Rachna Kumari And Others vs Union Of India And Others

Vide this OA, the applicant has invoked the jurisdiction of this Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007 (hereinafter

referred to as the Act') seeking a direction to Respondents Nos. 3, 4 and 5 to process her petition dated 25.01.2020 and grant her maintenance @

Rs.30,000/- per month to be remitted after deducting it from the salary of her husband (Respondent No. 6). The prayer is made on the ground that the

husband of the applicant has refused to maintain her.

The moot question, which requires consideration, at this stage, would be as to whether the prayer made in the application is within the jurisdiction of

this Tribunal or whether the applicant should take recourse to the remedies

To address the aforesaid issue, at the available under the common law by approaching the appropriate Family Court. very outset, it cwould be

necessary for us to take note of th e statutory provisions and the scheme for adjudication as is contemplated under the Act. This Tribunal has been

created for the purpose of adjudicating service matters pertaining to members of three armed forces of the Union of India and Section 2 of the Act

provides that the same shall apply to all persons who are subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950. Sub-section

(2) of Section 2 of the Act further contemplates that the Act shall also apply to the retired personnel subject to the Army Act, Navy Act and Air

Force Act, including their dependants, heirs and successors, in so far as it relates to their service matters. The words used in subsection (2) of Section

2 'it relates to service matters' pertain to the right of a person, who is covered by the provisions of the Army Act, Navy Act and the Air Force Act.

Further, the 'service matters' are defined under Section 3(o) of the Act in the following manner:

Definitions.- In this Act, unless the context otherwise requires. â€

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(o) ""service matters"", in relating to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air

Force Act, 1950 (45 of 1950), mean all matters relating to the conditions of their service and shall include â€

(i) remuneration (including allowances), pension and other retirement benefits;

(ii) tenure, including commission, appointment, enrolment, probation, confirmation, seniority, training, promotion, reversion, premature

retirement, superannuation, termination of service and penal deductions;

(iii) summary disposal and trials where the punishment of dismissal is awarded;

(iv) any other matter, whatsoever,â€" but shall not include matters relating to-

(i) orders issued under section 18 of the Army Act, 1950 (46 of 1950), subsection (1) of section 15 of the Navy Act, 1957 (62 of 1957) and

section 18 of the Air Force Act, 1950 (45 of 1950); and

(ii) transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in

relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of

1950).

(iii) leave of any kind;

(iv) Summary Court Martial except where thepunishmentisofdismissalor imprisonment for more than three months.

A complete reading of Section 2 of the Act and the definition of 'service matters' given in Section 3(o) clearly indicates that the jurisdiction available

to this Tribunal is to adjudicate disputes pertaining to persons, who are subject to the Army Act, the Navy Act and the Air Force Act that also with

regard to their service matters, and, the 'service matters' means issues relating to conditions of service like remuneration, pension and other retirement

benefits etc. However, the 'service matters' as contemplated under subSection (o) of Section 3 should be in relation to persons who are subject to the

Army Act, Navy Act or Air Force Act.

If we analyse relationship of the present applicant with regard to the question of jurisdiction except for the fact that she is married to a person who

is subject to the Army Act, 1950, she is not subject to any of the provisions of the Army Act and the issue raised by her in this application, is not a

subject, which falls within the domain of 'service matters' as defined under Section 3(o) of the Act. However, she has filed a petition under Section

91(g) of the Army Act, 1950 read with Section 92 thereof for grant of maintenance. Section 91 of the Army Act contemplates a provision wherein the

Competent Authority has power to make deduction from pay and allowances of person(s), other than officers and sub-Section (i) thereof

contemplates that a sum required by order of the Central Government or any prescribed authority to be paid for the maintenance of his wife or his

legitimate or illegitimate child can be recovered from the salary of the person. That being so, the petition filed by the applicant vide Annexure -A/1, she

has invoked jurisdiction of the Competent Authority for exercising his powers under Section 91. If the Competent Authority has not invoked this

jurisdiction under that Section, this Tribunal cannot step into the shoes of the Competent Authority and invoke the jurisdiction under Section 91 and

direct for grant of maintenance. For this, the options available to the applicant are to seek mandamus from the Court of competent jurisdiction to the

respondents and pray to the Court for issuing directions to the respondents for deciding this application. Question of deciding the petition filed under

Section 91(g) of the Army Act, 1950 is not within the jurisdiction of this Tribunal. As far as the contention of the applicant that, by virtue of Section 33

of the AFT Act, this becomes a 'service matter', is also misconceived. Section 33 excludes the jurisdiction of the civil courts in the matter of

adjudication of service matters provided under this Act. As the present is not a ""service matter"" within the jurisdiction of this Tribunal, the applicant

cannot invoke the jurisdiction, in our considered view, as neither the applicant is subject to the Army Act, the Navy Act or the Air Force Act, she

cannot invoke the jurisdiction and the claim made by her seeking a direction to the respondents to deduct Rs. 30,000/- per month from the salary of her

husband and to be paid to her, in our considered view, will not come within the purview of 'service matters' as defined in Section 3(o) of the AFT Act.

The applicant, in fact, wants this Tribunal to exercise the jurisdiction available under the Family Law for grant of maintenance. This can be done

only by a Family Court or the Courts having jurisdiction under the common law.

Accordingly, we are of the considered view that the applicant has approached the wrong forum for redyessal of her grievance. If advised, she may

invoke the jurisdiction of the Competent Court for redressal of her grievance

In our considered view, the application filed by the applicant before us is nothing but an application seeking maintenance, which can be done under

the provisions contained in Section 125 of the Code of Criminal Procedure (Cr PC) or the appropriate personal family law applicable to her or to her

husband and, accordingly, the application is beyond our jurisdiction and cannot be entertained. However, liberty shall be available to the applicant to

invoke jurisdiction of a competent court with regard to her grievance as we have refrained from exercising our jurisdiction as this application is not

maintainable and we have no jurisdiction under Section 14 of the AFT Act to deal with the issue in question.

Even though, during the course of the hearing of the application, learned counsel for the applicant invited our attention to certain orders passed by

this Tribunal in similar matters, but on a perusal of these orders, we find that, in those cases, objections with regard to the maintainability were never

raised or considered and, therefore, these orders will not help the applicant. We may also take note of the fact that the prayer made by the applicant in

this application is nothing but a direction to the respondents to grant her maintenance to the tune of Rs. 30,000/- per month and to be remitted to her

every month after deducting it from the salary of Respondent No. 6 i.e. her husband. This prayer, as detailed hereinabove, can be considered only by

a Court of competent jurisdiction empowered to adjudicate a family dispute and grant maintenance.

In view of the foregoing, present OA stands dismissed with the liberty as indicated hereinabove.