Gujarat High Court Case Information System
Print
MCA/1124/2011 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR CONTEMPT No. 1124 of 2011
=========================================================
POOJA
ABHISHEK GOYAL NEE POOJA ASHOK GUPTA - Applicant(s)
Versus
ABHISHEK
ASHWINI GOYAL - Opponent(s)
=========================================================
Appearance :
MR
BOMI H SETHNA for
Applicant(s) : 1,
NOTICE SERVED for Opponent(s) : 1,
MR MB
GANDHI for Opponent(s) : 1,
MR SUNIL M AGRAWAL for Opponent(s) :
1,
MR CHINMAY M GANDHI for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 06/07/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The
basis of the present petition is non compliance to the order passed
by the learned Single Judge dated 22.10.2010 in Special Criminal
Application No. 2429 of 2009 with Special Criminal Application No.
2430 of 2009 with Special Criminal Application No. 278 of 2010
whereby the order of the learned Magistrate for interim maintenance
under the provisions of The Protection of Women from Domestic
Violence Act, 2005 has been modified and further direction
has been given.
2. We
have heard Mr. Kavina for the petitioner and Mr. Gandhi for
respondent.
3. It
is an admitted position that after the order passed by the learned
Single Judge of this Court, the matter was carried before the Apex
Court vide proceedings of SLP No.585-587 of 2011 and the Apex Court
vide order dated 7.2.2011 dismissed the said SLP. Under the
circumstances, the order of the learned Single Judge of this Court
has remained in operation.
4. Further,
since the amount of interim maintenance was not deposited the
application is made by the petitioner before the learned Magistrate
being Criminal Misc. Application No. 1110 of 2009 for execution and
implementation of the order. It has been stated in the application
that as on that day i.e. 18.12.2010 the amount of maintenance not
paid is of Rs.4,78,871/-. Below the said application, after hearing,
the learned Magistrate has passed an order on 3.1.2011 whereby the
respondent was directed to deposit 50% of the amount of Rs.4,78,871/-
within fifteen days and the remaining amount of 50% within fifteen
days thereafter. It is also an admitted position that the said order
has not been complied with. Mr. Gandhi, learned Counsel appearing for
the respondent submitted that the revision is preferred before the
learned Sessions Judge against the order dated 3.1.2011 but he fairly
conceded that no stay against the implementation of the order of the
learned Magistrate has been granted. Under the circumstances, we find
that in absence of any stay granted by the learned Sessions Judge in
the said revision, the order of the learned Magistrate directing the
respondent to deposit the amount also operates.
5. Another
important aspect is that after this Court entertained the matter and
issued notice, affidavit-in-reply has been filed by the respondent in
the present proceedings wherein at paragraph no.7 the following
statement on oath has been made;
“Infact, the respondent
had submitted on oath to the Hon’ble Court that he was jobless and
ignoring the same, and disbelieving the same,
the Hon’ble Court passed an order of maintenance against the
husband”.
(Emphasis
supplied)
Further
in the said paragraph even in respect to the order of the Hon’ble
Supreme Court, it has been mentioned as under :
“The said appeal was
dismissed without any reasoning or comments on merits of the
case.”
(Emphasis
supplied)
Further
it is stated as under :
“So, the husband is
completely helpless and isnot deliberately ignoring the order of
Hon’ble High Court, but is in fact waiting for justice from Hon’ble
Supreme Court of India and he has suffered irreparable damages due
to the order dated October 22,2010, in Special Criminal Application
No. 2429 of 2009 (with Special Criminal Application No. 2430 of 2009
with Special Criminal Application No. 278 of 2010) given by
Hon’ble High Court of Gujarat.
(Emphasis
supplied)
Further,
at paragraph No. 17 it has been stated as under :
“In view of the above,
it can be clearly seen that the the impugned order, has put the
respondent in grave trauma and he is prejudiced.”
(Emphasis
supplied)
6. The
aforesaid, in our prima facie view can be termed as contemptuous
language used against the Hon’ble Judge of this Court as well it can
be said against the orders passed by the Hon’ble Supreme Court.
7. Apart
from the above, it further appears that this Court on 20.6.2011 at
paragraph No.1 had observed thus :
“1.It
prima-facie appears from the order passed by the Ld. Single Judge of
this Court in Special Criminal Application No. 2429 of 2009 with
Special Criminal Application No. 2430 of 2009 with Special Criminal
Application No. 278 of 2010 that in the recent past the respondent
had huge income and now in the affidavit-in-reply it is contended
that he is having meagre income and ground of incapacity is also
sought to be canvassed. We would have considered the matter further,
however, Mr. Gandhi, Ld. Counsel for the respondent states that he
would require time to produce
balance-sheet of his accounts keeping in view the income derived
during the earlier period and its appropriation. Such, respondent may
do so on or before 24/06/2011”.
8. Thereafter,
the respondent had to file an affidavit by making bonafide disclosure
of his all assets and the bank account but in the affidavit dated
27.6.2011 the details of the expenses are given but the availability
of money in the other bank accounts has not been given and to say
rather suppressed. The said suppressed facts came to light only when
the additional affidavit dated 1.7.2011 has been filed by the
petitioner wherein the details of various bank accounts, LIC policy
etc., are narrated at paragraph no.4(a) to 4(h). The respondent in
the affidavit filed today has admitted the existence of majority of
the bank accounts but not admitted the balance details. This prima
facie shows that there was suppression of material fact by the
respondent at the relevant point of time when the earlier affidavit
was filed on the aspects of breach and non compliance of the order of
this Hon’ble Court as well as of the learned Magistrate.
9. It
appears that it is not a matter simplicitor where the learned
Magistrate passed an order for interim maintenance and the same is
confirmed by the Court but is a case where this Court partly modified
the order of the learned Magistrate and also issued certain
directions which for ready reference are at paragraph no.8.0 of the
order dated 22.10.2010 as under:
“8.0 In
the result, all the petitions are DISPOSED of with the
following directions:
(1)
The order of the learned Presiding Officer, Fact Track Court No.2,
Ahmedabad(Rural), Mirzapur, dated 25.09.2009, passed in
Criminal Appeal No.25 of 2009, is QUASHED,
order of the Magistrate dated 22.05.2009 is restored with the
MODIFICATION
that AMOUNTS
PAYABLE thereunder
shall be from the date of the application i.e. 21.03.2009.
(2)
Under the said order passed by the learned Magistrate under the
provisions of Domestic Violence Act, 2005, the wife is entitled to
receive Rs.25,000/- per month towards interim maintenance and
Rs.15,000/- towards rent, for suitable accommodation.
(3)
The wife, however, shall receive rent, ONLY IF, she resides
separately in RENTED PREMISES. For this purpose, the husband
shall deposit a sum of Rs.30,000/-, before the learned
Magistrate, towards advance rent for two months. If the wife produces
rent receipt of a particular month along with her affidavit, the
amount of such rent up to a maximum of Rs.15,000/- shall be released
in her favour, upon which the husband shall again deposit alternate
amount to restore the balance of Rs.30,000/- before the learned
Magistrate so that, at all times, the amount towards advance rent for
two months shall be lying with the learned Magistrate. However, the
wife shall NOT be entitled to RECEIVE any amount of
rent for the period, during which she stayed with her parents or not
in rented premises.
(4) In
view of the above provisions for interim maintenance and rent, under
the proceedings in Protection of Women from Domestic Violence Act,
2005, further ENHANCEMENT is NOT NECESSARY in the
proceedings under Section 125 of the Code of Criminal Procedure.
(5)
The amount received by the wife, under the interim order passed by
this Court in the proceedings under the Protection of Women from
Domestic Violence Act, 2005, shall be ADJUSTED against the
husband’s LIABILITY to pay arrears, as per this order.
(6)
The learned Magistrate shall endeavor to dispose of the pending
proceedings EXPEDITIOUSLY
and shall pass final order, unmindful of any observation made in this
order.
Application for maintenance under Section 125 of the Code of Criminal
Procedure shall be decided, THEREAFTER.”
10. Therefore,
if the order of this Court is not complied with it would be prima
facie a case of contempt for non implementation of the order passed
by this Court. Aforesaid is coupled with the circumstance that the
order of the learned Magistrate directing him to deposit the amount
in the execution proceedings has also not been complied with. Rule
6(5) of The Protection of Women from Domestic Violence Rules, 2006
reads as under :
“6. Applications to the
Magistrate.-
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) xxx xxx xxx
(5)
The applications under section 12 shall be dealt with and the orders
enforced in the same manner laid down under section 125 of the Code
of Criminal Procedure, 1973 (2 of 1974)”.
11. If
the order for interim maintenance is dealt with as per provisions of
Section 125 of the Code of Criminal Procedure, sub-section (3) of
section 125 provides for not only issuance of the warrant but putting
the person into imprisonment for a term which may extend to one month
or until the payment if sooner made.
12. In
view of the aforesaid peculiar circumstances of non compliance and
breach of the order of this Court read with order of the learned
Magistrate for directing him to deposit the amount, we find that this
Court while exercising the power under the Contempt of Courts Act for
the aforesaid breach and non compliance may be required to pass the
order for imprisonment until the payment is made subject to the
limitation of one month and the extension thereof from time to time.
13. As
observed earlier, apart from the alleged breach and non compliance of
the order of the learned Single Judge of this Court and the learned
Magistrate, the additional aspect in the present case is that the
respondent has gone to the extent of using the contemptuous language
against the exercise of the power by this Court in the criminal
jurisdiction as well as exercise of the power by the Apex Court.
14. We
would have dealt with the matter under section 14 of the Contempt of
Court Act, since using of the contemptuous language against the
exercise of power by this Court and the Hon’ble Supreme Court could
be said as prima facie contempt and to further consider the case for
taking the respondent into custody. However, at that stage Mr.
Gandhi, learned Counsel appearing for the respondent, under the
instructions of the respondent, who is present in the Court states
that the respondent is desirous to show his bonafide by depositing
the amount in part and if this Court is inclined to consider the same
by taking a lenient view at this stage leaving exercise of power
under section 14 at the later stage. Mr. Gandhi also declared under
the instructions of his client that the amount of Rs.1,00,000/-
(Rupees One lac only) shall be deposited on or before 08.07.2011 in
the Registry of this Court and shall further deposit the amount of
Rs.1,00,000/- (Rupees One lac only) within two weeks thereafter with
this Court on or before 25.7.2011 and he submits that the matter may
be considered thereafter.
15. As
such, if the respondent is to show bonafide in compliance with the
order, may be in part, the matter can be considered at the later
stage. However, in view of the aforesaid prima facie observation that
the respondent could be said as having committed contempt before the
Court in the proceedings by using contemptuous language as referred
to hereinabove, we find that at this stage, instead of taking the
respondent into the custody, he shall be released on furnishing a
bond with solvent security amounting to Rs.50,000/- (Rupees Fifty
thousand only) and such bond shall be furnished before the Police
Inspector, Sola Police Station with a further direction that the
respondent shall surrender his Passport on or befroe 08.07.2011 with
the Registry of this Court and shall remain personally present in the
Court on the next date which is fixed on 12.07.2011.
16 S.O.
to 12.07.2011 for reporting compliance of the order.
Sd/-
(Jayant
Patel, J.)
Sd/-
(R.M.
Chhaya, J.)
M.M.BHATT
Top