KINRI DHIR  Vs VEER SINGH -Judgment by Delhi High Court

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th APRIL, 2022

IN THE MATTER OF:
+ CONT.CAS(C) 60/2022 & CM APPL. 12825/2022
KINRI DHIR ….. Petitioner
Through: Ms. Geeta Luthra, Sr. Advocate with Ms. Shivani Luthra Lohiya, Ms. Asmita Narula, Ms. Priyanka Prasanth and Ms. Apoorva Maheshwari, Advocates

versus

VEER SINGH ….. Respondent
Through: Ms. Rebecca John, Sr. Advocate with Ms. Gauri Rishi, Ms. Srishti Juneja and Ms. Garima Sehgal, Advocates for Respondent No. 1
Mr. Manu Aggarwal and Mr. Shubham Budhiraja, Advocates for R-2 and R-3.
CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J.
1. The instant contempt petition has been filed for wilful disobedience of the Order dated 09.11.2021 passed by the learned Principal Judge, Family Court (South-East), Saket Courts, New Delhi, in G.P. No.16/2021.
2. Facts, in brief, leading to the instant contempt petition are as follows:
a) It is stated that on 04.12.2018, the Petitioner/wife and the Respondent No.1/husband underwent matrimonial ceremony in Taiwan and a male child was born to them.
b) It was alleged that Respondent No.1/husband committed grave acts of mental, sexual, emotional, economic & physical abuse against the Petitioner/wife. It is stated that in June 2020, Respondent No.1/husband moved the Petitioner/wife and the minor child to a rented flat at C-99, Defence Colony, New Delhi. Respondents No.2 & 3 are the owners/land-lords of the said tenanted premises.
c) Consequently, the Petitioner filed a petition under the Guardians and Wards Act, 1890, and an application under Sections 18(1)(e) read with Sections 23 & 26 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as �the DV Act�).
d) Vide Order dated 09.11.2021, the learned Principal Judge, Family Court (South-East), Saket Courts, New Delhi, in G.P. No.16/2021, directed as under:
�Regarding the maintenance which has been claimed by the Petitioner, it is an admitted fact that the rent of the serviced apartment along with all the amenities and bills are being provided by the Respondent till date to the Petitioner. Therefore, in addition to the facilities which have been provided to the Petitioner by the Respondent and which he will continue to provide, he will also provide to the petitioner a monthly maintenance of ?1,00,000/- to the Petitioner and ?1,00,000/- per month for the minor son from the date of filing of application till the decision of case on merits�

e) It is stated that since the rendering of the Order dated 09.11.2021, Respondent No.1 has been consistently flouting the directions and has refused to provide an alternate accommodation to the Petitioner and the minor child. The Petitioner has alleged that the Respondent No.1/husband in collusion with Respondents No.2 & 3 have repeatedly attempted to evict the Petitioner and the minor child from the tenanted premises.
f) It is stated that the Petitioner had filed an appeal before this Court, being MAT Appeal (F.C.) No.2/2022 against the Order dated 09.11.2021 wherein this Court vide Order dated 06.01.2022 had recorded Respondent No.1�s statement that �the Respondent is complying in letter and spirit with the impugned order and shall continue to pay the amounts due as per the same.�
g) It is stated that despite the Order of the learned Family Court as well as the Order of this Court, the Respondent No.1 is wilfully breaching the directions given by the learned Family Court and has, therefore, committed contempt of Court.
h) Aggrieved by the same, the Petitioner has approached this Court by filing the instant petition.
3. Ms. Geeta Luthra, learned Senior Counsel appearing for the Petitioner, at the outset, has addressed the aspect of the maintainability of the instant contempt petition. She submits that contempt jurisdiction can be invoked in every case where the conduct of the contemnor is such that it would interfere with the due course of justice. She further submits that merely because an order or decree, of which contempt has been alleged, is executable under law, that would not mean that the jurisdiction of the Court under the Contempt of Courts Act, 1971 (hereinafter referred to as �the 1971 Act�), would be ousted.
4. Ms. Luthra argues that in cases where the husband does not pay the maintenance in accordance with the reliefs that have been ordered by the Court and, thereby, wilfully disobeys the orders of the Court, though he is in a position to pay, he can be proceeded against for the contempt of Court and can be punished.
5. In order to buttress the aforementioned submission, the learned Senior Counsel has relied on the following judgments:
a) Rama Narang v. Ramesh Narang, (2006) 11 SCC 114;
b) Lopaben Patel v. Hitendra Rambhai Patel, 1999 SCC OnLine Guj 128;
c) Sarladevi Bharatkumar Rungta v. Bharatkumar Shivprasad Rungta, 1988 MH. L. J.;
d) Amita B. Devnani v. Bhagwan H. Devnani and Ors., 2006 SCC OnLine Bom 263;
e) Judgement dated 25.11.2021 passed by this Court in CONT.CAS(C) 429/2021 titled as Sonali Bhatia v. Abhivansh Narang.
f) Judgement dated 14.11.2007 passed by this Court in CONT.CAS(C) 105/2007 titled as Nishu Bansal & Anr. v. Ajay Bansal.
g) Urban Infrastructure Real Estate Fund v. Dharmesh S. Jain and Anr., 2022 SCC OnLine SC 296.
6. The learned Senior Counsel takes this Court through the previous orders dated 24.01.2022, 28.01.2022 & 02.03.2022, rendered in the instant case, to show that this Court had, in addition to the maintenance that had been ordered to be paid by the learned Family Court, had directed Respondent No.1 to pay an advance amount of Rs.1,00,000/- to the Petitioner within a week for her daily expenses like groceries etc. Respondent No.1 had further been directed to ensure that the provision of services of the nanny and cook would continue, and that there outstanding salaries would be paid.
7. Ms. Luthra submits that the Respondent No.1 has flouted these orders of this Court and, despite having amassed ample wealth, he is unwilling to provide for the Petitioner and the minor child. The learned Sr. Counsel has taken this Court through the income affidavit filed by the Respondent before the learned Family Court to show case that he has the financial means to provide for the Petitioner and the minor child, and is reneging on his assurance to the learned Family Court and this Court so as to withdraw from his responsibilities.
8. Ms. Luthra further submits that the Respondent No.1 is now attempting to render the Petitioner and the minor child homeless by taking away the service apartment at C-99, Defence Colony, New Delhi, where the Petitioner and the minor child are living and that the same is being done in collusion with the Respondents No.2 & 3. She also submits that the Respondent No.1 is refusing to pay the salary of the house staff, specially the nanny, and has even attempted to make the said staff leave.
9. Per contra, Ms. Rebecca M. John, learned Senior Counsel appearing for the Respondent No.1, submits that no contempt has been made out in the instant case as the Respondent No.1 has been duly complying with the Order dated 09.11.2021 passed by the learned Family Court as well as the Orders passed by this Court on 24.01.2022, 28.01.2022 & 02.03.2022. She relies on Ajit Arjani v. Roma Arjani, (2004) SCC Online Del 323, to submit that an order of which disobedience has been alleged should be explicit and unambiguous. She states that if there are two possible opinions and the one which has been adhered to by the Respondents is a plausible one, then no contempt is made out.
10. Ms. John further relies upon the judgment of the Apex Court in Anil Ratan Sarkar v. Hirak Ghosh, AIR 2002 SC 1405, to contend that even if the Order dated 09.11.2021 of the learned Family Court is given a broad interpretation, no contempt would be made out against Respondent No.1 as mere disobedience of an order cannot be said to be sufficient to amount to �Civil Contempt� within the meaning of Section 2(b) of the 1971 Act. She also relies on a judgment of this Court in Ved Prakash Abbot v. Kishore K. Avarsekar & Ors., 2019 SCC Online Del 9570, to state that while examining the grievance of a person who has invoked contempt jurisdiction, the Court has to record a finding of wilful and intentional disobedience.
11. Ms. John submits that the weapon of contempt must not be used arbitrarily or without discretion and that parties cannot invoke the contempt jurisdiction of this Court so as to coerce the Respondent to abide by the Order of the learned Family Court. Ms. John cites R. N. Dey & Ors. v. Bhagyabati Pramanik & Ors, (2000) 4 SCC 400, to contend that the Apex Court had deprecated the use of contempt jurisdiction as a method of executing a decree or implementing an order for which the law has provided an appropriate remedy (See also: Jamna Datwani v. Kishin Datwani & Ors., 2014 SCC Online Del 1735).
12. Ms. John submits that the Respondent No.1 is currently paying Rs.4.5 Lakhs for the serviced apartment along with Rs.2 Lakhs which was directed by the learned Family Court vide Order dated 09.11.2021 as well as an additional Rs.1 lakh which was directed by this Court vide Order dated 28.01.2022 and was supposed to be a one-time payment towards the expenses incurred for groceries etc. She submits that all the amenities that were required to be provided to the Petitioner and the minor child by Respondent No.1 are being duly provided and that the Petitioner is simply expanding the scope of the Order dated 09.11.2021 in order to cause hardship to the Respondent No.1. Ms. John, however, states that the payment that is to be made to the nanny is excessive in nature and requires reconsideration in view of the fact that the minor son no longer needs specialised care. She, therefore, submits that there has been no violation of the order dated 09.11.2021 and, therefore, the instant petition is liable to be dismissed.
13. Heard Ms. Geeta Luthra, learned Senior Counsel appearing for the Petitioner, and Ms. Rebecca M. John, learned Senior Counsel appearing for the Respondent No.1, and perused the material on record.
14. As this Court has decided to entertain the instant petition even though there exists a provision under the DV Act which provides for execution of an order of maintenance, the only question which arises before this Court for consideration is whether, in face of the facts and circumstances of the instant case, there has been any civil contempt as per Section 2 (b) of the 1971 Act of the Order dated 09.11.2021.
15. This Court finds it necessary to refer to various judgments of the Supreme Court wherein the concept of civil contempt has been deliberated. In Ashok Paper Kamgar Union v. Dharam Godha, (2003) 11 SCC 1, the Supreme Court has observed as under:
�17.�Section 2(b) of the Contempt of Courts Act defines �civil contempt� and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of undertaking given to a court. �Wilful� means an act or omission which is done voluntarily and intentionally 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. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case. The facts mentioned above show that none of the respondents to the petition can be held to be directly responsible if the Scheme which had been formulated by the Government of India on 28-6-1996 and had been approved by this Court by the order dated 8-7-1996 could not be implemented in letter and spirit as many factors have contributed to the same. The reasons given for non-inclusion of Shri Umadhar Prasad Singh in signing of the agreement appear to be quite plausible. NCFL has undoubtedly not discharged its liability of making payment of its entire liability of Rs 6 crores. However, it has come out with a case that some additional expenditure has been incurred in running the unit. It is not possible to get the complete financial picture only on the basis of the affidavits filed in the present petition. On the material on record, therefore, it is not possible to hold that the charge of having committed contempt of court on account of alleged non-compliance with the orders passed by this Court on 8-7-1996, 1-5-1997 [ Under Article 32 of the Constitution of India] and 31-7-2000 [Ashok Paper Mills Kamgar Union�v.�Union of India, (2003) 11 SCC at p. 16, below] has been established against any one of the respondents.�

16. In Anil Ratan Sarkar (supra) the Supreme Court had noted that the element of willingness was an indispensable requirement to bring home the charge of civil contempt. The Supreme Court has observed as follows:
�15.�It may also be noticed at this juncture that mere disobedience of an order may not be sufficient to amount to a �civil contempt� within the meaning of Section 2(b) of the Act of 1971 � the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation � the act or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the wilful nature of the conduct if raised, question of success in a contempt petition would not arise.�

17. The Supreme Court had also analyzed what the term �wilful disobedience� meant in Dinesh Kumar Gupta v. United India Insurance Co. Ltd., (2010) 12 SCC 770
�17.�This now leads us to the next question and a more relevant one, as to whether a proceeding for contempt initiated against the appellant can be held to be sustainable merely on speculation, assumption and inference drawn from facts and circumstances of the instant case. In our considered opinion, the answer clearly has to be in the negative in view of the well-settled legal position reflected in a catena of decisions of this Court that�contempt of a civil nature can be held to have been made out only if there has been a wilful disobedience of the order and even though there may be disobedience, yet if the same does not reflect that it has been a conscious and wilful disobedience, a case for contempt cannot be held to have been made out. In fact, if an order is capable of more than one interpretation giving rise to variety of consequences, non-compliance with the same cannot be held to be wilful disobedience of the order so as to make out a case of contempt entailing the serious consequence including imposition of punishment. However, when the courts are confronted with a question as to whether a given situation could be treated to be a case of wilful disobedience, or a case of a lame excuse, in order to subvert its compliance, howsoever articulate it may be, will obviously depend on the facts and circumstances of a particular case; but while deciding so, it would not be legally correct to be too speculative based on assumption as the Contempt of Courts Act, 1971 clearly postulates and emphasises that the ingredient of wilful disobedience must be there before anyone can be hauled up for the charge of contempt of a civil nature.� (emphasis supplied)

18. Flowing from the above judgments, it appears to this Court that scant disregard must be shown towards the order of the Court to establish wilful disobedience so as to make out civil contempt under Section 2(b) of the 1971 Act. If such wilful disobedience is observed, then the Court must take cognizance of it as such contempt undermines the dignity of the Court and outrages the majesty of law. The contempt jurisdiction is exercised to prevent the administration of justice from being maligned and there should be no unjustifiable interference in the said administration of justice.
19. The Supreme Court in Jhareswar Prasad Paul v. Tarak Nath Ganguly, (2002) 5 SCC 352, has observed as under:
�11.�The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law, since the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined. The Contempt of Courts Act, 1971 has been introduced under the statute for the purpose of securing the feeling of confidence of the people in general for true and proper administration of justice in the country. The power to punish for contempt of court is a special power vested under the Constitution in the courts of record and also under the statute. The power is special and needs to be exercised with care and caution. It should be used sparingly by the courts on being satisfied regarding the true effect of contemptuous conduct. It is to be kept in mind that the court exercising the jurisdiction to punish for contempt does not function as an original or appellate court for determination of the disputes between the parties. The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition, be it stated here that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which is alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled against the courts exercising contempt of court jurisdiction �that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute� in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts.�

20. Material on record in the instant case discloses that the Respondent No.1 has been paying the requisite maintenance that has been directed by the learned Family Court in its Order dated 09.11.2021. In the said Order, the Respondent No.1 had been directed to pay the rent of the serviced apartment, along with all the amenities and bills, as well as to provide the Petitioner and the minor son a monthly maintenance of Rs.1 Lakh each from the date of filing of the Petition, i.e. 18.01.2021.
21. The Trial Court based its decision on the income and expenditure affidavit filed by the Respondent. The relevant portion of the income and expenditure affidavit reads as under:

27
Whether your spouse is staying in the matrimonial home? If not staying at matrimonial home, relationship and income of the person with whom the spouse is staying? If staying in a rented accommodation what is the rent being paid?
Yes, staying at C-99, Defence Colony, New Delhi, Delhi � 110024

Rent:-3,91,911/- P.M (Car parking, housekeeping and room service, Internet Access, Satellite TV, breakfast, 24 hrs reception assistance, AC maintenance, F & B service, 24 hrs running hot water and Linen laundary) Paid by the deponent Veer Singh
28
Name and age of children from the marriage?
Shakyasimha Singh � 2 years
29
Who has the custody of the children?
Joint
30
Name and address of school(s) where the children are studying?
NA
31
Monthly expenditure of the children?
Total Exp Per month: 1,79,159/-
32
Details of expenditur/e on children

i) School/College fees
NA

ii) Creche/Day care/After School care
NA

iii) Books/Stationery
8,747/- P.M

iv) Private Tuitions
NA

v) Sports/Music/Theater
23,567/- P.M

vi) Outings/summer camps/vacations
NA

vii) Entertainment
NA

viii) Pocket Money/Allowances
NA

ix) Others
Paid by Deponent:
Rent Apartment-INR 3,91,911/- P.M.
Nanny Salary-INR 80,180/- P.M.

Paid by Deponent�s Company (Vana Ventures Ltd.):
House Keeper & Cook Room Rent-INR 1,30,937/- P.M.
House Keeper & Cook Salary-INR 76,744/- P.M.

Total:- INR 6,79,474/- Per Month
Total Expenditure
Annual
Rs.1,06,91,367/-

Monthly
Rs.8,90,947/-

22. A perusal of the income and expenditure affidavit shows that the Respondent No.1/Husband was spending Rs. 8,90,947/- per month for the purpose of maintaining the Petitioner/Wife and the minor son. It is pertinent to mention at this juncture that the Respondent No.1/Husband was residing with the Petitioner/Wife at the time when the income and expenditure affidavit had been filed. Subsequent to the filing of the income and expenditure affidavit, the Respondent No.1/Husband shifted out from the said premises. However, the expenditure has not been reduced despite the fact that the Respondent No.1/Husband has moved out from the premises. It has been submitted that Respondent No.1/Husband has been paying a sum of Rs. 4.5 lakhs towards the rent of the serviced apartment, which is more than the amount shown in the income and expenditure affidavit. The Respondent No.1/Husband is also paying a sum of Rs. 1,30,937/- per month towards the payment for the housekeeper and cook�s room rent, and Rs. 76,744 per month for the payment of the salary of the housekeeper and the cook.
23. At this juncture, the controversy before this Court is restricted to whether non-payment of salary for the nanny would amount to contempt or not. The Order dated 02.03.2022 directing payment for various facilities and amenities, as well as payment to the nanny would be a matter of interpretation. The learned Senior Counsel appearing for Respondent No.1/Husband states that the nanny appointed at the time of filing of the income and expenditure affidavit was a medical specialist and had been appointed at a time when the minor son was not keeping good health. However, that position does not continue as of today. In wake of the changed circumstances, this Court is of the considered opinion that a sum of Rs.80,000/- is highly excessive for a nanny who has been employed to take care of a child.
24. The Order of this Court dated 28.01.2022 has recorded the submission that Rs.24 Lakhs have already been paid by Respondent No.1/Husband which would cover the period till 17.01.2022. The learned Senior Counsel appearing for the Respondent No.1/Husband has informed the Court that around Rs.4.5 Lakhs per month is being expended towards the rent of the serviced apartment, and that the Respondent No.1/Husband is also paying an additional Rs.1Lakh per month for the Petitioner/Wife�s daily expenses like groceries. Therefore, a total of almost Rs.8 Lakhs is being paid by the Respondent No.1/Husband towards maintenance. Further, the Respondent No.1/Husband has also undertaken to pay for the services of the nanny and the home staff of the Petitioner/Wife.
25. In view of the same, this Court does not find any wilful disobedience on the part of the Respondent No.1/Husband in fulfilling the directions given to him by the learned Family Court as well as this Court that would attract any penal consequences and, therefore, no contempt is made out against Respondent No.1/Husband.
26. The petition is, therefore, dismissed along with the pending application(s), if any.
27. However, in the event that the serviced apartment at C-99, Defence Colony, New Delhi, is not provided to the Petitioner/Wife and the minor son, Respondent No.1/Husband is directed to provide an alternate accommodation of the same nature to the Petitioner/Wife. Furthermore, the Respondent No.1/Husband is directed to continue paying a sum of Rs.1 Lakh towards the Petitioner’s daily expenses like groceries, etc. as stipulated in the Order of this Court dated 02.03.2022.

SUBRAMONIUM PRASAD, J.
APRIL 26, 2022
Rahul

CONT.CAS(C) 60/2022 Page 16 of 16