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2012 DIGILAW 443 (KAR)

M. K. Premalata @ Lalita v. Gangadhar

2012-05-30

K.L.MANJUNATH, RAVI MALIMATH

body2012
Judgment Ravi Malimath, J. 1. The marriage between the complainant and the accused was solemnized on 8.05.2004 at Hubli as per Hindu rites and customs. They led a married life thereafter. The accused, alleging that the complainant is having an adamant nature and quarrelling with him, filed petition under Section 13(1) (ia) and (ib) of the Hindu Marriage Act [for short ‘the Act’], seeking for divorce and dissolution of marriage in M.C. No. 50/2007 before the First Additional Civil Judge (Sr.Dn), Hubli. By the order dated 06.01.2010, the petition was allowed and the marriage between the complainant and the accused was annulled by the decree of divorce. 2. Aggrieved by the same, the complainant filed M.F.A. No. 20561/2010 before the High Court of Karnataka, Circuit Bench, Dharwad. Misc. Cvl. No.101378/2010 was also filed by her seeking stay of the order annulling the marriage. By the order dated 22.02.2010, a stay as sought for in the Misc. Cvl. was granted. The operation and execution of the impugned judgment and decree dated 06.01.2010 passed in M.C. No.50/2007 by the First Additional Civil Judge (Sr.Dn)., Hubli, was stayed. 3. Notice of the interim order as well as the main appeal was served on the accused. He entered appearance through his counsel in the said MFA on 26.03.2010. During the pendency of the appeal, he married for the second time one Ms. Amrutha H.B. on 06.03.2011. The marriage was registered on 11.07.2011. On these facts, the complainant has filed the present complaint on the ground that there has been a willful disobedience of the interim order granted by this Court and hence, the accused be punished accordingly. 5. Inspite of service of notice of the petition of contempt, no objections have been filed by the accused. 6. The accused was heard before framing the charges. Charge was framed against the accused of having willfully disobeyed the interim order of this Court. He pleaded not guilty and sought to be tried. The case was set down for trial. Evidence of the complainant was recorded and she was cross-examined. No evidence was let-in by the accused. 7. We have heard the learned counsels and examined the records. 8. By the order dated 22.02.2010, the operation and execution of the impugned judgment and decree dissolving the marriage of the complainant with the accused was stayed. The stay granted by this Court was communicated to the accused. No evidence was let-in by the accused. 7. We have heard the learned counsels and examined the records. 8. By the order dated 22.02.2010, the operation and execution of the impugned judgment and decree dissolving the marriage of the complainant with the accused was stayed. The stay granted by this Court was communicated to the accused. He entered appearance in the said MFA through his counsel on 26.3.2010. He was thus aware of the stay granted of the judgment and decree dissolving the marriage. Notwithstanding the pendency of the interim order, he married another woman on 06.03.2011, which was registered on 11.07.2011. The copy of the Certificate of Registration of Hindu Marriage has been marked vide Annexure ‘B’ to the petition. 9. In the course of the evidence of the complainant, she has narrated the facts that have occurred. She has stated that the accused married one Ms. Amrutha H.B., daughter of one Hanumanth. Ex.P.1 was marked which is the Marriage Certificate issued by the Registrar of Marriage at Hubli. The copy of the interim order granted by this Court in MFA No. 20561/2010 [MC] was marked as Ex. P-2, as well as the order passed by the court below dissolving the marriage in M.C. No.50/2007 as Annexure ‘A’ to the petition. 10. When the accused was cross-examined, the only question that was asked to the complainant is that the contempt was filed for the sole purpose of harassing the accused and accused is not married for the second time. The entire cross-examination of the complainant is as follows:- “The contempt petition has not been filed for the sole purpose of harassing the accused. It is false to suggest that he is not married for the second time.” As could be seen, there is no worthwhile cross-examination to disbelieve the evidence of the complainant/wife. No evidence was let-in by the accused. 11. Learned Counsel for the accused placed reliance on the judgment of the Calcutta High Court in the case of SM. BABY KAR ROY Vs. RAM RATI DEVI AND ANOTHER reported in 1975 Crl.L.J. 836 to contend that until the second marriage is proved, there cannot be a charge with reference to the accused having contracted a second marriage and in the instant case, the same has not been proved. 12. Reliance is also on the judgment of the Honorable Supreme Court in the case of GOPAL LAL VS. 12. Reliance is also on the judgment of the Honorable Supreme Court in the case of GOPAL LAL VS. STATE OF RAJASTHAN reported in AIR 1979 (SC) 713 , to contend that the ceremonies of the marriage require to be established in order to prove that the second marriage has taken place and it is only then that the offence of bigamy could be proved. 13. He further places reliance on the judgment of Honorable Supreme Court in the case of KANWAL RAM Vs. HIMACHAL PRADESH ADMINISTRATION reported in AIR 1966 (SC) 614 to contend that the evidence should be such, that the ceremonies of the second marriage have been performed and in the absence of the same, no amount of evidence can justify conviction of an offence of bigamy. He, therefore, contends that there is no proof of second marriage and hence, the complainant has failed to establish the second marriage of the accused with the said Ms. Amrutha. 14. He contends that the offence sought to be made out against the accused herein is akin to the offence of bigamy and hence, the judgments relied upon by him are applicable to the facts of this case. On a failure to establish the second marriage no offence of bigamy has been made out. 15. We are unable to accept the contentions of the learned counsel for the accused. The accused is not being tried for bigamy. He is being tried for an offence of disobeying a court order. The disobedience of the court order is the violation of the interim order granted by this Court. The judgments relied upon pertain to an offence of bigamy namely Section 494 of the Indian Penal Code. The proof required to prove an offence under Section 494 IPC is different and so is the punishment. The accused is being tried for a civil contempt of court and not for bigamy. The said fact has been established in terms of the Certificate of Registration of Hindu Marriage produced and marked as Ex.P-1. It is a public document. There is no denial by the accused of the Marriage Certificate. Therefore, to contend that the second marriage requires to be proved notwithstanding the existence of public document vide Ex.P1 cannot be accepted. 16. The said fact has been established in terms of the Certificate of Registration of Hindu Marriage produced and marked as Ex.P-1. It is a public document. There is no denial by the accused of the Marriage Certificate. Therefore, to contend that the second marriage requires to be proved notwithstanding the existence of public document vide Ex.P1 cannot be accepted. 16. All the three judgments relied upon by the accused are with reference to the establishment of a proof of the second marriage in the absence of any documentation. They were all cases where there was a mere pleading that the second marriage has taken place. No material was placed nor customs or traditions were established in order to show that the second marriage had taken place. Under those circumstances, in the judgments relied upon, it was held that in order to establish the second marriage, a proof of custom or tradition requires to be established. In the instant case, it is not so. The accused therein was being tried for bigamy. In this case the accused is not being tried for bigamy but for civil contempt disobeying a court order. The proof of custom or tradition fades into insignificance in view of the registered document in terms of Ex.P-1. Hence, the judgments would not be of any aid to the accused. 17. Section 8 of the Hindu Marriage Act is with reference to the registration of marriages. It provides that for the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any of such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose. That is exactly what has happened in the case on hand. On contracting of the marriage by the accused with Ms. Amrutha, the same has been registered in terms of Section 8 of the Act. Hence, no other proof is required for the same. Furthermore, there is no denial by the accused. No objections are filed. He has not let-in evidence. There is nothing worthwhile in the cross-examination of the complainant to disbelieve her. Hence, on this ground we are unable to accept the contentions of the accused. 18. No objections have been filed to the contempt petition. Furthermore, there is no denial by the accused. No objections are filed. He has not let-in evidence. There is nothing worthwhile in the cross-examination of the complainant to disbelieve her. Hence, on this ground we are unable to accept the contentions of the accused. 18. No objections have been filed to the contempt petition. There has been no worthwhile cross-examination of the complainant in order to disbelieve her statement. The evidence of the complainant is corroborated by Ex.P1 and Ex.P2. There is nothing o disbelieve the evidence of the complainant. That having entered appearance in MFA No.20561/2010 on 26.3.2010, he has deliberately and willfully married once again almost a year thereafter. The disobedience therefore is willful and deliberate. Under the circumstances, based on the available material and evidence on record, we have no hesitation to hold that the accused has deliberately and willfully committed a civil contempt punishable under Section 12 of the Contempt of Courts Act. 19. Having entered appearance in MFA No. 20561/2010 [MC], the accused was aware that the annulment of marriage has been stayed. The interim stay was granted on 22.02.2010. The second marriage was on 06.03.2011 and registered on 11.07.2011. He entered appearance on 26.03.2010. Hence, on the date of the second marriage, the accused was well aware of the stay granted by the High Court, since he had already entered appearance through the same counsel. Under the circumstances, we are of the considered view that the interim order granted by this court has been willfully disobeyed by the accused. The accused is not a rustic man or a man who does not know the consequences of his actions. He claims to be the Principal of the Shree Sharana – Chandayya Noolayya Ambedkar College at Hubli. Being a Principal of an institution, he is very well aware of his actions. He has deliberately married again knowing fully well not only the consequences of the second marriage but also of the fact that the annulment of his first marriage has been stayed by this Court. It is further relevant to note that MFA No.20561/2010 [MC] was allowed and the order passed by the court below annulling the marriage was set aside. It is, therefore, a clear case of willful disobedience of the Court order. 20. While considering the scope of contempt, the Honorable Supreme court considered various judgments in the case of C.ELUMALAI AND OTHERS VS. It is, therefore, a clear case of willful disobedience of the Court order. 20. While considering the scope of contempt, the Honorable Supreme court considered various judgments in the case of C.ELUMALAI AND OTHERS VS. A.G. IRUDAYARAJ AND ANOTHER reported in (2009) 4 SCC 213 at para 6 as follows: “6. 56. xxxxx 57. xxxxx 60. In ASHOK PAPER KAMGAR UNION V. DHARAN GODHA [ (2003) 11 SCC 1 ] this court had an occasion to consider the concept of ‘wilful disobedience’ of an order of the Court. It was stated that ‘wilful’ means an act or omission which is done voluntarily and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. According to the Court, it signifies the act done with evil intent or with a bad motive or purpose. It was observed that the act or omission has to be judged having regard to the facts and circumstances of each case. 61. In KAPILDEO PRASAD SAH V. STATE OF BIHAR [ (1999) 7 SCC 569 :1999 SCC (L&S) 1357] it was held that for holding a person to have committed contempt, it must be shown that there was willful disobedience of the judgment or order of the court. But it was indicated that even negligence and carelessness may amount to contempt. It was further observed that issuance of notice for contempt of court and power to punish are having far-reaching consequences, and as such, they should be resorted to only when a clear case of willful disobedience of the court’s order is made out. A petitioner who complains (sic of a) breach of court’s order must allege deliberate or contumacious disobedience of the court’s order and if such allegation is proved, contempt can be said to have been made out, not otherwise. The court noted that power to punish for contempt is intended to maintain effective legal system. It is exercised to prevent perversion of the course justice. 62. In the celebrated decision of ATTORNEY GENERAL V. TIMES NEWPAPER LTD. [1974 AC 273 : (1973) 3 WLR 298: (1973) 3 ALL ER 54 (HL)]. LORD DIPLOCK STATED: (AC P.308 A) ‘………. The court noted that power to punish for contempt is intended to maintain effective legal system. It is exercised to prevent perversion of the course justice. 62. In the celebrated decision of ATTORNEY GENERAL V. TIMES NEWPAPER LTD. [1974 AC 273 : (1973) 3 WLR 298: (1973) 3 ALL ER 54 (HL)]. LORD DIPLOCK STATED: (AC P.308 A) ‘………. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity….’ 63. In ANIL RATAN SARKAR V. HIRAK GHOSH [ (2002) 4 SCC 21 ] this Court held that the Contempt of Courts Act has been introduced in the statute book for securing confidence of people in the administration of justice. If an order passed by a competent court is clear and unambiguous and not capable of more than one interpretation, disobedience or breach of such order would amount to contempt of court. There can be no laxity in such a situation because otherwise the court orders would become the subject of mockery. Misunderstanding or own understanding of the Court’s order would not be a permissible defence. 64. It was observed that power to punish a person for contempt is undoubtedly a powerful weapon in the hands of judiciary but that by itself operates as a string of caution and cannot be used unless the court is satisfied beyond doubt that the person has deliberately and intentionally violated the order of the court. The power under the Act must be exercised with utmost care and caution and sparingly in the larger interest of the society and for proper administration of justice-delivery system. Mere disobedience of an order is not enough to hold a person guilty of civil contempt. The element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act. 66. In ALL BENGAL EXCISE LICENSES’ ASSN. V. RAGHABENDRA SINGH [ (2007) 11 SCC 374 ] this court considered several cases and observed that willful and deliberate act of violation of interim order passed by a competent court would amount to contempt of court. 70. From the above decisions, it is clear that punishing a person for contempt of court is indeed a drastic step and normally such action should not be taken. 70. From the above decisions, it is clear that punishing a person for contempt of court is indeed a drastic step and normally such action should not be taken. At the same time, however, it is not only the power but the duty of the court to uphold and maintain the dignity of courts and majesty of law which may call for such extreme step. If for proper administration of justice and to ensure due compliance with the orders passed by a court, it is required to take strict view under the Act, it should not hesitate in wielding the potent weapon of contempt.” (emphasis in original) The above position was highlighted in PATEL RAJNIKANT DHULABHAI V. PATEL CHANDRAKANT DHULABHAI [(2008) 14 SCC 561: (2008) 14 SCC 561: (2008) 10 SCALE 349 )] AT SCC PP, 575-79, PARAS 56-57, 60-64, 66 & 70.” The Honorable Supreme Court in the case of T.N.GODAVARMAN THIRUMULPAD (102) THROUGH THE AMICUS CURIAE VS. ASHOK KHOT AND ANOTHER reported in (2006) 5 SCC 1 held at Paras 1 to 4 as follows:- “1. The “King is under no man, but under God and the law” – was the reply of the Chief Justice of England, Sir Edward Coke when James I once declared, “Then I am to be under the law. It is treason to affirm it” – so wrote Henry Bracton who was a Judge of the King’s Bench. 2. The words of Bracton in his treatise in Latin “quod rex non debet esse sub homine, sed sub Deo et lege” (that the King should not be under man, but under God and the law) were quoted time and time again when the Stuart Kings claimed to rule by divine right. We would like to quote and requite those words of Sir Edward Coke even at the threshold. 3. In our democratic polity under the Constitution based on the concept of “rule of law” which we have adopted and given to ourselves and which serves as an arota in the anatomy of our democratic system, THE LAW is SUPREME’. 4. Everyone, whether individually or collectively is unquestionably under the supremacy of law. Whoever he may be, however high he is, he is under the law. No matter how powerful he is and how rich he may be.” 21. The above decision are squarely applicable to this case. 4. Everyone, whether individually or collectively is unquestionably under the supremacy of law. Whoever he may be, however high he is, he is under the law. No matter how powerful he is and how rich he may be.” 21. The above decision are squarely applicable to this case. The accused has deliberately violated the order of this Court. It is deliberate violation. It is done voluntarily to do something, which the law prohibits. It is done with a bad purpose. It is done with an evil design. For the aforesaid reasons, we are of the considered view that the accused has committed a contempt of court punishable under Section 12 of the Contempt of Courts Act by the willful disobedience of the order dated 22.02.2010 passed in M.F.A. No. 20561/2010 [MC]. We hold that he is guilty as charged. We therefore hold that having committed a civil contempt of court, he is liable to be convicted for the same. “Fiat justitia ruat Caelum” means let justice be done though the heavens fall. The Legal Maxim is squarely applicable to the case on hand. On a notice being served the accused did not file his objections. He has not let-in any evidence. Inspite of granting substantial time and opportunity, his attitude has been adamant and stubborn. He continues to challenge the Rule of law. He has no remorse to the violation of the interim order. The attitude of the accused notwithstanding the opportunities given to him would clearly show his scant respect for a court of law. The punishment of the accused is just and necessary in order to ensure complete justice. A punishment should also act as a deterrent and until and unless a message is sent to the Society that violations of the Court orders, disrespect to the Rule of law and a stubborness and adamant attitude in challenging the Rule of Law would be severely dealt with, the very object of contempt of Court would stand defeated. Therefore, the Legal Maxim that even if the heavens fall justice has to be done is aptly applicable to the case on hand. Notwithstanding the fact that the Contempt Petition is punishable with imprisonment as well as fine in a fit case the Court may also impose costs. Therefore, the Legal Maxim that even if the heavens fall justice has to be done is aptly applicable to the case on hand. Notwithstanding the fact that the Contempt Petition is punishable with imprisonment as well as fine in a fit case the Court may also impose costs. The Honorable Supreme Court of India in the case of SEBASTIAN, M. HONGRAY v. UNION OF INDIA reported in AIR 1984 SC 1026 held at para-6 as follows:- “6. Civil Contempt is punishable with imprisonment as well as fine. In a given case, the Court may also penalize the party in contempt by ordering him to pay the costs of the application. (Halsbury’s Laws of England, Fourth Edition.Vol.9, para 100 at p.61) A fine can also be imposed upon the contemnor.” 22. The complainant having filed the present petition was required to come on every date of hearing in order to pursue this petition. She is a resident of Bhadravathi in Shimoga District, which is about 250 km. from Dharwad. Therefore, it will be just and reasonable if appropriate costs are also awarded in this case. Hence, we deem it just and necessary to direct the accused to pay cost in a sum of Rs. 25,000/-[Rupees Twenty-five Thousand only] to the complainant within a period of four weeks from today. ORDER REGARDING SENTENCE 23. We have heard the accused a well his counsel. They submit that a lenient view may be taken as the Court deems fit. No other submission is made. We are of the considered view that a punishment of fine alone would not be sufficient in the given facts and circumstances of the case. Keeping in mind the manner in which the interim order of this Court has been willfully disobeyed, we are of the view that a punishment of imprisonment is also necessary to be imposed. The object of contempt of court is to maintain the dignity decorum of the Court. It is to maintain the dignity and decorum of the Court. It is therefore, just and necessary to uphold the majesty of the law and the administration of justice. The rule of law, being the basic rule of governance in any civilized society, requires to be strictly adhered to. Failure to comply with the rule of law and more so, a deliberate disobedience of an order of the Court would amount to contempt of court. The rule of law, being the basic rule of governance in any civilized society, requires to be strictly adhered to. Failure to comply with the rule of law and more so, a deliberate disobedience of an order of the Court would amount to contempt of court. It is, therefore, intended that the litigant, on whom the orders are binding, comply and obey the same. Failure to do so and to willfully disobey the orders of this Court would undermine the dignity and decorum of this Court, more so, when the disobedience is deliberate. While convicting and sentencing an accused, the consequences of the action would also have to be considered by the Court. In the instant case, the material on record establishes willful disobedience of the order passed by the Court. The consequences of the disobedience are that the accused has married another woman. Consequently the life of the first wife has been ruined because of the 2nd marriage. The life of her child is also ruined. On the other hand, the woman who has married the accused on the 2nd occasion is not in a better position. The act of disobedience therefore is not just an act of disobedience of the court order simplicitor. Being a Principal of a college, he is well aware of the consequences of the disobedience by the second marriage. The disobedience has a disastrous effect on the complainant. The accused was given a number of opportunities to enable him to appropriately end the dispute at large and a number of adjournments were granted for the said purpose. Inspite of the same, he has been extremely adamant and declined to do anything in the matter. His counsel too were helpless. Under the circumstances, we are of the view that the accused requires to be punished for the maximum period as prescribed under Section 12 of the Act. It is not just a case of disobedience of the court order but the disastrous result of the disobedience. We are aware of that the Court should not be too harsh nor be too lenient in matters of contempt. However, in the facts and circumstances of this case, we have no option than to hold that the accused is liable for punishment for the maximum period prescribed. We are aware of that the Court should not be too harsh nor be too lenient in matters of contempt. However, in the facts and circumstances of this case, we have no option than to hold that the accused is liable for punishment for the maximum period prescribed. Notwithstanding the right of the complainant to initiate proceedings for bigamy and to seek other appropriate reliefs, the willful disobedience by the accused herein will attract nothing less than the maximum punishment as prescribed under Section 12 of the Act. 24. Under these circumstances, we are convinced that the Accused-Gangadhar S/o. Krishnappa Gokak, be sentenced for a period of six months simple imprisonment and shall also pay a fine of Rs. 2,000/-[Rupees Two Thousand only] within a period of one month from today and in default to further undergo a period of two months simple imprisonment. 25. At this stage, an application under Section 389 of the Criminal Procedure Code has been filed seeking to suspend the sentence. It is dated 24.05.2012 and under written as 30.05.2012. It is supported by an affidavit of the accused which has been sworn to on 24.05.2012. 26. In paragraph 2 of the said affidavit, he states that “That in view or order of conviction, I will be sent to civil prison…………”. 27. This order has been dictated in the open Court today. We fail to understand as to how a fact of this nature could have been sworn to on 24.05.2012. On being asked, the learned counsel replies that it has been prepared as an abundant caution. We are unable to understand the submission regarding “abundant caution”. On 24.05.2012, the matter was listed for the evidence of the accused. Since he did not offer to lead any evidence, his evidence was closed. The matter was heard in part and was adjourned for further arguments to 30.5.2012. Today, we have heard the learned counsels and dictated the order in the open Court. There is no question of an affidavit being sworn on 24.5.2012 stating that the order of conviction has been passed. On facts, what is narrated in the affidavit is false, untrue and mischievous. Under these circumstances, we do not find any reasons to allow the application. Accordingly, it is rejected. 28. There is no question of an affidavit being sworn on 24.5.2012 stating that the order of conviction has been passed. On facts, what is narrated in the affidavit is false, untrue and mischievous. Under these circumstances, we do not find any reasons to allow the application. Accordingly, it is rejected. 28. Hence, the following order:- (i) The petition is allowed; (ii) The accused is convicted for the offence punishable under Section 12 of the Contempt of Courts Act, 1971; (iii) He is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of a sum of Rs. 2,000/-[Rupees Two Thousand only] within a period of one month from today and in default to further undergo simple imprisonment for a period of two months; (iv) He is directed to pay costs in a sum of Rs. 25,000/-[Rupees Twenty-five Thousand only] to the complainant within a period of four weeks from today.