Nishu Bansal W/O Ajay Bansal And ... vs Ajay Bansal S/O R.S. Bansal
2007 Latest Caselaw 2170 Del

JUDGMENT

V.B. Gupta, J.

1. Present contempt petition under Section 11 and 12 of the contempt of Courts Act 1971, seeks issuance of contempt proceedings against the respondent for willfull disobedience of the orders dated 6th December, 2006 and 4th January, 2007 passed by the Court of Hon'ble Justice A.K. Sikri in Crl.M.C.(M) No. 714/2006.

2. It is stated in the present petition that on 9th November, 2004, the petitioner had filed a petition under Section 125 Cr.P.C. against the respondent. The trial court vide order dated 18th October, 2005 passed an interim maintenance in favor of the petitioner and her minor child Mansi @ Rs. 2,000/- each from the date of the application i.e. 9th November, 2004.

3. Thereafter, a Revision Petition was filed by the respondent in the court of Additional Sessions Judsge, which was dismissed on 23rd January, 2006.

4. After the dismissal of the Revision Petition, respondent filed a petition under Section 482 Cr.P.C. before this Court. On 10th February, 2006, this Court directed the respondent to deposit the entire arrears of interim maintenance for wife and child @ Rs. 1500/- each within one month. Thereafter, on 28th February, 2006, an application was moved for modification of this order praying that respondent could only arrange Rs. 30,000/- and he be allowed to deposit this amount in the Court.

5. On 3rd March, 2006, this Court permitted the respondent to deposit Rs. 30,000/- with the Registrar General of this Court and held that the question of payment of the balance amount, shall be dealt with by the court later.

6. On 9th May, 2006, the petitioner filed a Revision Petition (Crl.) No. 331-332/2006 for enhancement of the interim maintenance and that petition was tagged with Crl. M.C.(M) No. 714/2006.

7. On 6th December, 2006, the following order was passed by Hon'ble Justice A.K. Sikri:

Order was passed on 12.7.2006 directing the trial court to send the record of this case, but the same has not been received till date. Let the trial court record be summoned through special messenger. The Superintendent of the concerned Branch will carry out the investigation and find out as to who is at fault and his explanation shall also be called for and placed on record on the next date of hearing.

List on 20.2.2007. The respondent, in the meantime, shall keep on paying interim maintenance as fixed by the learned trial court regularly and shall clear the arrears of maintenance as well within one month from today.

December 06, 2006 A.K. Sikri, J.

8. On 20th December, 2006, when the matter came before the trial court and the respondent stated that he would be paying the amount of arrears and regular interim maintenance before/on 6.1.07.

9. On 6.1.07, the respondent did not pay the arrears and regular interim maintenance but gave Rs. 5,000/- which the petitioner took under protest.

10. Thereafter, it transpires that an application was moved by the respondent for seeking modification of the order dated 6th December, 2006 but the same was dismissed vide order dated 4th January, 2007. The relevant portion of this order reads as under:

No ground to modify the order dated 6.12.2006 is made out. This application is dismissed. However, the applicant is granted one months time from today to clear the arrears.

dusty.

Sd/-

A.K. Sikri, J.

4.1.07.

11. The respondent in utter violation of the order of this Court has failed to pay the arrears of interim maintenance and has also failed to pay subsequent amount of interim maintenance and has thus committed contempt of the orders dated 6.12.2006 and 4.1.2007 of this Court. So, it is prayed that contempt notice be issued to the respondent and he may be awarded punishment in accordance with law.

12. Notice of this petition was issued to the respondent. Respondent in its reply has stated that the present petition is not maintainable under the eyes of law as the order dated 18th October, 2005 passed by the Magistrate directing the respondent to pay interim maintenance to the petitioner and her daughter is inherently and patently wrong and the same has been challenged under Section 482 Cr.P.C.

13. Further, remedy to execute the said order has been provided in Section 125(3) Cr.P.C. It is denied that respondent undertook to pay the whole of the arrears on or before 6th January, 2007. The respondent at present is working in NDMC as Daily Wager/Beldar and is getting Rs. 127/- per day. The previous sanction is over on 4th May, 2007 and now he is out of job. On the other hand, petitioner keeping in view her status does not require any maintenance. The present petition is not maintainable under Section 11 and 12 of the Contempt of Court Act and is liable to be dismissed.

14. I have heard learned Counsel for the parties and I have gone through the record.

15. It has been contended by learned Counsel for the petitioner that respondent has violated the orders passed by this Court and under these circumstances contempt proceedings be initiated against him.

16. On the other hand, it has been contended by learned Counsel for the respondent that present petition is not maintainable since the respondent is out of job and he is unable to pay the maintenance as ordered by the Court. Further, the present contempt petition is not maintainable, as equally efficacious remedy under Section 125(3) Cr.P.C. is available to the petitioner and in support of his contentions, learned Counsel for respondent has cited DGU Workers Union and Ors. v. Sh. Kishu Tekchandani and Ors. 2004 VI AD (DELHI) 542 and Jolly George Varghese and Anr. v. The Bank of Cochin .

17. Section 2 of the Contempt of Courts Act, 1971 defines as to what is the "contempt of court" and what is "civil contempt". The relevant provisions of this Section reads as under:

Section 2. Definitions - In this Act, unless the context otherwise requires:

(a) "contempt of court" means civil contempt or criminal contempt;

(b) "civil contempt" means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;

(c) xxx xxx xxx

(d) xxx xxx xxx

18. Certain facts are not disputed i.e. the respondent filed a petition under Section 482 Cr.P.C. against the order dated 18th October, 2005 and 23rd January, 2006 passed by the court of Ms. Poonam Chaudhary, Metropolitan Magistrate and Mr. Chander Gupta, ADJ, granting interim maintenance to the petitioner @ Rs. 2,000/- per month each from the date of application i.e. 9th November, 2004.

19. In this petition on 10th February, 2006, this Court directed the respondent to deposit the entire arrears of interim maintenance for wife and child @ Rs. 1,500/- per month within one month.

20. Thereafter, on 28th February, 2006, respondent moved an application for modification of order dated 10th February, 2006 praying that he could arrange Rs. 30,000/- only and as such he be allowed to deposit Rs. 30,000/- in the Court.

21. On 3rd March, 2006, this Court permitted the respondent to deposit Rs. 30,000/- with the Registrar General and it was ordered that the question of payment of the balance amount shall be dealt with by the Court later.

22. On 12th July, 2006, the counsel for respondent informed this Court that he has deposited Rs. 30,000/- with the Registrar General and the matter was renotified for 6th December, 2006.

23. On 6th December, 2006, the impugned order was passed by this Court. Thereafter, an application for modification of impugned order dated 6th December, 2006 was filed by the respondent and that application was also dismissed by this Court vide impugned order dated 4th January, 2007.

24. So, the record will show that all the orders have been passed by this Court, in the presence of the respondent and it is the respondent, who has been moving one application or the other, seeking modification or extension of time for depositing the maintenance money.

25. The question which arises for consideration is as to whether present petition for contempt under these circumstances is maintainable or not when, there is a provision under Section 125(3) and 128 of the Code of Criminal Procedure, 1973 with regard to the enforcement of order of maintenance.

26. It is well settled that the execution proceedings and contempt proceedings are independent of each other and they operate in two different fields or spheres. As far as execution proceedings are concerned, it is filed by a party against his adversary to the litigation for enforcement of the rights and liabilities created under the decree or the order whereas, the contempt proceedings are initiated to uphold the prestige and the dignity of the court and majesty of law. As such, the pendency of an execution case is no bar to initiation of contempt proceedings so long as such proceedings are initiated to vindicate public confidence in the efficacy of the judicial system.

27. Here, in the present case, the respondent has filed a petition under Section 482 Cr.P.C. challenging the order passed by the Magistrate as well as the ASJ and in these proceedings, the impugned orders have been passed by this Court.

28. The record shows that the respondent had been complying with the orders passed, earlier to the passing of impugned orders by this Court and has also deposited a sum of Rs. 30,000/- in terms of the order passed by this Court. Now, the plea taken in the reply filed by the respondent to the contempt petition is that, there has been no willful disobedience since the respondent is out of job and is unable to pay any maintenance to the petitioner. However, he admits that he is working as Daily Wager/Beldar in NDMC and he is getting Rs. 127/- per day. The previous sanction is over on 4th May, 2007 and now he is out of job.

29. There is nothing on record to show that since 4th May, 2007, respondent is out of job, as respondent has not placed on record any document to show that sanction for Daily Wager has been over since 4th May, 2007. Admittedly, till 4th May, 2007, the petitioner was employed and was getting Rs. 127/- per day, as per his own case. He nowhere states as to what was the reason for not complying with the impugned orders passed by this Court and not paying month to month maintenance, to the petitioner, when admittedly he was gainfully employed till 4th May, 2007. So, there is a willful disobedience on the part of the respondent in not complying with the orders passed by this Court.

31. Since, there has been willful disobedience on the part of the respondent in comply with the impugned orders, the case law cited by the respondent are not applicable to the facts of the present case.

32. Under these circumstances, respondent is liable for contempt of the court and contempt proceedings be initiated against the respondent.

33. List the matter on 6th February, 2008 for serving of the contempt notice upon the respondent.

34. The respondent is directed to appear in person on that date.