1999 Supreme(Guj) 257

Gujarat High Court
Judgename :J.R.Vora, SHARAD D.DAVE
LOPABEN PATEL - Appellant
Versus
HITENDRA RAMBHAI PATEL - Respondent
MISC.CIV.APPLN. 2057 of 1998
Decided On : 05/12/1999

Headnote:(a) Contempt of Courts (Gujarat High Court) Rules, 1984 - Rule 7 - Verification procedure - Compliance mandatory - Court however emphasised that on the facts and in the circumstances of the case it would be highly improper to dismiss the motion of contempt on this hyper technical view alone.

       The Court in the most respectful agreement with the say contained in aforementioned decisions that the strict compliance would be necessary so far as the affidavit and verification thereof are concerned. But looking to the affidavit on record in the present proceedings, in our opinion it would be unsafe to throw out the petition on this technicality. Court should not be understood of saying that we are not in agreement with the above said principle laid down by various decisions referred to above which are binding to us. But Court would like to emphasize that on the facts and in the circumstances of the case and especially looking to the averments made in the affidavit verified by the petitioner wife, and also in the affidavit filed and verified by the respondent, it would be highly improper to dismiss the motion of contempt on this count alone. It, on the facts of the case would amount to nothing but a hyper technical view. Court would say that the principle enunciated therein is not attracted to the peculiar facts and circumstances of the case on hand.

       [Paras 18]

       A careful reading of the affidavits filed by the parties would go to show that the wifes narration of simple facts regarding factum of the marriage, the orders of the maintenance pendentilite and the ultimate upward modification in amount etc., have not been controverted by the respondent husband. When the attention is centralised on the say of the Supreme Court in case of AKK Nambiar (Supra), one is made aware of crystallised concept of the importance of verification which is to test the genuineness and authenticity of allegations and also to make the deponent responsible for the allegations. By seeing the verification the Court would find out as to whether it would be safe to act on the affidavit which has been adduced as the evidence. Applying the above said test, merely because the wife in the affidavit/verification has said that what is stated in paragraph Nos. 1 to 8 is true to the best of her knowledge and belief and what is stated in paragraph Nos. 9 to 13 are legal grounds, in our opinion therefore the petition moved by the petitioner wife does not deserve to be thrown out. This say of ours is based, we may repeat, on the facts of the case and the averments made in the petition which have remained uncontroverted by the respondent husband and that, the averments are nothing but simple factual narration regarding the solemnisation of marriage, desertion, filing of the petition, awarding of maintenance pendentilite and the upward modification therein. We, therefore, are not inclined to accept the contention coming from the Ld. counsel for the respondent husband that because on this count alone the motion of contempt requires to be discarded. We therefore are of the opinion that, this contention coming from the Ld. counsel for the respondent husband deserves a rejection on the facts and in the circumstances of the case.

       [Paras 21]

       (b) Contempt of Courts Act, 1971 - Sec. 20 - Limitation for actions for contempt - Period of one year prescribed under - Nature of - Well settled principle in this respect is that what provision prescribes under is not the period of limitation but it is the condition precedent to the exercise of Courts power under the Act - Besides period of one year will start not from the date of issuance of rule but on the date on which Court shall be passing the first orders on the proceedings by making necessary application of judicial mind - In the case first order for the issuance of notice came to be passed on September 23, 1998 which is well within the period of one year - Considering the order it shall appear that orders are in the nature of imposing recurring obligation on the part of respondent husband till proceedings are decided by Trial Court - No reason to hold that proceedings stood barred under Sec. 20 of the Act.

       It is not disputed before this Court that though Sec. 20 has been captioned as Limitation for actions for contempt it does not provide for a period of limitation as understood in Limitation Law Parlance, but puts an express bar on the initiation of proceedings of contempt after expiry of a period of one year from the date on which the contempt is alleged to have been committed. There are the pronouncements of different Courts on this aspect. The well settled principle in this respect has been reiterated in the pronouncement of this Court in case of Dineshbhai A Parikh, Petitioner vs. Kripalu Co-operative Housing Society, Nagarvel, Ahmedabad & Ors. Respondents. It has been said that what Sec. 20 of the Contempt of Courts Act, 1971 provides is not the period of limitation as it is ordinarily understood but it is the condition precedent to the exercised of Courts power under that Act.

       [Paras 24]

       The Ld. counsel for the petitioner wife urges that the initiation takes place not on the date of issuance of the rule but on the date on which the Court shall be passing the first Orders on the proceedings by making the necessary application of the judicial mind. In support of this contention reliance is being placed by Ld. counsel Mr. Shah on a Bench decision of this Court in Girishchandra R. Bhatt & Anr. vs. Dineshbhai N. Sanghvi, Principal, Sanghvi Primary School & Ors., 37(1) GLR pg. 812. In para-41 of this decision it has been made clear that issuance of notice cannot be said to be without the application of mind and it amounts to the initiation of the proceedings. By saying so this pronouncement of this Court says that the date of the notice would be the only relevant date for the purpose of examining the question as to whether the proceedings would be barred under Sec. 20 of the Contempt of Courts Act, 1971. While coming to this conclusion the Bench decision has preferred to refer the pronouncement of this Court in case of Dineshbhai A. Parikh vs. Kripalu Co-operative Housing Society etc., AIR 1980 (Gujarat) 194. It has been said in that decision that, it is the application of mind by the Court which amounts to the initiation of proceedings within the meaning of Sec. 20 of the Contempt of Courts Act, 1971.

       [Paras 26]

       As detailed a period of one year would be over on October 10, 1998, but the first orders for the issuance of the notice came to be passed on September 23, 1998. Therefore in our opinion when the date of issuance of the orders for notice is well within the period of one year, it cannot be said that there is a bar being imposed by Sec. 20 of the Contempt of Courts Act, 1971.

       [Paras 27]

       In our opinion the contempt proceedings can be and should be said to have been initiated on the date on which the issuance of the notice came to be ordered by us, namely September 23, 1998. In view of this position it cannot be said that the proceedings are barred under Sec. 20 of the Act of 1971. Even otherwise looking to the concept of the continuous wrong and the nature of the orders, the contentions in this respect coming from the respondent husband cannot be accepted.

       [Paras 32]

       (c) Contempt of Courts Act, 1971 - Secs. 2(b) & 13 - Hindu Marriage Act, 1955 - Sec. 28A - Contention that when the alternative efficacious remedy under Act, 1955 is available to petitioner wife her petitions under contempt of Court for non payment of maintenance not maintainable - Decision of this Court in Girishchandra R. Bhatt & Anr., provides a clear answer to it - Merely because the order passed is executable it does not take out the case of petitioner from the purview of contempt.

       The precise contention coming from the Ld. counsel is that, when the above said orders could be executed by the petitioner wife, she cannot be permitted to come before us invoking the Contempt Jurisdiction of this Court. The decision of this Court in Girishchondra R. Bhatt & Anr. (Supra) to which we have made reference earlier requires to be taken up for the consideration and decision of this aspect of the matter also. At para-40 of the judgment the Bench decision says that simply because the order passed by the Tribunal is executable, it does not take out the case of the petitioner from the purview of contempt, if it can be so held in facts and circumstances of the case. This decision therefore provides a clear answer to the contention being raised by Ld. counsel for the respondent husband.

       [Para 33]

       Ld. counsel draws our attention to a Bombay High Court decision pronounced by a Ld. Single Judge in Sarladevi Bharatkumar Rungta, Petitioner vs. Bharatkumar Shivprasad Rungta & Anr. Respondents, 1988 CrLJ pg. 558. This decision while examining the very same question makes it clear that when there was the order directing the husband to pay the maintenance pendentilite and when there was a wilful disobedience on the part of the husband, contempt proceedings can be taken against the husband and the existence of the remedy of execution for recovery of the maintenance is no bar. This decision takes in to consideration, the provisions contained under Sec. 20 of the Contempt of Courts Act, 1971 and Sec. 24-A of the Hindu Marriage Act, 1955.

       [Para 34]

       (d) Contempt of Courts Act, 1971 - Secs. 2(b) & 13 - Contempt of Court - Wilful or deliberate disobedience of the Court orders must be established - Plea of inability on the part of the respondent husband has been examined by Trial Court & its finding against him has been confirmed in appellate proceeding by Single Judge of the Court - Contention of his humble economic position is therefore not acceptable - Despite the Court order respondent has not cared to pay the maintenance pendente lite & is raising technical pleas - In the opinion of the Court facts & circumstances of the case clearly establish that conduct of respondent in not complying the Court order amount to contempt of Court of a nature which substantially interfers the due process of justice - Court sentenced respondent husband to simple imprisonment for a period of two months & to a fine of Rs. 2,000 in default of payment to further imprisonment for one week - Court also made some liberal and lenient orders with regard compliance of orders & gave respondent 2 months time for compliance.

       So far as the inability on the part of the respondent husband to make the payment of the amounts for the wife and the minor daughter on the ground of his extreme humble financial position is concerned, we understand that the said stand has been negatived both under the orders of the Trial Court and under the orders of the Ld. Single Judge. It should not be over looked that, the Appeal From Order filed by the respondent husband came to be dismissed, while the Appeal From Order filed by the petitioner wife came to be allowed in part and there has been an upward modification in the amounts both qua the petitioner wife and minor daughter. Ld. Single Judge has observed everything which was necessary in this respect at para- 8 of the judgment. Ld. Single Judge was pleased to observe while agreeing with the finding of fact rendered by the Trial Court that, the respondent husband resides with his parents and brother at Ghatkopar in Mumbai and is running a family business. This finding of fact arrived at by the Ld. Trial Judge and confirmed in the appellate proceedings by the Ld. Single Judge would go to show that the contention coming from the respondent husband through the Ld. counsel, regarding his humble economic position which puts him out of the contempt criteria can not be accepted by us.

       [Paras 38]

       Despite the orders of this Court, the respondent husband has not cared to pay the maintenance pendentelite, and is before us raising the technical contentions and as a last resort, his inability to pay the amount in question on the basis of his feeble financial position. Needless it is to be emphasized that his contention regarding his feeble financial position has not been accepted by this Court, but on the contrary, there has been an upward modification in the maintenance amount, both for the wife and the daughter. The non payment of the amount in question, in our opinion, not only amounts to the contempt but the contempt in our opinion is of such a nature, that it substantially interferes with the due course of justice.

       [Para 41]

       Any how, with a view to furnish the last opportunity to the respondent husband, we say that this part of the orders awarding sentence to the respondent husband shall stand in abeyance for a period of two months hereof, during which, it shall be open for the respondent husband to pay or deposit before the Trial Court the amount in question with a view to purge of the contempt. If this is done, it shall be open for the respondent husband to come before this Court and to pray for the deletion of these orders imposing sentence upon him. Taking a more liberal and lenient view, we also say that, if a substantial compliance with the orders in question is made by the respondent husband during this period, then also he will be at the liberty to come before this Court and to say on affidavit that; there has been a substantial compliance with the orders in question and that he would fulfill his obligation to purge out the contempt in a near future. If such a say comes from the Respondent husband upon an affidavit coupled with the undertaking, his request for some time to purge the contempt shall be considered. Otherwise the Registry is directed to issue a non bailable warrant against the Respondent husband after a period of two months.

       [Para 44]