IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
COPC No. 70 of 2019
.
Decided on: 12.12.2019.
Muskan Dhiman and another ….Petitioners.
Versus
Shri Kapil Dhiman …Respondents.
Coram
The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No
For the petitioner : Mr. Sudhir Thakur, Sr. Advocate
with M/s Karun Negi and Nitin
Bagga, Advocates.
For the respondents : Ms. Aruna Chauhan, Advocate.
: Respondent also present in person.
Ajay Mohan Goel, Judge (Oral)
By way of this petition, the petitioner has alleged
willful disobedience of the order passed by this Court dated
04.10.2016 in Cr.M.M.O. No. 315 of 2015 and has thus
prayed that contempt proceedings be initiated against the
respondent/contemnor and he be punished for committing
contempt of Court.
2. Facts necessary for the adjudication of the present
petition are that initially a petition was filed by the present
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petitioners under Section 125 of the Code of Criminal
Procedure against the present respondent, i.e. Criminal Case
.
No. 53/4 of 2009, titled as Muskan Dhiman and another
versus Kapil Dhiman, which stood decided by the Court of
learned Chief Judicial Magistrate, Solan, on 19th December,
2012, in the following terms:-
“18. In view of the forgoing discussion, the petition
of the petitioners is partly allowed and the respondent
is directed to pay maintenance @ 6000/- per month to
petitioner No. 1 and Rs. 11,500/- per month to the
petitioner No. 1 (Total Rs. 17,500/- per month) from
the date of filing of the petition i.e. 22.9.2012. The
petition is disposed of accordingly. A copy of this
order shall be supplied to the petitioner free of costs
forthwith. File after its due completion be consigned to
the record room.”
3. This order was challenged by way of a revision
petition under Section 397 of the Code of Criminal Procedure
before the Court of learned Additional Sessions Judge-1,
Solan, by respondent Kapil Dhiman. Vide judgment dated
18.8.2015, the revision was allowed by learned Revisional
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Court by ordering setting aside of grant of maintenance in
favour of Ms. Akanksha Dhiman (petitioner No. 2 in this
.
petition) on the ground that she had already attained the
majority before filing of the proceedings under Section 125 of
the Code of Criminal Procedure.
4. The order passed by learned Revisional Court was
assailed before this Court by the present petitioners vide
Cr.M.M.O. No. 315 of 2015. Same was decided by this Court
vide judgment dated 04.10.2016 in the following terms:-
“16. In the case in hand, the father of the
petitioners has sufficient means to maintain the
petitioners. Now relegating to petition No. 2,
Akanshha Dhiman, if she is to be ordered to go to the
competent Court under The Hindu Adoptions and
SectionMaintenance Act, 1956, this Court has to consider
whether she will be in a position to maintain that
petition, as she is unable to maintain herself.
Therefore, this Court finds that the interests of justice
would be met in case the respondent is directed to
pay an amount of Rs. 30,000/- (rupees thirty
thousand) to petitioner No. 2, Akansha Dhiman,
towards the litigation expenses to maintain a petition
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before a competent Court of law under Section 20 ofthe Hindu Adoptions and SectionMaintenance Act, 1956, by
.
way of a cross bank draft, issued in her name within
a period of one month from the date of disposal of the
present petition. The respondent is further held liable
to pay maintenance, as award by the learned
Magistrate to petitioner NO. 2, till three months from
today or till the time the litigation expenses are paid
to the petitioner to maintain petition for maintenance
under the Hindu Adoptions and SectionMaintenance Act,
1956, whichever is later. The arrears of maintenance,
if any, will be paid by the respondent to the
petitioner/daughter within a period of two months
from today, positively, by way of a bank draft.”
5. Petitioners have filed this contempt petition
alleging willful disobedience of the order so passed by this
Court on 4th October, 2016, on the ground that by not paying
maintenance to petitioner Akansha Dhiman in terms of the
directions, which were passed by learned Chief Judicial
Magistrate, vide order dated 19.12.2012, as they stand
affirmed by this Court vide order dated 04.10.2016, the
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respondent has committed willful disobedience of the Court
Order.
.
6. I have heard learned Counsel for the parties and
also gone through the orders and judgments passed by the
learned Courts below as well as this Court in Cr.M.M.O. No.
315 of 2015.
7. In my considered view, this contempt petition is
completely mis-conceived as there is no willful disobedience
of any direction, which has been passed by this Court as is
alleged by the petitioner.
8. I say so for the following reasons.
9. In the proceedings which were initiated by the
petitioners herein under Section 125 of the Code of Criminal
Procedure, the directions passed by the Court were that
respondent therein was directed to pay maintenance @
6,000/- per month to petitioner No. 1 therein, namely,
Muskan Dhiman and maintenance @ 11,500/- per month in
favour of petitioner No.2 therein, namely, Ms. Akanksha
Dhiman, from the date of filing of the petition, i.e.
22.09.2012. As I have already mentioned above, these
directions passed by the learned Trial Court were reversed in
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Revision by the learned Revisional Court vide judgment dated
18.8.2015, inter alia on the ground that as petitioner
.
Akanksha Dhiman had admittedly attained majority as on the
date when petition under Section 125 of the Code of Criminal
Procedure was filed, the remedy available to her was not
under the provisions of Section 125 of the Code of Criminal
Procedure, but was by filing an appropriate petition under
under the provisions
r of the Hindu Adoptions and
SectionMaintenance Act, 1956.
10. Cr.M.M.O. which was filed by Muskan Dhiman
and Akanksha Dhiman against the judgment so passed by
the learned Appellate Authority was disposed of by this Court
by upholding the findings returned by learned Revisional
Court that the petition which was filed by the Akanksha
Dhiman under Section 125 of the Code of Criminal Procedure
was not maintainable and Ms. Akanksha Dhiman was
ordered by this Court to approach the competent Court under
Section 20 of the Hindu Adoptions and SectionMaintenance Act,
1956.
11. While passing said order, this Court further
directed that in the interest of justice, respondent Kapil
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Dhiman shall pay an amount of 30,000/- to Akanksha
Dhiman towards litigation expenses to maintain the petition
.
in the competent Court of law under Section 20 of the Hindu
Adoptions and SectionMaintenance Act, 1956, within one month, as
from the date of decision. This Court also observed that
respondent is liable to pay maintenance as awarded by the
Magistrate to Akanksha Dhiman till three months from the
date of judgment or till the time, litigation expenses were paid
to the petitioner to maintain petition for maintenance under
Section 20 of the Hindu Adoptions and SectionMaintenance Act,
1956.
12. The contention of learned Senior Counsel
appearing for the petitioners is that observations which were
made by this Court while disposing of the Cr.M.M.O. No. 315
of 2015 that maintenance, as was directed by the learned
Magistrate, in the petition under Section 125 of the Code of
Criminal Procedure, has to be paid means that the order so
passed by the learned Magistrate is in force and the same has
to be complied with. In my considered view, the contention of
learned Senior Counsel for the petitioners is incorrect and not
sustainable in law. Record clearly demonstrates that the
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order passed by the Magistrate qua grant of maintenance to
Ms. Akanksha Dhiman was set aside by learned Revisional
.
Court and said order has been affirmed by this Court vide
judgment dated 04.10.2016. The observation which has been
made by this Court in its judgment qua payment of
maintenance as awarded by learned Magistrate, in fact, is
only to this extent that till the time amount of 30,000/-, as
directed by this Court payable to Akanksha Dhiman towards
litigation expenses, was paid by the respondent herein, he
stands directed to pay maintenance in terms of the directions
passed by learned Magistrate. Meaning thereby that the
amount of maintenance as was determined by the learned
Magistrate in favour of petitioner No. 2 per month, was
payable to her for three months from the date of judgment or
till the time the litigation expenses are paid to the petitioner
to maintain petition for maintenance under the provisions of
the Hindu Adoptions and SectionMaintenance Act, 1956. In other
words, the liability of the respondent was to pay litigation
expenses in terms of the order which was passed by the
learned Magistrate and the aforementioned order passed by
this Court and for non-compliance of said order, he was
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additionally burdened to pay maintenance in terms of the
amount arrived at by learned Magistrate till the litigation
.
expenses were paid.
13. It is not in dispute that litigation expenses in
terms of order dated 04.10.2016, were ultimately paid in
December, 2017. It is not the case of the petitioners here that
as from 04.10.2016, up to the time when litigation expenses
were paid, the respondent did not pay maintenance @
11,500/- per month, as was determined by the learned
Magistrate. In fact, the stand of the respondent before this
Court is that amount, much in excess to what Akansha
Dhiman is actually entitled to, has been paid to her. Be that
as it may, this Court is not going into this controversy.
However, as this Court is satisfied that there is no willful
disobedience of the judgment passed by this Court in
Cr.M.M.O No. 315 of 2015, dated 04.10.2016, because this
Court did not uphold the findings returned by the learned
Magistrate with regard to the payment of maintenance to
petitioner No. 2 Akanksha Dhiman, accordingly, this petition
being devoid of any merit is dismissed. Pending miscellaneous
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application(s), if any, also stand disposed of. Notice
discharged.
.
(Ajay Mohan Goel)
Judge
December 12, 2019
(narender)
r to
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