IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17.12.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD).No.4166 of 2008 and M.P.No.1 of 2008 Rajesh Surana ... Petitioner Vs. Rekha ... Respondent Prayer: Petition filed under Article 227 of the Constitution of India against the Judgment and Decree dated 08.12.2008 in I.A.No.3452 of 2008 in F.C.O.P.No.697 of 2003 on the file of the Court of Principal Family Judge, Chennai dismissing the same. For Petitioner : Mr.T.R.Rajagopalan, Senior Counsel for T.R.Rajaraman For Respondent : Mrs.K.Bhavatharani ORDER
The civil revision petitioner/petitioner/husband has filed this civil revision petition as against the order dated 08.12.2008 in I.A.No.3452 of 2008 in F.C.O.P.No.697 of 2003 passed by the Principal Family Court, Chennai in dismissing the application filed by him under Section 151 of Civil Procedure Code praying to stay all further proceedings in O.P.No.697 of 2003, tried along with O.P.No.1601 of 2003 and M.C.No.116 of 2005 unless the respondent/wife purges out of the contempt.
2.The trial Court, while passing orders in I.A.No.3452 of 2008, has inter alia opined that ‘the Hon’ble High Court has passed orders in C.R.P.(PD).No.1867 of 2008 and M.P.No.1 of 2008 wherein a direction has been issued to the trial Court to dispose of all the three cases within three months from the date of receipt of a copy of this order etc. and therefore, has not accepted the contention of the petitioner that the proceedings should not be proceeded with unless the respondent/wife purges out of the contempt and resultantly, dismissed the application.’
3.The learned counsel for the revision petitioner submits that the order of the trial Court in dismissing the I.A.No.3452 of 2008 is materially irregular and contrary to law and that the trial Court has dismissed the said application without adverting to the legal aspects and that the trial Court has failed to take note of the fact that the Hon’ble Supreme Court has stayed only the order of sentence passed by this Court in the contempt petition and therefore, unless the respondent/wife purges out of the contempt, she shall not be permitted to participate in any of the proceedings and further that though the appeal is pending before the Hon’ble Supreme Court, unless there is specific order holding that the contemnor purged herself of the contempt, the respondent/wife would continue to be under the spell of the interdict and that the order of stay of the penalty imposed on the contemnor is not sufficient to complete the process of purging the respondent/wife of the contempt, particularly in a case where the contemnor is sentenced to jail and that the respondent/wife even after the punishment imposed by this Court on 07.12.2008 has failed to bring the child on 7th December 2008, being the first Sunday and if the respondent/wife who has been found guilty of contempt, if allowed to take part in the proceedings, certainly erode the dignity of the Court besides impairing the confidence of the public in the efficacy of institution of Court and therefore, prays for allowing the Civil Revision Petition to prevent aberration of justice.
4.The learned counsel for the revision petitioner/ husband cites the decision in Pravin C.Shah V. K.A.Mohd. Ali and Another (2001) 8 SCC 650 at 651 wherein the Hon’ble Supreme Court has inter alia held that ‘Rule in, providing that advocate guilty of contempt of court not to appear in court until after purging himself of contempt of Court by an order of the appropriate Court etc.’ Further, in the aforesaid decision, the learned counsel for the revision petitioner relied on the observations made in para 23, 24 and para 29 which run as follows:
23. Now we have to consider the crucial question how can a contemnor purge himself of the contempt? According to the Disciplinary Committee of the Bar Council of India, purging oneself of contempt can be done by apologising to the court. The said opinion of the Bar Council of India can be seen from the following portion of the impugned order:
Purging oneself of contempt can be only by regretting or apologising in the case of a completed action of criminal contempt. If it is a case of civil contempt, by subsequent compliance with the orders or directions the contempt can be purged of. There is no procedural provision in law to get purged of contempt by an order of an appropriate court.
24. Purging is a process by which an undesirable element is expelled either from ones own self or from a society. It is a cleaning process. Purge is a word which acquired implications first in theological connotations. In the case of a sin, purging of such sin is made through the expression of sincere remorse coupled with doing the penance required. In the case of a guilt, purging means to get himself cleared of the guilt. The concept of purgatory was evolved from the word purge, which is a state of suffering after this life in which those souls, who depart this life with their deadly sins, are purified and rendered fit to enter into heaven where nothing defiled enters (vide Words and Phrases, Permanent Edn., Vol. 35-A, p.307). In Blacks Law Dictionary the word purge is given the following meaning: To cleanse; to clear. To clear or exonerate from some charge or imputation of guilt, or from a contempt. It is preposterous to suggest that if the convicted person undergoes punishment or if he tenders the fine amount imposed on him the purge would be completed.
29. This Court has held in M.Y. Shareef v. Honble Judges of the Nagpur High Court6 that
an apology is not a weapon of defence to purge the guilty of their offence; nor is it intended to operate as a universal panacea, but it is intended to be evidence of real contriteness. (AIR p.23, para 10)
Ahmadi, J. (as the learned Chief Justice then was) in M.B. Sanghi, Advocate v. High Court of Punjab and Haryana7 while considering an apology tendered by an advocate in a contempt proceeding has stated thus: (SCC p.603, para 2)
And here is a member of the profession who has repeated his performance presumably because he was let off lightly on the first occasion. Soft justice is not the answer not that the High Court has been harsh with him what I mean is he cannot be let off on an apology which is far from sincere. His apology was hollow, there was no remorse no regret it was only a device to escape the rigour of the law. What he said in his affidavit was that he had not uttered the words attributed to him by the learned Judge; in other words the learned Judge was lying adding insult to injury and yet if the court finds him guilty (he contested the matter tooth and nail) his unqualified apology may be accepted. This is no apology, it is merely a device to escape.
5.He also relies on the decision in Prestige Lights Limited V. State Bank of India (2007) 8 SCC 449 at page 459 whereby and whereunder in paragraphs 24 and 25 the Hon’ble Supreme Court has observed as follows:
“24. An order passed by a competent court interim or final has to be obeyed without any reservation. If such order is disobeyed or not complied with, the court may refuse the party violating such order to hear him on merits. We are not unmindful of the situation that refusal to hear a party to the proceeding on merits is a drastic step and such a serious penalty should not be imposed on him except in grave and extraordinary situations, but sometimes such an action is needed in the larger interest of justice when a party obtaining interim relief intentionally and deliberately flouts such order by not abiding by the terms and conditions on which a relief is granted by the court in his favour.
25. In the leading case of Hadkinson v. Hadkinson2 the custody of a child was given to the mother by an interim order of the Court, but she was directed not to remove the child out of jurisdiction of the Court without the prior permission of the Court. In spite of the order, the mother removed the child to Australia without prior permission of the Court. On a summons by father, the Court directed the mother to return the child within the jurisdiction of the Court. Meanwhile, an appeal was filed by the mother against that order. A preliminary objection was raised by the father that as the appellant was in contempt, she was not entitled to be heard on merits. Upholding the contention and speaking for the majority, Romer, L.J. observed: (All ER p.572 C)
I am clearly of the opinion that the mother was not entitled, in view of her continuing contempt of court, to prosecute the present appeal and that she will not be entitled to be heard in support of it until she has taken the first and essential step towards purging her contempt of returning the child within the jurisdiction.
In a concurring judgment, Denning, L.J. also stated: (All ER p. 575 C-D)
The present case is a good example of a case where the disobedience of the party impedes the course of justice. So long as this boy remains in Australia, it is impossible for this Court to enforce its orders in respect of him. No good reason is shown why he should not be returned to this country so as to be within the jurisdiction of this Court. He should be returned before counsel is heard on the merits of this case, so that, whatever order is made, this Court will be able to enforce it. I am prepared to accept the view that in the first instance the mother acted in ignorance of the order, but nevertheless, once she came to know of it, she ought to have put the matter right by bringing the boy back. Until the boy is returned, we must decline to hear her appeal. (emphasis supplied)
6.Further, the learned counsel for the revision petitioner drew the attention of this Court to Section 19 of the Contempt of Courts Act, 1971 which enjoins that “(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt –
(a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court;
(b)where the order or decision is that of a Bench, to the Supreme Court:
Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.
(2) Pending any appeal, the appellate Court may order that –
(a)the execution of the punishment or order appealed against be suspended;
(b)if the appellant is in confinement, he be released on bail; and
(c)the appeal be heard notwithstanding that the appellant has not purged his contempt etc.”
7.In the affidavit in I.A.No.3452 of 2008 filed by the revision petitioner/husband, it is inter alia averred that he filed a revision C.R.P.No.655 of 2006 on the file of High Court and a direction has been issued directing the respondent/wife to hand over custody of the minor child to him on the first Sunday of every English Calendar month at 9.00 a.m. at the Government Museum at Egmore, Chennai and he has been directed to return the child by 5.00 p.m. on the same same day etc. and further that he filed a CMP for the visiting right of his child on his birthday and the same has also been allowed by this Court and the respondent/wife has violated the order of this Court passed in C.R.P.No.655 of 2006 and therefore, he filed Contempt Petition No.812 of 2007 and Contempt Petition No.357 of 2008 for punishment the respondent/wife for violating the orders passed by this Court and that this Court has allowed the Contempt Petition No.357 of 2008 on 14.11.2008 and dismissed the Contempt Petition No.812 of 2007 and besides imposing a fine. This Court has also issued a direction in Contempt Petition No.357 of 2008 to detain the respondent/wife in the Civil Prison for one month and therefore, the respondent is now facing an order of contempt and unless she purges out of contempt, she cannot be heard in any proceedings pending before the Court and that the intention of the respondent/ wife is to hurry up the trial without obeying any interim orders passed by any Court of Law and that he has filed I.A.No.3452 of 2008 in O.P.No.697 of 2003 pending on the file of Principal Family Court, Chennai to stall all further proceedings.
8.In the counter filed by the respondent/wife, it is inter alia averred that the alleged contempt proceedings or the results thereafter have become the subject matter of Special Leave to Appeal No.27995 of 2008 wherein stay has been granted by the Hon’ble Supreme Court and that the Principal Family Court, Chennai is bound by the decision of Hon’ble Court in C.R.P.(PD).No.1867 of 2008 dated 25.08.2008 filed by the petitioner/husband wherein the Family Court has been directed to take evidence by itself and dispose of all the three cases within three months from the date of receipt of a copy of this order and that the recording of evidence has commenced only from 30.10.2008 and therefore, prays to continue to record the evidence.
9.The learned counsel for the revision petitioner submits that the Hon’ble Supreme Court on 25.11.2008 in Petition (s) for Special Leave to Appeal (Civil) No(s).27995 /2008 has only stayed the impugned order of sentence passed by the Hon’ble High Court in Contempt Petition No.357 of 2008 dated 14.11.2008 till the next date of hearing and directed the matter to be tagged with SLP (C).No.15465/2007.
10.It is not out of place to point that in Petition(s) for Special Leave to Appeal (Civil) No(s).15465/2007 (from the judgment and order dated 06/08/2007 in C R P.No.655/2006 of the High Court of Madras), the Hon’ble Supreme Court on 10.11.2008 has observed as follows:
“At the moment the custody of the child is with the petitioner-mother. The respondent was given visitation rights. Learned counsel for the Petitioner submits that the child is not willing to go to the respondent. Learned counsel for the Respondent submits that child has not been permitted to go to father in pursuance of the court’s directions. Without adjudicating on this aspect, in the interest of justice, it would be appropriate to request the In-charge, Mediation Centre, District Courts, Delhi to examine the matter carefully after talking to the petitioner, respondent and the child and submit a report to this Court. The respondent is in Chennai. We direct him to appear before the Mediation Centre, Tis Hazari Courts, Delhi, on 25 and 26 November, 2008.
A copy of the order would be sent to Mediation Centre, Tis Hazari Courts, through a Messenger.
Adjourned by two months.”
11.The learned counsel for the revision petitioner submits that in Petition (s) for Special Leave to Appeal (Civil) No(s).15465/2007 (From the judgment and order dated 06/08/2007 in CRP No.655/2006 of The HIGH COURT OF MADRAS) the Hon’ble Supreme Court on 07.09.2007 has passed the following orders:
“Ms.Revathy Raghavan, learned counsel accepts notice and prays for and is granted four weeks’ time to file counter affidavit. Rejoinder affidavit be filed within two weeks thereafter.
We may make it clear that so far as interim relief is concerned, we are not granting and interim relief and the order passed by the High Court will continue to operate till any other order is passed.”
12.In C.R.P.No.655 of 2006 this Court on 06.08.2007 has passed the following order:
“… Directing the Respondent/ wife to hand over the custody of the child by name Ronak @ Siddarth to the petitioner/husband on the 1st Sunday of every English Calendar month at 9.00 am in the Government Museum at Egmore, Chennai and the petitioner/husband is directed to hand over the child back to the respondent/wife at 5.00 pm on the same day in the Government Museum, Egmore, Chennai. Besides, the petitioner shall have the visitation rights of the child from 2.00 pm to 3.00 pm on every religious festivals.”
13.The learned counsel for the revision petitioner submits that in Petition(s) for Special Leave to Appeal (Civil) No(s).27995/2008 the Hon’ble Supreme Court on 25.11.2008 has stayed only the impugned order of sentence passed by this Court in Contempt Petition No.357 of 2008 and not the order of contempt and therefore, unless the respondent/wife purges herself of the contempt, she shall not be permitted to participate in any of the proceedings and therefore, I.A.No.3452 of 2008 filed by the revision petitioner/husband praying for stay of all further proceedings in O.P.No.697 of 2003 to be tried along with O.P.No.1601 of 2003 and M.C.No.116 of 2005 has to be allowed in the interest of justice by setting aside the order passed by the trial Court in furtherance of substantial cause of justice.
14.Generally speaking, the word “sentence” is applied to a case where an individual has been convicted and awarded with a punishment by a competent Court such as fine or imprisonment. The expression sentence is a pronouncement by the Judge of the penalty or punishment as the consequence to the victim of guilt of a person. In fact, any proceeding that may end in sentence may substantially criminal in its nature.
15.It cannot be gainsaid that (i) if an order of committal for contempt of Court is made by a single Judge of the Hon’ble High Court, an appeal lies to a Division Bench thereof; or (ii)by a Division Bench of the High Court, an appeal lies to the Supreme Court, as of a statutory right, as per decision Mohammad Idris V. R.J.Babuji, (1984) 2 Crimes 880 (SC). Previously, a person in contempt could not be heard in prosecution of his own appeal until he purged himself of his contempt, but now this rule has been abandoned and appeal lies as of right.
16.The learned counsel for the respondent/wife submits that as the order of contempt proceedings has been stayed by the Hon’ble Supreme Court, as such the contempt proceeding is still pending and no penalty has been reached yet and therefore, the order passed by this Court in C.R.P.(PD).No.1867 of 2008 dated 25.08.2008 holds good and the same has not been challenged by the civil revision petitioner/husband and if the petitioner/husband is aggrieved against the order passed in C.R.P.No.1867 of 2008 then he ought to have filed SLP and instead he has filed I.A.No.3452 of 2008 to stay the proceedings in the Family Court and in fact, there is no bar to the respondent/wife to proceed with the trial before the Family Court as per directions issued by this Court in C.R.P.No.1867 of 2008 dated 25.08.2008.
17.On a careful consideration of respective contentions and in view of the fact that the respondent/wife has approached the Hon’ble Supreme Court by exercising her right of appeal and in as much as the Hon’ble Supreme Court in Petition(s) for Special Leave to Appeal (Civil) No(s).27995/2008 dated 25.11.2008 has ordered issuance of notice and stayed the impugned order of sentence passed by this Court in Contempt Petition No.357 of 2008 dated 14.11.2008 till the next date of hearing with a direction to tag with S.L.P.No.15465 of 2007 (which forms an integral part of appeal) and further in view of the direction issued by this Court in C.R.P.No.1867 of 2008 dated 25.08.2008 directing the Principal Family Court, Chennai to take evidence and to dispose of all three cases within three months from the date of receipt of a copy of this order, as against which no further proceedings have been initiated by the revision petitioner/husband in the manner known to law, this Court is of the considered view that there is no impediment for the trial Court to permit the party/parties for continuation of cross examination of P.W.1 and other witnesses on both sides and to proceed with the conduct of the trial of three cases as directed by this Court in C.R.P.No.1867 of 2008 dated 25.08.2008 and in that view of the matter, the civil revision petition fails and the same is hereby dismissed.
18.In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.3452 of 2008 is affirmed for the reasons assigned by this Court in this revision. Consequently, connected miscellaneous petition is also dismissed.
sgl
To
The Principal Family Judge,
Chennai