Is it legal for Army to deduct maintenance for wife children directly from Officer's pay ?? ORIGINALLY POSTED ON 08.08.2020. 2021 update

                                                                                                                            

First published on 23.08.2021

Updated 21.05.2021

Can the Army authorities legally sustain the  imposition of maintenance amount to estranged wives on officer ?

Ignorance of law is no excuse : Did you know some of the Army orders are bereft of statutory sanctity and thereby illegal ?

Often the wrongs in the forces are perpetuated by AI, AO, policy Letters, letters.

Essentially, in this legal proposition, Army Act has been referred to but parallels can be drawn for Navy & AF alike.

Most Officers are stabbed in the back because they never question the bonafide of GOI, MOD, Executive, Admin policies. While serving they are so busy that they have no time to think, refer to their  pay slips,PPO,  pay commission reports, annual reports of MOD or even question the validity of a quoted letter, correspondence from vigilance so on so forth.  Thinkers, don’t belong in forces, compliance is best sought through unsuspecting unaware intelligent men who often tell me “ sister, we are saving the nation, not for promotion or a salary but for the honour.”

Believe me, the nation dishonoured them again and again. First,  while they were serving in toughest harshest, unimaginable terrains, second when they come out on retirement and wake up to the indifference. Third, if they are lucky enough to find a partner who actually marries them and then even that doesn’t work out.

It takes a different metal to be an Army wife. Some men don’t deserve to wear the uniform worthy only of Honour, Glory, Guts.

This article is written only for those honour worthy men in uniform stuck in a bad marriage and slapped with fake cases by erring spouses. I am a  feminist at heart. Women beware you will not like this write up. That’s okay too. Feminism means equality and equitability.

Most AO, AI, policy Letters lack legal sanctity. Every law has to be tabled before the Parliament of India. As per our Constitution – if a policy, executive order (AI/AO/letters) are formulated which are essentially in contradiction to the provisions of parent Act passed by the Parliament ( in this case Army Act & Rules )  then they can be declared Ultra – Vires by Court of Writ Jurisdiction (High Court & Supreme Court under the power of Judicial Review) only.

Legal sanctity of A.O – 02/2001 is not in the nature of  Army rules and army Act.In fact, it runs contrary to the provisions of the Act. It cannot usurp the jurisdiction of Civil Courts to adjudicate claims for maintenance of the wives/ children of the persons subject to the Act.

Often there is no trial of such officer and maintenance is set summarily as per discretion of the Commanding officer(Corp Commander). The officer also does not get an opportunity to put forth his defences or set up his counter claims or cross examine the Complainant spouse. This is most unfair to the officer. It grossly violates his Fundamental rights.

Yes, officers do have Fundamental rights. Only 3 are restricted on which I will write more, subsequently.

In many cases it has been held that executive & administrative authorities should exercise powers under Army Act, reasonably and fairly. The Army Authorities can only exercise their jurisdiction to execute and give effect to a decree passed by a Court of competent jurisdiction granting maintenance/custody in favour of the wife (deserving - dependant spouse/ child ).

Even the MOD has issued directions against such executive orders.

 Understand that  AFT can only set aside individual orders pertaining to promotion, services, GCM etc. It does not have the writ jurisdiction and it also has no jurisdiction in Matrimonial matters (Civil laws). Often the Army concedes to the case of a particular litigating individual officer if he approaches a writ court. Most others choose to goto AFT but unless this arbitrary practice of army is challenged in High Court this wrong will continue.

The Army being a humanist organization tries to provide immediate redressal to needy women abandoned with 2 kids in middle age. Should they be entitled to such immediate relief ? Yes, an army wife gives up on her life & career and moves around to the remotest places to provide a healthy family environment. She thus has no stable career of her own. Children who are entitled to education and medical facilities also miss out on the benefits because of the bitterness between parents. Children are reduced to pawns to please the ego of erring spouses.

To conclude, the Army should not resort to moralistic subversion of law. However, a special law providing immediate – housing, maintenance, equivalent lifestyle can be passed by the Parliament to prevent destitution of women and children which otherwise will be another cause of an unhealthy society.

 

Gauri Neo Rampal,

Advocate on Record

Supreme Court of India

9711422696

 @gnrlaws