Lopaben Patel v. Hitendra Rambhai Patel .

1. This is a Motion of Contempt under the Contempt of Courts Act, 1971. The contempt alleged is a Civil Contempt as defined under Section 2(b) of the Contempt of Courts Act.

2. The definition of Civil Contempt under Section 2(b) runs thus :

"(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."

3. The petitioner happens to be the wife Smt. Lopaben Patel while the respondent happens to be the husband Shri Hitendra Patel. The case of the petitioner-wife is that, there has been wilful disobedience of the orders passed by this Court in Apeal from Order No. 396 of 1997 dated September 11,1997 (Coram : Hon'ble Mr. Justice M.S. Shah) available at Annexure-A.

4. The facts are in dispute. The petitioner happens to be the wife of the respondent-husband. The marriage came to be solemnised between them in November, 1985, according to the Hindu rites to be governed under the Hindu Marriage Act, 1955. The sonography had revealed that the child in the embryo was a female child and therefore, as per the case of the petitioner-wife, she came to be deserted. Ultimately, she was obliged to file Hindu Marriage Petition No. 397 of 1993 for the restitution of the conjugal rights. The husband has filed Hindu Marriage Petition No. 145 of 1995 for decree of divorce. The said proceedings are pending before the Trial Court. During the pendency of the proceedings, the petitioner-wife had taken out the application for maintenance pendente lite for herself and her minor daughter. The Trial Court was pleased to fix the maintenance pendente lite at the rate of Rs. 1,000/- per month for the petitioner-wife, and at the rate of Rs. 500/- for the minor daughter. Cost of the application was quantified and awarded as Rs. 3,500/-. Being aggrieved with the above said orders, the petitioner-wife filed Appeal from Order No. 396 of 1997 before this Court. The respondent-husband had also filed Appeal from Order No. 196 of 1997. This Court was pleased to allow the appeal filed by the petitioner-wife under which the petitioner was granted the maintenance pendente lite at the rate of Rs. 1,500/- per month from the date of filing of her petition till the disposal of same. So far as the minor daughter is concerned, the learned Single Judge was pleased to enhance it to Rs. 1,000/- per month from June, 1995 fill the date of disposal of the petition. The appeal filed by the petitioner-husband being Appeal from Order No. 196 of 1997 came to be dismissed.

5. The case of the petitioner-wife is that the above said orders of the learned Single Judge have not been complied with, and thereby the respondent-husband is guilty of civil contempt within the meaning of Section 2(b) of the Contempt of Courts Act, 1971.

6. The case of the petitioner-wife has been challenged by the respondent-husband by filing a counter dated November 17, 1998. It is inter alia contended in the husband's counter that the motion of contempt taken out by the petitioner-wife is thoroughly "ill-conceived" and is not tenable at law and the same as framed and filed is not tenable under the provisions of the Contempt of Courts Act, 1971. It is also contended that the motion of contempt suffers a bar under Section 20 of the Contempt of Courts Act, 1971. It is said in the counter that, it would not be correct to say that once the contempt is committed, it continues to be committed every day and every moment unless the contempt is purged. Raising a plea of the availability of alternative statutory remedy, the husband in the counter says that Section 28-A of the Hindu Marriage Act, 1955 provides that all the decrees and the orders made by the Court in any proceedings under the said Act shall be enforced in the like manner as the decrees and the orders of the Court made in the exercise of original civil jurisdiction. On the facts, the respondent-husband says in the counter that in any view of the matter it cannot be said that the husband is "guilty of flagrant violation" of the orders of this Court.

7. Learned Counsel Mr. Shah who appears on behalf of the petitioner urges that, as an undisputed proposition of fact, the respondent-husband has not paid the above said amount as per the Orders of the learned Single Judge deciding and disposing of the two Appeals from Orders, and therefore he has rendered himself liable for being held up in the contempt for civil contempt as understood within the meaning of Section 2(b) of the Contempt of Courts Act, 1971.

8. As against this, learned Counsel Mr. Gupta who appears on behalf of the respondent-husband has on all fours, contentions to be raised. The first contention coming from learned Counsel Mr. Gupta for the respondent-husband is that the motion of contempt or the petition for the same is not maintainable in the form in which the same has been filed. Elaborating this broad contention learned Counsel urges that, there has been a clear violation of Rule 7 of the Contempt of Courts (Gujarat High Court) Rules, 1984 as the petitioner-wife in her verification or in the affidavit, has not specified as to what portion stated therein is based upon her own knowledge and what portion therein is based on her belief. In the same way according to the learned Counsel for the respondent-husband the petitioner-wife does not say in the petition or in the verification or the affidavit, the grounds of her belief and therefore, when the affidavit not complying with the Rule 7 of the said Rules cannot be relied on, the motion of contempt should fail and should be dismissed.

9. In support of the above said contention learned Counsel for the respondent-husband places reliance upon the pronouncement of a Bench decision of this Court in Vasantbala H. Mehta v. Dolat Anant Valia New High School and Ors., 1998 (3) XXXIX (3) GLR 1849. This decision recognises the position as being canvassed before us by learned Counsel for the respondent-husband. After making a reference to Rule 7 of the Rules of 1984, the Bench decision says that it is very clear that the deponent must state, what paragraphs or portion of the affidavit he swears or solemnly affirms to, from his own knowledge and what paragraphs or portion he swears or solemnly affirms to his own belief stating grounds for the said belief. The Bench decision emphasises that this is not a mere formality but requires to be followed strictly or else how the other side could know about the knowledge of the petitioner, and how the Court would decide it. It is made clear that when the rule provides that every contempt petition shall contain the details mentioned therein and the deponent shall clearly state what paragraphs or portion of the affidavit he swears or solemnly affirms from his knowledge and what paragraph or portion of the affidavit he affirms on his own belief stating the grounds for such beliefs; the non-compliance thereof would render the affidavit unreliable.

10. Mr. Gupta, the learned Counsel for the respondent-husband places reliance upon the Bench decision once against of this Court in J.A. Goraswa and Anr. v. D.I.G. and I.G. Police, Gujarat State and Anr., 1995 (2) XXXVI (2) GLR 1666. In this decision also the concentration was on Rule 7 of the Contempt of Courts (Gujarat High Court) Rules, 1984 and on Order 19, Rule 3 of Civil Procedure Code, 1908.The Bench decision makes it clear that the affidavits to be filed in support of the petition for contempt, must indicate which paragraphs the deponent affirms to be from his own knowledge and which paragraphs he affirms to his own belief. The Bench decision emphasises a strict compliance with the relevant rule in this regard.

11. The earlier case, i.e., Vasantbala H. Mehta's case (supra) considers certain decisions rendered by the Apex Court. The reference has been made to the Supreme Court pronouncement in. A.K.K. Nambiar v. Union of India, AIR 1970 SC 652. The Supreme Court while emphasising the importance of verification has observed thus:

"...The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence, verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In absence of proper verification, affidavits cannot be admitted in evidence."

12. The other pronouncement of the Supreme Court referred to therein, is in case of Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Ors., AIR 1987 SC 294. The reference is also made to the say of the Supreme Court in case of Smt. Savitramma v. Cicil Naronha and Anr., AIR 1988 SC 1987. In the case of Shivajirao Nilangekar (supra) the Supreme Court has made a reference to the observations of the same Court in the Barium Chemicals Ltd. v. Company Law Board, 1966 (Suppl) SCR 311: AIR 1967 SC 295. In the said decision the Supreme Court has observed that where evidence was adduced by affidavit, such affidavit might be properly verified either on knowledge or from sources; but the basis of such knowledge or source of information must be clearly stated. These observations would go to show that it was a case in which evidence was sought to be adduced by affidavits. Pertinent it would be to notice that, here we are not concerned with the affidavits meant for adducing, the evidence. The say of the Supreme Court in case of Smt. Savitramma (supra) requires a little bit close study. It was a case in which the affidavit of the deponent, moving the motion of contempt was found to be defective as he did not indicate as to what facts were true to her personal knowledge, information and belief. So far as the accused-opponent is concerned, the clerk of the Advocate representing his cause, had filed counter-affidavit and had verified the same saying that,

"the statements of the case of the accused were true and correct which were based on the records maintained in the office of the Advocate and were based on the instructions received from the clients"

. It is in this background of facts that the Supreme Court was pleased to say that the affidavit in support of the contempt petition and affidavit in reply were liable to be rejected. Affidavits being liable to be rejected, it has been said that, the contempt petition was also liable to be dismissed.

13. The other important aspect which should not go unnoticed emerges from the ultimate sentence of paragraph 6 at page 1989. It has been said that the affidavits filed by both the sides do not comply with the rules and as no reliance can be placed on them, both are liable to be rejected. Supreme Court accordingly has rejected the same and has said that the contempt petition is liable to be dismissed on this count alone. But the orders of the Supreme Court do not end here. The Supreme Court was pleased to say further and the same reads as under:

"But we give a chance to the parties to file proper affidavits within six weeks. List thereafter."

14. The second important aspect, therefore, emerging from the ultimate paragraph of the orders of the Supreme Court in case of Smt. Savitramma (supra), makes it clear that a chance was given to the parties to file proper affidavits within six weeks and the matter was ordered to be listed thereafter.

15. We propose to revert to the above said order of the Supreme Court in case of Smt. Savitramma (supra) but we would be satisfied at this juncture by saying that, though the affidavit and counter affidavit were found to be not reliable, and though it was said that the contempt petition was liable to be dismissed on that grounds alone; a chance came to be given to the parties to file proper affidavits within a stipulated time frame and the matter was ordered to be listed thereafter.

16. The Supreme Court decision in Delhi Development Authority v. Skipper Construction Co. (P) Ltd., AIR 1996 SC 2005=62 (1996) DLT 543 (SC), also merits a consideration at this juncture. Taking into consideration the provisions contained under Articles 129 and 142 of the Constitution of India, the Supreme Court has ruled that contemner should not enjoy or keep fruits of his contempt and that procedural/technical objections should be overruled to ensure justice between the parties. Obviously, the above said say of the Supreme Court is in view of the powers, authority and jurisdiction which the Supreme Court possesses under Article 142 of Constitution of India, which is not available to a High Court and therefore, to us. We are conscious of this eloquent position but we must notice that the Supreme Court has taken the view that the contemner ought not to be permitted to enjoy or keep with him the fruits of his contempt and that procedural or technical objections should be overruled to ensure justice between the parties. We do not have the jurisdiction, authority and power which the Supreme Court has got under Article 142 of the Constitution of India. We stop here only by remembering what the Supreme Court has said regarding the procedural and technical objections. Of course, we shall revert to this decision for appropriate decision and parity of reasoning when we would take up for examination the affidavit and/or the verification made by the deponent, i.e., the petitioner-wife.

17. The learned Counsel for the respondent-husband has placed reliance upon two more decisions with a view to buttress his contention that the affidavit and/or the verification thereunder must be in compliance with Rule 7 of the Contempt of Courts Rules, 1984. Learned Counsel draws our attention to the Supreme Court pronouncement in State Of Bombay v. Purushottam Jog Naik., AIR 1952 SC 317. It was a case of detention under Preventive Detention Act, 1950 and while examining the question of verification of the affidavit filed by a Government officer to prove that certain order was factually made by the State Government, it has been said that the affidavit should invariably be modelled on the lines of Order 19, Rule 3, C.P.C., whether the Code applies in terms or not. It is further said that when the matter deposed to, is not based on personal knowledge, the source of information should be clearly disclosed. The other decision on which the learned Counsel for the respondent-husband places reliance also happens to be the pronouncement of the Supreme Court in Shivajirao Nilangekar Patil v. Mahesh Madhav Gasavi (supra). Paragraph 38 of this case law will make a mention of the observations of the same Court in Barium Chemicals Ltd. v. Company Law Board (supra), and approves the same by saying that when the evidence was adduced by affidavits, such affidavits must be properly verified either on knowledge or from source; but the basis of such knowledge or source of information must be clearly stated. A reference has been made to a Division Bench decision of the Calcutta High Court also concentrating upon the provisions contained in Order 19, Rule 3 of the Civil Procedure Code saying that every affidavit should clearly express how much is a statement of the deponent's knowledge and how much of the statement was on his belief and the grounds of belief and be stated with-sufficient particularity.

18. Looking to the say and the consistent trend of the aforementioned decisions, regarding the strict compliance for the verification of the affidavits, we would like to address ourselves, as to what would be the importance of verification. The answer to this question is being provided by the Supreme Court in case of A.K.K. Nambiar v. Union of India and Anr. (supra), to which we have made a reference earlier to this. The decision says that the importance of verification is to test the genuineness and authenticity of allegation and also to make the deponent responsible for allegations. In essence, verification is required to enable the Court to find out as to whether it would be safe to act-on such affidavit in evidence. Lastly, it has been said that in absence of proper verification, affidavits, cannot be admitted in evidence.

19. Thus, it appears that the importance of verification is for deciding the genuineness and authenticity of allegations.

20. We are in the most respectful agreement with the say contained in aforementioned decisions that the strict compliance would be necessary so far as the affidavit and verification thereof are concerned. But looking to the affidavit on record in the present proceedings, in our opinion, it would be unsafe to throw out the petition on this technicality. We should not be understood of saying that we are not in agreement with the above said principle laid down by various decisions referred to above which are binding to us. But we would like to emphasise that on the facts and in the circumstances of the case and especially looking to the averments made in the affidavit verified by the petitioner-wife, and also in the affidavit filed and verified by the respondent, it would be highly improper to dismiss the motion of contempt on this count alone. It, on the facts of the case would amount to nothing but a hyper-technical view. We would say that the principle enunciated therein is not attracted to the peculiar facts and circumstance of the case on hand.

21. We say so on a careful reading of the petition presented by the petitioner-wife and the verification of the affidavit thereunder. Paragraph No. 1 of the petition says that there has been a deliberate and intentional non-compliance of the orders passed by this Court in Appeal from Order No. 396 of 1997 dated September 11, 1997 available at Annexure-A. Paragraph No. 2 avers that the petitioner is the wife of the respondent and that the marriage came to be solemnised in November, 1985 and later on following a desertion the wife, as a last resort was required to file H.M.P. No. 397 of 1993 for restitution of conjugal rights, and that the respondent-husband has filed H.M.P. No. 195 of 1995 for a decree of divorce. Paragraph Nos. 3, 4 and 5 of the petition say that the petitioner-wife had filed necessary application for maintenance for herself, and her minor daughter and the Trial Court was pleased to fix the maintenance at the rate of Rs. 1,000/- and Rs. 500/- respectively and that, later on two Appeals from Orders came to be filed before this Court. Paragraphs 6, 7 and 8 aver that this Court while allowing the appeal filed by the wife has made an upward modification in the maintenance amount and that the respondent has failed to comply the orders of the Trial Court which now have merged with the orders of this Court and that "despite the judgment", the amount is not being paid. Paragraph Nos. 9, 10 and 11 aver that because of the non-compliance on the part of the respondent-husband the petitioner-wife is facing great hardship and that, therefore, the contempt petition has been taken out. Paragraph Nos. 12 and 13 aver that petitioner-wife has not got any other alternative and efficacious remedy to get the orders implemented and that this Court has jurisdiction to adjudicate upon the motion of contempt. Paragraph No. 14 is prayer clause. Thus, on careful reading of the averments made in the memorandum of the petition while moving the motion of contempt, the petitioner-wife has only averred facts and nothing but the facts of which the respondent-husband is aware to the best possible extent.

22. And see, the counter filed by respondent-husband does not controvert the above said simple narration of facts. On the contrary, the respondent-husband has raised technical and legal contentions therein. It should be appreciated with great pertinence that the averments of the petitioner-wife regarding the factum of the marriage, the desertion, filing of the two petitions, orders passed therein and the upward modification made by this Court in Appeal from Order filed by the wife, have not been denied or controverted by the respondent-husband. There is a rejoinder filed by the petitioner-wife dealing with the technical and legal contentions raised by the respondent-husband in his counter. There is no further controverting of the say of the petitioner-wife in her rejoinder.

23. Thus, a careful reading of the affidavits filed by the parties would go to show that the wife's narration of simple facts regarding factum of the marriage, the orders of the maintenance pendente lite and the ultimate upward modification in amount etc., have not been controverted by the respondent-husband. When the attention is centralised on the say of the Supreme Court in case of A.K.K. Nambiar (supra), one is made aware of crystallised concept of the importance of verification which is to test the genuineness and authenticity of allegations and also to make the deponent responsible for the allegations. By seeing the verification the Court would find out as to whether it would be safe to act on the affidavit which has been adduced as the evidence. Applying the above said test, merely because the wife in the affidavit/verification has said that what is stated in paragraph Nos. 1 to 8 is true to the best of her knowledge and belief and what is stated in paragraph Nos. 9 to 13 are legal grounds, in our opinion, therefore, the petition moved by the petitioner-wife does not deserve to be thrown out. This say of ours is based, we may repeat, on the facts of the case and the averments made in the petition which have remained uncontroverted by the respondent-husband and that, the averments are nothing but simple factual narration regarding the solemnisation of marriage, desertion, filing of the petition, awarding of maintenance pendente lite and the upward modification therein. We, therefore, are not inclined to accept the contention coming from the learned Counsel for the respondent-husband that because on this count alone the motion of contempt requires to be discarded. We, therefore, are of the opinion that, this contention coming from the learned Counsel for the respondent-husband deserves a rejection on the facts and in the circumstances of the case.

24. We have made a reference to the say of the Supreme Court in case of Smt. Savitramma (supra). It was of course a case wherein the question was regarding the compliance with the provisions of the Supreme Court rules qua the contempt jurisdiction and of Order 19, Rule 3 of the Civil Procedure Code. But as noticed by us, in the ultimate paragraph of the said decision, though the affidavits came to be rejected and the contempt petition was said to be liable to be dismissed on that ground alone, a chance was given to the parties to file proper affidavits within six weeks, and the matter was ordered to be listed thereafter. The case of Delhi Development Authority, (supra) makes it clear that the Supreme Court was exercising the plenary powers vested in it under Article 142 of the Constitution of India. Therein, it has been said that the principle that a contemner ought not to be permitted to enjoy and/or keep the fruits of his contempt is well settled and that the procedural/technical objections should be overruled to ensure justice between the parties. We have made it clear that the powers vested in the Supreme Court under Article 142 of the Constitution of India are not available to this Court and therefore, to us also. Anyhow, we cannot be oblivious of the fact that, it is the say coming from the Supreme Court that procedural/technical objections should be overruled to ensure justice between the parties. While coming to the conclusion that the technical contention coming from the opponent-husband through the learned Counsel deserves on the facts and in the circumstances of the case a rejection, we have been guided by the spirit behind the orders of the Supreme Court in the aforementioned two cases. The uncontroverted averments, which are nothing but a simple narration of basic facts, would not allow us to let the rule kill justice.

25. The second contention coming from the learned Counsel for the respondent-husband centres around the provisions contained in Section 20 of the Contempt of Courts Act, 1971, which is captioned as "Limitation for actions for contempt."

26. It is not disputed before us that though Section 20 has been captioned as above, it does not provide for a period of limitation as understood in Limitation Law Parlance, but puts an express bar on the initiation of proceedings of contempt after expiry of a period of one year from the date on which the contempt is alleged to have been committed. There are the pronouncements of different Courts on this aspect. The well settled principle in this respect has been reiterated in the pronouncement of this Court in case of Dineshbhai A. Parikh v. Kripalu Co-operative Housing Society, Nagarvel, Ahmedabad and Ors., AIR 1980 Guj. 194 : 1981 GLR 165, it has been said that what Section 20 of the Contempt of Courts Act, 1971 provides is not the period of limitation as it is ordinarily understood but it is the condition precedent to the exercise of Court's power under that Act. Incidentally, it may be noticed that, this pronouncement proceeds to say that, it will not be correct to say that once the contempt is committed unless it is purged, it is continuously committed every day and every moment and that, therefore, an action can be taken against the contemner at any time. We shall revert back to this second aspect of the say coming from the pronouncement of this Court within a few more lines. But indeed, as we say, this pronouncement explains real nature of the ban being imposed under Section 20 of the Contempt of Courts Act, 1971.

27. Placing reliance upon this principle, learned Counsel Mr. Gupta for the opponent-husband says that in the case on hand, the orders came to be pronounced by the learned Single Judge on September 11, 1997 and as period of four weeks was given to pay the arrears which had accumulated, the starting point for the purpose of application of Section 20 of the Contempt of Courts Act, 1971 would be October 11, 1997. The contention is that a period of one year would be over on October 10, 1998. The precise contention is that the initiation of the contempt proceedings takes place only on the date of issuance of the rule which in the instant case is December 22, 1998 and therefore the proceedings are barred under Section 20 of the Contempt of Courts Act; 1971.

28. Against this contention being raised by learned Counsel Mr. Gupta, Mr. Shah the learned Counsel for the petitioner-wife urges that the initiation takes place not on the date of issuance of the rule but on the date on which the Court shall be passing the first orders on the proceedings by making the necessary application of the juridical mind. In support of this contention, reliance is being placed by learned Counsel Mr. Shah on a Bench decision of this Court in Girishchandra R. Bhatt and Anr. v. Dineshbhai N. Sanghvi, Principal, Sanghvi Primary School and Ors., 1996 (1) XXXVIII (1) GLR 812. In para 41 of this decision it has been made clear that issuance of notice cannot be said to be without the application of mind and it amounts to the initiation of the proceedings. By saying so this pronouncement of this Court says that the date of the notice would be the only relevant date for the purpose of examining the question as to whether the proceedings" would be barred under Section 20 of the Contempt of Courts Act, 1971. While coming to this conclusion the Bench decision has preferred to refer the pronouncement of this Court in case of Dineshbhai A. Parikh v. Kripalu Co-operative Housing Society, Nagarvel, Ahmeddbad (supra). It has been said in that decision that, it is the application of mind by the Court which amounts to the initiation of proceedings within the meaning of Section 20 of the Contempt of Courts Act, 1971.

29. As detailed by us hereinabove, a period of one year would be over on October 10, 1998, but the first orders for the issuance of the notice came to be passed on September 23, 1998. Therefore, in our opinion when the date of issuance of the orders for notice is well within the period of one year, it cannot be said that there is a bar being imposed by Section 20 of the Contempt of Courts Act, 1971.

30. Learned Counsel Mr. Gupta, for the respondent-husband has placed heavy reliance upon the pronouncement of the Bombay High Court in case of State of Maharashtra v. J.V. Patil, 1970 BLR 116. This decision says that the date on which the matter is placed before the Division Bench of the High Court and the date on which the rule is granted is the date when contempt proceedings can be said to have been initiated in the Court. It requires to be appreciated pertinently while reading this pronouncement of the Bombay High Court that, the question therein was as to whether the date on which the complaint regarding the contempt was made before the learned Magistrate or the date on which the matter under reference came to be placed before the learned Administrative Judge of the High Court of Bombay, or the date on which the matter came to be placed before the Bench taking up the contempt matters on which the Division Bench had preferred to issue the Rule, would be the relevant date. It is in context of this background that it has been said that the date on which the matter is placed before the Division Bench of the High Court and the date on which the rule is granted is the date when the contempt proceedings can be said to have been initiated in the Court. This decision does not take up for examination the question as to whether the date on which the notice could be issued by the Division Bench would be the date relevant for the purpose of Section 20 of the Contempt of Courts Act, 1971. In our opinion, therefore, this decision on which heavy reliance is being placed by learned Counsel for the respondent-husband would not assist him to any significant extent.

31. In this connection reference also requires to be made to the Supreme Court pronouncement in Firm Ganpat Ram Rajkumar v. Kalu Ram and Ors., AIR 1989 SC 2285. This decision according to us is eloquent on two aspects. In this case the application for contempt was filed on/or about 3rd November, 1998 as it appeared from the affidavit in support of the application. The contempt consisted inter alia of the act of not giving the possession by force of the order of the learned Senior Sub-Judge, Narnaul dated 3rd November, 1988. It has been said that the application was well within the period of one year. Nothing has been said in this decision regarding the relevant date for the purpose of Section 20 of the Contempt of Courts Act, 1971 or that it would be the date on which either the notice or the rule is issued. This important aspect of the matter should not go unnoticed. Moreover as a prominent feature the concept of a continuing wrong has been accepted by the Supreme Court in this decision. It has been said that "the failure to give possession if it amount's to contempt in a situation of this nature" is a continuing wrong and that there was no scope for the application of Section 20 of the act. Looking to this recognition of the concept of continuing wrong, in our opinion, the reliance being placed by learned . Counsel Mr. Gupta on the second aspect emerging from the decision of this Court in Dineshbhai A. Parikh (supra) is of little assistance to him.

32. Looking to the concept of continuing wrong, it cannot be disputed that unless and until the amount of maintenance pendente lite is not being paid as per the orders of this Court, there would be a continuing wrong. Moreover, there is an unmistaken salient feature of the orders pronounced by the learned Single Judge, which in our opinion, would put the entire controversy to a deserving rest. Learned Single Judge at para-12 has ordered that the opponent-husband shall pay the petitioner-wife interim maintenance at the rate of Rs. 1,500/- per month from the date of filing of H.M.P. No. 397 of 1993 till the date of disposal of the petition. The same has been said regarding the amount at the rate of Rs. 500/- per month for the minor daughter. These orders, therefore, are till the date of the disposal of the petition in which maintenance pendente lite have been granted. It is an obligation on the part of the respondent-husband to pay the said amounts, one for the petitioner-wife and the other for the minor daughter, on the stipulated time frame of every month till the date of disposal of the petition. This would definitely go to show that the orders are in the nature of imposing recurring obligation on the part of the respondent-husband till the proceedings are decided by the Trial Court. Any default to make the payment, in terms of the above said order, can definitely be said to be a continuing wrong. It cannot, therefore, be urged that the contempt proceedings would be barred under Section 20 of the Contempt of Courts Act, 1971.

33. Learned Counsel Mr. Gupta for the respondent-husband has been heard by us, saying that the respondent-husband is prepared to purge the contempt by making payment of the amount the instalments of which have become due after filing the contempt proceedings, but that, he is not so prepared qua the arrears. Learned Counsel, in bur opinion, wanted to urge in a way that the respondent-husband cannot be said to have committed the contempt qua the non-payment of the arrears before the filing of the contempt proceedings. In other words, the respondent-husband wanted to have a dissection of the orders at our hands, which in our opinion cannot be done and should not be permitted to be done. The order granting maintenance pendente lite cannot be thus dissected and bifurcated. The orders pronounced by the Court granting maintenance pendente lite are required to be read, interpreted and acted upon as they are and should not be read in a dissected or a piecemeal manner which would suit the purpose of the alleged contemner.

34. Therefore, in our opinion, the contempt proceedings can be and should be said to have been initiated on the date on which the issuance of the notice came to be ordered by us, namely, September 23, 1998. In view of this position, it cannot be said that the proceedings are barred under Section 20 of the Act of 1971. Even otherwise looking to the concept of the continuous wrong and the nature of the orders, the contentions in this respect coming from the respondent-husband cannot be accepted. We, therefore, are of the opinion that even the second contention coming from the learned Counsel for the respondent-husband also deserves an outright rejection.

35. As a third contention, learned Counsel for the respondent-husband urges that when the alternative efficacious remedy under Section 28A of the Hindu Marriage Act, 1955 is available to the petitioner-wife, she cannot rush to the contempt Court Section 28A of the Hindu Marriage Act, 1955 captioned as "Enforcement of Decrees and Orders" makes it clear that all the decrees and orders made by the Court in any proceedings under this Act shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction. The precise contention coming from the learned Counsel Mr. Gupta is that, when the above said orders could be executed by the petitioner-wife, she cannot be permitted to come before us invoking the contempt jurisdiction of this Court. The decision of this Court in Girishchandra R. Bhatt and Anr. (supra) to which we have made reference earlier, requires to be taken up for the consideration and decision of this aspect of the matter also. At para 40 of the judgment the Bench decision says that simply because the order passed by the Tribunal, is executable, it does not take out the case of the petitioner from the purview of contempt, if it can be so held in facts and circumstances of the case. This decision, therefore, provides a clear answer to the contention being raised by learned Counsel Mr. Gupta for the respodent-husband.

36. Learned Counsel Mr. Shah draws our attention to a Bombay High Court decision pronounced by a learned Single Judge in Sarladevi Bharatkumar Rungta v. Bharatkumar Shivprasad Rungta and Anr., 1988 Cri. LJ 558. This decision while examining the very same question makes it clear that when there was the order directing the husband to pay the maintenance pendente lite and when there was a wilful disobedience on the part of the husband, contempt proceedings can be taken against the husband and the existence of the remedy of execution for recovery of the maintenance is no bar. This decision takes into consideration, the provisions contained under Section 20 of the Contempt of Courts Act, 1971 and Section 24A of the Hindu Marriage Act, 1955.

37. We may also refer to a Bench decision of this Court in Shankerpuri Chanpuri Goswami v. Shaikh Adhulhakim Asmadmahamad, 1985 LLJ 281. It has been said that looking to the provisions contained under Section 22 of the Contempt of Courts Act, 1971, it cannot be said that since the award of the Industrial Tribunal under Section 29 of the I.D. Act is there to look after the breach of the award, contempt proceedings would not lie.

38. Looking to this, in our opinion, the third contention coming from learned Counsel for the respondent-husband does not appear to be genuine. We, therefore, express our inability to agree with and to accept the contention coming from learned Counsel for the respondent-husband.

39. The last contention coming from the learned Counsel for the respondent-husband is that the facts and circumstances of the case do not show that there has been a wilful disobedience on the part of the respondent-husband qua the orders in question. The reliance is being placed by learned Counsel on the definition of civil contempt under Section 2(b) of the Contempt of Courts Act, 1971. Elaborating the broad contention, learned Counsel urges that, after the orders came to be pronounced by the Trial Court, the matter came to be carried before this Court by filing appeal from orders and at that time some amounts have been paid or deposited by the respondent-husband. The second limb of the argument coming from the learned Counsel is that, the respondent-husband has no income of his own, and therefore, also he is not in a position to have the compliance of the orders in question. We are not in agreement with learned Counsel on any of the two aspects as cited above. It is true that the orders of the Trial Court came to be challenged before this Court by filing the Appeal from Orders and at that time some amounts have been paid or deposited by the respondent-husband. But later on the orders in question have not been complied with and the maintenance pendente lite being accrued from month-to-month has not been paid nor deposited. The first limb of the argument, therefore, coming from learned Counsel for the respondent-husband cannot be accepted by us.

40. So far as the inability on the part of the respondent-husband to make the payment of the amounts for the wife and the minor daughter on the ground of his extremely humble financial position is concerned, we understand that the said stand has been negatived both under the orders of the Trial Court and under the orders of the learned Single Judge. It should not be overlooked that, the Appeal from Order filed by the respondent-husband came to be dismissed, while the Appeal from Order filed by the petitioner-wife came to be allowed in part and there has been an upward modification in the amounts both qua the petitioner-wife and minor daughter. Learned Single Judge has observed everything which was necessary in this respect at para-8 of the judgment. Learned Single Judge was pleased to observe while agreeing with the finding of fact rendered by the Trial Court that, the respondent-husband resides with his parents and brother at Ghatkopar in Mumbai and is running a family business. This finding of fact arrived at by the learned trial Judge and confirmed in the appellate proceeding by the learned Single Judge would go to show that the contention coming from the respondent-husband through the learned Counsel, regarding his humble economic position which puts him out of the contempt criteria cannot be accepted by us.

41. Learned Counsel Mr. Gupta for the respondent-husband has canvassed with great emphasis the say of the Supreme Court in Jiwani Kumari Parekh v. Satyabrata Chakravorty, Managing Director and Chief Executive of the West Bengal Handicraft Development Corporation Ltd., AIR 1991 SC 326. The Supreme Court decision makes it clear that before a party can be committed for contempt, there must be a wilful or deliberate disobedience of the orders of the Court. It has been noticed that, in that case before the Supreme Court the respondent could not comply with the directions due to various Court proceedings. It is, therefore, said that it cannot be held that the respondent had committed wilful or deliberate disobedience of the orders of the Supreme Court. Here the position is entirely different and leaves no scope for coming to such a conclusion. This contention also, therefore, in our opinion, is devoid of merits.

42. Learned Counsel Mr. Gupta for the respondent-husband, placing reliance upon the provisions contained in Section 13 of the Contempt of Courts Act, 1971, urged that, no sentence could be imposed upon the respondent-husband unless this Court is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.

43. We have examined this contention coming from the learned Counsel for the respondent-husband in light of the facts and circumstances under which we are deciding this contempt proceedings. Despite the orders of this Court, the respondent-husband has not cared to pay the maintenance pendente lite, and is before us raising the technical contentions and as a last resort, his inability to pay the amount in question on the basis of his feeble financial position. Needless it is to be emphasised that his contention regarding his feeble financial position has not been accepted by this Court, but on the contrary, there has been an upward modification in the maintenance amount, both for the wife and the daughter. The non-payment of the amount in question, in our opinion, not only amounts to the contempt but the contempt in our opinion is of such a nature, that it substantially interferes with the due course of justice. Thus, it appears to us that the reliance being placed by learned Counsel Mr. Gupta on the provisions contained in Section 13 of the Contempt of Courts Act, 1971, is wholly unjustifiable.

44. The conclusion, therefore, is that, the petitioner-wife has been able to prove civil contempt committed by respondent-husband as defined under Section 2(b) of the Contempt of Courts Act, 1971. We, therefore, convict the respondent-husband for the said contempt.

45. Looking to the facts and circumstances of the case, we sentence the respondent-husband to simple imprisonment for a period of two months and to a fine of Rs. 2,000/-; in default to a further civil imprisonment for a period of one week.

46. Anyhow, with a view to furnish the last opportunity to the respondent-husband, we say that this part of the orders awarding sentence to the respondent-husband shall stand in abeyance for a period of two months hereof, during which, it shall be open for the respondent-husband to pay or deposit before the Trial Court the amount in question with a view to purge of the contempt. If this is done, it shall be open for the respondent-husband to come before this Court and to pray for the deletion of these orders imposing sentence upon him. Taking a more liberal and lenient view, we also say that, if a substantial compliance with the orders in question is made by the respondent-husband during this period, then also he will be at the liberty to come before this Court and to say on affidavit that; there has been a substantial compliance with the orders in question and that he would fulfil his obligation to purge out the contempt in a near future. If such a say comes from the respondent-husband upon an affidavit coupled with the undertaking, his request for some time to purge the contempt shall be considered. Otherwise the Registry is directed to issue a non-bailable warrant against the respondent-husband after a period of two months.

47. Rule is made absolute accordingly, with no order as to costs.

ORAL ORDER :

48. After the pronouncement of these orders learned Counsel Mr. Gupta for respondent-husband urges that the execution and implementation of these orders of ours should be stayed, so as to enable the respondent-husband to approach the higher Forum and to obtain appropriate orders. This question is being opposed by learned Counsel Mr. Shah, who appears for the petitioner-wife.

We must point out that, we have given eight weeks' time for the compliance of the orders under question. We, therefore, do not find a justifiable reason for acceding the request coming from learned Counsel Mr. Gupta. Same is accordingly rejected.