Delhi High Court Upholds Validity Of Provision Allowing Deduction In Pay For Payment Of Maintenance To Air Force Personnel's Wife, Children

The Delhi High Court has upheld the constitutional validity of Section 92 (i) of the Air Force Act, 1950 which allows deduction from the pay and allowance of Air Force personnel for maintenance of the wife and their children.

A division bench of Justice Sanjeev Sachdeva and Justice Rajnish Bhatnagar also upheld an office order issued by Air Force on February 6, 2013 providing the procedure for grant, modification or cessation of maintenance allowance to the wife and the children of such personnel.

The bench observed that the provision as well as the office order are “beneficial provisions” for relief to the dependent family members of the person.

“Said provisions are for grant of an urgent beneficial relief to the dependent family members and, in fact, have been made subject to any order being passed by a civil court on their respective petitions,” the court said.

Deduction under section 92(i) is subject to section 95 of the enactment which states that the total deduction shall not exceed, in any one month, one-half of the pay and allowances for that month.

On the other hand, the office order states that duration of maintenance allowance for the wife under Section 92 (i) of the Act would be a maximum period of five years, which is liable to be reviewed after expiry of the said duration, or till grant of maintenance allowance by civil court. 

Furthermore, it has been provided that maintenance allowance in respect of the son is to be granted till he attains the age of 25 years or till he is granted maintenance by a civil court.

Observing that provisions of the Act themselves stipulate that the order of maintenance shall continue till the time an order is passed by the civil court, the court said the counsel for the petitioner has not been able to show that the provisions are ultra vires the Constitution or breach any fundamental rights of any individual.

"Consequently, we find no ground to quash the said provisions on the ground of being ultra vires the Constitution," said the court.

The court dismissed a plea moved by Virendra Kumar challenging the constitutional validity of the provisions in question and seeking quashing of an order of maintenance dated June 17, 2019 passed by the Air Chief Marshal.

Kumar’s counsel submitted that the provisions are unconstitutional and that his wife had not disclosed the impugned order in the proceedings filed by her under section 125 of Cr.P.C. seeking maintenance for herself and her child.

The counsel further submitted that while a sum of Rs. 15,000 was originally being paid to the wife and her son towards their maintenance, it was stopped after they refused to join mediation proceedings.

Rejecting the plea, the bench said that admittedly the petitioner was initially paying Rs. 15,000 but he stopped it subsequently. 

"The competent authority has granted a sum of Rs. 16,500/- as maintenance to the wife and the child which is nearly 1/3rd of the pay and allowance being drawn by the Petitioner. The provisions of the Act themselves stipulate that the order of maintenance shall continue till the time an order is passed by the civil court. As per the Petitioner, proceedings have already been initiated by the Respondent under Section 125 Cr.P.C. for grant of maintenance," said the bench.

Upholding the impugned order, the court however clarified that in case any order is passed by the competent court under Section 125 of Cr.P.C., the maintenance already being paid to the wife and child under the order impugned shall be taken into account.

“Thus, we find no merit in the petition. The petition is, consequently, dismissed,” the court said.

Title: VIRENDRA KUMAR v. UNION OF INDIA & ORS.

Citation: 2023 LiveLaw (Del) 17

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