Jasbir Kaur vs Kuljit Singh

Vinod K. Sharma, J.—The petitioner has invoked the Sections 11 and 12 of the Contempt of Courts Act for proceeding against the respondent/husband for disobeying the order dated 19.09.2003 passed by this Court in FAO No. 211 -M of 2003.

The allegations of the petitioner are, that the petitioner was married with the respondent on 03.04.1990 and on false allegations the respondent/husband filed a petition u/s 13 of the Hindu Marriage Act, 1955 (for short the Act) on 30.09.1996.

Divorce petition was allowed on 05.08.2003 and decree of divorce was passed. The petitioner filed appeal in this Court and on 19.09.2003 this Court was pleased to issue notice to show cause as to why the appeal be not admitted.

The respondent/husband was also directed to be present in court on 09.02.2004 that is the next date. An order was also passed restraining the respondent from remarrying. Appeal was admitted on 22.03.2005.

It is alleged by the petitioner that in violation of the interim order passed by this Court the respondent contracted second marriage with one Smt. Baljit Kaur, and from the wedlock Smt. Baljit Kaur gave birth to a male child. Copy of the birth certificate dated 02.09.2005 was placed on record. It was averred that the exact date of marriage could not be known to the petitioner. It was further averred that the act of remarriage amounts to contempt in view of Section 15 of the Act, which bars a party to remarry during the pendency of the appeal. Photographs were placed on record in proof of the second marriage.

It was also the case of the petitioner that in FIR No. 185 dated 19.09.1990 respondent stands convicted under sections 406/498A/120B IPC to one year RI and a fine of Rs. 5000/- (five thousand only), against which appeal was filed by the respondent, wherein a revision has been filed by the petitioner for enhancement of sentence, and also for punishing the other co-accused.

This petition was filed on 04.09.2009.

The contempt petition is contested on the pleadings that the divorce petition was accepted on 05.08.2003 and the petitioner had obtained a copy of judgment on 12.08.2003 but the appeal was not filed by annexing the copy of the judgment supplied. The petitioner, on the other hand, made an application for obtaining certified copy and filed an appeal along with said copy of the judgment without serving any notice to the answering respondent, in the appeal order dated 19.09.2003 was passed. Order was brought to the notice of the respondent on 16.10.2003 whereas the answering respondent had contracted the marriage on 15.09.2003 which was duly registered on 18.09.2003. It was pleaded that there was no violation of order passed by this Court. It was also pleaded that it is not the case of deliberate and intentional violation of the order passed by this Court. Plea was also raised, that as per the provisions of Section 28 of the Act period of limitation for filing the appeal is 30 days. In order to avail the benefit u/s 15 of the Act, it was incumbent upon the petitioner to have issued a notice upon the respondent showing that she has filed an appeal. It was further pleaded that the marriage was performed even prior to the passing of order by this Court. It was also the case that the appeal was, in fact, filed on 18.09.2003 and was listed on 19.09.2003. The appeal was, therefore, said to have been filed beyond the period of 30 days after the passing of the judgment and decree. It is further asserted by the respondent that before remarrying, the answering respondent had inspected the record of the case with a view to get information as to when the petitioner obtained a certified copy of the judgment dated 05.08.2003. From the record, it was revealed that the petitioner applied for certified copy of the judgment on 05.08.2003 which was received by her on 12.08.2003, but as no notice was received by the respondent, therefore, he bona fide believed that the petitioner was satisfied with the decree of divorce and had not challenged the same. Allegation that the petition was filed on false allegations was also made. It was also pleaded that the attempts were made for settlement before the Lok Adalat also. Other allegations were also denied.

Along with the reply the copy of the judgment passed in criminal appeal is also filed showing that the respondent was acquitted of the charge by the appellate court.

Keeping in view the fact that a stand that the copy of the stay was not served upon the respondent, the matter was referred to Division Bench for authoritative opinion on the following questions of law:-

Whether performance of a marriage after filing of appeal, an unlawful act of Section 15 of the Hindu Marriage Act, 1955, amounts to willful disobedience to the "other process of the Court" disclosing a civil contempt within the meaning of Section 2(b) of the Act ?

Whether the act of marriage by the respondent after filing of the appeal interferes or obstructs the administration of justice and thereby amounts to a criminal contempt within the meaning of Section 2(c) of the Act ?

First question was answered in affirmative, whereas the second question was answered in the negative.

Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioner vehemently contended that in view of the judgment of Hon''ble Division Bench it is proved that the respondent is guilty of contempt, as he has admitted the factum of his remarriage in violation of section 15 of the Act, which reads as under:-

Divorced persons when may marry again. When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without any appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.

The contention of the learned senior counsel for the petitioner was that time for appeal as referred to in section 15 of the Act is to be taken not from the date of passing of decree, but it is to be seen whether the appeal filed is within time after deducting the period spent in obtaining certified copy of the order. The contention of the Learned Counsel for the petitioner, therefore, was that the respondent deserves to be punished in view of his admission that he contracted second marriage during the pendency of the appeal.

Mr. G.S. Bhatia. Learned Counsel appearing on behalf of the respondent on the other hand contends that the period of 30 days is to be counted from the date of decree or order and not by giving benefit of period spent in obtaining the certified copy. In support of this contention Learned Counsel for the respondent placed reliance on the judgment of Division Bench of this Court in the case of Surjit Kaur Vs. Tarsem Singh, wherein Hon''ble Division Bench was pleased to lay down as under:-

In the application under S.5 of the Limitation Act, prayer for condonation of delay has been made on two grounds, firstly, that u/s 23(4) of the Hindu Marriage Act, 1955, as amended (hereinafter to be called the Act) the appellant was entitled to a copy of the decree free of cost and as the same was not supplied, that was a sufficient cause for condonation of delay, and, secondly, that on 26.02.1977 when final arguments were heard in the lower appellate Court, the appellant herself was not present in Court and she had instructed her maternal uncle to be present at the hearing. The latter, however, though present in Court, did not inform her of the result on the said date. After waiting for about three weeks, she contacted her lawyer at Hoshiarpur who was not available. Then she went to her maternal uncle in the village and along with him went to Hoshiarpur, contacted the lawyer, and learnt from him that the case had been decided against her. After that, an application for obtaining the copy of the judgment was made on 01.04.1977. She received the copy through her counsel on 27.04.1977 by registered post and thereafter filed the appeal on 20.05.1977. During arguments, the Learned Counsel did not lay emphasis on the second ground. However, he stressed the first ground and contended that under sub-sec.(4) of Sect6ion 23 of the Act the appellant was entitled to a copy of the decree free of costs, the said provision is reproduced below:-

23.(1)(3). ....

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties." As the court passing the decree of divorce did not perform its duty and did not furnish a copy of the decree free of cost to the appellant, it is argued that till the time this mandatory provision was not complied with, limitation will not begin to run against the appellant. The argument on the face of it is fantastic and needs to serious consideration. According to this provision, any party to the decree could go to the Court and make a prayer that a copy of the decree be furnished to him or her free of cost. However, if the parry concerned does not ask for the copy, non-furnishing of the same free of cost by the Court does not save him or her from the applicability of the law of limitation prescribed for filing the appeal. The right to appeal and the period of limitation within which this right can be exercised is provided u/s 28 of the Act, and according to sub-sec.(4) of that section, every appeal shall be preferred within a period of thirty days from the date of the decree or order. If the purpose of sub-sec.(4) of Section 28 of the Act was to stop the time from running in case copy of the decree was not supplied free of cost or till the same was not supplied, the Legislature would have expressly provided the same in this subsection. In the present case the appellant did not feel the necessity of approaching the trial Court for getting copy of the judgment or decree free of cost. On the other hand, she applied for a copy and obtained the same on payment of necessary charges. Though the copy of the judgment was ready on 16.04.1977, she was not prompt and did not think it fit to take delivery of the same after its preparation for about a week. That apart, the appeal was still filed more than three weeks after on 20.05.1977. For this delay there is absolutely no explanation or justification for condoning the same. When the Registry of this Court brought to the notice of the Learned Counsel for the appellant that it was essential to annex certified copy of the decree with the memo of appeal, the same was not filed till 29.06.1977 without any plausible explanation. In these circumstances, no case whatsoever is made out for condonation of extraordinary delay in filing the appeal in accordance with law. Consequently the application (CM No. l563-CII of 1977) for condonation of delay is rejected, with the result that the appeal stands dismissed as time-barred. There will, however, be no order as to costs. C.M. No. 2099-C-Il of 1977 stands automatically disposed of.

The contention of the Learned Counsel for the respondent, therefore, was that this contempt petition was not competent as admittedly the appeal was not filed within time from the date of passing of the decree and thus, there was no violation of the provisions of Section 15 of the Act. This contention of Learned Counsel for the respondent cannot be accepted. The words used in section 15 of the Act are "the time for appealing has expired, without any appeal having been presented". This would mean that appeal filed in time after deducting period spent in obtaining copy is also to be considered within time. Thus, appeal filed by the petitioner was within time prescribed. The judgment of Hon''ble Division Bench in case of Smt. Surjit Kaur v. Tarsem Singh (supra) thus has no application to the facts of the case.

Learned Counsel for the respondent, further contended that second question has been answered in negative and therefore, the act of the respondent in marrying during the pendency of appeal did not amount to criminal contempt meaning thereby that no action is called for on the contempt petition. It is also the contention of the Learned Counsel for the respondent that there is no violation of the order passed by this Court in as much as that the order of stay was not served on the petitioner till October 15, 2003 whereas he has already married before the stay order was served.

However, no action is called for in this contempt as the petition filed on the face of it is barred by limitation as the limitation prescribed for initiating contempt proceeding is one year. This petition has been field after the expiry of period of limitation. The stand of the learned senior counsel for the petitioner that this Court can invoke provisions of Article 215 of the Constitution of India to punish the respondent, cannot be accepted in view of the fact that this Court has dismissed the appeal filed by the petitioner against the judgment and decree of divorce.

Conswquently, this contempt petition is dismissed and rule is discharged.