Rajasthan High Court - Jodhpur
Alipka @ Lokesh vs Vikaram Singh on 7 October, 2023
Bench: Arun Bhansali, Rajendra Prakash Soni
[2023:RJ-JD:32076-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Contempt Pet. No. 75/2022
Alipka @ Lokesh W/o Vikaram Singh, Aged About 32 Years, D/o
Shri Rajaram, B/c Jat R/o Presently Residing At Village
Mainakheda Tehsil Ellenabad District Sirsa (Haryana)
----Petitioner
Versus
Vikaram Singh S/o Mahendra Singh, Aged About 33 Years, By
Caste Jat, Ward No. 29, Hanumangarh Town, District
Hanumangarh. (Raj.)
----Respondent
For Petitioner(s) : Mr. Baltej Singh.
For Respondent(s) : Mr. Harish Kumar Purohit.
HON'BLE MR. JUSTICE ARUN BHANSALI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Order 07/10/2023
1. This petition under Section 12 of the Contempt of Courts Act, 1971 ('the Act, 1971') has been filed by the petitioner with the prayer that the respondent be punished for wilful disobedience of this Court's order dated 19/2/2020.
2. The present petition with the above prayer arises in the circumstances, wherein, the respondent filed a petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 ('the Act, 1955') for dissolution of marriage solemnized between the respondent and the petitioner before the Family Court, Hanumangarh, which petition came to be accepted by the said Court by its judgment and decree dated 15/1/2020, whereby, the marriage between the parties was ordered to be dissolved.
3. Against the judgment and decree dated 15/1/2022, the petitioner filed D.B.Civil Misc. Appeal No. 326/2020 before this (Downloaded on 12/11/2023 at 07:14:16 AM) [2023:RJ-JD:32076-DB] (2 of 12) [CCP-75/2022] Court on 24/1/2020. Along with the appeal, D.B.Civil Misc. Stay Application No. 342/2020 was also filed inter alia with the prayer that during the pendency of the appeal, effect and operation of the decree dated 15/1/2020 may be stayed till final disposal of the appeal and the respondent be directed to maintain status quo.
4. When the appeal came up for admission before a coordinate bench of this Court on 19/2/2020, the appeal was ordered to be admitted. Notices were ordered to be issued to the respondent and record was summoned. Whereafter, by observing that in view of admission of the appeal and the provisions of Section 15 of the Act, 1955 no order was required to be passed on the stay application, the stay application was dismissed. After service of notice of appeal on the respondent, Vakalatnama on his behalf was filed on 22/7/2020.
5. It is alleged in the petition that despite being aware of the fact that the appeal is pending consideration before this Court and order dated 19/2/2020 has been passed keeping in view the provisions of Section 15 of the Act, 1955, the respondent solemnized marriage on 19/10/2021 with one Ms. Koushalya D/o Ranveer Poonia, R/o District Hanumangarh. Whereafter, submissions have been made that said Smt. Koushalya lodged an FIR against the respondent alleging offence under Sections 498A, 494 and 120B IPC, wherein, charge sheet was filed against the respondent after verifying the fact of his marriage with said Smt. Koushalya on 19/10/2021.
6. Based on the above, it is alleged that the respondent willfully disobeyed/flouted the order of this Court by solemnizing marriage (Downloaded on 12/11/2023 at 07:14:16 AM) [2023:RJ-JD:32076-DB] (3 of 12) [CCP-75/2022] on 19/10/2021 with Smt. Koushalya only with a view to frustrate the pending appeal and, therefore, he be punished.
7. By order dated 19/12/2022, a coordinate bench of this Court directed issuance of notice of present contempt petition to the respondent.
8. A reply to the petition has been filed with the submissions that the respondent holds this Court in highest esteem and has not done anything directly or indirectly which may be termed as having committed contempt of the orders passed by this Court. Further, submissions have been made that in case this Court reaches to the conclusion that inadvertently the bonafide action of the respondent constitutes contempt, he tenders unconditional apology for the same.
9. Submissions have also been made that by order dated 19/2/2020 passed by this Court no directions were issued to him as stay application came to be dismissed with reference to the provisions of Section 15 of the Act, 1955 and, therefore, there is no question of order of this Court having been flouted. With reference to the FIR lodged by Smt. Koushalya, submissions have been made that he has been acquitted by the trial court on 17/9/2022 and that the said judgment of the trial court has been suppressed while producing copy of the FIR and challan etc. Whereafter, an attempt has been made to indicate that the respondent never lawfully married said Ms. Koushalya and was trapped by her as she was staying in the family of respondent for studying purposes. Based on the above submissions, it is prayed that the petition be dismissed.
(Downloaded on 12/11/2023 at 07:14:16 AM) [2023:RJ-JD:32076-DB] (4 of 12) [CCP-75/2022]
10. The petitioner filed rejoinder refuting the averments made in the reply. Submissions have been made that provisions of Section 15 of the Act, 1955 are clear, whereby, once the appeal is filed, none of the parties can marry again during the pendency of the appeal and as such, the disobedience of the order passed by the Court is apparent. Attempt made to deny the marriage has also been refuted by filing further material including the pictures of the marriage ceremony.
11. Though time was granted to file response to the rejoinder, on the next date it was stated that no response was necessary.
12. Learned counsel for the petitioner made submissions that it is apparent from the facts that appeal was filed by the petitioner against the judgment and decree passed by the Family court within limitation provided under the Act, 1955 and the respondent was duly served with the notice of the appeal and appearance was made before the Court.
13. The Court while admitting the appeal with reference to the provisions of Section 15 of the Act, 1955, came to the conclusion that in view of the said provisions no order was required to be passed on the stay application and dismissed the same.
14. It is submitted that respondent cannot take benefit of dismissal of the stay application as it is apparent that provisions of Section 15 of the Act, 1955 have been violated. It is submitted that said violation would fall within the definition of civil contempt as defined under Section 2(b) of the Act, 1971 as the same is wilful disobedience of 'other process of a court' and, therefore, appropriate action be initiated against the respondent. Reliance (Downloaded on 12/11/2023 at 07:14:16 AM) [2023:RJ-JD:32076-DB] (5 of 12) [CCP-75/2022] has been placed on Jasbir Kaur vs. Kuljit Singh : AIR 2008 P & H
168.
15. Learned counsel for the respondent reiterated the submissions made in the reply to the petition. It was emphasized that the stay application filed by the petitioner came to be dismissed by this Court and, as such, there was no direction, which can be said to have been violated by the respondent, much less wilful disobedience of the order passed by this Court.
16. It was argued that only on account of the fact that while dismissing the stay application, the Court made reference to the provisions of Section 15 of the Act, 1955, it cannot be said by any stretch of imagination that the Court restrained the respondent from getting married and, therefore, the plea raised has no basis and it cannot be said that the respondent has disobeyed any of the directions passed by this Court, as alleged in the contempt petition.
17. With reference to the Division Bench judgment in the case of Jasbir Kaur (supra) submissions have been made that a Single Judge of Punjab & Haryana High Court in Roshan Lal vs. Veena Rani : C.O.C.P. 219/2019 (O & M) decided on 23/2/2023 has distinguished the said judgment by citing provisions of Section 21B (3) of the Act, 1955. Further, Bombay High Court in Kanchan Prashant Bagade vs. Prashant Manikrao Bagade : AIR Online 2020 Bombay 1210, has disagreed with the said judgment.
18. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.
(Downloaded on 12/11/2023 at 07:14:16 AM) [2023:RJ-JD:32076-DB] (6 of 12) [CCP-75/2022]
19. The term "civil contempt" has been defined under Section 2(b) of the Act, 1971, which reads as under:
2(b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;"
20. A perusal of the above would reveal that disobedience, which is wilful of any judgment, decree, order, writ or other process of a court or breach, which also is wilful, of an undertaking given to a court means civil contempt.
21. The undisputed facts are that the marriage between the parties came to be dissolved by judgment and decree dated 15/1/2020 passed by the Family Court, Hanumangarh. The petitioner filed appeal on 24/1/2020 along with an application seeking interim relief. The prayer made in the application seeking interim relief reads as under:
"It is, therefore, most humbly and respectfully prayed that during the pendency of the appeal the effect and operation of the judgment and decree dated 15.01.2020 may kindly be stayed till final disposal of the appeal and may kindly be directed to the respondent to maintain the status quo.
Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner."
22. A perusal of the above relief claimed in the stay application would reveal that the petitioner-appellant had sought that the effect and operation of the judgment and decree dated 15/1/2020 be stayed and the respondent be directed to maintain status quo. It appears that the said prayer was made in a routine manner without reference to the nature of the decree which was subject matter of the appeal inasmuch as seeking stay of the effect & operation of the decree of divorce is not envisaged under Order (Downloaded on 12/11/2023 at 07:14:16 AM) [2023:RJ-JD:32076-DB] (7 of 12) [CCP-75/2022] XLI Rule 5 CPC, which would have the effect of reversing the decree by way of interim order.
23. When the appeal came up before a coordinate Bench of this Court on 19/2/2020, the following order was passed:
"Admit. Issue notice. Send for the record. Keeping in view the admission of the appeal and the provisions of Section 15 of the Hindu Marriage Act, no order is required to be passed on the stay application.
The stay application is, therefore, dismissed."
24. The Bench while admitting the appeal, made reference to the provisions of Section 15 of the Act, 1955 and came to the conclusion that no order was required to be passed on the stay application and, therefore, dismissed the same.
25. The observations in the order made by the Court while dismissing the stay application, when read in the context of the prayer made in the stay application (supra), cannot be read as/mean that in view of the provisions of Section 15 of the Act, 1955, the effect and operation of the decree passed by the Family Court would remain stayed. Further, it is also not the case of the petitioner that the order dated 19/2/2020 was served on the respondent. The reason for the same is not far to seek, as the stay application had been dismissed by this Court.
26. The fact that the respondent entered into a wedlock with Smt. Koushalya, though half heartedly has been sought to be refuted, in view of the material available on record, it is apparent that he has indeed entered into the wedlock with said Smt. Koushalya during the pendency of the appeal.
(Downloaded on 12/11/2023 at 07:14:16 AM) [2023:RJ-JD:32076-DB] (8 of 12) [CCP-75/2022]
27. The provisions of Section 15 of the Act, 1955, which is the basis for alleging wilful disobedience, reads as under:
"15. Divorced persons when may marry again.- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again."
28. A perusal of the language of the above provision would reveal that the said provision is permissive in nature and not prohibitive i.e. it indicates when it would be lawful for either party to the marriage to marry again and not that during the period of limitation for filing appeal or during the pendency of the appeal they shall not marry.
29. Prior to the amendment by the Act of 1976, a proviso to Section 15 of the Act, 1955 existed, which read as under:
"Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the court of the first instance."
30. The said proviso, which indicated that marriage shall not be lawful unless at the date of such marriage at least one year has elapsed from the date of the decree in the court of first instance. Even qua the said prohibition, on violation thereof, the Hon'ble Supreme Court in Smt. Lila Gupta vs. Laxmi Narain & Ors. : AIR 1978 SC 1351 held that the marriage solemnized before expiry of period of one year was not void.
31. The sheet anchor of the submissions made by learned counsel for the petitioner is the judgment in the case of Jasbir Kaur (supra), wherein the Division Bench of Punjab & Haryana High Court in a case where, in the appeal an interim order was (Downloaded on 12/11/2023 at 07:14:16 AM) [2023:RJ-JD:32076-DB] (9 of 12) [CCP-75/2022] passed restraining the respondent from remarrying, prior to which the respondent therein had contracted marriage. With reference to the provisions of Section 15 of the Act, 1955, the Court came to the conclusion that same would be civil contempt being disobedience of 'other process of a court' as defined under Section 2(b) of the Act, 1971.
32. The Division Bench inter alia observed that though every breach of substantive law would not necessarily result into disobedience of 'other process of the court', the peculiarity in the proceedings under the Act of 1955 involving role of the court is distinct and, therefore, in case of present nature, the same would be wilful disobedience of other process of a court.
33. The said judgment in the case of Jasbir Kaur (supra) was purportedly distinguished by a learned Single Judge of Punjab & Haryana High Court itself in the case of Roshan Lal (supra) by observing that there was no reference to the provisions of Section 21B(3) of the Act, 1955, which provides for disposal of the appeal within three months by observing that there cannot be endless time limit for a spouse not to remarry. The judgment in the case of Roshan Lal (supra), to say the least, is in disregard to binding nature of the judgment on the Single Judge by referring to the provisions of Section 21B(3) of the Act, 1955. We are of the opinion that provisions of Section 21B (3) of the Act, 1955 cannot be read as prescribing limitation to the applicability of provisions of Section 15 of the Act, 1955.
34. So far as the judgment in the case of Kanchan Prashant Bagade (supra) is concerned, a learned Single Judge of Bombay High Court disagreed with the proposition laid down in the case of (Downloaded on 12/11/2023 at 07:14:16 AM) [2023:RJ-JD:32076-DB] (10 of 12) [CCP-75/2022] Jasbir Kaur (supra) with reference to the principle of ejusdem generis indicating that the term 'other process of a court' would take its colour from the words 'judgment', 'decree', 'direction', 'order' and 'writ' as indicated in the definition of civil contempt and disobedience of process of a court must also be related to disobedience of some command issued by the Court during the process of a court which includes various stages between filing of any proceedings to final decision by the Court i.e. issuance of summons, deposit of cost, compelling appearance of any expert or person as a witness, production of documents or record etc., which may come within the ambit of said provision.
35. With due regard to the observations made by learned Single Judge of Bombay High Court, the ratio of the judgment in the case of Jasbir Kaur (supra) has not been dealt with and an independent reasoning has been given which also in our opinion is flawed as the instances of other process of the court given, are also under the directions of the Court and, therefore, the same would be covered by other expressions indicated in the definition and resort need not be taken to the clause pertaining to 'other process of a court'.
36. Be that as it may, in the present case, it is apparent that the coordinate bench of this Court when it passed the order on 19/2/2020 making a specific reference to the provisions of Section 15 of the Act, 1955, the intention of the bench can be very well understood that in view of the fact that appeal had been filed within the period of limitation and had been admitted, the respondent cannot remarry. To hold that irrespective of said order passed by the Court, the respondent could remarry would (Downloaded on 12/11/2023 at 07:14:16 AM) [2023:RJ-JD:32076-DB] (11 of 12) [CCP-75/2022] essentially be unjust to the appellant, who would, in case the stay application was rejected by indicating any other reason could have taken her remedy and rendered her remediless on account of passing of the such order.
37. Further, the fact that the Court did not even issue notice of the stay application to the respondent, necessarily means that the coordinate bench of this Court was of the opinion that pendency of the appeal itself was sufficient and no order of any nature to protect the rights/interest of the petitioner was required to be passed.
38. Though in principle, we are in agreement with the view expressed in the case of Jasbir Kaur (supra), the issue arises is as to whether remarriage by a party during the pendency of the appeal, in view of the provisions of Section 15 of the Act, 1955, would ipso facto amount to 'wilful disobedience' of other process of a court, which wilful nature of the act, in view of the fact that contempt proceedings are quasi criminal in nature, is sine qua non for this Court to come to a conclusion that the respondent has committed civil contempt, we are of the opinion that the petitioner needs to indicate something more than mere event of remarriage by the respondent i.e. either service of order passed by the Court on the respondent and/or some communication spelling out the implication of provisions of Section 15 of the Act, 1955 requiring the respondent not to remarry or any other material indicating the wilful nature of the act with a view to frustrate the appeal.
39. In the present case, in absence of any material in this regard available on record, as noticed hereinbefore, it cannot be said that the respondent has committed 'wilful' disobedience of the process (Downloaded on 12/11/2023 at 07:14:16 AM) [2023:RJ-JD:32076-DB] (12 of 12) [CCP-75/2022] of the court so as to bring his act within the definition of civil contempt.
40. In view of the above discussion, in the present case, it cannot be said that the respondent has committed wilful disobedience of the process of the court and, therefore, the petition seeking initiation of proceedings under the Act of 1971 is dismissed. However, dismissal of the present petition would not affect the rights of the petitioner in appeal and qua the implication of remarriage by the respondent during the pendency of the appeal.
(RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J baweja/-
(Downloaded on 12/11/2023 at 07:14:16 AM) Powered by TCPDF (www.tcpdf.org)