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Bombay HC:- Neither Spouse can withdraw the Consent given during filing the Mutual Consent Divorce.

January 28, 2014 Leave a comment

Bombay High Court

Bombay High Court

Mr Rajesh S/O Pratap Sainani Hindu
vs

Mrs Bhavna W/O Rajesh Sainani … on 26 August, 2008

Bench: V.C. Daga

IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

WRIT PETITION NO. 3556 OF 2008.

Mr Rajesh s/o Pratap Sainani Hindu,

Indian Inhabitant of Mumbai, Aged 33

years, Occu.business, At present residing at 762, Shantivan, Old Lokhandwala Complex, Andheri, Mumbai

400 053. ..Petitioner.

V/s.

Mrs Bhavna W/o Rajesh Sainani Hindu

Inhabitant of Mumbai Aged 31 years,

Occ.Housewife, At present residing at C/o Narain Das Advani, 4/12, Bhagwan

Singh Coloni, Tulsi Pipe Road, Mahim

Mumbai 400 016. .. Respondent.

Mr Rajendra M. Sorankar, Advocate for the Petitioner.

Mr Shailesh Shah i/b J. J. Saxena, Advocate for the Respondent.

CORAM: V.C.DAGA, J.

DATED: 26.08.2008.

JUDGMENT:

——–

1. Rule, returnable forthwith. Perused the petition. Heard finally by consent of parties.

2. This petition, under Article 227 of the Constitution of India, challenges the order passed by the 7th Family Court, Mumbai in Petition No. A-1301 of 2006 refusing to permit the Petitioner to withdraw his consent, which was given at the time of presenting petition for divorce by mutual consent, under Section 13-B of the Hindu Marriage Act, 1955 (“the Act” for short).

THE FACTUAL MATRIX:

——————

3. The petitioner-husband had filed petition under Section 9 of the Act, for decree of restitution of conjugal rights. During pendency of this petition, the respondent-wife made complaint under Section 498-A of the Indian Penal Code (I.P.C.) with the Oshiwara Police Station, Mumbai, against the petitioner. It was under investigation.

4. The troubled marriage had also given rise to reciprocating demand for return of ornaments given in the marriage.

5. Both parties, having realized that marriage is irretrievably broken and there was no possibility to save their marriage, filed application under Section 13B of the Act for decree of divorce by mutual consent, duly signed by them, on 28.10.2006. ( 3 )

6. The settlement of matrimonial dispute by mutual consent was agreed by both spouses resulting, inter alia, wife withdrawing her criminal complaint filed under Section 498-A of the I.P.C. and waiving all claims towards future maintenance for herself and her minor son and agreed to have custody of minor son Dhruva holding herself solely responsible for welfare of the minor son Dhruva. The petitioner-husband agreed not to claim the custody of the minor son Dhruva at any time in future but retained his right to have access.

7. Both parties exchanged jewelleries, gift articles received by them in marriage and declared that they shall have no claim against each other in that behalf. Parties to the dispute acted upon the terms of compromise. Both parties agreed, confirmed and clarified that subject to the compliance of the terms and conditions, the marriage shall stand dissolve by decree of divorce by mutual consent. Both parties declared absence of collusion between them and sought decree of divorce by mutual consent by moving application under Section 13-B of the Act to the Family Court, Mumbai.

8. The petitioner-husband on 23.5.2006, i.e. after lapse of seven months from the date of presentation of the petition, filed an application for cancellation/withdrawal of his consent for mutual divorce contending that he had agreed for consent terms and divorce by mutual consent under pressure, undue influence, and fear about welfare his son. He filed affidavit in support of his application on 16.11.2007 i.e. after lapse of six months from the date of application seeking to withdraw consent for mutual divorce.

9. The above application was strongly opposed by the respondent-wife on various factual and legal grounds pressing into service the doctrine of estoppel.

10. The pleadings of the parties filed before the learned Family Court give a clear indication that both parties agreed for decree of divorce by mutual consent and to compromise all their disputes and made a joint statement in the petition expressing their willingness for a divorce by mutual consent.

11. The learned 7th Family Court heard both parties and vide its reasoned order dated 17.1.2008 dismissed the application of the Petitioner seeking to withdraw his consent holding that it will cause a serious prejudice and/or injustice to the respondent-wife.

12. Being aggrieved by the aforesaid order dated 17.1.2008 refusing to permit the petitioner to withdraw his consent and thereby declining to dismiss the petition filed under Section 13-B (2) of the Act, he has invoked writ jurisdiction of this Court under Article 227 of the Constitution of India.

SUBMISSIONS:

———–

13. The learned counsel for the Petitioner, repeatedly, reiterated that the Petitioner was made to ( 6 ) sign consent terms under coercion and undue influence without disclosing material facts and particulars including the effects thereof.

14. The learned counsel for the petitioner urged that during the pendency of the petition for divorce by mutual consent, in law, it is open for the respondent to withdraw his consent at any time so long as the decree of divorce has not been passed. He submits that the consent must exist on the date when the petition for decree of divorce by mutual consent was filed and it must continue to exist till the orders are passed by the competent Court, dissolving marriage by consent. Reliance is placed on two Judgments of the Division Bench of this Court, one in Family Court Appeal No. 39 of 2008 decided on 29th April, 2008 between Mr Sanjay Pahariya v. Ms Smruti Pahariya (unreported), (unreported of which para 19 was heavily relied upon, which reads as under:

19. “We are not impressed by this submission. We have already quoted extensively from Sureshta Devi’s case (supra). A reading of this judgment leaves no room for doubt that there should be mutual consent when parties move the court under section 13-B(2). No decree under section 13-B(2) can be passed on initial consent and the court must be satisfied about existence of mutual consent at the time it passes the decree. It is true that ordinarily, a motion can be made by one party to a proceeding. But, section 13-B(2) begins with words ” on the motion of both the parties”. Therefore, motion contemplated therein has to be made by both parties. In fact, in Sureshta Devi’s case (supra), the Supreme Court has laid stress on these words and made the observations quoted above. It is not open for us to differently interpret section 13-B of the said Act.”(Emphasis supplied)

15. The another judgment, relied upon by the petitioner arose out of Civil Reference No. 2 of 2007 decided on June,2008 between Principal Judge, Family Court, Nyaya Mandir Premises, Civil Lines, Nagpur vs. Nil taking view similar to the view taken in Sanjay Pahariya’s case (cited supra).

16. Learned counsel for the petitioner, thus, prayed for setting aside the impugned order and dismissal of the petition or divorce by mutual consent filed under Section 13B of the Act.

17. The learned counsel for the respondent-wife supported the impugned order and pressed into service doctrine of estoppel to contend that the petitioner husband is estopped from withdrawing his consent since the respondent-wife acted to her prejudice accepting the representation made by the petitioner-husband that he is ready for divorce by mutual consent if his terms are accepted. That the move on the part of the petitioner is seriously criticised and branded it to be mala fide and dishonest move and prayer for dismissal of the petition in limini with heavy costs is made.

STATUTORY PROVISION:

——————-

18. At this stage, it is necessary to reproduce the relevant statutory provisions of Section 13B (1) and (2) of the Hindu Marriage Act, which read as under: . Section 13B :

(1) Subject to the provisions of this Act, a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or  more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion made by both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-Section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and making such enquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring a marriage to be dissolved with effect from the date of decree.

RELEVANT JUDGMENTS:-

——————

19. Before embarking upon the submissions of rival parties, let me turn to the relevant reported judgments so as to examine settled legal position:- (1) In the case of Nachhattar Singh v Harcharan Kaur, A.I.R. 1996 P and H, 201, it was held that : 201

“The petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same. Six months after the date of the presentation of the petition and not later than 18 months after the said date, if the petition is not withdrawn by both the parties, the Court has to satisfy itself, after hearing the parties and after making such Inquiries as it thinks fit, that the petition was in fact presented by both the parties to the marriage, that they have mutually agreed that the marriage should be dissolved. If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all other conditions mentioned in sub section (1) of Section 13B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In the present case, without making any inquiry under sub Section (2) the Trial Court has to dismiss the petition as withdrawn which could not be done merely on the asking of one party.”

(Emphasis supplied)

(2) A Similar view was taken by the Delhi High Court in Smt Chander Kanta vs. Hanskumar and Anr (I) 1998 D.N.C. 509; 509 wherein it was held that:

19. “A petition presented under Section 13B (1) of the Act cannot be withdrawn by one party unilaterally. Of course, if the Court is satisfied that a consent was not a free consent and it was the result of force, fraud or undue influence then it is a different matter because in such a case the Court is empowered specifically to refuse to grant the decree. If one party is allowed to withdraw the consent, even when other grounds, namely that the parties continued to live separately and have not been able to live together, still subsists and reconciliation is not possible then it will frustrate the very purpose of the enactment. Under Section 23(1)(bb), the Court is empowered to grant the decree even in an undefended case if it is satisfied that the averment in the petition are true and the consent for mutual divorce has not been obtained by fraud, force or undue influence. If unilateral withdrawal of consent is permitted the Court will not be able to pass a decree in an undefended case”.

Thus, it is clear that it is settled law that unless it is shown by one party that his/her consent was as a result of force, fraud or undue influence, consent given for grant of divorce by mutual consent in the petition under Section 13-B (1) of the Act cannot be unilaterally withdrawn by the said party, which position of law has also been followed in volume 41 (1990 Delhi Law Times 266) in the case of Rajrani vs. Roop Kumar.

(Emphasis supplied)

20. In A.I.R. 1997 SC 1266 in Ashok Hura v. Rupa Bipin Zaver, the Hon’ble Supreme Court, while dealing with similar question of withdrawal of consent unilaterally by one party concluded that the marriage between the parties has been irretrievably broken and that there was no chance of their coming together or living together, and went on to observe, as under:- “We are of the view that the cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically and there is no chance at all of the same being revived and continuation of such a relationship is only for namesake and that no love is lost between theparties, who have been fighting like “Kilkenny cats” and there is long lapse of years since the filing of the  petition and existence of such a state of affairs warrant the exercise of the jurisdiction of this Court under Article 142 of the Constitution and grant a decree of divorce by mutual consent under Section 13-B of the Act and dissolve the marriage between the parties, in order to meet the ends of justice, in all the circumstances of the case subject to certain safeguards.

Irretrievable breakdown of marriage is now considered, in the laws of number of countries, good ground of dissolving the marriage by granting a decree of divorce. Proof of such breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the legalities acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment of marriage. The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade when the emotional and other bounds which are of the essence of marriage have disappeared. After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and not an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which may regulate their relationship in the changed circumstances…”

(Emphasis supplied)

21. In Rachna Jain vs. vs Niraj Jain II (2006) DMC 410 the Delhi High Court had an opportunity to deal with the case involving more or less similar facts wherein the Court refused to permit withdrawal of the consent holding such move on the part of the respondent-husband to be mala fide, baseless and  unjust since the terms of settlement were acted upon by both parties.

22. In Ashok Hura’s case (supra) the Hon’ble Supreme Court dealt with its earlier judgment in Sureshta Devi’s case (supra) and observed as under: “It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13-B(2) of the Act, However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact situation herein. The decision in Sureshta Devi’s case AIR 1992 SC 1904, (supra) may require reconsideration in an appropriate case. We leave it there.”

23. The impugned order can be justified on the solitary principle of law laid down by the Apex Court in Ashok Hura’s case (cited supra).

24. Now, turning to the another facet of the submission based on the touchstone of the doctrine of estoppel, it is necessary to examine the reasons recorded by the Family Court in support of its order dated 17.1.2008. The relevant extracts of which are reproduced herein below.

20. “It is important to note that besides bare words of the petitioner, he has not made out any ground of force or coercion used by the respondent on him. Much emphasis is given on the point that the respondent has filed criminal complaint against the petitioner and by taking undue advantage of filing the said complaint, she has pressurised the petitioner. Second, she has used her child against him for obtaining his consent.

21. If we go through the consent terms it clearly reveals that the respondent is withdrawing her right of alimony, secondly, she has agreed to give access of the child, thirdly, she has agreed to withdraw the complaint filed against the petitioner and that the only compliance was remained that too, of passing decree of dissolution of marriage.

22. If we go through the contents of the application exh.17, besides the words that the respondent had used force, influence for signing the consent terms, there is nothing on record to show that the respondent has gained any advantage from the petitioner by compelling him to sign the consent terms. Apart from that, if at all, the respondent would have pressurized the petitioner for signing the consent terms, he could have appeared before the Court even before six months or approach police authorities but he remained silent for about seven months. He has not appeared before the Court even immediately after completion of six months. It clearly reveals that when the respondent has presented the copy of application for withdrawal of her complaint submitted by her to the police, on the very day, when the matter was for appearance, he remained absent on that date and appeared on the next date when the matter was kept after one month. The conduct of the part of the petitioner is such that he has obtained disadvantage by way of agreement by which the respondent has withdrawn the complaint, she has started giving access of the child to the petitioner. In these circumstances, I am of the opinion that the petitioner has failed to establish his consent for converting the petition into the petition for divorce by mutual consent, has been obtained by respondent by playing fraud or coercion on him, as alleged in application Exh.17.

23. Moreover, as I have submitted earlier, the parties have acted upon the consent terms and therefore, it is not desirable at this stage when only the order of dissolution of marriage is remained to be passed. At such stage, if the petitioner is allowed to withdraw his consent, it will cause prejudice or injustice to the respondent. Therefore, the application, deserves to be rejected.” (Emphasis supplied)

25. The finding recorded by the Family Court is that the Respondent-wife acted upon the representation made by the respondent-husband to her prejudice and the petitioner-husband has availed all benefits and enjoyed fruits of the terms of settlement and compromise.

Let me examine as to whether or not the findings are correct.

26. The dissection of the impugned order and material available depict picture, as under:- (i) The respondent-wife, under the garb of said compromise, was made to withdraw her criminal complaint filed under Section 498-A of the I.P.C.

(ii) The respondent-wife was made to return the ornaments which were given to her in marriage by husband’s family.

(iii) The respondent-wife was made to waive her right of present and future maintenance including that of minor son.

(iv) The respondent-wife was saddled with the liability of son’s future education and welfare. In other words, petitioner got himself relieved of the obligations of father towards his minor son; and

(v) The respondent-wife was made to agree to a limited custody of minor son and access to the petitioner-husband for which wife was not agreeable.

27. It is, thus, clear that factually, the respondent-wife has acted upon the terms of compromise to her prejudice accepting the representation made by her husband-petitioner that he was ready for divorce  by mutual consent.

28. Now, let me examine the legal effect of representation made by the husband and accepting terms thereof by the wife to her prejudice based on decided cases.

29. The Apex Court in the case of B.L. Sreedhar vs K.M. Munireddy A.I.R. 2003 S C 578 held as under: “The essential factors giving rise to estoppel are, I think –

(a) A representation or conduct amounting to representation intended to induce a course of conduct on the part of the person to whom the representation was made.

(b) An act or omission resulting from representation whether actual or by conduct, by the person to whom the representation was made.

(c) Detriment to such person as a consequence of the act or omission where silence cannot amount to a representation, but where there is a duty to disclose, deliberate silence may become significant and amount to a representation. The existence of a duty on the part of a customer of a bank to disclose to the bank his knowledge of such a forgery as the one in question was rightly admitted.”

30. In the case of Maddanappa (deceased) after him by his legal representatives vs. vs Chandramma and Anr A.I.R. 1965 S C 1812 the Supreme Court relying upon the judgment of Privy Council in the case of Saratchunder Dey vs. Gopal Chunder Laha 19 Ind App 203 (PC) explained the ingredients of the doctrine of estoppel and went on to hold that a person who sets up an estoppel against the other must show that his position was altered by reason of the representation or conduct of the latter and unless he does that, even the general principle of estoppel cannot be invoked by him.

31. The general principle of estoppel is stated thus by the Lord Chancellor in Cairncross vs. vs Lorimer (1860) 3 H.L.C. 829:

“The doctrine will apply, which is to be found, I believe, in the laws of all civilized nations that if a man either by words or conduct has intimated that he consents to an act which is to be done and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he has so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct…I am of the opinion that generally speaking, if a party having an interest to prevent an act to be done has full notice of its being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous licence.”

32. Having examined the aforesaid legal position, it is clear that the estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice.

33. With the above understanding of law, if one turns to the facts of the case in hand, at the cost of repetition, I must observe that the Petitioner, by making representation that he was agreeable for divorce by mutual consent provided – respondent-wife withdraws her criminal complaint, returns his ornaments given to her in the marriage and takes care and custody of the minor child with limited access to him. The said representation made by the husband was accepted and acted upon by the respondent- wife to her prejudice. She withdrew criminal complaint filed against the husband and his family members. She returned ornaments received by her in the marriage. She agreed to have a custody of the minor son and on the top of it waived present and future right to claim maintenance for herself as well as for minor son. Thus, it is clear like a day light that the respondent- wife acted to her prejudice by accepting terms of compromise favourable to the petitioner-husband. The husband is, thus, estopped from withdrawing his consent.

34. The Family Court cannot be helpless spectator and duplicity of the petitioner-husband to induce the hapless wife, the respondent to waive maintenance claim for not only herself and her son, also compelled her to withdraw the criminal complaint in the hope of starting her life afresh. The husband by his conduct has caused the wife huge disadvantage. No spouse can unilaterally, wilfully be allowed to withdraw consent even on the grounds; such as fraud, undue force, representation unless grounds are proved satisfactorily. In the present case, if the withdrawal of consent by the petitioner-husband is upheld, it will cause anamoulous situation and serious prejudice to the respondent-wife, who is law abiding person. She will be left high and dry without recourse to any remedy and saddled with dead marriage. The respondent-husband has resorted to fraud and misrepresentation which cannot be permitted by the Courts of Law and equity.

35. The Family Court has rightly taken into account the wrong sought to be done by the husband and his attempt to cheat his wife depriving her an opportunity to work out and regulate the life of herself and her son in a fresh air. A pedantic interpretation of law might result in a situation resulting in gross miscarriage of justice in denying a woman with her abandoned son an opportunity to start their life afresh as stated.

36. Having said so, I am also prevented by the parameters of interference by the High Court in the petition filed under Article 227 of the Constitution of India to interfere with the impugned order in view of the Law holding field in this behalf enumerated herein below.

37. The Apex Court in the case of T.G. Telang vs. R.S. Bhinde A.I.R. 1977 S C 1222 the Apex Court in para 3 held that:

” As would be apparent from the above narrated, the instant case does not involve any substantial question of law of general or public importance. Although counsel for the appellants has strenuously assailed the correctness of the finding of the Revenue Tribunal and of the High Court, we are unable to accede to his contention. We have not, despite careful consideration of the judgments and objections submitted to us, been able to discern any legal infirmity or error either in the decision of the Revenue Tribunal or of the High Court. It is well settled rule of practice of this Court not to interfere with the exercise of discretionary power under Articles 226 and 227 of the Constitution merely because two views are possible on the facts of a case. It is also well established that it is only when an order of a Tribunal is violative of fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the orders passed results in manifesting justice, that the Court can justifiably interfere under Article 227 of the Constitution.”

38. The Apex Court in the case of Waryam Singh v. Amarnath A.I.R. 1954 S C 215 considered the scope of  Article 227. It was held that the High Court has not only administrative superintendence over the subordinate courts and tribunals but it has also the power of judicial superintendence. The Court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd v. Sukumar Mukherjee A.I.R. 1951 Cal 193 (SB) where the High Court said that the power of superintendence conferred by Article 227 was to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting their mere errors. The Court said that it was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.

39. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta (1975) 1 SCC 858 the Apex Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. It said that the High Court could not while exercising jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate court or tribunal and that its function was limited to seeing that the subordinate court or tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence or reappreciating it. The Court further said that the jurisdiction under Article 227 could not be exercised, “as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceeding.”

40. In Nagendra Nath Bora v. Commr. of Hills Division and Appeals A.I.R. 1958 S C 398 the Supreme Court observed as under: “It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi judicial nature, are not greater than the powers under Article 226 the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.”

41. In the above view of the matter, it is evident that withdrawal of the consent by the petitioner-husband is tainted with mala fide, baseless and unjust consideration. The judgments of the Division Benches of this Court referred in paras 14 and 15 supra are not applicable to the facts of this case. The view taken by the learned Family Court is a reasonable and possible view. No case is made out to interfere with the order under challenge.

42. In the result, Rule is discharged. The petition is dismissed with costs quantified in the sum of Rs. 25,000/- to be paid by the petitioner-husband to the respondent-wife.

(V.C.DAGA, J.)

 

Delhi HC- Suppression of Facts. Wife guilty of contempt,maintenance dismissed with cost.

“The conduct of the wife (respondent herein) of not disclosing to this Court about a petition being pursued by her and her conduct of concealing the material information from the Court of Judicial Magistrate, Jallandhar obtaining an ex parte order was contemptuous and violation of an undertaking given by her.”

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: January 07, 2010

Date of Order: January 25, 2010

+ Cont. Cas(C) 482 of 2008

% 25.01.2010

Gurbinder Singh …Petitioner Through: Mr. V.M. Issar, Advocates

Versus

Manjit Kaur …Respondents Through: Mr. Anish Dhingra, Advocate along with respondent in person.

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

1. The petitioner has preferred this contempt petition against respondent alleging violation of an undertaking given to the Court of Additional District Judge, Jallandhar on 8th September 2000.

2. The petitioner and respondent are husband and wife. The petitioner was in the Army and the wife was working as a teacher in S.D. Model School, Jalandhar Cantt. The divorce and various other proceedings were going on between the parties. The parties with the intervention of their counsels entered into a settlement and this settlement was recorded by the Court. In that settlement, the respondent (wife) agreed that she will not initiate any type of action against petitioner or against children of the parties or against the parents of the petitioner and other relatives of the petitioner (the children were at that time living with the petitioner) before the Court of law or before any other authority and she would not do anything which would affect the character, status or reputation of the petitioner. The petitioner also gave a similar undertaking that he would not disturb respondent in any manner and he Cont.Cas(C) 482/2008 Gurbinder Singh v. Manjit Kaur Page 1 Of 3 would not institute any action against her either before the Court of law or before any authority and he will not try to castigate honour or character or reputation in any manner. Thereafter, before this Court in April’05, she (respondent) again filed an affidavit that she would abide by the undertaking given to the learned ADJ on 8th September 2000 and she would not harass or humiliate the petitioner in future and will not create any cause of action afresh. This undertaking was given by way of an affidavit. Thereafter, the respondent herein filed an application under Section 125 Cr.P.C. before the Jallandhar Court in August’ 04 claiming maintenance from the petitioner on the ground that the petitioner had neglected to maintain her and she had no source of income. There is no doubt that the respondent had a right to claim maintenance from the petitioner, if she was not able to maintain herself. A perusal of the ex parte order obtained by her from the Court of Jallandhar shows that she concealed all material facts from the Court at Jallandhar. She did not disclose that she was working as a teacher in a school at Jallandhar and that there was an agreement between the parties arrived before learned ADJ, Delhi and that she had also filed an affidavit in the High Court that she would not unnecessarily harass the husband. Where a person after concealing the material facts about her own employment and about the undertaking given to the Court, files an application for maintenance just to harass the opposite side, after giving an undertaking to the Court that she would not harass the petitioner (husband), I consider this amounts to violation of undertaking given by her. The respondent appeared in person today in the Court and admitted that at the time she filed the petition in the Jallandhar Court, she was gainfully employed as a teacher and she continued to remain in employment till 2008 i.e. even after passing of the order under Section 125 of Cr.P.C. A perusal of the ex parte order passed by learned JM would show that the respondent had concealed from the JM about her own employment, her salary from the school and her assets and contended that the respondent was drawing a pension of Rs.10,000/- per month and his income from other sources was Rs.20,000/- per month and she obtained an order of grant of maintenance @ Rs.3,000/- per month from the date of application. She did not disclose to this Court when she filed her affidavit in this Court in April, 2005 that Cont.Cas(C) 482/2008 Gurbinder Singh v. Manjit Kaur Page 2 Of 3 she had filed a petition at Jallandhar Court which was going on ex parte or that she had already preferred a petition under Section 125 of Cr.P.C which was pending.

3. I consider that the conduct of the wife (respondent herein) of not disclosing to this Court about a petition being pursued by her and her conduct of concealing the material information from the Court of Judicial Magistrate, Jallandhar obtaining an ex parte order was contemptuous and violation of an undertaking given by her.

4. I, therefore, hold the respondent guilty of contempt and a fine of Rs.10,000/- is imposed on her.However, after her retirement, if she seeks maintenance for herself after disclosing to the Court concerned about her pension and other income and properties, which she holds in Delhi and other places, she would be free to make a petition regarding maintenance before the Court of competent jurisdiction.

5. With above order, the petition stands disposed of.

January 25, 2010 SHIV NARAYAN DHINGRA J. rd

Bombay HC:- Fines State for Illegal Arrest of Husband and his parents (senior Citizens)

December 24, 2012 1 comment

In one more glaring case of gross violation of Article 21  of the Constitution of India and that also at the hands of the Police machinery which is supposed to be protector of common man. The victims are the second and third Petitioners who are senior citizens. High Court at Bombay swung in action to punish the gross violators (Police). Pls go through the complete Judgement below:-

ash 1 wp-856.12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.856 OF 2012

 

1. Niraj Ramesh Jariwala, )

 

Age: 35 years, Occ: Service,  )

 

2. Ramesh Vitthaldas Jariwala, )

 

Age: 66 years, Occ: Retired. )

 

3. Hansa Ramesh Jariwala,  )

 

Age : 62 years, Occ: Household, )

 

All residing at Tirupati Supreme )

 

Enclave, K/29, Jalidar Nagar,  )

 

Paithan Road,  Aurangabad. )

 

4. Ravindra Dagadu Gaikwad, )

 

Age : 38 years, Occ: Chairman of  )

 

Bharat Ratna Indira Gandhi  )

 

Engineering College, Solapur, )

 

Residing at 65, Antroli Nagar­1,  )

 

Solapur. )

 

5. Anamika Ravindra Gaikwad, )

 

Age : 32 years, Occ: Director of  )

 

Bharat Ratna Indira Gandhi  )

 

Engineering College, Solapur. )

 

Residing at 65, Antroli Nagar­1, )

 

Solapur. ).. Petitioners

 

( Orig. Accused )

 

Versus

 

1. Mahadeo Pandurang Nikam, )

 

Police Sub­Inspector, )

 

Navghar Police Station, Mumbai )

 

2. The Senior Inspector of Police, )

 

Navghar Police Station, Mumbai. )

 

3. Sheetal Niraj Jariwala,  )

 

Age : Adult, Occ: Household, )

 

Residing at Plot No.1001,  )

 

Manisha Tower, Tata Colony,  )ash 2 wp-856.12

 

Navghar Road, Mulund (East), )

 

Mumbai – 400 081. )

 

4. The Commissioner of Police, )

 

For Greater Bombay, at Bombay. )

 

5. The State of Maharashtra, )

 

( Notice to be served upon A.P.P., )

 

High Court, A.S., Mumbai.) ).. Respondents

 

( Respondent No.3/

 

Orig.Complainant)

 

 

Shri Sachin Deokar i/by Shri V.V. Purwant for the Petitioners.

 

Shri D.B. Shukla i/by Shri Yogesh D. Dalvi for Respondent No.1.

 

Shri A.S. Gadkari, APP for the State.

 

­­

 

CORAM  : A.S. OKA & S.S. SHINDE, JJ

 

DATE ON WHICH SUBMISSIONS WERE HEARD : 3RD DECEMBER, 2012

 

DATE ON WHICH JUDGMENT IS PRONOUNCED: 21ST DECEMBER,2012

 

JUDGMENT ( PER A.S.OKA, J)

 

1. This is one more glaring case of gross violation of Article21 of the Constitution of India and that also at the hands of the Police machinery, which is supposed to  be protector of common man.  The victims are the second and third Petitioners  who are senior citizens.

 

2. We may  note  here  that  by  an  order  dated  31st October, 2012,  we directed  that the Writ Petition shall be heard and disposed of finally. This   Court   noted   in   the   said   order   that   what   survives   for consideration is the  prayer Clauses  (b) and (d) which concern illegal detention of the second and third Petitioners.

The first Petitioner and the  third Respondents are husband and wife.   The Second and  third Petitioners are parents of the first Petitioner.   On 29th

November, 2011,at the instance of the third Respondent, the first Information  Report was registered with Navghar Police Station, Mumbai, complaining about the offences under Sections 498A, 406, 323, 504 read with Section 34 of the Indian

penal Code against the  Petitioners. As far as the arrest of the   Second   and   third   Petitioners   is   concerned, following   are   the admitted facts which are  borne out  from the record.

 

(i) The Respondent No.1 who was  at  the  relevant  time Sub­Inspector   of   Police   attached   to   Navghar   Police Station, Mumbai was  deputed  to Aurangabad under

the   permission   of   the   Assistant   Commissioner   of Police,  Mulund Region.  The station diary entry to that effect  has  been  recorded  at  10.40  on 2nd  December, 2011.

 

(ii) The   first   Respondent   took   the   second   and   third Petitioners   into   custody   at   22.50   on   2nd December 2011 at Aurangabad, but were not shown as arrested.

The first Respondent brought them to Bombay.

(iii)   The   station   diary   entry   dated   3rd  December,   2011 records that at 20.20,  the second and third Petitioners were produced before  the Senior  Inspector of  Police Shri Bhorde of Navghar police station.    It is recorded that the first  Respondent  was investigating into  the offence.     It   is   recorded   that   the   Second   and   third Petitioners   were   placed   in   the   custody   of   the   two Police   Constables   bearing   buckle   Nos.97015   and 8040305.

 

(iv)  The Station Diary entry of 4th  December 2011 at 08.10 shows   that   the   second   and   third   Petitioners   were shown   as  arrested   and   the   information   about   their arrest was conveyed to one Manoj Baburao Nishandar, Solapur  on his cell phone.

 

(v)  On 4th December 2011, the second and third Petitioners were   taken   from   the   Police   station   at   10.45   for producing   them   before   the   Court   of   the   learned

Metropolitan   Magistrate.       They   were   actually produced before  the learned  Metropolitan Magistrate at   15.05     on   4th  December   2011   and   they   were enlarged on bail.

(vi) We must  note  that  the  aforesaid  facts  are  admitted facts.

 

3. We may note here that the order dated 19th  June 2012 of this Court records  that the investigation of the case has been transferred to Vikhroli Police Station and, therefore, the notice was issued only as regards the prayer clauses (b)  to (d).     The prayer (b) is  for issuing direction to take action against the first  Respondent for non­compliance with the directions issued by the  Apex  Court  in  the case of D.K. Basu Vs.State of West Bengal [(1997) 1 SCC 416 ].   Prayer (c) is for grant of compensation on account of illegal arrest.   Prayer (d) is for directing the  fourth Respondent  to initiate disciplinary proceedings against  the first Respondent.   The learned  counsel  appearing  for  the  Petitioners pointed  out  that  going  by  the  record,  the  first Respondent  took  the second and third Petitioners  into the custody at 20.50 on 2nd December 2011 at Aurangabad.  The first Respondent brought them to Navghar Police Station at 20.20 on 3rd  December 2011. However, till 8.10 on 4thDecember 2011, they were not shown  as arrested though they were in custody continuously from 20.50 on 2nd  December  2011.   It is urged that this action is patently illegal and   is in violation  of  Articles  21 and 22 of the   Constitution   of   India   as   well   as   Section   57   Code   of   Criminal Procedure, 1973 ( hereinafter referred to as “the CRPC”).   He pointed

out   various   allegations   made   in   the   Petition   as   regards   inhuman treatment  meted out to the second and third Petitioners  in the onward journey  from  Aurangabad to Navghar  Police  Station  at Mulund.  He pointed  out  that  both  the   second  and  third  Petitioners  were   senior citizens   on   the   relevant   date.       His   submission   is   that   apart   from initiating action in accordance with law,  in view of gross violation of the guidelines laid down by the Apex Court  in the  case of  D.K. Basu (supra) and in view of violation of Articles 21 and 22 of  the Constitution of India,   the   Petitioners   are   entitled   to   substantial   amount   by   way   of compensation.

 

4. The learned  counsel  appearing  for  the  first Respondent, apart   from   the   earlier   affidavit   dated   2nd  April   2012,   has   tendered additional affidavit affirmed on 3rd December 2012.   His submission is

that the first Respondent has acted as per the instructions of the Senior

Inspector of Police of Navghar Police Station and as per the instructions

of the said officer, he brought the second and third Petitioners to the

Navghar Police Station and has made an entry in the station diary in the

night of 3rd December 2011 showing that they were produced before the

Senior Inspector of Police who in turn handed over their custody to the

two Police Constables.     He submitted  that all  further actions at  the

police   station   are   by   the   Senior   Inspector   of   Police   and   the   first

Respondent   has   merely   followed   his   directions.       He   denied   the

allegations made in  the  Petition.      He  pointed  out  that  though  the

second and third Petitioners were  taken into custody at 20.50 on 2nd

 

December 2011, onward journey from Aurangabad  to Mumbai took 20

hours and, therefore, if the period of 20 hours is excluded, the second

and   third   Petitioners   were   produced   before   the   learned   Magistrate

within 24 hours from the time of arrest.  His submission is that neither

there is any violation of Articles 21 and 22 of the Constitution of India

nor Section 57 of the CRPC.   He urged that all the guidelines laid down

in   the  case  of D.K.  Basu  (supra)  have  been  complied  with.        He,

therefore, submitted  that  there is no illegality committed by  the  first

Respondent.

 

5. The learned APP has  produced the station diary and all the

relevant  documents  before  this  Court.    He  pointed  out  that  all  the

relevant station diary entries were made by the first Respondent and the

illegality  has  been  committed  by  the  first Respondent.     As  regards

compliance with  the  directions in  the case  of D.K. Basu  (supra),  he

urged  that  the station diary  records  that  the  reasons  for  arrest were

informed to the second and third Petitioners and their close relatives

However, he could not show us any Memorandum of Arrest drawn in

compliance with  the directions in  the case of D.K. Basu  (surpa). He

urged that as the entire default is on the part of the first Respondent,

even if  this Court is inclined  to direct   compensation to be paid,  the

same will have to be made payable by the first Respondent. ash 8 wp-856.12

6. Before dealing with the factual aspects, it will be necessary

to make a reference to the directions issued  by the Apex Court in the

case of D.K. Basu (supra).    Paragraphs 35 to 38 thereof read thus :

35. We,   therefore,   consider   it   appropriate   to

issue   the   following  requirements  to   be

followed in all cases of arrest or detention

till legal provisions are made in that behalf

as preventive measures:

(1)   The   police   personnel   carrying   out   the

arrest and handling the interrogation of

the arrestee should bear accurate, visible

and  clear identification  and name  tags

with  their designations. The particulars

of all such police personnel who handle

interrogation   of   the   arrestee   must   be

recorded in a register.

(2)  That   the   police   officer   carrying   out

the   arrest   of   the   arrestee   shall

prepare a memo of arrest at the time

of   arrest and   such   memo   shall   be

attested by at least one witness, who

may either be a member of the family

of   the   arrestee   or   a   respectable

person of the locality from where the

arrest   is   made.   It   shall   also   be

countersigned   by   the   arrestee   and

shall   contain   the   time   and   date   f

 

arrest.

(3)  A  person  who  has  been  arrested  or

detained and is being held in custody

in   a   police   station   or   interrogation

centre   or   other   lock­up,   shall   be

entitled to have one friend or relative

or   other   person   known   to   him   or

having   interest   in   his  welfare  being

informed, as soon as practicable, thatash 9 wp-856.12

he   has   been   arrested   and   is   being

detained   at   the   particular   place,

unless the attesting witness of the memo

of  arrest is  himself  such  a  friend  or  a

relative of the arrestee.

(4)  The  time, place of arrest and venue of

custody of an arrestee must be notifie

by  the police where  the next  friend or

relative of the arrestee lives outside the

district  or  town  through  the  Legal Aid

Organisation   in   the   District   and   the

police   station   of   the   area   concerned

telegraphically within  a  period  of  8  to

12 hours after the arrest.

(5)  The   person   arrested   must   be   made

aware of  this right  to have someone

informed of his arrest or detention as

soon as he  is put under arrest or  is

detained.

(6)  An entry must be made in the diary at

the   place   of   detention   regarding   the

arrest   of   the   person   which   shall   also

disclose the name of the next friend of

the  person  who  has  been informed  of

the arrest and the names and particulars

of the police officials in whose custody

the arrestee is.

 

(7)   The   arrestee   should,   where   he   so

requests, be also examined at  the  time

of   his   arrest   and   major   and   minor

injuries, if any present on his/her body,

must   be   recorded   at   that   time.   The

“Inspection Memo” must be signed both

by   the   arrestee   and   the   police   officer

effecting   the   arrest   and   its   copy

provided to the arrestee.

 

(8)   The   arrestee   should   be   subjected   to

medical examination by a trained doctor

every 48 hours during his detention in custody   by   a   doctor   on   the   panel   of approved doctors appointed by Director, Health  Services  of   the   State   or   Union

Territory   concerned.   Director,   Health Services should prepare such a panel for

all tehsils and districts as well.

 

(9)  Copies  of   all   the   documents  including

the memo of  arrest,  referred  to  above,

should be sent  to  the  Illaqa Magistrate

for his record.

(10) The arrestee may be permitted to meet

his lawyer during interrogation, though

not throughout the interrogation.

(11)   A   police   control   room   should   be

provided   at   all   district   and   State

headquarters,   where   information

regarding   the   arrest   and   the   place   of

custody   of   the   arrestee   shall   be

communicated by the officer causing the

arrest, within 12 hours of effecting the

arrest and at the police control room it

should   be   displayed   on   a  conspicuous

notice board.

36. Failure   to   comply   with   the   requirements hereinabove   mentioned   shall   apart   from rendering  the  official concerned  liable  for departmental action, also render him liable to  be punished  for contempt  of court  and the proceedings for contempt of court may be instituted in  any  High  Court  of  the  country, having territorial jurisdiction over the matter.

 

37.  The  requirements,   referred   to   above   flow from   Articles   21   and   22(1)   of   the Constitution   and   need   to   be   strictly followed. These would apply  with equal force to   the   other   governmental   agencies   also   to which a reference  has  been made earlier.

 

38. These   requirements   are   in   addition   to   the constitutional and  statutory safeguards and do not detract from various other directions given by the courts  from time to time in connection with the safeguarding of the rights  and dignity of the arrestee.

 

(emphasis added)

 

7. It is  also necessary  to make  a  reference  to what is laid down in Paragraph  4 of the decision of the Apex Court in the case of Sheela   Barse   Vs.   State   of   Maharashtra   [(1983)2   SCC   96].         In Paragraph 4 of the said decision, it is held thus:­

 

“4. We may now  take up  the  question  as  to how

protection   can   be   accorded   to   women   prisoners   in

police lock­ups. We put forward several suggestions to  the   learned   Advocate   appearing   on   behalf   of   the petitioner and the State of Maharashtra in the course of   the   hearing   and   there   was   a   meaningful   and constructive debate in court.  The State of Maharashtra offered its full cooperation to the Court in laying down

the   guidelines   which   should   be   followed   so   far   as women prisoners in police  lock­ups are concerned and most   of   the   suggestions   made   by   us   were   readily

accepted by the State of Maharashtra. We propose to give   the   following   directions   as   a   result   of meaningful   and   constructive   debate   in   court   in regard  to  various aspects of  the question argued before us:

 

(i)  We would direct that four or  five police lock­ ups   should   be   selected   in   reasonably   good localities where only female suspects should be kept  and  they  should  be  guarded  by  female constables. Female suspects should not be kept in a police lock­up in which male suspects are detained.   The   State   of   Maharashtra   has intimated  to  us  that  there  are  already  threeash 12 wp-856.12

cells where  female suspects  are  kept and are guarded by female constables and has assured the   Court   that   two   more   cells   with   similar arrangements  will be  provided exclusively  for female suspects.

 

(ii)  We would  further direct  that interrogation of

 

females   should   be   carried   out   only   in   the

 

presence of female police officers/constables.

 

(iii)  Whenever a person is arrested by the police

 

without   warrant,  he must  be  immediately

 

informed of the grounds of his arrest and in

 

case of every arrest it must immediately be

 

made known to the arrested person that he

 

is entitled to apply for bail. The Maharashtra

 

State   Board   of   Legal   Aid   and   Advice   will

 

forthwith get a pamphlet prepared setting out

 

the legal rights of an arrested person and the

 

State of Maharashtra will bring out sufficient

 

number of printed copies of  the pamphlet in

 

Marathi which is the language of the people in

 

the State of Maharashtra as also in Hindi and

 

English and printed copies of the pamphlet in

 

all the three languages shall be affixed in each

 

cell in every police lock­up and shall be read

 

out to the arrested person in any of the three

 

languages which he understands as soon as he

 

is brought to the police station.

 

(v)  We would direct that in the City of Bombay, a

 

City Sessions Judge,  to be nominated by  the

 

principal   Judge   of   the   City   civil   court,

 

preferably a lady Judge, if  there is one, shall

 

make  surprise visits  to police lock­ups in  the

 

city periodically with a view to providing the

 

arrested   persons   an   opportunity   to   air   their

 

grievances   and   ascertaining   what   are   the

 

conditions in the police lock­ups and whether

 

the requisite  facilities are being provided and

 

the provisions of law are being observed and

 

the  directions  given   by  us  are   being  carried

 

out. If it is found as a result of inspection that

 

there are any lapses on the part of the police

 

authorities, the City Sessions Judge shall bringash 13 wp-856.12

 

them   to   the   notice   of   the   Commissioner   of

 

Police   and   if   necessary   to   the   notice   of   the

 

Home Department  and if even  this  approach

 

fails,  the   City  Sessions  Judge  may  draw  the

 

attention of the Chief Justice of the High Court

 

of Maharashtra to such lapses. This direction in

 

regard   to   police   lock­ups   at   the   district

 

headquarters   shall   be   carried   out   by   the

 

Sessions Judge of the district concerned.

 

(vi)  We would direct that as soon as a person is

 

arrested,   the   police   must   immediately

 

obtain from him the name of any relative or

 

friend whom he would  like to be  informed

 

about his arrest and the police should get in

 

touch   with   such   relative   or   friend   and

 

inform him about the arrest; and lastly….”

 

( emphasis supplied)

 

8. It will be also necessary to make a reference to the decision

 

of the Apex Court in the case of Siddharam Satlingappa Mhetre v. State

 

of Maharashtra,  [(2011)1 SCC 694] and in particular paragraph   118

 

which reads thus :

 

“118. In case the arrest is imperative, according to

 

the  facts of  the case,  in  that event,  the arresting

 

officer   must   clearly   record   the   reasons   for   the

 

arrest of the accused before the arrest in the case

 

diary,  but   in   exceptional   cases   where   it   becomes

 

imperative   to   arrest   the   accused   immediately,   the

 

reasons   be   recorded   in   the   case   diary   immediately

 

after the arrest is made without loss of any time.”

 

(emphasis added)

 

 

It will be also necessary to make a reference to the decisions

 

of the Apex Court in the case of M.C. Abraham v. State of Maharashtraash 14 wp-856.12

 

[(2003)2 SCC 649].     In Paragraph 14 of the said decision, the Apex

 

Court held thus:­

 

“14. Tested in the light of the principles aforesaid, the

 

impugned   orders   dated   10­1­2002   and   11­1­2002

 

must be held to be orders passed by overstepping the

 

parameters of judicial interference in such matters. In

 

the  first place, arrest of  an accused is a part of  the

 

investigation   and   is   within   the   discretion   of   the

 

investigating   officer.   Section   41   of   the   Code   of

 

Criminal   Procedure   provides   for   arrest   by   a   police

 

officer   without   an   order   from   a   Magistrate   and

 

without a warrant. The section gives discretion to the

 

police   officer   who   may,   without   an   order   from   a

 

Magistrate   and   even   without   a   warrant,   arrest   any

 

person in the situations enumerated in that section. It

 

is open to him, in the course of investigation, to arrest

 

any   person   who   has   been   concerned   with   any

 

cognizable   offence   or   against   whom   reasonable

 

complaint has been made or credible information has

 

been received, or a reasonable suspicion exists of his

 

having   been   so   concerned.   Obviously,   he   is   not

 

expected  to  act in  a mechanical manner  and in  all

 

cases  to  arrest  the  accused  as  soon  as  the  report is

 

lodged. In appropriate cases, after some investigation,

 

the investigating officer may make up his mind as to

 

whether it is necessary to arrest the accused person. At

 

that  stage  the  court  has  no  role  to  play.  Since  the

 

power   is   discretionary,   a   police   officer   is   not

 

always   bound   to   arrest   an   accused   even   if   the

 

allegation  against  him  is  of  having  committed  a

 

cognizable offence. Since an arrest is in the nature

 

of an encroachment on  the  liberty of  the subject

 

and  does  affect  the  reputation  and  status  of  the

 

citizen, the power has to be cautiously exercised. It

 

depends   inter   alia   upon   the   nature   of   the   offence

 

alleged and  the  type of persons who are accused of

 

having committed  the cognizable offence. Obviously,

 

the   power   has   to   be   exercised   with   caution   and

 

circumspection.”

 

(emphasis added)

 

ash 15 wp-856.12

 

9. In  the light of  the  aforesaid law laid down by  the Apex

 

Court, now  the  facts of  the case will have  to be  appreciated.     The

 

station diary entry made at 22.50 hours on 2

 

nd

 

December 2012 by the

 

Usmanpura   Police   Station,   Aurangabad   records   that   the   first

 

Respondent  who was  the  Sub  Inspector  of  Police  of  Navghar  Police

 

Station, Mumbai, informed  that he was  taking  the  second  and  third

 

Petitioners   from   their   residence   at   Aurangabad   for   the   purposes   of

 

investigation   of   the   offence   registered   at   the   instance   of   the   third

 

Respondent.   It will be necessary to make a reference to the version of

 

the  first Respondent in  the  first  affidavit  dated  2

 

nd

 

April  2012.      In

 

Paragraph 5 of the said affidavit, he has stated thus:­

 

“5. I say that after the registration of the offence,

 

investigation commence and pursuant whereof, the

 

Petitioner   No.2   &   3   were   taken   into   in   the

 

custody  for purpose  of  the  investigation  and  I

 

have visited  the house of  the Petitioner  and  take

 

them   to  local   police   station   and   accordingly   the

 

concern   police   station   was   informed   for   taking

 

them  to Mumbai  for  the purpose of investigation

 

and   entry   in   police   Station   Usmanpura   at

 

Aurangabad was made.”

 

(emphasis added)

 

10. Thus,  the  first Respondent  himself  has  admitted  that  he

 

had taken the second and third Petitioners into custody for the purposes

 

of investigation.       Thus,  there is no  doubt  that in  the night  of  2

 

nd

 

December 2011 at about 22.50, the first Respondent took the secondash 16 wp-856.12

 

and   third   Petitioners   into   custody   at   Aurangabad   and   the   first

 

Respondent   brought   them   to   Navghar   Police   Station   at   Mulund,

 

Mumbai.    The station diary entry at 20.20 of 3

 

rd

 

December 2011 of

 

Navghar   Police   Station,   Mumbai   records   that   the   first   Respondent

 

produced the second and third Petitioners before the Senior Inspector of

 

Police Shri Bhorde.  It also records that the Accused (Second and third

 

Petitioners   )   were   handed   over   in   the   custody   of   the   two   Police

 

Constables.   As far as this aspect is concerned, the version of the first

 

Respondent in his first affidavit is very vague.   The same reads thus:­

 

“After reaching to the Mumbai to concern Police

 

Station   i.e.   Navghar   Police   Station   they   have

 

produced  before Senior Police Officer.   During

 

course   of   initial   investigation   reveal   the

 

involvement of the Petitioner Nos. 2 and 3 and

 

therefore,   they   were   come   to   be   arrested.

 

Accordingly  they  have  been  produced  before  the

 

concern   Court   and   Hon’ble   Court   was   pleased

 

enlarge them on bail.”

 

(emphasis added)

 

The version of the first Respondent in the  subsequent affidavit reads

 

thus:­

 

“The   Petitioner   and   Respondent   reached   to

 

Mumbai at about 8.20 pm. by  that  time Court

 

hours are over.    The Respondent No.1 produced

 

the   Petitioner   Nos.1   &   2   before   the   Senior

 

Officer and accordingly diary made.   The Senior

 

Officer   directed   the   respondent   No.1   to   keep

 

them   in   rest   room   as   the   accused   cannot   be

 

produced before  the court even  if  there would

 

take decision of their arrest save and except on

 

next day.   Therefore, the senior P.I personally made

 

an enquiry with the Accused.   The copy of Stationash 17 wp-856.12

 

House diary entry at Sr. No.46 dated 3.12.2011 is

 

annexed hereto and marked as Exhibit “D”.”

 

(emphasis added)

 

Undisputedly only on 4

 

th

 

December 2011 at 08.10, the second and third

 

Petitioners   were   shown   as   arrested   and   were   produced   before   the

 

learned Metropolitan Magistrate, Bhoiwada at 15.05 on the same day.

 

11. Thus, the arrest of the second and third Petitioners made

 

by   the   first   Respondent   at   Aurangabad   is   just   before   20.50   on   2

 

nd

 

December 2011.       At  that  time no entry of arrest was made in  the

 

station diary at Usmanpura Police Station, Aurangabad in terms of the

 

guidelines laid down by the Apex Court.   There was no Arrest Memo

 

drawn at Aurangabad.   In terms of the decision in the case of Sheela

 

Barse  (supra),  though  the  third  Petitioner is  a woman,  she was not

 

informed about her right to apply for bail.  Within 24 hours from 20.50

 

on   2

 

nd

 

December  2011,  they  were   not  produced  before   the  nearest

 

Magistrate.   In fact, the first Respondent ought to have produced them

 

before the learned Magistrate at Aurangabad.   Moreover, though  they

 

were  brought  to  Navghar  Police  Station  at Mumbai  at  20.20  on  3

 

rd

 

December   2011,   they   were   illegally   detained   in   the   police   station

 

without showing them arrested and were ultimately  shown as arrested

 

on the next day morning at 08.10.   Shockingly after admitting in the

 

first affidavit that he had taken the second and third Petitioners into theash 18 wp-856.12

 

custody  at Aurangabad for investigation, in the second affidavit in reply

 

in Paragraph 4, the first Respondent has come out with the following

 

excuse:

 

“Hence, it is submitted that the accused/ petitioner

 

No.2   and   3   were   produced   within   24   Hours   if

 

journey period is excluded as contemplated under

 

Section 57 of the Code of the Criminal Procedure.”

 

12. In so many words, the first Respondent has stated in the

 

first affidavit that the second and third Petitioners have been taken into

 

custody for the purposes of investigation.   There is no other mode of

 

taking the Accused into the custody for investigation save and except by

 

arresting  them.   Thus,  the  said  Petitioners were  arrested just  before

 

20.50 on 2

 

nd

 

December 2011 at Aurangabad.   But they were shown as

 

arrested in Mumbai at 08.10 on 4

 

th

 

December 2011. They were thus

 

illegally detained by the Police nearly for 35 hours and 40 minutes.  The

 

decision in the case of Siddharam Satlingappa Mhetre (supra) was not

 

followed.   There is no entry made in the station diary as to why they

 

were arrested. Memorandum of arrest was not drawn. Entry of arrest

 

was   not   made   in   the   station   diary   of   Usmanpura   Police   station   at

 

Aurangabad.  Therefore, this is a case of gross violation of the directions

 

issued by the Apex Court in the case of D.K. Basu (supra), Sheela Barse

 

(supra) and   Siddharam Satlingappa Mhetre  (supra).     This is also a

 

case of gross violation of the Articles 21 and 22 of the Constitution ofash 19 wp-856.12

 

India as the directions in the case of D.K. Basu (supra) flow from the

 

Articles  21  and  22.     It is  shocking  to note  that  12 years  after  the

 

decision in the case of D.K. Basu (supra) under which directions were

 

issued  which were already a part of the earlier decisions of the Apex

 

Court,  the officers of the Maharashtra Police have shown a complete

 

disrespect and disregard to the binding directions.  We may note here

 

that by introducing Section 41B in CRPC by Section 6 of Amendment

 

Act No.5 of 2009, the directions in the case of D.K. Basu (supra) have

 

been incorporated in the Statute .

 

13. Thus,   there   is   a   violation   of   fundamental   rights   of   the

 

second   and   third   Petitioners   guaranteed   under   Article   21   of   the

 

Constitution of India.  There is also a violation of clauses (1) and (2) of

 

the Article 22 of the Constitution of India. This case of blatant violation

 

of human rights shocks  the conscience of the Court.

 

14. Now the other issue is regarding grant of compensation.  In

 

the case of Nilabati Behera v. State of Orissa [(1993)2 SCC 746], the

 

issue   regarding  grant  of  compensation in  a  public law  remedy  was

 

considered by the Apex Court.   In Paragraphs 17 and 22, it was held

 

thus:­

 

“17. It   follows   that   ‘a   claim   in   public   law   for

 

compensation’   for   contravention   of   human

 

rights   and   fundamental   freedoms,   the

 

protection   of   which   is   guaranteed   in   theash 20 wp-856.12

 

Constitution, is  an  acknowledged  remedy  for

 

enforcement and protection of such rights, and

 

such a claim based on strict liability made by

 

resorting  to a constitutional  remedy provided

 

for the enforcement of a fundamental right is

 

‘distinct  from, and in addition to, the remedy

 

in   private   law   for   damages   for   the   tort’

 

resulting   from   the   contravention   of   the

 

fundamental   right.  The  defence  of   sovereign

 

immunity being inapplicable, and alien to the

 

concept   of   guarantee   of   fundamental   rights,

 

there   can   be   no  question   of   such  a  defence

 

being available in the constitutional remedy. It

 

is   this   principle   which   justifies   award   of

 

monetary   compensation   for   contravention   of

 

fundamental   rights   guaranteed   by   the

 

Constitution, when that is the only practicable

 

mode of redress available for the contravention

 

made   by   the   State   or   its   servants   in   the

 

purported   exercise   of   their   powers,   and

 

enforcement   of   the   fundamental   right   is

 

claimed by resort to the remedy in public law

 

under the Constitution by recourse to Articles

 

32 and 226 of  the Constitution. This is what

 

was indicated in Rudul Sah

 

1

 

and is the basis of

 

the   subsequent   decisions   in   which

 

compensation was awarded under Articles 32

 

and 226 of the Constitution, for contravention

 

of fundamental rights.”

 

“22. The above discussion indicates the principle on

 

which the court’s power under Articles 32 and

 

226 of the Constitution is exercised to award

 

monetary compensation for contravention of a

 

fundamental right. This was indicated in Rudul

 

Sah

 

1

 

and certain  further observations  therein

 

adverted   to   earlier,   which   may   tend   to

 

minimise  the effect of  the principle indicated

 

therein,   do   not   really   detract   from   that

 

principle.   This   is   how   the  decisions   of   this

 

Court in  Rudul  Sah

 

1

 

and  others in  that line

 

have   to   be   understood   and  Kasturilal

 

8

 

distinguished  therefrom. We  have  considered

 

this  question   at   some   length  in   view   of   theash 21 wp-856.12

 

doubt raised, at times, about the propriety of

 

awarding   compensation  in   such  proceedings,

 

instead of directing  the claimant  to  resort  to

 

the ordinary process of recovery of damages by

 

recourse  to  an  action in  tort.  In  the  present

 

case, on the finding reached, it is a clear case

 

for award of compensation to the petitioner for

 

the custodial death of her son.”

 

15. In the case of Suber Singh v. State of Haryana   [(2006)3

 

SCC 178], in Paragraph 46, the Apex Court held thus:­

 

“46.  In   cases   where   custodial   death   or   custodial

 

torture   or   other   violation   of   the   rights   guaranteed

 

under Article 21 is established, the courts may award

 

compensation in a proceeding under Article 32 or 226.

 

However,  before   awarding  compensation,   the   Court

 

will have to pose to itself the following questions: (a)

 

whether   the   violation   of   Article   21   is   patent   and

 

incontrovertible, (b) whether the violation is gross and

 

of a magnitude to shock the conscience of the court,

 

(c) whether the custodial torture alleged has resulted

 

in death or whether custodial torture is supported by

 

medical report or visible marks or scars or disability.

 

Where there is no evidence of custodial torture of a

 

person   except   his   own   statement,   and   where   such

 

allegation is not supported by any medical report or

 

other corroborative evidence, or where there are clear

 

indications   that   the   allegations   are   false   or

 

exaggerated fully or in part, the courts may not award

 

compensation as a public law remedy under Article 32

 

or   226,   but   relegate   the   aggrieved   party   to   the

 

traditional   remedies   by   way   of   appropriate

 

civil/criminal action.”

 

16. Lastly,   on   this   aspect,   it   will   be   necessary   to   make   a

 

reference to the decision of the Apex Court dated 9

 

th

 

September 2011 in

 

the case of Raghuvansh Dewanchand Bhasin v State of Maharashtra &

 

Another ( in Criminal Appeal No.1758 of 2011).  In Paragraph 19 of theash 22 wp-856.12

 

said decision, the Apex Court held thus:­

 

“The power and jurisdiction of this Court and the

 

High Courts to grant monetary compensation in

 

exercise   of   its   jurisdiction   respectively   under

 

Articles 32 and 226 of the Constitution of India

 

to   a   victim   whose   fundamental   rights   under

 

Article  21  of  the  Constitution  are  violated  are

 

thus, well established. However, the question now

 

is whether on facts in hand, the appellant is entitled

 

to monetary compensation in addition to what has

 

already  been  awarded  to  him  by  the High Court.

 

Having considered the case in the light of the fact

 

situation stated above, we are of  the opinion  that

 

the   appellant   does   not   deserve   further   monetary

 

compensation.”

 

(emphasis added)

 

18. Coming back to the facts of the present case, by taking the

 

affidavits of the first Respondent as it is and going by the record of the

 

Police Station in the form of station diary entries, this is a case where

 

virtually it is an admitted position that the directions contained in the

 

decision in the case of D.K. Basu (supra) were breached.    Though the

 

Petitioners  were in   fact  arrested  at  Aurangabad,  they  were  illegally

 

detained   for     about   36   hours   before   they   were   actually   shown   as

 

arrested   and   few   hours   thereafter,   they   were   produced   before   the

 

learned   Metropolitan   Magistrate.     Thus,   there   is   gross   violation   of

 

Articles 21 and  clauses (1) and (2) 0f   Article 22 of the Constitution of

 

India.  As we have narrated earlier, there is no dispute on facts and the

 

aforesaid  conclusions  follow  from  the  facts  which  are  not  disputed.

 

Therefore, this is a case where the second and third Petitioners can seekash 23 wp-856.12

 

compensation   on   the   ground   of   violation   of   fundamental   rights

 

guaranteed under Articles 21  of the Constitution of India in a public

 

law remedy.   At this stage, it will be necessary to make a reference to

 

the decision of the Division Bench of this Court in  the case of Veena

 

Sippy Vs. Narayan Dumbre (2012) ALL MR (Cri) 1263) to which one of

 

us ( Shri A.S. Oka, J ) is a party .       This Court considered various

 

decisions of the Apex Court in which the compensation on account of

 

illegal detention was granted when the public law remedy was adopted.

 

This was a case where the Petitioner who was a woman  was illegally

 

detained in contravention of the directions of the Apex Court in the case

 

of D.K. Basu  (supra).    The  said judgment  shows  that  the  Petitioner

 

therein was illegally detained in police custody from the evening of 4

 

th

 

April 2008 till 12.30 noon of 5

 

th

 

April 2008.   In the said decision, this

 

Court granted compensation of Rs.2,50,000/­ with interest thereon at

 

the rate of 8% per annum from the date of illegal detention.  This Court

 

also directed payment of costs of Rs.25,000/­.    The State Government

 

has complied with the directions given in the said decision by accepting

 

the same.

 

19. In the present case, the age of both the Petitioners (second

 

and third Petitioners) is above 60 years.    They were arrested at 20.50

 

on 2

 

nd

 

December 2011 at Aurangabad and were brought  to Navghar

 

Police   Station,   Mulund,   Mumbai   from   Aurangabad   at   20.20   on   3

 

rdash 24 wp-856.12

 

December 2011.  They were taken from Aurangabad at 22.50 and they

 

reached   Navghar   Police   Station,   Mulund,   Mumbai,   nearly   after   22

 

hours.    They were shown as arrested in the morning of 4

 

th

 

December

 

2011  and were  released  on bail in  the  afternoon. Though    the  said

 

Petitioners were arrested just before 20.50 0n 2

 

nd

 

December 2011 at

 

Aurangabad, they were shown as arrested in Mumbai at 08.10 on 4

 

th

 

December 2011. They were thus illegally detained by the Police nearly

 

for 35 hours and 40 minutes.    As they were not shown as arrested for

 

a period over 35 hours, they could not apply for bail.   Apart from gross

 

violation  of  their  fundamental  rights,  there is  a  gross  breach  of  the

 

directions issued  by  the Apex Court  from  time  to  time. There is no

 

dispute about the facts.  Therefore, in the present case, both the second

 

and   third   Petitioners   are   entitled   to   reasonable   compensation   of

 

Rs.2,50,000/­ each.    Interest payable on the said amount will be at the

 

rate of 8% per annum from the date of filing of the present Petition i.e.

 

28

 

th

 

February 2012.

 

20. The other issue is whether  the compensation  should   be

 

made  payable  by  the  first Respondent.        The  first Respondent  has

 

submitted   that   he   has   acted   as   per   the   instructions   of   the   Senior

 

Inspector of Police.     Here we may note  that  the station diary entry

 

made at 20.20 on 3

 

rd

 

December 2011 of Navghar Police Station records

 

that  the  first Respondent  produced  the  second  and  third  Petitionersash 25 wp-856.12

 

before  the Senior  Inspector of Police Shri Bhorde.   Thus,  the Senior

 

Inspector of Police was aware at that time regarding illegal detention of

 

the second and third Petitioners.    Notwithstanding this, on the next

 

date in the morning at 08.10 hours,  the second and third Petitioners

 

were shown as arrested.

 

21. Whether the first Respondent acted as per the instructions

 

of the Senior Inspector of Police and whether the Senior Inspector of

 

police has played any role are the matters which cannot be decided in

 

writ jurisdiction.       Suffice it to say  that when the gross violation of

 

fundamental rights under Articles 21  of the Constitution of India at the

 

hands of the police officers of the State is established, the compensation

 

will have to be paid by the State Government and it will be open for the

 

State Government to recover the same from the officers found guilty of

 

dereliction of duty by following due process of law.   It is also necessary

 

to  direct  the Commissioner of Police, Mumbai,  to nominate either  a

 

Joint Commissioner of Police or Additional Commissioner of Police to

 

hold an inquiry for ascertaining as to who is responsible for violation of

 

fundamental   rights   of   the   second   and   third   Petitioners   guaranteed

 

under Article 21 of the Constitution of India.  On the basis of the report,

 

the   State   Government   will   have   to   initiate   appropriate   proceedings

 

against the concerned erring police officers in accordance with law.   ash 26 wp-856.12

 

22. Before parting with the judgment, we may record here that

 

the learned APP has  fairly assisted  the Court by pointing out correct

 

factual position  and by showing all the relevant entries in the station

 

diary.

 

23. Accordingly,   we   dispose   of   the   Petition   by   passing   the

 

following order:

 

ORDER :

 

(a) We hold that the detention of the second and third

 

Petitioners by the officers of Navghar Police Station,

 

Mulund, Mumbai,  from 2

 

nd

 

December 2011  till 4

 

th

 

December 2011 is illegal and there has been a gross

 

violation of the fundamental right of the second and

 

third Petitioners guaranteed under Article 21  of the

 

Constitution of India;

 

(b) We   direct   the   Fifth   Respondent   –   State   of

 

Maharashtra to pay compensation of Rs.2,50,000/­

 

each  to  the  second  and  third  Petitioners  together

 

with interest thereon at the rate of 8% per annum

 

from 28

 

th

 

February 2012 till realisation or payment.

 

We grant time of eight weeks from today either toash 27 wp-856.12

 

pay  the    amount directly  to  the  second and  third

 

Petitioners or to deposit the same in the Court;

 

(c) We make it clear that it will be open for the State

 

Government to initiate appropriate proceedings for

 

recovery of the said amounts from the erring police

 

officials who are responsible for the illegalities;

 

(d) We direct the Commissioner of Police, Mumbai, to

 

appoint an appropriate higher officer not below the

 

rank of Joint Commissioner of Police or Additional

 

Commissioner of Police to hold an inquiry for fixing

 

the  responsibility  for  the illegalities committed by

 

the   police   officers   of   Navghar   Police   Station,

 

Mulund, Mumbai.   We keep open all the issues in

 

that behalf ;

 

(e) The inquiry shall be completed within a period of

 

three   months   from   today.     On   the   basis   of   the

 

inquiry  report,  the State Government shall initiate

 

necessary action against the erring Police Officials;ash 28 wp-856.12

 

(f) We direct the State Government to pay costs of this

 

Petition quantified at Rs.25,000/­ to the second and

 

third Petitioners within eight weeks from today;

 

(g) Costs shall be paid directly to the second and third

 

Petitioners or deposited in this Court within a period

 

of eight weeks from today;

 

(h) In the event the amount of compensation as well as

 

the amount of costs is deposited in this Court, it will

 

be   open   for   the   second   and   third   Petitioners   to

 

withdraw the said amounts;

 

(i) Rule is made partly absolute on above terms;

 

(j) All   concerned   to   act   on   authenticated   copy   of

 

Judgement.

 

( S.S. SHINDE, J ) ( A.S. OKA, J )

http://bombayhighcourt.nic.in/data/judgements/2012/CRWP85612.pdf

Categories: 498A, Contempt Tags: ,

AP HC: Family Court cannot initiate proceedings for criminal contempt

October 11, 2011 Leave a comment
Equivalent citations: 1997 (6) ALT 420
Bench: S P Rao, R B Reddy

S. Suryaprakash Rao And Anr. vs Presiding Officer, Family Court And Ors. on 3/11/1997

JUDGMENT

S. Parvatha Rao, J.

1. The petitioners are Advocates. The 1st petitioner appeared for the 2nd respondent i.e., the petitioner in O.P.No.104 of 1996 on the file of the Family Court, Secunderabad preferred against the 3rd respondent i.e., the respondent therein (wife of the petitioner in the O.P.) for divorce; and the 2nd petitioner appeared for the respondent in the O.P. They questioned the validity and propriety of notice in Dis. No. 229/97, dated 26-7-1997, issued by the 1st respondent herein i.e., the Presiding Officer, Family Court, Secunderabad, directing them “to appear before the Court (Family Court, Secunderabad) on 4-8-97 at 10-30 a.m. without fail to show cause why Contempt of Court proceedings should not be initiated in view of the contents in joint memo dated 3-7-97″.

2. The joint memo referred to in the impugned notice was filed by the petitioner and respondent in the said O.P.No.104 of 1996. The contents of that memo speak by themselves and they are as follows:

“It is submitted that the above Divorce petition was coming up for Trial. Witnesses on behalf of petitioner were examined and it was posted for evidence of Respondent. The respondent was partly examined on 12-5-1997. At that stage the Presiding Officer of this Hon’ble Court suggested compromise and asked Advocates on both sides to persuade the parties. Both parties agreed to compromise and petitioner intended to withdraw the O.P.

The Presiding Officer was on leave on 19-6-1997, and it was posted on 3-7-1997. The parties requested the Presiding Officer to take up the case after lunch as both Advocates would come after lunch. It was also requested to the Hon’ble Court that the Advocates would report compromise.

In spite of this representation this Hon’ble Court posted the case for Orders on 10-7-1997.

Both the Advocates requested the Presiding Officer to meet in Chambers so that O.P. can be disposed of on the basis of compromise. However the presiding Officer refused to meet the Advocates, who are senior Advocates. The staff told the Advocates that if the parties want, they have to file reopening petition. She also seemed to have commented that let the Advocates represent before the Bench. But the Presiding Officer, did not sit on the bench after lunch on 3-7-97.

Hence under the circumstances the parties are filing joint memo informing this Hon’ble Court their intention to resume cohabitation with effect from 3-7-1997.

Both parties pray that this Hon’ble Court may be pleased to close the O.P.No.104 of 1996, by recording compromise. The parties also pray to dispense with the presence of Advocates, on 10-7-1997 as they declined to appear for discourtesy shown by Presiding Officer to them.”

The facts narrated in the joint memo are affirmed in the affidavit filed in support of the present writ petition by the first petitioner herein. He further states that on 3-7-1997 they all waited in the Family Court to make a mention after lunch, in view of the observation the Presiding Officer seems to have made that, if the advocates wanted to make representation, they should do so in the Court; but that the Presiding Officer did not sit after lunch on that day and remained in her chambers. The 1st petitioner states that it was under those circumstances the joint memo was filed. He further states that the O.P. was dismissed on 26-7-1997. The petitioners contend that the impugned notice is without any jurisdiction or authority and that the joint memo did not give rise to any contempt. They also contend that the Family Court has no inherent power to initiate contempt proceedings, except in case of civil contempt, and that the facts of the case did not give rise to any civil contempt as there was no order of the Court which was violated by the petitioners.

3. The writ petition was presented on 31-7-1997 and when it came up on 18-8-1997, notice before admission returnable in two weeks was ordered and the 1st respondent was directed to send a report on the matter by 1-9-1997 and, pending further consideration of the matter by this Court, she was directed not to proceed further on the impugned notice dated 26-7-1997 and not to require the petitioners herein to appear pursuant to the notice.

4. The first respondent sent the report dated 1-9-1997. The Registrar (Judicial) stated that there was no covering letter accompanying the report. We find that the report was not addressed to any one and that it starts abruptly with the sentence “I want to submit the following few facts….” As to what actually happened on 3-7-1997, the 1st respondent states as follows:

“……when the matter came up for hearing both the parties filed a joint memo to the effect that they are prepared to live together. Parties were heard on the memo filed by them to ascertain whether they had voluntarily and willingly signed and presented the memo. Thereafter the matter was posted for Judgment. As both the parties filed joint memo, agreeing to live together and seeking closure of the case, the same was posted for orders on 10-7-1997. There was nothing to be heard from the Counsels as the parties did not stipulate any terms or conditions in their joint memo. The joint memo was filed by the parties directly without their Counsels. At that juncture there was nothing remaining to be heard, and the Counsels had nothing to do further in the matter. It is incorrect to say that the Presiding Officer refused to give audience to the Advocates, because in that particular case the Advocates filed 13(2) Petition before the Family Court and it was allowed. In Family Court the presence of Advocate is only an amicus curiae. Further more any representation by Counsels regarding cases are not being entertained in the Chambers…… In fact I mooted the settlement and suggested the parties it is better for their future to live together instead of breaking their marital tie. One whole day I spent with the parties and reconciled the matter between them. The allegations made by the Advocates is that the Court staff advised if further hearing is required an application for reopening the case has to be filed. It is a procedure prescribed under the C.P.C., because in this matter I heard the parties who filed the joint memo and who agreed before me that they are going to live together, on that basis I closed the matter and posted the matter for Judgment to 10-7-1997. The Counsels find fault with the Presiding Officer as well as with the staff. On 3-7-1997 the work is over and after that I am attending to the work in my Chambers. The allegation that the Presiding Officer did not come on to the bench in the afternoon is also making a statement against the Officer because I am attending the work in my Chambers by dictating the steno the orders to be pronounced on that date. The Counsels cannot make irresponsible allegations, such as discourtesy by the Presiding Officer etc.

It may be a fact that Counsels represented that the matter may be taken up after lunch. However, parties themselves personally presented the memo in the morning session they were also heard, hence there was no point in keeping the matter aside for further hearing till the Counsels come in the afternoon. It is not correct that despite representation the matter was posted for orders to 10-7-1997. It was posted for orders only on account of the joint memo and representation that they want to join and live together made by the parties.”

She also states that it is her principle not to allow Advocates into chambers. She further states:

“Mere saying that I am not allowing the Advocates who are representing contesting matter before me into my Chambers amounts to discourtesy in the view of the Counsels I am helpless to say anything in the matter….

On the other hand, the Counsels themselves made allegations against the bench that I am showing discourtesy towards them…..

Chapter VI of the Law of Contempt of Court deals with Contempt against Judges, their Officers and Subordinates, redicule the Judge, or his subordinates in any manner while they act in the discharge of their duties is to belittle the seat of Justice and lower its esteem in the eyes of the General Public.

Protection to the Courts by the operation of the General and Statutory Law of Contempt is more in the interest of the General Public.

Protection to the Courts by the operation of General and Statutory Law of Contempt is more in the interest of the public in whose eyes the seat of justice is sacrosanct than in the interest of Judge. The Law of Contempt can be invoked by any Judicial Officer or any person with Judicial Power. It was held by the Supreme Court in (Asharfi Lal v. The State) = 1954 Cr.L.J. 621 in

which their Lordships held that “Pronouncement of Judgment is a state of Judicial proceedings.

……

xxxx xxxx xxxx

In the present case the petitioners represented that as their Counsel were not allowed they feel ashamed to be present in the Court this amounts to Contempt of Court.

…….In the memo they clearly stated that their Advocates did not wish to attend before the Court. This statement may create doubt in the minds of the litigant public about the Court itself….

Thus in the light of facts of the case and position of Law, I was justified in issuing the impugned notice. It is pertinent to mention that the parties have submitted letter of apology for what they wrote and what transpired in the matter.”

5. The Advocate General, like the Attorney General, being “a friend of the Court, and in some respects acts as the friend, philosopher and guide of the Court.” (P.N. Duda v. P. Shiv Shanker, , and in view of the fact that considerable statutory discretion vests in him under the Contempt of Courts Act, 1971, we requested him to assist the Court in the matter.

6. When in the course of arguments on 22-10-1997 we noticed divergence between the versions of the petitioners and the 1st respondent as regards the time of presentation of joint memo on 3-7-1997, we directed the entire records in O.P.No.104 of 1996 including docket notes and the final order passed to be produced in Court. Pursuant to that direction records in that O.P. were produced in the Court along with those in O.P.S.R. No. 1250 of 1997 being the contempt of Court proceedings arising in that O.P. The docket of the O.P. discloses that it was originally presented on 21-6-1994 and was numbered as O.P.No.241/94 on the file of the V Additional Judge, City Civil Court, Hyderabad. It was transferred to the Family Court, Hyderabad and was renumbered as O.P.No.1100/95. Thereafter, it was again transferred to Family Court, Secunderabad and once again renumbered as O.P. No. 104/96.

7. The 1st petitioner also filed an additional affidavit dated 23-10-1997. He clarified the position as follows:

“O.P. 104 of 96 was posted to 3-7-97. When the matter was called in the call work, the petitioner and the respondent in the O.P. were present and both of them jointly represented that their Advocates could not be present and that there was a compromise between the parties and the same would be reported by their Counsel and on that count the parties requested the Family Court to get the matter passed over to facilitate their Counsel to appear and report compromise. By that time, no compromise memo was prepared. Myself and the second petitioner arrived in the Court by about 1 p.m. on 3-7-97 and the parties were present and the Presiding Officer of the Family Court retired into the chambers by that time. We informed the Bench Clerk to keep the Presiding Officer of the Court informed that the parties desired to have their case closed on that day itself as they intend to resume cohabitation according to their compromise with effect from 3-7-1997. The Bench Clerk and the parties informed us that the matter was already adjourned to 10-7-97 and if necessary, for reporting the same, an appropriate application may be made and the Bench Clerk told us that the Presiding Officer was not willing to permit us to her chambers and at the same time, we were informed that if we want we have to make a representation in the open Court while the Presiding Officer of the Court comes to the Bench. It is for the purpose of making a representation, we have waited upto 4 p.m. in the evening and the Presiding Officer did not come to the Bench after Lunch though she was in the chamber. At about 4 p.m.. we have prepared a joint memo and we have given the same to the parties duly signed and the parties were requested to submit the same in the section or present the same on 10-7-97 whichever is convenient to them. Accordingly, we got the joint memo prepared and the parties have signed in our presence and thereafter we have also signed the joint memo and the same was handed over to our clients to present it in the section and the same was presented on the same day in the section.

In the report submitted by the Family Court, the Presiding Officer of the Family Court explained what had happened on 3-7-97 in para 2. According to the report, when the matter came up for hearing, both the parties filed a joint memo intimating that they were prepared to live together. Parties were stated to have been heard on the memo filed by them and the matter was thereafter posted for judgment to 10-7-97. In fact no such Memo was filed other than the one mentioned above and this is also evident from the reply given by them to the show-cause notice furnished to them. A copy of it is also enclosed to this additional affidavit for better appreciation.

After receipt of the impugned notice, we did not appear before the Family Court so far in view of the orders passed by this Hon’ble Court in the above matter, but the parties have appeared on 4-8-97 and also on 18-8-97 and the Presiding Officer appeared to have ascertained from the parties why their Counsel have not appeared and on 18-8-97 a memo was served through an Advocate by myself and the second petitioner a copy of which is also filed along with this affidavit.”

8. In the reply dated 18-8-1997 to the show cause notice dated 26-7-1997 issued by the 1st respondent, it was stated that when the O.P. was taken up on 3-7-1997 they submitted that they would be filing joint memo of compromise and requested the Family Court to pass over the matter as their Advocates were engaged in another Court and that they were coming shortly, and that the matter was then adjourned to 10-7-1997. It was further stated that their Advocates advised them to file the compromise memo in the office and accordingly they filed the joint memo in the office. They appeared on 10-7-1997 but the matter was not taken up till the evening and it was posted to 26-7-1997, and on that day it was dismissed. It was further stated in the reply that they appeared on 4-8-1997 pursuant to the show cause notice and that they were called in the evening, and that they were asked to appear on 18-8-1997. They submitted that their conduct did not interfere with the course of justice and did not have the effect of lowering the prestige of the Court and, if any such impression was created by the joint memo, they apologised and assured the Court that they had high regard for the Courts.

9. Thus it is clear from what the petitioners and respondents 2 and 3 state that the joint memo was not submitted in Court in the Forenoon of 3-7-1997 and that it was only filed in the office some time after 4 p.m. on that day. It is also clear that, according to respondents 2 and 3, when the O.P. was called in the Forenoon of 3-7-1997 during call work they represented that they had compromised the matter and that their Advocates would be filing a compromise memo, and on that basis they sought pass over of the matter. The Advocates in fact came at 1 p.m. on that day, but the first respondent already retired to her chambers as there was no work to be taken up. On the other hand, the report of the 1st respondent indicates that respondents 2 and 3 filed a joint memo into Court on 3-7-1997, and that they were heard “to ascertain whether they had voluntarily and willingly signed and presented the memo”, and thereafter the O.P. was closed and was posted for judgment or orders on 10-7-1997 as both the parties filed joint memo agreeing to live together and seeking closure of the case.

10. However, the docket of O.P.No.104 of 1996 does not disclose that on 3-7-1997 any joint memo was filed. It only shows that the matter was posted for orders on 10-7-1997. The docket also shows that on 10-7-1997 the O.P. was posted to 26-7-1997, on which date it shows that order was pronounced and the petition was dismissed, and that there should be no order as to costs. The record of the O.P. also contains memorandum filed by the respondent therein (3rd respondent herein) on 3-7-1997 bearing SR No. 1251 /97 stating as follows:

“In the interest of the future of both the parties, the respondent addressed a letter to the Inspector, Malkajgiri, requesting him to close the case in Cr. No. 181 /94, wherein the respondent herein is the defacto complainant and file a final report in the matter. The respondent herein also enclosed her notarised affidavit along with the said letter. Since the police refused to receive the same, the respondent herein sent the same by registered post acknowledgment due. The copies of the said letter, notarised affidavit and the postal receipt are filed herewith.

The respondent herein further undertakes that in the event of the police filing a charge-sheet in the matter, the respondent shall take all necessary steps to have the matter closed.”

The list of three documents filed on 3-7-1997 also bears SR. No. 1251/97. The documents are: a xerox copy of the letter dated 21-6-1997 addressed by the 3rd respondent herein to the Sub-Inspector (L & O-I) of Malkajgiri stating that she and her husband (2nd respondent herein) decided to live together and that there were no differences between them and that she was withdrawing her complaint No. 181/94, dated 24-10-1994 and requested the Sub-Inspector to close the case; the second document is a notarised affidavit given by the 3rd respondent herein to the same effect stating that Crime No. 181 /94 should be closed and final report filed accordingly; and the third document is letter dated 1-7-1997 of the 2nd petitioner herein i.e., the Counsel for the 3rd respondent herein, addressed to the Inspector, P.S. Malkajgiri to the same effect.

11. The order in the O.P. dated 26-7-1997 narrated the averments of the petition and of the counter and summarised the evidence of P.Ws.1 to 4 examined in the O.P. and in the end observed as follows:

“There is no evidence on behalf of the respondent that both parties filed a joint memo. They are going to compromise and live together. When examined both agreed to live together. Hence the petition dismissed. There shall be no order to costs.”

There is no mention of the memo filed by the respondent therein (3rd respondent herein) on 3-7-1997 (S.R.No.1250/97) in the order dated 26-7-1997 even though the record of the O.P. contains that memo along with the list of three documents referred to above filed along with that memo. On the other hand, there is an express mention in the order dated 26-7-1997 in the O.P. that there was “no evidence on behalf of the respondent that both parties filed a joint memo”.

12. In the record of O.P.S.R.No.l250/97, we find the joint memo filed by the petitioner and respondent dated 3-7-1997bearing SR No. 1250/97. On the docket of that joint memo there is an undated endorsement with the initials of the Presiding Officer as follows:

“Issue notice to both the parties and Advocates for contempt of Court. Call on 4-8-97.”

This joint memo is the original of the joint memo dated 3-7-1997 filed along with the present Writ Petition. The fact that the SR number of this joint memo is 1250/97 and bears the stamp of the Sheristadar with the date 3-74997 establishes that this was filed along with or earlier to memo filed by the 3rd respondent on 3-7-1997 which bears SR No. 1251/97 with the stamp of the Sheristadar noting the same date. As already stated by us earlier, no memo was mentioned in the docket of O.P. No. 104/96 under the date 3-7-1997, 10-7-1997 or 26-7-1997. It was also not noted that the petitioner and respondent in the O.P. were examined on any memo.

13. It is obvious that the joint memo signed by the petitioners as well as the respondents 2 and 3 herein could not have been before the 1st respondent when the O.P. was called on 3-7-1997 and adjourned to 10-7-1997 because it narrated the subsequent events. The only other memo found in the record is that of the respondent in the O.P. (3rd respondent herein) and that is not a joint memo. This establishes that the 1st respondent was not able to recapitulate correctly what happened on 3-7-1997, and that she did not refresh her memory from the record before sending the report to this Court. Otherwise she would not have expressly stated in her report as she did i.e., “Parties were heard on the memo filed by them to ascertain whether they had voluntarily and willingly signed and presented the memo”, and that “As both the parties filed joint memo, agreeing to live together and seeking closure of the case, the same was posted for orders on 10-7-1997″. She also went further and stated that “The joint memo was filed by the parties directly without their Counsels”, and that “At that juncture there was nothing remaining to be heard, and the Counsels had nothing to do further in the matter”. But, in any event, she will have to explain the observation in the order dated 26-7-1997 in O.P. No. 104/96 that “there was no evidence on behalf of the respondents that both parties filed a joint memo”. There can be no dispute that joint memo signed by the petitioners and respondents 2 and 3 herein was in fact filed on 3-7-1997 as it was given S.R.No.1250/97 earlier to S.R.No.1251/97 given to the memo filed by the 3rd respondent herein. Equally it cannot be disputed that this joint memo was filed in the office after the O.P. was already adjourned on 3-7-1997 to 10-7-1997. The joint memo was taken note of and O.P.SR No. 1250/97 was opened and notices were directed to be issued for contempt of Court to the petitioners herein – though this order is undated, notices in fact were issued on 26-7-1997 under Dis. No. 229/97. On the same day order in the O.P. was also pronounced. If the joint memo could be taken note of for the purpose of O.P.SR. No. 1250/97, it will be very difficult to find a convincing explanation for not taking note of and ignoring the joint memo dated 3-7-1997 altogether in making the order in the O.P.

14. We only venture to observe that the 1st respondent ought to have been very careful in sending the report pursuant to the directions of this Court considering the seriousness of the matter and the consequences flowing from making incorrect and unverified statements. It is not necessary for us to go further as it is not wholly relevant for the purposes of disposal of the present writ petition. We find it apt to observe here what the Supreme Court held in Afzal v. State of Haryana, that “a false or a misleading or a wrong statement deliberately and wilfully made by a party to the proceedings to obtain a favourable order would prejudice or interfere with the due course of judicial proceedings”: in other words, it would amount to contempt.

15. With that factual backdrop, we now come to the meat of the matter. The learned Counsel for the petitioners contends firstly that the mere mention in the joint memo that the petitioners “declined to appear for discourtesy shown by Presiding Officer to them” does not amount to contempt of Court, and secondly that the Family Court is not competent to initiate or take up contempt proceedings against the petitioners on the facts of the case. On the first question the learned Counsel for the petitioners contends that no disrespect was meant to the Presiding Officer of the Family Court, and that the manner in which the Presiding Officer of the Family Court treated them by making them wait from 1 p.m. on 3-7-1997 refusing to meet them and not coming on to the Bench upset them and they cannot be faulted for taking umbrage, and that they could express the same in polite language as they did. He points out that after all Advocates are Officers of Court. He also points out to Section 13 of the Family Courts Act, 1984 which provides as follows:

“13. Right to legal representation:- Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner:

Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.”

Rule 9 of the Andhra Pradesh Family Courts Rules, 1995 also provides that proceedings before the Court shall be taken up in the presence of the parties, and a legal practitioner shall be allowed to appear only as amicus curiae, if the Court finds it necessary in the interests of Justice. The learned Counsel also points to Section 9 of that Act, sub-section (1) of which, provides that “in every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.” He submits that the Family Court is not hide-bound by any particular procedure, and that when the petitioners and respondents 2 and 3 represented that a compromise was being effected between the parties and that they agreed to live together and were desirous of having the O.P. closed, the Presiding Officer of the Family Court ought to have made herself available to dispose of the matter without making the parties come again to the Court when she was informed that the parties and their Counsel were waiting in the Court well within the Court hours. In fact Rule 3(d) of the Rules referred to above provides that “the Family Court may hold its sittings outside normal working hours and on holidays if the Judge of the said Court considers it necessary to do so in the circumstances of the case, with the prior notice to parties, and to such other person or persons as the Judge may consider it necessary.” The learned Counsel submits that all these provisions are to facilitate early disposal of matters; more so, when the parties have arrived at a settlement. On the second question, the learned Counsel submits that the contempt involved, even on the reckoning of the 1st respondent, was not civil contempt; if at all, it was a criminal contempt because what is alleged in the report of the 1st respondent is that the Counsel made allegations against the Bench that she was showing discourtesy towards them, and that “they (petitioners herein) feel ashamed to be present in the Court this amounts to Contempt of Court”. The learned Counsel submits that the stand taken by the Presiding Officer that “any person discharging judicial duties or any Tribunal which is entrusted with judicial functions having the power to initiate contempt of proceedings” is not sustainable in law.

16. The learned Advocate General supports the learned Counsel for the petitioners. He drew our attention to Section 2(c) of the Contempt of Courts Act, 1971 (‘the Act’ for short), which defines criminal contempt, and submits that the mere mention by the petitioners in the joint memo that “they declined to appear for discourtesy shown by Presiding Officer to them” did not amount to criminal contempt as defined under that provision. It did not scandalise or lower the authority of the Court or prejudice or interfere with the due course of any judicial proceeding or interfere or obstruct the administration of justice in any manner or tend to do any of those. He also drew our attention to Section 13 of the Act which is as follows:

“13. Contempts not punishable in certain cases:- Notwithstanding anything contained in any law for the time being in force, no Court shall impose a sentence under this Act for a contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.”

17. It has been observed by the Supreme Court in Jasivant Singh v. Virender Singh, 1995 Supp. (1) SCC 384 that an Advocate has no wider protection than a layman when he commits an act which amounts to contempt of Court, and that Judges cannot be intimidated to seek favourable orders, and that an Advocate cannot use language, either in the pleadings or during arguments, which is either intemperate or unparliamentary, and that “these safeguards are not for the protection of any Judge individually but are essential for maintaining the dignity and decorum of the Courts and for upholding the majesty of law”. Having said so, the Supreme Court further observed as follows:

“Judges and Courts are not unduly sensitive or touchy to fair and reasonable criticism of their judgments. Fair comments, even if, outspoken, but made without any malice or attempting to impair the administration of justice and made in good faith, in proper language, do not attract any punishment for contempt of Court. However, when from the criticism a deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring the administration of justice into disrepute the Courts must bestir themselves to uphold their dignity and the majesty of law.”

In K.A. Mohammed Ali v. C.N. Prasannan, 1994 Supp. (3) SCC 509 the facts were that the Advocate (appellant before the Supreme Court) “had at a certain juncture raised the pitch of his voice unusually high to the annoyance of the learned Magistrate, and besides, he had used derogatory language against him”, and that after the incident he got certain posters published and circulated and caused a demonstration staged which got reported to the High Court whereupon contempt proceedings were initiated against him. The Supreme Court observed:

“We are of the view that when the appellant was warned of his unruly behaviour, he should have stopped and gone in tune with the learned Magistrate and not retained a defiant and aggressive posture. It should be borne in mind by one and all that lawyers were created for the Courts, not Courts for the lawyers. The happy combination, whenever an aberration occurs, should in immediacy be restored and put to an even keel.”

Sawant, J., speaking for the three Judges Bench in Vinay Chandra Mishra’s case, observed:

“Normally, no Judge takes action for in facie curiae contempt against the lawyer unless he is impelled to do so. It is not the heat generated in the arguments but the language used, the tone and the manner in which it is expressed and the intention behind using it which determine whether it was calculated to insult, show disrespect, to overbear and overawe the Court and to threaten and obstruct the course of justice.”

The learned Judge further observed:

“When the Court exercises this power (of punishing for contempt), it does not do so to vindicate the dignity and honour of the individual Judge who is personally attacked or scandalised, 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.”

18. In the light of these observations of the Supreme Court, we find that what was stated in the joint memo filed by the petitioner and respondent in the O.P. dated 3-7-1997, which was also signed by the petitioners herein, expressing that discourtesy was shown to the petitioners by the Presiding Officer, is not such a statement as would warrant initiation of contempt proceedings. There is no doubt that it could have been simply stated in the joint memo that as the parties were compromising and decided to live together it was no longer necessary for Advocates to appear. But considering that the Advocates appearing in a Family Court are to be treated as amicus curiae (Section 13), and that Advocates truly are also officers of Court, it would have been in the fitness of things if the 1st respondent herein i.e., the Presiding Officer of the Family Court, informed the petitioners that it was inconvenient or not possible for her to spare time as she was engaged in some pressing and urgent work, if it was so; if that was not so, she could have sat in the Court and disposed of the matter on the basis of the compromise or settlement arrived at – this would not have taken much time and this would have been in tune with the object and intendment of Section 9 of that Act. As observed by the Supreme Court in T.V. Choudary’s case, , “the majesty of law and the dignity of Courts cannot be maintained unless there is mutual respect between the Bench and the Bar……” The Bar plays a very important role in the justice delivery system. For the even functioning of the Court there should be harmony between the Bench and the Bar because both are partners in the quest for justice. For the maintenance of this harmony, Judges should nip in the bud avoidable discord between the Bench and the Bar. A pre-requisite for this is that the Bar also is required to conduct itself in a responsible manner. A member of the Bar must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute (Lalit Mohan Das v. Advocate General, Orissa, . In Vinay Chandra Mishra’s case (supra), Sawant, J., said:

“Brazenness is not outspokenness and arrogance is not fearlessness. Use of intemperate language is not assertion of right nor is a threat an argument. Humility is not servility and courtesy and politeness are not lack of dignity. Self-restraint and respectful attitude towards the Court, presentation of correct facts and law with a balanced mind and without overstatement, suppression, distortion or embellishment are requisites of good advocacy. A lawyer has to be a gentleman first. His most valuable asset is the respect and goodwill he enjoys among his colleagues and in the Court.”

We have also to note the caution expressed by Chief Justice Gajendragadkar, speaking for six (including himself) of the seven learned Judges, in Special Reference No. 1 of 1964 under Article 143, :

“Before we part with this topic, we would like to refer to one aspect of the question relating to the exercise of power to punish for contempt. So far as the Courts are concerned, Judges always keep in mind the warning addressed to them by Lord Atkin in Andre Paul v. Attorney-General of Trinidad, AIR 1936 PC 141. Said Lord Atkin, “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out-spoken comments of ordinary men.” We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the Court, but may sometimes affect it adversely. “Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”

The fifth normative guideline for the Judges to observe in this jurisdiction mentioned by Krishna Iyer, J., in S. Mirtgaokar’s case, AIR 1978 SC 727 at 737 (Para 32) “is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude.”

19. In the present case, we do not find that the mention in the joint memo of the discourtesy shown by the Presiding Officer to the petitioners is such a statement as should lead to initiation of contempt proceedings.

20. But the core question in the present Writ Petition is whether the 1st respondent can initiate contempt proceedings on her own. Section 15 of the Act is a clear answer in the negative. It deals with cognizance of criminal contempt in cases other than those covered by Section 14 i.e., in facie curiae contempt of the Supreme Court and a High Court. Sub-section (2) of Section 15 of the Act provides as follows:

“In the case of any criminal contempt of a Subordinate Court, the High Court may take action on a reference made to it by the Subordinate Court or on a motion made by the Advocate-General or, in relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.”

Rule 5(d) of the Contempt of Court Rules, 1980 provides that the High Court may take cognizance of contempt and take action “on a reference made to it by a Court subordinate to it in the case of any contempt of such Subordinate Court or on a motion made by the Advocate General of the State of Andhra Pradesh in that behalf.” The High Court may also do so suo motn or on a petition made by the Advocate General of the State of Andhra Pradesh. The High Court may also do so on a petition made by any person subject to that, in the case of criminal contempt, it should be with the consent in writing of the Advocate General of the State of Andhra Pradesh. Rule 9 of these Rules is important and it provides as follows:

“9. (1) All references made by the Subordinate Courts under Rule 5(d) shall contain the particulars as mentioned in Rule 7(l)(a) and (b) so far applicable.

(2) The Subordinate Courts shall transmit all relevant documents or true copies thereof duly attested along with the letter of reference.

(3) All references made under Rule 5(d) by the Subordinate Courts other than the Courts of District and Sessions Judges shall be forwarded through the respective District and Sessions Judges for onward transmission of the same to the High Court expeditiously with their report.

(4) Before making reference, the Subordinate Courts shall hold a preliminary enquiry by issuing a show cause notice to the Contemner and after hearing him, the said Court shall write a concise reasoned order of reference about the alleged contempt.”

From these provisions it is clear that Subordinate Courts can only make a reference to the High Court in the case of criminal contempt after issuing a show cause notice to the contemner and after hearing him by holding a preliminary enquiry; after the enquiry, the Subordinate Court making the reference is required to make a reasoned order of reference about the alleged contempt. The question as to when contempt proceedings commence when a reference is made by a Subordinate Court is answered by the Supreme Court inBaradakanta v. Misra C.J., Orissa H.C., as follows:

“But what happens when a motion is made by the Advocate General or any other person with the consent in writing of the Advocate General or a reference is made by a Subordinate Court. Does the Court enter upon the jurisdiction to punish for contempt and act in exercise of it when it considers such motion or reference for the purpose of deciding whether it should initiate a proceeding for contempt? We do not think so. The motion or reference is only for the purpose of drawing the attention of the Court to the contempt alleged to have been committed and it is for the Court, on a consideration of such motion or reference, to decide, in exercise of its discretion, whether or not to initiate a proceeding for contempt. The Court may decline to take cognizance and to initiate a proceeding for contempt either because in its opinion no contempt prima facie appears to have been committed or because, even if there is prima facie contempt, it is not a fit case in which action should be taken against the alleged contemner. The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemner, the Court, though moved by motion or reference, may in its discretion, decline to exercise its jurisdiction for contempt. It is only when the Court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference.”

21. We have, therefore, no doubt in our minds that the impugned notice issued to the petitioners is without jurisdiction because the Family Court cannot initiate proceedings for criminal contempt. It can only issue show cause notice under sub-rule (4) of Rule 9 referred to above for the purpose of holding a preliminary enquiry for making an order of reference under sub-section (2) of Section 15 of the Act. A Subordinate Court cannot by itself initiate contempt proceedings.

22. This should have sufficed for allowing the Writ Petition. We have also considered whether any contempt is made out on the facts of the present case because this Court has the power to initiate contempt proceedings suo motu in exercise of its inherent power by virtue of Article 215 of the Constitution of India (Delhi Judicial Service Association v. State of Gujarat, , and also on a

motion made by the Advocate General. We do not find any such.

The Writ Petition is, therefore, allowed. No costs.

Categories: Contempt Tags:

SC: 3 Months Jail and 50000/- fine on wife and her mother in contempt case

October 11, 2011 Leave a comment
Equivalent citations: AIR 2003 SC 2925, 2003 (5) ALT 69 SC, 2003 CriLJ 3740
Bench: M Shah, A Kumar

David Jude vs Hannah Grace Jude And Ors. on 30/7/2003

JUDGMENT

Shah, J.

1. This petition for Contempt is filed by the applicant-husband with a prayer for punishing the respondents — wife and mother-in-law for the breach of undertaking given by them and also for breach of directions issued by this Court.

2. By order dated 15^th September, 1998, this Court Permitted respondent No. 1- wife to take the child to USA on the condition that respondents would file undertaking before the Court to the effect that wife will appear before the family court as and when required, and it would be open to the applicant-husband to visit the child in USA after making prior arrangement with the wife.

3. The brief facts of this case are that — applicant and respondent No. 1 were married on 7.2.1989 at Hyderabad according to Christian rites. Soon after marriage, the couple left for America, On 2.5.1997, a son was born out of this wedlock. Because of strained relationship between the wife and husband, both started living separately. Wife approached the Circuit Court, Maryland is USA and got issued a protective order against the husband on condition that the child will not be taken out of the jurisdiction of that court. The wife, however, brought the child to India on 14.4.1998 and after keeping him in the care and custody of her mother Respondent No. 2, she left India. On knowing this, husband dashed back to India on 23^rd April 1998 and on 30^th April, 1998 he took over the custody of the child from respondent No. 2 for celebrating the birthday of the child which was on 2.5.1998.

4. Thereafter, on 1.5.1998, the husband filed O.P.No. 300 of 1998 before the Family Court at Hyderabad Under Section 7, 10 and 25 of the Guardians and Wards Act 1890, seeking an order appointing him as guardian of the minor Child. Respondent No. 2-grand-mother also moved the same Court for restoring the custody of the child to her. The Family Court by order dated 19.8.1998 dismissed the application of the husband and directed him to restore the custody of child to the grandmother. Aggrieved thereby, the husband filed Civil Revision Petition No. 3229 of 1998 before the High Court of Andhra Pradesh at Hyderabad, which was allowed and the custody of the child was given to the husband with visiting rights to the wife.

5. Being aggrieved by the said order, respondent No. 1 and 2 filed S.L.P NO. 15185 of 1998 before this Court. This Court by order dated 15.9.1998 granted interim custody of the child to the wife with permission to take the child to USA on the condition of furnishing a written undertaking to bring the child back to india and disposed of the matter by passing the following order:-

“Special leave granted.

Looking to the age of the child, the interim custody of the child is given to the Ist appellant — mother. She will be at liberty to take the child to USA on condition that both the appellants file undertakings before this Court on or before 25^th of September, 1998 to bring the child back to India when so ordered by the Family Court and the Ist appellant will also file an undertaking to the effect that the Ist appellant will appear before the Family Court as and when required by the Family Court. If during the interregnum the respondent wants to visit the child in USA, he can do so after making prior arrangement with the Ist appellant to see the child. Passport of the child should be released on the filing of the undertaking. The impugned order of the High court is accordingly set aside. the Family court should dispose of the matter as expeditiously as possible, preferably within 18 months. The appeal is disposed of accordingly.”

6.After passing of the aforesaid order, both the respondents submitted their undertakings by way of affidavits in this Court. The relevant portion of the undertakings is as under:-

“by Respondent No. 1 (Wife)

As directed by this Hon’ble Court in the order dated 15.9.1998, I hereby undertake to bring the child back to India when so ordered by the Hon’ble Family Court and further undertake to appear before the Hon’ble Family Court, Hyderabad, as and when required by the Hon’ble Family Court.

By Respondent No. 2 (Mother of the Respondent No. 1)

As directed by this Hon’ble Court, I undertake to bring the child back to India as and when required by the Hon’ble Family Court, Hyderabad.”

7. Meanwhile, respondent No. 1 filed case No. 5249 of Family Law before the Circuit Court for Montgomery country, Maryland inter alia for divorce and custody of the child.

8. Thereafter, the Family Court at Hyderabad proceeded with the trial and examined the husband. That matter was kept for evidence on behalf of the wife but she failed to appear before that Court on 7.2.2000. Various orders were passed by the Family court, but she remained absent from the proceedings. Finally, on 11.4.2000, the Family Court passed the following order:-

1. The husband is appointed as the guardian of the minor child;

2. The wife is directed to restore the custody of the minor child to the husband within one month from the date of the order;

3. The wife is permitted to take interim custody of the minor child whenever she comes to Hyderabad and hand over the minor to the husband while she leaves the country;

4. The wife is not entitled to remove the custody of the minor child out of the jurisdiction of the Family Court at Hyderabad at any time;

5. The husband is directed not to handle the amounts lying in FDR of Rs. 5,00,000/- including the interest accrued thereon till the minor attains the age of majority.

9. Being aggrieved by the aforesaid order, the respondents/contemnors field appeal before the High Court of Andhra Pradesh, which is still pending.

10. Meanwhile, the husband moved this Court for initiating contempt proceedings against the respondents / contemnors for violating the undertakings given by them before this Court and the order passed by the Court in Civil Appeal No. 4797 of 1998.

11. Further, in the execution petition filed before the Family Court, the Family Court passed an order holding that the failure to restore the custody of the minor child to the husband amounts to breach of the undertakings given and ordered the arrest of respondent No. 2 (mother of respondent No. 1) to serve civil imprisonment for a period of six months. appeal filed by respondent no. 2 against the above arrest order before the High Court was also dismissed. Against that order, she has filed SLP No. 22990 of 2001 before the Court.

12. The instant Contempt Petition was first listed on 28-9-2000 and noticed was issued for 8.1.2001. Respondent No. 2, mother of respondent No. 1, was present. She was directed to abide by the undertaking given to this Court. On the next date, i.e. 12.3.2001, learned counsel for respondent No. 1 sought eight weeks time so as to enable her to remain present with the child. respondent No. 2 was directed to deposit her passport with the Registrar (judicial). On 8.5.2001. respondent No. 1 did not appear but learned counsel for respondent No. 1 assured that she would remain present before this court with child on 6^th August, 2001. On 6^th August 2001 also respondent No. 1 remained absent. On that day, at the instance of applicant, leave was granted to add the Union of India as a party respondent. thereafter, on 17^th September, 2001, the Court directed the concerned officer of Union of India to write a letter to the employer of respondent No. 1 about the undertaking given before the Apex Court and breach of undertaking and also the fact that despite the service of notice, she was not remaining present before this Court. On 7^th January, 2002, Mr. Y. Raja Gopala Rao, Advocate appeared on behalf of respondent No. 1 and stated that he would file necessary reply. On 6^th February, 2002 an order was passed to the effect that respondent Nos. 1 and 2 have committed breach of unconditional undertakings and notice was issued as to why they should not be punished for contempt of this Court. Relevant part of the said order is as under:-

“In our view, considering the unconditional undertakings given by the respondents to this Court there is no question of not taking further action against them for not bringing the child back to India as directed by the Family Court. In this view of the matter, prima facie, we are of the view that respondents have committed the contempt of this Court and appropriate action is required to be taken under the Contempt of Courts Act for committing breach of unconditional undertaking. Therefore, we direct that notice be issued as to why they should not be punished for Contempt of this Court.”

13. When the matter came up for hearing on 6^th March, 2002, at the request of the learned counsel for the respondents, the matter was further adjourned for four weeks. On 3^rd April, 2002, counsel appearing for respondent No. 2 stated that respondent No. 1 would remain present with the child without fail, on 30^th July, 2002. On 30^th July, 2002, matter was again adjourned. On 29^th August, 2002, the Court directed that respondent No. 1 shall remain present before this Court with her child on 13^th November, 2002. On 14^th November, 2002, respondent No. 1 remained absent and, therefore direction was issued to the Union Government to take necessary steps for securing her presence with child in this Court. Thereafter, matter was repeatedlyad journed to see that the wisdom prevails with respondent No. 1 to abide by the undertaking given to this Court. Subsequently, respondent No. 1 filed an affidavit on 13^th November, 2002 wherein she has stated that Maryland Circuit Court has granted full custody of the child to her in October, 2002 and that her job precludes her from being able to travel to India. She has further stated that even though she was unable to appear in person, she always retained a legal representative on each and every date of hearing of the case and submitted that taking into consideration her previous affidavits. petition against her be dismissed. Finally, in the affidavit which was tendered by her on 6^th May, 2003, it is stated that petitioner had threatened her in past by saying that he is going to show her how he intends to use the Indian Courts to get back at her, and it is her belief that her husband is now using the system against her family.

14. At the time of hearing, written submissions were filed by the parties. It is the contention of the learned counsel for the applicant that breach of undertaking given before this Court by the wife amounts not only to a civil contempt but also to criminal contempt. It is submitted that this Court’s jurisdiction under Article 129 and 142 of the Constitution is not restricted by the Contempt of Courts Act, 1971 and the Court may award even higher punishment that which is provided under the Act. It is the submission of learned counsel for the applicant that one of the primary objects of the proceeding for contempt is to see that the order or undertaking which is violated by the contemnor is effectuated. Thus, besides punishment, the Court may issue such directions to restore the custody of the child to the applicant-husband.

15. It is to be stated that High Court had directed that the custody of the child be given to the husband because respondent No. 1 gave the custody of the child to her mother and that she was staying in United States and serving in the World Bank at Washington, D.C. The Court also considered the age of the child who at the relevant time was of one year and four months and the fact that as respondent No. 1 was serving and staying alone in United States, it would be difficult for her to take care of the minor child. To see that the aforesaid order is set at naught, respondent Nos. 1 and 2 gave unconditional undertakings to this court and obtained favourable order.

16. From the facts stated above it is apparent that the attitude of the contemnors is without any doubt defiant and contemptuous. They were given custody of the minor child on the condition of filing undertakings before this Court to bring the child back to India when so ordered by the Family Court. Respondent Nos. 1 and 2 have played with the Court, by giving unconditional undertaking for securing the custody of the child. It is true that respondent No. 2, the mother of respondent No. 1 has stated before this court that respondent No.1 is now not abiding by the instructions given by her to produce the child before this Court and the Family Court.

17. Further, it is also clear from the conduct of respondent No. 1 that she has no regard for the notices issued by this Court. If the notice issued by Apex Court of this land is wilfully disobeyed, it would send a wrong signal to everybody in the country. It is a sad experience that due regard is not shown even to the undertakings/order/notice issued.

18. Hence, we hold that respondent Nos. 1 and 2 are guilty for committing contempt of this Court. Further, we do not think that this is a fit case for showing mercy as contended by learned senior counsel, Ms. Indira Jaisingh, appearing on behalf of respondent No. 2. Learned counsel for respondent No. 2 further submitted that respondent No. 2, who is aged about 65 years, has taken enough steps to secure the presence of respondent No 1 and to abide by the undertaking given by her. On the question of punishment, learned senior counsel submitted that in any case considering the age of respondent No. 2, sentence of imprisonment may not be imposed upon her. In our view, even though respondent No. 2 has played major part in the aforesaid episode, considering her age and the fact that she has an old husband to look after, we think that imposition of fine would meet the ends of justice. Hence a fine of Rs. 50,000/- is imposed upon her, in default three months simple imprisonment. It is also ordered that her passport would be seized for a period of five years.

19. For respondent No. 1 considering the fact that she is well educated, serving in prestigious institution, namely, the World Bank and her totally defiant attitude, we do not think that this would be a fit case for taking a lenient view and not imposing sentence of imprisonment. Even though she does not deserve mercy because of her motivated behavior yet we impose only three months simple imprisonment and a fine of Rs. 50,000/- and in default of payment of fine, she shall further undergo simple imprisonment for one month. Fine to be paid within one month.

20. Respondent — Union of India is directed to take appropriate steps to ensure compliance of this order qua respondent No. 1.

21. Contempt Petition stands disposed of accordingly.

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Raising Awareness About Gender Biased Laws and its misuse In India

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