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Muskan Dhiman And Another vs Shri Kapil Dhiman on 12 December, 2019

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 of

the 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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