Punjab-Haryana High Court
Raj Rani vs Rakesh Kumar Goyal on 2 November, 2000
Author: J.S. Khehar
Bench: J.S. Khehar
JUDGMENT J.S. Khehar, J.
1. The marriage between the petitioner Raj Rani and the respondent Rakesh Kumar Goyal was solemnised on 17.7.1987. During the subsistence of their marriage, a female child Charu was bom. For reasons of disturbance in matrimonial harmony, respondent Rakesh Kumar Goyal filed a petition for divorce under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') on 20.7.1989. The aforesaid petition was converted into a petition for divorce by mutual consent under Section 13B of the Act by a joint application preferred by the petitioner and the respondent.
2. During thecourseofproceedings under Section 13B of the Act, statement of respondent Rakesh Kumar Goyal was recorded on 22.9.1995. Relevant extract of the same, which is relevant for the purposes of the controversy raised through this petition between the parties is being extracted hereunder :-
"..... It has been decided between us that the custody of the child would remain with my wife and our daughter will be put in residential education institution and in that case, all the expenses would be met by me. My father Krishan LaJ has also undertaken to stand surety to ensure the payment of the expenses. I have given Rs. three lacs (rupees one lac in cash and two lacs by way of Bank Draft Nos. 631603 dated 22.9,1995) towards full and final settlement of all the claims of my wife regarding maintenance, stri dhan and dowry etc. against me and nothing remains due from me on that account. We undertake to withdraw all the proceedings mentioned in para 6 of the joint petition and further undertake not to in itiate any proceedings against each other except the minor's maintenance....."
After recording statements of the parties, the District Judge, Chandigarh, dissolved the marriage of the petitioner and the respondent by passing a decree of divorce by mutual consent under Section 13B of the Act on 22.9.1995. Relevant extract from the judgment of the District Judge, Chandigarh, which is material for the present controversy between the parties is also being reproduced hereunder :-
"..... According to the petition, the husband and wife have been living separately for the last more than six years and as there was no possibility of their resuming cohabitation, they had accordingly decided to part company and the wife had agreed to receive a sum of Rs. one lac in cash and Rs. two lacs through a Bank draff in full and final of all claims regarding dowry, maintenance, stri dhan etc. It was also stated that the father would be responsible for meeting the expenses incurred on the education of the daughter and father-in-law of the wife had undertaken to stand surety to ensure the payment of all the expenses that will incur on the minor from time to time. ....."
A collective perusal of the statement made by the respondent before the District Judge as well as of the judgment delivered by the District Judge. Chandigarh, dissolving the marriage between the petitioner and the respondent leads to the inevitable conclusion that the consent of the petitioner was primarily based on two considerations; firstly, the payment of a sum of Rs. 3,00,000/- by Rakesh Kumar Goyal to the petitioner, and secondly, an undertaking to meet the expenses incurred on the education of their daughter Charu in a residential educational institution. It is obvious that the package offered by the respondent was accepted by the petitioner and it is therefore that the petitioner gave her unequivocal consent for the dissolution of her marriage with the respondent. It also needs to be mentioned that the aforesaid package way duly recorded in the judgment rendered by the District Judge, Chandigarh, dissolving the marriage between the petitioner and the respondent.
3. It has been stated by the petitioner that Charu was admitted to the Public School, Nabha, in March 1997. The expenses incurred by the petitioner on Charu for the full session have been detailed in paragraph 2 of the petition wherein it is disclosed that the aforesaid expenses amounted to Rs. 48,300/-. To recover the aforesaid expenses, the petitioner served a legal notice dated 2.2.1998 on the respondent giving details of the expenses incurred on Charu for the academic session 1997-98. In the legal notice, copies of receipt of payments were also enclosed. It would be pertinent to mention that the aforesaid legal notice was despatched to the respondent by registered- acknowlegment-due post. The respondent had acknowledged the receipt of the registered communication on the acknowledgment-due card which was received back by the counsel who had despatched the aforesaid notice on behalf of the petitioner. In any case, the receipt of the notice has not been disputed by the respondent in the written statement preferred by him.
4. Since the respondent did not honour the undertaking given by him in the statement extracted above, the petitioner has approached this Court through the instant petition asserting that the respondent had intentionally and deliberately played foul and had thereby rendered himself liable to be punished under the Contempt of Courts Act, 1971.
5. In response to the averments made in the petition, the respondent has shielded himself by raising three submissions. The first submission made on behalf of the respondent is that Charu had been unilaterally admitted by the petitioner in the Public School, Nabha, which was a very expensive institution. In this behalf, it was further asserted that there were number of other institutions where the expenses were much lesser. In this behalf, it is stated that in case the respondent had been consulted by the petitioner for admission of Charu to the Public School, Nabha, he would have not consented for her admission to the said school. In this behalf, it has been stated in the written statement and strenuously argued on behalf of the respondent that the income of the respondent is not sufficient to meet the expenses incurred on behalf of Charu at the Public School, Nabha. Secondly, it is stated that ihe orders of the Civil Court are enforceable by execution and that the remedy under the Contempt of Courts Act, 1971, cannot be invoked for the execution of the orders of a Civil Court. Lastly, it is stated that the respondent had undertaken to bear the expenses of Charu in order to keep her away from the matrimonial dispute between the petitioner and himself, A relevant extract of the written statement in this behalf is being reproduced hereunder to notice the exact purport of the last submission :- "The replying respondent undertook to support Charu; and only out of love and affection agreed to support her in some residential school only to keep her out of environment of matrimonial relations where her ears are poisoned against him and where she was not properly looked after and her studies suffered."
6. In response to the first submission made on behalf of the respondent, an affidavit has been filed by the petitioner stating therein that the respondent and his father have adequate means to shoulder the expenses incurred on the education of her daughter Charu. A relevant extract of the aforesaid affidavit is reproduced hereunder:-
1. That my ex-husband Rakesh Kumar Goyal is only son of his father and is living with his father in their own house, measuring 1 Kanal i.e. House No. 1548, Sector 38-B, Chandigarh. Besides this property my ex-husband and his father own a stone crusher, at Zirakpur, which is now rented out at Rs. 25,0007- per month to one Mr. Roshan Lal of Layalpur and is manned by his sons namely Raju and Satpal. They also own two trucks Nos. HR-03-8565 and HR-03- 9565, also an excavator, make Escorts which was bought in year 1995 and cost around Rs. 15 lacs. This machine is rented on a rent of Rs. 600/- per hour. Now they have also purchased land for starting another stone crusher at village Soranwala in Zirakpur District.
In response to the aforesaid affidavit, respondent Rakesh Kumar Goyal has placed on the record of this case not only his own affidavit but also the affidavit of his father Krishan Lal Goyal. The ownership of the properties, referred to in the affidavit filed by the petitioner, have not been disputed. It is, however, stated that the aforesaid property is not in the ownership of the respondent Rakesh Kumar Goyal but in the exclusive ownership of his father Krishan Lal Goyal. In the affidavit of Krishan Lal Goyal, it is stated that his income is irrelevant for the payment of the educational expenses of Charu. An extract of the affidavit of Krishan Lal Goyal in this behalf is also reproduced hereunder:-
"That as already said his financial position is even otherwise irrelevant for liability to pay maintenance to a dependent of his son separate from him for about 12 years and the liability is entirely of Rakesh Kumar Goyal and mother of the child under statutory law and not upon the deponent in their presence."
In the background of the aforesaid factual position this Court has to determine whether ihe respondent is guilty of contempt of Court under the Contempt of Courts Act, 1971. In fact the pointed question to be determined is : Whether an undertaking made in the Court, if not honoured, is punishable under the Contempt of Courts Act, 1971 ? In this behalf, learned counsel for the respondent has relied upon Nisha Kanto Roy Chowdhury v. Smt. Saroj Bashini Goho, A.I.R. 1948 Calcutta 294, wherein it has been held that an undertaking given by one party to the other did not mean a promise made to the Court. Such an undertaking can be considered to be merely by one party to the other and the nature of the compromise/undertaking would not change merely because the undertaking is accepted by the Court and the decree is passed in its terms. Learned counsel for the respondent also relied upon Badri Doss v. Labhu Mal, AIR 1959 Punjab 322, wherein this Court held as under :-
"The statement of the defendant read as a whole leaves no doubt in my mind that it was based upon a private compromise arrived at between the parties outside the Court. Instead of presenting a written composition deed the defendant detailed the terms of the compromise in his statement and a decree on the basis of ii was passed. The undertaking was thus not given to the Court but to the plaintiff. It was no more than a solemn promise by the defendant to the plaintiff and the nature of that promise or undertaking could never be changed by reason of the compromise being accepted by the Court and a decree passed in its terms. The principle is well settled (hat the breach of such an undertaking or promise does not amount to contempt of Court."
In response to the judgment referred to by the learned counsel for the respondent, reliance has been placed on Chhaganbhai Norsinbhai v. Soni Chandubhai Gord-hanbhai and others, AIR 1976 S.C. 1909, wherein the appellant in the case before the Apex Court had made an undertaking during the course of proceedings pending between the appellant with the respondent before the High Court that he would hand-over certain prem-ises in his possession to the respondent. The aforesaid undertaking made by the appellant was duly recorded in the order of the High Court and in view of the aforesaid undertaking the petition before the High Court was dismissed. The undertaking made by the appellant before the High Court was not honoured. In the aforesaid factual backdrop, the Apex Court held that it could not be implied that the order of the High Court was merely a consent order passed on an agreement between the parties to which order of the High Court had been super-added. It was held that the undertaking given by the appellant haying expressly been incorporated in the order of the High Court, it amounted to deliberate violation of an undertaking to the Court. The effect of which was the same as breach of an order of injunction. In its order, the Apex Court observed:-
"... The High Court rightly observed that it had no option except to convict the appellant and to sentence him to three months imprisonment in civil jail."
Even a Division Bench of this Court in Jagjit Singh Kang v. Shakuntla Verma, 1989(1) CLJ (C, Cr. & Rev.) 155, has held as under:-
"The learned counsel for the appellant argued that the statement given by the counsel to the Court on 31.10.1986 amount to only a consent for passing a decree and the decree may be executed and, therefore, he had not committed any contempt. It is merely a consent or compromise signed by both the parties and a decree is made on its basts. We have considered this argument. However, we find that the appellant has stated in the Court that he undertakes to abide by the compromise and this is recorded. Time was granted to him for vacating the demised premises subject to this voluntarily vacating of it and also subjected to the payment of rent regularly. This undertaking given to the Court, on the basis of which undertaking the possession was allowed to be continued, could not be bye-passed by the appellant simply by saying that it is an executable decree. We are of the view that there is a breach of undertaking given to the court, which amounted to contempt of Court. We are also unable to interfere with the fine imposed or the imprisonment ordered in default of payment of fine."
In view of the decisions rendered in Chhaganbhai's case (supra) and Jagjit Singh Kang's case (supra), the objections raised on behalf of the respondent that the action of the respondent in not adhering to the undertaking given by him did not amount to contempt under the Contempt of Courts Act, 1971, is rejected.
7. In view of the decision rendered in Jagjit Singh Kang's case (supra), as extracted above, the second submission made on behalf of the respondent that the orders of civil Courts are enforceable by execution and by filing of a petition under the Contempt of Courts Act, 1971, is not a proper remedy, is also rejected.
8. So far as the last submission made by the respondent is concerned, I find no merit in the same as well. The respondent has not disclosed his income at the time when he had made the statement. He had also not disclosed any details to show that the income that he was earning at the time when he made the statement before the District Judge, Chandigarh, had diminished in any manner, whatsoever. It, however, needs to be noticed that he has emphasised that he is not in a position to incur expenses beyond Rs. 400/- per month which burden he had been bearing towards maintenance expenses assessed under section 125 of the Code of Criminal Procedure, an extract of the written statement filed by the respondent in this behalf needs to be highlighted. The same is accordingly reproduced hereunder :-
"..... Considering his circumstances, the Court after taking ex-parte evidence of the petitioner into consideration fixed maintenance at the rate of Rs, 400/- per month and he cannot make any substantial increase therein....."
9. At the time of making his statement, undertaking to bear educational expenses, the respondent must have understood that for a boarding school education he would have to shoulder expenses not only for the education of his child but also for her boarding and lodging. It is to be noticed that the respondenl has paid nothing whatsoever for the education of his child ever since he was granted a decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955. In case it is accepted, as stated in the written statement, that the respondent indeed has no money to pay for education of his child, as stated in the undertaking/statement made before the District Judge, Chandigarh, it is natural to presume that he had made the statement falsely to obtain the consent of the petitioner in the proceedings under Section 13B of the Hindu Marriage Act, 1955, even though, it was clear to him in his mind that he could not pay; alternatively if he had the means to pay, but has faulted in doing so, under the veil that he has no money to pay, again he is guilty of noi having paid despite his undertaking which must be considered as the package which got him the decree of the divorce. In both the eventualities as stated above, the action of the respondent cannot be considered to be bona fide. It would, therefore, not tn be incorrect to conclude that having made the undertaking/statement before the District Judge, Chandigarh, voluntarily, he deliberately or intentionally did not comply with the same.
10. The respondent was present when final arguments were addressed by the learned counsel for the parties. Even at that juncture, the respondent was asked, whether even at this juncture, he was willing to discharge the obligation undertaken by him in his statement before the District Judge, Chandigarh. Although well dressed and fully alert, the respondent took the stance that he was pennyless and had no money to pay. The aforesaid stance is not understandable. The reason of the stance became obvious when the learned counsel for the respondent pressed into force a decision rendered by the Apex Court to buttress the last submission made by him. Learned counsel for the respondent relied upon Niaz Mohammad v. Slate of Haryana, 1994(3) Recent CR 546 wherein the Apex Court in unequivocal terms held that contempt must be wilful disobedience to any judgment, decree, direction, order, writ or other process of Court. Non-compliance of a direct ion of a Court does not, by itself, satisfy the conditions precedent to punish under the provisions of the Contempt of Courts Act, 1971. Before punishment can be inflicted, Court must also satisfy about wilful and intentional disobedience. If it is established that the contemner is not in a position to pay, disobedience of the order will neither be wilful nor intentional. In the concluding paragraph of the aforesaid judgment, the Apex Court observed as under :-
"Taking all facts and circumstances into consideration, we are satisfied that in the facts and circumstances of the present case, there is no wilful disobedience on the part of the respondents in complying with the direction given by this Court in the aforesaid judgment. It cannot be disputed that when the aforesaid direction was given, this Court was not conscious that the direction had created a liability for payment of about 28 crores of rupees, is arrears to the instructions in the Adult and Non-Formal Education Scheme under the Education Department in the State of Haryana. Out of that amount about 20 crores of rupees have already been disbursed for different periods to the instructors. In this background, it is not possible to hold that respondents have committed contempt of this Court, for which they ought to be punished by this Court."
11. Learned counsel for the respondent strenuously argued that the respondent was not in an effective position to pay as he had no money. Consequently, even if, it is accepted that he had violated the undertaking/statement made by him before the District Judge, Chandigarh, or had disobeyed the order of the District Judge, Chandigarh, dated 22.9.1995, wherein also, the undertaking given by the respondent to shoulder expenses of his daughter's education in the boarding school had been noticed, the same ipso facto in view of the decision of the Apex Court, referred to above, is not sufficient to take penal action against the respondent as in the absence of financial resources, non- payment by him cannot be considered to be deliberate or intentional. The reliance by the learned counsel for the respondent on Niaz Mohammed's case (supra) is wholly misconceived. In the aforesaid case, the respondent had not accepted any liability. The liability of the respondent was created as a consequence of the decision rendered by the Apex Court. The liability was substantial i.e. a sum about of Rs. 28 crores. The respondent had no resources to shoulder the aforesaid responsibility immediately. The respondent paid a sum of Rs. 20 crores out of the total liability of Rs. 28 crores stating that whatever was available was paid. The position in the instant case is different. No liability was created on the respondent by the Court. The liability to pay cost for education of his daughter in the boarding school was accepted by the respondent uni-laterally in his undertaking/statement made before the District Judge, Chandigarh, The aforesaid undertaking was made knowing fully well his financial resources. Whatever be the financial resources of the respondent, he had paid nothing whatsoever for education of his child, as undertaken by him. In fact his stance is that he has no financial resources to pay. His position and stance is totally unacceptable. For the reasons recorded above, I am afraid I can not agree with any of the defences raised by the respondent.
12. In my considered view the respondent had deliberately and intentionally not obeyed the undertaking given by him while making the statement on oath before the District Judge, Chandigarh, The aforesaid statement was made to obtain the consent of the petitioner in the proceedings under Section 13B of the Hindu Marriage Act, 1955. The aforesaid statement was duly noticed in the order passed by the District Judge, Chandigarh dissolving the marriage between the petitioner and the respondent under Section 13B of the Hindu Marriage Act, 1955. In fact the undertaking of the respondent constituted a part of the package on the basis of which the petitioner consented to the decree of divorce by mutual consent. The same was binding on the respondent and had to be complied with.
13. Having failed to comply with the undertaking made on oath and having failed to furnish any justification thereon, 1 hold the respondent guilty for deliberately, and intentionally not complying with the said undertaking/statement made to the Court and accordingly sentence him to undergo rigorous imprisonment for a period of one month and to pay a fine of Rs. 1,000/-, in default of payment of fine, he shall further undergo rigorous imprisonment for a further period of 15 days. The instant order shall become operational after expiry of the three months. The aforesaid time is being allowed 10 the respondent to reconsider the matter in its totality and purge the contempt committed by him and/or to avail of his appellate remedy, if so advised.
14. Petition allowed.