Child custody give to father and also Contempt of Court Charges initiated against Wife and her Advocate-Bombay High Court.
Petitioner Wife and her Advocate charged with Contempt of Court for alleging false, fictitious charges of being Bias on the High Court Jugde. The Petitioner Wife and her Advocate where indulged in scurrilous personal attack on the Judge.
Bombay High Court
A.M. Khanwilkar, J.
1. This writ petition under Article 227 of the Constitution of India is directed against the judgment and order passed by the Family Court, No. II, Pune, dated 8th May 2003, below Exhibit 238 in Petition No. A-605 of 2000; and 17th May 2003 in Petition No. A-605 of 2000, respectively. The said proceedings have been instituted by the Respondent – husband against the Petitioner wife for divorce and custody of their minor child Shrikrishna.
2. The Petitioner and the Respondent were married on 30th June 1994 and Shrikrishna was born on 30th March 1996. It is the case of the Petitioner that the Petitioner and her child of 4 years were thrown out of the matrimonial home unceremoniously in June 2000 and since then, the Petitioner, along with her child, is staying separately. Initially, she stayed with her sister at Mumbai, and, now, has acquired her own house on monthly rent basis. The Petitioner is gainfully employed and is stated to be lecturer in South Mumbai College.
3. During the pendency of the main proceedings, being Petition No. A-605 of 2000, the Respondent filed application for interim access/custody of his minor son Shrikrishna during May Vacation, i.e., 12th April 2003 to 12th June 2003. The Court below was pleased to allow the said application by judgment and order dated 8th May 2003 and directed the Petitioner to produce the child on 17th May 2003 in the Family Court Child Care Centre, Pune, for being handed over to the Respondent for interim custody upto 2nd June 2003. The order as passed by the Family Court reads thus:
“1. The application is allowed.
2. The respondent wife should produce the child on 17-5-2003 in the Family Court Child Care Centre, Pune, as per the order dated 10-12-2001 and on that day, the minor son Shrikrishna should be handed over to the petitioner who would be entitled to retain the custody up to 2nd June 2003. He should bring the child on 2nd June 2003 in the Family Court, Pune, and to hand over the custody of the minor son to the respondent wife.”
4. The Petitioner, instead of complying with the above said order, filed application purported to be review application before the Family Court on 17th May 2003. That application has been rejected by the Family Court on the same day, i.e., 17th May 2003, by the following order:
“Heard Mr. Bhavsar Advocate for the Respondent. The order in question has been passed under Section 26 of the Hindu Marriage Act, granting interim custody from 17-05-2003 to 02-06-2003 to Petitioner father. No ground for review. Rejected.”
5. Accordingly, the aforesaid two orders are subject matter of challenge in the present writ petition.
6. This writ petition was moved before the Vacation Judge on 21st May 2003, when the Court was pleased to pass the following order:
“Heard learned Counsel for the Petitioner. None for Respondent.
2. Notice to the Respondent, returnable by 11-6-03.
3. In the meantime, ad-interim relief in terms of prayer Clause (b)
Authenticated copy of the order be given to the parties.”
7. The Respondent immediately thereafter filed Civil Application No 1061 of 2003 on 26th May 2003 for vacating ad interim order, which application was moved before the Vacation Judge on 28th May 2003. On that date, the following order came to be passed:
“Mr. Bulchandani, learned Counsel for the respondents, states that the vacation of the school is till 13th June 2003 and in view thereof, this matter could be heard on 2nd June 2003. Ms. Kataria, learned counsel for the petitioner, has no objection for listing this matter on 2nd June 2003.
Put up for admission on 2nd June 2003.”
8. The Respondent filed another application, being Civil Application No. 1103 of 2003 on 2nd June 2003. That application was moved before me after the reopening of the Court on 6th June 2003. Instead of deciding the said application, I thought it appropriate to hear the main matter and accordingly ordered the main matter to be posted on 9th June 2003. On 9th June 2003, the parties were heard for some time and having regard to the background of the matter, Counsel appearing for the parties were called upon to examine the possibility of some amicable solution in the matter, which could obviate avoidable litigation and also subserve the paramount interest of the minor child. The Counsel agreed to explore that possibility, and by consent, the matter was adjourned to 12th June, 2003. The matter was, adjourned to 12th June 2003. The mater was, however, taken up for hearing on 13th June 2003, and since the parties were not able to amicably resolve the matter, after hearing the Counsel for both sides on merits, I thought it appropriate to direct the parties to provide access of the minor child to the Respondent father on the dates specified in the said order. The order passed on 13th June 2003 was more or less on the same lines as was passed by this Court (Coram: Lodha, J.) on 9th August 2001 in the earlier round of litigation between the parties in Civil Revision Application No. 954 of 2001 on the same issue. Indeed, when I proceeded to pass the order on 13th June 2003, I was conscious of the fact that the main relief in the application, Exhibit 283, was for interim custody only during the ensuing May Vacation, i.e., 12th April 2003 to 12th June 2003. However, having regard to the background of the matter and as the same had remaining pending in this Court since 21st May 2003, the order as passed in favour of the Respondent dated 8th May 2003 by the Family Court could not be given effect to. In that sense, the object of passing the order dated 13th June 2003 was essentially to adjust the equities between the parties and also to facilitate the access between the father and the minor child. The order passed on 13th June 2003 reads thus:
“After hearing both sides at great length, to my mind, the appropriate course at the interim stage during the pendency of this writ petition is to pass the following order:
(i) The petitioner to give to the respondent access of the minor child Master Shrikrishna on 21-6-2003 between 1 P.M., and 5 P.M. at the Family Children Centre, Children Complex, Family Court, Bandra, Mumbai.
(ii) On 5-7-2003 between 1 P.M. and 6 P.M. at the Childcare Centre, Pune Family Court, Pune; and
(iii) on 19.7.2003 between 1 P.M. and 5 P.M. at the Family Children Centre, Family Court, Bandra, Mumbai and
(iv) on 20.8.2003 between 1 P.M., and 5 P.M. at the Childcare Centre, Pune, Family Court, Pune.
On each of the aforesaid dates, access be provided in the presence of the officer to be deputed by the Children Centre of the respective children complex. That officer to prepare a report regarding the behavioral aspect of the child after the meeting between the child and his father. That report be prepared in respect of each of the aforesaid meetings and be kept in a sealed cover to be presented to this Court on the next date of hearing.
2. The petitioner shall ensure the presence of the child on the appointed dates and time at the venue mentioned above and the respondent shall handover back the custody of the child on the expiry of the appointed time on each of the aforesaid dates at that venue.
3. The petitioner undertakes to comply with this order till such other or further order to be passed by this Court. The petitioner, who is personally present in Court, undertakes the above through his learned Counsel. This writ petition be posted on 6.8.2003 for further orders. The respondent undertakes to bear the travelling and other cost for the access to be provided at Pune by compensating the petitioner with a lumpsum of Rs. 1,000/= for each visit at Pune. That amount be paid over to the petitioner immediately after receiving access of the child at the appointed time and date at Pune.
4. Stand over to 6.8.2003. It is made clear that whenever the access is given, the petitioner shall not be present unless required by the concerned officer of the Children Centre.
5. In the meantime, it will be open to the parties to approach the trial Court for expediting the hearing of the main proceedings. If such a request is made, the trial Court may consider that request and dispose of the main proceedings, if possible, irrespective of the pendency of this writ petition.
6. The parties to act on an ordinary copy of the order duly authenticated by the Sheristedar of this Court.”
9. In terms of the above order, the matter was notified on 7th August 2003, when the same was adjourned to 18th August 2003. The matter was, however, taken on 19th August 2003, when my attention was invited to the fact that the reports, referred to in the order dated 13th June 2003, were still awaited. Accordingly, the matter was adjourned. The order passed on 19th August 2003 reads thus:
“Office Note indicates that the Report directed to be submitted in terms of Order dated 13th June 2003 has not been received so far.
Office to take necessary steps to ensure that the concerned report is received as per the directions in Order dated 13th June 2003 before the next date of hearing.
Post this matter on 8th September 2003.”
10. The matter was then taken up on 18th September 2003 when the reports from the Family Court, Pune, were received. It will be useful to advert to the order passed on 18th September 2003, which reads thus:
“Report has been received from the Family Court, Pune, dated 5th July 2003 and 4th August 2003. The report indicates that the child was quite friendly and comfortable with the father during their meetings on the respective dates. This report be placed on record. Copy of the report be made over to the Counsel appearing for the parties.
Since the report indicates that the child is friendly and comfortable with the father, it was suggested to the parties to work out some proper arrangement, so that the child can keep acquaintance with his father. In fact, a suggestion was also made to the Counsel appearing for the parties that they may explore the possibility of full and final settlement. In response to this suggestion, Counsel for the writ petitioner – wife submits that if the offer is received from the husband, that will be considered and the Court will be apprised about the developments on the next date of hearing.
Stand over one week for settlement.
All concerned to act on the ordinary copy duly authenticated by the Court Stenographer.”
11. It appears that after the matter was adjourned in terms of the above order, the Registry furnished copies of the reports received from the Family Court, Pune, to the Counsel appearing for the parties on 24th September, 2003. In the meantime, on 23rd September 2003, even the reports from the Family Court, Mumbai, were received by the Registry. It appears that copy of that report was not given to the Counsel for the Petitioner. Accordingly, on 24th September 2003, the Counsel appearing for the Petitioner mentioned the matter before me for production, which request was acceded to. The matter was accordingly got produced on 25th September 2003. However, on that day, when the matter was called out in the morning session, the Respondent’s Advocate was absent, for which reason the matter was kept back. Interestingly, when I retired to the Chamber during the Lunch Break, I found that one envelope addressed to me sent by the Petitioner was placed on my desk. This envelope was delivered in my Chamber to my personal staff. The communication contained in the said envelope was sent by the Petitioner addressed to the learned Chief Justice, purported to be dated 24th September 2003. It is necessary to reproduce the said communication in its entirety, which reads thus:
“MRS. HEMA RAVISHANKAR,
C-705, ‘The Great Eastern
Ram Mandir Road,
Mumbai 400 104.
WITHOUT PREJUDICE & CONFIDENTIAL
THE HON’BLE CHIEF JUSTICE,
Sub: BOMBAY HIGH COURT,
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3385 OF 2003
MRS. HEMA RAVISHANKAR… PETITIONER
K.R. RAVISHANKAR … RESPONDENT
1. With utmost responsibility but very reluctantly I am compelled to lodge my grievance against Mr. Justice A.M. Khanwilkar.
2. Brief facts of my case are:
i) I have filed the above petition against my estranged husband the Respondent abovenamed challenging the order of custody of my minor child, granted by the Learned Judge, Pune Court during the vacation period of May 2003.
ii) The Learned Vacation Judge, His Lordship Shri S.K. Shan granted ad-interim stay on 21.05.2003.
iii) After the vacation the matter was listed on Board of Justice A.M. Khanwilkar, on the application of the Learned Advocate for the Respondent.
3. My grievances are based on following reasons:
i) Though on 13.06.2003, the cause of action had become infructuous, the learned Judge was adamant in granting accesses to the Respondent. Though there being no urgency, objection of my Advocate in hearing the matter after 4.45 P.M. was recorded by the Learned Judge with a comment in the open Court that my Advocate was adopting delaying tactics. My learned Advocate therefore proceeded to argue the matter. Accordingly, on 13.06.2003, the Learned Judge by his order, as a interim arrangement, granted access to the minor child on the specified days despite the dates conflicting with the schooling and tuition classes of my minor son.
ii) In due compliance of the order of the Learned Judge, I took my child during his schooling days and at the cost of his tuition classes to Family Courts at Pune and at Mumbai as directed by the Learned Judge on the specified days.
iii) By the said order dated 13.06.2003 the Learned Judge had directed the Counsellors both at Mumbai and at Pune to submit their reports. The matter was then to be listed on Board on 06.08.2003.
iv) The matter was listed on Board of the Learned Judge on 19.08.2003 and as no reports were yet received, the Learned Judge directed the office to ensure that reports of both the Counselors are received.
v) On 18.09.2003 the Learned Judge found two reports on record and without permitting my Advocate, even after request to have the benefit of the said reports and to make submissions thereon passed the order which is at Exhibit “A” hereto.
vi) At the insistence of the Court, my Advocate has always cooperated with the Court, first for accesses to the minor child and then for putting forth the offer of settlement.
vii) When my Advocate applied to the office for the reports, only two reports of Pune Family Counsellor were handed over. No reports of the Mumbai Family Counsellor was given to my Advocate as my Advocate was informed that no such report was received.
viii) By Precipi dated 24.09.2003 my Advocate therefore moved the Learned Judge for directions to the Counsellor of Family Court, Mumbai to submit the report as the factum of non-receipt of the report of the Counsellor of Family Court has been overlooked by the Learned Judge. Hereto annexed Exhibit “B” is a copy of the said precipe dated 24.09.2003.
ix) At 11.00 A.M. on 24.09.2003, the Learned Judge on the application of my Advocate directed the production of papers at 2.45 P.M.
x) The Learned Judge refused to pass any order on the precipe of my Advocate though the Learned Counsel for the Respondent was having in her possession the report of Counsellor of Family Court, at Mumbai which significantly was not on the record of the Hon’ble court. Despite my Advocate requesting for a copy of the reports from the Respondent Advocate, the Learned Judge declined to give any directions to the Learned Counsel for the Respondent to give the copy of the report to my Advocate. The Learned Judge directed my Advocate to only talk about over all settlement as the receipt of the reports was immaterial.
xi) My Advocate thereupon informed the Learned Judge that the offer of settlement submitted by the Advocate of the Respondent was not an offer for settlement but Respondent was seeking a decree on admission with all allegations of the Respondent to be accepted and admitted by the Petitioner. Hereto annexed Exhibit “C” is a copy of the said so called offer of settlement submitted by the Advocate of the Respondent. Though my Advocate took objection at such an offer the Learned Judge is insisting upon submitting to such a settlement.
4. Sir, the Learned Judge is clearly biased against me for no reason whatsoever. Though the cause of action has become infructuous and in my respectful submission the Petition merits to be made absolute in terms of interia order since fresh application for custody in ensuing October vacation has already been made by the Respondent before the Family Court Judge at Pune, the Learned Judge is virtually threatening to pass custody orders on my Petition if settlement is not gone through.
5. Sir, I have lost faith in the Learned Judge as:
i) No copies of the reports of the Family Court, Mumbai are supplied to me despite requests.
ii) How copies of reports are with the Advocate of Respondent when they were to be submitted to the Court and the Court refuses to take cognizance of this fact.
iii) The Learned Judge is insisting on settlement and therefore states in open Court that the copies of reports are not necessary.
iv) The bare look at the so-called settlement is humiliating for me since it seeks a decree on admission in the proceedings adopted by the Respondent against me in Pune Family Court. The Learned Judge is however not inclined to hear my Advocate otherwise than on the settlement proposed by the Respondent.
6. In the light of the above facts, I therefore request you Sir to call for proceedings in the above matter and if my grievances are found correct by Your Lordship, then I pray that the above case be assigned to any other Court in the cause of justice.
Encl. As above
I hereby confirm the above facts
ADVOCATE FOR THE PETITIONER
CC: THE HON’BLE SHRI JUSTICE
12. The matter once again appeared on Board on 26th September 2003. When the matter was called out, none appeared for the Petitioner. Since I had already received the above communication, I requested the Counsel appearing for the Respondent to inform the Counsel for the Petitioner to remain present on the next occasion. The matter was then notified and taken up on 29th September 2003, when I passed the following order:
“This matter was got produced on 24th September 2003. It was directed to be kept on the following day. Accordingly, the matter was posted on 25th September 2003. However, on 25th September 2003, the mater was required to be kept back since Counsel for the Respondent husband was not present when it was called out for hearing. The matter was then posted on 26th September 2003. However, on 25th September 2003, when I retired to the Chamber, I noticed a communication dated 24-9-2003, addressed to the Hon’ble the Chief Justice and copy whereof was marked to me in connection with this matter. This communication is sent by the Petitioner-wife and countersigned by the Advocate on record for the Petitioner confirming the facts stated in the said communication. I shall deal with the contents of the letter at the appropriate stage.
2. Be that as it may, on 26th September 2003, when the matter was called out, none appeared for the Petitioner – wife. Since I wanted certain facts to be ascertained, I thought it appropriate that the matter be placed today. Accordingly, the matter has been placed today under the caption “Settlement”. When the matter was called out, Mr. Shah, Advocate, appeared for the Petitioner-wife. He was asked whether he was aware of the aforesaid communication. He emphatically said “yes” and also stated that it was delivered to my Personal staff in Chamber by his Clerk on 25-09-2003. He has also acknowledged the signatures appearing on the subject document, having been signed by the Petitioner wife herself and that the other signature belongs to him. He was also asked whether the Petitioner wife was personally present in the Court on 24th September 2003, to which he responded that the was “not present”. He was then asked as to whether the Petitioner wife as well as he himself having countersigned the communication would take the responsibility of the contents of the document in question. In response, he has answered in the affirmative. (At this stage, the learned Counsel registered strong protest that I was not honestly recording the proceedings and insisted that I should record that he as Advocate was only taking the responsibility of facts as stated in the letter in question.) The learned Counsel was then asked as to whether the Petitioner and/or he himself would like to withdraw this letter, partly or fully, to which he responded that the Petitioner is not present in the Court and he would take instructions from her in that behalf. Insofar as his personal stand is concerned, he submits that he would like to take instructions from his senior.
3. The above position has been placed on record in view of the background of the case, to which I shall advert to at the appropriate stage.
4. At the request of Mr. Shah, the matter is kept on Tuesday, the 7th of October 2003 First on Board – to anable the learned Advocate to make statement for himself as well as on behalf of his client with reference to the last query, as referred to above.
5. Post on 7th October 2003. First on Board.”
13. As per the above order, the matter was notified on 7th October 2003. When the matter was called out, Counsel appearing for the Petitioner explained their position, which is reflected in my order passed on that day, which reads thus:
“Today, Mr. Bulchandani appears for the Petitioner and states that he has himself drafted the subject communication, which was caused to be delivered in my Chamber, addressed to the learned Chief Justice of this Court. He further states that the Petitioner is willing to withdraw the complaint, provided I were to disassociate myself from this case. It was made clear to him that unless a clear stand was taken and the communication was unconditionally withdrawn, the question of my disassociating from the matter will not arise. He, however, insists that there is no question of unconditional withdrawal of the communication, and further he personally takes the responsibility of the facts stated in the communication and the consequences therefore. According to him, I cannot become Judge of my own cause.
In the circumstances, reserved for orders.”
14. I had reserved the matter for orders, inter alia, as dictation of the order in open Court would have taken some time, resulting in stalling the progress of the Urgent Admission Board, which was quite heavy. Accordingly, the present Judgement has been pronounced today.
15. Insofar as the issue involved in the writ petition and the accompanying two Civil Applications is concerned, there can be no doubt that going strictly by the relief as claimed by the Respondent in application, Exhibit 238, which was filed before the Family Court No. II, Pune, no further adjudication is necessary. However, it is well settled that the High Court can, and in an appropriate case should, exercise its plenary jurisdiction, so as to do complete justice between the parties,if necessary by moulding the relief. (See B.C. Chaturvedi v. Union of India, (1995) 6 S.C.C. 719, @ 762 – paras 21 to 23). Moreover, this Court could not have been oblivious to the fact that if the petition was to be merely disposed of on the ground that the relief claimed by the Respondent in the application (Exhibit 238) is worked out, that would give undeserved or unfair advantage to the Petitioner. For the Respondent had filed the subject application on 13.3.2003, which was allowed on 8.5.2003, after contest. As per that order, the Petitioner was obliged to give custody of the minor child to the Respondent on 17.5.2003. However, only on that day, the Petitioner moved Review Petition before the Family Court, which was, however, rejected on the same day. The Petitioner then chose to move this Court by way of present petition on 21.5.2003, when ad-interim relief was granted. However when the Respondent moved this Court for vacating the ex parte ad-interim order, the Counsel for the Petitioner persuaded the Vacation Judge of this Court (on 28-5-2003) to defer the hearing of the petition beyond Vacation, for 2-6-2003, on the ground that the School Vacation was till 13.6.2003. On the subsequent dates, the matter was adjourned by consent, inter alia, to explore the possibility of settlement. It is in that backdrop, I had passed order on 13-6-2003 of providing limited access of the minor child to the Respondent on the specified dates, time and place, as the parties were unable to amicably resolve that issue. That course was legitimate and appropriate to do substantial justice between the parties. (See dictum of the Apex Court in para 16 of the decision , in Ram
Krishna Verma’s case). Besides, as already mentioned hereinabove, throughout my endeavour was to persuade the parties to work out some amicable solution by way of full and final settlement, or, at least, on the issue of access/custody of the minor child. For, the approach of any Court, especially in matrimonial and custody matters, must always be to persuade the parties to find out amicable solution, so as to obviate avoidable litigation and related expenditure and stress. In a recent decision of the Apex Court in B.S. Joshi v. State of Haryana, , it is observed that it is the duty of
the Court to encourage genuine settlements of matrimonial disputes. Again, in Sharda v. Dharampal, , the Apex
Court in para 36 has observed that in matrimonial disputes, the Court has a conciliatory role to play. To my mind, even the Advocates appearing for the parties in matrimonial matters, who are first the Officers of the Court, owe duty to persuade their clients to amicably resolve the dispute as per the exigencies of the case. They should encourage settlements which would facilitate early resolution of the dispute, so as to do substantial justice between the parties. It was more so in the present case, as it is matter of record that on the issue of custody/access of the minor child, the Respondent has so far filed at least couple of applications (five) before the Family Court on different occasions during the pendency of the main proceedings since the year 2000. Moreover, the present writ petition was the fourth of litigation before this Court, as prior to this writ petition, already two Civil Revision Applications and one another writ petition have been filed by the parties challenging the interim orders passed by the Family Court, Pune. In this backdrop, it was expected that the parties should work out some amicable solution at least on the issue of access/custody of the minor child, during the pendency of the main proceedings, instead of filing repeated applications before the Family Court and challenging the orders passed therein before this Court. I was quite optimistic that the parties would see reason, because both of them are well-educated. The order passed on 13th June 2003 was also an attempt to provide an opportunity to the minor child to meet his father during the limited access on the specified dates. The concerned Family Court was directed to submit report to this Court regarding the meeting only to reassure as to whether the same was fruitful and in the interest of the minor child. The reports submitted by the Family Court, Pune, reveal that the meeting between the minor child and the Respondent was quite friendly and comfortable. In the wake of the report, the parties were once again called upon to explore the possibility of settlement, if any. Instead of exploring that possibility, the Petitioner and her advocates have indulged in scurrilous personal attack on me, as is evident from the contents of the communication sent by the Petitioner to the learned Chief Justice and which communication has been countersigned by the Petitioner’s Advocates, confirming the fats stated therein. In the circumstances, the appropriate course, to my mind, is to dispose of the main writ petition as well as the civil applications by directing the Family Court, Pune, the expedite the hearing of the main petition pending between the parties, being Petition No. A-605 of 2000. That be done pre-emptorily by the end of April 2004. The parties are directed to extend necessary cooperation to the Family Court for early disposal of the main proceedings.
16. Reverting to the communication dated 24th September 2003, which has been addressed by the Petitioner to the learned Chief Justice and countersigned by her Advocates confirming the facts stated in the said communication, I have no hesitation in observing that the same is per se mischievous, malicious and addressed with purpose. Although it is not necessary for me to refute each and every statement in the said communication, I would broadly mention that the insinuations made in the communication (particularly the underlined portion), inter alia, that I was adamant in granting access of the minor child to the Respondent and was prevailing (insisting) upon the Petitioner to only talk and submit to settlement are distorted statement of facts. If the Petitioner was unhappy with the order dated 13-6-2003, she could have well within her rights questioned the propriety of that order before the appropriate forum. That has not been done. Instead, now that order is used to suggest that I was adamant in giving access of the minor child. This cannot be countenanced at all. Indeed, during the course of hearing, the parties were repeatedly told to find out amicable solution because, as mentioned earlier, it is matter of record that already five applications for similar reliefs have been filed by the Respondent before the Family Court in the past. Besides, the parties were required to approach this Court on four different occasions. Even otherwise, in any matrimonial and custody matter, the approach of the Court should always be to call upon the parties to find out amicable resolution of the problem so as to obviate avoidable litigation and related expenditure and stress. Be that as it may, the communication further clearly alleges that I had bias against the Petitioner and that I had virtually threatened to pass custody orders if settlement was not arrived at. Those allegations are blatantly false and replete with calculated falsehood. By now, it is conceded position that the communication has been drafted by Advocate Bulchandani himself, as stated by his across the Bar on 7-10-2003. It is intriguing to note that Mr. Bulchandani claims that the said letter was drafted by him under instructions of the Petitioner nor Mr. Bulchandani, Advocate, were personally present in Court on 24-9-2003, for on that day, only Mr. Shah, Advocate, had appeared. Mr. Shah, Advocate, has conceded the fact that the Petitioner was not personally present in Court on 24-9-2003, as can be discerned from the proceedings dated 29-9-2003. It necessarily follows that source of information regarding the stated happenings on 24-9-2003 remain unexplained. Indeed, on that day, Mr. Shah was insisting for direction regarding furnishing the reports of the Family Court, Mumbai, however, I was at pains to explain him that if the parties were negotiating settlement, then no fruitful purpose would be served by insisting for those reports. He was also assured that, if required, his grievance can be looked into at a later stage. Be that as it may, non-passing of any direction on the precipe regarding the furnishing of the reports of the Family Court, Mumbai, can be no justification to allege that I was biased against the Petitioner. Moreover, at no stage, the Petitioner was ever forced to accept whatever settlement proposal is given by the Respondent, as is being suggested. Obviously, no Court would do that – as settlement can be only when both sides agree to accept a common and acceptable solution to the problem. To my mind, the Advocates for the Petitioner are the authors of the subject communication. And the Petitioner has followed and acted upon their advise. I could have, perhaps, pardoned the Petitioner if she had sent communication on her own without consulting her Advocate and without realising the consequences of such communication, being misguided litigant. However, the communication, referred to above, is a deliberate attempt of the Petitioner and her Advocates to not only impute motives to me as a Judge, but results in scandalizing the Court. In fact, an opportunity was given to the Petitioner as well as the Advocates to purge the contempt, but, instead of availing that opportunity, “they reiterated the stand taken in the above communication in open Court” and also expressed unwillingness to withdraw the allegations unconditionally, which is aggravating the insult. In fact, from the tenor of arguments of Mr. Bulchandani before me and, in particular, on 7th October 2003, as well as of Mr. J.P. Shah, Advocate, on 29th September 2003, their intention was pronounced, so as to show distrust and disrespect to the Court. I do not find it necessary to reproduce the arguments made by the Advocates for the Petitioner as it would only burden this Judgment. Suffice it to observe that a member of the Bar is an officer of the Court and owes a duty to the Court to uphold the dignity and decorum of the Court. He must not do anything to bring the Court itself into disrepute. When a legal practitioner makes imputation of unfairness or bias against the Judge in open Court, he is guilty of grave professional misconduct, for he would grossly overstep the limits of propriety. (See Lalit Mohan Das) Scandalizing the Court in such manner tantamounts to polluting the very fount of Justice; such conduct was not a matter between an individually member of the Bar and a member of the Judiciary; it has brought into disrepute the whole administration of justice (See Lalit Mohan Das, supra)
17. Insofar as the grievance made in para (v) of the communication, the same is entirely misplaced. For the proceedings of 18-9-2003 would clearly belie that grievance. Inasmuch as the office was directed to furnish copy of the reports received by this Court in sealed cover from the Family Court, Pune, to the parties. Besides, no adverse order was passed against the Petitioner at all on that day.
18. As mentioned earlier, neither the Petitioner, who was personally present in the Court on 7th October 2003, nor her Advocates, Mr. K.R. Bulchandani and Mr. J.P. Shah, expressed any regret or contriteness or remorse, but instead reiterated their stand and made it more than clear that they would withdraw the communication only if I were to disassociate myself from this case. This stand clearly amounts to forcing a Judge from withdrawing himself from hearing the case as a condition precedent. This itself is contumacious.
19. It was be apposite to advert to the dictum of the Apex Court in L.D. Jaikwal v. State of U.P., , which reads thus:
“We are sorry to say we cannot subscribe to the ‘slap-say sorry-and forget’ school of thought in administration of contempt jurisprudence. Saying ‘sorry’ does not make the slapper poorer. Nor does the check which has taken the slap smart less upon the said hypocritical word being uttered through the very lips which not long ago slandered a judicial officer without the slightest compunction.”
20. In the present case, neither the Petitioner nor her Advocates were willing to unconditionally withdraw the allegations, leave alone expressing sorry or regret. In Jaikwal’s case (supra), the Apex Court then went on to observe at page 408 (of the S.C.C.) as follows:
” … It will be rather difficult to persuade members of the Bar, who care for their self-respect to join the judiciary if they are expected to pay such a price for it. And no sitting Judge will feel free to decide any matter as per the dictates of his conscience on account of the fear of being scandalized and persecuted by an advocate who does not mind making reckless allegations if the Judge goes against his wishes. If this situation were to be countenanced, advocates who can cow down the Judges, and make them fall in line with their wishes, by threats of character assassination and persecution, will be advocates who are mindful of professional ethics and believe in maintaining the decorum of courts.”
21. It will be also useful to advert to the enunciation of the Apex Court in the case of Vinay Chandra Mishra, in re, , the Court observed thus:
“The rule of law is the foundation of a democratic society. The Judiciary is the guardian of the rule of law. Hence judiciary is not only the third pillar, but the central pillar of the democratic State. In a democracy like ours, where there is a written Constitution which is above all individuals and institutions and where the power of judicial review is vested in the superior courts, the judiciary has a special and additional duty to perform, viz., to oversee that all individuals and institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the dispute between the parties which is essential to peaceful and orderly development of the society. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilised life in the society. It is for this purpose that the courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside the courts, which tend to undermine their authority and bring them in disrepute and disrespect by scandalizing them and obstructing them from discharging their duties without fear or favour. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalized, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.”
22. I have not even the slightest of doubt that the Petitioner and her Advocates have deliberately indulged in this conduct with purpose. The communication, as observed earlier, is replete with calculated falsehood and distortion of the happenings during the course of proceedings in Court.
23. Indeed, the initiation of contempt action against any one, and, especially against the Advocate, is a painful duty, which I am called upon to hereby perform to maintain the dignity and decorum of this Court, for it is necessary to protect the administration of public justice. During this Roster (between June 2003 to October 2003), I came across couple of matters and, more particularly, matrimonial and custody matters, wherein similar allegations and insinuations of bias against the Presiding Judge of the lower Court were made. In one such matter, Writ Petition No. 2917 of 2003 – Sandeep Balkrishna Jindal v. Anju Nemchand Jain, I had requested the learned Advocate-General to assist the Court. But, eventually, the Petitioner therein was well advised to unconditionally withdraw all the allegations against the Lower Court Judge. I allowed the Petitioner therein to approach the lower Court to offer unconditional apology and then participate in the pending proceedings, which he did. That matter has been kept pending to observe the conduct of the Petitioner in terms of his undertaking given to this Court. Perhaps, the litigants are carrying wrong notion that, by such method, they can avoid a particular Judge, or, cause to protract the hearing of the cause, to subserve their ulterior design. If such an impression is gaining ground, it needs to be removed at the earliest. Such conduct has direct impact on the Court’s independence, dignity and decorum, and for which reason, it cannot be tolerated, as it undermines the Court’s prestige and dignity and affects the working of the Court – for it vitiates the atmosphere in which the Court normally functions. (See Mohd. Zahir Khan v. Vijai Singh, (1992) Supp. 2 S.C.C. 72, at page 76.
24. As observed in Vinay Chandra Mishra , normally, no Judge takes action for in facie curiae contempt against the lawyer unless he is impelled to do so. In the present case, it is not the heat generated in the arguments, but the language used, the tone and the manner in which it was expressed and the intention behind using it left no manner of doubt that it was calculated to insult, show disrespect, to overbear and overawe the Court. Both the Advocates, Mr. K.R. Bulchandani and Mr. J.P. Shah, to my mind, exhibited temper and discourteousness during the course of arguments. Besides, the insinuations made in the communication and reiterated in the Court leaves no manner of doubt that the intention of the Petitioner and her Advocates was to cause aspersions on my integrity and judicial impartiality and independence. That cannot be countenanced. (See M.B. Sanghi, Advocate, and 12).
25. At one stage, the Advocates for the Petitioner were at pains to explain that they have countersigned the document only to confirm the facts stated therein. However, even when opportunity was given to them, they have maintained that position. Perhaps, they are under some misconception that their role was only of countersigning the communication, so as to confirm the facts stated in the communication, would not constitute criminal contempt of Court. The facts alleged in the communication, inter alia, are that I was adamant in granting access of the minor child to the Respondent and that I was insisting upon the Petitioner to talk and submit to the settlement suggested by the Respondent, and virtually threatened the Petitioner with passing custody orders, if the settlement was not arrived at and that I was clearly biased against the Petitioner. The above allegations are clearly one of ‘fact’ confirmed by the Advocates. The expression ‘fact’ has been defined in Section 3 of the Indian Evidence Act, 1872. To put it differently, all the allegations made in the communication, albeit by the Petitioner, by itself, constitute criminal contempt and even the Advocates are liable for that action, having confirmed those facts.
26. Moreover, the Advocates having drafted and countersigned the said letter and ventured to hand over the communication in the office of the learned Chief Justice and in my Chamber, through their Clerk, is an act which, by itself, constitutes criminal contempt. The fact that the letter is drafted and countersigned by the Advocates and caused to be delivered have been conceded by the Advocates across the Bar, as noted in my above orders (i.e. 29-9-2003 and 7-10-2003). It will be useful to advert to the decision of the Apex Court in Sanjiv Dutt’s case, . The drafting of the subject
communication on behalf of the Petitioner and, in any case, the act of causing it to be delivered to me especially when the matter was in progress constitutes criminal contempt.
27. The communication as sent to the learned Chief Justice, referred to above, to my mind, would come within the sweep of the expansive definition of criminal contemp. (See Radha Mohan Lal’s case, . It will be also useful to advert to the enunciations of the Apex Court in Jaswant Singh reported in (1995) Supp 1 S.C.C. 384 para 33; Ajay Kumar Pandey ;
Chetak Construction Ltd. and 17; in Dr.
D.C. Saxena, and 40); Ajay Kumar Pandey,
; Arundhati Roy, In re, reported
28. Insofar as the grievance regarding the reports received from the Family Court, Mumbai, as mentioned earlier, the same were received by the Registry only on 23rd September 2003. The grievance made on behalf of the Petitioner that copy of those reports were not made available to the Petitioner, whereas the Respondent had already procured the same, is of no avail. In the first place, the hearing of the matter was deferred only to enable the parties to explore the possibility of settlement. In other words, non-furnishing of the reports could not have had any bearing on the settlement talks between the parties. Perhaps, that is only a ruse to justify the false allegations made in the communication.
29. As mentioned earlier, imputation of unfairness or bias made against me by the Advocates for the Petitioner constitutes grave professional misconduct, as is observed in the case of Lalit Mohan Das (supra). The Constitution Bench of the Apex Court in in the case of Supreme Court Bar Association v. Union of India has expressed that in a given case an advocate found guilty of committing contempt of Court may also be guilty of committing “professional misconduct”. Both these jurisdictions are separate and distinct and exercisable by different forums by following separate and distinct procedures. In the light of the above, I am disposed to forward copy of this decision to the Bar Council of Maharashtra & Goa for taking appropriate action against the concerned Advocates in accordance with law.
30. Needless to mention that the above observations are prima facie opinion recorded by me, which has impelled me to ignite the painful action of contempt against one of the Litigant and her Advocates, as the Petitioner has consciously signed the offending communication, caused it to be delivered in the Chamber of the learned Chief Justice, as well as my Chamber, while the matter was in progress; and chose to maintain her stand, inspite of an opportunity given to her to correct the mistake. Whereas, the Advocates have drafted and are the authors of the offending communication, countersigned the same so as to confirm the facts stated therein, played active part in ensuring delivery thereof in the Chamber of the learned Chief Justice and my Chamber, while the matter was in progress, reiterated the stand in open Court to impute motives to me as an unfair and impartial Judge, insisted that I should disassociate myself from the hearing of the case, as a condition precedent, to withdraw the said communication; and inspite of opportunity given to them to take corrective measures, chose to justify their position and to take complete responsibility therefor.
31. Before parting, it will be apposite to advert to the exposition of the Constitution Bench of the Apex Court in the case of Supreme Court Bar Association (supra) para 80, which reads thus:
“In a given case it may be possible, for this Court or the High Court, to prevent the contemner advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practise as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this Court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practise as an Advocate-on-Record because that privilege is conferred by this Court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however,does not amount to suspending or revoking his licence to practice as an advocate in other courts or tribunals.”
The Apex Court, perhaps, had in mind Rule 8-A of Part I, Order 4, of the Supreme Court Rules, 1966. The said Rule reads thus:
“When on the complaint of any person or otherwise, the Court is of the opinion that an advocate on record, has been guilty of misconduct or of conduct unbecoming of an advocate on record, the Court may make an order removing his name from the register of advocates on record either permanently or for such period as the Court may think fit and the Registrar shall thereupon report the said fact to the Bar Council of India and to the State Bar Council concerned:”
As the Apex Court has observed that it is possible even for the High Court to prevent the contemner advocate to appear before it till he purges himself of the contempt, however, that can be done only if similar provision exists in the High Court Rules. It appears that our High Court has framed Rules under Section 34(1) of the Advocates Act, 1961, which are incorporated as Appendix VI of the Original Side rules and Schedule VII of Part III of the Appellate Side Rules, respectively. Clause 13 thereof is on the same lines as that of the Supreme Court Rules, referred to above, which reads thus:
“13. No Advocate who has been found guilty of Contempt of Court shall appear, act or plead in any Court unless he has purged himself of contempt.
The Court may in its discretion permit an Advocate who has been found guilty of Contempt of Court to appear, act or plead without purging himself of Contempt of Court.”
It is significant to note that the purport of this provision is that the Advocate on being found guilty of Contempt of Court would automatically stand disqualified to appear, act or plead not only in the High Court, but also the Courts subordinate thereto till he purges himself of the contempt, having regard to the definition of “Court” envisaged in Clause 1(b) of the said Rules. This is only to caution the members of the Bar about the serious consequences of embarking upon such adventures.
32. In the circumstances, I proceed to pass the following order.
(1) Writ Petition as well as Civil Applications are disposed of with direction to the Family Court, Pune, to finally decide the main proceedings, being Petition No. A-605 of 2000, as expeditiously as possible, and pre-emptorily by the end of April 2004.
(2) Registry to issue show cause notice to:
(a) Mrs. Hema Ravishankar, residing at C-705, The Great Eastern Link’, Ram Mandir Road, Goregaon (West), Mumbai 400 104;
(b) Mr. K.R. Bulchandani, Advocate, having office at C/o. M/s. Kamal & Co., Advocate and Solicitors, 128, Great Western Building, 23, N.M. Road, Extension, Fort, Bombay 400 023; and
(c) Mr. J.P. Shah, Advocate, having office at C/o. M/s. Kamal & Co., Advocates and Solicitors, 128, Great Western Building, 23, N.M. Road, Extension, Fort, Bombay 400 023,
calling upon the respective notice to show cause why they should not be punished for having committed contempt of this Court within the meaning of Contempt of Courts Act, 1971; read with relevant Rules framed by this Court under the Contempt of Courts Act, 1971 (which are part of the Bombay High Court Appellate Side Rules, as amended uptodate).
(3) Copy of this Order be forwarded to the Secretary, Bar Council of Maharashtra & Goa, Mumbai, for taking appropriate action against the concerned Advocates, as may be advised and permissible by law.
(4) Office to place these papers before the learned Chief Justice for assigning hearing on show cause notice to appropriate Bench.
P.C.: Certified Copy expedited. Writ be sent to the Family Court, Pune, forthwith.