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IN THE HIGH COURT OF BOMBAY
Amita B Devnani
Versus
Bhagwan H. Devnani
Decided on, MARCH 29, 2006
Contempt of Courts Act, 1971 -Sections 2 and 12 Family Courts Act, 1984, Section 18 Wilful disobedience of Family Court order Maintenance not paid, accumulated more than four lacs Alternate remedy under Section 18 would be a hyper technical view Matter involved restoration of faith in judiciary Time granted as last opportunity to pay all arrears of maintenance. From the averments made in the contempt petition it is more than clear that the respondent No. 1 had the means to comply with the order of maintenance. If it is so, the inevitable conclusion is that the respondent No. 1 is guilty of wilful disobedience of the order passed by the family court. On this finding now to examine the quantum of sentence to be imposed on the respondent No. 1. At this stage the respondent No. 1 was asked to step into the witness box. He was told that a finding of guilt is against him and intended to proceed to punish him under the provisions of the Contempt of Courts Act, 1971, for which he may offer his say on the point of sentence. As the respondent No. 1 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, conversed in the language known to him i.e. Hindi. The respondent No. 1 in the first place requested 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. 1 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 and if he does that the Court may take a lenient view of the matter. In response, the respondent No. 1 after giving some thought has volunteered to pay the entire amount which is payable under the order 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 inc reased to 2 months period to discharge the entire liability. Eventually, the respondent No. 1 has agreed and has given undertaking to this Court that he will pay the entire amount within two months. Now, the respondent No. 1 said that he needs 2 and half months time to deposit the entire amount. Here the submission of the petitioner that the petitioner has also claimed interest for the default period in this petition. However, keeping the said remedy of the petitioner open the respondent No. 1 has now shown willingness to pay the entire amount in question arising under the order.
The acts of commission and omission of the respondent No. 1 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, no hesitation in imposing maximum punishment of six months of civil imprisonment and fine of Rs. 2000/-. However, as the respondent No. 1 has shown willingness to purge the contempt and has personally given assurance to the Court to respect the order of maintenance in future regularly, pass the following order :
The respondent No. 1 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/-.
A. M. KHANWILKAR J.
( 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 no. l, 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 l8 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 l8 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 vs State of Karnataka and ors, AIR l982 karnataka l82. 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
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