Priyanka Datta wife of Lt Col Pushpinder Singh vs Union Of India & Ors

RA 26/2021 IN OA 1885/2021 WITH MA 2578 AND 3073 IN OA 1885/2021

All the three applications are being disposed of by this common order.

Before adverting to consider the individual application, it may be appropriate to detail in brief the facts in question.

Applicant — Priyanka Datta filed OA  1885/2021 before this Tribunal on 5th September, 2021 invoking our jurisdiction under Section 14 of the Armed Forces Tribunal Act, 2007 (AFT Act) and in the said application called in question tenability of an order passed on 28th September, 2020 (Annexure A-1) by the Competent Authority in exercise of the powers conferred on , it  under  the  Army  Act, 1950,  namely,  Section 90 (i)   in the  matter  of  stopping  of  maintenance  allowance  granted to the applicant — Priyanka Datta, wife of Lt Col Pushpinder Singh.   It   was   indicated   in   the   impugned   order   passed on 28th September, 2020 that in view of the decree for divorce granted between Lt Col Pushpinder Singh and the applicant by the Family Court, Patiala on 1st February, 2020 and dissolution -of the marriage, the maintenance being granted to the applicant Priyanka Datta, i.e., 22 per cent in accordance with Section 90 of the Army Act with effect from  9th January, 2020 stands withdrawn.   It was the case of the applicant before us, while filing this application, that the ex parte decree granted by the Family Court, Patiala is unsustainable in law, she has moved an application for transfer of the proceedings from Patiala to New Delhi before the Hon'ble Supreme Court and as the matter is pending  before  the  Hon'ble  Supreme  Court  in  the  transfer petition   and   as   the   ex   parte   decree   is   unsustainable   in law, the action of the Competent Authority in  withdrawing the  maintenance,  which  was  granted  since 2015, should   be   continued. The   matter   came   up   before   us on 8th September, 2021 when we directed the respondents to  file their counter affidavit.   The matter thereafter came before. us  on  4t1October, 2021  when we were informed that  the Hon'ble Supreme Court in Transfer Petition (Civil) No.929-930 of 2021 on 9th September, 2021 has passed certain orders and taking note of the order on 4t1October, 2021  we passed a detailed order.   We allowed the OA filed by the applicant and finding that the ex parte decree granted by Family Court, Patiala has been set aside by the Hon'ble Supreme Court, we directed' the Competent Authority to restore the maintenance granted under Section 90(i)  of the Army Act within one month and allowed the application.

After this application was allowed on 4th October, 2021 and OA was disposed of by us, Union of India filed the Review Application bearing RA No.  26/2021  before us and pointed out  that  an  error  apparent  on  the  face  of the  record  has occurred   while   passing   the   order   on 4th   October, 2021 inasmuch as the Hon'ble Supreme Court in the order passed on 9th September, 2021 has not set aside the ex parte decree granted on 1st February, 2020 but has only transferred the proceedings  pending  at  Patiala  to  the  Family  Court,  Patiala House,  New  Delhi.  Accordingly,  we  issued  notice  to  the . respondent on RA 26/2021 and as prima facie we were of the considered view that in passing the order on 4th October, 2021, we  had  committed  an  error  and,  therefore,  we  thought  it appropriate  to  hear  all  concerned  and  decide  the  Review Application.

Today we  have  heard  learned counsel  for  the parties at length on the Review Application and we have gone through the   detailed  order  passed  by  the   Hon'ble   Supreme  Court on 9th September, 2021.

From the facts that have come on record it is seen that a divorce petition was filed by the respondent — husband under Section 13 of the Hindu Marriage Act, 1955 before the Family Court, Patiala.  As it seems that an ex parte decree was granted by the Family Court, Patiala, Punjab on the application filed by. the respondent — husband on 1st February, 2020.   After the ex parte decree was passed the applicant herein filed a petition under  Order  9  Rule 13  of the  CPC  before  the  Additional Principal Judge, Family Court, Patiala in the matter of setting aside the ex parte decree passed on 1st February, 2020, a prayer was made that the ex parte decree be set aside as the notice issued to the applicant was not received properly and she also filed  a  memo for staying  the  ex  parte  decree.     Thereafter, a   Transfer   Petition   bearing   No.929-930/2021    was   filed before the Hon'ble Supreme Court and the Hon'ble Supreme Court after hearing both the parties passed the following order on 9th September, 2021:

“On  a perusal of the averments made in  the  Transfer Petition, it is revealed that though the petitioner's parental home is in Gurugram, Haryana, she is presently residing at  Vasant Kury,  Delhi  with  her maternal uncle  who also  happens to be her counsel in the present petitions, i.e. Mr. Ajay Sharma. Since the petitioner is residing in Delhi and even the respondent-husband had firstly approached the Family Court at Patiala House Court, New Delhi for filing a divorce petition, this Court is inclined to allow the present Transfer Petitions. Both the petitions are allowed and it is directed that CM? No. PB1570100783722018 moved in CIS No. DMC/739/2018 titled  aPushpinder Singh vs. Priyanka Daffa" filed by the petitioner-wife under Order 9 Rule 13 CPC, pending in the Court of Additional Principal Judge (Family Court), Patiala, Punjab be transferred along with the main file to the Court of the Principal Judge (Family Court), Patiala House Court (South-West District, Delhi), New Delhi for appropriate orders. In the event the ex-parte decree dated Ist February, 2020 is set aside and the Divorce Petition is restored to its original position for a fresh hearing, then further proceedings  in   the  said petition  shall  also  be conducted before the very same Court."

(emphasis supplied)

When  we     considered     the  aforesaid  matter     in OA 1885/2021 on 4t11October, 2021, we misread the order passed by the Hon'ble Suprme Court and came to the conclusion that the ex parte decree passed by the Family Court, Patiala on 1st February, 2020 has been set aside and, therefore, allowed ' the   OA   and   directed  for  restoration   of  the   maintenance. However, now after going through the documents and the order passed by the Hon'ble Supreme Court on 9th September, 2021 carefully  we  find  that  the   Hon'ble  Supreme  Court  while allowing  the  application  for  transfer  and  transferring  the proceedings pending in the Court of Additional Principal Judge, Family Court, Patiala under Order 9 Rule 13 of the CPC to the Principal Judge, Family Court„ Patiala House Courts, South West District, New Delhi, has observed and we quote that “in the event the ex parte decree dated Pt February, 2020 is set aside the divorce petition is restored to its original position for a fresh heafing, then further proceedings in the said petition shall also be conducted before the very same Court."

From the aforesaid, it is clear that what was ordered by the Hon'ble Supreme Court on 9t1September, 2021 was only allowing  the  transfer  petition   filed  by  the  applicant  wife transferring the proceedings pending under Order 9 Rule 13 of CPC from Patiala Family Court to Patiala House, New Delhi and further observing that in case the proceedings held at New Delhi under Order 9 Rule  13 are allowed and the ex parte decree passed on 1st February, 2020 set aside, then the original. divorce petition will be restored to the original file shall also be heard and its proceedings conducted at New Delhi by the Patiala House Courts.     That being so, we find that Mr.  S.R. Swain, learned  counsel  for  the  Union  of  India  is  very  right  in contending that there is an error apparent on the face of the record committed by this Tribunal on 4t1October, 2021 while disposing of OA 1885/2021. This Tribunal has incorrectly held • that the ex parte order passed on 1st February, 2020 is set aside. On the contrary Hon'ble Supreme Court has only transferred the proceedings from Patiala, Punjab to New Delhi and the observation is that in the event of the ex parte decree being set aside, what are the consequences to follow. That being so, it is a case where the issue of ex parte decree passed by the Family Court, Patiala on 1st February, 2020 is still sub judice in a proceeding now pending at New Delhi under Order 0 Rule 13. CPC at the instance of the applicant and, therefore, the ex parte decree as on date is still in existence, no case, therefore, is made for quashing the order passed by the applicant — Union of India on 28th   September, 2020   which   was   subject   matter   of consideration in OA 1885/2021.

Accordingly,  we  allow  RA  26/2021,  recall  the  order passed by us on  4t1October, 2021  in OA 1885/2021  and dispose it of with  a direction  to the applicant  to approach the Family Court where the proceedings under Order 9 Rule 13 CPC are pending and depending upon the outcome of the order that   may  be  passed   in   these  proceedings,  the   Competent Authority may pass such order as are permissible under law in the  matter  of  restoration  or  grant  of  maintenance  to  the applicant wife under Section 90(i) of the Army Act.

In view of the aforesaid, the RA 26/2021 stands allowed and disposed of.

As far as MA 2578/2021 and MA 3073/2021 filed by the applicant — wife are concerned, apart from the fact that the language  of  the  application  and  the  pleadings  are  vague, incapable of being properly understood, the prayers made in , both these applications are nothing but complaint against the respondent — husband in the matter of harassment, trying to delay the proceedings and trying to somehow harass and create problem for the applicant — wife and the inaction on the part of  the Competent Authority in restoring the maintenance in spite of order passed on 4th  October, 2021 in OA 1885/2021.   We are   of  the  considered   view  that   as   far  as   this  Tribunal is concerned, this Tribunal is creation of a statute, i.e., the AFT  Act, 2007 exercising limited jurisdiction as are conferred under Section 14 of the AFT Act under the powers available vide Section 14, this Tribunal can only look into the tenability of penal deductions ordered from the salary of a member of the force by the Competent Authority and in this case the only issue before us was as to whether the order passed by the Competent Authority under Section 90(i) of the Army Act in the matter of granting or withholding maintenance to the wife and children was proper or not.  All other issues that are now raised in these applications  pertaining to  harassment  and  causing  delay  in disposal of the proceedings before the Family Court and other issues are personal family disputes between the applicant wife and   the   respondent   husband   and   they   are   within   the jurisdiction  of the  Family Court where  the  matter, i.e., the family dispute is pending.     The family disputes between the applicant  and  the  respondent  is  beyond  the  purview  and jurisdiction  available  to  this  Tribunal.  That  being  so,  the prayers made in these MAs are not to be looked into by this Tribunal, they are to be looked into by the competent Family Court where the disputes between the parties are pending.   It seems  that  the applications  have been  filed before  us  in a misconceived   manner   and   as   the   same   are   beyond   our jurisdiction.     We     dispose     of     both     these     MA     bearing No.2578/2021 and No.3073/2021 with liberty to the applicant to raise the grounds canvassed in these applications before the competent Court where the family dispute is pending.  As far as restoration of maintenance granted by the Competent Authority originally under Section 90(i) of the Army Act is concerned, once there an ex parte decree and the ex parte decree is in existence as on date, until and unless the ex parte decree is not modified or set aside in a proceeding in accordance with law, no direction in the matter of restoration of maintenance can be  granted   by   this   Tribunal.   Accordingly,   we   dispose   of RA 26/2021; MA 2578/2021  and MA 3073/2021  with the aforesaid observations and directions.

Pronounced in open Court on this 9th day of February, 2022.