Del HC | Central Government and/or prescribed officer draw power to award maintenance to wife and children of Air Force personnel from provisions of Air Force Act

Delhi High Court: The Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., while addressing the instant matter, observed that:

The wife and children of a personnel of the Air Force who has sworn to put his life in peril deserve a treatment different from that of a civilian who has no obligation to sacrifice his life for the country.

Petitioner, a sergeant in the Indian Air Force (IAF) filed the petition in regard to the following:

  • impugning the Air Force Order issued by respondent 2 Chief of Air Staff
  • impugning the administrative order issued by the Chief of Air Staff, sanctioning maintenance claim against the petitioner.
  • Seeking maintenance, directing respondent 2 Chief of Air Staff to refund the amount of maintenance granted under the administrative order, to the son of the petitioner and payable to the respondent 5 i.e. wife of the petitioner.

What the petitioner alleged?

Petitioner’s wife left matrimonial home along with her son and refused to join the petitioner in spite of repeated efforts of the petitioner. Petitioner approached the family court for dissolution of marriage and further initiated custody proceedings for his son.

As a counterblast, wife of the petitioner initiated proceedings under Section 125 of the Criminal Procedure Code, 1973 for maintenance and also approached the Court under Section 156(3) CrPC for registration of a case under Sections 141, 149, 363, 504 & 506 of the Penal Code, 1860 against the petitioner and his parents.

Wife of the petitioner also filed a false and fabricated case under Section 498A of the IPC against the petitioner and his parents but the proceedings in the criminal complaint, as well as the case under Section 498A of the IPC, were stayed by the Allahabad High Court.

Analysis and Decision

Petitioner’s counsel drew the Court’s attention to Sections 190, 191 and 191A of the Air Force Act, 1950 empowering the Central Government to make regulations for all or any of the purposes of the Act other than those specified in Section 189 and requiring the regulations so made to be published in the Gazette and to be laid before the Parliament.

Section 91(i), in exercise of powers whereunder the impugned AFO No. 03/2013 has been issued, shows the same as authorising deduction from pay and allowances of an officer of any sum required by order of the Central Government to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

Petitioner being a sergeant, the above-stated section would not apply to him.

Section 92(i) authorises deduction from the pay and allowances of an airman, of any sum required by order of the Central Government or any prescribed officer to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

The Court opined that once (a) there is a specific provision in the Air Force Act i.e. in Sections 91(i) and 92(i) thereof and to which there is no challenge, qua deduction from the pay and allowances, for payment of maintenance; (b) Rule 162, to which also there is no challenge, defines the ‘prescribed officer’ within the meaning of Section 92(i); and, (c) the Air Force Regulations in Regulation 917, to which also there is no challenge, provides that Air Force orders will be issued by the Chief of Air Staff, the impugned order has been issued in compliance of all the said provisions and there was no the need for the said order to be laid before the Parliament or to be notified/ratified इन accordance with Sections 190, 191 and 191A of the Act.

Just like the Courts draw their power to pass orders/decrees for payment of maintenance, from the statutes mentioned hereinabove, so does the Central Government and/or the prescribed officer draw power to award maintenance to wife and children of Air Force personnel from the provisions of the Air Force Act.

Next plea in the petition that was considered was, of the Air Force personnel being discriminated against vis-a-vis civilians, orders for payment of maintenance to wife and children whereagainst can be passed only by the Courts and not by the Central Government or the prescribed officer.

Regarding this, the Bench observed that:

Certainly it is not open to Air Force personnel, to have the privileges not available to civilians and reject the obligations, also not imposed on the civilians. The counsel for the petitioner also forgets that while the civilians can be punished only by the Courts of the land, the Air Force personnel can be tried and punished also by the Authorities under the Air Force Act. What is evident therefrom is, that personnel of the Air Force, form a class by themselves, distinct from the civilians.

Additional observations of the Court:

Sections 16 and 17 of the Air Force Act provides for all persons, enrolled as combatants, selected to hold a non- commissioned rank and subject to the Air Force Act, to be attested and which attestation is in the form of administration of oath containing a promise inter alia to obey all commands of any officer set over him, even to the peril of his life.

The said oath taken by the defence personnel, to the said extent is different from the oath required to be taken vide Articles 60, 69, 124 and 219 of the Constitution of India by the President, Vice-President, Judges of the Supreme Court and the Judges of the High Courts respectively, none of whom swear to place their life at peril for the service of the country.

Bench found no merit in the challenge by petitioner to AFO No. 3 of 2013. The said AFO did not make any legislative change and only guided the exercise of discretion and power vested by Sections 91(i) and 92(i) in the Central Government and the prescribed officer to make deductions from the salary and allowance for payment of maintenance to wife and children.

In Suneel v. Union of India 2003 SCC OnLine Del 810, question in the context of Army Act was considered and it was held that in view of the statutory provisions, the Authorities under the Army Act could not be debarred from making an order of maintenance in favour of wife and children of an Army personnel.[Sergeant Ajit Kumar Shukla v. Union of India,  2020 SCC OnLine Del 1590, decided on 10-11-2020]

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