Kerala High Court
Harpreet Kaur Anand vs Mathew Joseph on 5 August, 2021
Con.Case(C) No.762/2019 1 / 10
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
Thursday, the 5th day of August 2021 / 14th Sravana, 1943
IA.3/2021 IN CON.CASE(C) NO. 762 OF 2019(S) IN OP(Crl.) 267/2018
PETITIONER/PETITIONER:
HARPREET KAUR ANAND,
AGED 46 YEARS, W/O.MR.MATHEW JOSEPH,
TENTATIVELY LEADING A NOMADIC LIFE, HARPREET'S
MOBILE NUMBER 9717307465 HARPREET'S EMAIL ID:
[email protected], [email protected]
RESPONDENT/RESPONDENT:
1. MATHEW JOSEPH, AGED 48 YEARS, S/O.RETD.SQ.LDR. P.I. JOSEPH,
PERMANENTLY RESIDING AT DOOR NO.3B, IVORY HEIGHTS, PARAMBITHARA
CROSS ROAD, PANAMPALLY NAGAR, ERNAKULAM DISTRICT, KERALA -682 036,
MATHEW'S MOBILE NUMBER: 9846313232.
2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to:
(a) direct the Regional Passport Office, Ernakulam to impound Mathew
Joseph's passport bearing Passport Number E 4548649 with immediate effect
as per section 10 3(e) of The Passport Act 1967, while directing him to
appear before the Honourable Court on the first next working day being
Monday, 12th April, 2021.
(b) before the rising of the court on the Honourable Court may kind
direct respondent-Mathew Joseph to be detained until the full amount is
realized by him.
(c) in order to initiate the proceadings of the contempt, respondent
may please be directed to sign the affidavit, in the August presence of
the Honourable jury members as produced and annexed as Annexure F (while
refraining respondent from altering the draft of the affidavit as
produced).
P.T.O.
Con.Case(C) No.762/2019 2 / 10
(d) respondent may please be directed to remit an amount as per
Honourable Court's discretion with immediate effect today itself as to
enable petitioner to be released from the state of vagrancy to financial
freedom.
(e) any such other orders may also passed in favour of the
petitioner as may deem fit and proper in the facts and circumstances of
the case.
This application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and this Court's judgment
dated 30/08/2019 and upon hearing the arguments of SRI.HARPREET KAUR ANAND
(PARTY IN PERSON), SRI.PRAVEEN K.JOY, Advocate for R1 and of SRI.M.I.
JOHNSON, SENIOR GOVERNMENT PLEADER for R2, the court passed the following
:-
P.T.O.
Con.Case(C) No.762/2019 3 / 10
APPENDIX OF CON.CASE(C) 762/2019
ANNEXURE R1(c) TRUE COPY ORDER DATED 10/06/2019 IN UNNUMBERED IA
NO.../19 IN COC.NO.716/2019 IN CRL.RP.1536/2018 OF THIS
HONOURABLE COURT.
ANNEXURE R1(j) TRUE COPY OF THE ORDER DATED 16/10/2019 IN RP 553/2019
IN COC.716/2019.
Con.Case(C) No.762/2019 4 / 10
SUNIL THOMAS, J.
-------------------------------------
I.A. No. 3/2021 in C.O.(C)No.762 of 2019
---------------------------------
Dated this the 5th day of August 2021
ORDER
The petitioner herein is the estranged wife of the first respondent.
The petitioner filed MC No.29/2018 before the Chief Judicial
Magistrate(Economic Offences), Ernakulam, invoking section 23 (2) of the
Protection of Women from Domestic Violence Act,2005. By an interim
order, the first respondent was directed to pay an interim maintenance of
Rs.27,000/- per month. In criminal appeal No.234/2018 filed by the first
respondent before the Additional Sessions Court, Ernakulam, the
amount was reduced to Rs.20,000/-. The judgment in Crl.Appeal
No.234/2018 was under challenge at the instance of the petitioner herein
in Crl.R.P.No.1536/2018 of this court. The order in Crl.Appeal was set
aside by this Court by order dated 13/2/2019 and restored the order in
MC No.29/2018. The compensation payable was thus restored to
Rs.27,000/-.
2. Subsequently, the petitioner approached this court by filing the
present contempt petition contending that the first respondent failed to
pay the amount ordered by this court and thereby committed contempt of
court. The first respondent appeared and filed a detailed objection. The
bone of contention between the parties was the non compliance of the
direction issued by this Court regarding payment of monthly maintenance
at the rate of Rs.27,000/-. Detailed objections were filed by the first
Con.Case(C) No.762/2019 5 / 10
respondent , wherein he asserted that the entire amount has been paid
by him in separate installments. Since there was a dispute regarding
the payments made and essentially the question revolved around the
adjustment and calculation of the amounts paid and the amount due, the
matter was heard on the basis of the statements filed by both sides. By
judgment dated 30/8/2019 of this Court, the Contempt of Court case
was disposed of with the following directions:
."Accordingly, the balance amount due to the petitioner herein as
on 26/8/2019 is fixed as Rs.42,500/-(Rupees forty two thousand five
hundred only). Accordingly, the respondent is directed to deposit the
above amount in the bank account of the petitioner herein which is
known to the respondent herein, within ten days from today. It is also
made clear that in future, the amount payable to her as monthly
maintenance and rent arrears shall be remitted on or before 26 th of
succeeding month, failing which the amount will carry 6% interest from
the each date of default"(emphasis supplied)
3. The petitioner herein thereafter approached the Hon'ble
Supreme Court in SLP No.(Civil) Diary No.16989/2020. The grievance of
the petitioner as is discernible from the order of the Hon'ble Supreme
Court produced by the petitioner, discloses that her grievance in the
Special Leave Petition was essentially regarding the non compliance of
further directions issued by the High Court in terms of the order dated
30/8/2019. The Hon'ble Supreme Court held that if the grievance of the
Con.Case(C) No.762/2019 6 / 10
petitioner was that the amount as ordered by this court in the above
order has not been complied with, the appropriate remedy for the
petitioner was to approach the High court in the first instance, bringing it
to the notice of the High Court that the default has been committed by
the respondent and to seek appropriate directions including initiation of
contempt action against the respondent.
4. Accordingly, the petitioner has approached this court with IA
No.3/2021 in the contempt of court case. The present grievance of the
petitioner is that, despite several reminders to the first respondent, he
has failed to make payments at the rate of Rs.27,000/- and hence he is
liable to pay the amount with interest, as calculated by her and
mentioned in a statement. The prayer sought in the above interlocutory
application was to direct the Regional Passport Officer to impound the
passport of the first respondent and he may be detained by the court till
the entire amount is recovered from him and to initiate contempt of court
proceedings against him. Some documents were also produced along
with the above application. She had also filed I.A.No.2/2021 seeking a
further relief that the contempt of court case may be re-opened and
reiterating the prayers sought in IA No.3/2021.
5. The petitioner has filed a detailed statement of the amounts
claimed to be due to her during the period 26/3/2020 to 26/4/2021. The
total amount due, according to her as per the statement was Indian
Rupees Three Hundred trillion, four hundred sixty three billion, eight
Con.Case(C) No.762/2019 7 / 10
hundred eighty two million one hundred sixty thousand four hundred
thirty four only (Rs.300,463,882160434). Though the details of
calculation are not discernible either from the statement or from the
affidavit filed in support of the above interlocutory application, it is clear
from the submissions made by the petitioner at the time of hearing that,
she has arrived at the staggering amount on an interpretation given by
her to the order of this Court disposing of the contempt of court case.
This court while disposing of the contempt of court case, had specifically
directed that in case of default of the payment of monthly maintenance
and rent arrears, at the rate of Rs.27,000/- on or before the 26 th of
every succeeding month, it will carry 6% interest "from the each date of
default". Her explanation was that, whenever default was committed,
for each day of default, she will be entitled to 6% interest on the
defaulted amount. The amount claimed included 14 months
maintenance amount with 6% interest for each day during the entire
period. The first entry is on 26/3/2020. She has arrived at a sum of
Rs.1620/- as the 6% interest upon the principle amount of Rs.27,000/-
for that day. Accordingly, she claimed a sum of Rs.28,620/- on the first
day. The interest upon the principal amount with interest for the next day
is Rs.1717/- . On the next day of 27/3/2020, that amount of Rs.28,620/-
carries a further interest of 1717.20/- thereby increasing to Rs. 30337/--.
In short, for each monthly installment, for each day, she has calculated
6% interest at compounding rate for 14 months. This process seems to
Con.Case(C) No.762/2019 8 / 10
go on with respect to each day commencing from 26/3/2020 till to
26/4/2021.
6. The above mode of calculation, by any stretch of imagination is
not only fundamentally wrong, but also does not stand to reason for
two specific reasons. 1). Firstly, this court did it express that it will carry
6% interest from each date of default. Reference therein was to each
date of default being the 26th of every succeeding month. Necessarily,
6% interest has to be carried on the principal amount as understood in
CPC till it is repaid and not 6% compounding interest on each defaulted
amount, per day. This seems to be absolutely unsustainable and by
such fallacious reasoning. she has reached a staggering figure.
7. The above calculation is fundamentally wrong for yet another
reason. The first respondent has filed detailed counter affidavit
producing several documents to indicate that the petitioner had
thereafter filed another contempt proceedings against the first
respondent as COC No.716/2019 alleging non compliance of the order
of that court. It was rejected by another Bench of this Court dated
5/4/2019 produced as Annexure R1(c). Subsequently, review petition
was filed by the petitioner as RP No.553/2019 in COC 716/2019 which
was rejected by Annexure R1(j). The crucial fact discernible from the
counter affidavit is that the main MC No.29/2018 was dismissed by the
court below on 7/8/2020. Since that MC itself has been disposed of , the
petitioner is not entitled for any maintenance after that date.
Con.Case(C) No.762/2019 9 / 10
8. The present interlocutory application has been filed by the
petitioner on 7/4/2021 much after dismissal of MC No.29/2018. Nowhere
in IA No.2/2021 or I.A.No.3/2021 there is reference that MC No.29/2018
from which the entire proceedings germinate was dismissed on
7/8/2020. When this was brought to the notice of the petitioner at the
time of hearing, she vehemently opposed and took an adamant stand
that this court cannot go into that fact and as long as the order of this
court in the contempt proceedings is in existence, the first respondent is
liable to pay at that rate and this court is bound to implement that order
alone, irrespective of the dismissal of main petition.
9.The argument of the petitioner seems to be again fundamentally
wrong, since after the dismissal of the main petition, the interlocutory
orders passed by the court therein cannot survive. Hence, unless the
dismissal of MC No.29/2018 is reversed by a competent court of
jurisdiction, the petitioner is not entitled for maintenance after the date of
dismissal. On the basis of an interim maintenance ordered by this court
while considering the legality of an interim maintenance, she cannot
claim maintenance till eternity. Not only that, this crucial fact was
suppressed by the petitioner and any reference to it by the respondent
was vehemently opposed by the petitioner contending that it has no
relevance in the adjudication of the present issue.
10. It is true that the question that arises in this case whether the
order of this court is complied with till the date of dismissal of the main
Con.Case(C) No.762/2019 10 / 10
MC. As mentioned above, the calculation made by the petitioner on the
basis of 6% per day interest is absolutely without any basis. She has no
claim that the statement made by the petitioner herein that the entire
amount has been paid, is legally not sustainable. No such averment is
seen in the reply affidavit. The statement filed by the petitioner cannot
be accepted for any stretch of imagination. On the other hand, she could
not dispute the various payments made by the first respondent which are
supported by records.
Having considered this, I am not inclined to re-open the contempt
of court case and no contumacious conduct on the part of the
respondent is established by the petitioner. IA No.3/2021 is dismissed.
Consequently IA No.2/2021 also stands closed.
Sd/-
SUNIL THOMAS
Judge
dpk
05-08-2021 /True Copy/ Assistant Registrar
