Interim maintenance, 498A, Contempt Queashed.

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT:CR No. 1077 of 1997
Date of Hearing : 27th April, 2004
Date of Decision: 27th April, 2004

Hindu Adoption & Maintenance Act
Ajit Arjani ….. Petitioner Through Mr. R.P. Bansal, Sr. Adv. with Mr. Manas R. Panigrahi, Adv.
Versus
Roma Arjani ….. Respondent Through Mr. D.R. Thadani, Adv. with Mr. H.N. Takkar, Adv.

W I T H CONT.CAS(C) 83 of 1998
ROMA ARJANI …..Petitioner Through Mr. D.R. Thadani, Adv. with Mr. H.N. Takkar, Adv.
Versus
AJIT ARJANI …..Respondent Through Mr. R.P. Bansal, Sr. Adv. with Mr. Manas R. Panigrahi, Adv.

W I T H CM (M) 238/1999
Ajit Arjani….. Petitioner Through Mr. R.P. Bansal, Sr. Adv. with Mr. Manas R. Panigrahi, Adv.
Versus
Roma Arjani….. Respondent Through Mr. D.R. Thadani, Adv. with Mr. H.N. Takkar, Adv.

W I T H CR No. 620/1999
Ajit Arjani….. Petitioner Through Mr. R.P. Bansal, Sr. Adv. with Mr. Manas R. Panigrahi, Adv.
Versus
Roma Arjani….. Respondent Through Mr. D.R. Thadani, Adv. with Mr. H.N. Takkar, Adv.

CORAM:HON’BLE MR. JUSTICE VIKRAMAJIT SEN

1. Whether reporters of local papers may be allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes

VIKRAMAJIT SEN, J. (Oral)

1.The legal quarrel between the spouses had started on Ist February, 1996 with the filing of a divorce petition by the Husband, namely Shri Ajit Arjani. It is not clear when the Wife, namely, Roma Arjani, was served with the summons of the divorce petition, or the date on which she gained knowledge of that petition. In April 1996 an F.I.R. was lodged by the Wife under Section 406/498A of the I.P.C. In those proceedings, on 15.5.1996, a sum of Rs.50,000/- was paid by the Husband to the Wife. It is the contention of the Husband that this sum was paid towards maintenance/settlement, but the Wife contends that this was towards repayment of a loan. On 31st May, 1996, a Suit for Maintenance was filed under Section 18 of the Hindu Adoption & Maintenance Act (hereinafter referred to as `the H.A. & M. Act`) which was accompanied by an application for grant of interim maintenance. On 3rd October, 1997, interim maintenance at the rate of Rs.3500/- per month was awarded by the Additional District Judge (ADJ). The Revisionist Husband has inter alia contended in C.R.P. No. 1077/1997 that since the valuation of the suit was made at Rs.6 lacs, the Additional District Judge did not possess pecuniary jurisdiction to entertain the suit at that relevant time. This is the grievance of the Revisionist against the Order dated 3.10.1997. An application was filed by the Wife in the Divorce Petition invoking Section 24 of the Hindu Marriage Act (HM Act) which came to be decided by the Matrimonial Court on 21.4.1999, fixing interim maintenance at the rate of Rs.2500/- per month. This interim Order was predicated on Orders passed by this Court on 22.10.1997 in C.M. 3754/97 in C.R. 1077/1997 directing payment of Rs.2,500/- per month with effect from the date of the application as interim maintenance.

2. At this stage, Learned Senior Counsel for the Husband states that the fixation of interim maintenance at the rate of Rs.2500/- per month, which had been determined in interlocutory proceedings in C.R.P. No. 1077/1997, is not under challenge. The effect is that, without prejudice to the final order that may be passed, interim maintenance at the rate of Rs.2500/- per month is presently not in dispute. It is also well settled that if maintenance is granted under various provisions and sundry proceedings, the highest amount is the maximum liability towards maintenance. Keeping in view the pendency of the proceedings since 1997, and payment of maintenance at the rate of Rs.2500 per month, and the statement of Learned Senior Counsel for the Husband, I am of the view that no interference is called for in C.R.P. No. 620/1999.

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3. It is certainly arguable that if the Court did not possess any pecuniary jurisdiction under Section 18 of the H.A. & M. Act the suit having been valued at Rs. 6 lacs, interim orders ought not to have been passed by the Additional District Judge. This question does not, however, fall for further consideration or determination since interim maintenance has now been fixed at Rs.2500/- per month to which the Wife has no objection as an interim arrangement. C.R.P. No. 1077/1997 is allowed and the impugned Order is set aside.

4. A Review Petition has been filed before the Additional District Judge contending that the sum of Rs.50,000/- paid in May, 1996 should be adjusted in the calculation of interim maintenance. The Trial Court has taken the view that since that payment had been made in the proceedings under Section 406 & 498A of Indian Penal Code it does not relate to interim maintenance, and also for the reason that no mention has been made in those proceedings that this sum was being paid towards past and future maintenance. It has, however, been observed in the impugned Order that payment of maintenance was made effective from 31.5.1996. In the proceedings under Section 24 of the Hindu Marriage Act, the Court has also ordered payment of maintenance with effect from 14.5.1996. A cumulative and concatenate reading of these Orders reaches to the conclusion that the said sum of Rs.50,000/- was not in contemplation while fixing the interim maintenance. It is clarified that this sum of Rs.50,000/- is not adjustable and is, therefore, payable together with litigation costs.

5. The Wife has filed a Contempt Petition on the grounds that the interim maintenance has not been paid. It is trite to state that for a person to be held punishable under the Contempt of Courts Act the Order of which disobedience is alleged should be explicit and unambiguous. If two opinions are possible, and the one preferred or adhered to and complied with by the Respondents is a plausible one, the Court should eschew the exercise of its powers of committing for its contempt. It is also well established that the powers to commit for Contempt cannot be invoked as a substitute for execution proceedings. In J.S.Parihar Versus Ganpat Duggar and Others, (1996) 6 Supreme Court Cases 291, it had been ordered that a seniority list be prepared which was so done. However, a contempt petition was preferred on the ground that it was not correctly prepared and therefore violated the concerned Order. The Hon’ble Supreme Court made the following pronouncement:

“It is seen that once there is any order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. That cannot be considered to be the willful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge can not be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the division Bench corrected the mistake committed by the learned single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned single Judge when the matter was already seized of the Division Bench.ÿThe appeals are accordingly dismissed. It may be open to the aggrieved party to assail the correctness of the seniority list prepared by the State Government, if it is not in conformity with the directions issued by the High Court, if they are so advised, in an appropriate forum. No costs”.

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Similar views have been reiterated in Ram Kishan Versus Raj Kumar, 2003 (6) Scale 682 as is evident from a perusal of the following Order by which the Petition came to be dismissed.

“1. Heard the learned counsel for the parties. Mr. Mukul Rohtagi, the learned Additional Solicitor General appearing on behalf of the respondent-State states that the respondents have complied with the directions issued by this Court. Accordingly, they have prepared the seniority list and intimated to the petitioner his position in the seniority and have also prepared the Register as directed by this Court. Learned counsel for the petitioner, however, disputes the said submission. 3. Considering the dispute, in our view, the contempt proceedings is not the proper remedy. If respondents have not allowed the directions, it would be open to the petitioner to file fresh petition for the remaining grievance.ÿÿ4. Hence, this petition for initiation contempt proceedings is dismissed. Contempt Notice discharged.”

In Jhareswar Prasad Paul and Another Versus Tarak Nath Ganguly and Others, (2002) 5 Supreme Court Cases 352; 2002 (4) Scale 546 the Apex Court has opined as extracted below:

“The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law, since the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined. The Contempt of Courts Act, 1971 has been introduced under the statute for the purpose of securing the feeling of confidence of the people in general for true and proper administration of justice in the country. The power to punish for contempt of court is a special power vested under the Constitution in the courts of record and also under the statute. The power is special and needs to be exercised with care and caution. It should be used sparingly by the courts on being satisfied regarding the true effect of contemptuous conduct. It is to be kept in mind that the court exercising the appellate court for determination of the disputes between the parties., The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition, be it stated here that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which is alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment order does not contain any specific direction regarding a matter of if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled against the courts exercising co tempt of court jurisdiction “that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute” in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in he contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts”.

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In R.N.Dey and Others Versus Bhagyabati Pramanik and Others, (2000) 4 Supreme Court Cases 400, the Apex Court has specifically deprecated the use of Contempt of Court jurisdiction as a method of executing a decree or implementing an Order for which the law provides appropriate remedy. It had also noted that the question of contempt is a matter between the Court and the Contemnor and the aggrieved person has no right to insist that the Court should exercise such jurisdiction.

6. The Contempt Petition is, accordingly, dismissed.

7. The effect is that on the admitted accounts of both sides, a sum of Rs.60,000/- is due and payable towards arrears of maintenance and litigation expenses.

8. The suit filed under Section 18 of the H.A. & M. Act shall now proceed. The Divorce proceedings filed on 1.2.1996 shall proceed as and when arrears are cleared subject to further orders of the Matrimonial Court. The matter has been pending for several years and the Matrimonial Court may endeavour to bring it to an early conclusion.

9. All the orders which have come before me are essentially interim in nature which this Court is reluctant to interfere with especially after the amendment carried out to Section 115 of the Code of Civil Procedure are exposition of law in Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers & Others (2003) 6 SCC 659 & Surya Dev Rai Vs. Ram Chander Rai & Others, AIR 2003 Supreme Court 3044. Therefore there can be no gainsaying in observing that interim orders are subject to final orders that may be passed.

10. All the Petitions are disposed of in the above terms.

April 27, 2004

(VIKRAMAJIT SEN)
JUDGE

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