wife and the child to the maximum extent, but in doing so, he must give some reasoning as to why he was in favour of granting such amount and not a lesser amount. The impugned order does not speak anything about such grant of maintenance allowance in favour of the wife and the child.
12. That apart, we have already pointed out that there is nothing on record to show that the husband was given an opportunity of hearing. We have also pointed out that the case of the husband/applicant is that the wife wilfully deserted the husband and she has got income of her own. We do not know as to how the competent authority dealt with such claim in granting the maintenance allowance. Even if we presume that he rejected such contentions, even then the principle of natural justice demands that before rejecting such claim of the husband, he should be heard personally and reason should be assigned for rejecting such claim. It is the settled position of law that the authority exercising powers u/s 90(i) of the Army Act must act reasonably and fairly, apart from giving a reasonable opportunity to the army personnel concerned. There cannot be any two opinion that before the deduction is made from the salary of an Army Officer, an opportunity of hearing must be provided to him. To our surprise, we find that there is nothing on record to show that any attempt was made for giving opportunity of hearing to the applicant to establish his case. Under such circumstances, we have got no hesitation to hold that the impugned order, as passed by the competent authority in this respect, cannot be sustained being in violation of the principle of natural justice. As such, we hold that the said impugned order should be set aside. In our considered opinion, we think that the matter should be referred back to the respondent No. 1 for taking a fresh decision by way of giving an opportunity of hearing to both the sides and to pass a reasoned order after such hearing is completed.
13. However, it appears that in this case, maintenance allowance was granted not only in favoaur of the wife but also in favour of the minor child. There is no doubt that the said child is suffering from various diseases and needs proper medical attendance. If, at this stage, by our above order, the maintenance allowance so granted in favour of the child, is stopped, then the future life of the said child may be affected. Since the applicant himself, in his reply to the show cause notice, expressed his willingness to pay the maintenance allowance, as granted in favour of the child, we are of the opinion that so long as the respondent NO. 1 takes a final decision as per our above direction, the maintenance allowance, as has been granted in favour of the child, should continue. At the same time, since it may require some time for the competent authority to take a final decision after hearing both the sides, we are of the opinion that some interim maintenance amount should be granted in favour of the wife as well, till the final decision is arrived at and such interim amount would be liable to be adjusted when the final order is passed.
14. Considering all such circumstances, we allow this original application in part on contest but without cost. The impugned order dt. 4.5.2010 granting maintenance allowance stands quashed except the maintenance allowance of 5.5% as granted in favour of child, which will continue until further order. The other part of the impugned order is hereby set aside. The respondent No. 1 shall reconsider the matter in the light of the discussions as made above and to take a final decision in respect of the respondent/wife regarding her claim for maintenance and in doing so, he must give opportunity of hearing to both the sides. After hearing both the sides, the respondent No. 1 shall pass a reasoned order as to whether any maintenance allowance should at all be passed in favour of the wife or not and if so, then, what will be the amount. So long as the claim of maintenance of the wife is not settled finally by the respondent No.1, he is authorized to deduct a sum of Rs. 5000/- (Rupees five thousand) only from the salary of the applicant towards interim maintenance for the respondent/wife, in addition to the amount of maintenance that has already been allowed in favour of the child. Be it mentioned here that this maintenance allowance is granted in favour of the wife, as an interim measure, which is subject to the final decision to be taken by the competent authority. It may also be noted that we have not expressed any opinion regarding the genuineness of the claim of the respondent/wife regarding her maintenance and we leave it to the discretion of the respondent No. 1 to take an independent decision in this respect of his own without being influenced by any comment that has been made in the body of this judgment. Since the matter relates to the claim of maintenance, we sincerely hope that the respondent No. 1 will try his best to dispose of the claim for maintenance as early as possible, preferably within three months from the date of communication of this order to him.
15. Let a plain copy of this order be handed over to the ld. Advocates for both the sides.