Bombay High Court
Priya Atul Gonel vs Atul Arun Gonel on 9 September, 2019
Author: S.J.Kathawalla
Bench: Akil Kureshi, S.J.Kathawalla
7-cp-507-18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION NO. 507 OF 2018
Priya A. Gonel ... Petitioner
V/s.
Atul A. Gonel ... Respondent
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Mr. S.N. Biradar for the Petitioner.
Mr. Irfan A. Shaikh for the Respondent.
Mr. Atul Arun Gonel , Respondent is present
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CORAM : AKIL KURESHI &
S.J.KATHAWALLA, JJ.
DATE : 9th SEPTEMBER, 2019. P.C. 1] This contempt petition is taken out by the petitioner-wife
alleging that the respondent - husband has breached the order of the Court dated 19.07.2018 as well as his own undertaking given to this Court. By order dated 19.7.2018 passed in Civil Application No. 69 of 2018 in Family Court Appeal No. 56 of 2018, the Division Bench of this Court had directed the respondent to pay interim maintenance as under:
"a): Direct Respondent to pay interim maintenance of Rs.15,000/ per month to the Applicant in the interest of justice.
b): Direct Respondent to pay interim maintenance of Rs. 10,000/ per month to each Son in the interest of justice.
c): Direct Respondent to pay interim maintenance of Rs.
8,000/ per month towards house rent for Applicant and two Sons in the interest of justice."
Dinesh Sherla 1/6 ::: Uploaded on - 09/09/2019 ::: Downloaded on - 10/09/2019 01:56:44 :::7-cp-507-18.doc 2] The respondent - alleged contemnor challenged this order before the Supreme Court. His Special Leave Petition came to be dismissed by order dated 26.08.2019.
3] In the meantime, since the respondent did not pay a single farthing to his wife and two minor sons, the wife had taken out the present contempt petition, in which, on 26.6.2019, the respondent had undertaken to pay to the wife a sum of Rs.2 lakhs against the arrears of maintenance of Rs.4,73,000/- in two equal monthly installments on or before 10.7.2019 and 24.7.2019. His undertaking to this effect was recorded as under:
"He undertakes to pay an amount of Rs.2 lakhs to the petitioner by way of Demand Draft as follows:-
(i) Rs.1 lakh on or before 10th July, 2019.
(ii) Rs.1 lakh on or before 24th July, 2019.
2. Stand over to 24th July, 2019, for further orders. On that day Respondent undertakes to remain present. The undertakings are accepted.
4] Once again, the respondent disputed the correct recording of his undertaking by filing Civil Application No. 48 Dinesh Sherla 2/6 ::: Uploaded on - 09/09/2019 ::: Downloaded on - 10/09/2019 01:56:44 ::: 7-cp-507-18.doc of 2019. The civil application came to be dismissed by detailed order dated 26.7.2019. The relevant portion of this order reads as under:
3. In the Contempt Petition, the present Applicant i.e. Respondent was represented by his Advocate S.B.Rohile. This Civil Application is filed by Advocate Irfan Shaikh, replacing the original Advocate of the husband. In view of the factual disputes raised by the Applicant, we had requested his previous Advocate Mr. Rohile, who was present in Court on 26th June, 2019, to remain present.
4. The events of 26th June, 2019 being recent, we precisely remember what had transpired during the proceedings. The Respondent of the Contempt Petition- present Applicant had initially offered to deposit a sum of Rs.1 Lakh. Since prima facie he had committed contempt of the order passed by this Court, looking to the sizeable arrears of maintenance to the wife, we were not inclined to adjourn the proceedings on such offer. He had thereafter, after due deliberations stated before us that he would deposit a sum of Rs.2 Lakhs in two installments which was recorded in the said order dated 26th June, 2019.
5. In order to safeguard against any failure of memory on our part, we had also requested learned Counsel Shri Rohile who was present on 26th June, 2019 and appeared before us for the present Applicant, to remain present.
6. He confirmed these events as recorded above. There was thus no confusion about what the Applicant had stated before us and was precisely as was recorded in the order. His explanation also is self-contradictory. At one stage, he states that the undertaking of the payment of Rs.2 Lakhs was on account of the Applicant not being informed properly by his Advocate about the repercussions of filing such an undertaking. On the other hand, he blames his Advocate informing that if the undertaking is not given, coercive steps will be taken against him. The Applicant cannot blame his Advocate for a statement which he consciously made before the Court. The record would Dinesh Sherla 3/6 ::: Uploaded on - 09/09/2019 ::: Downloaded on - 10/09/2019 01:56:44 ::: 7-cp-507-18.doc suggest that even in the Contempt Petition, it was extremely difficult to secure his presence before the Court. He had cited reason of lower back pain preventing him from travelling to the Court. We had requested the public hospital at Pune to assess his health condition. The hospital had certified that he is fit to travel. It was only after such orders that he appeared before the Court. His Application therefore, for allowing him to withdraw the said undertaking is rejected. The Civil Application is accordingly disposed of.
5] Subsequently, on 9.8.2019 in the present contempt petition, following further facts were recorded :
3. At the request of the husband, the proceedings were, therefore, adjourned to 24.7.2019. On 24.7.2019, he filed Civil Application No. 48 of 2019 contending that the order dated 26.6.2019 did not record correctly his undertaking. The said application was dismissed by an order dated 26.7.2019.
4. Learned Advocate for the respondent - husband stated that the husband has neither paid nor proposes to pay any further sum to the wife. He stated the reason is of his financial inability to do so.
5. It would prima facie appear that the respondent
-husband has not only breached the directions contained in order dated 19.7.2018 but has also breached his own undertaking recorded by this Court in its order dated 26.6.2019. For the breach of his own undertaking, we put the respondent - husband to notice that action for contempt in this respect, is also contemplated. It would be open for him to file reply within two weeks. S.O to 23rd August, 2019. To be placed high on board.
6] Pursuant to such order, the respondent has filed an affidavit-in-reply dated 22.8.2019, in which, he has merely Dinesh Sherla 4/6 ::: Uploaded on - 09/09/2019 ::: Downloaded on - 10/09/2019 01:56:44 ::: 7-cp-507-18.doc pleaded non-availabillity of funds for not paying any maintenance amount to his wife and children for not complying with the order of the Court as well as his own undertaking. He has offered unconditional apology for the same.
7] Prima facie, mere apology for not complying with the orders of the Court or his own undertaking, cannot be a ground for dropping contempt proceedings against the respondent. He must first purge himself of the contempt. His apology could be considered, subsequently. His plea of non-availability of fund shall also have to be examined in light of his own voluntary undertakings given to the Court.
8] Under the circumstances, the following charges are framed against the respondent:
(i) The respondent has allegedly committed willful disobedience of the order dated 19.7.2018 passed by the Division Bench of this Court in Civil Application No. 69 of 2018 in Family Court Appeal No. 56 of 2018, for which he is liable to be held guilty and accordingly, Dinesh Sherla 5/6 ::: Uploaded on - 09/09/2019 ::: Downloaded on - 10/09/2019 01:56:44 ::: 7-cp-507-18.doc punish for contempt of court as defined under Section 2(b) of the Contempt of Courts Act, 1971;
(ii) The respondent has allegedly breached his undertaking recorded in the order dated 26.6.2019 in Contempt Petition No.507 of 2018 and consequently, he is liable to be punished for committing contempt of court as defined under Section 2(b) of the Contempt of Courts Act, 1971.
9] The respondent is present before the Court. This order shall be served on the respondent today. He would have two weeks time for filing his defence in response to the charges.
10] S.O. to 23.9.2019. 11] On the next date of hearing and all subsequent dates, the
respondent shall personally remain present in Court unless exempted from personal presence by an order of the Court.
(S. J. KATHAWALLA, J.) (AKIL KURESHI, J.) Dinesh Sherla 6/6 ::: Uploaded on - 09/09/2019 ::: Downloaded on - 10/09/2019 01:56:44 :::