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1991 DIGILAW 323 (CAL)

Simul Biswas v. Niranjan Biswas

1991-06-28

MANABENDRA NATH ROY, SUDHANSHU SEKHAR GANGULY

body1991
JUDGMENT Sudhansu Sekhar Ganguly, J. 1. This is an application for Contempt of Court. It appears that the opposite party/husband filed a matrimonial suit being Mat. suit No.1 of 1987 against his wife, the present petitioner for a decree of annulment of the marriage. The suit was decreed on 31.5.90 and the opposite party was granted a decree for annulment of his marriage with the petitioner. The petitioner, so it appears filed an appeal before this Court on 29.8.90. It was registered as FAT 2488 of 1990. Thereafter on 7.12.90 on an application from the side of the petitioner with allegation that the opposite party was going to marry another lady on 13.12.90 and interim order was passed as prayed for. In spite of that, so it is allowed, the opposite party married that lady on 13.12.90. Hence, this contempt application. 2. It is urged from the side of the petitioner that the opposite party deliberately violated the order of this Court by marrying the said lady on 13.12.90 being fully aware the order of this Court prohibiting him to do that. The allegation is denied by the opposite party. 3. From the records of the case and the affidavits put in by the parties it appears that at the instance of the petitioner special messenger was entrusted with serving the copy, of the order passed by the Court on 7.12.90 along with a copy of the application for injunction on the present opposite party. The said special messenger failed to contact the opposite party and he reported accordingly on 12.1.90. On that very day another attempt was made from the side of the petitioner to have the order and the copy of the application served on the opposite party. It appears that this copy of the order and the application were received by one Sankari Saha on that very day. It also appears that a copy of the order of this Court was sent by the learned Advocate of the petitioner to the opposite party under registered post with acknowledgment due. The letter containing the notice was received by the opposite party on 12.12.90. The question is if from those materials it can be held that the opposite party was aware of the order passed by this Court and he deliberately violated the same. 4. The letter containing the notice was received by the opposite party on 12.12.90. The question is if from those materials it can be held that the opposite party was aware of the order passed by this Court and he deliberately violated the same. 4. It may be stated here and now that the case of the opposite party is that he married the lady, namely, one Radha Bhadra on 6.6.90 and that the marriage was registered on 30.6.90 a copy of the Marriage Registrar has been admitted with the opposite party's affidavit-in-opposition. The opposite party's further case is that to please the society in general they had to arrange a formal marriage and reception on 13.12.90 and 15.12.90 respectively. The opposite party admits receipt of the learned Advocate's letter on 12.12.90 but it is contended on his behalf that since the letter did not contain a copy of the application for injunction the opposite party could not apprehend what was the purport of the order passed by this Court. 5. From the copy of the Marriage Registrar it appears that the petitioner married the aforementioned Rekha Bhadra on 6.6.90. It is urged from the side of the petitioner that this was done within the prohibited period since the suit was decreed on 31.5.90. Be that as it may, it becomes difficult to fasten the opposite party with the knowledge of the contents of the order of injunction actually passed by this Court. As stated above all efforts to have a copy of the order and the copy of the application for injunction served on the opposite party personally failed. Ultimately on 12.12.90 the copies were served on one Sankari Saha. The papers mayor may not have reached the opposite party but surely here there is a scope for benefit of doubt. Since the Rule was to serve the order directly on the person meant to be bound by it, service on another person is not considered as sufficient in a contempt proceeding. It will not be possible or prudent to hold from the service on the said Sankari Saha the order/and the copy of the application must be reached the opposite party. It will not be possible or prudent to hold from the service on the said Sankari Saha the order/and the copy of the application must be reached the opposite party. As for the letter of the learned Advocate sent to the opposite party under registered post with acknowledgment due and admittedly received by him on 12.12.90, it is urged from the side of the opposite party that from this letter, annexure B to the application for contempt of Court, was quite vague and that it was not possible for the opposite party to understand from it what was the purport of the interim order of injunction prayed from the side of the petitioner. The learned Advocate, so it appears, sent the opposite party the message, exact words of this as per order dated 7.12.90 are the following: "The above matter is fixed for hearing on 14.12.90 as a contested application and further been placed to grant an interim order of injunction as prayed for." It was not clearly mentioned in the letter what the interim order of in junction was about and what did it prohibit him to do. In that view of the matter it is difficult to meet the opposite party's case that it could not understand from the letter of the learned Advocate as to what was the order of injunction. 6. On a consideration of the materials on record it becomes quite difficult, therefore, to hold it for certain that the opposite party was aware of the purport of the order of injunction passed by this Court and yet he violated it deliberately by marrying the lady on 12.12.90. In that view of the matter it becomes difficult to hold that the opposite party is being guilty of contempt. The present application, therefore, shall have to be dismissed. 7. In that view or the matter what has been stated above the application for contempt of court is hereby rejected. Manabendra Nath Roy, J.: I agree. Application dismissed.