The Delhi High Court has said the statutory provision for maintenance for wife and children would apply to Army personnel as well.
"The provisions of Section 125 CrPC (Criminal Procedure Code) are in addition to other provisions which provide for maintenance. It cannot be said that the Army Order would over-ride the provisions of Section 125 CrPC and that the Army personnel are covered only by the Army Order and that Section 125 CrPC would not apply to Army personnel," a bench of Justice Subramonium Prasad said.
However, the amount given under Section 125 CrPC is always taken into account before fixing maintenance in other proceedings like those under the Protection of Women from Domestic Violence Act, 2005, and under Section 24 of the Hindu Marriage Act etc, the court added.
The bench rejected a plea by a serving Colonel against the order by a family court to pay maintenance to the wife, on the ground of adultery by her.
"The issue as to whether the wife is living in adultery or not can be decided only after evidence is produced by both the parties. At the time of fixing interim maintenance this court is not inclined to go into this question at this juncture," the bench said.
The man claimed his wife was disqualified from being given maintenance as she was in an adulterous relationship with his senior in Army. He also contended that his wife and her paramour were having an affair behind his back after marriage in 2002. He also invoked Sub-section (4) of Section 125 CrPC which stated that a person living in adultery would not be eligible for claiming maintenance from her separated spouse.
He also submitted Army Order 02/2001 governed his case and Clause 4 of that order laid down the procedure for processing maintenance cases. Such claim is to be decided by the Army officials of the Armed Tribunal.
"The object of Section 125 CrPC is to prevent vagrancy and destitution of a deserted wife by providing her for the food, clothing and shelter by a speedy remedy. The object is to bring down the agony and financial suffering of a women, who left her matrimonial home," the court said, discarding his submission.
The wife, for her part, claimed the man had submitted fake, false, fabricated and trumped up WhatsApp chats and screenshots to get custody of the children. She also said even if the case of the petitioner is accepted then also one incident of adultery cannot lead to a conclusion that she was living in adultery.
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