JUDGMENT
Masodkar, J.
1. by his order dated 27th of January 1986 in this contempt petition ordered issuance of notice to Respondent No. 1 as to why he should not be proceeded with for contempt of Court and be not dealt with as such for not obeying the directions of the Court given in First Appeal No. 479 of 1983 by order dated 20th of December, 1984.
2. The brief facts giving rise to those proceedings under the Contempt of Courts Act are that Respondent No. 1 Bharat Kumar Shivpasad Rungta was married to the Petitioner Sarladevi Rungta according to Hindu rites. Respondent No. 1 filed marriage Petition No. 10 of 1977 in the City Civil Court, Greater Bombay against the Petitioner wife for a decree of nullity of marriage and in the alterative prayed for dissolution of marriage by a decree of divorce on various grounds. The petition was resisted by the wife. During the pendency of the proceedings on the application of the wife interim alimony at the rate of Rs. 700/- per month was fixed. As per the order dated 19th of July 1982 the marriage petition was allowed and a decree for divorce was passed. By the same decree the husband was ordered to pay to the wife permanent alimony at the rate of Rs. 750/- per month. Feeling aggrieved by the decree of divorce, the wife preferred First Appeal No. 479 of 1983 to this Court. During the pendency of the appeal Masodkar, J. passed an order dated 20th of December 1984 whereby Respondent No. 1-husband was directed to pay alimony at the rate of Rs. 750/- per month during the pendency of the appeal. He was also directed to clear the arrears within 4 months. It was further directed that with regard to the financial position of Respondent No. 1, Respondent No. 1 should file a specific affidavit which would be considered for the purpose of considering the quantum of maintenance. The petitioner-wife also given opportunity to file similar affidavit. As Respondent No. 1 husband did not pay the maintenance amount in spite of the decree in the earlier order to pay the amount, the decree of divorce under appeal was directed to be suspended. It was made clear that the quantum of maintenance fixed under the decree was kept operative. The appeal was directed to come up for hearing after the maintenance was so paid. Respondent No. 1 husband did not pay any amount towards the maintenance and did not comply with the order of this Court dated 20th of December 1984. Therefore, the wife filed Contempt Petition No. 10 of 1986 and in that Petition Masodkar, J. Passed an order for issuing notice to Respondent No. 1-husband in the following terms :-
“By an order dated December 20, 1984 in First Appeal No. 479 of 1983, this court issued directions with regard to payment of alimony at the rate of Rs. 750/- per month and also directed the said respondent to clear the arrears within four months. However, he has not admittedly obeyed those directions. All those directions are contained in paragraph 4 of the Oral Order.
Obviously, the respondent is conducting himself contrary to the directions issued without obtaining any leave of the Court. Prima facie, thus, there existed a case for issue of notice for contempt against the respondent.
Issue notice to the respondent as to why he should not be proceeded with for contempt of Court and be not dealt with as such for not obeying the directions of the Court. Notice returnable within three weeks. The matters be placed before appropriate court taking contempt matters after the notice is served.”
3. Respondent No. 1-husband in reply to the notice filed his affidavit dated 24th of November, 1986. In his reply he states that due to unavoidable circumstances he has not been able to pay the alimony amount as directed by this Court. According to him, it is not his wilful act but due to circumstances beyond his control and he has no intention to show any disrespect to the orders of this Court. The assessment orders for the year 1985-86 and the statement for the year 1986-87 submitted by Respondent No. 1 show that he is not in position to pay the amount. In the notice of demand under S. 156 of the Income-tax Act, 1961, produced by Respondent No. 1 shows that his income was assessed at Rs. 8,560/-. The statement showing the computation of income filed along with the notice of demand shows that he had received some income from Rungta Industries on account of interest on capital and also on account of share of profit. It also shows that during that year Respondent No. 1 sold 1800 silver coins at the rate of Rs. 16.20 per coin for a total amount of Rs. 29,160.00. the total taxable income is shown at Rs. 8,534.88 and the taxable capital gain is shown at Rs. 7,864/-. Respondent No. 1 has also produced a copy of his affidavit filed by him in First Appeal No. 479 of 1988 dated 27th of February, 1985. The Petitioner-wife has produced a copy of her affidavit dated 14th of August, 1985 filed in First Appeal No. 479 of 1983.
4. The learned Counsel for the Petitioner contends that Respondent No. 1-husband is a member of an affluent family owing a large property in Bombay and the family is running industries in the name of M/s. Rungta Industries. In that connection he referred to the statement made by the Petitioner in her affidavit dated 14th of August, 1985 filed in First Appeal No. 476 of 1983. He also referred to the statements made by the Petitioner on oath in this petition at para 9 regarding the financial Positron of Respondent No. 1. At para 9 of the petition the Petitioner states thus :-
“the petitioner further submits that the father of the Respondent owns a large number of immoveable property includes a bungalow knows as Sharad Sadan in the posh locality at Tagore Road of Santacruz Linking Road. The father of the Petitioner also owns immoveable properties at Jhunjhunu (Jaipur). The father of the Petitioner was also a partner in the famous firm known as M/s. Swaroopchand Prithviraj of Rungta House which has sugar and cotton mills etc. The father of the Petitioner is also a member of the East India Cotton Association and has two shops in the Cotton Exchange Building at Kalbadevi Road. I further say that the Petitioner has admitted in his evidence on oath that the entire family is living jointly at 212/B, Vithalbahi Patil Road. The Petitioner and his father and other members of the joint family have common and his father and has common kitchen for all practical purposes as members of Hindu undivided family. The Petitioner further submits that they are shown as separate for the purpose of payment of income-tax and wealth-taxes. I further say that the Respondent and his brothers are also partners in the Roongtha Industries.”
Respondent No. 1 husband in his affidavit-in-reply dated 24th of November, 1986 has not denied and controverted the statements made by the Petitioner at para 9 of the petitioner reproduced above. The learned Counsel for the Petitioner drew my attention to paras 14 and 15 appearing in the examination-in-chief of Respondent No. 1-husband recorded in the marriage petition in the trial Court. Those paras appear at page 157 of the paper book of First Appeal No. 479 of 1983. They read thus :-
“14. I am a partner of M/s. Rungtha Industries. Our firm is the distributor of Lingbrand detergent powder. We also deal in cloth and yarn. My share of profits is 25%. I am also engaged in the business of speculation of shares. I pay income-tax. I produce assessment orders for the years 1979-80, 1980-1981 and 1981-82, (The 3 assessment orders tendered and marked Ex.B Collectively). My approximate annual income is Rs. 24,000/- during the last year, in suffered a loss of about Rs. 95,000/- in the business of speculation of shares. I do not have any source of income.
15. I own ornaments, cash and shares of the total value of Rs. 1,38,800/-. I produce last years wealth-tax assessment order. (Wealth-tax assessment order for the year 1980-81 tendered and marked Ex.C).”
The learned Counsel for the Petitioner submits that the statements made by Respondent No. 1 in the trial Court in his examination-in-chief reproduced above clearly shows that he is an industrialist and a rich businessman and he has sufficient means to pay permanent alimony fixed by the trial Court and also ordered by this Court, but Respondent No. 1 did not intend to pay the maintenance to his wife and wilfully disobeyed to orders of this Court.
5. The learned Counsel for Respondent No. 1-husband, on the other hand, contends that on evidence relied on by the Petitioner it cannot be held that he was in a position to pay the permanent alimony to the petitioner during the period from 1983 till today. He submits that the Income-tax demand notice produced by Respondent No. 1 with his affidavit dated 24th of November, 1986 clearly indicated that he did not have sufficient means to pay permanent alimony to the petitioner.
6. On going through the evidence referred to above, I am unable to accept the submission of the learned Counsel for Respondent No. 1 that 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 1985-1986 filed along with the affidavit of Respondent No. 1 dated 24th November, 1986 shows that in that year he 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 filled in First Appeal No. 479 of 1983 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. Rungtha Industries dealing in cloth and yarn and 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 petition 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 20th December, 1984, passed by this Court in First Appeal No. 479 of 1983. Thought he has sufficient means he deliberately and intentionally did not make payment ordered by this Court and wilfully disobeyed the orders of this court.
7. The learned Counsel for Respondent No. 1 contends that the Petitioners could have recovered the amount of the permanent alimony decreed in her favour by the trial Court by resorting to execution proceedings. He pointed out to me that as per S. 28A of the Hindu Marriage Act all decrees and orders made by the Court in any proceeding under that Act could be enforced in the like manner as the decrees and orders of the Court made in the exercise of its civil jurisdiction for the time being in force were enforced. He submits that though this Court In First Appeal No. 479 of 1983 passed orders on 20th of December 1984 and directed Respondent No. 1 to pay alimony at the rate of Rs. 750/- per month and further directed Respondent No. 1 to pay alimony at the rate of Rs. 750/- per month during the pendency of the appeal and the arrears be cleared within four months and Respondent No. 1 failed to make any payment, this Court cannot proceed against Respondent No. 1 for the contempt of Court under the Contempt of Courts Act, 1971. Accounting to him, as the Petitioner could take out execution proceedings for the recovery of the amount from Respondent No. 1, Respondent No. 1 cannot be punished under the Contempt of Courts Act for disobeying the orders of the Court. The learned Counsel in support of his contention relied on the decision of this Court in Contempt Petition No. 146 of 1985 decided on 21st of November, 1986 by Daud, J. In that case the respondents did not pay the amount of Rs. 86,639.85 which they were ordered to pay in a petition under the Payment of Wages Act. As the Respondents in that case did not pay the amount mentioned above, the workmen took out proceedings under the Contempt of Courts Act, 1971, alleging that the respondents by not obeying the orders of the Court committed civil contempt. On the facts of that case the learned Judge held that as the amount could be recovered by taking proceeding under the payment of Wages Act, against the assets of the respondents, they could not be punished for their failure to comply with the order to pay the amount under the Contempt of Courts Act. Before the learned Judge’s decisions in Shankerpuri Chanpuri Goswami v. Shaikh Abdulhakim Asmadmahamad reported in (1985) 1 Lab LJ 281 (Guj), Bipinchandra B. Singwala v. Navin Flusrine Industries reported in 1981 Lab IC 1497 (Guj) and Abdul Kadar Fidahussain v. Abbasbhai Abdul Quayoom, reported in (1975) 77 Bom LR 107 were cited and they have all been considered by the learned Judge. While considering the decision in 1981 Lab IC 1497 (Guj), the learned Judge observed :
“…. There again, a Division Bench of the Gujarat High Court opined that the mere existence of a remedy to execute an award passed by a Labour Court by way of a recovery application, did not exclude the power of the High Court to take action under the contempt of Courts Act. But there are cases and cases and it all depends on the degree of contumacy …..”
In the case of Shankerpuri Chanpuri Goswami reported in (1985) 1 Lab LJ 281 (Guj) a workman had obtained an order against the employer, whereunder the latter was under an obligation to reinstate him and also pay full backwages and costs. Compliance with the order not having taken place, the High Court seems to have been moved for initiating action under the Contempt of Courts Act. One of the defences advanced on behalf of the employer was that non-compliance with the award was a breach punishable under section 29 of the Industrial Disputes Act, for which reason respondent could not be punished under the Contempt of Courts Act. The High Court repelled this contention by holding that the provisions of contempt of Courts Act, were in addition to, and, not in derogation of the provisions of any other law relating to contempt of Courts. Section 22 of the Contempt of Courts Act clearly lays down that the provisions of the Act shall be in addition to, and not in derogation of, the provisions of any other law relating to contempt of Courts. The fact that the amount could be recovered by the Petitioner by taking recourse to the execution proceedings does not in any way take away or curb the powers of this Court in suitable cases from punishing the contemner who is wilfully disobeying the orders of this Court.
8. Section 24 of the Hindu Marriage Act empowers the Court to order payment of maintenance pendente lite and expenses of proceedings. In a petition by a husband against a wife for reliefs under that Act, the Court has powers to grant interim maintenance and the expenses of proceedings and if the Petitioner-husband does not pay the maintenance and the expenses of the proceedings, the wife cannot be forced to take recourse to execution proceedings. If she is asked to recover the amount by taking out execution proceedings, the recovery of the amount may take years together and by that time the marriage petition will proceed further and would be decided without the wife being able to defend it properly and it would lead to patent injustice. Therefore, in such case, where the husband does not pay the maintenance and the expenses of the proceedings, the Court can stay the further proceedings. If the petition is by wife for the reliefs under the Act and the husband who is ordered to pay the maintenance and expenses of the proceedings under the Act wilfully disobeys the orders of the Court though he is in a position to pay, he can be proceeded against for the contempt of Court and can be punished. In this connection I may refer to the observations of Marten, J. in Rodger v. Rodger, (Suits Nos. 1418 and 2915 of 1922 delivered on January 12, 1923) and referred to in Wilhelmina Codd v. Bertie Elijah Codd, 25 Bom LR 339 : (AIR 1924 Bom 132). Marten, J. at page 343 and 344 (of Bom LR) : (at p. 134 of AIR) of the report observed thus :-
“I Can only hope that these Chamber orders for security for costs will be reconsidered in the future. I had occasion in another case of Rodger v. Rodger to point out that, as far as I can see, the English authorities do not strike out a husband’s petition, or strike out his defence to his wife’s petition, merely because he has failed to give security. What they do, as far as I can see, and as far as counsel’s researches have so far been brought before me, is to stay the husband’s petition, and as regards the wife’s petition to proceed against the husband for contempt, if he is proved to be able to pay but contumaciously refuses to do so.”
In the present case Respondent No. 1, who is very well in a position to pay the maintenance amount to the Petitioner, is wilfully flouting the orders of this Court and contumaciously refusing to obey it. He is aware that his wife has preferred an appeal against the decision granting him relief for dissolution of marriage by the City Civil Court, Greater Bombay and that appeal, being First Appeal No. 479 of 1983, has been admitted by this Court and this court by order dated 20th of December, 1984 ordered Respondent No. 1 to pay the arrears of alimony within 4 months and go on paying alimony at the rate of Rs. 750/- per month during the pendency of the appeal and further directed the appeal to come up for hearing after maintenance was so paid. He knows that the appeal of his wife is to come up for hearing after he makes payment of the maintenance ordered by the Court. He does not want that the appeal should come up for hearing and wants to protract the litigation so that he can keep his unwanted wife in misery forever. I am told by the learned Counsel for the Petitioner that Respondent No. 1 has taken a mistress named Radhadevi and they are living together as husband and wife and Radhadevi also gave birth to a male child from him in March 1979. the learned Counsel for the Petitioner for the aforesaid purpose referred to para 60 of Respondent No. 1’s deposition in the trial Court werein he has clearly admitted that after filing the marriage petition he had taken Radhadevi as his mistress and one male child was born to her from him. Taking into consideration all those facts I am fully satisfied that Respondent No. 1 is wilfully disobeying the orders of the court for payment of maintenance to the Petitioner during the pendency of the appeal and thereby he has committed civil contempt as defined in Section 2(b) of the Contempt of Courts Act. Though the maintenance amount can be recovered by taking recourse to execution proceedings, in my opinion, it will result into great hardship to the Petitioner and the administration of justice would be impeded. The courts have to see that their orders are carried out and no party should be allowed to wilfully flout the orders of the Court and impede the administration of justice. On the facts and in the circumstances of the present case I think that this is a fit case in which this Court should exercise the powers under the Contempt of Courts Act. The object of taking action under the Contempt of Courts Act is not to punish Respondent No. 1, but the object is to see that the Court’s orders are complied with.
9. Learned Counsel for Respondent No. 1 next contends that the alleged contempt took place long before the order dated 27th of January, 1986 was passed by this Court whereby, notice to show cause to Respondent No. 1 why no action should be taken was issued. The learned Counsel referred to S. 20 of the Contempt of Courts Act and submitted that this Court should not have initiated proceedings for contempt as the order in question was passed in First Appeal No. 479 of 1983 more than a year before 27th January 1986. It is true that action for Contempt of Court must be taken within one year from the date on which the contempt is alleged to have been committed. In the present case the order dated 20th of December 1984 directs Respondent No. 1 to clear the arrears of maintenance within four months. It means that the arrears of maintenance should have been paid by 20th of April 1985. Respondent No. 1 did not make any payment and did not comply with the said order during the aforesaid period. Within one year of the expiry of that period the proceedings for contempt of Court were commenced by this Court by order dated 20th of July 1986 whereby Respondent No. 1-husband was called upon to show cause why he should not be dealt with under the Contempt of Courts Act. Therefore, it cannot be said that the present proceedings under the Contempt of Courts Act were commenced after the expiry of a period of one year from the date on which the contempt was alleged to have been committed. Apart from this, the payment of maintenance during the pendency of appeal has to be made every month and non-payment. Thereof by Respondent No. 1 is the recurring cause for contempt and the appeal is still pending and Respondent No. 1 is refusing to pay any amount towards the maintenance though specifically ordered by this court. Therefore, I am unable to agree with the learned Counsel for Respondent No. 1 that the present proceedings for contempt are barred by limitation under S. 20 of the Contempt of Courts Act.
10. The learned Counsel for Respondent No. 1 next contended that the Petitioner in her contempt petition did not aver that Respondent No. 1 wilfully disobeyed the order of the court and, therefore, this court could not hold that Respondent No. 1 wilfully disobeyed the order of this Court. He also submitted that the Petitioner in her application had stated that she filed petition under O. 21, R. 37 of the Civil Procedure Code for arrest and detention of Respondent No. 1 and, therefore, no action could be taken by this Court under the Contempt of Courts Act. I am unable to agree with the learned Counsel. The averments at para 10 of the petition read as follows :-
“The Petitioner therefore submits that the Respondent is deliberately not paying the permanent alimony as ordered by the Court and is avoiding to pay the same for one reason or the other though the Respondent is possessed of sufficient means to pay the permanent alimony and obey the decree passed by the Court …..”
Those averments are sufficient to indicate that the disobedience of the order of this Court by Respondent No. 1 is wilful. After all whether disobedience is wilful or otherwise has to be inferred from the conduct of the party and in the present case I have already indicated that Respondent No. 1 has been flouting the orders of this Court with a design to protract the hearing of the appeal filed by his wife in this Court though he had means to pay the alimony.
11. It is true that the Petitioner in her petition referred to the action to be taken under O. 21, R. 37 Civil Procedure Code which provides for the execution of the decree or order of the Court by arrest and detention of the judgment-debtor. Taking into consideration all the averments in the petition, Masodkar, J. passed the order dated 27th January 1986 for issuing notice to Respondent No. 1 to show cause why action under the Contempt of Courts Act should not be taken against him and the said order was passed as he was prima facie satisfied that the case existed for taking action under the Contempt of Courts Act. Respondent No. 1 has been given full opportunity to show cause why he should not be punished for committing contempt of Court. The reference to the provision of O. 21, R. 37 Civil P.C. in the petition does not in any way vitiate the proceedings under the Contempt of Court Act Commenced by this Court by order dated 27th of January, 1986.
12. It takes me to the punishment to be awarded to Respondent No. 1 under S. 12 of the Contempt of Courts Act. The learned Counsel for Respondent No. 1 contends that the sentence of fine will meet the ends of Justice. I am unable to agree with him. The punishment under the contempt of Courts Act for Civil Court contempt is awarded so as to compel the party to comply with the orders of the Courts. As stated by me earlier, Respondent No. 1 is sufficiently rich and he can pay any amount of fine and it will not have the desired effect. Therefore, in my opinion, in the circumstances of the present case, the fine will not meet the ends of justice. Taking into consideration all those things, I hold Respondent No. 1 guilty of contempt of Courts and under Section 12 of the Contempt of courts Act I sentence the Respondent No. 1 to simple imprisonment for 3 months. Respondent No. 1 shall pay the cost of the proceedings to the Petitioner. The costs are quantified at Rs. 800/-.
At this stage the learned Counsel for Respondent No. 1 applies for stay of the order in order to enable him to prefer an appeal. His application is allowed and execution of the order is stayed for a period of one month.
13. Order accordingly.