Sarmistha Dutta (Boral) vs Suvendu Dutta

Harish Tandon, J.

Re: CPAN 1440 of 2013

The instant contempt application is filed by the wife alleging the willful and deliberate violation of order dated March 22, 2013 passed in CO 335 of 2013. The aforesaid revisional application was filed against an order No. 50 dated November 23, 2012 passed in Misc. Case No. 12 of 2010 by which an application under Section 24 of the Hindu Marriage Act, 1955 was disposed of. This Court interfered with the impugned order and modified to the extent that the husband/opposite party shall pay a monthly alimony pendente lite of Rs. 5,500/- which is inclusive of the other quantum awarded towards the maintenance in different proceedings and further directed the alleged contemnor to liquidate of the arrear alimony pendente lite in four monthly equated instalments beginning on and from July 15, 2013. Alleging that inspite of the knowledge of the said order, the alleged contemnor willfully and deliberately did not pay the alimony pendente lite as well as the arrears, the instant contempt application is taken out by the wife/petitioner.

At the time of moving the instant revisional application a doubt was raised over the maintainability of the instant contempt application as the order under Section 24 of the Hindu Marriage Act, 1955 is capable of execution under Section 28A of the said Act.

Before proceeding to deal with the points canvassed before this Court, it would be apt to quote the aforesaid provision, which runs thus:

"28A. Enforcement of decrees and orders:--

All the decrees and orders made by the Court in any proceedings under the Act shall be enforced in the like manner as the decrees and orders of the Court made in exercise of its original civil jurisdiction for the time being are in enforced."

It is, therefore, aptly clear that the decrees or orders passed in a proceeding under the Hindu Marriage Act, 1955 are executable and/or enforceable under Order 21 of the Code of Civil Procedure.

The point that arose is if an order under Section 24 of the said Act can be enforced as a decree, as an order passed by a Civil Court in its original jurisdiction, whether a person who did not act in terms of the said order can be punished under the Contempt of Courts Act.

Mr. Hironmoy Bhattacharya, the learned advocate for the petitioner relies upon a judgment of the Division Bench rendered in case of Mira Bose Vs. Santosh Kumar Bose, AIR 1973 Cal 483 : 77 CWN 378 : 77 CWN 376 in support of his contention that even if the order is capable of being enforced as a decree or order it cannot be said that the disobedience thereof shall not construe as contumacious act punishable under the Contempt of Courts Act.

He further relies upon a Coordinate Bench decision rendered in the Case of Anita Karmokar and Another Vs. Birendra Chandra Karmokar, AIR 1962 Cal 88 : 65 CWN 786 : (1962) 2 ILR (Cal) 23 for the proposition that if the Court can invoke the inherent power despite the specific provision relating to enforcement of the orders passed in the said Act, it cannot be said that the contempt application is not maintainable, which is more efficacious and comprehensive in nature.

By placing reliance upon a judgment rendered in the case of Dipak Ghosh Vs. Rina Majumdar, 97 CWN 837 , Mr. Bhattacharya would contend that the judgment rendered in case of Anita Karmokar (supra) was accepted and applied and, therefore, the Court is not denuded of power to punish the wilful act of a litigant for disobeying the order. According to him, there is no specific provision under Order 21 of the Code for executing of an order for maintenance but the same can be treated as an order of injunction or a decree for money for the purpose of an execution, by drawing an analogy that if an undertaking is filed before the Court and if the same is violated it partakes a character of an injunction and the Court shall treat the same as wilful and deliberate violation for the purpose of punishing the said litigant under Contempt of Courts Act as held by the Supreme Court in case of Noorali Babul Thanewala Vs. Sh. K.M.M. Shetty and others, AIR 1990 SC 464 : (1990) CriLJ 316 : (1989) 2 SCALE 1426 : (1990) 1 SCC 259 : (1989) 2 SCR 561 Supp .

Lastly, reliance was placed upon a judgment rendered by the Bombay High Court in the case of Sarladevi Bharatkumar Rungta Vs. Bharatkumar Shivprasad Rungta and another, (1987) 3 BomCR 642 to support his contention that the application for contempt is maintainable despite Section 28A of the Hindu Marriage Act, 1955.

Mr. Bagchi, the learned Senior Advocate for the husband/opposite party submits that if the litigant has a remedy under the Code of Civil Procedure which is of superior quality than the remedy available under the special statute, the Court shall direct the party to a better course of action as held by the Supreme Court in the case of Ghan Shyam Das Gupta and another Vs. Anant Kumar Sinha and others, AIR 1991 SC 2251 : (1991) 4 JT 43 : (1991) 2 SCALE 611 : (1991) 4 SCC 379 : (1991) 1 SCR 119(1) Supp : (1991) 2 UJ 730 . He strenuously submits that mere violation of an order does not tantamount to a contumacious act unless the said non-compliance and/or disobedience is wilful and deliberate. To buttress the aforesaid submission he placed reliance upon the judgment rendered in the case of Niaz Mohammad and others, etc. etc. Vs. State of Haryana and others, AIR 1995 SC 308 : (1994) 6 JT 260 : (1994) 4 SCALE 292 : (1994) 6 SCC 332 : (1994) 3 SCR 720 Supp : (1995) 1 UJ 124 . He thus submits that even after it is found that the contempt application is otherwise maintainable for non-compliance of an order passed by this Court, unless there is a clear averment relating to wilful and deliberate violation, the Court shall reject the said application for contempt. He thus concludes that the instant contempt application is bereft of any material and, therefore, is liable to be dismissed.

Mr. Saptangshu Basu, the learned Senior Advocate was requested to appear as Amicus Curie to assist the Court.

According to Mr. Basu, if there is a specific provision for enforcement of an order passed under Section 24 of the said Act, the Court should not entertain the contempt application as held by the Division Bench in case of Calcutta Medical Stores Vs. Stadmed Private Ltd. and Others, 81 CWN 209 Calcutta Medical Stores Vs. Stadmed Private Ltd. and Others, 81 CWN 209 .

According to him, Section 28A of the Act having brought by way of an amendment subsequent to the judgment rendered in case of Mira Basu (supra), the proposition of law laid down therein should not be the guiding factor as of this day. He thus submits that if the statute provides a remedy of execution, the Court should not ordinarily entertain, the contempt application taken out alleging the violation and/or disobedience of the said order.

What can be deciphered from the respective submissions advanced by the learned counsels is that the application under the Contempt of Courts Act alleging violation of an order passed in a proceeding under the Hindu Marriage Act, 1955 is otherwise maintainable but the Court should be slow and circumspect and be more cautious in entertaining such application.

Section 28 of the said Act, has been brought by Act 68 of 1976 to take effect from 27 May 1976 providing the enforcement of the decrees and orders made by the Court in any proceeding under the said Act in a like manner that of a decree or order made by the Court in exercise of its original civil jurisdiction.

It is no doubt true that a proceeding initiated before the Court is guided and regulated by a procedural law applicable to the said Court. Since Section 19 of the said Act mandates every petition to be presented before the district Courts, there would be no ambiguity to say that the Code of Civil Procedure is applied to such proceeding. Order 21 is a complete Code and contains a provision relating to the execution exhaustively. It is undeniable that the order passed under Section 24 of the said Act is akin to an order for payment of money and, therefore, can be executed under Order 21 Rule 30 of the Code.

Prior to the insertion of Section 28A of the Code, Section 28 as originally stood, contained an identical and similar language and provisions relating to enforceability of the decrees and orders passed in the said Act. By the amendment having brought in 1976, Section 28 of the said Act was substituted by the present provisions creating a forum for an appeal against the decrees and order passed in a proceeding under the said Act. The old Section 28 is reproduced and/or reintroduced in the form of Section 28A of the said amended Act and, therefore, it cannot be said that the ratio laid down in case of Mira Bose (supra) looses its binding efficacy because of the amendment having brought subsequent thereto. The Division Bench in the above report was considering the propriety of an order by which the adjournment sought in a proceeding for judicial separation was refused. A revisional application was filed challenging the said order and an argument was advanced whether the Court can punish a person for disobedience of an order passed in a proceeding under the said Act. In paragraph 6 thereof it is held "it is thus clear that only because an order is enforceable by a party to the action in whose favour it has been made, it cannot be said that disobedience to it cannot be contempt of Court".

No Court shall encourage or allow a party to an action to defy its order or to take the law in its own hand. Such defiance without any sufficient cause can certainly be brought within the purview of the Contempt of Courts Act but when there is a plausible defence available to the party to an action, the Court shall see whether such disobedience and/or defiance is wilful and deliberate despite having knowledge thereof. The Division Bench is categorical in their observation that despite the provision for enforcement of an order, the jurisdiction of the Court to punish a party to an action who defies the order, has not been taken away. Furthermore, Article 215 of the Constitution of India empowers the Court to punish a person for disobedience and/or violation of its order being the Court of record. The support can further be lend from the judgment of the Bombay High Court in case of Saraladevi (supra) wherein it is held:--

"Paragraph 6 - On going through the evidence referred to above, I am unable to accept the submission of the learned counsel for respondent No. 1 has not been in a position to pay the permanent alimony ordered to be paid by this Court during the pendency of first Appeal No. 479 of 1983. The statement of respondent No. 1 - husband during his examination-in-chief in the trial Court reproduced above, strongly militates against his say that he is unable to pay the alimony to the petitioner. The computation of income for the assessment year 1985-86 filed along with the affidavit of respondent No. 1 dated 24th November, 1986 shows that in that year had sold silver coins worth Rs. 29,160/-. Respondent No. 1 has not explained as to what he did with the sale proceeds of those silver coins. He could have very well paid the permanent alimony from the sale proceeds of those silver coins. He is doing business and running industries along with his father and brothers and the family appears to be sufficiently rich. The statement of the petitioner in her affidavit dated 14th of August, 1985 filed in First Appeal No. 479 of 1985 of which copy has been placed on this record shows that the Respondent No. 1 owns ornaments, cash and shares of the total value of Rs. 1,38,800/-. He is a partner of M/s. Rungha Industries dealing in cloth and yarn and the share of Respondent No. 1 in those business is 25%. As stated by me earlier, respondent No. 1 in his affidavit in reply did not controvert the averments made by the petitioner at para 9 of the petitioner regarding the financial position of respondent No. 1. Taking into consideration the evidence referred to above, I find that respondent No. 1 has sufficient means to pay permanent alimony at the rate of Rs. 750/- per month to the petitioner. He had also sufficient means to pay for the arrears of maintenance as per the order dated 20th December, 1984, passed by this Court in First Appeal No. 479 of 1983. Though he has sufficient means he has deliberately and intentionally did not make payment ordered by this Court and willfully disobeyed the orders of this Court."

In case of Ghanshyam Das Gupta (supra), the Apex Court was considering the question as to whether the High Court of Allahabad was justified in entertaining the writ-petition under Article 226 of the Constitution challenging an order of eviction passed by the Small Causes Court. It is held that the remedy provided under Article 226 of the Constitution is not intended to supersede the mode of obtaining relief before a Civil Court or to deny defences eligible in such action. An ancillary point was raised on the executability and in that perspective it is held:--

"So far the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all its aspects. The numerous rules of order XXI of the Code take care of different situations, providing effective remedies not only to judgment-debtors and decree-holders but also to claimant objectors as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court. The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other statutes, and the Judge being entrusted exclusively with administration of justice, is expected to do better. It will be, therefore, difficult to find a case where interference in writ jurisdiction for granting relief to a judgment-debtor or a claimant objector can be justified. The rules 97 to 106 of order XXI envisage questions as in the present appeal to be determined on the basis of evidence to be led by the parties and after the 1976 Amendment, the decision has been made appealable like a decree."

In case of Niaz Mohammad and Ors., the Court was making a distinction between two proceedings i.e. a proceeding under the Contempt of Courts Act alleging violation of an order and/or execution proceeding for enforcement of the said order. It is held:--

"Paragraph 9 - Section 2(b) of the Contempt of Courts Act, 1971 (hereinafter referred to as ''the Act'') defines "civil contempt" to mean "wilful disobedience to any judgment, decree, direction, order, writ or other process of a court, where the contempt consists in failure to comply with or carry out an order of a court made in favour of a party, it is a civil contempt. The person or persons in whose favour such order or direction has been made can move the court for initiating proceeding for contempt against the alleged contemner, with a view to enforce the right flowing from the order or direction in question. But such a proceeding is not like an execution proceeding under Code of Civil Procedure. The party in whose favour an order has been passed, is entitled to the benefit of such order. The court while considering the issue as to whether the alleged contemner should be punished for not having complied with and carried out the direction of the court, has to take into consideration all facts and circumstances of a particular case. That is why the framers of the Act while defining civil contempt, have said that it must be wilful disobedience to any judgment, decree, direction, order, writ or other process of a court. Before a contemner is punished for non-compliance of the direction of a court, the court must not only be satisfied about the disobedience of any judgment, decree, direction or writ but should also be satisfied that such disobedience was wilful and intentional. The civil court while executing a decree against the judgment-debtor is not concerned and bothered whether the disobedience to any judgment, or decree, was wilful. Once a decree has been passed it is the duty of the court to execute the decree whatever may be consequence thereof. But while examining the grievance of the person who has invoked the jurisdiction of the court to initiate the proceeding for contempt for disobedience of its order, before any such contemner is held guilty and punished, the court has to record a finding that such disobedience was wilful and unintentional. If from the circumstances of a particular case, brought to the notice of the court, the court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances under which it was not possible for the contemner to comply with the order, the court may not punish the alleged contemner."

It is, therefore, clear that even if the order is capable of being enforced through an execution proceeding, the contempt application is maintainable but the Court should not venture to punish a person merely on a disobedience of the said order but should embark its journey to unearth whether such disobedience is a wilful disobedience or not. To bring the disobedience within the purview of the civil contempt defined under Section 2(b) of the Contempt of Courts Act, 1971, the Court have to record the reason that the defiance of that order was wilful and intentional. The proceeding under the Contempt of Courts Act for wilful disobedience of an order or a decree which is otherwise capable of being enforced by initiating an execution proceeding is supplemental and, therefore, does not supplant an ordinary course of action. Both the proceedings stand on different pedestals having different considerations. On the one hand, it is a duty of the Court to see the enforcement of its own order irrespective of the fact whether the same is intentional or wilful by taking recourse to provision relating to execution but it would be a different when the Court is approached under the Contempt of Courts Act alleging the violation of an order which is not wilful and/or deliberate.

Even the Division Bench in the case of Calcutta Medical Stores (supra) do not lay down the ratio that the Court''s power under the Contempt of Courts Act is taken away if the order and/or a decree for which the violation is alleged, is enforceable through an execution proceeding. The Division Bench was poised with the question whether the High court should entertain an application under Section 10 of the Contempt of Courts Act, 1971 for violation of an order passed by the subordinate Court. The Division Bench held that if in all cases the High Court entertain such an application it would open a flood fate for all litigant despite the existence of Order 39 Rule 2A of the Code of Civil Procedure. The Division Bench held that a litigant should not be allowed to bypass the substantive provision and take an extreme recourse available, in these words:--

"The power of court to punish contempt is sui generis. But it should be exercised with greatest circumspection. As pointed out by Oswald, "It is highly necessary therefore in all questions of that nature where the functions of the court have to be exercised in a summary manner, that the Judge in dealing with the alleged offence should not proceed otherwise than with great caution and deliberation and only in cases where the administration of justice would be hampered by the delay in proceeding in the ordinary course of law."

It would be pertinent to remind oneself of the words of Sir George Jessel, M.R. in the case of In re (3) Clements Republic of Costa Rica v. Erlanger (1876) 46 L.J. Ch., 375 at page 383 : "It seems to me that this jurisdiction of committing for contempt being practically arbitrary and unlimited should be most jealously and carefully watched, and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of Judges to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject. I say that a Judge should be most careful to see that the cause cannot be fairly prosecuted to a hearing unless this extreme mode of dealing with persons brought before him on accusations of contempt should be adopted. I have myself had on many occasions to consider this jurisdiction, and I have always thought that necessary though it be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men''s rights, that is, if no other pertinent remedy can be found."

Judging the present application on the test as above, we are not at all inclined to initiate any proceeding in our summary jurisdiction for committing the respondents for contempt for their alleged violation of the order of injunction of the City Civil Court at Calcutta. The petitioners have an appropriate and specific remedy under the Code itself for enforcement of such an order of injunction and taking action on its breach before the said court itself. No ground has been made out why the petitioners would not avail themselves of such a remedy and instead thereof would invoke this summary jurisdiction of this Court. Moreover, entertaining such an application as an ordinary alternative substitute for a proceeding under Order 39 Rule 2(3) of the Code throw open a flood gate for such applications in this Court in innumerable cases of injunction issued by the courts subordinate to this Court on allegations of breach thereof. This would mean bypassing the specific remedy under the law and should never be encouraged."

The proposition sought to be contended by Mr. Bhattacharya, that any disrespect to an undertaking by person amounts to a contumacious act, this Court does not find any ambiguity in it. A person who undertakes on oath before the Court to do a thing within a specified time cannot go unpunished if he violates the same wilfully and intentionally.

In the present case, the order passed by the Trial Court under Section 24 of the Hindu Marriage Act, 1955 was modified to the extent that the quantum of maintenance was enhanced from Rs. 3,000/- to Rs. 5,500/- and the arrear maintenance was to be paid in four equal monthly instalments.

In paragraph 12 of the contempt application it is categorically stated that the alleged contemnor have wilfully and deliberately violated the order dated March 22, 2013 and is dragging the suit taking frequent adjournments.

In paragraph 13, the petitioner asserts that after the said order is passed, the learned Advocate representing the alleged contemnor asked the details of the bank accounts of the petitioner which obviously for the purpose of depositing the maintenance. It has been categorically admitted therein that a sum of Rs. 18,000/- was paid towards the arrear maintenance though not the full amount.

It is not a case of absolute disregard to an order passed by this Court but it appears that there has been a part compliance of the said order. If the alleged contemnor has paid certain amount it cannot be said at this juncture that he has wilfully, deliberately and intentionally violated the said order.

The petitioner herself admitted to have received a substantial amount from the alleged contemnor and, therefore, this Court cannot accept the submission of Mr. Bhattacharya that the alleged contemnor should be suitably dealt with and/or punished under the Contempt of Court''s Act. Furthermore, the petitioner has an alternative remedy for realization of the rest of the amount by enforcing the said order either inviting the Court to exercise its inherent power or initiating an execution proceeding.

Since the consideration in a contempt application is totally different than the consideration in an execution proceeding for non-compliance of an order, this Court does not feel that the rejection of the contempt application shall stand in the way of taking recourse to the ordinary course of remedy available to the petitioner.

This Court, therefore, do not find that the petitioner has been able to make out a case for civil contempt and, therefore, dismiss the said application.

The contempt application being CPAN 1440 of 2015 thus stands dismissed. No order as to costs.