Gauhati High Court
Xx vs S Nath on 1 December, 2023
Bench: Michael Zothankhuma, Malasri Nandi
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GAHC010272192023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Cont.Cas(C)(Suo Moto)/4/2023
XX
XX
VERSUS
S NATH
ADVOCATE, S/O RABINDRA LAL NATH, HOUSE NO. 23, JYOTIKUCHI,
GUWAHATI-781040
Advocate for the Petitioner : MRS. S SARMA (SC, GHC)
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
01.12.2023
1. Heard Mr. S. Nath, S/o Mr. Rabindra Lal Nath, R/o House No. 23, Jyotikuchi,
Guwahati, against whom the suo moto contempt petition has been registered, in view
of his actions in not coming to Court with clean hands, in relation to the order dated
04.10.2023 passed in Cont. Cas(C)(Suo Moto) No.2/2023 registered against the
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appellant husband and the order dated 20.11.2023 passed in I.A. (Civil)
No.3216/2023.
2. The matter pertains to the appeal filed by appellant husband against the
judgment passed by the learned Family Court on 16.07.2019 in FC (Civil) Case
No.1007/2017, wherein a direction has been issued to the appellant husband, to pay
permanent alimony to the respondent wife amounting to Rs.5,00,000/- and monthly
maintenance of Rs.3,000/- till the permanent alimony was fully paid.
3. The appellant has filed the present Mat. App. No.4/2020, challenging directions
passed by the learned Family Court, Kamrup(M) at Guwahati. The facts of the case
has already been spelt out in the order dated 23.11.2023 passed in Mat. App.
No.4/2020 and I.A. (Civil) No.3216/2023 in Cont. Cas(C) (Suo Moto) No.2/2023 which
is reflected hereinbelow-
"1. Heard Mr. S. Nath, learned counsel for the appellant husband and Mr. S.K. Agarwal,
learned counsel for the respondent wife. The respondent wife is also present in person today.
Ms. S. Sarma, learned Standing Counsel appears for the Gauhati High Court.
2. The genesis of this case is that the learned Family Court, Kamrup(M) at Guwahati, vide
judgment dated 16.07.2019 passed in FC(Civil) Case No.1007/2017, directed the appellant
husband to pay Rs.5,00,000/- as permanent alimony to the respondent wife. Till the
permanent alimony was fully paid, the appellant husband was to pay monthly maintenance of
Rs.3,000/- to the respondent wife. As the appellant husband paid only Rs.1 lakh out of the
Rs.5 lakhs to be paid and as there was huge arrears in the payment of the monthly
maintenance, this Court had allowed the appellant husband to pay the arrear maintenance
amount in instalments. The same was not complied with and a new payment schedule was
made, on the basis of the instalment plan made by the appellant husband. This was also
not complied with the appellant husband. In view of the above, a Suo Moto Contempt Case
was registered against the appellant husband. Thereafter, vide order dated 04.10.2023, the
appellant husband was directed to be sent to civil prison for 1 (one) month for committing
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contempt of Court. This Court also held in the order dated 04.10.2023, that if the arrear
maintenance amount was paid in the meantime, the appellant husband would be at liberty to
approach this Court, to re-consider the order dated 04.10.2023 passed in the contempt case.
3. The appellant husband approached this Court vide I.A.(C) No.3216/2023, by stating
that he had made payment as per the instalment plan. However, on perusing the application,
it was found that the appellant had not made payment of arrears as per the instalment plan.
An oral submission was then made that a Deed of Compromise had been made between the
appellant husband and the respondent wife. The applicant/appellant's counsel thus prayed for
recalling the order for civil imprisonment passed on 04.10.2023 and to dispose of the appeal
and interim application on the basis of the deed of compromise. This Court, vide order dated
20.11.2023 passed in I.A.(C) No.3216/2023, directed the applicant to submit the original
deed of compromise with an application.
4. This Mat. Appeal and the I.A.(C) 3216/2023 was to be disposed of, in view of the fact
that a Deed of Compromise had apparently been executed between the appellant husband
and the respondent wife, which is to the effect that the respondent wife would not claim any
amount of the permanent alimony and monthly maintenance that had been awarded to her,
beyond what had been received by the respondent wife.
5. The learned counsel for the appellant husband submits that an affidavit with the copy
of the original Deed of Compromise was filed in the Registry of this Court on 17.11.2023. As
the same was not found in the Court's record, he produced his own copy for the perusal of
this Court today.
6. The respondent wife, who has appeared in person, has also stated before this Court
that she has signed the Deed of Compromise and that she does not wish to make any claim
against the appellant husband, besides the monthly maintenance/part of alimony already
received by her.
7. The terms of the Deed of Compromise executed between the parties is re-produced
below as follows :-
"NOW THIS DEED OF COMPROMISE IS MENTIONED AS UNDER:
1. WHEREAS the above First Party and Second Party has agreed to settle the
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matrimonial dispute amicably by mutual settlement of compromise to end the
litigation regarding divorce case between them.
2. That the first party (Husband) filed an appeal bearing Matt. Appeal
No.04/2020, before the Hon'ble High Court, against the judgement and Decree of
Divorce dated 16/07/2019 passed by the Principal Judge Family Court, Guwahati in
F.C. (Civil) Case No.1007/2017, which is pending for decision by the Hon'ble High
Court.
3. That the learned Family Court Granted Divorce vide Decree of Divorce dated
16/07/2019, with the Direction to "payment of Rs.5,00,000/- (Rupees Five Lakhs)
as permanent alimony to be paid by the first party (Husband).
4. That the first party (Husband) has paid an amount of Rs.1,00,000/- (Rupees
One Lakh) as per the direction of the Hon'ble High Court, as pre-condition for
admitting the appeal.
5. That now both the first party and second party have arrived at a decision that
case is to be settled out of compromise and accordingly the second party (wife)
has agreed to settle the matter on the ground that the alimony amount of
Rs.1,00,000/- ( Rupees One Lakh) already paid by First Party would be accepted as
final settlement of the case, and the first party would accept the Decree of
Divorce.
6. That the second party (wife) would not claim any amount of further arrear and
current maintenance and balance alimony. Second party has abandoned the claim
of balance amount of maintenance and alimony and thereby agreed to settle the
matter by way of compromise decree of Divorce.
7. That the first party (Husband) has agreed to accept the Divorce
and accordingly he will have to filed an application for compromise decree before
the Hon'ble High Court for final settlement of litigation.
8. That the deed of compromise is made between the parties voluntarily and
without any pressure or by either party.
Both the first party and second party have signed this agreement in sound mind
and good health on this 14th Day of November, 2023".
8. In view of the terms of the Deed of Compromise dated 14.11.2023 and the affidavit
alleged to have been filed on 17.11.2023, the appeal and the terms of the judgment dated
16.07.2019 passed by the learned Principal Judge, Family Court No.II, Kamrup (Metro) in
FC(Civil) Case no.1007/2017 were to be disposed of, to the extent that the respondent wife
would not receive anything beyond what she had already received as maintenance and
permanent alimony.
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9. During the period the order was being typed out by the stenographer, a check was
made with the Registry, with regard to the affidavit allegedly submitted by the counsel for the
appellant husband regarding the Deed of Compromise dated 14.11.2023. A report has come
from the Registry that only one additional affidavit was filed by the appellant husband on
17.11.2021 and not in the year 2023. As such, we are of the view that the appellant husband
has not been fair to the Court and has in fact been playing with the Court, by not coming to
Court with clean hands. In fact, the order dated 20.11.2023 passed in I.A.(C) 3216/2023 had
directed the counsel for the appellant/applicant to submit the original copy of the Deed of
Compromise along with an application during the course of the day. As such, the applicant
husband could not have submitted any application prior to 20.11.2023. As such, the oral
order passed in the Court today has been modified, as no signature was given by us in the
order, to protect ourselves from the alleged fraud.
10. The above being said, the counsel for the appellant husband had initially submitted a
photocopy of the Deed of Compromise dated 14.11.2023, which showed that no witnesses
had signed the Deed of Compromise. However, the original Deed of Compromise that has
been submitted today shows that the witnesses have now signed the Deed of Compromise,
though in the photocopy that was produced on 20.11.2023, the witnesses had not signed the
same.
11. We have also come to learn that the appellant has not been sent to a civil prison
despite this Court, in the order dated 04.10.2023 passed in Cont.Cas(C)(Suo Moto)
No.2/2023, had directed that the appellant husband should be sent to civil prison for a period
of 1 (one) month for committing contempt of Court. The Registry was to issue necessary
orders for incarceration of the appellant husband and the concerned CJM was to issue
necessary custody warrant for the same. However, it is surprising to learn that the appellant
husband has not been sent to civil prison even till today.
12. Paragraph 9, 10 & 11 of the order dated 04.10.2023 passed in Cont.Cas(C)(Suo Moto)
No.2/2023 is re-produced below as follows :-
"9. On considering the various orders passed by this Court and the behavior of the
respondent/contemnor, we find that the respondent/contemnor has intentionally not
acted upon the schedule of payment that was made as per his own proposal and
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recorded in the Order dated 26.07.2023. As such, we find the respondent Biswajit Das
in contempt of the Order dated 26.07.2023. We are of the considered view that the
respondent/contemnor should thus be sent to civil prison for a period of 1 (one)
month for committing contempt of Court.
10. The Registry shall accordingly issue necessary order and instructions for the
incarceration of the respondent/ contemnor in civil prison for a period of 1 (one)
month, by directing the concerned CJM to issue necessary custody warrant for putting
the respondent/contemnor in a civil prison for 1 (one) month. However, in the event
the respondent/contemnor pays the arrear maintenance amount in installments as
provided in the Order dated 26.07.2023, the respondent/contemnor will be at liberty to
approach this Court, to reconsider the order passed today.
11. The Contempt Case is accordingly closed. A report on the steps taken will then be
placed by the Registry and the concerned CJM in the case record of Mat. App. No.
4/2020."
13. The Registry shall submit a report in relation to the above order dated 04.10.2023 by
the next Court date.
14. List the matter on 30.11.2023."
4. As per the order, dated 23.11.2023 passed in I.A. (Civil) No.3216/2023, the
learned counsel for the appellant was to submit the original copy of Compromise Deed
along with application. On 30.11.2023, the learned counsel for the appellant
husband had informed this Court that an affidavit had been filed by the
appellant husband on 17.11.2023. However, on checking with the Registry of
this Court, it was found that no affidavit had been filed by the appellant
husband on 17.11.2023, as the only additional affidavit filed by the appellant
husband was on 17.11.2021 and not in the year 2023.
5. The respondent Mr. S. Nath submitted on 30.11.2023 that the
Acknowledgement receipt issued by the Registry of this Gauhati High Court
showed that the appellant husband had submitted an affidavit on 18.11.2023.
However, as the same was under objection, the additional affidavit filed on
18.11.2023 was registered only after removing the defect in the affidavit, which
was done on 28.11.2023. He had accordingly submitted that the additional
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affidavit filed by the appellant husband, in compliance with the order dated
04.10.2023, should be perused for disposing of the appeal and the contempt
case. However, the receipt given by the Registry of the Gauhati High Court
having stated in clear terms the "Date of Receipt - 28.11.2023", clearly showed
that the counsel Mr. S. Nath was guilty of telling lies to this Court again.
6. On verifying the issue with the Registry of this Court we found that no affidavit
had been filed by the appellant husband on 8.11.2023. Accordingly, we directed the
Registry to register a suo moto case against the respondent, as blatant lies had been
told to us by the respondent, in an attempt to mislead us.
7. Mr. S. Nath, the respondent submits that he may be forgiven for the wrong
statements made by him in this Court, which was due to wrong information given to
him by his clerk. He tenders his unqualified apology before this Court and prays that
the contempt petition may be closed.
8. On considering the submission made by Mr. S. Nath we are of the view that the
contempt petition should be closed, with a warning given to him that such action of
the respondent should not be repeated in the future.
9. With the above, the contempt petition stands closed.
[ JUDGE JUDGE
Comparing Assistant
