Smt. Shail vs Manoj Kumar Yadav and Others

Sunil Ambwani, J.—This contempt petition tells a pathetic story of the functioning of Family Courts in the State of Uttar Pradesh. The facts giving rise to this contempt petition demonstrate the manner in which Family Judges are dealing with the sensitive issues arising before them. The object and purpose of the establishment of the Family Courts was to promote conciliation in, and secure speedy settlement of disputes, relating to marriage and family affairs and for matters connected therewith. The law commission in its 59th report (1994) stressed that in dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts of settlement before commencement of the trial. The 1976 amendment to CPC providing for special procedure in such matters concerning the family, did not achieve the desired result. The Courts continued to deal with family disputes in the same manner as other civil matters and the same adversary approach prevailed.

The Family Courts Act, 1984 was enacted to set up for speedy settlement of family disputes. The reliefs concerning properties, declaration as to legitimacy in person, guardianship of a person are custody of a manner and maintenance including proceedings under Chapter IX of the Code of Criminal Procedure are entrusted to these special courts. It has been made obligatory u/s 9 on the Family Court to make efforts for settlement. Section 11 provides that proceedings may be held in camera if the Family Courts desires and shall be so held if either party so desires. The assistance of medical and family welfare experts can be taken u/s 12, or such persons (preferably a woman was available), including professional services for assisting the Family Court in discharging the functions imposed by the Act. The facts and circumstances in which this matter arose, giving rise to these contempt proceedings, and the manner the Family Court dealt with the matter, completely frustrates, the object and purpose of the Act.

The Family Courts Act, 1984 was enforced in Uttar Pradesh by Notification No. 79/1/86-145 dated 4.9.1986, w.e.f. 2.10.1986. It is significant to note here that the High Court has not made the Family Courts Rules as provided u/s 21 of the Act so far, and that all the Family Courts in the State have devised procedures for its functioning, adopting almost the same old adversarial approach to the issues arising before these courts.

The Petitioner Shail appeared in person. In the entire proceedings, and even in this Court, she has not sought any professional help. The applicant belongs to a poor back-ground, and is at present employed as Class IV employee in a school. She is a weak, frail but persuasive and full of courtesy to Court. She is not aware of technicalities of law but is quite confident in pleading her matters. I did not find her absent on any dates fixed in the matter when the matter came up before me.

A first information report u/s 328/376, I.P.C., P. S. Naka Hindola, Lucknow, was lodged registering Case Crime No. 55/2002, by the applicant alleging that she was raped by Sri Manoj Kumar Yadav, Head Constable on 18.1.2002 at Apsara Hotel, Police Station Naka Hindola, Lucknow. The applicant alleges that accused Sri Manoj Kumar Yadav, thereafter to avoid his prosecution persuaded the applicant for solemnizing marriage with him. On his persuasion and in order to save herself from social disgrace, and stigma on her character, she agreed to marry him. The marriage took place on 20.7.2002. After marriage Sri Manoj Kumar Yadav deserted her. He was not prepared to fulfil the marital obligations and did not take care of the applicant. She was left in destitution without any help from him. She filed an application u/s 125, Cr. P.C. for maintenance from her husband Sri Manoj Kumar Yadav before the Family Court Kanpur Nagar. The proceedings were pending. The applicant filed a Criminal Misc. Application No. 7688 of 2002, which was disposed of with the following order:

Supplementary affidavit is taken on record. Heard Smt. Shail, applicant appeared in person and learned A.G.A.

This application u/s 482, Cr. P.C. has been filed with a prayer to issue a direction to the Judge Family Court Kanpur Nagar to decide the case of the Application No. 535 of 2002 of the applicant expeditiously. It is further prayed that the Judge, Family Court be directed to dispose of the application of the applicant for interim mandamus. It is stated by Smt. Shail that she is unable to maintain herself and her husband, opposite party No. 3 Sri Manoj Kumar Yadav is Head Constable in U. P. Police. As such, an interim mandamus be awarded to her.

After pursuing the entire material on record, this application is finally disposed of with a direction to the Judge, Family Court Kanpur Nagar to dispose of Case No. 535 of 2002 u/s 125, Cr. P.C. within a period of four months from the date of presentation of the certified copy of the order.

With the aforesaid direction this application is disposed of.

Date: 4.9.2002 Sd.

Hon''ble V. K. Chaturvedi, J.

She filed another Criminal Miscellaneous Application No. 10073 of 2003 u/s 482, Cr. P.C. before this Court in which by an order dated 17.1.2003, this Court gave following direction:

This case was earlier listed on 16.1.2003 but the applicant appearing in person told that she has not the sufficient means to come on the next date from Kanpur. Request has therefore, been made that her case be taken today and she be permitted to appear in person. She has also been provided assistance of Amicus Curiae. On her request this application is taken up today.

This application u/s 482 of the Code of Criminal Procedure (which is hereinafter called as ''the Code'') has been brought for issuing appropriate direction to this Court of IVth Additional Chief Judicial Magistrate, Lucknow for expediting the disposal of the Criminal Case (Crime No. 55 of 2002) under Sections 338 and 376, I.P.C., police station Naka Hindola, Lucknow. It is said that the applicant was raped by Sri Manoj Kumar Yadav, Head Constable on 18.1.2002 at Apsara Hotel, police station Naka, Lucknow. Report of this incident was lodged by the applicant at the police station which was registered as Crime No. 55 of 2002 at that police station. Sri Manoj Kumar Yadav thereafter persuaded the applicant for solemnizing marriage so as to avoid his further prosecution. On his persuasion she agreed to marry with the applicant on 20.7.2002. After marriage Sri Manoj Kumar Yadav again deserted her. He was not prepared to fulfil his obligations as husband and was not even taking care of the applicant. She was left as destitute without any money. Resultantly she has to bring the proceedings u/s 125 of the Code before the Family Court, Kanpur Nagar. Those proceedings are still pending. She has not been paid any money by Sri Manoj Kumar Yadav. At this stage the prayer is confined that her case which is pending before the Family Court, Kanpur Nagar, be expedited so that she may not suffer agony any longer.

Looking to the facts and circumstances of the case, Principal Judge, Family Court, Kanpur Nagar is directed to expedite the disposal of the maintenance proceedings u/s 125 of the Code, pending before him preferably within a period of four months.

With these observations this application is finally disposed of.

Dated 17th January, 2003 Sd.

Hon''ble S. S. Kulsharestha, J.

This contempt petition was filed by applicant u/s 12 of the Contempt of Courts Act on 18.11.2002 against Manoj Kumar Yadav, D.I.G. Headquarters Allahabad, and Family Court, Kanpur Nagar alleging that she filed a certified copy of the order dated 4.9.2002 in Family Court, Kanpur Nagar, but the order was not complied with within time and that warrants be issued to the opposite parties. On 19.11.2002, this Court directed her to file a supplementary affidavit and that on 11.2.2003 following order was passed on the contempt petition:

Supplementary affidavit filed today is taken on record.

Non-compliance of the order dated 4.9.2002 passed in Crl. Misc. Application No. 7688 of 2002 is alleged in the contempt petition.

By the aforesaid order dated 4.9.2002 passed in Crl. Misc. Application No. 7688 of 2002, Respondent No. 3 Judge, Family Court, Kanpur Nagar was directed to decide Case No. 535 of 2002 u/s 125, Cr. P.C. within a period of four months from the date of representation of the certified copy of this order.

Respondent No. 3 is Judicial Officer and is a part of the administration of justice. It is expected that every person will give due regard to the orders of the Court. If for some reason he was unable to decide the case within the time fixed by this Court he had to approach this Court and obtain further time. Every citizen of this country has a right to legal remedy for which he approaches courts and if any direction is issued by this Court the same must be complied with within time allowed by the Court. It does not depend on the sweet will of any person to ignore any part of the order. Non-compliance of the order is clear contempt. A Division Bench of this Court in case of P.N. Srivastava Vs. State of U.P. and others, Local Bodies and Educational Service Reporter 742 (Lucknow Bench) held that:

The direction issued by the High Court or Supreme Court in its decision carry equal importance as that of a statute or rules and hence directions are required to be complied with and disobedience amounts to contempt as such the decision of Court partakes the position of statutory rule.

Relying on the case of All India Reporter Karamchari Sangh and Others Vs. All India Reporter Limited and Others, , the Court further held:

In view of the decision of this Court dated 27.8.1996 the opposite parties had no option but to complete the enquiry within four months (time allowed by the Court in that case). It further implies that in case opposite parties were unable to do so they could approach the Court and seek further extension of time. In M.L. Sachdev Vs. Union of India and another, , the Apex Court held that Government under duty to comply with the order within time set by Court and in any case if it was not possible to comply with the order within the time for whatsoever reason then the only course open was to seek extension of time or further instructions (also see State of Bihar v. Subhash Singh 1997 (2) AWC 698 (SC): 1997 (1) SCC 430).

From the above decisions it is apparent that the directions of the Court are else as good as statutory rules. The parties to whom the direction is issued have no care to carry out the orders of the Court.

Whenever the Court uses the words "preferably as far as possible, expeditiously, at an early date" in its judgment and order, the direction is to be complied with within the time allowed by the Court in the orders and judgment. Even Section 20 of the Contempt of Courts Act provides limitation for initiating contempt proceedings if the order is not obeyed by the contemnor, hence it is imperative that the orders of the Court in which even no time is fixed are to be faithfully complied with in letter and spirit within a reasonable time, say four months from the date of the communication of the order. This would be in order to enable the parties to come before the Court within a reasonable time for initiation of contempt proceedings, if they choose to file the same. Sometimes plea of filing of appeals do not give any handle to the authorities/officers for not complying with the orders of the Court in letter and spirit when no interim orders are granted by the appellate court staying the order impugned.

The Respondent(s) did not comply with the order within the time given by this Court nor applied for extension of time. The time has expired and the Respondent has taken the order very lightly.

Issue notice to Respondent No. 3 to show cause within one month why contempt proceedings may not be drawn against him for deliberate and wilful disobedience of the orders of this Court dated 4.9.2002 passed in Criminal Misc. Application No. 7688 of 2002:

However, in view of the guidelines given by the Hon''ble Supreme Court in case of Suresh Chandra Poddar Vs. Dhani Ram and Others, , I give one more opportunity to Respondent No. 3 to comply with the order dated 4.9.2002 passed by this Court in Criminal Miscellaneous Application No. 7688 of 2002 within a period of one month. In case the said order is complied with he shall not be personally present. In case the said order is not complied with, he shall be personally present on the date fixed.

List after one month.

Date 11.2.2003 Sd.

Hon''ble Rakesh Tiwari, J.

That on 28.3.2003, the registry of this Court received a letter from Sri Vishal Chandra Saxena, Principal Judge, Family Court, Kanpur Nagar No. 40/03/Family Court, Kanpur Nagar dated 25.3.2003. The Family Court informed this Court that applicant filed a case u/s 125, Cr. P.C. on 27.7.2002 along with a copy of the order dated 17.7.2002 in Civil Misc. Writ Petition No. 10156 of 2002. By this order, the High Court found that it was not possible to give reliefs claimed in the writ petition as the allegations made by her, required investigation from the competent authority, and in the absence of any evidence no conclusion can be drawn. The applicant was directed to make complaint to the appropriate authorities. The Munsarim raised objections on the application u/s 125, Cr. P.C. on 27.7.2002 stating that she has not stated anywhere in the application and affidavit as to how the marriage was performed between her and Manoj Kumar Yadav, and that the documents annexed with the application and the order dated 17.7.2003 does not establish that she is legally married, for which no proof was given along with her application. The case was not registered and since the Family Court was lying vacant the Civil Judge, Senior Division was looking after the work. The matter was fixed on 12.8.2002 for hearing on 24.8.2003 and thereafter on 13.9.2002. On that date Petitioner/applicant produced a copy of the order of the High Court dated 4.9.2002 in which the case number in the Family Court was shown as Case No. 535 of 2002, to be decided in four months. At that time both the Family Courts were lying vacant and thus the matter was fixed on 28.9.2002. The concerned clerk registered her application as Crl. Case No. 108 of 2002. Thereafter the matter was fixed on 7.11.2002. From 28.9.2002 to 1.12.2002 the jurisdiction of Kanpur Nagar was transferred to district Fatehpur. The Civil Judge, Senior Division Fatehpur/Incharge Officer found that the application u/s 125 has not been registered. On 7.11.2002, he gave applicant an opportunity to file objections and fixed the matter on 10.12.2002. The applicant did not remove the defects ; she filed two applications on 11.11.2003 and appeared in person before the District Judge, Fatehpur. After hearing her, an order was passed by District Judge, Fatehpur that until the defects are removed, the hearing was not possible. Sri Vishal Chandra Saxena, further, reported to this Court that applicant resorted to incorrect facts before the High Court and gave a wrong case number. He took over charge as Principal Judge Family Court on 28.10.2002. On 10.12.2002, when the matter was put up before him he found that Case No. 535 of 2002 u/s 125, Cr. P.C. is between Smt. Akila Kanwar and Mohammad Wasim Khan. The applicant did not appear on 10.12.2002, and did not file any objections to the office report. The case was thus fixed for 16.1.2003. On that date the applicant again did not appear and the matter was fixed on 26.4.2003. He informed this Court in his report that he has not committed any contempt and that in fact the applicant has not removed defects. She filed the application before the High Court, with wrong case number and that the contempt notice be discharged.

The applicant filed an application during summer vacations on which the matter was nominated by Hon''ble Senior Vacation Judge on 2.6.2003 to be heard by me. I found that the simple matter of deciding application u/s 125, Cr. P.C. has been made complicated by Principal Judge Family Court, Kanpur Nagar. The application was disposed of with following directions:

I further find that the Principal Judge, Family Court, Kanpur Nagar instead of helping the Petitioner and getting the defects in her petition cured has tried to put the blame upon her. A lady appearing in person and claiming maintenance for destitution u/s 125 of Cr. P.C. has to be given a helping hand, and a healing touch by the Court. Instead of providing necessary assistance, the Principal Judge, Family Court, Kanpur Nagar, acting against the object of establishment of Family Courts and has tried to put the blame upon her. He has also casted aspersions upon her for providing wrong case number to the Court. It was apparently a mistake and could have been easily ignored by the Family Court. This Court takes exception to the report of the Family Judge by which he has sent the matter back to the Court and is trying to unnecessarily delay the proce-eding and harasses the applicant.

In the aforesaid circumstances, I direct Special Judge, Family Court to provide all possible assistance to the applicant to cure the defects in her application, and to pass necessary orders as expeditiously as possible and preferably within one month. He is reminded on the fact that he is impleaded as a contemnor, and has to purge the contempt instead of aggravating the contemptuous actions.

List on 22.7.2003.

Dated 3.6.2003 Sd.

Hon''ble Sunil Ambwani, J.

On 12.9.2003, the matter again came up before me. The applicant informed the Court that in pursuance of the order dated 3.6.2003, the Family Court has issued summons, and assured her that in case her husband does not appear, the proceeding will be taken ex parte against him. She submitted that inspite of fixing dates nothing has been done in the matter. On this mention, I directed the Family Court to conclude the matter as expeditiously as possible, with intimation to the Court and fixed the matter on 20.10.2003.

On 29.10.2003, the applicant filed an application complaining that inspite of aforesaid directions, the Principal Judge, Family Court has not decided the matter so far. She filed a copy of the order dated 28.7.2003 passed by Family Judge in which it was stated that inspite of notices sent to Manoj Kumar Yadav and thereafter sending notices through the Director General of Police, he has not appeared and thus the matter was directed to proceed ex parte against her husband. This Court took notice of the fact that inspite of repeated directions, the Family Judge is not deciding the matter. The applicant pleaded that she is on the verge of destitution, and that her husband who was earlier accused of rape has deserted her, and was not prepared to fulfil his obligations as husband and was not even taking care of the applicant. She was left as destitute without any money. She informed the Court that the Family Judge makes uncalled comments on her appearance, and takes pleasure on asking unnecessary questions. On these allegations Sri Vishal Chandra Saxena was required to appear before this Court on 17.11.2003. Following observations were made while summoning him to this Court:

It is a matter of serious concern that a Judicial Officer/Subordinate to the Court, is taking the directions casually. This Court has repeatedly requested him and advised him to expedite the matter. Once the orders passed by this Court came to his knowledge, it was his duty to pass necessary orders expeditiously and in accordance with law.

On 17.11.2003 Sri Vishal Chandra Saxena, Principal Judge, Family Court, Kanpur Nagar (now District Judge, J. P. Nagar) appeared before this Court. Sri O. P. Singh, Principal Judge, Family Court, Kanpur Nagar was also present and had brought the records of Case No. 108/2003, u/s 125, Cr. P.C. along with him. Sri Saxena informed the Court that the application u/s 125, Cr. P.C. was finally decided by him on 5.8.2003. On the request made by Sri S. K. Garg, learned standing counsel, the matter was taken up in chamber at 1.30 p.m.

I have heard applicant in person and the explanation given by Sri Vishal Chandra Saxena. The applicant was anguished, hurt and was in tears in explaining the conduct of the Family Judge. She stated that whenever dates were fixed, he called and heard only the clerks presenting the matter and went on fixing dates. She was taken by surprise and was not aware of order dated 5.8.2003 by which her application was dismissed. She questioned, the manner in which she has been dealt by the Family Court. Initially she was harassed for not giving correct details of her marriage and fixing dates after dates. She stated that in order to avoid compliance her application number was changed without informing her. The clerks in the office of Family Judge treated her shabbily, and told her that she will get nothing from the Court. She also questioned the authority of Family Court in disbelieving her marriage and rejecting her application for maintenance inspite of the fact that the matter was proceeding ex-parte against her husband. She submitted that if the Family Court was not satisfied with her affidavit, she should have been given a chance to establish her marriage. She accused the Family Judge to have questioned her marriage and thereby putting her to disrepute in society. According to her no one disputed the marriage and in the ex parte proceedings, the Family Judge had no right and authority to disbelieve her marriage and to take away her rights against the person who had raped her and thereafter married her.

Sri Vishal Chandra Saxena explained that in proceeding u/s 125, Cr. P.C. the wife must establish the marriage. There was no pleading of the date of marriage or the manner in which the marriage was performed. The applicant absented on 5.8.2003 and thus he had no option but to dismiss the application.

The order dated 5.8.2003 shows that the matter was proceeding ex parte and that her husband had not appeared. The Family Court proceeded to examine the affidavit and found that whereas she had pleaded that on 18.1.2003 after the incident she had accepted the opposite party as her husband and was discharging duties of wife and was given some amount towards maintenance. The Family Judge found that there was no pleading as to how her marriage was solemnized. Since she had not produced any documentary proof or evidence of her marriage, the Family Court found that she is not legally married wife of the opposite party. The Family Judge thereafter recorded the observations of this Court in writ petition which was decided on 17.7.2002, commented on her conduct of giving wrong case number to the High Court and the fact that she made a mention to the Family Court on 10.7.2003 to adjourn the proceedings for one hour as she has to take leave from Juhari Devi College from where she is serving. The Family Court observed that the applicant is serving in Juhari Devi College and rejected the application.

This Court takes strong objection to the manner in which the Family Court decided the matter. The statement given by Sri Vishal Chandra Saxena that the applicant absented herself is doubtful. The applicant has been diligently pursuing the proceedings. She has appeared in High Court on several occasions and was always present in the Court. Her manners and demeanour in Court demonstrated her desperation and destitution. Almost all the orders passed by this Court were ignored by the Family Judge. He was aware of the direction of this Court to decide the matter within four months. Inspite of the fact that the applicant kept on appearing before him and sought compliance of the directions could not persuade the Family Judge to give her even a brief hearing. Inspite of the fact that the matter was proceeding ex parte, he chose to dismiss the application u/s 125, Cr. P.C. on the ground that she has not been able to establish her marriage. There was clear and specific averments in her application supported by her affidavit that Sri Manoj Kumar Yadav is her husband. The opposite party did not appear in the matter and that the matter proceeded ex parte. Inspite of these glaring facts and the object and the purpose of maintenance u/s 125, Cr. P.C. as well as Family Courts Act, 1984, the District Judge chose to reject the application u/s 125, Cr. P.C. in her absence. This Court is deeply pained and anguished in the manner the applicant armed with four orders of this Court was dealt with by the Family Judge. Sri Vishal Chandra Saxena, the then Family Judge, Kanpur Nagar failed to discharge his duties as a Family Court Judge and appears to be prejudiced by the persistence of the applicant and the orders passed by this Court requesting him to expedite the matter. I find that the explanation given by Sri Saxena for delay in deciding the matter, cannot be accepted and reprimanded him for his conduct.

After the order was reserved the applicant moved two applications dated 20.11.2003, to transfer the matter. Both the applications are rejected.

The order rejecting the application u/s 125 dated 5.8.2003, has concluded the proceedings. The Court, however, finds that Sri Vishal Chandra Saxena, District Judge, J. P. Nagar was negligent in discharge of his duties in deciding the matter within the time fixed by this Court on 4.9.2002, which was filed on record by the applicant in Family Court on 13.9.2002. He took notice of the order on 10.12.2002 but did not care to decide the matter, within reasonable time. The two reminders given to him by this Court on 11.2.2003 and thereafter on 3.6.2003 were ignored by him. He fixed long dates (on 16.1.2003 he fixed the matter for 26.4.2003) and proceeded ex parte by his order dated 10.7.2003 and thereafter decided the matter on 5.8.2003 in the absence of the applicant who was appearing in person, without giving her any opportunity to give any evidence of her marriage.

The courts subordinate to the High Court must carry out the orders. It was the duty of the Family Judge, Family Court, Kanpur Nagar to decide the matter within the time fixed by this Court. If he found that there was some procedural delay or that the proceedings cannot be concluded for any reason, he should have applied to this Court for extension of time or atleast sent his report. He was reminded time and again to conclude the proceedings. Repeated orders of this Court dated 4.9.2002, 17.1.2003, 11.2.2003 and thereafter a warning given to him by order dated 3.6.2003 were ignored. The Family Judge proceeded to decide the matter as a routine matter without caring for the repeated orders issued by this Court. In the meantime, the applicant suffered harassment and humiliation by the officials in this Court. He could not even find a few minutes of his precious time to hear the applicant.

Sri Vishal Chandra Saxena, Principal Judge, Family Court, Kanpur Nagar, now posted as District Judge, J. P. Nagar has clearly disobeyed the orders of this Court. He was heard in person on 17.1.2003. He did not choose to file any explanation in writing nor sought any time to give a reply. His submission in defence is not satisfactory. He had full knowledge of the directions of this Court dated 4.9.2002 and 17.1.2003. He submitted a report to the Court on 25.3.2003, making allegations against the applicant but did not decide the matter. He did not submit any further report, nor sought extension of time to decide the matter. Having proceeded ex parte, he chose to decide the matter in Petitioner''s absence. He has wilfully and deliberately avoided the timely compliance of the orders. He has not only disobeyed the orders of this Court but has also acted in breach of the object and purpose of the Family Courts Act, 1984. The registry shall place this order before the Registrar General for information to the Court, to take appropriate action against Sri Vishal Chandra Saxena now District Judge, J. P. Nagar. The contempt petition is disposed of accordingly.