1992 Supreme(Guj) 229
Gujarat High Court
Judgename :K.J.VAIDYA, S.M.SONI
SHILPA BANSILAL SHAH - Appellant
Versus
BANSILAL K.SHAH - Respondent
MISC.CIV.APPLN. 160 of 1992
Decided On : 09/08/1992
Headnote:
Constitution of India – Article 21 –Hindu adoption and Maintenance Act, 1956 – Section 20 – Criminal Procedure Code, 1973 – Section 125 – Order XXXII, Rule 2 –Contempt of Courts Act, 1971 – Claim of maintenance - Petitioner many years back and have in all five children out of their lawful wedlock, that is, four daughters and one son, out of which, two daughters came to be married after the separation – As misfortune would have been and her minor children allegedly came to be deserted by the respondent and under the circumstances, they were constrained to initiate maintenance proceedings under Sec. 125 of Code of Criminal Procedure, 1973, the same being Misc. Criminal application No. 31 of 1984, before the learned Magistrate wherein the respondent was directed to pay an amount of each to two children every month. In course of time, on petitioner attending her majority by virtue of an order passed in maintenance granted to her earlier came to be discontinued – It is case of the petitioner that she is aged 19 and has completed her graduation with the help and assistance from where she has taken loan for her further studies and which she has to repay – Under severe financial compulsion to maintain herself on the one hand and to meet with expenses for her further studies on the other hand – Held, Question as to whether the respondent has committed Contempt of Court by not complying with impugned ad interim award of maintenance passed by the City Civil Court and if yes what should be the nature of sentence which can adequately meet with ends of justice learned Counsel appearing for petitioner highlighting certain circumstances appearing on record submitted that despite fact that respondent is the father, a highly placed and highly salaried officer he not only has deliberately not discharged his duty towards petitioner who is of marriageable age, but in the process, he has flouted the ad interim award passed by the Court of petitioner Joshi further submitted that though interim award in question came to be passed as long back as and yet for these long two years, the same not been deliberately complied with – It was neither the case of respondent that he was not getting his salary during the relevant time, nor that he was not knowing about the impugned ad interim award of maintenance passed against him. Mr. Joshi further submitted that it was only issuance of contempt notice, and further only when this Court appreciating the misery of struggling of the petitioner, directed the respondent to deposit some amount that he gradually started depositing the said arrears - till then not a single was paid to the petitioner. Mr. Joshi further submitted that taking into consideration history of the respondent, if a lenient view is taken in this matter, he may once again play tactics with ad interim award or when final award is passed, by delaying payment of monthly maintenance. Mr. Joshi further submitted that present petition for contempt came to be filed as far back as in month and it is only after about 8 months that for the first time, petitioner has been able to see colour of currency notes – Petition is allowed.
( 1 ) "whether a Court granting an ad interim or final award of maintenance to the discarded, disabled dependents, should rest itself, contended, thus far only and not further, merely stopping at the passing - of the said award, and thereafter necessarily wait for sometime to help them out to realize the amount so awarded till only, if, as and when they so approach it once again, following the second bout of the legal duel by way of execution of the impugned award either by taking-up further proceedings by way of executive and/or the Contempt proceedings ? Or "whether alternatively, following the call of humanistic approach and the speedy justice as promised under Art. 21 of the Constitution of India, the concerned Court should immediately volunteer and take upon itself the sacred duty to render easy and expeditious substantial justice by seeing that the amount awarded is immediately made available to the claimants in a manner which may not only ultimately save them from further undue harrassment of roaming about from pillar to the post, but before they ultimately getting exhausted and exasperated, start thinking and cursing that the remedy sought for was worst than their ailments and: start entertaining second thought of ever approaching the Court in future for begging the Justice?"1. 1 Aforesaid two staggering questions stare at us right in our eyes, demanding immediate answers in the overall interest of Justice to the needy claimants crying out their hearts for survival. Despite the maintenance award passed in favour by no less an agency than the Court itself, not to comply with the same is indeed something extremely serious and one of the most vexed social problem which plagues most of the maintenance claimants. Each one of us, nowadays witness this tragedy of the claimants and yet passively as if watch the same relegating the sufferers to the mercy of mechanical legal procedures, as if there is no immediate reasonable way-out. This Court accordingly appreciating the human tragedy involved and heart-burns for such ill-fated claimants and also taking the responsibility of reflecting the overall social conscience and the concern of which this Court claims to be the beholder, would like to find out, discuss and direct certain ways and means which may ultimately provide immediate helping hand of the Court extended to such claimants before their faith in the "law" and "the administration of justice"is put to test if not lost. .
( 2 ) IN order to appreciate, understand and ultimately answer the questions raised above, it is first of all necessary to have a look at the few relevant facts leading to this Contempt proceedings. 2. 1 Few relevant facts - Petitioner Miss Shilpa Shah happens to be the daughter of the respondent-Shri Bansilal K. Shah, who is Assistant Commissioner of Income Tax at Ahmedabad. As the misfortune would have been the married and family life of the parties of this proceedings have gone on rock and appears to have been ruined, without any prospects of reunion in the near future, save and except by some unexpected happy "u" turn of events taking place in their lives, reconciling the situation. The respondent-Bansilal married scat. Champaben, mother of the present petitioner many years back and have in all five children out of their lawful wedlock, that is, four daughters and one son, out of which, two daughters came to be married after the separation. As the misfortune would have been, Smt. Champaben and her minor children allegedly came to be deserted by the respondent and under the circumstances, they were constrained to initiate the maintenance proceedings under Sec. 125 of the Code of Criminal Procedure, 1973, the same being Misc. Criminal application No. 31 of 1984, before the learned Magistrate, wherein the respondent was directed to pay an amount of Rs. 400. 00 to Smt. Champaben and Rs. 100. 00 each to the two children every month. In course of time, on petitioner attending her majority on 25-9