Gujarat High Court
Suo-Motu vs Vallabhkumar Nanjibhai Kakadiya on 4 December, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, A.J. Shastri
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
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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 ?
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SUO-MOTU
Versus
VALLABHKUMAR NANJIBHAI KAKADIYA
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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
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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