Bombay High Court
Smt. Shaheda Sarwan Khan vs Sarwar Ahmed Rauf Khan & Others on 5 October, 1998
Equivalent citations: 1998(4)BOMCR599, 1999CRILJ555, I(1999)DMC582
Author: R.M. Lodha
Bench: R.M. Lodha
ORDER R.M. Lodha, J.
1. Heard Mr. H. Salim, advocate for the petitioner (the wife) and Mr. Ansari, advocate for the respondent No. 1 (the husband). The respondent No. 1 Mr. Sarwar Ahmed Rauf Khan is also present in Court.
2. This contempt petition has been filed by the wife against the husband for wilful non-compliance of this Court's order dated 3-4-1998.
3. On 3-4-1998 this Court made the wife's notice of motion absolute in terms of prayer (a) with modification that the amount of maintenance to her be read as Rs. 2,000/- per month in place of Rs. 5,000/- and to minor daughter Rs. 1500/- per month in place of Rs. 5,000/-. Thus, by the order dated 3-4-1998 the husband who is defendant in the suit (M.J. Suit No. 4410 of 1997) has been directed to pay an aggregate sum of Rs. 3,500/- per months towards maintenance to the wife for her and their minor daughter with effect from 1st December, 1997.
4. The wife has filed the suit seeking decree for divorce of her marriage under Muslim Marriage Act, 1939. In that suit on the application for maintenance, this Court passed the aforesaid order. In the said order, the husband was directed to clear up the arrears within 8 weeks and he was further directed to pay monthly maintenance to the wife on or before 10th of each succeeding month.
5. Admittedly, the said order has not been complied with by the husband and no payment towards maintenance as directed by this Court in the order dated 3-4-1998 has been made.
6. It appears that the husband took out notice of motion for vacation of the order dated 3-4-1998 but the said notice of motion has also been dismissed for default on 14-8-1988. It is reported that the husband has taken out another notice o! motion for setting aside the order dated 3-4-1998.
7. There is no dispute that the order dated 3-4-1998 is operative whereby the husband has been directed by this Court to pay maintenance to the wife at the rate of Rs. 3,500/- p.m. for her and the minor child. The legal position if need be stated is that in the contempt proceeding Court is not warranted to sit on judgment as to the correctness, legality or validity of the order. The Court, in contempt proceeding, cannot and will not enquire into the merits of the order. The party who has been directed to do something by an order of this Court cannot assail such order in the contempt proceeding initiated against him for its breach. The order passed by this Court so long as it stands, has got to be obeyed and its intentional and/or deliberate violation is punishable as contempt. In other words so long as the order has not been vacated or modified by the Court granting it, or has not been reversed or stayed by the Appellate Court, the order must be obeyed. In the present case the order of 3-4-98 granting maintenance has neither been vacated/modified nor stayed/reversed till date.
8. In the contempt petition, on 2-9-1998, this Court passed the following order:-
"By order dated 3rd April, 1998, passed by Rane, J., petitioner was directed to pay maintenance of Rs. 2000.00 and Rs. 1500.00 to the wife and daughter respectively with effect from 1st December, 1997. It is an admitted position that the respondent husband has not made any payment towards the maintenance of the wife or child. Notice of Motion No. 1691 of 1998 taken out by the husband for vacating the order of interim maintenance was dismissed for default on 14th August, 1998. It seems that now the husband has again filed Notice of Motion for setting aside the order of Rane, J. According to the husband he has divorced his wife and therefore as per the Muslim Law, she is not entitled to maintenance after the iddat period. Assuming this to be correct position in law, the husband cannot disown his liability to maintain the child. Rane, J., has fixed the maintenance of the child at Rs. 1500/- per month. In these circumstance, the petitioner is directed to deposit 50% of the arrears within four weeks from today, S.O. to 5th October, 1998. It is made clear that in case the amount is not deposited, the petitioner will be liable to be punished in accordance with the Contempt of Court's Act."
9. It is admitted by the learned Counsel for the husband that the order dated 2-9-1998 also has not been complied with by the husband and he has not deposited 50% of arrears within four weeks from that date. It is stated that the order dated 2-9-1998 has been challenged by the husband in appeal. However, it is admitted by the learned Counsel for husband that no stay order has been passed by the Appeal Court till date.
10. By order dated 2-9-1998 it was made clear that in case the amount is not deposited, the husband would be liable to be punished in accordance with the Contempt of Courts Act. The order dated 2-9-1998 is sort of indulgence shown to the husband to see his bona fides whether he desired to make some payment of maintenance to the wife but even that order he did comply with.
11. The aforesaid facts clearly demonstrate that the conduct of the husband is contumacious and he is not desirous of complying with the order passed by this Court. He is deliberately and intentionally not making the payment of maintenance to the wife and for their child as per order of this Court dated 3-4-1998. During the course of arguments, I asked the learned Counsel for the husband whether his client is prepared to deposit/pay the amount in compliance of the order dated 3-4-1998 or even 2-9-1998 now, the learned Counsel for the husband said that his client is poor and is not able to deposit/pay the said amount. I am afraid the brave and bald plea of inability to pay the amount of maintenance by the well bodied young husband cannot be accepted as valid defence to this contempt petition when such plea was already negatived in the order dated 3-4-1998 and the husband was directed to pay a sum of Rs. 2000/- p.m. towards maintenance to the wife and Rs. 1500/- p.m. for the maintenance of the daughter.
12. In the circumstances, the only inference that can be drawn against the husband is that he is not deliberately and intentionally complying with order passed by this Court and is guilty of civil contempt under section 2(b) of the Contempt of Courts Act and is liable to be punished under section 12 of the Contempt of Courts Act.
13. The learned Counsel for the husband was asked to address on the question of sentence but he did not add anything in that regard.
14. I have already held the husband guilty of civil contempt and the persistent defiance of the husband and consistent default by him in not complying with the order passed by this Court on 3-4-1998 and thereafter on 2-9-1998 and the fact that the husband is still not prepared to deposit/pay the maintenance to the wife as per this Court's order, I am satisfied that the husband deserves to be dealt with sternly and punished with simple imprisonment for a term of two months and a fine of Rs. 2000/-.
15. Accordingly, I hold the respondent guilty of civil contempt under section 2(b) of the Contempt of Courts Act and sentence him to simple imprisonment for two months and fine of Rs. 2000/-. In case the husband deposits/pays the entire arrears of maintenance as per the order of this Court passed on 3-4-1998 within one month from today and continues to deposit pay the maintenance at that rate so long as the order dated 3-4-1998 remains operative, the sentence awarded to the respondent shall remain suspended. In case of default, the sentence awarded to the respondent husband shall be enforceable forthwith.
16. Order accordingly.