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Suryaa.saravanan (other)     26 April 2014

Domestic violence

My Dear Expert

Execution petition file by wife in maintenance, write now i am unemployed and already i given Rs. 30000 to wife.

but right now i dont have money and i don't have any property.

 

i found one Gujarat High Court Judgment can this judgment help me.

 

please tell me.

 

MCA/1124/2011 1/9 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

MISC.CIVIL APPLICATION - FOR CONTEMPT No. 1124 of 2011

========================================================= POOJA ABHISHEK GOYAL NEE POOJA ASHOK GUPTA - Applicant(s) Versus ABHISHEK ASHWINI GOYAL & 3 - Opponent(s) ========================================================= Appearance : MR BOMI H SETHNA for Applicant(s) : 1, NOTICE SERVED for Opponent(s) : 1, MR MB GANDHI for Opponent(s) : 1, MR SUNIL M AGRAWAL for Opponent(s) : 1, MR CHINMAY M GANDHI for Opponent(s) : 1, MR YN RAVANI for Opponent(s) : 2, NOTICE SERVED BY DS for Opponent(s) : 3, MR PM DAVE for Opponent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI

and

HONOURABLE MR.JUSTICE C.L. SONI

Date : 30/04/2012 

ORAL ORDER 

(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. This contempt petition has been filed by the wife of the respondent. The allegation of the contempt petition mainly pertain to the non payment of the maintenance and other amounts of rent the respondent husband is required to pay under order of this Court as confirmed by the Supreme Court, though according to wife, he has sufficient means to do so. 

2. In response to the notice issued by this Court, the respondent appeared in person. Both sides have 

MCA/1124/2011 2/9 ORDER

filed the reply and produced documents on record. We had also made an attempt to bring further material on record for which orders were issued. 

3. Briefly stated, the facts are that after a brief cohabitation, the wife and husband had serious matrimonial disputes because of which they could not live together. Proceedings have been instituted before various courts arising out of such matrimonial disputes. In particular, the applicant wife had filed Special Criminal Application No. 2429/2009, 2430/2009 and 278/2010 before the High Court. All three petitions came to be disposed of by common judgment dated 22.10.2010 by a Single Judge of this Court. Operative portion of the order reads as under: 

“8.0 In the result, all the petitions are 

DISPOSED of  with the following directions:

(1)  The order of the learned Presiding Officer, 

Fact Track Court No.2, Ahmedabad(Rural), 

Mirzapur, dated 25.09.2009, passed in Criminal 

Appeal No.25 of 2009, is QUASHED, order of the 

Magistrate dated 22.05.2009 is restored with the 

MODIFICATION that AMOUNTS PAYABLE thereunder 

shall be from the date of the application i.e. 

21.03.2009.

(2)  Under the said order passed by the learned 

Magistrate under the provisions of Domestic 

Violence Act, 2005, the wife is entitled to 

receive Rs.25,000/- per month towards interim 

MCA/1124/2011 3/9 ORDER

maintenance and Rs.15,000/- towards rent, for 

suitable accommodation.

(3)  The wife, however, shall receive rent, ONLY 

IF, she resides separately in  RENTED PREMISES. 

For this purpose, the husband shall deposit a 

sum of Rs.30,000/-, before the learned 

Magistrate, towards advance rent for two months. 

If the wife produces rent receipt of a 

particular month along with her affidavit, the 

amount of such rent up to a maximum of 

Rs.15,000/- shall be released in her favour, 

upon which the husband shall again deposit 

alternate amount to restore the balance of 

Rs.30,000/- before the learned Magistrate so 

that, at all times, the amount towards advance 

rent for two months shall be lying with the 

learned Magistrate. However, the wife shall NOT 

be entitled to RECEIVE any amount of rent for the 

period, during which she stayed with her parents 

or not in rented premises.

(4) In view of the above provisions for 

interim maintenance and rent, under the 

proceedings in Protection of Women from Domestic 

Violence Act, 2005, further ENHANCEMENT is NOT 

NECESSARY in the proceedings under Section 125 of 

the Code of Criminal Procedure.

(5)  The amount received by the wife, under the 

interim order passed by this Court in the 

proceedings under the Protection of Women from 

Domestic Violence Act, 2005, shall be ADJUSTED 

against the husband's LIABILITY to pay arrears, 

MCA/1124/2011 4/9 ORDER

as per this order.

(6)  The learned Magistrate shall endeavor to 

dispose of the pending proceedings EXPEDITIOUSLY 

and shall pass final order, unmindful of any 

observation made in this order. Application for 

maintenance under Section 125 of the Code of 

Criminal Procedure shall be decided, THEREAFTER.” 4. The husband challenged such order before the apex court. His appeal, however, came to be dismissed by an order dated 7.2.2011. Order of the learned Single Judge dated 22.10.2010 thus achieved finality. Under such order, the respondent husband had to pay sizable  amounts towards maintenance for wife. The husband did not pay such amounts regularly. Thereupon, the wife filed this contempt petition alleging inter alia that the respondent husband had sufficient means to carry out the directions, he having failed to do so, he has committed the contempt of the Courts' orders. 

5. Several orders came to be passed in these proceedings. On 6.7.2011, Division Bench of this Court noted the statement of learned advocate Mr. Gandhi who was previously appearing appearing for the husband, that an amount of Rs.1,00,000.00 shall be deposited on or before 8.7.2011 and that the respondent shall deposit further amount of Rs.1 lac on or before 25.7.2011. It is not in dispute that such amounts were duly deposited. 

MCA/1124/2011 5/9 ORDER

6. On 25.8.2011, Division Bench of this Court recorded that the respondent had already deposited sum of Rs.2,00,000.00 and that he was ready to deposit another sum of Rs.80,000.00 on that day and further amount of Rs.1,20,000.00 within the time as may be permitted by the Court. The Division Bench recorded as under:

“1. Mr.Gandhi, learned counsel for the petitioner  under the instruction of his client states that  the petitioner has already deposited the amount  of Rs.2,00,000 and is further ready to deposit  the amount of Rs.80,000 today and the amount of  Rs.1,20,000 within the time which may be granted  by the Court towards the arrears of maintenance.  He   further   submitted   that   the   petitioner   is  desirous to pay the regular maintenance and also  the arrears of maintenance every month by paying  total   Rs.50,000   every   month   out   of   which,  Rs.25,000   may   be   adjusted   towards   regular  maintenance and Rs.25,000 may be adjusted towards  arrears of maintenance.” 7. On 9.12.2011, the Court recorded that the respondent had handed over cheque of Rs.2,00,000.00 in favour of the applicant. It is not in dispute that such dheque was released on presentation by the wife. 

8. In addition to the above payment, no further payment has been made to the wife by the husband 

MCA/1124/2011 6/9 ORDER

during the pendency of these proceedings. It is not in dispute that the husband has fallen in arrears and substantial recurring amount of maintenance and rent have mounted. Case of the wife is that the husband being highly qualified engineer from IIT and also having degree from foreign university, has sufficient means or at any rate ability to raise sufficient means to pay the arrears. Case of the husband is that he has been jobless because of the multiple proceedings instituted by the wife for which he has to run before different courts at different places on numerous occasions. He is, therefore, unable to do any job. It is also the case of the respondent husband that there is no  other means such as past saving or immovable property from which he can raise any funds for such payments. In short, stand of the respondent husband is that the non-compliance of the directions of the Court is not willful. 

9. We have heard the learned senior counsel Shri PC Kavina for the applicant wife and the respondent husband, in person. We have also made attempt to see that as much recovery as possible can be made in favour of the applicant wife. It was for this reason that successive benches recorded some payments coming forth from the husband during the pendency of these proceedings. We had also at the instance of the applicant wife, tried to ascertain whether the respondent husband has any further investment, 

MCA/1124/2011 7/9 ORDER

savings or properties which he has not disclosed to the Court. We had, therefore, summoned the Branch Manager of HDFC Bank, Bank of Baroda and the Axis Bank to provide us information about the bank account details of the respondent, of the account numbers which were supplied by the applicant wife. Such officers were kind enough to supply details for our perusal. 

10. From such exercise undertaken by us, we have come to the conclusion that at least on record, presently, the respondent husband does not have any investments, savings or immovable properties from which, in compliance of the orders passed by this Court, recovery can be made. In contempt proceedings, we would confine our inquiry as to whether the respondent is willfully disregarding or flouting an order, direction or the writ of this court or any other court. When the material on record which shows that the non compliance of the order is not willful, it would not be appropriate on our part to haul up the respondent in contempt proceedings. From the material on record, we notice that the respondent is presently not employed in any organization. If he is doing any private work, we do not have any specific or concrete information with respect to the same. When the bank accounts, details of which were given either by him or by the wife do not reflect sufficient funds to comply with the directions issued, and when there is nothing  on 

MCA/1124/2011 8/9 ORDER

record to suggest that he owns sizable immovable properties  from which he can raise any funds for satisfying the court's order. We do not think he should be punished for contempt.

11. As noted above, in contempt jurisdiction, our primary inquiry would be whether the respondent is willfully flouting or disregarding any writ order or direction  of a court. 

12. This is however not to suggest that the applicant has no right to seek execution of the maintenance orders by pursuing the remedies under the law. This is also not to suggest that if there is any further material that  in such execution proceedings, the court comes upon, the respondent cannot be in such proceedings compelled to pay maintenance to the wife as per this Court's order. Our observations and conclusions are based only on what we could gather from the material placed before us for our consideration and with a special focus only on the question whether the respondent has committed contempt or not. 

13. At this stage, the respondent pointed out that under order dated 6.7.2011, he has surrendered his passport before the Registry of this Court. He requested that such passport may be returned to him. He however stated that he is not likely to travel abroad shortly. On the other hand, learned counsel 

MCA/1124/2011 9/9 ORDER

for the applicant submitted that to enable the applicant to pursue further remedies, such release of passport be delayed for a period of two months. Registry shall return the passport of the respondent, however, on a condition that he shall not travel abroad for a period of two months from today without the permission of the Court. 

14. Under the circumstances, this contempt petition is closed leaving it open to the applicant wife to pursue such remedies as may be available   for recovery of maintenance and other amounts. The competent court, if and when such proceedings are instituted by the applicant, shall decide the same on the basis of material that may be brought on record. 

14. Subject to above observations, contempt petition is disposed of. Notice is discharged. 

(Akil Kureshi,J.)

(C.L.Soni,J.)

an vyas



Learning

 1 Replies

Tajobsindia (Senior Partner )     26 April 2014

1.    Save this Judgment of the Hon’ble Court for later (persuasive) use.

2.    Right now reply on record to EP of wife and during arguments offer self to undergo Court Commissioner scrutiny willingly to ascertain plead facts – no income / no property etc.

3.    Let the Court Commissioner report be placed as material records in Execution proceedings.

4.    Let the Order from Execution Court announced.

5.    Then if adverse you may challenge the same with material facts (para 3) in Appellate Court.

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