VRINDA ANAND v. ARUN ANAND — 1986 DIGILAW 309 (DEL)

G. C. JAIN, J. ( 1 ) THIS is a petition under Ss. 10 and 12 of the Contempt of Courts Act, 1940 (or 70 of 1971) (hereinafter to be referred as the Act ). ( 2 ) THERE is no dispute about the facts. Mrs.- Vrinda Anand, the petitioner, and Dr. (Maj.) Arun Anand, the respondent, were married on Mar. 4, 1981. A son was born out of this wedlock on Apr. 16,1983. On Sept. 26, 1984 the wife filed a petition under S. 13 of the Hindu Marriage Act for the dissolution of the marriage by a decree of divorce. Along with this petition she filed an application under S. 24 of the Act for grant of expenses of the proceedings and maintenance pendente lite, for herself and her minor child. By an order dt. Feb. 2, 1985 learned Additional District Judge, trying that petition, directed the husband to pay a sum of Rs. 3000. 00 as litigation expenses and Rs. 1000. 00 per month with effect from Sept. 27, 1984 as maintenance pendente lite. ( 3 ) THE husband failed to comply with this order. Holding that non-compliance was ex facie contumacious, his defence was struck off on Feb. 22, 1985. On Apr, 8, 1985 the wife moved an application for taking out contempt proceedings under the contempt of Courts Act, 1971 against the husband for contumaciously disobeying the order granting maintenance. Holding that the defence of the husband had already been struck off and that by virtue of the provisions contained in S. 28 of the Army Act, arms, clothes, equipment and other necessities of any army personnel, subject to the Army Act, could not be attached and also observing that the Court had already written to the Secretary, Defence, Chief of Army Staff and Adjutant General to protect the interest of the wife, the application was rejected. The wife also resorted to execution proceedings, which are pending, but with no success. The marriage was dissolved by a decree of divorce under S. 13 (1 ) (a) by order dt. Aug. 19, 1985. ( 4 ) ON July 29, 1986 the wife filed the present application. It was averred that the husband had wilfully and contumaciously disobeyed the order dt. Feb. 2, 1985 granting maintenance. Learned Additional Distt. Judge erred in rejecting her application for initiating contempt proceedings. Aug. 19, 1985. ( 4 ) ON July 29, 1986 the wife filed the present application. It was averred that the husband had wilfully and contumaciously disobeyed the order dt. Feb. 2, 1985 granting maintenance. Learned Additional Distt. Judge erred in rejecting her application for initiating contempt proceedings. The said order was illegal and liable to be quashed. ( 5 ) THE respondent resisted the application. It was pleaded that there was no wilful disobedience of the order granting maintenance. Non-compliance was because he had no money. He also raised the pleas that the petition did not disclose any cause of action; it was barred by the provisions of the Army Act: the defence of the respondent had already been struck off and he could not be inflicted double punishment and that the learned Additional District Judge had already sent the order in question to the Army authorities for taking necessary action and therefore no further action could be taken. ( 6 ) "civil Contempt of Court" as defined in S. 2 (b) of the Act 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". Admittedly the order dt. Feb. 2, 1985 directing the respondent to pay litigation expenses and,maintenance pendente lite has not been complied with. ( 7 ) wilful means deliberately, intentionally, self willed. The respondent is admittedly a Major in the Army. He is getting more than Rs. 3000. 00 per month as salary. He has not paid a penny in compliance of the order. He has not. even expressed his willingness to pay the said amount in small instalments. In the facts and circumstances of the case there cannot be any doubt that the non-compliance of the said order was wilful. Thus there was wilful disobedience of the order dt. Feb. 2,1985 made by the learned Additional District Judge by the respondent. ( 8 ) SECTION 13 of the the Act reads : "notwithstanding anything contained in any law for the time being in force no Court shall impose a sentence under this Act for a contempt of Court unless it 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". ( 9 ) IT is clear from the above provisions that even when a contempt is committed no sentence shall be imposed unless it is of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice. The power to punish, for contempt must be sparingly used and with circumspection. ( 10 ) WHAT is the nature of contempt committed by the respondent ? The respondent has disobeyed the order directing him to pay litigation expenses and maintenance pendente lite. Such an order for all practical purposes was a money decree. It was executable as such. The petitioner had, admittedly, moved an application for execution of that order which was pending. Wilful non-compliance of a decree or order which is executable in accordance with law, ordinarily, would not visit punishment under the Act . For example, in a case where a decree for money has been passed against a judgment-debtor who owns a house worth ten times the decretal amount. That house being residential is not subject to attachment and sale in execution of the money decree. The judgment-debtor could easily pay the decretal amount by creating a mortgage or selling the said house or a portion thereof. He does not do so. Can he be punished under the Act ? Reply must be in the negative. To punish him would amount to circumventing the provisions contained in S. 60 of Civil P. C. which exempt the attachment of a residential house. Similarly, if a decree for debt is made against an Army Officer, whose arms, clothes, equipments, salary and allowances are exempt from attachment under S. 28 of the Army Act and who is not liable to be arrested under S. 29, he cannot be punished under the Act for non-compliance of the decree against him. To do so would deprive him of the benefits conferred under the Army Act. This could not be done. The contempt committed by the respondent, therefore, was not of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice. The respondent is simply enjoying the benefits conferred on an Army Officer under the Army Act. ( 11 ) MOREOVER the respondent has already been punished for this act by the order striking off his defence. The respondent is simply enjoying the benefits conferred on an Army Officer under the Army Act. ( 11 ) MOREOVER the respondent has already been punished for this act by the order striking off his defence. I, for the reasons to be recorded in the later part of this judgment, intend to issue directions to the Union of India for payment of the maintenance amount to the petitioner. Taking all these reasons in account, in my judgment, it is not a fit case for punishingthe respondent under the Act . I hold accordingly. ( 12 ) LEARNED counsel for the respondent had contended that the petition was barred by limitation and was not maintainable in the absence of permission from the Advocate- General. In the view I have taken above I need not go into these questions. ( 13 ) THE petitione in her application had prayed that the application may be treated as petition under Art. 227 of the Constitution if there was any technical objection. During the course of arguments a request was made to issue directions to the Union of India for the payment of this amount by deducting it from the salary of the respondent under the provisions of the Army Act. Notice was issued to the Union of India through the Standing Government Counsel to show cause why directions be not issued to it to deduct the amount of maintenance granted to the petitioner from the salary and allowances of the respondent under S. 90 (i) of the Army Act. In response to this notice Major V. N. Mandloi has filed an affidavit dt. Apr. 7, 1986. Along with the affidavit he filed the copy of the Government Order dt. Oct. 9, 1985 conveying the sanction of the President to the recovery of Rs. 1000. 00 per month commencing from 1st Nov. , 1985 from the pay and allowances of the respondent for the maintenance of his wife as decreed by the Additional Distt. Judge, Delhi. It was, however, explained in the affidavit that subsequently it was brought to the notice that marriage between the parties had since been dissolved from a date prior to the issue of the Government Orders. The payment of maintenance under S. 90 of the Army Act was restricted to the wife or legitimate or illegitimate child of the army officer. It was, however, explained in the affidavit that subsequently it was brought to the notice that marriage between the parties had since been dissolved from a date prior to the issue of the Government Orders. The payment of maintenance under S. 90 of the Army Act was restricted to the wife or legitimate or illegitimate child of the army officer. It could not be given to a divorced wife and therefore the said order could not be given effect to. ( 14 ) IS the action of the authorities concerned in not complying the order of the Government under S. 90 (i) of the Army Act justified ? For this purpose, provisions of S. 90 of that Act require examination. These read : The following penal deductions may be made from the pay and allowances of the officer, that is to say " (A) to (h ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (i) Any sum required by order of the Central Government to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards costs of any relief given by the said Government to the said wife or child. " ( 15 ) THESE provisions provide for the deduction from the pay and allowances of an army officer any sum required by the order of the Central Government to be paid for the maintenance of his wife or legitimate or illegitimate child. ( 16 ) LEARNED Additional District Judge directed the respondent (an army officer) to pay Rs. 3000. 00 towards litigation charges and a sum of Rs. 1000. 00 per month for the maintenance of his wife and child from Sept. 27, 1984 pendente lite, i. e. till the disposal of the application which was disposed on Aug. 19,1985. Litigation expenses were not covered by S. 90 (i ). The maintenance amount was, however, fully covered. During the period Sept. 27,1984 to Aug. 19, 1985 the petitioner was the wife. She ceased to be the wife only on Aug. 19, 1985 when the decree for divorce was passed. 19,1985. Litigation expenses were not covered by S. 90 (i ). The maintenance amount was, however, fully covered. During the period Sept. 27,1984 to Aug. 19, 1985 the petitioner was the wife. She ceased to be the wife only on Aug. 19, 1985 when the decree for divorce was passed. The order of the learned Additional District Judge was therefore for maintenance of the wife and not a divorced wife. Besides this, amount was also towards the maintenance of the child. Thus the order made by the Central Government on Oct. 9, 1985 was a valid order and the authorities were bound to comply the same. The action of the authorities in not complying the order of the Government was illegal. ( 17 ) IN the affidavit of Major Mandloi it was also stated that "it is clarified that orders for maintenance cannot be issued from a retrospective date and the orders issued are always prospective. " There appears to be no merit in this contention. Section 90 (i) uses, the word maintenance. In the absence of anything to the contrary it would include past as well as future maintenance. In any case the order of the Govt. was dt. Oct. 9, 1985 a date after the date of the decree for divorce. This order provided for recovery of Rs. 1000. 00 per month commencing from 1st Nov. , 1985. The order of the Additional Distt. Judge shows that he directed payment of maintenance from a past date i. e. Sept. 27, 1984. In presence of this order of the Government the implementing authorities were absolutely in error in not giving effect to this clear and unequivocal order. There is no suggestion that this order was recalled by the Government at any time. The authorities under the circumstances were bound to comply that order. Their action in not giving effect to that order was unjustified and illegal. It is a fit case where directions must be given to the Government of India to give effect to its order dt. Oct. 9, 1985. ( 18 ) ON behalf of the respondent it was argued that Government of India was not a party to this petition. This petition was under Contempt of Courts Act and was not a writ. It was for the Central Government to decide about the deductions and no direction could be issued by this Court. Oct. 9, 1985. ( 18 ) ON behalf of the respondent it was argued that Government of India was not a party to this petition. This petition was under Contempt of Courts Act and was not a writ. It was for the Central Government to decide about the deductions and no direction could be issued by this Court. ( 19 ) I do not find any substance in these submissions. No doubt Union of India was not a party as such. But a formal notice was issued to the Union of India. It appeared through a counsel and filed its affidavit and it has been heard. In these circumstances the respondent can have no grievance in this behalf. The petition was no doubt a petition under the Contempt of Courts Act but a prayer had been made to treat it as a petition under Art. 227 of the Constitution. In any case in the facts andcircumstances of the case and for the furtherance of justice the Court could treat it as a writ petition. The order under S. 90 (i) of the Army Act has, no doubt, to be made by the Central Government. But in this case the order under S. 90 (i) has alrealy been made by the Central Government. The only illegality committed was that it was not complied with. Consequently a direction in this behalf could be issued. ( 20 ) FOR the reasons aforesaid the application for punishing the respondent under the Contempt of Courts Act is dismissed. The Union of India, however, is directed to comply the order dt. Oct. 9, 1985 and to recover a sum of Rs. 1000. 00 per month from the pay and allowances of the respondent commencing from Nov. 1, 1986 till a sum of Rs. 10,766. 00 was recovered. The amount recovered would be paid to the petitioner. ( 21 ) A copy of this order would be sent to the Secretary, Ministry of Defence, Government of India, through Mr. S. P. Sharma, Advocate who appeared on behalf of the Union of India, for compliance.