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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.

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