The Punjab and Haryana High Court has issued a notice of motion to the ministry of defence (MoD) on a petition by a serving army officer, Lt Col P Katal, for failure to effect the orders of the defence minister on rationalising grant of alimony to the wives of serving defence personnel.
The Army Act authorises ‘penal deductions’ for payment of maintenance to wives of personnel on their applications. The stipulation was not repealed even after inception of maintenance provisions in the Hindu Marriage Act since pay and allowances of defence personnel were immune from attachment by courts, thereby necessitating an enabling provision to give effect to maintenance orders by the civil courts.
However, over the years, the army started releasing maintenance to wives in matrimonial disputes on its own without court verdicts and through nonspeaking orders without any opportunity of hearing.
A committee of experts appointed by the defence minister, however, recorded that matrimonial disputes were essentially private civil disputes where the army should not get involved.
The panel noted that “the services do not have the wherewithal, capacity or ability to examine the veracity of allegations and counter-allegations made by both parties, which is basically a matter of evidence”, observing that such disputes must be dealt with by the civil courts. The committee added that such provisions could only be invoked in extraordinary circumstances where the individual was not complying with orders of a civil court for paying maintenance under the garb of immunity from attachment under the Army Act.
It was recommended that maintenance orders “must be preceded by some kind of inquiry related to the averments of the parties, and executed by way of a proper speaking order discussing all issues raised by both parties”.
The recommendation of the panel was accepted by the defence minister, who issued orders in August 2016 for promulgation of implementation of instructions within 45 days.
Lt Col Katal who has been saddled with maintenance allowance through a non-speaking order, has averred in his writ petition that despite lapse of 6 months, lower functionaries of the ministry have failed to effect the directions of the highest political executive, thereby not only jeopardising his rights and property, but also undermining the authority of the minister.