Heard learned counsel for the petitioner.
By means of the instant petition, the petitioner seeks quashing of the order dated 21.09.2020 passed by the Additional Principal Judge, Family Court 9th, Roshandaulla, Lucknow. A further direction has been sought for initiating contempt proceedings in accordance with law on Misc. Application No.965/2020 preferred by the petitioner under the Contempt of Courts Act before the respondent No.1.
The petitioner while assailing the aforesaid order and seeking direction for initiation of contempt proceedings against the private-respondent No.2 has submitted that the petitioner and the private-respondent No.2 are husband and wife. They were married on 25.11.1997 at Lucknow. From their wedlock, two children were born, however, on account of marital discord, their family lives suffered, as a result, the petitioner and private-respondent No.2 have been staying separately. This led to litigation between the parties and for the instant purposes, it will be relevant to notice that the petitioner instituted a petition under Section 125 Cr.P.C., in the Court of Additional Principal Judge, Family Court 9th, Roshandaulla, Lucknow, registered as Case No.1018/2001 and by means of the order dated 04.09.2009, the maintenance was awarded, which was payable to the children. However, insofar as the maintenance to the petitioner is concerned, the same was rejected.
The petitioner preferred a petition under Section 482 Cr.P.C., before this Court, which was registered as Criminal Misc. Case No.4422 of 2009 (A482), which was allowed by this Court by means of the order dated 29.04.2019, which was corrected vide order dated 08.05.2019 and the matter was remanded to the Family Court to decide the same afresh after considering the evidence led by the parties within four months from the date a certified copy of the order is produced. However, it was further directed that the private-respondent shall continue to pay the maintenance to the children till the revision No.14/2019 filed by the revisionist for modification/enhancement of the maintenance is decided.
It is in the aforesaid backdrop that the Additional Principal Judge, Family Court, Lucknow decided the Case No.1018/2001 by means of the order dated 14.01.2020, a copy of the aforesaid order has been brought on record by the petitioner. In terms of the aforesaid order, the private-respondent No.2 has been directed to pay a sum of Rs.1,500/- per month w.e.f. 08.10.2001 till 14.01.2020 and from 14.01.2020, he is required to pay a sum of Rs.4,000/- per month. The amount is directed to be paid by 10th of each by successive month and in case if the amount is not paid, the petitioner is entitled to recover the same through the process of Court. So far as the arrears is concerned, it has been provided that the same shall be paid by the private-respondent No.2 in 15 equal installments.
It is being aggrieved by the non-compliance of the order dated 14.01.2020 that the petitioner made an application before the Court of Additional Principal Judge, Family Court 9th, Roshandaulla, Lucknow, which was registered as Misc. Case No.965/2020. The application is titled "under Section 10/11/12 of the Contempt of Courts Act, 1971", a copy of the said application has been brought on record along with the petition. The said application was considered by the Court concerned and by means of the order dated 21.09.2020 rejected the same on the ground that the petitioner had a right for seeking recovery of the aforesaid sum in terms of the provisions contained under Section 125(3) Cr.P.C., and there is no ground for any contempt and the said application was dismissed as not maintainable.
Being aggrieved against the aforesaid, the instant petition has been preferred for seeking the relief as already noted by this Court in the preceding paragraphs.
The submission of the learned counsel for the petitioner is that the recovery of the amount and willful disobedience of the order dated 14.01.2020 are two separate remedy whereas the petitioner seeks the initiation of contempt proceedings on the basis of the application moved by the petitioner before the Additional Principal Judge, Family Court 9th, Roshandaulla, Lucknow.
Learned counsel for the petitioner has relied upon a decision of the Apex Court in Criminal Appeal No.730 of 2020 - Rajnesh vs. Neha & Anr., decided on 04.11.2020.
Learned counsel for the petitioner has also relied upon a decision of the learned Single Judge of the Bombay High Court in the case of Amita B. Devnani vs. Bhagwan H. Devnani, decided on 09.03.2006.
The Court has considered the submissions of the learned counsel for the petitioner and has also perused the record.
Upon due consideration of the material on record, this Court find that primarily the petitioner is aggrieved against the inaction of the private-respondent No.2 in paying the maintenance amount in terms of the order dated 14.01.2020.
It is no doubt true that in a suitable case a party may have a right of filing a case for recovery of an amount payable under a decree passed by a competent Court and if the fact of a case so permits, the proceedings under the Contempt of Courts Act can also be initiated simultaneously, however, this has to be considered on case to case basis and cannot as a matter of general proposition be applied in each and every situation or case.
Apparently, from the perusal of the application moved before the Additional Principal Judge, Family Court 9th, Roshandaulla, Lucknow, it would indicate that the application is titled under Section 10/11/12 of the Contempt of Courts Act.
From the perusal of the aforesaid section, it would indicate that in the first place such an application is not maintainable before the Additional Principal Judge, Family Court 9th, Roshandaulla, Lucknow nor any such power is conferred upon the Family Court rather such powers are conferred upon the High Court which can take cognizance of the contempt in cases of deliberate violation of the orders passed by the Subordinate Court.
Even from the perusal of the application moved by the petitioner before the Additional Principal Judge, Family Court 9th, Roshandaulla, Lucknow, it would indicate that primarily the petitioner has reiterated the chronology of the facts giving rise to the order dated 10.01.2020 and that the private-respondent No.2 has not complied with it. There is no averments made in the said application that despite the order passed by the Court, the petitioner has made a formal demand which has not been met. There is also no averments that the petitioner has filed any application for recovery of the aforesaid amount through Court. Since, the order dated 14.01.2020 clearly provides that in case of non-payment, the petitioner has a right of claiming the amount through Court.
Insofar as the averments regarding deliberate disobedience to bring it within the ambit of contempt is concerned, the same is a moot question inasmuch as the pleadings both in the application filed before the Court below as well as in the instant petition preferred under Article 226 of the Constitution of India is completely silent on necessary particulars.
It will also be relevant to notice that the petitioner even otherwise has a remedy of approaching this Court under the contempt jurisdiction and the remedy is not by filing a petition under Article 226 of the Constitution of India seeking quashing of the order passed by the Additional Principal Judge, Family Court 9th, Roshandaulla, Lucknow dated 21.09.2020 the court below did not commit any error in rejecting the same on account of non-maintainability of the aforesaid application.
Thus, this Court is absolutely satisfied that the petition is misconceived and the order passed by the Additional Principal Judge, Family Court 9th, Roshandaulla, Lucknow cannot be faulted with.
Insofar as the direction seeking mandamus for initiation of contempt proceedings are concerned, as already noted above, the petitioner has remedy to approach the contempt Court and if such an application is made, it will be for the contempt Court to consider and decide the same as it thinks fit in accordance with law for which this Court is not required to make any observation.
Be that as it may, the decision relied upon by the learned counsel for the petitioner if noticed would indicate that in the case of Neha (supra), the Apex Court has considered the entire gamut of case law regarding the maintenance proceedings under various Acts and has also noticed that in case if such amount is not paid, the Courts have powers to take action amongst other including striking off the defence of an erring party. In the decision of Amita B. Devnani (supra) it would be noticed that the aforesaid orders were passed by the High Court in exercise of contempt jurisdiction. The issue before the Court was whether on account of pendency of criminal contempt simultaneously any case of civil contempt can proceed or not. It is in this backdrop that the aforesaid decision was rendered, however, the facts of the aforesaid cases are completely at divergence with the facts of the instant case and accordingly, the same do not apply.
In light of the discussions made above, this Court is absolutely clear that no error has been committed by the court below by passing the order dated 21.09.2020 and for the reasons mentioned above, no direction can be issued by this Court for initiation of contempt proceedings. Accordingly, the petition is devoid of merits and is accordingly dismissed. However, in the facts and circumstances, there shall be no order as to costs.
Order Date :- 23.2.2021 Rakesh/-