The Delhi High Court while deciding a writ petition upheld the constitutional validity of Section 92(i) of the Air Force Act, 1950 which allows for the deduction from the pay and allowance of the person being paid for the maintenance of his wife and children.

The Court also upheld the Office Order that laid down the procedure for grant, modification, or cessation of maintenance allowance to the wife and the children of Air Force personnel.

A Division Bench of Justice Sanjeev Sachdeva and Justice Rajnish Bhatnagar held, “We find that both the provisions of 92 (i) as well as the Office Order 03/2013 are beneficial provisions providing for beneficial 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 Bench found no ground to quash the provisions on the account of being ultra vires the Constitution.

Advocate Vibha Sharma appeared on behalf of the petitioner while CGSC Arunima Dwivedi appeared for the respondent.

In this case, the petitioner sought quashing of Section 92 (i) of the Air Force Act and Air Force Order as ultra vires the Constitution and further sought setting aside of the order of maintenance dated passed by the Air Chief Marshal, Chief of the Air Staff. The counsel for the petitioner submitted that a sum of Rs. 15,000/- was paid to the wife and son of the petitioner as an amount of maintenance.

The Office Order stipulated that the duration of maintenance allowance for the wife under Section 92 (i) of the Act would be a maximum period of five years at a time or grant of maintenance allowance by a civil court which order is liable to be reviewed after the expiry of five years and in respect of a son, maintenance allowance to be granted till he attains the age of 25 years or till he is granted maintenance by a civil court.

The High Court observed that the counsel for the petitioner could not show that the provisions are ultra vires the Constitution or breach any fundamental rights of any individual including the petitioner.

The Court further said, “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. … We find no ground to interfere with the order, however, we clarify that in case any order is passed by the competent court under Section 125 Cr.P.C., the maintenance already being paid under the order impugned herein dated 17.06.2019 shall be appropriately taken into account.”

Accordingly, the Court dismissed the petition.

Cause Title- Virendra Kumar v. Union of India & Ors.

Click here to read/download the Judgment

Justice Sanjeev SachdevaJustice Rajnish BhatnagarMaintenance

Swasti Chaturvedi