SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Suo-Motu vs Vallabhkumar Nanjibhai Kakadiya on 4 December, 2018

C/MCA/2122/2015 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/MISC. CIVIL APPLICATION NO. 2122 of 2015

FOR APPROVAL AND SIGNATURE:

HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE

and
HONOURABLE MR.JUSTICE A.J. SHASTRI

1 Whether Reporters of Local Papers may be allowed to
see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the
judgment ?

4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?

SUO-MOTU
Versus
VALLABHKUMAR NANJIBHAI KAKADIYA

Appearance:
MR BJ TRIVEDI(921) for the PETITIONER(s) No. 1
MR JT TRIVEDI(931) for the PETITIONER(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the PETITIONER(s) No. 1
SUO MOTU(25) for the PETITIONER(s) No. 1
MR INDRAVADAN PARMAR(2738) for the RESPONDENT(s) No. 1

CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 04/12/2018
ORAL JUDGMENT

(PER : HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE)

Page 1 of 17
C/MCA/2122/2015 JUDGMENT

1. In this suo-motu petition namely, Misc. Civil

Application (For Contempt) No.2122 of 2015 in Civil

Application No.4091 of 2015 in First Appeal No.1605 of

2010, the applicant-wife of respondent-Vallabhkumar

Nanjibhai Kakadiya filed the Family Suit No.769 of 2005

before the learned Family Court, Ahmedabad for

maintenance of Rs.50,000/- per month under section 18 of

the Hindu Adoption and Maintenance Act, 1956 on 30.8.2005

and Family Suit No.971 of 2005 for restitution of conjugal

rights under section 9 of the Hindu Marriage Act, 1955 on

28.10.2005. Claiming maintenance of Rs.40,000/- per month

under section 125 of the Code of Criminal Procedure Code,

1973, proceedings were initiated by the wife of respondent

on 22.8.2005. A common judgment and order was passed by

Family Court No.2, Ahmedabad on 18.9.2009 whereby

Family Suit No.769 of 2005 was allowed and the respondent

was directed to pay maintenance of Rs.30,000/- per month

and House No.B/105 of Akshardeep Apartment at

Bhavnagar, where the applicant was staying, may not be

vacated by wife till her death and the respondent was

directed to pay rent and other maintenance etc. However,

Family Suit No.971 of 2005 filed for restitution of conjugal

Page 2 of 17
C/MCA/2122/2015 JUDGMENT

rights came to be dismissed. Criminal Misc. Application

No.2080 of 2005 filed under section 125 of the Code of

Criminal Procedure, 1973 was also dismissed. First Appeal

No.1605 of 2010 was filed before this Court challenging the

judgment and order dated 18.9.2009 by the applicant wife

against dismissal of family suit for restitution of conjugal

rights under section 9 of the Hindu Marriage Act. The

respondent herein as well filed First Appeal No.529 of 2010

before this Court challenging judgment and order passed by

the Family Court No.2, Ahmedabad in Family Suit No.769 of

2005 against order of maintenance of Rs.30,000/- per month.

2. While admitting First Appeal No.529 of 2010 filed

by the respondent herein, a specific order for maintenance of

Rs.18,000/- per month was passed vide order dated 9-7-2010

and on the condition as above, judgment dated 18.9.2009

passed by the Family Court, Ahmedabad was stayed.

3. Special Criminal Application No.2343 of 2009 was

preferred by the applicant-wife before this Court for

dismissing maintenance application filed under section 125

of Cr.P.C. for seeking maintenance of Rs.40,000/- per month.

The above application was disposed of vide order dated 6-7-

2010 and the Family Court was directed that recovery

Page 3 of 17
C/MCA/2122/2015 JUDGMENT

application filed by the wife which is to come up for further

hearing on 14.7.2010 to be decided as expeditiously as

possible but not later than 10.8.2010.

4. So far as various amounts paid from 2009 to

February, 2010 are concerned, payment of Rs.2,29,070/- and

the fact about Execution Application No.45 of 2010 filed

before the Family Court, Ahmedabad for recovery of

Rs.17,80,039/- and pendency of said proceedings for which

warrant was issued are not in dispute. Order below Exh.28

was passed by issuing notice to decree-debtor under the

provisions of Code of Civil Procedure for showing cause as

to why warrant of arrest should not be issued. So far as

attachment of moveable property etc. is concerned, order

was passed on 11.2.2013. Later on, even for seizure and

selling of immovable property of the decree-debtor including

his clinic at Bhavnagar, Family Court No.2, Ahmedabad

passed order below Exh.36 on 9.4.2013. Reply to execution

application was filed by the respondent husband-decree

holder and in absence of further payment, another execution

application was filed.

5. At this stage, various other proceedings

undertaken, arising out of execution petition filed by the wife

Page 4 of 17
C/MCA/2122/2015 JUDGMENT

from time to time for outstanding dues, are not necessary to

be referred to.

6. However, under section 13(1) of the Hindu

Marriage Act, 1955, Hindu Marriage Petition No.106 of 2006

was filed by the respondent-husband before the Court of

Senior Civil Judge, Bhavnagar, seeking divorce and

applicant-wife filed transfer petition so as to transfer the

proceedings to Family Court at Ahmedabad and it was

accordingly transferred. Once again, order was passed under

section 24 of the Hindu Marriage Act, 1955 awarding

maintenance of Rs.10,000/- per month on 6.1.2011. Other

complaints and FIRs are also filed under various provisions

of Indian Penal Code. So far as contempt order of this Court

is concerned, the Contempt Bench issued suo motu

proceedings vide Misc. Civil Application No.2122 of 2015 in

which various orders were passed from time to time.

Pursuant to above orders, the respondent husband has paid

maintenance of Rs.2.00 lakhs on 13.10.2015, Rs.4.00 lakhs

on 8.2.2016 and Rs.1.00 lakh each on 19.2.2016, 29.4.2016,

25.5.2016 and 9.6.2016.

7. For the sake of convenience, we may refer to

various orders passed from time to time by this Court so as

Page 5 of 17
C/MCA/2122/2015 JUDGMENT

to deal with the contentions raised by learned advocate for

respondent-husband that there is no wilful disregard or

disobedience of the orders passed by this Court and further

execution proceedings undertaken by the applicant-wife

before the competent Court and simultaneously, initiation of

process under the Contempt of Courts Act, 1971.

8. We may reproduce order dated 16.3.2018 passed

by the Division Bench of this Court by issuing notice in

Form-I, which was duly served, which reads as under:

“1. Pursuant to order dated 8.3.2018 passed by this
Court, issuing notice to the respondent in Form-I,
respondent-contemnor-Vallabhkumar Nanjibhai
Kakadiya is present.

2. Learned counsel, Mr. Trivedi, appearing for the
applicant has submitted that, though there is a decree
for maintenance, for payment of Rs.30,000/- per
month, by the respondent to his wife, such amount of
maintenance is not being paid. It is submitted that
there are arrears to the tune of more than Rs.45.00
lakhs. It is further submitted that though number of
execution petitions are filed to recover the amount,
there is no fruitful result in any of the execution
petitions. It is submitted that even in Execution
Petition No.45 of 2010, which is pending, only one
room is attached, where the respondent herein was
running his hospital at Bhavnagar. It is submitted that
the respondent himself has stated to sell the above
said commercial space in the complex admeasuring
about 1000 sq.ft of built up area but, at the same time,
same is not allowed to be attached for one reason or
the other.

3. The respondent, who is present in the Court, has
submitted that by selling the said property, the sale
proceeds can be appropriated towards arrears of

Page 6 of 17
C/MCA/2122/2015 JUDGMENT

maintenance. It is further submitted that the
commercial space, where the hospital was being run
by the respondent, is vacant, which is about 1000 sq.ft
of built up area. Same is disputed by the learned
counsel for the applicant.

4. Though there is a decree granted by the Family
Court in favour of the wife of the respondent herein,
awarding Rs.30,000/- per month towards maintenance,
she is not able to have the benefit of such decree. It
appears that, though number of execution petitions
are filed, there is no fruitful result. It is submitted
that, the entire commercial space of about 1000 sq.ft
of super built up area is vacant and such property can
be sold in execution proceedings pending in Execution
petition No.45 of 2010. As much as the respondent is
asserting his stand that, entire 1000 sq.ft of built up
area of commercial complex in Bhavnagar, where the
respondent was running the hospital/dispensary, is
vacant, he has to file an affidavit, giving details of his
property at Bhavnagar, by the next date of hearing.
Affidavit shall contain the total area, which he has
purchased from the builder/vendor, the extent of the
area, which is already sold by the registered sale deed
to third parties and the remaining available area
enclosing a neatly prepared sketch map showing the
available area, which can be sold to recover the
arrears as per the decree. Stand over to 5th April,
2018.”

9. On 19.4.2018, the order passed by this Court is

reproduced hereinbelow:

“1. The respondent herein is the husband of one Smt.
Parulben Vallabhbhai Kakadiya. The respondent is a
practicing doctor and presently practicing at Surat.

On the ground that, the respondent has deserted her
and not maintaining her, she has filed Family Suit No.
769 of 2005, claiming maintenance of Rs.50,000/- per
month under the Hindu Adoption Maintenance Act,
1956. She also filed another suit in Family Suit No.
971 of 2005 before the Family Court, Ahmedabad, for

Page 7 of 17
C/MCA/2122/2015 JUDGMENT

the relief of restitution of conjugal rights. The Family
Suit No. 769 of 2005 was allowed in part by granting
maintenance at the rate of Rs.30,000/- per month.
Further directions were issued to the respondent to
meet the expenditure towards rental
accommodation,where his wife is presently residing.
Family Suit No. 971 of 2005 for restitution of conjugal
rights was dismissed and the appeal against the said
dismissal is pending.

2. When the respondent was consistently disobeying
the orders passed by the Family Court by not
depositing any amount towards the maintenance, suo
motu proceedings were initiated against the
respondent. The respondent was not paying the
maintenance amount regularly as per the orders of
this Court, though he has paid some arrears. Even
conditional orders passed by this Court are not
complied. Number of applications are filed by the wife
to execute the decree of maintenance but she has not
been able to reap the benefits of the decree of
maintenance. It is the case of the respondent that,
about 1000 sq.mt built up area belongs to him in a
commercial complex, which can be sold to recover the
arrears. But it appears that the said commercial place
is also not free from occupation by third parties. It is
stated that, in the execution proceedings, a portion of
the said commercial place is attached.

3. It is the claim of the wife that, there are
accumulated arrears of more than Rs.45.00 Lakhs
towards the maintenance and the respondent is not
paying any amount for the last several years and he is
staying with another woman and there are children
from such relationship. It is also submitted on behalf
of the wife that, the respondent is maintaining two
vehicles, but the same are purposely kept in the name
of third party.

4. The said allegations are denied by the
respondent. But at the same time, it is fairly
admitted by the respondent that, there are
arrears payable towards maintenance of about
Rs.42.00 Lakhs. The allegations made by the wife
need not be gone into at this stage. But in view of

Page 8 of 17
C/MCA/2122/2015 JUDGMENT

the admitted fact that there are arrears of about
Rs.42.00 Lakhs, we deem it appropriate to issue
direction to the respondent to deposit at least
1/4th of the said arrears, i.e. Rs.10.5 Lakhs.

5. Accordingly, we direct the respondent to
deposit 1/4th of Rs.42.00 Lakhs, i.e. Rs.10.5
Lakhs within a period of 6 (six) weeks from the
date of receipt of this order.

6. The matter be placed on 5th July, 2018.”

10. But relevant fact for consideration of this

application appears in para 4 of the above order whereby it

was fairly admitted by the respondent that arrears towards

maintenance were about Rs.42.00 lakhs, though according to

wife, such amount was more than Rs.45.00 lakhs. In the

above order, direction was given to the respondent to atleast

deposit 1/4th of Rs.42.00 lakhs i.e. Rs.10.50 lakhs within a

period of six weeks.

11. It is brought to our notice that against the order

dated 19.04.2018, the respondent Contemnor has carried the

matter by way of Special Leave to Appeal (C)No.16525 of

2018 and the same was dismissed as withdrawn. The order

dated 23.07.2018 passed in Special Leave to Appeal

(C)No.16526 of 2018 reads as under:

Page 9 of 17

C/MCA/2122/2015 JUDGMENT

“UPON hearing the counsel the Court made the
following

ORDER

Learned counsel appearing for the petitioner seeks
leave of this Court to withdraw the Special leave
petition. The special leave petition is dismissed as
withdrawn.”

12. In continuous defiance of the Court’s order, the

respondent failed to deposit the said amount and, therefore,

order was passed by this Court on 10.9.2018, which reads as

under:

“1. We have heard learned counsel Shri Trivedi
appearing for the wife of the respondent herein and also
learned counsel Shri D.K. Nakrani for the respondent.

2. When the matter came up on Board on 19.04.2018,
this Court has passed following order:

“1. The respondent herein is the husband of one Smt.
Parulben Vallabhbhai Kakadiya. The respondent is a
practicing doctor and presently practicing at Surat.
On the ground that, the respondent has deserted her
and not maintaining her, she has filed Family Suit No.
769 of 2005, claiming maintenance of Rs.50,000/- per
month under the Hindu Adoption Maintenance Act,
1956. She also filed another suit in Family Suit No.
971 of 2005 before the Family Court, Ahmedabad, for
the relief of restitution of conjugal rights. The Family
Suit No. 769 of 2005 was allowed in part by granting
maintenance at the rate of Rs.30,000/- per month.
Further directions were issued to the respondent to
meet the expenditure towards rental
accommodation,where his wife is presently residing.
Family Suit No. 971 of 2005 for restitution of conjugal
rights was dismissed and the appeal against the said
dismissal is pending.

Page 10 of 17

C/MCA/2122/2015 JUDGMENT

2.When the respondent was consistently disobeying
the orders passed by the Family Court by not
depositing any amount towards the maintenance, suo
motu proceedings were initiated against the
respondent. The respondent was not paying the
maintenance amount regularly as per the orders of
this Court, though he has paid some arrears. Even
conditional orders passed by this Court are not
complied. Number of applications are filed by the wife
to execute the decree of maintenance but she has not
been able to reap the benefits of the decree of
maintenance. It is the case of the respondent that,
about 1000 sq.mt built up area belongs to him in a
commercial complex, which can be sold to recover the
arrears. But it appears that the said commercial place
is also not free from occupation by third parties. It is
stated that, in the execution proceedings, a portion of
the said commercial place is attached.

4. It is the claim of the wife that, there are
accumulated arrears of more than Rs.45.00 Lakhs
towards the maintenance and the respondent is not
paying any amount for the last several years and he is
staying with another woman and there are children
from such relationship. It is also submitted on behalf
of the wife that, the respondent is maintaining two
vehicles, but the same are purposely kept in the name
of third party.

4. The said allegations are denied by the respondent.
But at the same time, it is fairly admitted by the
respondent that, there are arrears payable towards
maintenance of about Rs.42.00 Lakhs. The allegations
made by the wife need not be gone into at this stage.
But in view of the admitted fact that there are arrears
of about Rs.42.00 Lakhs, we deem it appropriate to
issue direction to the respondent to deposit at least
1/4th of the said arrears, i.e. Rs.10.5 Lakhs.

5. Accordingly, we direct the respondent to deposit
1/4th of Rs.42.00 Lakhs, i.e. Rs.10.5 Lakhs within a
period of 6 (six) weeks from the date of receipt of this
order.

6. The matter be placed on 5th July, 2018.”

Page 11 of 17

C/MCA/2122/2015 JUDGMENT

3. It is also brought to our notice that against
the order dated 19.04.2018, the respondent
Contemnor has carried the matter by way of Special
Leave to Appeal (C)No.16525 of 2018 and the same
was dismissed as withdrawn. The order dated
23.07.2018 passed in Special Leave to Appeal
(C)No.16526 of 2018 reads as under:

“UPON hearing the counsel the Court made the
following

ORDER

Learned counsel appearing for the petitioner
seeks leave of this Court to withdraw the Special
leave petition. The special leave petition is
dismissed as withdrawn.”

4. Though the respondent has withdrawn the SLP
filed against the order dated 19.04.2018 before the
Hon’ble Supreme Court, it is submitted that an
amount of Rs.10.5 lacs as directed by this Court in
the order dated 19.04.2018 is not deposited.

5. The respondent Contemnor is present in person in
the Court. It is submitted by learned counsel Shri
D.K. Nakrani appearing for the respondent
Contemnor that he has no capacity to pay such
amount of Rs.10.5 lacs.

6. On the other hand, learned counsel Shri Trivedi, who
appeared for the applicant before the Family Court and
appearing on behalf of the wife of the respondent herein,
has submitted that he has acquired the movable and
immovable property in the name of the third party and
though he is having capacity to pay the amount as
directed by this Court, intentionally and willfully, the
respondent herein has violated the directions of this Court
in the order dated 19.04.2018.

7. Upon hearing learned counsel for the parties and
perusing the material, prima facie, we are of the view that
the respondent Contemnor has willfully and deliberately
violated the directions issued in the order dated

Page 12 of 17
C/MCA/2122/2015 JUDGMENT

19.04.2018. Accordingly, we frame the following charge
on the respondent Contemnor so as to proceed further
and to give opportunity. [Emphasis supplied]

Charge

“You, Vallabhkumar Nanjibhai Kakadiya, have
willfully and deliberately violated the directions issued in
the order dated 19.04.2018 by not depositing an amount
of Rs.10.5 lacs within a period of six weeks as directed in
the order dated 19.04.2018.

From the material placed on record, it appears that
you have willfully and deliberately violated the directions
issued by this Court attracting the provisions of Sections
10 to 12 of the Contempt of Courts Act, 1971.”

The Registry to issue Show cause Notice to the
respondent to explain the aforesaid charge by the next
date of hearing.

For filing reply on the above said charge, stand
over to 04.10.2018.”

13. Accordingly, charge is framed and the Division

Bench of this Court prima facie concluded based on material

placed on record that the respondent-contemnor has wilfully

and deliberately violated the directions issued by this Court

attracting the provisions of Sections 10 to 12 of the

Contempt of Courts Act, 1971.

14. A show cause notice was issued to the respondent

to explain the aforesaid charge by the next date of hearing

fixed on 4.10.2018. The same is served upon him and today,

the respondent is present.

Page 13 of 17

C/MCA/2122/2015 JUDGMENT

15. Special Leave to Appeal(C) No.16526 of 2018 was

filed by the respondent-husband challenging certain orders

passed by this Court and said Special Leave Petition was

dismissed as withdrawn vide order dated 23.7.2018.

16. When the fact about outstanding dues of Rs.42.00

lakhs to be paid to the applicant wife is admitted by the

respondent-husband, there is non-compliance of the order

passed by this Court from time to time in First Appeal

No.1605 of 2010, which is nothing but brazen disregard and

disobedience and wilful defiance of the orders passed by this

Court.

17. We are benefited by the judgment of the Apex

Court reported in (2006)5 Supreme Court Cases page 1

in the case of T.N.Godavarman Thirumulpad(102)

Through the Amicus Curiae Vs. Ashok Khot and

Another whereby the Apex Court observed that

disobedience of the Court’s order strikes at the very root of

the rule of law on which the judicial system rests. We may

refer para 5 of the above order, which reads as under:

“5. Disobedience of this Court’s order strikes at the
very root of the rule of law on which the judicial system
rests. The rule of law is the foundation of a democratic
society. Judiciary is the guardian of the rule of law.

Page 14 of 17

C/MCA/2122/2015 JUDGMENT

Hence, it is not only the third pillar but also the central
pillar of the democratic State. If the judiciary is to
perform its duties and functions effectively and remain
true to the spirit with which they are sacredly entrusted
to it, the dignity and authority of the Courts have to be
respected and protected at all costs. Otherwise, the very
corner stone of our constitutional scheme will give way
and with it will disappear the rule of law and the
civilized life in the society. That is why it is imperative
and invariable that Court’s orders are to be followed and
complied with.”

18. Further, the Apex Court in the case of Leila David

Vs. State of Maharashtra Ors. reported in AIR 2010

Supreme Court page 862 was considering scandalous

allegations in the petition as well as in the supporting

affidavit filed in the writ petition under Article 226 of the

Constitution of India and held that opportunity is given to

redeem the contemnor to withdraw allegations but petitioner

ventured to file a fresh application with same allegations. In

the above context, the Apex Court considered Section 14 of

the Contempt of Courts Act, 1971 vis-a-vis Article 215 of the

Constitution of India and held that when criminal contempt

is on the face of the Court, Court can adopt summary

procedure and punish the contemnor there and then itself

and need not follow the procedure under Section 14.

19. The facts so recorded and orders reproduced

hereinabove reveal that the conduct of the respondent

Page 15 of 17
C/MCA/2122/2015 JUDGMENT

husband is not only for civil contempt but on the face of it, it

is also for criminal contempt and, therefore, though charge

is framed for which, explanation was sought for, in view of

admission on the part of the respondent husband in para 4 of

the order dated 19.4.2018 passed by this Court about

pendency of arrears payable towards maintenance, we would

like to proceed further by passing an order under section 12

of the Contempt of Courts Act, 1971 since even as on the

date of passing the order, no remorse is shown by the

respondent nor any willingness is shown to pay even 1/4th

amount i.e. Rs.10.5 lakhs out of outstanding dues pending

and admitted by the respondent of Rs.42.00 lakhs.

20. At this stage, the learned advocate for the

respondent contemnor emphatically submits that there is no

material in support of charge framed by this Court and

allegations levelled by the petitioner are baseless and the

respondent is not capable of complying the order, in view of

his financial condition as on date. The learned advocate has

drawn our attention to the replies filed in this proceeding

and submitted that drastic action under the provisions of the

Contempt of Courts Act, 1971 is not warranted against the

respondent. However, it is submitted that he would like to

Page 16 of 17
C/MCA/2122/2015 JUDGMENT

cite certain decisions of the Apex Court in support of his

aforesaid submissions.

21. By making copy of this order available to the

respondent and to provide one more opportunity, we adjourn

the case with a specific direction to the respondent to

remain personally present before this Court on 13-12-2018

at 11 ‘O clock. Stand over to 13th December, 2018.

(ANANT S. DAVE, ACJ)

(A.J. SHASTRI, J)
RADHAKRISHNAN K.V.

Page 17 of 17

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation