Sudeepa Biswajit Ganguly vs Biswajit Bijankumar Ganguly
2023 Latest Caselaw 5215 Guj

       C/MCA/37/2023                              ORDER DATED: 06/07/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/MISC. CIVIL APPLICATION NO. 37 of 2023
================================================================
                         SUDEEPA BISWAJIT GANGULY
                                    Versus
                       BISWAJIT BIJANKUMAR GANGULY
================================================================
Appearance:
MR VIVEK B GUPTA(5611) for the Applicant(s) No. 1
MR KARTIKEY KANOJIYA FOR MR DILIP L KANOJIYA(3691) for the
Opponent(s) No. 1
================================================================
     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
           and
           HONOURABLE MR. JUSTICE M. R. MENGDEY
                      Date : 06/07/2023
                       ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. By this application filed under Article 215 of The Constitution of India read with Section 12 of The Contempt of Courts Act, 1971 (for short "the Act"), the applicant seeks initiation of appropriate action against the respondent for contempt of Court, who has committed willful disobedience of order dated 15.12.2021 passed in Criminal Misc. Application No.443 of 2021, whereby the Learned Additional Chief Judicial Magistrate, Ahmedabad (Rural) had directed the respondent to pay interim maintenance of Rs.10,000/- per month towards the applicant and Rs.3,000/- per month towards her minor son from the date of filing of the impugned application i.e. from 18.03.2019.

2. Learned advocate Mr.Gupta for the applicant has submitted that despite the aforesaid order dated 15.12.2021, the respondent deliberately did not make payment of the interim maintenance amount to the applicant and her minor son, in spite of having the requisite financial resources for the purpose.

C/MCA/37/2023 ORDER DATED: 06/07/2023

3. Thus, it is submitted that, in view of the above, on 04.03.2022, the applicant was constrained to file an application under Section 125(3) of the Criminal Procedure Code, 1973 (for short "the Cr.P.C."), before the learned Additional Chief Judicial Magistrate, Ahmedabad (Rural), which was registered as Criminal Misc. Application No.683 of 2022, wherein an attachment order has also been passed against the respondent for non- payment of interim maintenance of Rs.5,46,000/- as on 18.09.2022, however, the respondent has not discharged his obligation in compliance of order dated 15.12.2021 directing him to pay interim maintenance as above.

4. Learned advocate Mr.Gupta has submitted that when the learned Trial Judge was on the verge of sending the respondent to judicial custody for non-compliance of order dated 15.12.2021, on 03.09.2022, the respondent gave an undertaking to the Court assuring the Court that he would pay 20% of the outstanding interim maintenance amount to the applicant, failing which he may be sent to jail. However, in spite of giving the aforesaid undertaking, in utter willful disobedience and defiance thereof, the respondent did not pay the aforesaid 20% of pending maintenance or for that matter any amount to the applicant towards arrears of maintenance and had instead preferred Criminal Misc. Application No.2853 of 2022 in the Court of the Additional Judge, (Rural) seeking condonation of delay of 167 days in filing appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short "the D.V. Act, 2005") challenging order dated 15.12.2021, which has also been dismissed vide order dated 16.12.2022.

C/MCA/37/2023 ORDER DATED: 06/07/2023

5. Learned advocate Mr.Gupta has submitted that after passing of the impugned order dated 15.12.2021, while the respondent had on the one hand not paid the outstanding interim maintenance amounting to Rs.4,55,000/- as on 18.02.2022 to the applicant, which constrained the applicant to file Criminal Misc. Application No.683 of 2022; and on the other hand, he had withdrawn a sum of Rs.5,02,114/- from his PPF account on 13.04.2022, which is much more than the sum of arrears of maintenance, but chose not to pay the same to the applicant in compliance of order dated 15.12.2021 passed by the Trial Court and undertaking dated 03.09.2022 given by the respondent to the Trial Court and hence, the respondent committed willful disobedience of order dated 15.12.2021 passed in Criminal Misc. Application No.443 of 2019, and undertaking given to the Trial Court. Thus, it is submitted that this application to punish the respondent for committing contempt of Court by willfully not complying with the order dated 15.12.2021 directing payment of interim compensation to the applicant and her minor son and breach of undertaking dated 03.09.2022 given to the Court. In support of his submissions, he has placed reliance on the judgment of the High Court of Delhi in the case of Sonali Bhatia vs. Abhivansh Narang, 287 (2022) DLT 35 and on the judgment of this Court in the case of Lopaben Patel vs. Hitendra Rambhai Patel, 1999 GLH (2) 203.

6. At the outset, learned advocate Mr.Kanojiya has submitted that vide order dated 15.12.2021, interim maintenance was granted to the present applicant. It is submitted that after the order dated 15.12.2021, the present Applicant has already proceeded to execute the interim order granting maintenance. It is also submitted that the order dated 15.12.2021, by the interim maintenance was granted, is challenged before

C/MCA/37/2023 ORDER DATED: 06/07/2023

this Court by preferring Special Criminal Application No.2421 of 2023 is pending consideration.

7. Learned advocate Mr.Kanojiya has submitted that for execution of the order dated 15.12.2021 and for recovery of interim maintenance, the applicant had preferred Criminal Misc. Application No.683 of 2022 under Section 125(3) of the Cr.P.C. It is submitted that in furtherance of an execution application, the applicant had also preferred application for distress warrant, which was allowed vide order dated 09.09.2022.

8. Learned advocate Mr.Kanojiya has submitted that the applicant had also preferred an application for non-bailable warrant, where the learned Additional Senior Civil Judge and A.C.J.M. passed an order directing attachment of the properties. It is further submitted that vide order dated 15.12.2021, interim maintenance was granted to the applicant and against the said order, an application being Criminal Misc. Application No.2853 of 2022 was preferred by the answering respondent. It is submitted that an application being Criminal Misc. Application No.2853 of 2022, was rejected vide order dated 16.12.2022 only on the ground of limitation.

9. Learned advocate Mr.Kanojiya has submitted that for challenging the order dated 16.12.2022, the respondent has preferred Special Criminal Application No. 2421 of 2023 before this Court and a notice is already issued by this Court. Thus, it is submitted that when the applicant has already taken steps to execute the order granting interim maintenance, the subject application alleging contempt is not maintainable and that it is filed only with a view to coerce the answering respondent.

10. Learned advocate Mr.Kanojiya has submitted that an undertaking

C/MCA/37/2023 ORDER DATED: 06/07/2023

was given by the respondent before the Trial Court and in furtherance of an undertaking, the answering respondent has already paid Rs. 25,000/- (approximately 20% ) as against the maintenance awarded in favour of child. It is also submitted that the DV Act, 2005 is a self-contained code in itself and the Act itself provides procedure for execution of the award granted under the said Act. That the process, as mentioned under the said Act, is already undertaken by the Applicant herein by filing execution petition and by also making application for issuance of warrants.

11. We have heard the learned advocates appearing for the respective parties.

12. The present application is filed under Article 215 of the Constitution of India and under the Contempt of Courts Act, 1971. However, no provision is mentioned whether it would be Section 10 of the Act or Section 12 of the Act.

13. Be that as it may, by the present contempt application, the applicant is praying for initiation of contempt proceedings for disobeying the order dated 15.12.2021 passed in Criminal Misc. Application No.443 of 2021 by the learned Additional Chief Judicial Magistrate, Ahmedabad, wherein the respondent was directed to pay interim maintenance of Rs.10,000/- per month to the applicant and Rs.3,000/- per month to her minor son on the date of filing of the application i.e. from 08.03.2019 and also the breach of the undertaking dated 03.09.2022. The applicant thereafter filed an application dated 04.03.2022 since the opponent failed to pay the interim maintenance, the applicant was filed proceedings under Section 125(3) of the Cr.P.C. before the learned Additional Chief Judicial Magistrate, Ahmedabad (Rural), which was registered as Criminal Misc.

C/MCA/37/2023 ORDER DATED: 06/07/2023

Application No.683 of 2022. Thereafter, in furtherance of that execution application, the applicant preferred an application for distress warrant, which was allowed by the learned Magistrate vide order dated 09.09.2022. The applicant also preferred an application for non-bailable warrant, wherein the learned Additional Senior Civil Judge and ACJM has passed the order dated 07.11.2022 directing the attachment of the properties. The learned Additional Senior Civil Judge and ACJM has further observed that there are arrears of more than Rs.5,00,000/- and the opponent is directed to be taken into custody and sent to jail for failure in paying the maintenance. The opponent thereafter filed an appeal against the aforesaid order being Criminal Misc. Application No.2853 of 2022, which was rejected by the order dated 16.12.2022 on the ground of limitation. The respondent thereafter preferred Special Criminal Application No.2421 of 2023 before this Court, wherein notice was issued and the writ petition is still pending. The respondent has already paid Rs.25,000/- to the applicant.

14. Thus, the court below has already undertaken necessary exercise and passed the orders for enforcing the orders as well as the undertaking with regard to payment of arrears of maintenance to the opponent. The court below has already ordered the property of the opponent to be seized and to send him in jail on failure of paying the maintenance as well as the arrears of more than Rs.5,00,000/-.

15. Since the applicant has already initiated the proceedings, pursuant to which the suitable orders are passed for enforcing the same, the present application for contempt cannot be entertained. The judgments, on which reliance is placed by the applicant in the cases of Sonali Bhatia (supra)

C/MCA/37/2023 ORDER DATED: 06/07/2023

and Lopaben Patel (supra) cannot come at rescue in the present case as the contempt alleged against disobedience of the order passed by the High Court. In the present case, the contempt proceedings are sought to be initiated in non-compliance of the order passed by the learned JMFC as well as the breach of undertaking, for which the necessary orders are already passed by the court below for enforcing the same. Hence, the applicant, having resorted to the remedy of enforcing the order passed by the court below, cannot also insist contempt proceedings to be initiated against the opponent. Hence, the present application fails and the same is rejected. The contempt proceedings are closed. Notice is discharged.

Sd/-

(A. S. SUPEHIA, J)

Sd/-

(M. R. MENGDEY,J) ABHISHEK/42