MIRA BOSE Vs. SANTOSH KUMAR BOSE

JUDGEMENT

(1.) THIS is a Rule for contempt issued by our learned brothers, R. N. Dutt and K. K. Mitra, JJ. calling upon the respondent, Santosh kumar Bose, to show cause why he should not be dealt with for contempt of Court for having violated orders dated the 23rd September, 1969 and the 25th July, 1970, passed by Shri P. K. Chanda, Judge, 3rd Bench, City Civil court, Calcutta, in Matrimonial Suit no. 66 of 1969.

(2.) THE facts leading on to the Rule are chequered but can be put in a short compass. The applicant Mira Bose was married to the respondent on the 7th july, 1965 and two sons, viz. , Tamal and prasanta, were born out of the wedlock on the 15th February, 1967 and the 11th April, 1968 respectively. The relationship between the husband and the wife unfortunately became embittered and on or about 22. 11. 68 the petitions was compelled to leave her husband's place due to alleged cruel and inhuman treatment. The children were however kept back by the respondent. The petitioner filed an application against the respondent under section 10 of the hindu Marriage Act, 1955 (Act 25 of 1955), being Matrimonial Suit No. 66 of 1969 for judicial separation, inter alia on the grounds of cruelty before the learned Judge, 3rd Bench, City Civil court, Calcutta. An application under section 24 of the Hindu Marriage Act was also filed by the wife for maintenance pendente lite and expenses of proceedings and by an order dated the 31st March, 1970, the petitioner was granted a maintenance at the rate of 125/- per month. Another application was filed thereafter by the petitioner under section 26 of Act 25 of 1955 for the interim custody of the two children left behind, on the ground of their tender age, requiring thereby their mother's care and attention. The application was opposed and ultimately on 23. 9. 69 the learned Judge passed an order directing the respondent to make over the custody of the children to the petitioner. The petitioner had filed an application dated 7. 10. 69 for directions on the respondent to deliver custody of the two children to her at an early date, at a place to be specified by the Court, and an objection thereto was filed by the respondent. The operation of the said order was however stayed to enable the respondent to prefer an appeal against the aforesaid order and the same being F. M. A. 3505 of 1969, was dismissed on 1. 12. 69 by Santosh Kumar chakraborty and S. K. Dutta, JJ. The application for leave to appeal there from to the Supreme Court, being Application no. 9 of 1970 (S. C. A. T. 3959 of 1969), was refused on the 12th March, 1970 and the special leave application there from being S. L. P. 1287 of 1970, was also refused by the Supreme Court on 21. 7. 1970. The aforesaid application dated 7. 10. 1969 and the objection thereto, which could not be disposed of in view of the pending appeal in the High Court and the subsequent leave applications. After the disposal of the said matters, the petition and the respondent's objection thereto were heard by the learned Judge. The objection by the respondent to the wife's application stated, inter alia, that the Hindu Marriage Act, 1955 provides the mode and procedure for execution of orders and decrees passed under the Act and the proper procedure is for the petitioner to apply for such execution and accordingly the application as filed was not maintainable. Reference was made to the provisions of section 28 of Act 25 of 1955 to lend assurance to the contention advanced on behalf of the respondent. The learned Judge referred to the submissions made on behalf of. the petitioner that the application dated the 7th October, 1969 was not for execution of the order dated the 23rd september, 1969 passed by the Court but that the petitioner simply wanted a direction by the court on the respondent regarding the place and date where the custody of the children would be delivered so that the petitioner could take appropriate steps for enforcement of the order for the custody of the children. The learned Judge held that the objection raised on behalf of the respondent has accordingly no force and to avoid any further complication in connection with the enforcement of the order passed earlier by the court on 23. 9. 69, he proceeded to specify the date and place where the custody of the children would be delivered to the petitioner and in that view he directed the respondent to deliver the custody of the two children, in pursuance of the earlier order passed on 23. 9. 1969, to the petitioner in court on the 1st August, 1970. The application filed by the wife and the objection there to submitted by the husband were disposed of accordingly. On the 1st August, 1970 a petition was filed on behalf of the respondent praying for a reconsideration and recall of the order dated 25. 7. 70 on grounds as mentioned there in. It was inter alia stated that the order dated 25. 7. 70 is without jurisdiction, not warranted by the provisions of: the Hindu Marriage Act, 1955 and the code of Civil Procedure and as such the prayer made in this behalf by the petitioner was not maintainable in law. The respondent proceeded to state further in paragraph 5 of the aforesaid petition that it will not be possible for your petitioner to bring the children to the court and to deliver them to the plaintiff inasmuch as the children will cry on seeing unknown faces and they cannot be brought to the environment of the court at all and their grand mother and great grandmother and paternal aunt with whom they pass the most part of their time do not consider it possible to do so. " Ultimately a prayer was made for a reconsideration and recall of the order dated 25. 7. 1970. The said application was however rejected by the learned Judge by his order dated the 1st August, 1970 and it was inter alia observed that "the reason for non-production of the children in court is wholly unsatisfactory. . . . . . there is no substance in the petition and it is accordingly rejected," It was further recorded in the order that "the learned Advocate appearing on behalf of the respondent submits that the respondent is not going to produce the children in court this day for delivering them to the petitioner mother It was ultimately directed that the petitioner may take appropriate steps for enforcement of the order regarding the delivery of the minor children. The orders referred to above were put to execution and by an order dated 16. 1. 71, the Mat. Ex. Case No. 2 of 1970 was dismissed for non-prosecution with liberty to file a fresh application for execution. Thereafter the order's dated 23. 9. 69 and 25. 7. 70 were put to execution under section 28 of the Hindu marriage Act, 1955 read with section 45 of the Guardian and Wards Act, 1890 and section 51 of the Code of Civil Procedure and the same is pending before the learned Judge, 3rd Bench, City Civil court, Calcutta. On 18. 8. 70 the petitioner filed an application before the learned Judge, 3rd Bench, City Civil court, Calcutta for taking action against the respondent for contempt of court for violation of the orders dated 23. 9. 69 and 25. 7. 70 passed by him. Shri P. K. Chanda, Judge, 3rd Bench, City. Civil court Calcutta, however by his order dated the 22nd January, 1971 rejecter the said application holding, inter aim, that the Application for contempt was not maintainable in view of the provisions of section 28 of the Hindu marriage Act, 1925 laying down that decrees and orders made by the count in any proceeding under the Act shall be enforced in like manner as true decrees and orders of the court made in the exercise of its original civil jurisdiction are enforced. The learned Judge further observed that sections 36 to 74 and order 21 of the C. P. C. provide for the execution of the decrees and orders and an order for the custody of the minor children is to be executed by the provisions similar to those of section 43 of the Guardian and Wards Act, 1890. He ultimately held that when specific remedy is available and when the petitioner had taken out execution of the order, the interest of justice does not require any action for contempt of court to be taken. The present application for contempt of court was thereafter filed in this Court and this Rule was issued on 7. 4. 71. An affidavit-in-opposition affirmed by the respondent on 15. 11. 71 as well as an affidavit-in-reply on behalf of the petitioner Sm. Mira Bose affirmed on 26. 11. 71 were duly filed thereafter.

(3.) MR. Manas Ranjan Chakraborty, Advocate (with Miss Uma Misra, Advocate) appearing on behalf of the petitioner, Sm. Mira Bose, submitted that the respondent willfully violated the orders passed by the learned Judge, 3rd Bench. City Civil Court, Calcutta, on 23. 9. 69 and 25. 7. 70 by keeping the two children in his custody and was acting in contumacious disregard there of on one ground or other. It was further submitted that the flouting of the order was deliberate in spite of the fact that the respondent lost on the issue before the Judge, 3rd Bench, City Civil Court, calcutta, the High Court and the Supreme Court. Objection was also taken to the manner of the objection and the language couched therein. Mr. Ajit kumar Dutt, Advocate (with Mr. Shyam sundar Pal, Advocate) appearing on behalf of the Contemner-respondent, submitted that the contentions made on behalf of the petitioner are based on a misapprehension inasmuch as the two orders dated 23. 9. 69 and 25,7. 70 passed by the learned Judge, 3rd Bench, City civil Court, Calcutta are to be enforced in accordance with the procedure laid down under section 28 of the Hindu marriage Act 1955. Mr. Dutt submitted in this context that section 28 of act 25 of 1955 having laid down the mode and procedure for execution of orders and decrees passed under the Act, it is the duty of the petitioner to apply there under and not to follow a procedure unknown to law, rendering thereby the application filed in that behalf, to be bad and repugnant. In view of the clear and specific provisions of the statute and the unambiguous terms thereof there is no question of any con tempt for a purported violation of the said orders. Mr. Dutt further submitted that in the affidavit-in-reply filed on behalf of the Contemner the points raised on behalf of the petitioner have been traversed and there is also an unqualified apology made to the court.