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10. The counsel for the petitioner then refers to Major Amit Kumar Mishra supra and contends that the AFT therein, qua the pari materia provisions of the Army Act and the Army Rules, has held that the powers thereunder to deduct from the salary/emoluments, can be exercised only to give effect to a decree passed by a court of competent jurisdiction granting maintenance payable by a personnel to his wife or children. The counsel for the petitioner, being fully aware that we are not bound by the order of the AFT, contends that the reasoning given by the AFT may be considered as his arguments.

11. We have perused the aforesaid order of the AFT and find the same to be in the context of Section 90(i) of the Army Act and Rule 193 of the Army Rules read with Army Order No.02/2001, whereunder the Army Authorities have power to grant maintenance independently of Section 125 CrPC and Section 24 of the Hindu Marriage Act. The AFT in the said order has observed/reasoned, (i) that the order impugned before it made provision for payment of maintenance to the extent of 5.5% of the pay and allowances of the Applicant before it, for applicant's minor daughter but it was not permissible to pass an order adversely affecting her, at her back, as she was not a party; the challenge was thus restricted only to the grant of maintenance to the extent of 22% of the pay and allowances of the applicant in favour of the applicant's wife; (ii) that under Section 125 of the CrPC, a wife became entitled to maintenance only on establishing that she was unable to maintain herself and that her husband, inspite of having sufficient means, had neglected or refused to maintain her and the wife loses her right to maintenance if she is living in adultery, or if, without any sufficient reason refuses to live with her husband; (iii) that thus under Section 125 CrPC, maintenance could not be granted in favour of the wife till she proved so by leading evidence; (iv) that however Section 90(i) of the Army Act read with Rule 193 of the Army Rules permit deductions from pay and allowances of an Army Officer, for maintenance of his wife or child, without the wife or child satisfying any of the said conditions; (v) that the Report of the year 2015 of the Raksha Mantri's Committee of Experts had taken a view that Section 28 of the Army Act provided that the pay and allowances of persons subject to the Army Act are immune from attachment on direction of any Civil or Revenue Court in satisfaction of any decree or enforceable order; it follows that if a Civil Court allows maintenance to the wife or child of a person subject to the Army Act and the person subject to the Army Act refuses to pay the amount of maintenance, his pay and allowances cannot be attached on the orders of the Civil Court but for Section 90(i) of the Army Act whereunder in such a situation, on an award of maintenance passed by a competent court and refusal of the person against whom such order has been passed, to comply therewith, the Army Authorities can order payment of such maintenance on being approached and pursuant to which order, the amount of the maintenance can be deducted from the pay and allowances of the army personnel for satisfaction of such order of maintenance; (vi) that the Army Authorities under the Army Act have no jurisdiction to adjudicate a claim for maintenance; (vii) that the Army Act and the Army Rules do not provide any mechanism and procedure for adjudication of claims of maintenance; (viii) that Section 191 of the Army Act empowered the Central Government to make rules for carrying into effect the provisions of the Army Act and the subjects on which rules can be framed, do not mention award of maintenance; (ix) this also indicates that the Legislature did not intend to empower the Authorities under the Army Act to adjudicate claims for maintenance of wives/children of the personnel subject to the Army Act; (x) that Note 22 (a) to Section 90(i) of the Army Act as contained in the Manual of Military Law, Volume- II also expresses the view that deductions from pay and allowances of a person subject to the Army Act are permissible only to give effect to a decree for maintenance granted by a Civil Court; (xi) that the Raksha Mantri's Committee of Experts had also recommended that grant of maintenance under the provisions of the Army Act and the Rules must be an exception and not the rule and only when an individual is not complying with the orders of the Civil Court for paying maintenance to his family under the garb of protection of Section 28 of the Army Act prohibiting attachment of pay and allowances; (xii) that the Ministry of Defence, Government of India vide communication dated 8th August, 2016 had agreed with the recommendations of the Raksha Mantri's Committee of Experts and requested all the Joint Secretaries to take immediate action on the recommendations; (xiii) that notwithstanding the same, the Army Order No.02/2001 had not been amended; and, (xiv) that the Army Order No.02/2001 was not in the nature of the Rules framed under Section 191 of the Army Act and had not been laid before the Parliament and runs contrary to the provisions of the Army Act in so far as it says that Authorities under the Army Act have concurrent jurisdiction alongwith the Civil Court to adjudicate claims for maintenance of the wives/children of the Army personnel. The AFT Chandigarh, while holding so, differed from the judgment of the Calcutta High Court in Vivekananda Mondal Vs. Minati Mondal MANU/WB/0504/1997 holding that an order of maintenance by the Army Authorities does not amount to usurpation of or interference with the jurisdiction of the Civil Court.

Similar oath is required by the provisions of the Army Act and the Army Rules and of the Navy Act, 1957, to be taken by the personnel of the said Forces. The said oath taken by the defence personnel, to the said extent is different from the oath required to be taken vide Articles 60, 69, 124 and 219 of the Constitution of India by the President, Vice-President, Judges of the Supreme Court and the Judges of the High Courts respectively, none of whom swear to place their life at peril for the service of the country.