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Gujrat HC: Non payment of maintenance -> Breach of statement made by husband before the Court does not constitute contempt of the court

Gujarat High Court
Minaxiben vs Unknown on 21 October, 2008
Author: R.M.Doshit,&Nbsp;Honourable Mr.Justice K.M.Thaker,&Nbsp;

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MCA/2701/2008 2/ 2 ORDER

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

 

 

MISC.

CIVIL APPLICATION No. 2701 of 2008

In

 

SPECIAL

CIVIL APPLICATION No. 17411 of 2006

=========================================================

 

MINAXIBEN

PRATAPBHAI PARMAR W/O. MAFATLAL @ MAHESHBHAI – Applicant(s)

Versus

 

MAFATLAL

@ MAHESHBHAI PARSHOTTAMBHAI DESAI – Opponent(s)

========================================================= Appearance

:

MR

BHUNESH C RUPERA for Applicant

None for

Opponent

=========================================================

 

CORAM

:

 

HONOURABLE

MS. JUSTICE R.M.DOSHIT

 

and

 

HONOURABLE

MR.JUSTICE K.M.THAKER 21st October, 2008

 

ORAL

ORDER (Per

: HONOURABLE MS. JUSTICE R.M. DOSHIT)

 

 

The

applicant, estranged wife, has taken out this application under the Contempt of Courts Act.

 

It is the

complaint of the applicant that the opponent-husband has failed to carry out directions issued by this Court in above Special Civil Application No. 17411 of 2006.

Learned

advocate Mr. Rupera has appeared for the applicant. He has submitted that by Order dated 7th March, 2008 made by the learned Single Judge in above writ petition, the opponent was directed to clear arrears of maintenance by 30th April, 2008 and to file an undertaking to that effect in the Court by 14th March, 2008. The said directions have not been complied with by the opponent. Hence, the present Application.

We are

afraid, we are unable to read the order as suggested by Mr. Rupera. The above writ petition was filed by the opponent against the order for payment of maintenance made by the Court below. The said petition has been dismissed with cost by the learned Single Judge. While dismissing the petition, the learned Single Judge has recorded the statement made by the applicant thus, ..the petitioner assured this Court that arrears will be cleared latest by 30.4.2008 and undertaking to this effect shall be filed by the petitioner latest by 14.3.2008. It is evident that the aforesaid sentence was uttered by the opponent i.e., it was the statement made by the opponent before the Court and not a direction issued by the Court to the opponent. Breach of statement made before the Court does not constitute contempt of the court.

Application is misconceived. Hence, rejected.

 

 

{Miss R.M

Doshit, J.}

 

 

 

{K.M Thaker, J.}

 

Prakash*

Categories: Judgement

Gujrat HC: Just admission of dues of maintenance cannot be said to have committed the contempt and willful disobedience of the order of Court: Contempt dismissed

Gujarat High Court
Ushaben vs Unknown on 21 December, 2010
Author: D.A.Mehta,&Nbsp;Honourable Mr.Justice Z.K.Saiyed,&Nbsp;

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MCA/1308/2006 5/ 5 ORDER

 

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

MISC.CIVIL

APPLICATION – FOR CONTEMPT No. 1308 of 2006

In

 

SPECIAL

CIVIL APPLICATION No. 8143 of 2005

=====================================================

USHABEN

CHANDUBHAI RAVAT & 1 – Applicant(s)

Versus

 

CHANDUBHAI

BHIKHUBHAI RAVAT – Opponent(s)

===================================================== Appearance

:

MR MR PRAJAPATI for Applicant(s) : 1 – 2. MR

HARSHADRAY A DAVE for Opponent(s) : 1,

=====================================================

CORAM

:

 

HONOURABLE

MR.JUSTICE D.A.MEHTA

 

 

 

and

 

 

 

HONOURABLE

MR.JUSTICE Z.K.SAIYED

 

 

 

Date

: 27/03/2008

 

ORAL

ORDER

 

(Per

: HONOURABLE MR.JUSTICE Z.K.SAIYED)

 

 

1. The

applicant has preferred this application seeking initiation of contempt proceedings against the opponent and after holding the opponent guilty of deliberate and willful disobedience of order dated 18.2.2006 made in Special Civil Application No. 8143 of 2005, punish the opponent.

 

 

 

2. Heard

the learned advocate Mr. MR Prajapati for the applicants and Mr HA Dave for the opponent.

 

 

3. Both

the parties are husband and wife. Due to constant harassment, the applicant no. 1 started to live separately with opponent no. 2 and after living separately from opponent, it was difficult for the applicant no. 1 to survive with minor daughter Yuti ? applicant no. 2 herein, and therefore, applicant no. 1 has filed Special Civil Suit No. 54 of 2001 before the 5th Jt. Civil Judge(JD), Junagadh, for getting maintenance amount of 36 months under section 18 and 20 of the Hindu Adoption and Maintenance Act, which was partly allowed on 8.10.2003 against which the opponent had preferred First Appeal No. 361 of 2004 before this Court which was withdrawn on 26.10.2004. It appears that during the pendency of the First Appeal, due to non-compliance of the order dated 27.2.2004, the applicant had initiated contempt proceedings against the opponent by filing Misc. Civil Application No. 1598 of 2005 but it was rejected on 23.8.2005. That after withdrawal of the First Appeal, the applicant no. 1 has initiated execution proceedings against the opponent in the trial court by filing Special Darkhast No. 2 of 2004 and after hearing both the parties, the trial court issued attachment warrant against the opponent. Against the order of attachment warrant, the present opponent has approached this Court by filing Special Civil Application No. 8143 of 2005 and obtained stay against execution proceedings. That after hearing learned advocates of both the parties, this Court has passed an order directing the opponent to pay an amount of Rs. 1 lac to the applicant on 24.10.2005. That before granting interim relief to the applicant, this Court has invited calculations regarding amount of maintenance from both the sides and after going through the said calculation, this Court has passed the said order dated 24.10.2005. In the above Special Civil Application No. 8143 of 2005, on 18.2.2006,this Court has passed the order, which reads as under:

 

 

 

 

1.Husband, petitioner is directed to pay Rs. 6000/- between 1st to 10th date of every month.

The

husband is directed to pay remaining amount i.e. Rs. 5,51,754/- within one month from the date of receipt of the writ.

If

the husband neglected to pay the amount, then he will have to pay 12% interest on the same.??

 

 

 

4. Despite

the above order passed by this Court, the present opponent has not complied with the said order, therefore, the applicant has issued legal notice to the opponent but as the opponent is alleged to have deliberately and willfully disobeyed the order of this Court dated 18.2.2006, the contempt proceedings was launched against the present opponent.

 

 

 

5. After

hearing the learned advocates appearing for both the sides, opponent has filed the statement of the amount paid to the applicant and the amount due to be paid, on page No. 33 of this application. We have perused the said statement. In view of the statement, the applicant no. 1, who is staying at Junagadh, has sent a letter and clarified all due amount and has contended in paragraph-2 of her letter that due to unavoidable circumstances, that is, examination of her daughter, she was unable to come before this court, but if, the Court is required to hear the applicant no. 2, she is ready to come before this court.

 

 

 

6. We

have gone through the contents of the letter of applicant no. 1 and read the reply of opponent, it appears that there is delay in complying with the order passed by this Court, but from the contentions it appears that every person has a right to utilise the provisions of law. In the present case, opponent had challenged the order of the legal fraternity and try to get some justice in her favour. The conduct of the present opponent shows that when a person is utilising the provisions of law, then, none can say that he has disobeyed the order passed by this Court. From the statement in affidavit dated 9.3.2008 produced by the opponent, it appears that he has admitted all dues but from the said admission, it cannot be said that he has committed the contempt and willful disobedience of the order of this Court.

 

 

 

7. From

the aforesaid discussion, it appears that the goal of the applicant which is fulfilled by opponent’s statement, then there is nothing on record to say that the opponent has disobeyed the order of this Court.

 

 

 

8. In

view of aforesaid reasons, the present application is disposed of. No order as to costs. Notice discharged.

 

 

(D.A.

MEHTA, J.)

 

 

 

(Z.K.

SAIYED, J.)

 

mandora/

Categories: Judgement

Wife fined 2 lakh wrt DV Act proceedings for “making mockery of the judicial process”, Contempt and for suppression of facts!!

February 27, 2012 1 comment

Delhi High Court
Douglas Breckenridge vs Jhilmil Breckenridge on 21 February, 2012
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 20.12.2011

% Judgment delivered on: 21.02.2012 + CONT.CAS(C) 815/2011 and C.M. No. 20360/2011 DOUGLAS BRECKENRIDGE ….. Petitioner Through: Mr. Neeraj Kishan Kaul, Senior

Advocate, with Mr. P. Banerjee &

Mr. Atreyi Chatterjee, Advocates.

versus

JHILMIL BRECKENRIDGE ….. Respondent Through: Ms. Geeta Luthra, Senior Advocate,

with Mr. Harish Malik, Advocate.

CORAM:

HON’BLE MR. JUSTICE VIPIN SANGHI

JUDGMENT

VIPIN SANGHI, J.

1. The present petition has been preferred under Sections 10 and 12 of the Contempt of Courts Act, 1973 read with Article 215 of the Constitution of India, with the allegations to the effect that the respondent has deliberately and willfully disobeyed the orders dated 30.09.2010 and 05.04.2011 passed by the Guardianship Court, Saket Courts, New Delhi, CONT.CAS(C) 815/2011 Page 1 of 57 passed in Guardian Case No.66/2010 and also the orders of the Metropolitan Magistrate dated 13.10.2011 in CC No.332/1, and of the Additional Sessions Judge dated 19.10.2011 passed in Protection of Women from Domestic Violence Act, 2005 (DV Act) proceedings.

2. The petitioner and the respondent are husband and wife. Out of their wedlock, they have four sons. The petitioner has preferred a divorce petition against the respondent.

3. The petitioner filed a custody petition before the Guardianship Judge, Saket, New Delhi. In the petition the petitioner stated that he resides with his three elder children at C-87, Anand Niketan, New Delhi, of whom he has custody, whereas the respondent resides with her parents at 68, Friends Colony (West), New Delhi. According to the petitioner, the respondent abandoned the matrimonial home on Raksha Bandhan day, i.e. 24.08.2010. She left the three elder children with the petitioner, and took away the youngest child Liam with her. The custody petition had been preferred to seek custody of the youngest son Liam from the respondent wife. The petitioner also moved an application in those proceedings to seek interim custody under Section 12 of the Guardians and Wards Act, 1890. CONT.CAS(C) 815/2011 Page 2 of 57

4. The petitioner apprehended that the respondent would take the child Liam with her to U.K., where she was allegedly having an adulterous relationship with one Dr. Nooruddin Ahmed of Aylesbury, U.K. On 09.09.2010, the Guardianship Judge recorded the undertaking of the respondent that she shall not take the child Liam from the territorial jurisdiction of the Court, without the permission of the Court.

5. The proceedings before the Guardian Court were fixed on 30.09.2010. The respondent had, in the meantime, left for U.K. to allegedly meet her alleged paramour. She could not take the child Liam with her on account of her undertaking given to the Guardianship Judge on 09.09.2010. According to the petitioner, the child Liam, who was left by the respondent with her parents in Friends Colony, was handed over by his parents-in-law to him.

6. Accordingly, on 30.09.2010, the child Liam was produced by the petitioner before the Court. The learned Guardianship Judge saw for himself that the petitioner had the custody of the child Liam, who was produced in Court by the petitioner. Consequently, the learned Guardianship Judge, upon consideration of the matter and looking to the facts and circumstances of the case, that the custody of the child Liam had come into the hands of the CONT.CAS(C) 815/2011 Page 3 of 57 petitioner, disposed of the application under Section 12 of the Guardian and Wards Act., 1890.

7. The order dated 30.09.2010 is relevant and, therefore, reproduced herein below:

“G No 66/10

30.09.2010

Present: Sh.P. Banerjee and Liza Baruah advocate for petitioner with petitioner.

None for respondent.

In the morning one advocate appeared on behalf of respondent and filed reply to the petition of the petitioner along with extra copy for the petitioner. The copy of the petition has been supplied to petitioner.

It is informed by counsel for petitioner that

respondent left Delhi and went to U.K. On 16.09.2010 by leaving the child Liam at her father’s home. It is further submitted that the parents of respondent dropped the child at the residence of petitioner and since, then the child in the custody of petitioner. It is further submitted that since the child has already come in the custody of petitioner, therefore, the application for interim relief may kindly be disposed of. Considered. The petitioner is present with the child in the court. Keeping in view the fact that the child whose custody was sought by the petitioner has already come in his custody therefore the prayer made in an application under Section 12 of the Guardian and Wards Act stands satisfied, thus, the application under Section 12 is disposed of.

CONT.CAS(C) 815/2011 Page 4 of 57 Petitioner seeks time for filing rejoinder to the reply of the respondent. Heard. Allowed. Let the same be file within three weeks from today with advance copy to opposite party. Be put up for rejoinder the petitioner, if any, otherwise admission denial of documents and framing of issues on 27.11.2010.” (Emphasis supplied)

8. In December 2010, the respondent moved an application before the Guardianship Judge. In this application, the respondent contended that the petitioner had, inter alia, “barred access of the applicant to all four children of the parties….. ….. …..” She complained that she is denied the use of any room in the matrimonial house, and she is forced to stay only in the living room. She also complained that the keys of the house are not provided to her. She also complained that she is not allowed to join her children and the petitioner on family outings. The prayer made by the respondent in this application was to seek a direction “that the children of the parties are allowed to access to the Applicant and be permitted to interact with her and that no inconvenience, interference or annoyance be caused in her relationship with their children and that the Non-Applicant not assume to himself the unilateral authority to decide how the children should behave or when and which manner the Applicant, subject to his absolute discretion, associates and interacts with them”.

CONT.CAS(C) 815/2011 Page 5 of 57

9. While this application was pending, the matter again came up before the learned Guardianship Judge on 05.04.2011. The parties, with a view to amicably settle their disputes, agreed to refer the matter to the Mediation Centre, Delhi High Court, New Delhi. The Court, inter alia, gave the following directions on the said date:

“Heard. Till the parties explore the possibility for amicable resolution of dispute before the Mediation Centre, the following arrangement is made with respect to the visitation rights of the respondent with the minor children without prejudice to the rights and contentions of both the parties.

1. The petitioner has agreed that he will hand over the key of the house to the respondent for having free access to the house.

2. It has been agreed between the parties that the respondent will have free access to all the minor children so that she may have healthy relationship with the children and she may offer motherly affection to them.

3. The respondent is not permitted to take the minor children out of NCR.

The aforesaid arrangement shall continue till further orders.

Matter be put up for compromise between the parties, if any, otherwise for arguments on application under Order 7 Rule 11 CPC moved by the respondent and other pending applications of parties, if any, on 20.05.2011. Copy of order be given dasti to both the parties.” (Emphasis supplied) CONT.CAS(C) 815/2011 Page 6 of 57

10. While the aforesaid orders were holding sway, the respondent, it is alleged, picked up Liam from the school on 13.10.2011 at about 1:30 p.m. and disappeared without intimating as to where she was taking Liam. Upon enquiry, it transpired that Liam had been taken by the respondent to her place of residence, i.e. 68, Friends Colony (West), New Delhi.

11. The respondent, it appears, instituted proceedings under Section 12 of the DV Act on 12.10.2011, and moved an interim application in those proceedings to seek a restraint against the petitioner from interfering in the respondent’s custody of the minor son Liam. The definite case of the respondent was that she had the actual custody of child Liam.

12. This petition under Section 12 of the DV Act was registered as CC No.332/1 and came up before the learned Metropolitan Magistrate on 13.10.2011. The respondent/complainant was represented through her senior counsel Ms. Geeta Luthra with Mr. Sanjeev Sahay, Advocate. The petition had been filed by Sh. Shashank Kumar Lal, Advocate on behalf of the respondent. The learned Metropolitan Magistrate, after hearing the arguments of the respondents counsels, passed, inter alia, the following order:

CONT.CAS(C) 815/2011 Page 7 of 57 “Present; Complainant and child with Sr. Adv. Geeta Luthra and Sanjeev Sahay, Adv.

Arguments heard. It is stated by Sr. counsel that there is imminent apprehension that the respondent may remove the youngest child namely Liam from the custody of aggrieved person unlawfully.

I have gone through the petition filed by the complainant as well as considered the submissions carefully. In para no. 68 of the petition filed by the aggrieved person there is reference to the proceedings filed by the respondent herein with regard to the youngest child Liam in Guardianship court. However, the language used in the said para is ambiguous and does not reflect clearly the orders passed by the Ld. Judge in the Guardianship court. Counsel for complainant seeks time to file amended petition and also seeks liberty to file orders passed in the Guardianship court in the petition filed by the respondent.

Put up for consideration on 14.10.2011 at 3:00 pm.” (emphasis supplied)

13. From the aforesaid, it is clear that the learned Metropolitan Magistrate noticed the averment made in para 68 of the petition preferred by the respondent under Section 12 of the DV Act and, as the same appeared to be ambiguous, granted time to the respondent/complainant to file an amended petition, and also to file orders passed in the guardianship petition by the Guardianship Court.

CONT.CAS(C) 815/2011 Page 8 of 57

14. It appears the respondent filed an application to seek amendment, inter alia, in para 68 of the petition under Section 12 of the DV Act. After incorporating the aforesaid corrections, the corrected para 68 of the said petition reads as follows. For the sake of better understanding, the words which have been replaced have also been incorporated, but have been struck of.

“68. In order to succeed in his purpose to discredit the complainant by fabricating and creating evidence, the respondent had filed two petitions against the complainant (1) guardianship of the youngest child under Section 7 and 10 of the Guardians and Wards Act. The said child was of around 4 years of age and the petition was filed in August, 2010. Although the respondent had sought directions for handing over the custody of the child Liam to from the complainant, no such Order was made however, the

respondent complainant did not have any objection to the Order regarding Non removal of child Liam from the territorial jurisdiction of the Hon’ble Court as the complainant is residing and has been working for gain within the territorial jurisdiction of the Hon’ble Court. (2) Petition under Section 27(1) (d) (e) of the Special Marriage Act for Decree of Divorce of Marriage on the alleged ground of cruelty, unsoundness of mind and adultery. The said petition was filed on 07.01.2011″. (amended words have been shown in bold)

15. It appears, the respondent produced only an uncertified copy of the statement made by her on 09.09.2010 in the guardianship proceedings, before the learned Magistrate dealing with the D.V. Act proceedings. The CONT.CAS(C) 815/2011 Page 9 of 57 respondent/complainant did not file the order dated 09.09.2010, and also did not file the subsequent orders passed in those proceedings, including the orders dated 30.09.2010 and 05.04.2011, as aforesaid.

16. On 14.10.2011, the learned Metropolitan Magistrate passed the order, the relevant extract whereof reads as follows: “C.C. No.332/1

14.10.2011

Present; Complainant with Sr. Adv. Ms. Geeta Luthra along with Adv. Jatin Sehgal, Shashank

Kumar Lal.

An application has been filed now on behalf of

complainant seeking permission to correct the typographical errors in the petition filed by the complainant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as DV Act). It is stated by counsel for complainant that due to inadvertence, certain typographical errors have occurred in the petition which are stated in the instant applications. The counsel for complainant further requests that correct complaint may be taken on record. Heard. The errors stated by the

complainant in the instant application appear to be only typographical errors and do not change the cause of action in any manner. Therefore, application is allowed. Amended/corrected petition under Section 12 of DV Act is taken on record. Counsel for complainant has also filed uncertified copy of statement dated 09.09.2010 made by the complainant in the court of Ms. Ravinder Bedi, JSCC CUM ASJ Guardian Judge. However, the complainant has not filed any order dated 09.09.2010 passed by Ld. Guardian Judge.

CONT.CAS(C) 815/2011 Page 10 of 57 File perused. Arguments heard. This is a petition under Section 12 of DV Act. There are sufficient grounds to summon the respondent.

xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx

At this stage, it is stated by counsel for complainant that complainant and respondent are residing together

presently at C-87, Anand Niketan, New Delhi. It is also stated by counsel for complainant that there is imminent apprehension that the respondent, who is a US citizen, may remove the youngest child of the parties namely Liam Dorje Breckenridge outside the territorial jurisdiction of the court. Therefore, counsel for complainant has sought ex-parte interim protection to the respondent not to interfere in the custody of minor son Liam Dorje

Breckenridge aged about 5 years with the complainant. xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx

I have bestowed my careful consideration to the

submissions of Ld. Sr. Adv. for complainant and also perused the petition filed under Section 12 of DV Act along with documents. The respondent has already filed petition before the Guardianship court under Section 7 and 10 of Guardians and Wards Act with regard to the custody of minor son Liam Dorje Breckenridge, which is pending consideration before Ld. Guardian Judge. In the

circumstances of the case, I am of the opinion that the aggrieved person is entitled for some ex-parte interim protection order under Section 21 of DV Act. Accordingly, respondent is restrained from removing the child Liam Dorje Breckenridge from the territorial jurisdiction of this court till further orders. No ground is made out for passing any other order at this stage. The applicant is directed to serve the instant ex-parte order passed today on the respondent forthwith by way of RC and filed an affidavit to CONT.CAS(C) 815/2011 Page 11 of 57 this effect within 3 days. Copy of this order be given dasti to the aggrieved person.” (Emphasis supplied)

17. According to the petitioner, the aforesaid order did not satisfy the respondent, as this order merely injuncted the petitioner from removing the child Liam from the territorial jurisdiction of the Court till further orders. However, the said order did not vest custody of the child Liam in the respondent, which had passed into the hands of the petitioner, as observed by the learned Guardianship Judge in his order dated 30.09.2010. The respondent, therefore, preferred an appeal before the District and Sessions Judge, Saket under Section 29 of the DV Act.

18. The grievance made by the respondent in her appeal under the DV Act was to the following effect:

“The Ld. Trial Court without taking into consideration the facts and circumstances and the apprehension of the appellant passed an erroneous impugned order whereby the Ld. Trial Court after considering that the appellant has the custody of minor child, restrained the respondent from removing the minor child outside the territorial jurisdiction of this Hon’ble Court and by inadvertently not mentioning that the respondent should also be restrained from removing the child from the custody of the

Appellant. Copy of the Domestic Violence Complaint along with all the annexures is annexed as ANNEXURE P-2. Furthermore, the Ld. Trial Court committed an error while passing the impugned order by not granting a stay CONT.CAS(C) 815/2011 Page 12 of 57 to the appellant from dispossession, even after taking into consideration that the appellant is living in the shared household with the respondent and all four children, where she has a legal right. Therefore, the appellant being aggrieved from the impugned order is filling the present appeal as there is no other efficacious remedy available.”

19. From the aforesaid, it is clear that the definite and positive case of the respondent before the appellate court was that she had the actual physical custody of the child Liam, when the petition under the DV Act was preferred and also when she preferred the appeal under the aforesaid Act.

20. The learned ASJ dealing with the respondents said appeal passed an order on 19.10.2011. The relevant extract from the said order reads as follows:

“19.10.2011

Present: Ms. Geeta Luthra Senior Advocate with Sh. Jatin Sehgal, Ld. Counsels for the

applicant/appellant.

xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx I have heard the submissions of the Ld. Counsel. The only urgent relief on which the ld.Counsel for the applicant/appellant had laid emphasis is regarding the custody of the child namely Master Laim Dorge

Breckenridge aged about five years. This child is already with the applicant/appellant namely Jhilmil Breckenridge. It is mentioned in the complaint under Section 12 of the Act in Para 68 that respondent Doughlas Breckenridge has filed a CONT.CAS(C) 815/2011 Page 13 of 57 petition under Section 7 and 10 of the Guardian and Wards Act for the custody of the minor child namely Master Liam Dorge Breckenridge. In the proceedings before the Guardian Judge the applicant/appellant Jhilmil

Breckenridge has already given statement that she will not remove the child Master Liam Dorge Breckenridge from the territorial jurisdiction of this court without the permission of this court. These facts prima facie show that the custody of the minor child namely Liam Dorge

Breckenridge is with the applicant/appellant.

Ld. Counsel for the applicant/appellant has submitted that the applicant/appellant has genuine apprehension that the respondent in the Appeal namely Doughlas Breckenridge may not deprive her from the custody of the child Master Liam Dorge Breckenridge forcefully and illegally. Therefore, she has sought for some interim protection till Appeal heard on merit.

I have considered the facts and circumstances of the case and gone through the Trial Court Record and the urgency of the relief which has been sought.

Since the minor child Master Liam Dorge Breckenridge is already in the custody of the applicant/appellant Jhilmil Breckenridge, so it is directed that till the next date of hearing fixed in the Appeal the custody of the minor child Master Liam Dorge Breckenridge with the applicant/appellant Jhilmil Breckenridge (mother) shall not be disturbed except by due process of law and of course subject to the order, if any passed by the Guardian Judge on this issue in the petition under section 7 and 10 of Guardian and Ward Act, because the applicant/appellant has not conveyed any order passed by the Guardian Judge in this regard to this court.

Since the matter is now listed for 11.11.2011 before the concerned court, the matter will be taken up on the said date. keeping in view the nature of the matter, I deem it appropriate to issue notice to the respondent on filing of CONT.CAS(C) 815/2011 Page 14 of 57 PF/RC regarding the Appeal for the date already fixed. File be sent back to the concerned court.” (emphasis supplied)

21. In the aforesaid background, the submission of Mr. Neeraj Kishan Kaul, learned senior counsel for the petitioner is that the respondent has blatantly, deliberately and willfully breached the orders dated 30.09.2010 and 05.04.2011 passed by the learned Guardianship Judge, which clearly acknowledge and recognize the fact that the custody of the child Liam had passed into the hands of the petitioner, and was with the petitioner. The Respondent mis-stated and misrepresented before the Ld. MM as well as before the Ld.ASJ dealing with the DV Act proceedings, that she had the custody of the child Liam, by only producing her own undertaking recorded before the Ld. Guardianship Judge on 09.09.2010, and by suppressing the subsequent proceedings and orders of the Guardianship Court, and in particular the orders/ proceedings dated 30.9.2010 and 05.04.2011. Under the cover of the orders obtained from the learned Metropolitan Magistrate in proceedings under the DV Act, which have been obtained by suppression of the proceedings and orders of the learned Guardianship Judge, the respondent has sought to take away the child Liam from the custody of the petitioner, and into her own custody. Mr. Kaul, therefore, submits that the CONT.CAS(C) 815/2011 Page 15 of 57 orders dated 30.09.2010 and 05.04.2011 stand blatantly and willfully breached by the respondent.

22. He further submits that the conduct of the respondent in not disclosing the proceedings and orders passed in the guardianship case on 30.09.2010 and 05.04.2011, despite the directions of the learned Metropolitan Magistrate dealing with the DV Act complaint, as well as her conduct in not filing the said proceedings of the guardianship case in her appeal under the DV Act before the learned ASJ, clearly tantamount to gross abuse of the process of the Court on account of suppression of the said proceedings; to playing a fraud upon the court, and; also amounts to contempt of court. In this regard, he places reliance on the decision of a Division Bench of this Court in Satish Khosla v. Eli Lilly Ranbaxy Limited & Anr., 71(1998) DLT 1 (DB).

23. Ms. Geeta Luthra, learned senior counsel appearing for the respondent has argued that the orders/proceedings dated 30.09.2010 and 05.04.2011 do not qualify to be termed as “order” as defined in Section 2(14) of the Civil Procedure Code (CPC). She submits that an “order” within the meaning of the CPC mean the formal expression of any decision of a civil court which is not a decree. She submits that the so-called order CONT.CAS(C) 815/2011 Page 16 of 57 dated 30.09.2010 does not contain any decision of the learned Guardianship Judge. In fact, the said so-called order was obtained by the petitioner behind the respondents back by making a self serving statement before the Court. She submits that there was no question of the respondent agreeing to the petitioners claim that he had got the custody of the minor child Liam, as the respondent on the same day, i.e. 30.09.2010 filed her reply in the guardianship proceeding clearly stating that the custody of the child Liam was with her.

24. Ms. Luthra submits that even the so-called order dated 05.04.2011 is not an order within the meaning of Section 2(14) CPC. These proceedings merely record that the parties have agreed that the matter be referred to the Mediation Centre, and the order also records the arrangement arrived at by the Court with regard to visitation rights of the respondent qua the minor children.

25. She submits that even the petitioner admits that the custody of the minor child Liam was with the respondent, and it is precisely for this reason that the petitioner preferred the guardianship petition. She submits that the respondent never ever gave up the custody of her minor child. The respondent continued to have the custody of the minor child Liam CONT.CAS(C) 815/2011 Page 17 of 57 inasmuch, as, she was staying in and out of the matrimonial home, i.e. C-87, Anand Niketan, New Delhi with her children and, in particular, the minor child Liam.

26. In para 13.3 of the guardianship petition, the petitioner himself acknowledges that the respondent left the matrimonial home on 24.08.2010 and had taken with her child Liam. It is an acknowledgment of the fact that the custody of the child Liam was with the respondent, and it is for this reason that the respondent was asked to give an undertaking to the Court that she would not remove the child Liam from the territorial jurisdiction of the Guardianship Court without the permission of the said Court, on 09.09.2010. She further submits that there is no order of any Court divesting the custody of the child Liam from the respondent, and vesting the same with the petitioner.

27. Ms. Luthra submits that the respondent, being the mother of the said minor child, is his natural guardian. She submits that even if the respondent had gone out of town leaving the child Liam with her parents, the same does not mean that the respondent has lost the custody of the minor child Liam. She submits that even a perusal of the order dated 05.04.2011 shows that the respondent had unrestricted access to the matrimonial home, CONT.CAS(C) 815/2011 Page 18 of 57 where the petitioner was residing with the children. In fact, the respondent had preferred an application under Order 7 Rule 11 CPC on 27.11.2010 on the premise that the respondent was living in her matrimonial home with the petitioner and her four children. In response to the aforesaid application, the petitioner admitted that the respondent has been residing at the matrimonial home.

28. She submits that the respondent had preferred an application for directions in December 2010 before the Guardianship Judge, as the petitioner was trying to forcefully divest the custody of the children from the respondent. Reference is also made to the reply filed by the petitioner to said application, wherein the petitioner himself admits that the respondent has access to all the four children. In para 11 of the said reply, the petitioner does not dispute the respondents case that Liam is allowed to meet the respondent, and is allowed to sleep with the respondent. She submits that the respondent had filed a second application under Order 7 Rule 11 CPC in the guardianship proceedings. In his reply to the said application filed in July 2011, the petitioner admitted that the respondent has been residing in the matrimonial home with the children. According to the respondent, the parties are leading a normal life. Reference is made to the averments made CONT.CAS(C) 815/2011 Page 19 of 57 by the respondent in her rejoinder to the second application under Order 7 Rule 11 CPC before the learned Guardianship Judge.

29. Ms. Luthra points out that the conduct of the petitioner himself is not aboveboard, inasmuch, as, the petitioner filed an amended petition under the Guardianship Act in July 2011, wherein the petitioner, without the permission of the Court, introduced an averment in Column 4 as follows: “Custody of minor is with Mr. Douglas Breckenridge. At the time of filing of the petition Liam was in the illegal possession of the Respondent. However, on 30.09.2010 the custody of minor Liam has been reverted to the Petitioner”.

30. Ms. Luthra submits that the respondent, being the mother, is entitled to protect her custody of the children under Section 21 of the DV Act. She defends the averments made by the respondent in her petition in para 68 under Section 12 of the DV Act. In support of her submissions aforesaid, she places reliance on the following decisions: i) Jaswant Sugar Mills Ltd., Meerut v. Lakshmichand & Ors., (1963) Supp. SCR 242;

ii) Dr. Manju Varma v. State of U.P. & Ors., 2004 (9) Scale 463;

iii) Devarkonda Edl. Society V. All India Council for Technical Education & Ors., AIR 1997 A.P. 389; and

CONT.CAS(C) 815/2011 Page 20 of 57 iv) Vidyacharan Shukla v. Khubchand Baghel & Ors., AIR 1964 SC 1099.

31. Ms. Luthra submits that the respondent, in any event, did not understand the proceedings of 30.09.2010 and 05.04.2011 before the learned Guardianship Judge as “orders” within the meaning of Section 2(14) CPC. In these circumstances, there is no contempt made out, on account of the alleged suppression of the so-called orders from the Courts dealing with the DV Act proceedings. In support of this submission, she places reliance on the following decisions:

i) Dinesh Kumar Gupta v. United India Insurance Co. Ltd. & Ors., 2010 (10) Scale 647;

ii) Anshuman Sharma v. Manika Jain, 114 (2004) DLT 47; iii) Dr. Ashish Ranjan v. Dr. Anupama Tandon,

2010 (12) Scale 577.

32. Ms.Luthra has also sought to make submissions that the petitioner abused the respondent physically, sexually and mentally, and was responsible for wrong treatment of her bi-polar disorder. These allegations, in my view, are of no relevance to these proceedings and are, therefore, not being gone into.

CONT.CAS(C) 815/2011 Page 21 of 57

33. In his rejoinder, Mr. Kaul has submitted that the entire submission of the respondent fails to take note of the manner in which “civil contempt” has been defined under the Contempt of Courts Act. Civil contempt is defined as:

” (b) “Civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court”. He, therefore, submits that civil contempt is defined very widely to not only take within its ambit willful disobedience to decrees, directions and orders, but also other processes of a Court.

34. Mr. Kaul submits that the order dated 30.09.2010 is, even otherwise, an “order” within the definition of that expression contained in Section 2(14) of the CPC. He submits that merely because the respondents counsel chose not to appear before the learned Guardianship Judge on 30.09.2010, when the matter was taken up, would not mean that the proceedings held before the learned Guardianship Judge, and recorded by him, do not amount to an order. He submits that the petitioner had moved an application under Section 12 of the Guardians and Wards Act to seek interim custody of the minor child Liam. On 30.09.2010, the petitioner had CONT.CAS(C) 815/2011 Page 22 of 57 appeared before the learned Guardianship Judge with the child Liam, and the Court saw for itself that the custody of the said minor child was with the petitioner. Mr. Kaul submits that the Court recorded the petitioners submissions and duly considered the same and also appreciated the factual position placed before it. Thereafter, the learned Guardianship Judge gave his decision that, keeping in view the fact that the child whose custody was sought by the petitioner has already come in his custody, the prayer made in the application under Section 12 of the Guardians and Wards Act stands satisfied. In the light of the aforesaid position, the learned Judge disposed of the petitioners application under Section 12, as aforesaid.

35. Mr. Kaul, therefore, submits that the order dated 30.09.2010 has all the ingredients of an order under Section 2(14) of the CPC. Mr. Kaul submits that it is not necessary that the formal expression of the decision of the civil court has necessarily to pertain to a final decision. He submits that the respondent did not either seek review of the said order, or challenge it before a higher court. The said order, in so far as it deals with the aspect of interim custody of the minor child Liam, has attained finality, until and unless it is disturbed/ changed due to material change of circumstances. CONT.CAS(C) 815/2011 Page 23 of 57

36. With a view to counter the allegations of the respondent regarding her alleged ill treatment by the petitioner, Mr. Kaul has also drawn the attention of the Court to the email communication sent by the father of the respondent to the petitioner on 07.08.2010, wherein he expressed the apprehension that the respondent may take Liam with her to U.K. The respondent’s father himself advised the petitioner to keep Liam’s passport and that of the other boys too, under lock and key. Reference is also made to email communications allegedly exchanged between the respondent and her alleged paramour, to submit that the respondent, in any event, is not fit to retain even temporary custody of the minor children on account of her alleged adulterous relationships.

37. I first proceed to consider the submission of the respondent that the proceedings of 30.09.2010 and 05.04.2011 recorded before the learned Guardianship Judge do not tantamount to an “order” within the meaning of Section 2(14) C.P.C. Section 2(14) C.P.C defines “an order” to mean “the formal expression of any decision of a Civil Court which is not a decree”. “Decree” has been defined inter alia, to mean “the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either primary or final”. The CONT.CAS(C) 815/2011 Page 24 of 57 distinction between an “order” and a “decree”, therefore, is that, whereas a decree is the result of an “adjudication”, an order is the “expression of any decision” of a Civil Court. Moreover, while a decree conclusively determines the rights of the parties with regard to or any of the matters in controversy in the suit, as regards the Court expressing it, an order may not be a conclusive determination of the rights of the parties, as regards the Court formally expressing its decision.

38. Reliance placed by the learned senior counsel for the respondent on Jaswant Sugar Mills Limited (supra), Dr.Manju Varma (supra), Devara Konda Educational Society (supra) and Vidya Charan Shukla (supra) does not advance the submission of learned senior counsel for the respondent that the orders/proceedings dated 30.09.2010 and 05.04.2011 do not amount to orders. Jaswant Sugar Mills Limited (supra) was a case wherein the Supreme Court was examining the issue whether an appeal may be entertained in exercise of powers under Article 136 of the Constitution of India against the direction of a Conciliation Officer issued in disposing of an application under Clause 29 of the order promulgated by the Government of Uttar Pradesh under the U.P. Industrial Disputes Act, 1947, when an appeal lay to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 1950. In that context the Supreme Court examined CONT.CAS(C) 815/2011 Page 25 of 57 the issue as to what constitutes a decision judicial. The criteria that must be satisfied to make a decision judicial is stated as follows:- “(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rule;

(2) it declares rights or imposes upon parties obligations affecting their civil rights and

(3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on question of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.”

39. There can be no manner of doubt that the proceedings before the learned Guardianship Judge are judicial proceedings. Therefore, the decision in Jaswant Sugar Mills is not relevant for the present purpose. Dr.Manju Varma (supra) merely restates the aforesaid criteria laid down in Jaswant Sugar Mills Limited. In Deverakonda (supra) the Andhra Pradesh High Court held that while rendering its decision under Section 23 of the All India Council for Technical Education (AICTE) Act , 1987, the AICTE acts as a quasi judicial authority. It is required to act objectively, judicially and judiciously. In that context the High Court observed in Para 27 as under:- CONT.CAS(C) 815/2011 Page 26 of 57 “Normally speaking, ‘decision’ means “making up one’s mind, may be even personal decisions leading to real and true conclusions. Actually it is a judgment based on conclusions” (Page 309 of Oxford Advanced Learner’s-Dictionary supra). As a verb, ‘decide’ means to “to give a judgment in a case”, and as a noun ‘decision’ means “Judgment in a Civil Court, making up one’s mind to do something, act of coming to a decision, it is a decision making process” (Page 67 of Dictionary of Law by P.H; ColI in supra). In the legal sense of the meaning; a ‘decision’ is a “determination arrived at after consideration of facts and in the legal context of law, a popular rather than technical or legal word, a comprehensive: term having, no fixed, legal meaning. It may be employed as referring to- ministerial acts as well as to those that are judicial or of a judicial character.”

40. Once again, I do not see how the aforesaid observations of the Andhra Pradesh High Court advance the respondent’s submission with regard to the nature/character of the two orders dated 30.09.2010 and 05.04.2011 passed by the learned Guardianship Judge. In Vidya Charan Shukla the Supreme Court was, inter alia, examining the manner in which an order may be framed by a Tribunal under Section 98 or Section 99 of the Representation of the People Act, 1951. It was held that the Election Tribunal may issue two documents – one embodying the reasons for the decision and the other, the formal expression of its decision; the former will be its judgment and the later its order. It may issue both in the same document in which case the CONT.CAS(C) 815/2011 Page 27 of 57 judgment as well as the order is embodied in the same document. I fail to appreciate how this decision has any relevance to the case at hand.

41. Keeping in mind the aforesaid position, a perusal of the order/proceedings dated 30.09.2010 leaves no manner of doubt that the same qualifies as an “order” within the meaning of Section 2(14) of the C.P.C. The learned Guardianship Judge gave its decision on the petitioner’s application under Section 12 of the Guardian and Wards Act while passing the said order, after appreciating the factual position presented before him that the child Liam was in fact in his custody on the said date. The application under Section 12 of the Guardian and Wards Act had been preferred to seek interim custody of the said child from the respondent. As the said interim custody had, by turn of events, vested in the petitioner, the prayer made in the interim application under Section 12 of the Guardian and Wards Act stood satisfied and, consequently, that application was disposed of by the learned Guardianship Judge after considering all the aforesaid aspects. Merely because the order was passed in the absence of the respondent or her representative, the said order does not cease to be a “decision” of the Court. By this decision, the Court recognized the factual position that the interim custody of the child Liam had passed into the hands of the petitioner. The learned Guardianship Judge has recorded his reason CONT.CAS(C) 815/2011 Page 28 of 57 for disposing of the application under Section 12 of the Guardian and Wards Act.

42. So far as the proceedings/order dated 05.04.2011 is concerned, the same in my view also tantamounts to an “order” within the meaning of Section 2(14) of the C.P.C. Firstly, the same has been passed after hearing the parties. Secondly, the same contains a decision in so far as the aspect of the visitation rights of the respondent are concerned in relation to the minor children. This decision was made without prejudice to the rights and contentions of both the parties, since the parties had expressed their readiness and willingness to settle their disputes amicably and for that purpose to appear before the Judge In-Charge, Mediation Centre, Delhi High Court.

43. The Gujarat High Court in Vijaya Park Co-operative Group Housing Society V. Trivedi Bhartiben w/o. S.S.Trivedi & Ors., (2003) 1 GLR 190, rejected a similar contention that because the trial Court had not given any reason in its order rejecting an application under Order 1 Rule 10 read with Order 6 Rule 17 C.P.C., the same did not amount to an order. The High Court held that while detailed reasons have not been assigned by the learned Judge while dismissing the application, the learned trial Judge had CONT.CAS(C) 815/2011 Page 29 of 57 indicated his reasons by observing that by seeking amendment in the cause title of a plaint, a new person is sought to be introduced as plaintiff in place of the original plaintiff and therefore, the amendment was not competent. The Gujarat High Court held that whether, or not, the High Court may agree with the aforesaid reasons of the trial Court, it cannot be said that the order has been passed without any reasons.

44. In the present case as well, the order dated 05.04.2011 does not explicitly state the reasons for the arrangement worked out by the Court with respect to the visitation rights of the respondent in relation to the minor children. However, that, by itself, would not reduce the force of the said proceeding/order as the said order contains a binding decision, which the learned Guardianship Judge directed, shall continue till further orders.

45. In any event, whether or not the proceedings/orders dated 30.09.2010 and 05.04.2011 constitute an “order” within the meaning of Section 2(14) C.P.C, or not, is of no avail to the respondent. As pointed out by Mr. Kaul, civil contempt has been broadly defined to mean “willful disobedience of decree, judgment, direction, order writ or other process of a Court……………” (emphasis supplied). The proceedings of 30.09.2010 and 05.04.2011, even if assumed for the sake of argument as not constituting CONT.CAS(C) 815/2011 Page 30 of 57 “orders”, within the meaning of Section 2(14) of the C.P.C, certainly are processes of a Court inasmuch, as, they record the proceedings of the learned Guardianship Court in the petitioner’s guardianship petition before it.

46. When the matter was finally heard on 20.12.2011, I had directed the counsel for the respondent, who represented the respondent in proceedings under the D.V. Act to file an affidavit disclosing whether, or not, the said counsel for the respondent was aware of the passing of the orders dated 30.09.2010 and 05.04.2011 in the Guardianship proceedings when the proceedings under the D.V. Act were filed initially, as well as at the appellate stage. An affidavit was also called from the respondent, disclosing whether she had made her counsel aware of the said orders of the Guardianship Court before filing the petition under the D.V Act, or at any time thereafter.

47. Two affidavits dated 28.12.2011 have been filed, one, of the respondent and the other of Mr. Sashank Kumar Lal, Advocate.

48. Mr. Sashank Kumar Lal, in his affidavit has stated that the orders dated 30.09.2010 and 05.04.2011 were not in his knowledge, and the respondent had not instructed him about these orders. He has stated that due CONT.CAS(C) 815/2011 Page 31 of 57 to absence of instructions and due to bona fide belief, he did not place the orders dated 30.09.2010 and 05.04.2011 before the learned M.M and the Ld. ASJ at the time of filing and hearing of the complaint under the D.V. Act and the appeal arising therefrom.

49. So far as the respondent is concerned, she has filed a detailed affidavit which goes far beyond the direction issued by the Court. In this affidavit, the respondent has, for the first time, asserted that she was not at all aware of the order dated 30.09.2010 when she preferred the complaint under the D.V. Act and the appeal arising therefrom. She states in para 15 of this affidavit that “I did not give any instructions to my present counsel with regard to orders dated 30.09.2010 and 05.04.2011. Even otherwise, I had no knowledge of order dated 30.09.2010″. She states that she did not produce the orders dated 30.09.2010 and 05.04.2011 before the learned M.M, and before the learned Additional Sessions Judge, as she did not have copies of the said orders. She has also sought to tender an unconditional apology “for any act which may have caused hindrance to the administration of justice”. This stand taken by the respondent, taken in her affidavit dated 28.12.2011, is strikingly at variance from her stand taken in her reply filed to the contempt petition.

CONT.CAS(C) 815/2011 Page 32 of 57

50. I have perused the entire reply filed by the respondent and there is not an iota of averment made by her in the said detailed reply to state that she was not aware of the order dated 30.09.2010 passed by the learned Guardianship Judge at the time of filing of her complaint under the D.V. Act, and the appeal arising therefrom. All that she says is that, firstly, the order dated 30.09.2010 was obtained behind her back and, secondly, that the said order was passed on a self serving statement made by the petitioner. Thirdly, she further states that it is not an “order” within the meaning of Section 2(14) of the C.P.C. In this regard, I consider it appropriate to set out paragraphs 12, 14 and the relevant extracts of para 30 of the contempt petition, and the corresponding reply given by the respondent herein below:- Petitioner’s averment

“12. On 30.09.2010 the said child was reverted to the custody of the petitioner as the respondent had left for UK to meet her paramour and could not take the child with her as apprehended due to her undertaking to the Guardian Judge on 09.09.2010. The said fact was duly recorded by the Learned Guardian Judge a copy of which is annexed herewith as Annexure-D. In sum and substance, the said order clearly held that as the custody of the said child had already come in the hands of the petitioner therefore, the relief sought in the interim application under Section 12 of the said Act stood satisfied and the application was accordingly disposed of. A copy of the said interim application under Section 12 of the said order is annexed hereto as Annexure-E.”

CONT.CAS(C) 815/2011 Page 33 of 57 Reply to the above para

“12. That the contents of para 12 of the petition are wrong and hence denied. It is denied that on 30.09.2010 or before that Liam was reverted to the custody of the petitioner. At the outset it is denied that the child was reverted to the custody of the petitioner vide order dated 30.09.2010. The said order is not an order in terms of Section 2 (14) of the Civil Procedure Code as the same has been passed in the absence of the respondent and not on merits. The said order is based on self serving statement of the petitioner which cannot be interpreted in any manner through which it can be said that the Court has granted custody to the petitioner. The circumstance under which the said order has been passed has been explained, and hence the same are not repeated for the sake of brevity.” Petitioner’s averment

14. That accordingly, the said orders were governing the custody and visitation with respect to the said child qua the parties. The said orders are still subsisting and have not been either vacated or modified by either the learned Guardian Judge or any appellate Court.

Reply to the above para

“14-15. That the contents of para 14 and 15 of the petition are wrong and hence denied. It is submitted that the orders governing the custody and visitation of the child in question are still in subsistence. At the outset it is submitted that the petitioner is trying to mislead this Hon’ble Court by intentionally making contemptuous statement as the Ld. Guardian Judge has not passed any speaking order in respect of the custody and visitation of the minor child. The petitioner is intentionally interpreting the orders dated 30.9.10 and 5.4.11 passed by the Ld. Guardian Court in order to mislead this Hon’ble Court in order to get an order which he failed to get from the Ld. Guardian Judge.”

CONT.CAS(C) 815/2011 Page 34 of 57 Extract of Petitioner’s averment

“30. A bare perusal of the said petition and the application would reveal that an off the cuff reference has been made with respect to the pendency of the petition filed by the petitioner before the Guardian Judge under Section 7, 10 and 25 of the said Act in para 68 of the aforesaid application. There is not even whisper about the passing of the said order nor has a copy of the said order been annexed to the petition. ….. ….. ….. …..” Reply to the above para

“30. The contents of para 30 of the petition are a matter of record and need no reply. However at the outset, it is submitted that the respondent had disclosed and placed on record the undertaking given by her on 9.9.2010.”

51. Pertinently, the respondent in her reply does not specifically deal with the “grounds” urged by the petitioner in the contempt petition, wherein too, the petitioner has made categorical assertions that the respondent has suppressed, concealed and mis-stated the material facts and documents, namely, the orders dated 30.09.2010and 05.04.2011 passed by the learned Guardianship Judge while pursuing the proceedings under the D.V. Act before the learned M.M. and the learned ASJ.

52. The stand now taken by the respondent in her affidavit, filed in response to the order dated 20.12.2011 that she was not aware of the order dated 30.09.2010 therefore, cannot be accepted. This is clearly an afterthought on the part of the respondent and an attempt on her part to get CONT.CAS(C) 815/2011 Page 35 of 57 out of the tight spot that she finds herself in, because of her acts of suppression and concealment of the orders dated 30.09.2010 and 05.04.2011 from the concerned Courts dealing with the D.V Act proceedings. This stand is now being taken for the first time after the close of the hearing, which means that the petitioner has no occasion or opportunity to say anything in the matter. Moreover, this stand is belied by the fact that in the amended guardianship petition, the petitioner had stated that “….. On 30.09.2010, the custody of the minor Liam has been reverted to the petitioner”. This amended petition was filed by the petitioner some time around 13.08.2011, whereas the D.V. Act proceedings were launched by the respondent only in October, 2011. From the said averment, it is clear that the respondent was put to notice that the petitioner claimed himself to be in actual custody on and from 30.09.2010. Pertinently, in relation to the order dated 05.04.2011, the respondent has no such explanation to offer, as she has taken benefit of the said order. However, even this order was suppressed and concealed from the learned M.M and the learned ASJ dealing with the D.V Act proceedings, evidently for the reason that this order too would have betrayed the fact that it was the respondent who was being granted visitation rights, and not the petitioner. This obviously would have meant that the actual custody of the children, including the child Liam was with the CONT.CAS(C) 815/2011 Page 36 of 57 petitioner and not the respondent. If this order had been produced before the Ld. MM and the Ld. ASJ in the D.V. Act proceedings, the claim of the respondent- that she has custody of the child Liam, would have been belied. In the light of the aforesaid discussion, I have no hesitation in rejecting the affidavit now filed by the respondent on 28.12.2011 as per the direction of the Court. In my view, the same further compounds the dubious conduct of the respondent in trying to play hide and seek with the courts.

53. Turning to the examination of the affidavit filed by Shri Sashank Kumar Lal Advocate, I find that his conduct too does not appear to be completely beyond suspicion. He discloses that he was engaged by the respondent as her counsel in proceedings before the Guardianship Judge in May, 2011. This means that he had access to the case file of the proceedings pending before the learned Guardianship Judge. Access not only to the counsels file but even to the Court record. He would have been aware of the fact that the respondent had moved an application in December, 2010 to seek access to the children, meaning thereby that the respondent was actually not having custody of any of the four children, including the child Liam.

CONT.CAS(C) 815/2011 Page 37 of 57

54. I have called for the Guardianship case record from the family court where the same is pending. It is seen that the Vakalatnama has been filed by Mr. Jatin Sehgal and the Mr. Jai Kush Hoon on 20.05.2011. In fact, Mr. Shashank Kumar Lal has not filed any Vakalatnama. I have also called the inspection application register. The inspection application register does not shows that an application for inspection was made by the aforesaid newly engaged counsel upto 01.07.2011, when the case was transferred to the Court of the Principal Judge, Family Court. The case was assigned to the Court of Smt. Renu Bhatnagar, Judge 2, Family Court, Saket, where it is now pending. It appears that no inspection application register is being maintained in her court. An intimation to this effect has been received from her.

55. Pertinently the proceedings under the D.V.Act were initiated in October, 2011 i.e., five months after the aforesaid counsels were engaged by the respondent as her counsel in the guardianship proceedings. I may note that Mr. Shashank Kumar Lal, Mr. Jatin Sehgal and Mr. Jai Kush Hoon share the same chamber, i.e. 109 Lawyers Chambers, Delhi High Court, New Delhi, and while Mr. Shashank Lal has appeared in the Guardianship proceedings, Mr. Jatin Sehgal has appeared in the DV Act proceedings. Mr. Shashank Lal has inspected the Guardianship proceedings on 11.01.2012. It CONT.CAS(C) 815/2011 Page 38 of 57 is, therefore, clear that they work jointly on matters and belong to the same chamber.

56. It is also pertinent to note that when the D.V. Act proceedings were drafted, in Para 68 the same counsel made ambiguous and unclear averments. It is even more pertinent to note that when the D.V. Act proceedings were taken up by the learned M.M. on 13.10.2011, she specifically raised the issue with regard to the ambiguous averments made in Para 68 of the petition, whereupon the counsel for the complainant sought time to file an amended petition and also to file orders passed by the Guardianship Court. Despite the aforesaid, the counsel did not clearly amend the petition to make a complete disclosure of the orders passed by the learned Guardianship Judge, including the orders dated 30.09.2010 and 05.04.2011. He also did not file these orders before the learned Magistrate dealing with the D.V. Act proceedings. Inconsequential amendments were carried out in Para 68 of the petition which concealed the aforesaid orders of the Guardianship Judge.

57. It is not for a litigant to spoon feed his counsel with regard to earlier proceedings undertaken before a court, once he is engaged as the counsel in a pending case, even if it were to be assumed that the litigant may be either CONT.CAS(C) 815/2011 Page 39 of 57 ignorant, or may not deliberately disclose the earlier proceedings undertaken in the case to his counsel. It becomes the obligation of the counsel who accepts the responsibility from a litigant, in an already pending proceeding, or when he is engaged to file a fresh proceeding, to acquaint himself with all that has transpired on the record. It is clear that Mr. Sashank Kumar Lal was acting as the respondent’s counsel in the guardianship proceedings since May 2011. It was his obligation to inspect the orders passed in the guardianship proceedings to acquaint himself fully with all such proceedings, particularly when he was preparing another proceeding under the DV Act, to claim an overlapping relief. No counsel worth his salt can proceed to deal with a case in which he is engaged, without fully acquainting himself of the orders and proceedings in the case which may have already been undertaken. Mr. Sashank Kumar Lal could not have assumed that the custody of the minor child Liam was with the respondent in the face of: (i) the fact that in the amended guardianship petition the petitioner had himself categorically stated that since 30.09.2010 he had the custody of the minor child Liam; (ii) the fact that the respondent did not actually have the custody of the minor child Liam, ever since the engagement of the counsel Mr. Sashank Kumar Lal/Mr. Jatin Sehgal/Mr. Jai Kush Hoon in May, 2011; (iii) the fact that after the passing of the order CONT.CAS(C) 815/2011 Page 40 of 57 dated 13.10.2011 by the learned M.M in the D.V. Act proceedings, wherein the Court had raised the issue about the ambiguous averments made in Para 68 of the complaint, the counsel had sought time to file the amended petition as also to file orders passed by the guardianship court in the guardianship proceedings.

58. It is not explained, why Mr. Sashank Kumar Lal did not inspect the record of the case to obtain the knowledge and copies of the order dated 30.09.2010 and 05.04.2011, in spite of taking time from the learned Magistrate to file the same before him. This omission on his part is suggesting of the fact that he had copies of these orders in his record.

59. If the claim of the respondent’s counsel Mr. Sashank Kumar Lal, that he was not aware of the orders dated 30.09.2010 and 04.10.2011, were to be accepted, for the sake of argument, the only other conclusion one can draw is that he has acted with gross negligence, which is unbecoming as an officer of this Court. Shri Sashank Kumar Lal in his affidavit relies upon the prayer made by the petitioner in his amended guardianship petition which was to the effect that he seeks a direction to the respondent to hand over the custody of the minor child to the petitioner. However, he conveniently omits to take note of the averment made in the amended petition to the effect that CONT.CAS(C) 815/2011 Page 41 of 57 the custody of the child Liam, since 30.09.2010, was with the petitioner. As a counsel Shri Sashank Kumar Lal should have known that interim custody, or defacto custody, of the minor child is one thing, whereas permanent custody or dejure custody- upon adjudication of the relevant issues by the guardianship court, is quite another thing. The prayer made in the amended guardianship petition was to seek the permanent custody of the child Liam.

60. I have great difficulty in accepting the affidavit of Shri Sashank Kumar Lal, Advocate and to swallow his solemn averment that he had no knowledge of either the order dated 30.09.2010 or the order dated 05.04.2011 passed in the guardianship proceedings when he prepared, presented and pursued the D.V. Act proceedings.

61. The two orders dated 30.09.2010 and 05.04.2011 were highly relevant and material, and ought to have been placed before the learned M.M and learned ASJ dealing with the D.V. Act proceedings. A material fact would mean a fact which is material for the purpose of determination of the lis. The logical corollary of this is, whether , the same was material for grant or denial of the relief (See Arunima Baruah vs. UOI: (2007)6 SCC 120). Had the learned M.M and the learned ASJ dealing with the D.V. Act proceedings been made aware of the aforesaid two orders passed by the learned CONT.CAS(C) 815/2011 Page 42 of 57 Guardianship Judge there, obviously, would have been no occasion for either of them to have passed any orders restraining the petitioner from removing the child Liam from within the jurisdiction of the Court, or directing that the custody of the child Liam (falsely claimed to be with the respondent) shall not be disturbed except by due process of law. A perusal of the orders passed by the learned M.M. and the learned ASJ dealing with the D.V. Act proceedings clearly shows that by calculatedly producing the statement made by the respondent before the learned Guardianship Judge on 09.09.2010 – to the effect that she shall not remove the child from within the jurisdiction of the Guardianship Court without the permission of the Court, she sought to mislead the learned M.M as well as the learned ASJ that she had actual custody of the child Liam. This is clearly recorded in the order passed by the learned ASJ on 19.10.2011. As noticed hereinabove, he observes as under:-

“……………In the proceedings before the Guardian Judge the applicant/appellant Jhilmil Breckenridge has already given statement that she will not remove the child Master Liam Dorge Breckenridge from the territorial jurisdiction of this court without the permission of this court. These facts prima facie show that the custody of the minor child namely Liam Dorge Breckenridge is with the applicant/appellant. ……………………………..

Since the minor child Master Liam Dorge Breckenridge is already in the custody of the applicant/appellant Jhilmil CONT.CAS(C) 815/2011 Page 43 of 57 Breckenridge, so it is directed that till the next date of hearing fixed in the Appeal the custody of the minor child Master Liam Dorge Breckenridge with the applicant/appellant Jhilmil Breckenridge (mother) shall not be disturbed except by due process of law and of course subject to the order, if any passed by the Guardian Judge on this issue in the petition under section 7 and 10 of Guardian and Ward Act, because the applicant/appellant has not conveyed any order passed by the Guardian Judge in this regard to this court.” (emphasis supplied).

62. As aforesaid, it is not explained by the respondent or her counsel as to why, despite the learned M.M requiring the production of the orders passed in the guardianship proceedings, and despite a statement being made that the respondent shall produce the orders passed by the Guardianship Court, the same were not produced. Even the order passed by the learned ASJ discloses that he was not satisfied with the conduct of the respondent in not producing the orders passed by the Guardianship Court, and that is why he specifically observed in his order dated 19.10.2011 that the order passed by him is subject to orders, if any, passed by the Guardianship Judge “because the applicant/appellant has not conveyed any order passed by the Guardianship Judge in this regard to this Court”.

63. From the above discussion it is clear that the respondent has deliberately and willfully sought to breach and disobey the orders dated 30.09.2010 and 05.04.2011 by concealing the said orders while filing the CONT.CAS(C) 815/2011 Page 44 of 57 proceedings under the D.V. Act before the learned M.M. and the appeal proceedings before the learned ASJ, with a view to legitimize her conduct of taking away the custody of the child Liam from the petitioner under the garb of the orders obtained in those proceedings by sheer concealment and deliberate and calculated mis-statements made by her.

64. I had occasion to deal with another case involving suppression of relevant and material facts by a party while preferring a writ petition in Ayodhya Devi vs. DDA & Anr., 156(2009) DLT 346. Unfortunately, like in the present case, in that case too, the conduct of the counsels was not completely above board, and they appeared to have played a role in the suppression and concealment of relevant facts. In the course of that decision, I had occasion to consider the judgment of the Division Bench of this Court in Satish Khosla vs. M/s. Eli Lilly Ranbaxy Ltd. & Anr.: Vol.71 (1998) DLT 1 (Division Bench) which in turn deals with other relevant judgments including those of the Supreme Court. I consider it apposite to quote relevant extracts from the said decision:-

“21. In Satish Khosla v. M/s Eli Lilly Ranbaxy Ltd. & Anr. 71 (1998) DLT 1 (DB), a Division Bench of this Court dealt with a similar situation. The respondent preferred an earlier suit being Suit No.3064/1996. It sought ex parte interim orders to restrain the appellant from giving on hire the lawns, adjoining the cottage in the tenancy of the respondent, for CONT.CAS(C) 815/2011 Page 45 of 57 marriages and private parties. The respondent failed to obtain any ex parte orders. Thereafter, the respondent preferred a subsequent suit, being Suit No.261/1997 making a similar prayer for interim relief. On 06.02.1997 the learned Single Judge passed an ex parte ad interim order of injunction against the appellant. The appellant preferred an appeal before the Division Bench and also filed a contempt petition for initiating criminal contempt proceedings against the respondents for having intentionally and deliberately filing the proceedings and application being Suit No.261/1997 and I.A. No.1124/1997. After comparing the various averments made in the two suits, the Court considered the issue whether it was obligatory for the respondent to have disclosed to the Court in the subsequent suit, the earlier suit filed by it and the factum that the Court had not granted any stay in favour of the respondent in the earlier suit. The Court referred to S.P. Chengalvaraya Naidu v. Jagannath & Ors. AIR 1994 SC 853, wherein the Supreme Court held that the Courts of Law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. “It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party.”

22. The Division Bench held that:

“……………..by withholding the plaint and the application in the earlier suit from the court and by not disclosing to the Court about the

proceedings in the earlier suit and the stay having not been granted to it, the plaintiff/respondent had tried to get an advantage from the Court and was, therefore, guilty of playing fraud on the Court as well as on the respondent.”

CONT.CAS(C) 815/2011 Page 46 of 57

23. The Division Bench relied upon the following passage from S.P. Chengalvaraya Naidu (supra):

“……………………… We do not agree with the High Court that there is no legal duty cast upon the plaintiff to come to Court with a true case and

prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of Law are meant for imparting justice between the parties. One who comes to the Court, must come with clean

hands. We are constrained to say that more often

than not, process of the Court is being abused.

Property-grabbers, tax-evaders, bank- loan-

dodgers and other unscrupulous persons from all

walks of life find the Court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on false- hood, has no right to approach the Court. He can be summarily thrown out at any

stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents

executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the

opposite party.”

24. The Division Bench further observed that:

“………………… A party must come to the Court with clean hands and must disclose all the relevant facts which may result in appreciating the rival

contentions of the parties. In our view, a litigant, who approaches the Court, must produce all the

documents which are relevant to the litigation and he must also disclose to the court about the

CONT.CAS(C) 815/2011 Page 47 of 57 pendency of any earlier litigation between the part is and the result thereof. …………..It was only after 20th January, 1997 when the case was

adjourned to May, 1997 that the respondent filed

the second suit and though in one of the

paragraphs it is mentioned that it had filed an

earlier suit for injunction, however, it did not

disclose to the Court either in the plaint or in the application as to what had transpired in the Court on the dates when the said suit was fixed nor it was disclosed to the Court that injunction has not been granted in its favor by the Court and the relief

claimed in the application in the earlier suit was almost similar to the relief which had been claimed in the subsequent suit. In our opinion, it was

obligatory upon the respondent to disclose to the Court that in the application filed in the earlier suit a similar relief had been claimed, however, the Court had not granted the said relief. In our view, if these facts were before the Court on February 6, 1997 when the second suit came up for hearing

before it, may be Hon’ble the Single Judge was

persuaded not to grant any exparte stay in favor of the respondent. ……………… We are, therefore, of the opinion that the respondent has not come to the Court with clean hands and has also suppressed

material facts from the Court with a view to gain advantage in the second suit. This in our view is clearly over-reaching the Court.”

25. On the aspect of role of the counsel for the respondent, the Division Bench held that:

“As held by the Supreme Court in T.

Arivandandam Vs. T.V. Satyapat and Another,

AIR 1977 SC 2421, the pathology of litigative

addiction ruins the poor of this country and the Bar has a role to cure this deleterious tendency of

parties to launch frivolous and vexatious cases. “It CONT.CAS(C) 815/2011 Page 48 of 57 may be a valuable contribution to the cause of

justice if Counsel screen wholly fraudulent and

frivolous litigation refusing to be beguiled by

dubious clients. And remembering that an Advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of

India, we hope will activate this obligation. We are constrained to make these observations and hope

that the co-operation of the Bar will be readily

forthcoming to the beach for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain

litigation is the gullible grant of ex-parte orders tempts gamblers in litigation into easy Courts. A Judge who succumbs to ex-parte pressure in

unmerited cases helps devalue the judicial

process.” 20. We are of the opinion that the above noted passage of the aforesaid judgment in T.

Arivandandam Vs. T.V. Satyapal’s case is fully

applicable to the facts and circumstances of the

present case. Having not succeeded in getting stay in Suit No. 3064/96, in our view, the Lawyer should have refused to move an application for stay in the second suit.”

26. The Division Bench held that the respondents were guilty of contempt and that they had made an attempt to overreach the Court by playing a fraud upon the Court and the opposite party. The respondent was, therefore, non suited in respect of the subsequent suit and was warned to be more careful in future. To the same effect is the decision of this Court in Holy Health and Educational Society (Regd.) v. Delhi Development Authority 80 (1999) DLT 207.

Xx xx xx xx xx xx

CONT.CAS(C) 815/2011 Page 49 of 57

32. In T. Arivandandan v. T.V. Satyapal (1977) 4 SCC 467, the Supreme Court cautioned lawyers by observing that “It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions.” Unfortunately, I regret to observe that the counsels for the petitioners have not heeded to the aforesaid advice of the Supreme Court.

33. The facts of this case compel me to take note of what the Supreme Court had the occasion to observe in Sanjiv Datta, Dy. Secretary, Ministry of Information & Broadcasting, In re v. (1995) 3 SCC 619:

“20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by the its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligential of the society and as a responsible citizen, the lawyer has to conduct himself as a

model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behavior. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tiredness role played by the

stalwarts in the profession to strengthen them. They took their profession seriously and practised it with CONT.CAS(C) 815/2011 Page 50 of 57 dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The casualness and indifference with which some members practise the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the

members of the profession to introspect and take

the corrective steps in time and also spare the

courts the unpleasant duty. We say no more.

Need I say more?”.

65. The Supreme Court in A.V. Pappaya Sastry & Anr. Vs. Govt. of A.P & Ors., (2007) 4 SCC 221 has held that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Such a judgment, decree or order which is obtained by playing a fraud on court or on Tribunal or authority is a nullity and non-est in the eyes of law. The Court observed that fraud and justice cannot dwell together, and fraud and deceit ought to benefit none. In Para 26 the Supreme Court observed as under:-

CONT.CAS(C) 815/2011 Page 51 of 57 “26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of “finality of litigation” cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants”.

66. It is evident that the respondent, seemingly with the aid and advice of her counsel had sought to mislead the courts dealing with the D.V. Act proceedings by suppressing material facts and orders passed by the learned Guardianship Judge with a view to gain advantage in the proceedings under the D.V. Act. It is clear that the respondent sought to overreach the Guardianship Court, and the orders passed by the said Court. The conduct of the respondent, seemingly aided and supported by conduct of her counsel, clearly tantamounted to playing a fraud upon the Court dealing with the D.V. Act proceedings as well as upon the petitioner. The respondent had abused the process of the Court by filing the D.V. Act proceedings with concealment of the orders, and proceedings already passed and undertaken before the learned Guardianship Judge. This concealment was calculated to hamper the due course of justice i.e to interfere with the order dated 30.09.2010 passed by the learned Guardianship Judge. CONT.CAS(C) 815/2011 Page 52 of 57

67. The respondent has made a mockery of the judicial process that undermines the dignity of the Court and the majesty of law. The conduct of the respondent tends to bring the authority and administration of law into disrespect and disregard. It seriously interferes with the rights of the petitioner. Abuse of the process of Court calculated to hamper the due course of judicial proceedings or the orderly administration of justice tantamount to contempt of Court (see Advocate General, State of Bihar V. Madhya Pradesh Khair Industries, (1980) 3 SCC 311 and Delhi Development Authority V. Skipper Construction & Anr, JT 1995(2) SC 391). Accordingly, the respondent is clearly guilty of contempt of Court.

68. The respondent cannot be heard in these proceedings unless she purges herself of the contempt so committed by her by forthwith placing the child Liam in the custody of the petitioner. As aforesaid, the proceedings launched under the D.V. Act are tainted by fraud, suppression and concealment and the orders passed therein by the learned M.M and learned ASJ are therefore a nullity.

69. So far as the conduct of the respondent’s counsel is concerned, the same is highly suspicious. If he is given the benefit of the doubt, his conduct is highly negligent and unprofessional, and the same deserves to be CONT.CAS(C) 815/2011 Page 53 of 57 deprecated in the strongest terms. It is such conduct of counsel which brings the noble legal profession into disrepute and erodes the confidence of the litigating public and the courts in the professionals practicing the legal profession. The administration of judicial process and dispensation of justice by the Courts would become extremely difficult, if the members of the Bar do not maintain the highest standards of integrity and professionalism in pleading their cases before the Courts. Justice would become a casualty, even if temporarily. Though the law provides remedies to tackle such conduct on the part of litigants and their lawyers, and such myopic street smartness invariably eventually fails, it consumes a tremendous amount of material and other resources of the litigant who is a victim of such fraud, and also leads to immense waste of productive time of the Court which would otherwise be utilized in dealing with more deserving cases.

70. Now I may deal with two other decisions relied upon by the respondent. The reliance placed on the decision in Dinesh Kumar Gupta (supra) by the respondent is wholly misplaced. In this case, upon examination of facts the Court came to the conclusion that no case of contempt of court was made out. It was in this background that the Court observed that if an order is capable of more than one interpretation giving CONT.CAS(C) 815/2011 Page 54 of 57 rise to variety of consequences, non-compliance of the same cannot be held to be willful disobedience of the order so as to make out a case of contempt entailing serious consequences. In the present case, it is evident that the orders dated 30.09.2010 and 05.04.2011 were unambiguous and clearly brought out the fact that the defacto custody of the child Liam was with the petitioner. There was no question of there being any ambiguity in those orders, or of their being interpreted in any other manner.

71. For the same reason, reliance placed on the decision in Anshuman (supra) is also of no avail to the respondents. The decision in Dr. Ashsih Ranjan (supra) has absolutely no relevance to the facts of the present case. That was a case where the visitation rights of the father had been frustrated by the respondent-mother who had the custody of the child. The Supreme Court held that on account of the denial of the visitation rights and the tutoring of the minor child, and in the light of the changed circumstances, the petitioner-father could seek review/modification of the orders regarding custody before the appropriate Court. The decision in the aforesaid case does not mean that in every case where there is willful and deliberate breach of the orders of the Court, or orders are obtained by playing a fraud upon the Court and the opposite party, the party guilty of committing contempt of CONT.CAS(C) 815/2011 Page 55 of 57 Court can be allowed to get away with such contempt without being suitably dealt with by the Court.

72. In the light of the aforesaid discussion, I allow this petition. The respondent is found guilty of committing contempt of Court.

73. The respondent is guilty of disobeying the orders dated 30.09.2010 and 05.04.2011 passed by the leaned Guardianship Judge by removing the child Liam from the custody of the petitioner and by taking the said child into her own custody. The respondent is guilty of contempt of Court as she has abused the process of the Court, calculated to hamper the due course of judicial proceedings or the orderly administration of justice. She has made mockery of the judicial process.

74. I direct the respondent to purge the contempt by forthwith restoring the custody of the child Liam with the petitioner. I hold the orders passed by the learned Metropolitan Magistrate and learned ASJ in the proceedings initiated by the respondent under the D.V Act, in so far as they deal with the aspect of custody of the minor child Liam, to be null and void. I call upon the respondent to show cause as to why she should not be punished for contempt of Court. Let the requisite notice issue to her for this purpose. CONT.CAS(C) 815/2011 Page 56 of 57

75. The counsel for the respondent, Mr. Sashank Kumar Lal is cautioned for minding his conduct in future. He is advised to adhere to the highest standards of professionalism, ethics and integrity as an Advocate.

76. I subject the respondent to costs of Rs. 2,00,000/-, out of which Rs.1,00,000/- be paid to the Delhi Legal Services Committee and the remaining amount be paid to the petitioner within four weeks from today. (VIPIN SANGHI)

JUDGE

FEBRUARY 21, 2012

sr/ms

CONT.CAS(C) 815/2011 Page 57 of 5

http://indiankanoon.org/doc/127422124/

Categories: DV Judgements, Judgement

SC: Husband fined 250/- wrt a contempt case where he asked maintenance from wife

Equivalent citations: AIR 2000 SC 68, 2000 (1) ALT 6 SC, 2000 CriLJ 187
Bench: G Nanavati, S Phukan

Padmahasini Alias Padmapriya vs C.R. Srinivas on 16/11/1999

ORDER

G.T. Nanavati, J.

1 This suo moto contempt proceeding against the respondent was initiated in 1992. While hearing Civil Appeal No. 89 of 1992 filed by his wife against the respondent, this Court came across the counter filed by him before the Additional Family Court at Madras in I.A. No. 103 of 1992 in O.P. No. 1038 of 1988. It appeared to this Court that by making the statements contained in paragraphs 3 and 9 of the counter the respondent has committed contempt of this Court. Therefore, a notice was issued and he was called upon to show cause why action should not be taken against him for committing contempt of this Court.

2. A technical objection was taken by the respondent that the notice given to him did not clearly indicate against what the respondent was called upon to show cause. Therefore, a fresh order containing those statements was passed in his presence on 11.3.1992. By that order the respondent was again called upon to file his explanation on or before 10.4.1992. Further hearing was adjourned from time to time either because the respondent was not intimated about the date of hearing or because he did not or could not remain present on the date of hearing or because this Court could not hear it on that day. After considering the explanation, this Court on 24.2.1995 decided to issue ‘Rule’. Fresh notice under Rule 6 and in Form No. 1 was issued and the respondent was called upon to show cause why he should not be punished for committing criminal contempt. Earlier, the then Solicitor General Mr. Deepankar Gupta was requested to assist the Court, but on his ceasing to be the Solicitor General he stopped appearing in this case after 12.8.1996. It appears from the various orders passed thereafter that no other law officer was requested to assist the Court and, therefore, none appeared before this Court on any of those occasions and only the respondent used to appear in the Court. Ultimately we were able to hear this case finally on 19.7.1999.

3. The statements made by the respondent and which, according to the notice issued to him constitute contempt of Court are contained in paragraphs 3 and 9 of his counter filed before the Family Court at Madras and read as under:

Para 3 “I further submit that without any change in circumstances of the said issue or whatsoever, before the Hon’ble Supreme Court, except the change in the Division Bench by the replacement of Honourable Mr. M.M. Punchhi by Hon’ble Mr. Justice Kuldip Singh, who has thwarted justice, flouted law, denigrated the face of the judiciary and ridiculed the sanctity of the Mandatory provisions and established dictates of law on 14.1.92 by questioning me first of all as to how I can claim maintenance from my affluent wife by being a male and a husband, thus clearly manifesting intentions and depicting the mind of the learned Judge against my lawful claim, violating Article 14 of the Constitution and also Section 24 of the Hindu Marriage Act, thus falling into contempt. His Lordship Hon’ble Mr. Justice Kuldip Singh was totally responsible for making this unlawful clarification regarding the prosecution of the main O.P. through misuse of power and authority”

Para 9 “Only exhibited unilateral bent of mine in favour of the petitioner, forgetting for a while that the Supreme Court is only a trustee/interpreter/guardian/Saviour/preserver of law and justice to dispense the same without fear or favour and impartially, since law is superior to judiciary. Hence the Supreme Court cannot surpass law.”

4. As can be seen from the record the respondent had filed his explanation on 7.4.1992. It appears therefrom that the respondent had serious grievance against Mrs. Nalini Chidambaram who had appeared for his wife in the appeal referred to above. It was his feeling that Mrs. Nalini Chidambaram had “continued her foul-play through her tricks and pranks to the extent of inciting Hon’ble Mr. Justice Kuldip Singh” to make remarks which had the affect of humiliating and ridiculing him in open Court without any justification. According to him, the learned Judge, after hearing the submissions of Mrs. Nalini Chidambaram had vehemently clinched his fist and jumped out of his seat, abused and accused him in the open Court for claiming interim maintenance from his affluent actress-wife while being a male and the husband and further preached that it is the duty of a male and the husband, irrespective of his indigency and the wife’s affluence, to maintain his wife. Therefore, in his counter which he filed before the Family Court thereafter, he made the aforesaid offending statements in order to indicate that he was going to move for transfer of the proceedings pending in that Court. Before us he submitted that it was not his intention to allege anything against this Court and that he had merely criticised the attitude of the learned Judge and the remarks made by him. He also submitted that criticism of a Judge with respect to his attitude or the remarks made by him even while hearing a case cannot amount to contempt of court.

5. Though it appears to us that the respondent was very much disturbed because of the strained relationship with his wife and the manner in which Civil Appeal No. 89 of 1992 was pursued in this Court by her through her lawyer, in our opinion, he transgressed the limits of fair criticism when he made the above quoted offending statements. The offending statements made in paragraph 3 and the implications thereof have the effect of conveying that the learned Judge had acted with bias and was partial to the other side. By alleging that the learned Judge had “thwarted justice, flouted law, denigrated the face of the judiciary and ridiculed the sanctity of the mandatory provisions and established dictates of law”, the respondent has by implication attributed ulterior motive to the learned Judge. Fair criticism is that which while criticising the act of a Judge does not impute any ulterior motive to him. The respondent by alleging that on extraneous considerations and by misusing the power and authority of a Judge, the learned Judge had made the aforesaid remarks against him and also made an uncalled for clarification with respect to the “main O.P.”, has gone beyond the permissible limits of fair criticism and committed contempt of this Court. In paragraph 9 of the above quoted offending statements he has further stated by implication that the Supreme Court has not dealt with his case impartially and in accordance with law. This remark has the tendency to scandalise the Court and, therefore, by making that statement he has committed contempt of this Court. It is, therefore, not possible for us to accept his explanation or the submissions made by him. He has to be held guilty for having committed contempt of this Court.

6. Though we have found the respondent guilty of having committed the contempt of this Court, we do not think that this is a fit case in which a strict view should be taken for imposing punishment. Considering the disturbed state of mind of the respondent, the background in which he made the offending statements and the long lapse of time after initiation of this contempt proceeding and also the changed circumstances disclosed by the respondent, we are of the opinion that ends of justice would be met if only a fine of Rs.250/- is imposed upon the respondent.

7. We accordingly hold the respondent guilty of having committed contempt of this Court and impose upon him a fine of Rs.250/-. This Contempt Petition is disposed of accordingly.

Categories: Judgement

SC: 3 Months Jail and 50000/- fine on wife and her mother in contempt case

Equivalent citations: AIR 2003 SC 2925, 2003 (5) ALT 69 SC, 2003 CriLJ 3740
Bench: M Shah, A Kumar

David Jude vs Hannah Grace Jude And Ors. on 30/7/2003

JUDGMENT

Shah, J.

1. This petition for Contempt is filed by the applicant-husband with a prayer for punishing the respondents — wife and mother-in-law for the breach of undertaking given by them and also for breach of directions issued by this Court.

2. By order dated 15^th September, 1998, this Court Permitted respondent No. 1- wife to take the child to USA on the condition that respondents would file undertaking before the Court to the effect that wife will appear before the family court as and when required, and it would be open to the applicant-husband to visit the child in USA after making prior arrangement with the wife.

3. The brief facts of this case are that — applicant and respondent No. 1 were married on 7.2.1989 at Hyderabad according to Christian rites. Soon after marriage, the couple left for America, On 2.5.1997, a son was born out of this wedlock. Because of strained relationship between the wife and husband, both started living separately. Wife approached the Circuit Court, Maryland is USA and got issued a protective order against the husband on condition that the child will not be taken out of the jurisdiction of that court. The wife, however, brought the child to India on 14.4.1998 and after keeping him in the care and custody of her mother Respondent No. 2, she left India. On knowing this, husband dashed back to India on 23^rd April 1998 and on 30^th April, 1998 he took over the custody of the child from respondent No. 2 for celebrating the birthday of the child which was on 2.5.1998.

4. Thereafter, on 1.5.1998, the husband filed O.P.No. 300 of 1998 before the Family Court at Hyderabad Under Section 7, 10 and 25 of the Guardians and Wards Act 1890, seeking an order appointing him as guardian of the minor Child. Respondent No. 2-grand-mother also moved the same Court for restoring the custody of the child to her. The Family Court by order dated 19.8.1998 dismissed the application of the husband and directed him to restore the custody of child to the grandmother. Aggrieved thereby, the husband filed Civil Revision Petition No. 3229 of 1998 before the High Court of Andhra Pradesh at Hyderabad, which was allowed and the custody of the child was given to the husband with visiting rights to the wife.

5. Being aggrieved by the said order, respondent No. 1 and 2 filed S.L.P NO. 15185 of 1998 before this Court. This Court by order dated 15.9.1998 granted interim custody of the child to the wife with permission to take the child to USA on the condition of furnishing a written undertaking to bring the child back to india and disposed of the matter by passing the following order:-

“Special leave granted.

Looking to the age of the child, the interim custody of the child is given to the Ist appellant — mother. She will be at liberty to take the child to USA on condition that both the appellants file undertakings before this Court on or before 25^th of September, 1998 to bring the child back to India when so ordered by the Family Court and the Ist appellant will also file an undertaking to the effect that the Ist appellant will appear before the Family Court as and when required by the Family Court. If during the interregnum the respondent wants to visit the child in USA, he can do so after making prior arrangement with the Ist appellant to see the child. Passport of the child should be released on the filing of the undertaking. The impugned order of the High court is accordingly set aside. the Family court should dispose of the matter as expeditiously as possible, preferably within 18 months. The appeal is disposed of accordingly.”

6.After passing of the aforesaid order, both the respondents submitted their undertakings by way of affidavits in this Court. The relevant portion of the undertakings is as under:-

“by Respondent No. 1 (Wife)

As directed by this Hon’ble Court in the order dated 15.9.1998, I hereby undertake to bring the child back to India when so ordered by the Hon’ble Family Court and further undertake to appear before the Hon’ble Family Court, Hyderabad, as and when required by the Hon’ble Family Court.

By Respondent No. 2 (Mother of the Respondent No. 1)

As directed by this Hon’ble Court, I undertake to bring the child back to India as and when required by the Hon’ble Family Court, Hyderabad.”

7. Meanwhile, respondent No. 1 filed case No. 5249 of Family Law before the Circuit Court for Montgomery country, Maryland inter alia for divorce and custody of the child.

8. Thereafter, the Family Court at Hyderabad proceeded with the trial and examined the husband. That matter was kept for evidence on behalf of the wife but she failed to appear before that Court on 7.2.2000. Various orders were passed by the Family court, but she remained absent from the proceedings. Finally, on 11.4.2000, the Family Court passed the following order:-

1. The husband is appointed as the guardian of the minor child;

2. The wife is directed to restore the custody of the minor child to the husband within one month from the date of the order;

3. The wife is permitted to take interim custody of the minor child whenever she comes to Hyderabad and hand over the minor to the husband while she leaves the country;

4. The wife is not entitled to remove the custody of the minor child out of the jurisdiction of the Family Court at Hyderabad at any time;

5. The husband is directed not to handle the amounts lying in FDR of Rs. 5,00,000/- including the interest accrued thereon till the minor attains the age of majority.

9. Being aggrieved by the aforesaid order, the respondents/contemnors field appeal before the High Court of Andhra Pradesh, which is still pending.

10. Meanwhile, the husband moved this Court for initiating contempt proceedings against the respondents / contemnors for violating the undertakings given by them before this Court and the order passed by the Court in Civil Appeal No. 4797 of 1998.

11. Further, in the execution petition filed before the Family Court, the Family Court passed an order holding that the failure to restore the custody of the minor child to the husband amounts to breach of the undertakings given and ordered the arrest of respondent No. 2 (mother of respondent No. 1) to serve civil imprisonment for a period of six months. appeal filed by respondent no. 2 against the above arrest order before the High Court was also dismissed. Against that order, she has filed SLP No. 22990 of 2001 before the Court.

12. The instant Contempt Petition was first listed on 28-9-2000 and noticed was issued for 8.1.2001. Respondent No. 2, mother of respondent No. 1, was present. She was directed to abide by the undertaking given to this Court. On the next date, i.e. 12.3.2001, learned counsel for respondent No. 1 sought eight weeks time so as to enable her to remain present with the child. respondent No. 2 was directed to deposit her passport with the Registrar (judicial). On 8.5.2001. respondent No. 1 did not appear but learned counsel for respondent No. 1 assured that she would remain present before this court with child on 6^th August, 2001. On 6^th August 2001 also respondent No. 1 remained absent. On that day, at the instance of applicant, leave was granted to add the Union of India as a party respondent. thereafter, on 17^th September, 2001, the Court directed the concerned officer of Union of India to write a letter to the employer of respondent No. 1 about the undertaking given before the Apex Court and breach of undertaking and also the fact that despite the service of notice, she was not remaining present before this Court. On 7^th January, 2002, Mr. Y. Raja Gopala Rao, Advocate appeared on behalf of respondent No. 1 and stated that he would file necessary reply. On 6^th February, 2002 an order was passed to the effect that respondent Nos. 1 and 2 have committed breach of unconditional undertakings and notice was issued as to why they should not be punished for contempt of this Court. Relevant part of the said order is as under:-

“In our view, considering the unconditional undertakings given by the respondents to this Court there is no question of not taking further action against them for not bringing the child back to India as directed by the Family Court. In this view of the matter, prima facie, we are of the view that respondents have committed the contempt of this Court and appropriate action is required to be taken under the Contempt of Courts Act for committing breach of unconditional undertaking. Therefore, we direct that notice be issued as to why they should not be punished for Contempt of this Court.”

13. When the matter came up for hearing on 6^th March, 2002, at the request of the learned counsel for the respondents, the matter was further adjourned for four weeks. On 3^rd April, 2002, counsel appearing for respondent No. 2 stated that respondent No. 1 would remain present with the child without fail, on 30^th July, 2002. On 30^th July, 2002, matter was again adjourned. On 29^th August, 2002, the Court directed that respondent No. 1 shall remain present before this Court with her child on 13^th November, 2002. On 14^th November, 2002, respondent No. 1 remained absent and, therefore direction was issued to the Union Government to take necessary steps for securing her presence with child in this Court. Thereafter, matter was repeatedlyad journed to see that the wisdom prevails with respondent No. 1 to abide by the undertaking given to this Court. Subsequently, respondent No. 1 filed an affidavit on 13^th November, 2002 wherein she has stated that Maryland Circuit Court has granted full custody of the child to her in October, 2002 and that her job precludes her from being able to travel to India. She has further stated that even though she was unable to appear in person, she always retained a legal representative on each and every date of hearing of the case and submitted that taking into consideration her previous affidavits. petition against her be dismissed. Finally, in the affidavit which was tendered by her on 6^th May, 2003, it is stated that petitioner had threatened her in past by saying that he is going to show her how he intends to use the Indian Courts to get back at her, and it is her belief that her husband is now using the system against her family.

14. At the time of hearing, written submissions were filed by the parties. It is the contention of the learned counsel for the applicant that breach of undertaking given before this Court by the wife amounts not only to a civil contempt but also to criminal contempt. It is submitted that this Court’s jurisdiction under Article 129 and 142 of the Constitution is not restricted by the Contempt of Courts Act, 1971 and the Court may award even higher punishment that which is provided under the Act. It is the submission of learned counsel for the applicant that one of the primary objects of the proceeding for contempt is to see that the order or undertaking which is violated by the contemnor is effectuated. Thus, besides punishment, the Court may issue such directions to restore the custody of the child to the applicant-husband.

15. It is to be stated that High Court had directed that the custody of the child be given to the husband because respondent No. 1 gave the custody of the child to her mother and that she was staying in United States and serving in the World Bank at Washington, D.C. The Court also considered the age of the child who at the relevant time was of one year and four months and the fact that as respondent No. 1 was serving and staying alone in United States, it would be difficult for her to take care of the minor child. To see that the aforesaid order is set at naught, respondent Nos. 1 and 2 gave unconditional undertakings to this court and obtained favourable order.

16. From the facts stated above it is apparent that the attitude of the contemnors is without any doubt defiant and contemptuous. They were given custody of the minor child on the condition of filing undertakings before this Court to bring the child back to India when so ordered by the Family Court. Respondent Nos. 1 and 2 have played with the Court, by giving unconditional undertaking for securing the custody of the child. It is true that respondent No. 2, the mother of respondent No. 1 has stated before this court that respondent No.1 is now not abiding by the instructions given by her to produce the child before this Court and the Family Court.

17. Further, it is also clear from the conduct of respondent No. 1 that she has no regard for the notices issued by this Court. If the notice issued by Apex Court of this land is wilfully disobeyed, it would send a wrong signal to everybody in the country. It is a sad experience that due regard is not shown even to the undertakings/order/notice issued.

18. Hence, we hold that respondent Nos. 1 and 2 are guilty for committing contempt of this Court. Further, we do not think that this is a fit case for showing mercy as contended by learned senior counsel, Ms. Indira Jaisingh, appearing on behalf of respondent No. 2. Learned counsel for respondent No. 2 further submitted that respondent No. 2, who is aged about 65 years, has taken enough steps to secure the presence of respondent No 1 and to abide by the undertaking given by her. On the question of punishment, learned senior counsel submitted that in any case considering the age of respondent No. 2, sentence of imprisonment may not be imposed upon her. In our view, even though respondent No. 2 has played major part in the aforesaid episode, considering her age and the fact that she has an old husband to look after, we think that imposition of fine would meet the ends of justice. Hence a fine of Rs. 50,000/- is imposed upon her, in default three months simple imprisonment. It is also ordered that her passport would be seized for a period of five years.

19. For respondent No. 1 considering the fact that she is well educated, serving in prestigious institution, namely, the World Bank and her totally defiant attitude, we do not think that this would be a fit case for taking a lenient view and not imposing sentence of imprisonment. Even though she does not deserve mercy because of her motivated behavior yet we impose only three months simple imprisonment and a fine of Rs. 50,000/- and in default of payment of fine, she shall further undergo simple imprisonment for one month. Fine to be paid within one month.

20. Respondent — Union of India is directed to take appropriate steps to ensure compliance of this order qua respondent No. 1.

21. Contempt Petition stands disposed of accordingly.

Categories: Judgement

Bombay HC: Husband do not even pay tax but wife used contempt proceedings to recover maintenance

Equivalent citations: 2006 (4) BomCR 799
Bench: A Khanwilkar

Amita B. Devnani vs Bhagwan H. Devnani And Ors. on 9/3/2006

JUDGMENT

A.M. Khanwilkar, J.

Page 0902

1. Heard learned counsel for the parties. This contempt petition is filed by the wife complaining of wilful disobedience of the order passed by the Family Court II Mumbai dated 30.l0.200l in Interim Application Nos. 26 of l999 and 27 of l999 in Petition A No. 494 of l999. The direction as was passed under the said order reads thus:

Order Both the interim application are partly allowed.

The non applicant/original petitioner, Bhagwan is directed to pay maintenance @ Rs. 20,000/-p.m to the applicant/original respondent Amita for herself and for her two minor children from November 2000 onwards. He is also directed to pay the litigation expenses to the applicant, Amita at Rs. l0,000/-

The claim towards her charges per hearing is hereby rejected.

The arrears of maintenance and cost of litigation be paid by the non applicant, Bhagwan to the applicant, Amita within a period of 60 days from today.

He shall also continue to pay the maintenance which would become due before l0th of each month as per the English Calendar

2. The aforesaid order was not complied till the institution of the present contempt petition on l4.5.2003. The record indicates that inspite of notice of this petition, even till the hearing of this petition today, the order has not been complied with. No attempt has been made by the respondent Page 0903 No. 1, to atleast partly honour the obligation arising under the said order. In this background, the question that arises before me is whether it is a case of wilful disobedience or breach of order passed by the family court amounting to civil contempt.

3. In this petition the respondent Nos. 2 to 6 have been impleaded on the assertion that they are responsible for aiding and abetting the respondent No. l for non compliance of the order of the court referred to above. Even if the case as made out in the petition against the respondent Nos. 2 to 6 were to be accepted, in my opinion, that will give rise to an action for criminal contempt qua them which is not the scope of the proceedings before me being of civil contempt. The limited question therefore which I am inclined to consider is whether the respondent No. l has wilfully breached and disobeyed the order dated 30.l0.200l which amounts to having committed civil contempt.

4. The counsel for the respondent No. l mainly raised three defences. First defence is that, the averments made in the present petition are verbatim repetition of averments made in the criminal contempt filed by the petitioner before this court which is stated to be pending being contempt petition No. 2l of 2003. In other words, two parallel actions cannot be pursued. The second point is that the Family Court Act, l984 is a self contained Code. Section 18 of the said Act provides for remedy of execution of the orders passed under the provisions of the said Act. It is contended that the petitioner, therefore, could have taken recourse to that remedy (of execution of orders provided under section 18 of the said Act) for which reason this court should be slow in exercising the contempt jurisdiction. To buttress this submission reliance is placed on two unreported decisions of this court and one reported decision of the Karnataka High Court in the case of Rudraiah v. State of Karnataka and Ors. . The last submission is that, at any rate it is not a case of wilful disobedience of the directions issued by the Family Court. According to the respondent No. l, he is incapable of discharging the obligation arising under the order dated 30.l0.200l and in such a case the question of proceeding against him for contempt action does not arise.

5. I shall straightway deal with the first defence taken by the respondent No. l. Even if the argument of the respondent No. l that the averments in the present contempt petition resemble with most of the averments in the criminal contempt petition No. 23 of 2003 and are repetition thereof is to be accepted, that, by itself, cannot be the basis to hold that this action relating to civil contempt is ousted.

For, from the averments in this petition as filed it is obvious that the petitioner is pursuing the claim with regard to the deliberate non payment of the maintenance amount by the respondent No. l in terms of order dated 30.l0.200l, which on the date of filing of the contempt petition is stated to be Rs. 4.90 lacs. No other aspect is relevant for my consideration. Moreover, this aspect cannot be the basis to proceed with the action of criminal contempt. Understood thus, even if the averments in the two contempt petitions are Page 0904 overlapping, that can be no ground to throw out this petition on such technical plea.

6. To get over this position the counsel for the respondent No. l would contend that the relief claimed in this petition is founded on the jurisdictional fact that the respondent No. l was in arrears for a sum of Rs. 4.90 lacs in terms of the order dt. 30.l0.200l on the date of filing of the contempt petition on l4.8.2003. It is stated that during the pendency of this contempt petition, the petitioner resorted to the remedy of execution of the order dated 30.l0.200l as provided under section 18 of the said Act; the said remedy has been taken to its logical end and for which reason, for the same cause the respondent No. l cannot be proceeded with the contempt action. I have perused the application filed by the petitioner for execution of the order date 30.l0.200l. Indeed, the application makes reference to the amount of Rs. 4.90 lacs payable under the order dated 30.l0.200l and Rs. 7500/- payable under the order passed by this court on 26.7.2004 in writ petition No. 5ll6 of 2004. However, it is pertinent to note that the order as is passed on the said application is confined to the outstanding amount of Rs. 2.70 lacs only, payable under the order dated 30.l0.200l,which is for the period from November 2000 onwards till 23.l0.2002. It does not cover the period posterior to 24.l0.2002 till institution of the contempt petition on l4.8.2003. At least to that extent the contempt action against the respondent No. l will survive for consideration. Viewed in this perspective, even this argument canvassed on behalf of the respondent no l does not commend to me.

7. That takes me to the second contention that the provisions of Family Courts Act is a self contained Code and the mechanism for execution of the orders passed by the family court, either final or interim, is provided under section 18 thereof. On this basis it is submitted that alternate remedy is available to the petitioner, therefore, this court should be slow in exercising jurisdiction under the provisions of the Contempt of Courts Act or for that matter Article 215 of the Constitution of India. In support of this submission reliance was placed on two unreported decisions of this court. First is dated 3.7.2000-passed in Contempt Petition No. 208 of l992-. Same reads thus:

Not on board.By consent of parties taken up for final hearing.

By this petition the petitioner allege breach of order of temporary injunction passed by the trial court. I have already taken a view that when the order of temporary injunction is breached, remedy is to approach the same court under rule 2A Order 39 of CPC and the High Court will not be justified in entertaining the contempt petition. The learned counsel submits that now the suit has been disposed of and therefore he cannot file an application under Rule 2A Order 39 of CPC . In my opinion this is totally irrelevant. When the contempt petition was filed the forum to file an application under Rule 2A Order 39 of CPC. IN my opinion, this is totally irrelevant when the contempt petition was filed the forum to file an application under Rule 2A Order 39 of CPC was available. Filing a contempt petition was not remedy for them. Now that even the suit has been dismissed, no useful purpose will be served by entertaining this petition, which relates to alleged breach of an order of temporary injunction. The contempt petition,in such situation cannot be entertained. It is disposed of.

Page 0905

8. In my opinion however, the principle applied in not initiating contempt action in the aforesaid case can be distinguished, having regard to the fact situation of the present case. In the present case, the facts are so telling that, I have no hesitation in taking a view that the act of the respondent No. l is not only gross, reprehensible and replicates wilful disobedience of the order of the court.It is obvious that the respondent No. l has no regard to the orders passed by the court and has succeeded in creating a situation that the petitioner, inspite of the order for maintenance for herself and her minor daughters is rendered remediless. If such is the conduct of the respondent No. l, the aforesaid decision will be of no avail; instead this is a fit case where the court will have to invoke the provisions of the Contempt Courts Act, because of the peculiar circumstances to which reference will be made a little later.

9. Reliance is then placed on another unreported decision of this court decided on l5.l2.l995 in contempt petition No. l95 of l995 which reads thus:

The grievance of the petitioner in this contempt petition is that despite the order of injunction dated 7.l.l995 passed by the Civil Judge, Junior Division,Ulhasnagar, directing the parties to maintain status quo, the respondent has changed the position by raising construction and thereby breached the specific order of the court. According to the petitioner, the status quo order passed on 8.l.l995 has been extended from time to time.

2. At the Bar the learned counsel for the petitioner submits that on 24.8.l995 the Civil suit has already been withdrawn from the court of the Civil Judge, Junior Division, Ulhasnagar by the respondent and the suit has been dismissed accordingly.

3. The order which is alleged to have been breached was passed by the Civil Judge, Junior Division, Ulhasnagar and for that disobedience of the injunction order, the Civil Procedure Code provides efficacious and alternative remedy to a person aggrieved by initiating proceedings under Order 39 Rule 2(a) of the Civil Procedure Code before the concerned court. I am told by the learned counsel for the respondent that the petitioner had already moved an application under Order 39 rule 3(A) of the Code before the Civil Judge Junior Division Ulhasnagar for disobedience of the order dated 7.l.l995. The learned counsel for the petitioner submits that the said application filed by the petitioner under Order 39 rule 2(A) of the Code of disobedience of the order dt. 7.l.l995 is pending before the Civil Judge J D Ulhasnagar. This being the factual position, the contempt petition before this court for disobedience of the injunction order passed by the Civil Judge J D Ulhasnagar is liable to be dismissed, because this court invokes its jurisdiction under the Contempt of Courts Act sparingly and exceptionally and not by way of routine remedy. The availability of alternative and efficacious remedy for disobedience is a circumstance which always weighs with this court while invoking the jurisdiction under the Contempt of Courts Act.

4. In the case of Ali Mohomed Adamali v. Emperor AIR (32) l945 Privy Council page l47 the Privy Council held that the fact that there is another remedy available is a matter for the court to consider when exercising its discretion Page 0906 whether to commit or not to commit on contempt of court. The fact that in the present case is that the petitioner has moved the Civil Judge J D Ulhasnagar for disobedience and breach of the order passed by it on 7.l.l995

5. Besides that in the present case, the petitioner has no placed on record the position of the disputed property obtaining on 7.l.l995 when the order of status quo was made by the court below. It is difficult to comprehend that in the absence of the factual position obtaining on 7.l.l995 being disclosed by the petitioner now it could be inferred that the respondent has breached the order of status quo dt 7.l.l995. The petitioner is a public body and before filing the contempt petition, atleast to should have ensured that the basic facts relating to the position of the property obtaining on the date of the passing of the order of status quo ought to have been disclosed to enable the court to adjudicate whether the order of status quo has been breached or not. Without disclosing the position of the property obtaining on 7.l.l995 no conclusion can be reached whether the status quo has been altered or not and a vague assertion that after 7.l.l995 the respondent continued with the construction cannot lead the court to conclude whether the order of status quo has been breached or not.

6. For the reasons aforesaid, this contempt petition is liable to be dismissed and is dismissed accordingly. However, it is made clear that the dismissal of this contempt petition shall not come in the way of the petitioner to proceed against the respondent in accordance with the law for removal of the unauthorised construction, if any.

10. Once again the observations made in the aforesaid decision will have to be considered as having been made in the fact situation of that case. Suffice it to observe that the alternate remedy available to the petitioner under section 18 of the Act is one of the execution of the order of maintenance to recover the amount thereunder, which includes sending the respondent No. l to imprisonment. Whereas, the present action is to initiate action against respondent No. l for wilful disobedience of the order of a court. Besides, it is not as though the jurisdiction of this court is ousted due to the availability of remedy under section 18 of that Act. As is mentioned earlier, the fact situation of the present case is so telling that I have no hesitation to hold that the acts of commission and omission of the respondent No. l are so gross and reprehensible and obviously intended to even disregard and disobey the order of the court, this is a fit case to proceed with the contempt action against the respondent No. l. The counsel for the respondent No. l then placed reliance on the decision of the Karnataka High Court in the case of Rudraiah (supra).That decision also reiterates the general principle that the action under the Contempt of Courts Act ought not to be invoked for forcing a party to obey the order. These observations are made relying on the decision of the Apex Court which is referred to in para 6 of the reported judgment in the case of Perspective Publications Pvt. Ltd. v. State of Maharashtra reported in l97l SC 22l. In the said decision it is observed that if the matter requires detailed enquiry, it Page 0907 must be left to the court which passed an order and which presumably is fully acquainted with the subject matter of its own order. Emphasis is placed by the respondent No. l on the observation in this decision that when the matter relates to mere infringement of an order, as between the parties, it is clearly inexpedient to invoke and exercise contempt jurisdiction as a mode of executing the orders, merely because other remedies may take time or are more circumlocutory in character. It is further observed in that case that the contempt jurisdiction should be reserved for what essentially brings the administration of justice into contempt or unduly weakens it. In my opinion, the principle underlying the later observation of the Apex Court will have to be invoked in the fact situation of the present case. This is a case where the respondent No. l has resorted to,if I may say so, to all gimmicks so as to ensure that the petitioner and her minor daughters do not succeed in getting even a portion of the maintenance amount granted by the court which was required to be paid since November 2000. To my mind, this is not an action for correction of the grievance of the petitioner or dispute between two parties interse, namely, mere infringement of the order but as I would look at it, the matter concerns restoring the faith of the common man in the authority of courts. If this court were to tapke the view that the petitioner has alternate remedy that will be hyper technical view having regard to the fact situation of the present case. For, it is matter of record that the petitioner did take recourse to the alternate remedy but the respondent No. l took recalcitrant attitude and preferred to suffer imprisonment instead of offering even a portion of the amount payable under the order of the court. Besides, it is rightly pointed out by he petitioner that the respondent No. l has taken inconsistent pleas on affidavit before different forums and has succeeded in protracting to discharge his obligation of payment of maintenance. Rather, the respondent No. l is determined not to pay any amount to the petitioner inspite of order of court which has become final.

11. The counsel for the petitioner has rightly relied upon the decision of this court reported in l988 Cri Law Journal 558 in the case of Sarladevi Bharatkumar Ruingta v. Bharatkumar Shivprasad Rungta in support of his argument that even if the remedy of execution was available to the petitioner that does not preclude this court from exercising the power under the provisions of the Contempt of Courts Act. Reliance has been placed on para 8 of the said decision. Suffice it to observe that in the fact situation of the present case, the respondent No. l will have to be proceeded with for having committed contempt of court due to his wilful disobedience of the order dated 30.l0.200l

12. That takes me to the last submission canvassed on behalf of the respondent No. l. According to the respondent No. l it is not a case of wilful disobedience. In this context, I will straight way refer to the plea taken by the respondent No. l in the affidavit filed before this court in response to the present contempt petition. Reliance is placed only on the following averments occurring in para l of the said affidavit. Same reads thus:

I say that the petitioner has always being well aware that my income was negligible and that I was dependent upon my late father Hakumat Devani Page 0908 for my expenses. The petitioner is also aware that I was not assessed to income Tax. In view of my inability to pay the maintenance it cannot be stated that I have willfully disobeyed of the order dated 30.l0.200l passed by the Hon’ble family court.

This is the only averment on which reliance is placed by the learned counsel for the respondent No. l to make good the submission that it is not a case of wilful disobedience. In the first place, this averment is not enough to absolve the respondent No. l of the charge of wilful disobedience. Besides, in my opinion, the petitioner has rightly relied upon several circumstances which can be discerned from the record of the present contempt petition to show that the respondent No. l is determined not to honour the obligation arising under the order dated 30.l0.200l for the reasons best known to him. Obviously, the respondent No. l is out to see that the petitioner and her minor daughters should not get the benefit of the order which is passed by the family court on 30.l0.300l; for that the respondent No. l has succeeded in resorting to all gimmicks so far. The argument about the inability of the respondent No. l can be straight way answered against him on the basis of the following circumstances. The petitioner has rightly invited my attention to the order passed by this court on l3.7.2004 at page 7 of the cognate civil application No. 29 of 2005, in writ petition No. 5ll6 of 2004 which was filed by the respondent no l before this court challenging four different orders passed against him including issuance of warrant of arrest. I had occasion to deal with the said writ petition when I had passed the following order:

Having heard the learned counsel appearing for the parties, I am of the view that it will be unfair to the respondent to not require the petitioner to deposit the interim maintenance already directed by the court below as back as on l3th October 200l in this court. If the petitioner deposits that amount in this court within two weeks from today, only then the petitioner can be heard on merits on the controversy involved in the petition. In the circumstances, this petition to stand over for two weeks only to ascertain the bona fides of the petitioner. If the petitioner fails to deposit the arrears of interim maintenance which is stated to be around Rs. 5 lakhs in this court within two weeks, the petition will be dismissed for non prosecution. Post this matter for directions immediately after the matters under the caption Settlement on 26th July 2004.

At this stage Mr. Sakhare states that the petitioner has already paid part of the amount directly to the respondent,which is around Rs. l,45,000/- which fact, however, is disputed by the counsel for the respondent on instructions. Even if the petitioner has paid such amount as claimed, the petitioner is directed to comply with the directions already stated above of depositing Rs. 5 lakhs in this court before the next date of hearing.

13. The said writ petition was taken up for hearing on 26.7.2004,when the position remained unaltered. The court eventually while dismissing the petition was required to pass the following order:

Hearing of this matter was deferred, so as to give one opportunity to the petitioner to fulfil his obligation and also to ascertain his bonafides. However, Page 0909 inspite of opportunity given to the petitioner, no amount has been deposited by the petitioner,leave alone the outstanding amount of Rs. 5 lacs towards the interim maintenance. On the last occasion (l3th July 2004) it was made clear in the order that if the petitioner fails to deposit the requisite amount, the petition will be dismissed for non prosecution. Today,when the matter is called out, counsel for the petitioner submits that the petitioner is unable to comply with the direction given on l3th July 2004. He submits on instructions that the petitioner is incapable of paying any amount to the respondent, much less the interim maintenance determined by the court below. From the attitude adopted by the petitioner, I am more than convinced that the various proceedings taken out were the result of the petitioner trying to circumvent the orders legitimately passed by the court below. By this petition, the petitioner is challenging five different orders. The first amongst them was passed on 30th October 200l directing the petitioner to pay interim maintenance during the pendency of main proceedings pending between the parties. The petitioner neither complied with the said direction nor challenged that order at any point of time, but was conveniently advised to withdraw the main petition so as to render the respondent remediless. Accordingly, the petitioner withdrew his main petition on 23rd October 2002, by which the petitioner was already under obligation to pay about Rs. 4,90,000 to the respondent towards interim maintenance. Since the petitioner did not comply with the order passed on 30th October 200l, the respondent had no other option but to take out execution proceedings. In that execution proceedings, the petitioner was advised to take out application for setting aside the order dated 30th October 200l. Initially, the application was filed in the disposed of main petition, but the same was treated to having been filed in the execution petition. Various contentions were raised in the said application at the instance of the petitioner. However, when the said application came up for hearing, the petitioner conveniently adopted the course to go by default. The application was resultantly dismissed for default on 5th May 2004. Indeed, the petitioner has later on filed application for setting aside the order dismissing his application in default and it is stated that the same is still pending. Obviously, no serious effort has been made to get that application finally disposed of. The petitioner has his own explanation to offer as to why that application has not been finally disposed of,but the reasons stated are obviously only a ruse to take cover under the said proceedings from complying with the order dated 30th October 200l, which has been operating all throughout. Naturally, since the petitioner did not comply with the directions, the trial court was left with no option but to allow the application for arrest of the petitioner by order dated l7th May 2004. The petitioner questioned the said order by another application. The court below has shown indulgence in favour of the petitioner which can be discerned from the order dated 2lst May 2004. The court below passed a conditional order for staying the arrest of the petitioner but even that conditional order has not been complied with by the petitioner. This is the state of affairs in which the matter has been prosecuted by the petitioner, obviously to keep the respondent wife getting entangled in several proceedings without fulfilling his obligation of paying maintenance to her. The last order which has been challenged in this petition is the order passed Page 0910 on the application preferred by the petitioner for stay of all the aforesaid four orders. That application has also been rejected by the court below on 8th June 2004. The petitioner has requested for staying the coercive action being taken against him. However,the court rejected that request on the ground that the petitioner has not fulfilled the conditions and, therefore, issued warrant against the petitioner. In this background the present petition has been filed.

As mentioned earlier, an opportunity was afforded to the petitioner to deposit the entire amount due and payable under the orders of the court below. The petitioner has not complied with that direction, nor has shown willingness to pay any amount to the respondent wife. At this stage when the order has been dictated upto this part, now the counsel for the petitioner states that the petitioner is willing to deposit sum of Rs. one lac in two instalments and not any further amount. Having regard to the attitude of the petitioner, I see no reason to show any indulgence. This is not a fit case to exercise discretion in favour of the litigant, who has approached the court with unclean hands. Petition dismissed, with exemplary costs quantified at Rs. 7,500 to be paid by the petitioner to the respondent within one week from today. If the amount is not paid, it will be open to the respondent to take recourse to appropriate remedy as ma be advised and permissible by law for recovery of that amount.

All concerned to act on the copy of this order duly authenticated by the court Stenographer of this court.

14. From the above order one thing is certain that the plea taken by the respondent No. l about his inability to honour the commitment arising under the order dated 30.l0.200l is a false plea.This is so because, in the penultimate para of the order, statement of the respondent No. l through his counsel is recorded that he was willing to deposit a sum of Rs. l lac within two months and not any further amount. That plainly means the respondent No. l conceded his capability to offer amount of Rs. l lac. Besides, made it clear that he will not pay any amount to the petitioner beyond Rs. l lac. The matter does not rest there. The petitioner has rightly invited my attention to the fact that the respondent No. l has not paid even the amount of cost quantified under this order in the sum of Rs. 7500 even till date. Be that as it may, the petitioner has rightly invited my attention to the averments made in the contempt petition which have remained uncontroverted by the respondent No. l. In the petition it is categorically stated that the respondent No. l has been taking inconsistent pleas/statements in several proceedings on the point in issue. The relevant portion of the petition read thus:

(A) Statements made by respondent No. l on oath in interim application being exhibit 29 dated 2lst October 2002 in interim application No. 27 of l999 in the said divorce proceedings:

(1) paragraph 2 at page l of the petition; The petitioner says that the respondent is aware of the fact that the petitioner is not doing any business or service at all. The petitioner says that he has no source of income and is unemployed

Contradictory/inconsistent statements made by respondent No. l in the said divorce proceeding.

(I) Paragraph 9 at page 5 of the petition The petitioner says that the respondent is well educated than himself and expressed her desire to Page 0911 socialise activity outside home as both the petitioner and his father spent long hours outside the home in the course of their business and also because the petitioner being very shy and simple did not socialise actively.

(II) Paragraph l3 at page 8 of the petition. The petitioner says that the respondent persisted with her demand to live separately and independently and on and about l9th May l993, the respondent again created ugly scenes with the petitioner’s mother when the petitioner and his father were away at work and surreptitiously obtained the keys of the petitioner’s father flat No. 20lA Rising Sun Apartment, Juhu Church Road, Mumbai 400049 and occupied the same with her two daughters where she is living at present.

(III) Paragraph l5 at page l0 of the petition.

The petitioner says that maintenance bills and telephones and electricity bills in the said Juhu Church Flat and the additional expenses of the children and their maintenance are entirely borne by the petitioner and mainly by his father as the petitioning has a very limited income of about Rs. 2000 per month.

(IV) Paragraph 5 at page 4 of affidavit in reply to interim application No. 27 of l999 in the said divorce proceeding.

I say that I am employed with my father who pays the monthly salary of Rs. 3000 out of which I meet my day to day needs and requirements.

Admission

The description of the respondent No. l (i.e. petitioner therein) in the cause title states that the occupation is business.

B) The following facts speak volumes about the income and lavish lifestyle of respondent No. l, 6 and the said Hukumat and the other relatives of respondent No. l:

i) The respondent No. l and the said Hukumat and/or the Hindu Undivided family of which they are members own immovable properties worth crores of rupees. The said matrimonial home is a 4 bedrooms hall kitchen terrace flat of approximate 2,250 sq ft area. There are imported crystal crockery, silver dinner sets, imported washing machine and refrigerator etc. in the said matrimonial home. The Juhu flat is a 2 bedrooms hall kitchen flat of appropriate 775 sq ft area. The respondent No. l, 6 and the said Hukumat also own a bungalow and a plot at Lonawala. The said bungalow is well furnished and in fact has carved walnut furniture from Kashmir., The respondent No. l,6 and the said Hukumat and/or the relatives of respondent No. l are shareholders of Rajkumar Electronics Pvt Ltd. The said company owns a factory by the name of Rajkumar Electronics at Baroda., There are around 90 workers employed in the said factory where electronic components are manufactured. There are acres of land near the factory owned by the respondent No. l,6 and the said Hukumat. A well furnished 3 bedrooms hall kitchen row bungalow at Makkarpura in Baroda is owned by the said company. Respondent No. l is a director of the said Rajkumar Electronics . The respondent nos l,6 and said Hukumat also own a l bedroom hall kitchen flat and a garage in New Vena Society, Khar. The respondents No. l,6 and said Hukumat are into business of export of Page 0912 diamonds in the name and style of India Diamond Corporation of which the said Hukumat is the proprietor.

ii)The respondent No. l and the said Hukumat and/or the Hindu Undivided family of which they are members own 4 cars, namely a Maruti Esteem, a Maruti Zen, a Maruti Wagon R and a Fiat Uno.

iii) Respondent no 6’s Pali Hill Bandra address mentioned in the cause title is a 2 bedrooms hall kitchen terrace flat.He owns two cars, namely a Maruti Zen and a Maruti Esteem. Respondent. No. 6 is into textile business and has 7-8 showrooms in Dubai. During the last 3-4 years he has reduced his Dubai visits and has started interfering more with the business of the respondent No. l and the said Hukumat in India.

iv) The bank statement of one of the respondent No. l’s account namely Account No. l443 in the City Union Bank, Khar West from l.4.2000 to l.3.200l of which inspection was given in the said divorce proceedings pursuant to the order of the Hon’ble family court at Bandra, Mumbai shows that the following telephone and electricity bills have been made by the respondent No. l

1. l6.l0.2000 Rs. l0,900 respondent No. l to BSES

2. 26.9.2000 Rs. 9,960 respondent No. l to BSES

3. l4.9.2000 Rs. 9082 respondent No. l to MTNL It is pertinent to note that the said matrimonial home has various electronic and electrical gadgets like refrigerator,4 air conditioners, 4 geysers, colour television in each room, video cassette player, music systems, 3 telephones etc.

v) The said bank statement also indicates the following interest received from fixed deposit:

1. 3.4.2000 interest Rs. l300

2. l8.4.2000 interest of Rs. l625

vi) The respondent No. l had purchased a new Maruti Wagon R car on or about 2l.l2.2000 by paying Rs. 3,77,0l7.The respondent No. l has not denied that he had bought the said car. He only states that the said car was purchased for Rs. 2,7l,894 after deducting the price of the old car and not for Rs. 3,74,0l7

vii) The respondent No. land the said Hukumat and other family members of the respondent No. l have travelled extensively abroad. The respondent. No. l makes a foreign trip at least once in a year. After the order of maintenance was passed no 30.l0.200l in interim application No. 26 and 27 of l999 in the said divorce proceedings the respondent. No. l had been to Dubai.

15. There is absolutely no denial by the respondent No. l to any of the above assertions made in the contempt petition; for the respondent No. l has not bothered to file parawise reply affidavit which was expected from him to this contempt petition. The assertions made in this part of the contempt petition have remained uncontroverted. From the said averments it is more than certain that it is not as if the respondent No. l is not in a position to pay “any amount at all” to the petitioner as was required to be paid towards Page 0913 maintenance under the order dated 30.l0.200l. On the other hand, the respondent No. l has accepted the fact that he has some income. In passing it needs to be noted that the respondent No. l has seriously contested all the proceedings right upto this court and engaged battery of advocates including senior counsel.All this is not without any burden of expenses. Be that as it may, the fact that the respondent No. l has the means and will be obliged to pay Rs. 20,000 per month towards maintenance has been adjudicated in the proceedings before the family court and that finding has become final. Suffice it to observe that the respondent No. l has not disclosed any material fact so as to persuade me to take the view that he had sincere desire or intention to honour the commitment arising under the order dated 30.l0.200l but could not discharge the said commitment due to the reasons beyond his control. If that was the case, perhaps, the respondent No. l would be justified in requesting the court not to invoke the remedy under the Contempt of Courts Act. On the other hand, from the averments made in the contempt petition it is more than clear that the respondent No. l had the means to comply with the order of maintenance. If it is so, the inevitable conclusion is that the respondent No. l is guilty of wilful disobedience of the order passed by the family court on 30.l0.200l. On this finding I shall now proceed to examine the quantum of sentence to be imposed on the respondent No. l.

16. At this stage the respondent No. l was asked to step into the witness box. He was told that I have already recorded a finding of guilt against him and I intend to proceed to punish him under the provisions of the Contempt of Courts Act, l97l,for which he may offer his say on the point of sentence. As the respondent No. l said that he knows English but will not be able to converse in English and that he was found to be comfortable talking in Hindi, I conversed with him in the language known to him i.e. Hindi. The respondent No. l in the first place requested me to show mercy and to excuse him. During the conversation it was suggested to him that even now there is possibility of excusing him provided he would purge the breach committed by him by paying the amount. To that, the respondent No. l was anxious to know as to what is expected from him so as to purge the breach. He was given option for the time being to pay the amount accrued under the order dated 30.l0.200l and if he does that the court may take a lenient view of the matter. In response, the respondent No. l after giving some thought has volunteered to pay the entire amount which is payable under the order dated 30.l0.200l-provided some time is given to him to make the payment . He was told that he would be given time to which initially he stated that he would require one month’s time and then increased to 2 months period to discharge the entire liability. Eventually, the respondent No. l has agreed and has given undertaking to this court that he will pay the entire amount within two months. While I am dictating this judgment, now, the respondent No. l said that he needs 2 and half months time to deposit the entire amount. Here I may note the submission of the petitioner that the petitioner has also claimed interest for the default period in this petition. However, I am keeping the said remedy of the petitioner open. As the respondent No. l has now shown willingness to pay the entire Page 0914 amount in question arising under the order dated 30.l0.200l, I propose to pass the following order:

a) In so far as the quantum of sentence is concerned, I have no hesitation in taking a view that the conduct of the respondent No. l is so gross and reprehensible that the same deserves imposition of maximum punishment provided by law. There can be no two opinions on that count. If the respondent No. l had the ability to pay even portion of the stated maintenance amount, there was no reason for the respondent No. l to drag the proceedings for so long without offering even a single rupee till now. Obviously, the design of the respondent No. l was to create a situation that the petitioner will not be able to reap the benefits accruing under the order of maintenance dated 30.l0.200l. In other words, the attitude of the respondent No. l was that, no matter the order of maintenance in favour of the petitioner, he shall not pay any amount to the petitioner even if it is in utter disregard of the order of the court. The acts of commission and ommission of the respondent No. l constitute wilful disobedience and replicates utter disregard for the order of court amounting to civil contempt. Thus understood, this is a gross case and the facts being so telling, I have no hesitation in imposing maximum punishment of six months of civil imprisonment and fine of Rs. 2000/-.

b) However, as the respondent No. l has shown willingness to purge the contempt and has personally given assurance to the court today to respect the order of maintenance in future regularly, I proceed to pas the following order:

c) The respondent No. l is held guilty of having committed civil contempt and is ordered to suffer imprisonment in terms of section 12 of the Contempt of Courts Act, for a period of six months and to forthwith pay a fine of Rs. 2000/-.

d) This order shall however, not be acted upon and the unconditional apology tendered by the respondent No. l be deemed to have been accepted, in the event the respondent No. l purges the contempt by depositing the entire outstanding amount as of today arising out of the order dated 30.l0.200l. The said amount shall be paid within two and half months from today as per the oral request made and undertaking given by the respondent No. l, failing which the warrant of arrest be issued against the respondent No. l to be executed on 22.5.2006 so as to give effect to the order of punishment indicated earlier. In other words, the respondent No. l shall pay the entire outstanding amount of Rs. 4,97,500/- (Rs 4,90,000/-towards amount of arrears of maintenance and Rs. 7500/- towards order of costs imposed vide order dated l3.7.2004 in Writ Petition No. 5ll6 of 2004) on or before l9.5.2006.

d) It is further ordered that in the event the respondent No. l deposits the amount as referred to above within the specified time,the order of sentence and fine will stand suspended for a period of one year to observe the conduct of the respondent No. l regarding fulfilment of his obligation of future payment in terms of order dated 30.l0.200l which has become final.

Page 0915

e) Notices issued to respondent Nos. 2 to 6 stand discharged with liberty to the petitioner to take recourse to such other remedy as may be permissible by law. If such proceedings are initiated, all questions on merits are left open to be decided before the appropriate forum. It is made clear that no observation made in this judgment be construed as expression of opinion on any of the contentions arising for consideration in such proposed proceedings.

f) At this stage the counsel for the petitioner points out that in order to ensure that the respondent No. l does not remove himself from the jurisdiction of this court or from India, the respondent No. l may be directed to deposit his passport in this court till the entire amount is not deposited by him on terms referred to earlier . find substance in this submission. The respondent No. l is directed to deposit his passport in the Registry of this court, through his counsel not later than l0.3.2006. The respondent. No. l assures to comply with this requirement as well, being one of the condition for deferring the order of sentence and to enable the respondent No. l to purge the contempt. In other words, if the respondent No. l fails to deposit his passport by l0.3.2006,the warrant of arrest be issued forthwith so as to give effect to the order of sentence and the respondent No. l will be taken into custody to suffer the punishment.

Categories: Judgement

AP HC: Family Court cannot initiate proceedings for criminal contempt

Equivalent citations: 1997 (6) ALT 420
Bench: S P Rao, R B Reddy

S. Suryaprakash Rao And Anr. vs Presiding Officer, Family Court And Ors. on 3/11/1997

JUDGMENT

S. Parvatha Rao, J.

1. The petitioners are Advocates. The 1st petitioner appeared for the 2nd respondent i.e., the petitioner in O.P.No.104 of 1996 on the file of the Family Court, Secunderabad preferred against the 3rd respondent i.e., the respondent therein (wife of the petitioner in the O.P.) for divorce; and the 2nd petitioner appeared for the respondent in the O.P. They questioned the validity and propriety of notice in Dis. No. 229/97, dated 26-7-1997, issued by the 1st respondent herein i.e., the Presiding Officer, Family Court, Secunderabad, directing them “to appear before the Court (Family Court, Secunderabad) on 4-8-97 at 10-30 a.m. without fail to show cause why Contempt of Court proceedings should not be initiated in view of the contents in joint memo dated 3-7-97″.

2. The joint memo referred to in the impugned notice was filed by the petitioner and respondent in the said O.P.No.104 of 1996. The contents of that memo speak by themselves and they are as follows:

“It is submitted that the above Divorce petition was coming up for Trial. Witnesses on behalf of petitioner were examined and it was posted for evidence of Respondent. The respondent was partly examined on 12-5-1997. At that stage the Presiding Officer of this Hon’ble Court suggested compromise and asked Advocates on both sides to persuade the parties. Both parties agreed to compromise and petitioner intended to withdraw the O.P.

The Presiding Officer was on leave on 19-6-1997, and it was posted on 3-7-1997. The parties requested the Presiding Officer to take up the case after lunch as both Advocates would come after lunch. It was also requested to the Hon’ble Court that the Advocates would report compromise.

In spite of this representation this Hon’ble Court posted the case for Orders on 10-7-1997.

Both the Advocates requested the Presiding Officer to meet in Chambers so that O.P. can be disposed of on the basis of compromise. However the presiding Officer refused to meet the Advocates, who are senior Advocates. The staff told the Advocates that if the parties want, they have to file reopening petition. She also seemed to have commented that let the Advocates represent before the Bench. But the Presiding Officer, did not sit on the bench after lunch on 3-7-97.

Hence under the circumstances the parties are filing joint memo informing this Hon’ble Court their intention to resume cohabitation with effect from 3-7-1997.

Both parties pray that this Hon’ble Court may be pleased to close the O.P.No.104 of 1996, by recording compromise. The parties also pray to dispense with the presence of Advocates, on 10-7-1997 as they declined to appear for discourtesy shown by Presiding Officer to them.”

The facts narrated in the joint memo are affirmed in the affidavit filed in support of the present writ petition by the first petitioner herein. He further states that on 3-7-1997 they all waited in the Family Court to make a mention after lunch, in view of the observation the Presiding Officer seems to have made that, if the advocates wanted to make representation, they should do so in the Court; but that the Presiding Officer did not sit after lunch on that day and remained in her chambers. The 1st petitioner states that it was under those circumstances the joint memo was filed. He further states that the O.P. was dismissed on 26-7-1997. The petitioners contend that the impugned notice is without any jurisdiction or authority and that the joint memo did not give rise to any contempt. They also contend that the Family Court has no inherent power to initiate contempt proceedings, except in case of civil contempt, and that the facts of the case did not give rise to any civil contempt as there was no order of the Court which was violated by the petitioners.

3. The writ petition was presented on 31-7-1997 and when it came up on 18-8-1997, notice before admission returnable in two weeks was ordered and the 1st respondent was directed to send a report on the matter by 1-9-1997 and, pending further consideration of the matter by this Court, she was directed not to proceed further on the impugned notice dated 26-7-1997 and not to require the petitioners herein to appear pursuant to the notice.

4. The first respondent sent the report dated 1-9-1997. The Registrar (Judicial) stated that there was no covering letter accompanying the report. We find that the report was not addressed to any one and that it starts abruptly with the sentence “I want to submit the following few facts….” As to what actually happened on 3-7-1997, the 1st respondent states as follows:

“……when the matter came up for hearing both the parties filed a joint memo to the effect that they are prepared to live together. Parties were heard on the memo filed by them to ascertain whether they had voluntarily and willingly signed and presented the memo. Thereafter the matter was posted for Judgment. As both the parties filed joint memo, agreeing to live together and seeking closure of the case, the same was posted for orders on 10-7-1997. There was nothing to be heard from the Counsels as the parties did not stipulate any terms or conditions in their joint memo. The joint memo was filed by the parties directly without their Counsels. At that juncture there was nothing remaining to be heard, and the Counsels had nothing to do further in the matter. It is incorrect to say that the Presiding Officer refused to give audience to the Advocates, because in that particular case the Advocates filed 13(2) Petition before the Family Court and it was allowed. In Family Court the presence of Advocate is only an amicus curiae. Further more any representation by Counsels regarding cases are not being entertained in the Chambers…… In fact I mooted the settlement and suggested the parties it is better for their future to live together instead of breaking their marital tie. One whole day I spent with the parties and reconciled the matter between them. The allegations made by the Advocates is that the Court staff advised if further hearing is required an application for reopening the case has to be filed. It is a procedure prescribed under the C.P.C., because in this matter I heard the parties who filed the joint memo and who agreed before me that they are going to live together, on that basis I closed the matter and posted the matter for Judgment to 10-7-1997. The Counsels find fault with the Presiding Officer as well as with the staff. On 3-7-1997 the work is over and after that I am attending to the work in my Chambers. The allegation that the Presiding Officer did not come on to the bench in the afternoon is also making a statement against the Officer because I am attending the work in my Chambers by dictating the steno the orders to be pronounced on that date. The Counsels cannot make irresponsible allegations, such as discourtesy by the Presiding Officer etc.

It may be a fact that Counsels represented that the matter may be taken up after lunch. However, parties themselves personally presented the memo in the morning session they were also heard, hence there was no point in keeping the matter aside for further hearing till the Counsels come in the afternoon. It is not correct that despite representation the matter was posted for orders to 10-7-1997. It was posted for orders only on account of the joint memo and representation that they want to join and live together made by the parties.”

She also states that it is her principle not to allow Advocates into chambers. She further states:

“Mere saying that I am not allowing the Advocates who are representing contesting matter before me into my Chambers amounts to discourtesy in the view of the Counsels I am helpless to say anything in the matter….

On the other hand, the Counsels themselves made allegations against the bench that I am showing discourtesy towards them…..

Chapter VI of the Law of Contempt of Court deals with Contempt against Judges, their Officers and Subordinates, redicule the Judge, or his subordinates in any manner while they act in the discharge of their duties is to belittle the seat of Justice and lower its esteem in the eyes of the General Public.

Protection to the Courts by the operation of the General and Statutory Law of Contempt is more in the interest of the General Public.

Protection to the Courts by the operation of General and Statutory Law of Contempt is more in the interest of the public in whose eyes the seat of justice is sacrosanct than in the interest of Judge. The Law of Contempt can be invoked by any Judicial Officer or any person with Judicial Power. It was held by the Supreme Court in (Asharfi Lal v. The State) = 1954 Cr.L.J. 621 in

which their Lordships held that “Pronouncement of Judgment is a state of Judicial proceedings.

……

xxxx xxxx xxxx

In the present case the petitioners represented that as their Counsel were not allowed they feel ashamed to be present in the Court this amounts to Contempt of Court.

…….In the memo they clearly stated that their Advocates did not wish to attend before the Court. This statement may create doubt in the minds of the litigant public about the Court itself….

Thus in the light of facts of the case and position of Law, I was justified in issuing the impugned notice. It is pertinent to mention that the parties have submitted letter of apology for what they wrote and what transpired in the matter.”

5. The Advocate General, like the Attorney General, being “a friend of the Court, and in some respects acts as the friend, philosopher and guide of the Court.” (P.N. Duda v. P. Shiv Shanker, , and in view of the fact that considerable statutory discretion vests in him under the Contempt of Courts Act, 1971, we requested him to assist the Court in the matter.

6. When in the course of arguments on 22-10-1997 we noticed divergence between the versions of the petitioners and the 1st respondent as regards the time of presentation of joint memo on 3-7-1997, we directed the entire records in O.P.No.104 of 1996 including docket notes and the final order passed to be produced in Court. Pursuant to that direction records in that O.P. were produced in the Court along with those in O.P.S.R. No. 1250 of 1997 being the contempt of Court proceedings arising in that O.P. The docket of the O.P. discloses that it was originally presented on 21-6-1994 and was numbered as O.P.No.241/94 on the file of the V Additional Judge, City Civil Court, Hyderabad. It was transferred to the Family Court, Hyderabad and was renumbered as O.P.No.1100/95. Thereafter, it was again transferred to Family Court, Secunderabad and once again renumbered as O.P. No. 104/96.

7. The 1st petitioner also filed an additional affidavit dated 23-10-1997. He clarified the position as follows:

“O.P. 104 of 96 was posted to 3-7-97. When the matter was called in the call work, the petitioner and the respondent in the O.P. were present and both of them jointly represented that their Advocates could not be present and that there was a compromise between the parties and the same would be reported by their Counsel and on that count the parties requested the Family Court to get the matter passed over to facilitate their Counsel to appear and report compromise. By that time, no compromise memo was prepared. Myself and the second petitioner arrived in the Court by about 1 p.m. on 3-7-97 and the parties were present and the Presiding Officer of the Family Court retired into the chambers by that time. We informed the Bench Clerk to keep the Presiding Officer of the Court informed that the parties desired to have their case closed on that day itself as they intend to resume cohabitation according to their compromise with effect from 3-7-1997. The Bench Clerk and the parties informed us that the matter was already adjourned to 10-7-97 and if necessary, for reporting the same, an appropriate application may be made and the Bench Clerk told us that the Presiding Officer was not willing to permit us to her chambers and at the same time, we were informed that if we want we have to make a representation in the open Court while the Presiding Officer of the Court comes to the Bench. It is for the purpose of making a representation, we have waited upto 4 p.m. in the evening and the Presiding Officer did not come to the Bench after Lunch though she was in the chamber. At about 4 p.m.. we have prepared a joint memo and we have given the same to the parties duly signed and the parties were requested to submit the same in the section or present the same on 10-7-97 whichever is convenient to them. Accordingly, we got the joint memo prepared and the parties have signed in our presence and thereafter we have also signed the joint memo and the same was handed over to our clients to present it in the section and the same was presented on the same day in the section.

In the report submitted by the Family Court, the Presiding Officer of the Family Court explained what had happened on 3-7-97 in para 2. According to the report, when the matter came up for hearing, both the parties filed a joint memo intimating that they were prepared to live together. Parties were stated to have been heard on the memo filed by them and the matter was thereafter posted for judgment to 10-7-97. In fact no such Memo was filed other than the one mentioned above and this is also evident from the reply given by them to the show-cause notice furnished to them. A copy of it is also enclosed to this additional affidavit for better appreciation.

After receipt of the impugned notice, we did not appear before the Family Court so far in view of the orders passed by this Hon’ble Court in the above matter, but the parties have appeared on 4-8-97 and also on 18-8-97 and the Presiding Officer appeared to have ascertained from the parties why their Counsel have not appeared and on 18-8-97 a memo was served through an Advocate by myself and the second petitioner a copy of which is also filed along with this affidavit.”

8. In the reply dated 18-8-1997 to the show cause notice dated 26-7-1997 issued by the 1st respondent, it was stated that when the O.P. was taken up on 3-7-1997 they submitted that they would be filing joint memo of compromise and requested the Family Court to pass over the matter as their Advocates were engaged in another Court and that they were coming shortly, and that the matter was then adjourned to 10-7-1997. It was further stated that their Advocates advised them to file the compromise memo in the office and accordingly they filed the joint memo in the office. They appeared on 10-7-1997 but the matter was not taken up till the evening and it was posted to 26-7-1997, and on that day it was dismissed. It was further stated in the reply that they appeared on 4-8-1997 pursuant to the show cause notice and that they were called in the evening, and that they were asked to appear on 18-8-1997. They submitted that their conduct did not interfere with the course of justice and did not have the effect of lowering the prestige of the Court and, if any such impression was created by the joint memo, they apologised and assured the Court that they had high regard for the Courts.

9. Thus it is clear from what the petitioners and respondents 2 and 3 state that the joint memo was not submitted in Court in the Forenoon of 3-7-1997 and that it was only filed in the office some time after 4 p.m. on that day. It is also clear that, according to respondents 2 and 3, when the O.P. was called in the Forenoon of 3-7-1997 during call work they represented that they had compromised the matter and that their Advocates would be filing a compromise memo, and on that basis they sought pass over of the matter. The Advocates in fact came at 1 p.m. on that day, but the first respondent already retired to her chambers as there was no work to be taken up. On the other hand, the report of the 1st respondent indicates that respondents 2 and 3 filed a joint memo into Court on 3-7-1997, and that they were heard “to ascertain whether they had voluntarily and willingly signed and presented the memo”, and thereafter the O.P. was closed and was posted for judgment or orders on 10-7-1997 as both the parties filed joint memo agreeing to live together and seeking closure of the case.

10. However, the docket of O.P.No.104 of 1996 does not disclose that on 3-7-1997 any joint memo was filed. It only shows that the matter was posted for orders on 10-7-1997. The docket also shows that on 10-7-1997 the O.P. was posted to 26-7-1997, on which date it shows that order was pronounced and the petition was dismissed, and that there should be no order as to costs. The record of the O.P. also contains memorandum filed by the respondent therein (3rd respondent herein) on 3-7-1997 bearing SR No. 1251 /97 stating as follows:

“In the interest of the future of both the parties, the respondent addressed a letter to the Inspector, Malkajgiri, requesting him to close the case in Cr. No. 181 /94, wherein the respondent herein is the defacto complainant and file a final report in the matter. The respondent herein also enclosed her notarised affidavit along with the said letter. Since the police refused to receive the same, the respondent herein sent the same by registered post acknowledgment due. The copies of the said letter, notarised affidavit and the postal receipt are filed herewith.

The respondent herein further undertakes that in the event of the police filing a charge-sheet in the matter, the respondent shall take all necessary steps to have the matter closed.”

The list of three documents filed on 3-7-1997 also bears SR. No. 1251/97. The documents are: a xerox copy of the letter dated 21-6-1997 addressed by the 3rd respondent herein to the Sub-Inspector (L & O-I) of Malkajgiri stating that she and her husband (2nd respondent herein) decided to live together and that there were no differences between them and that she was withdrawing her complaint No. 181/94, dated 24-10-1994 and requested the Sub-Inspector to close the case; the second document is a notarised affidavit given by the 3rd respondent herein to the same effect stating that Crime No. 181 /94 should be closed and final report filed accordingly; and the third document is letter dated 1-7-1997 of the 2nd petitioner herein i.e., the Counsel for the 3rd respondent herein, addressed to the Inspector, P.S. Malkajgiri to the same effect.

11. The order in the O.P. dated 26-7-1997 narrated the averments of the petition and of the counter and summarised the evidence of P.Ws.1 to 4 examined in the O.P. and in the end observed as follows:

“There is no evidence on behalf of the respondent that both parties filed a joint memo. They are going to compromise and live together. When examined both agreed to live together. Hence the petition dismissed. There shall be no order to costs.”

There is no mention of the memo filed by the respondent therein (3rd respondent herein) on 3-7-1997 (S.R.No.1250/97) in the order dated 26-7-1997 even though the record of the O.P. contains that memo along with the list of three documents referred to above filed along with that memo. On the other hand, there is an express mention in the order dated 26-7-1997 in the O.P. that there was “no evidence on behalf of the respondent that both parties filed a joint memo”.

12. In the record of O.P.S.R.No.l250/97, we find the joint memo filed by the petitioner and respondent dated 3-7-1997bearing SR No. 1250/97. On the docket of that joint memo there is an undated endorsement with the initials of the Presiding Officer as follows:

“Issue notice to both the parties and Advocates for contempt of Court. Call on 4-8-97.”

This joint memo is the original of the joint memo dated 3-7-1997 filed along with the present Writ Petition. The fact that the SR number of this joint memo is 1250/97 and bears the stamp of the Sheristadar with the date 3-74997 establishes that this was filed along with or earlier to memo filed by the 3rd respondent on 3-7-1997 which bears SR No. 1251/97 with the stamp of the Sheristadar noting the same date. As already stated by us earlier, no memo was mentioned in the docket of O.P. No. 104/96 under the date 3-7-1997, 10-7-1997 or 26-7-1997. It was also not noted that the petitioner and respondent in the O.P. were examined on any memo.

13. It is obvious that the joint memo signed by the petitioners as well as the respondents 2 and 3 herein could not have been before the 1st respondent when the O.P. was called on 3-7-1997 and adjourned to 10-7-1997 because it narrated the subsequent events. The only other memo found in the record is that of the respondent in the O.P. (3rd respondent herein) and that is not a joint memo. This establishes that the 1st respondent was not able to recapitulate correctly what happened on 3-7-1997, and that she did not refresh her memory from the record before sending the report to this Court. Otherwise she would not have expressly stated in her report as she did i.e., “Parties were heard on the memo filed by them to ascertain whether they had voluntarily and willingly signed and presented the memo”, and that “As both the parties filed joint memo, agreeing to live together and seeking closure of the case, the same was posted for orders on 10-7-1997″. She also went further and stated that “The joint memo was filed by the parties directly without their Counsels”, and that “At that juncture there was nothing remaining to be heard, and the Counsels had nothing to do further in the matter”. But, in any event, she will have to explain the observation in the order dated 26-7-1997 in O.P. No. 104/96 that “there was no evidence on behalf of the respondents that both parties filed a joint memo”. There can be no dispute that joint memo signed by the petitioners and respondents 2 and 3 herein was in fact filed on 3-7-1997 as it was given S.R.No.1250/97 earlier to S.R.No.1251/97 given to the memo filed by the 3rd respondent herein. Equally it cannot be disputed that this joint memo was filed in the office after the O.P. was already adjourned on 3-7-1997 to 10-7-1997. The joint memo was taken note of and O.P.SR No. 1250/97 was opened and notices were directed to be issued for contempt of Court to the petitioners herein – though this order is undated, notices in fact were issued on 26-7-1997 under Dis. No. 229/97. On the same day order in the O.P. was also pronounced. If the joint memo could be taken note of for the purpose of O.P.SR. No. 1250/97, it will be very difficult to find a convincing explanation for not taking note of and ignoring the joint memo dated 3-7-1997 altogether in making the order in the O.P.

14. We only venture to observe that the 1st respondent ought to have been very careful in sending the report pursuant to the directions of this Court considering the seriousness of the matter and the consequences flowing from making incorrect and unverified statements. It is not necessary for us to go further as it is not wholly relevant for the purposes of disposal of the present writ petition. We find it apt to observe here what the Supreme Court held in Afzal v. State of Haryana, that “a false or a misleading or a wrong statement deliberately and wilfully made by a party to the proceedings to obtain a favourable order would prejudice or interfere with the due course of judicial proceedings”: in other words, it would amount to contempt.

15. With that factual backdrop, we now come to the meat of the matter. The learned Counsel for the petitioners contends firstly that the mere mention in the joint memo that the petitioners “declined to appear for discourtesy shown by Presiding Officer to them” does not amount to contempt of Court, and secondly that the Family Court is not competent to initiate or take up contempt proceedings against the petitioners on the facts of the case. On the first question the learned Counsel for the petitioners contends that no disrespect was meant to the Presiding Officer of the Family Court, and that the manner in which the Presiding Officer of the Family Court treated them by making them wait from 1 p.m. on 3-7-1997 refusing to meet them and not coming on to the Bench upset them and they cannot be faulted for taking umbrage, and that they could express the same in polite language as they did. He points out that after all Advocates are Officers of Court. He also points out to Section 13 of the Family Courts Act, 1984 which provides as follows:

“13. Right to legal representation:- Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner:

Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.”

Rule 9 of the Andhra Pradesh Family Courts Rules, 1995 also provides that proceedings before the Court shall be taken up in the presence of the parties, and a legal practitioner shall be allowed to appear only as amicus curiae, if the Court finds it necessary in the interests of Justice. The learned Counsel also points to Section 9 of that Act, sub-section (1) of which, provides that “in every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.” He submits that the Family Court is not hide-bound by any particular procedure, and that when the petitioners and respondents 2 and 3 represented that a compromise was being effected between the parties and that they agreed to live together and were desirous of having the O.P. closed, the Presiding Officer of the Family Court ought to have made herself available to dispose of the matter without making the parties come again to the Court when she was informed that the parties and their Counsel were waiting in the Court well within the Court hours. In fact Rule 3(d) of the Rules referred to above provides that “the Family Court may hold its sittings outside normal working hours and on holidays if the Judge of the said Court considers it necessary to do so in the circumstances of the case, with the prior notice to parties, and to such other person or persons as the Judge may consider it necessary.” The learned Counsel submits that all these provisions are to facilitate early disposal of matters; more so, when the parties have arrived at a settlement. On the second question, the learned Counsel submits that the contempt involved, even on the reckoning of the 1st respondent, was not civil contempt; if at all, it was a criminal contempt because what is alleged in the report of the 1st respondent is that the Counsel made allegations against the Bench that she was showing discourtesy towards them, and that “they (petitioners herein) feel ashamed to be present in the Court this amounts to Contempt of Court”. The learned Counsel submits that the stand taken by the Presiding Officer that “any person discharging judicial duties or any Tribunal which is entrusted with judicial functions having the power to initiate contempt of proceedings” is not sustainable in law.

16. The learned Advocate General supports the learned Counsel for the petitioners. He drew our attention to Section 2(c) of the Contempt of Courts Act, 1971 (‘the Act’ for short), which defines criminal contempt, and submits that the mere mention by the petitioners in the joint memo that “they declined to appear for discourtesy shown by Presiding Officer to them” did not amount to criminal contempt as defined under that provision. It did not scandalise or lower the authority of the Court or prejudice or interfere with the due course of any judicial proceeding or interfere or obstruct the administration of justice in any manner or tend to do any of those. He also drew our attention to Section 13 of the Act which is as follows:

“13. Contempts not punishable in certain cases:- Notwithstanding anything contained in any law for the time being in force, no Court shall impose a sentence under this Act for a contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.”

17. It has been observed by the Supreme Court in Jasivant Singh v. Virender Singh, 1995 Supp. (1) SCC 384 that an Advocate has no wider protection than a layman when he commits an act which amounts to contempt of Court, and that Judges cannot be intimidated to seek favourable orders, and that an Advocate cannot use language, either in the pleadings or during arguments, which is either intemperate or unparliamentary, and that “these safeguards are not for the protection of any Judge individually but are essential for maintaining the dignity and decorum of the Courts and for upholding the majesty of law”. Having said so, the Supreme Court further observed as follows:

“Judges and Courts are not unduly sensitive or touchy to fair and reasonable criticism of their judgments. Fair comments, even if, outspoken, but made without any malice or attempting to impair the administration of justice and made in good faith, in proper language, do not attract any punishment for contempt of Court. However, when from the criticism a deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring the administration of justice into disrepute the Courts must bestir themselves to uphold their dignity and the majesty of law.”

In K.A. Mohammed Ali v. C.N. Prasannan, 1994 Supp. (3) SCC 509 the facts were that the Advocate (appellant before the Supreme Court) “had at a certain juncture raised the pitch of his voice unusually high to the annoyance of the learned Magistrate, and besides, he had used derogatory language against him”, and that after the incident he got certain posters published and circulated and caused a demonstration staged which got reported to the High Court whereupon contempt proceedings were initiated against him. The Supreme Court observed:

“We are of the view that when the appellant was warned of his unruly behaviour, he should have stopped and gone in tune with the learned Magistrate and not retained a defiant and aggressive posture. It should be borne in mind by one and all that lawyers were created for the Courts, not Courts for the lawyers. The happy combination, whenever an aberration occurs, should in immediacy be restored and put to an even keel.”

Sawant, J., speaking for the three Judges Bench in Vinay Chandra Mishra’s case, observed:

“Normally, no Judge takes action for in facie curiae contempt against the lawyer unless he is impelled to do so. It is not the heat generated in the arguments but the language used, the tone and the manner in which it is expressed and the intention behind using it which determine whether it was calculated to insult, show disrespect, to overbear and overawe the Court and to threaten and obstruct the course of justice.”

The learned Judge further observed:

“When the Court exercises this power (of punishing for contempt), it does not do so to vindicate the dignity and honour of the individual Judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the Court by creating distrust in its working, the edifice of the judicial system gets eroded.”

18. In the light of these observations of the Supreme Court, we find that what was stated in the joint memo filed by the petitioner and respondent in the O.P. dated 3-7-1997, which was also signed by the petitioners herein, expressing that discourtesy was shown to the petitioners by the Presiding Officer, is not such a statement as would warrant initiation of contempt proceedings. There is no doubt that it could have been simply stated in the joint memo that as the parties were compromising and decided to live together it was no longer necessary for Advocates to appear. But considering that the Advocates appearing in a Family Court are to be treated as amicus curiae (Section 13), and that Advocates truly are also officers of Court, it would have been in the fitness of things if the 1st respondent herein i.e., the Presiding Officer of the Family Court, informed the petitioners that it was inconvenient or not possible for her to spare time as she was engaged in some pressing and urgent work, if it was so; if that was not so, she could have sat in the Court and disposed of the matter on the basis of the compromise or settlement arrived at – this would not have taken much time and this would have been in tune with the object and intendment of Section 9 of that Act. As observed by the Supreme Court in T.V. Choudary’s case, , “the majesty of law and the dignity of Courts cannot be maintained unless there is mutual respect between the Bench and the Bar……” The Bar plays a very important role in the justice delivery system. For the even functioning of the Court there should be harmony between the Bench and the Bar because both are partners in the quest for justice. For the maintenance of this harmony, Judges should nip in the bud avoidable discord between the Bench and the Bar. A pre-requisite for this is that the Bar also is required to conduct itself in a responsible manner. A member of the Bar must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute (Lalit Mohan Das v. Advocate General, Orissa, . In Vinay Chandra Mishra’s case (supra), Sawant, J., said:

“Brazenness is not outspokenness and arrogance is not fearlessness. Use of intemperate language is not assertion of right nor is a threat an argument. Humility is not servility and courtesy and politeness are not lack of dignity. Self-restraint and respectful attitude towards the Court, presentation of correct facts and law with a balanced mind and without overstatement, suppression, distortion or embellishment are requisites of good advocacy. A lawyer has to be a gentleman first. His most valuable asset is the respect and goodwill he enjoys among his colleagues and in the Court.”

We have also to note the caution expressed by Chief Justice Gajendragadkar, speaking for six (including himself) of the seven learned Judges, in Special Reference No. 1 of 1964 under Article 143, :

“Before we part with this topic, we would like to refer to one aspect of the question relating to the exercise of power to punish for contempt. So far as the Courts are concerned, Judges always keep in mind the warning addressed to them by Lord Atkin in Andre Paul v. Attorney-General of Trinidad, AIR 1936 PC 141. Said Lord Atkin, “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out-spoken comments of ordinary men.” We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the Court, but may sometimes affect it adversely. “Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”

The fifth normative guideline for the Judges to observe in this jurisdiction mentioned by Krishna Iyer, J., in S. Mirtgaokar’s case, AIR 1978 SC 727 at 737 (Para 32) “is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude.”

19. In the present case, we do not find that the mention in the joint memo of the discourtesy shown by the Presiding Officer to the petitioners is such a statement as should lead to initiation of contempt proceedings.

20. But the core question in the present Writ Petition is whether the 1st respondent can initiate contempt proceedings on her own. Section 15 of the Act is a clear answer in the negative. It deals with cognizance of criminal contempt in cases other than those covered by Section 14 i.e., in facie curiae contempt of the Supreme Court and a High Court. Sub-section (2) of Section 15 of the Act provides as follows:

“In the case of any criminal contempt of a Subordinate Court, the High Court may take action on a reference made to it by the Subordinate Court or on a motion made by the Advocate-General or, in relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.”

Rule 5(d) of the Contempt of Court Rules, 1980 provides that the High Court may take cognizance of contempt and take action “on a reference made to it by a Court subordinate to it in the case of any contempt of such Subordinate Court or on a motion made by the Advocate General of the State of Andhra Pradesh in that behalf.” The High Court may also do so suo motn or on a petition made by the Advocate General of the State of Andhra Pradesh. The High Court may also do so on a petition made by any person subject to that, in the case of criminal contempt, it should be with the consent in writing of the Advocate General of the State of Andhra Pradesh. Rule 9 of these Rules is important and it provides as follows:

“9. (1) All references made by the Subordinate Courts under Rule 5(d) shall contain the particulars as mentioned in Rule 7(l)(a) and (b) so far applicable.

(2) The Subordinate Courts shall transmit all relevant documents or true copies thereof duly attested along with the letter of reference.

(3) All references made under Rule 5(d) by the Subordinate Courts other than the Courts of District and Sessions Judges shall be forwarded through the respective District and Sessions Judges for onward transmission of the same to the High Court expeditiously with their report.

(4) Before making reference, the Subordinate Courts shall hold a preliminary enquiry by issuing a show cause notice to the Contemner and after hearing him, the said Court shall write a concise reasoned order of reference about the alleged contempt.”

From these provisions it is clear that Subordinate Courts can only make a reference to the High Court in the case of criminal contempt after issuing a show cause notice to the contemner and after hearing him by holding a preliminary enquiry; after the enquiry, the Subordinate Court making the reference is required to make a reasoned order of reference about the alleged contempt. The question as to when contempt proceedings commence when a reference is made by a Subordinate Court is answered by the Supreme Court in Baradakanta v. Misra C.J., Orissa H.C., as follows:

“But what happens when a motion is made by the Advocate General or any other person with the consent in writing of the Advocate General or a reference is made by a Subordinate Court. Does the Court enter upon the jurisdiction to punish for contempt and act in exercise of it when it considers such motion or reference for the purpose of deciding whether it should initiate a proceeding for contempt? We do not think so. The motion or reference is only for the purpose of drawing the attention of the Court to the contempt alleged to have been committed and it is for the Court, on a consideration of such motion or reference, to decide, in exercise of its discretion, whether or not to initiate a proceeding for contempt. The Court may decline to take cognizance and to initiate a proceeding for contempt either because in its opinion no contempt prima facie appears to have been committed or because, even if there is prima facie contempt, it is not a fit case in which action should be taken against the alleged contemner. The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemner, the Court, though moved by motion or reference, may in its discretion, decline to exercise its jurisdiction for contempt. It is only when the Court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference.”

21. We have, therefore, no doubt in our minds that the impugned notice issued to the petitioners is without jurisdiction because the Family Court cannot initiate proceedings for criminal contempt. It can only issue show cause notice under sub-rule (4) of Rule 9 referred to above for the purpose of holding a preliminary enquiry for making an order of reference under sub-section (2) of Section 15 of the Act. A Subordinate Court cannot by itself initiate contempt proceedings.

22. This should have sufficed for allowing the Writ Petition. We have also considered whether any contempt is made out on the facts of the present case because this Court has the power to initiate contempt proceedings suo motu in exercise of its inherent power by virtue of Article 215 of the Constitution of India (Delhi Judicial Service Association v. State of Gujarat, , and also on a

motion made by the Advocate General. We do not find any such.

The Writ Petition is, therefore, allowed. No costs.

Categories: Judgement