Allowed

Smt. K. Hima Bindu v. Kudikala Ashok Kumar

Telangana HC8 Dec 2014CC/1099/2014

Case brief

AI extract

What is this about?

A contempt case was filed for wilful disobedience of orders directing payment of arrears of interim maintenance. The court found the respondent guilty of contempt, held him liable to pay the balance arrears, and directed the Family Court to stay divorce proceedings until compliance, threatening detention in civil prison for failure to pay.

What did the court decide?

Respondent directed to pay balance arrears within one month; Family Court barred from proceeding with divorce petition until compliance; Respondent liable for detention in civil prison for non-payment

Smt. K. Hima Bindu Vs Kudikala Ashok Kumar — Maintenance and Alimony | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI

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Contempt Case No.1099 of 2014

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ORDER:

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This contempt case under Sections 10 to 12 of the Contempt of Courts Act, 1971 is filed by the petitioners in C.R.P.No.2743 of 2012 requesting to punish the sole respondent for wilful disobedience of the orders of this Court dated 08.02.2013 in C.R.P.No.2743 of 2012.

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2. I have heard the submissions of the learned counsel for both the sides. I have perused the material record.

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In this contempt case, the parties shall hereinafter be referred to as ‘the petitioners’ and ‘the respondent’ for convenience and clarity.

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3. Now, the point for determination is:

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Whether the petitioners have made out a case that the respondent had wilfully violated and disobeyed the orders of this Court dated 08.02.2013 made in C.R.P.No.2743 of 2012 and had further made out valid and sufficient grounds for punishing the respondent for contempt of court?

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4. POINT:

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4. (a) The facts necessary for consideration are as follows: “Having been aggrieved of the orders dated 28.12.2011 of the learned Judge, Additional Family Court, Hyderabad passed in I.A.No.770 of 2011 in O.P.No.574 of 2011, the respondent herein had filed C.R.P.No.2743 of 2012 before this Court. The said OP was filed by the respondent herein for dissolution of marriage. The petitioners herein filed the abovementioned Interlocutory Application for grant of interim maintenance. The learned Judge, Additional Family Court, Hyderabad had granted maintenance payable from September 2011 at the rate of Rs.11,350/- per month to the petitioners, who are the wife and the minor children of the

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respondent. This Court, by orders dated 08.02.2013, had dismissed the revision petition of the respondent and had granted him three months time from the date of receipt of a copy of that order to deposit the entire arrears of maintenance as ordered by the Additional Family Court. In the light of the final orders in the revision, the miscellaneous petition in M.P. 3649 of 2012 was dismissed and the other miscellaneous petitions in M.P.Nos.5917 of 2012 and 8483 of 2012 were closed and the interim stay granted on 05.07.2012 was vacated.

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4. (b) In the above-stated admitted factual background, the petitioners had now filed this contempt case inter alia alleging as follows: “Despite the orders dated 08.02.2013 in the C.R.P, wherein, a direction was given to the respondent herein to deposit the entire arrears of maintenance within a period of three months from the date of receipt of a copy of the order in the revision, the respondent did not pay or deposit the entire arrears of maintenance as per the orders of this Court and as per the orders of the Additional Family Court. The 1^st petitioner along with her minor children is residing at her parents’ house at Karimnagar. She is finding it difficult to travel from Karimnagar to Hyderabad on the date of every hearing and therefore, she had requested for transfer of the O.P.No.574 of 2011 from the file of the learned Judge, Additional Family Court, Hyderabad to the Family Court at Karimnagar and this Court was pleased to pass order dated 09.10.2013 transferring the said OP to the file of the Judge, Family Court, Warangal. The respondent had not paid maintenance amount even after the lapse of a period of more than one year though a copy of the order of this Court was received by him long time back. The respondent had only paid a sum of Rs.11,350/- on 28.11.2011 at the first instance after grant of interim maintenance and had failed to comply with the orders of this Court. The said acts and conduct of the respondent in not obeying the orders of this Court is nothing but wilful disobedience. The respondent had acted in utter

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disregard of the orders of this Court. The 1^st petitioner had issued a notice dated 12.06.2014 to the respondent requesting to comply with the orders of this Court within a period one week from the date of receipt of the notice by the respondent. In stead of complying with and obeying the orders of this court, the respondent had issued a vague reply notice dated 20.06.2014 and had resorted to delaying tactics. In view of the wilful disobedience and utter disregard shown to the orders of this Court, the respondent is liable to be punished under Sections 10 to 12 of the Contempt of Courts Act, 1971.”

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4. (c) The relevant contentions in the counter of the respondent, in brief, are as follows: “After the orders of this Court in the revision, the respondent had appeared before the Additional Family Court to proceed with the prosecution of the original petition by complying with the orders of this Court. However, the 1^st petitioner did not appear before the Additional Family Court to enable the respondent to comply with the orders of this Court. This respondent had filed an interlocutory application for ordering DNA profiling test of the 2^nd and 3^rd petitioners, since the 1^st petitioner is time and again making representations to the respondent that they are not the children of the respondent. The said application was allowed. This respondent had paid necessary fee into the court for conduct of the said test. However, in view of the transfer C.M.P filed by the 1^st petitioner and the stay orders granted by this Court, the 1^st petitioner did not appear before the Additional Family Court, Hyderabad. Subsequently, the transfer C.M.P was dismissed for default. The 1^st petitioner had appeared before the Additional Family Court only once after the orders were passed in the revision and this respondent had promptly paid Rs.11,350/- as maintenance and had obtained a receipt dated 09.04.2013. The 1^st petitioner had failed to appear in the OP before the Additional Family Court thereafter. The

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respondent had tried to comply with the maintenance orders by intending to deposit the same into Additional Family Court. However, the said Court directed the respondent not to deposit the maintenance into Court but, directed to pay the maintenance directly to the 1^st petitioner. Since the 1^st petitioner did not appear before the Additional Family Court, the respondent could not pay the same to her thereafter. Subsequently, the petitioner got filed a petition for restoration of the transfer CMP and the O.P.No.574 of 2011 was transferred to a Court at Warangal. The 1^st petitioner had failed to appear before the Court in the divorce OP to receive her maintenance amount and had failed to cooperate for the progress in proceedings of the OP and had also failed to cooperate for under going DNA profiling test as per the orders of the trial Court. The 1^st petitioner had also filed a D.V.Case in D.V.C.No.125 of 2013 in the Court at Karimnagar against this respondent, his parents, brother and brother’s wife. The said case was filed four years after leaving the matrimonial house permanently. In that case, arrears of interim maintenance passed in I.A.No.770 of 2011 and other amounts were claimed and a further relief was sought to punish all the respondents in the said D.V case. The said case is pending. The 1^st petitioner had dragged the respondent and his family members to the court in the name of D.V.case and had issued a notice threatening them in the name of a case for contempt. Therefore, this respondent had issued a reply calling upon her to attend in the divorce OP to get back her arrears and then proceed with the divorce OP at Warangal or to proceed with the D.V.Case at Karimnagar Court. Had the 1^st petitioner appeared before the Court in the divorce OP, this respondent would have paid the maintenance to her and the DNA test would have been completed and the matter would have reached the next stage in the course of trial. The D.V case and the contempt case are filed for no valid reason and for no fault on the part of this respondent. When two cases are already

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pending, the petitioner cannot file a third case in the form of contempt against this respondent before this Court for the same relief. The 1^st petitioner had created nuisance at the office of the respondent and had distributed letters at his office and also created nuisance at the house of the parents of this respondent. Therefore, this respondent had filed I.A.No.483 of 2011 for injunction against the petitioner and her henchmen and the same is pending. Hence, the contempt case may be dismissed directing the 1^st petitioner to appear in the divorce OP.”

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4. (d) A perusal of the pleadings of both the sides would bring to the fore the fact that the respondent did not pay the arrears of maintenance, as per the orders of this Court in C.R.P.No.2743 of 2012. He had only paid Rs.11,350/- under a receipt dated 09.04.2013 and had failed to pay the entire arrears of maintenance within the time frame mentioned in the orders of this Court. Therefore, ex facie, it is clear from the admitted facts that the respondent had failed to obey the orders of this Court. Be that as it may. The defence of the respondent appears to be two fold. Firstly, he is prepared to pay the arrears of maintenance; but, the 1^st petitioner is avoiding to appear before the Court in the divorce proceedings as orders were passed directing the parties to undergo DNA profiling test; Had the 1^st petitioner appeared before the court in the divorce proceedings, the respondent would have paid her the arrears of maintenance; Because the 1^st petitioner had failed to appear before the Court in the divorce proceedings and had failed to cooperate for prosecution of the further proceedings in the said divorce case, the respondent could not pay to her the arrears of maintenance. Secondly, the respondent with a view to comply with the orders had tried to deposit the maintenance into Court, i.e., Additional Family Court; However, the Additional Family Court, Hyderabad directed him not to deposit the maintenance into court but, to pay the same to the 1^st petitioner directly.

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Since the 1^st petitioner did not appear before the Family Court, he could not pay the same to her thereafter. Thus, the respondent blames the 1^st petitioner for his not paying the arrears of maintenance. In fact, the respondent is insisting on the appearance of the 1^st petitioner before the court for prosecution of the divorce proceedings without complying with the orders of interim maintenance. It is an undisputed fact that on nonpayment of arrears of maintenance despite lapse of a long period of time, the 1^st petitioner had got issued a notice to the respondent calling upon him to pay the arrears of maintenance. The respondent having received the notice had issued a reply without paying the arrears of maintenance. The law is well settled that the very purpose of granting interim alimony was to see that the party who was helpless and unable to maintain oneself during the pendency of the proceedings was given some means of sustenance. Once an order passed in this regard becomes final and remains not complied with, the object of granting interim alimony would be frustrated, vide the decision in Shivilaben v. Prahladbhai Atmarani^[1] . Coming to the case on hand, the respondent having suffered an order for payment of interim maintenance chose to disobey the same and is blaming the 1^st petitioner for her non-appearance before the Court in the divorce proceedings. Having invoked the jurisdiction of the Family Court and sought the relief of a decree for divorce, the respondent cannot ignore the orders directing him to pay interim maintenance to the petitioners. As per the settled principle of law, the Family Court shall not proceed with the divorce proceedings pending on its file unless and until the husband complies with the subsisting orders of interim maintenance passed against him. If it is the case of the respondent that he is prepared to pay the arrears of interim maintenance, he ought to have obtained a Demand Draft or a bankers cheque and ought to have delivered the same to the learned counsel for the petitioners or in the alternative, he should have sent the same by

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Registered Post with Acknowledgment Due either to the 1^st petitioner’s counsel on record or directly to the 1^st petitioner to her correct address. The respondent did not adopt such a procedure. He did not produce any record like an order of the Additional Family Court wherein, he was directed not to deposit the arrears of maintenance into Court and was further directed to pay the interim maintenance amount directly to the 1^st petitioner. The conduct of the respondent as is evident from his counter and his acts in disobeying the order passed against him would lay bare that he has adopted a very adamant attitude and that he had wilfully defied the orders of this Court. Even after a notice in the contempt case was served upon him, he did not make amends. Even when an offer was made by the learned counsel for the petitioners to receive the arrears during the pendency of the contempt proceedings, it was submitted on behalf of the respondent that the arrears of maintenance would be paid if only the 1^st petitioner appears before the trial court. Therefore, on 22.08.2014, this Court directed the 1^st petitioner and the respondent to appear before this court on 25.08.2014 at 10.30 AM. As per the directions of this Court, the 1^st petitioner and the respondent had appeared before this court on 25.08.2014. The learned counsel for the petitioners had submitted that the respondent had paid Rs.22,700/- in cash to the 1^st petitioner and that acknowledging the receipt of the said amount, a receipt had also been issued to the respondent. On that day, further presence of the parties before this Court is dispensed with. Thus, even when an opportunity was given a substantial amount of arrears of maintenance amount was not even paid. Therefore, further submissions of the learned counsel for both the sides were heard on the subsequent hearing dates and the matter was reserved for orders. Thus, from the conduct of the respondent throughout, it is clear that he had wilfully and deliberately violated the orders of this Court and had failed to pay the arrears of interim maintenance within the time frame fixed by

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this Court or within a reasonable time thereafter and had thus rendered himself liable for contempt. The point is accordingly answered holding that the petitioners have made out valid and sufficient grounds for punishing the respondent for contempt of Court. Therefore, the respondent is found guilty for the contempt of court.

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5. In the result, the contempt case is allowed and while directing the respondent to pay to the petitioners the entire balance of arrears of interim maintenance amount within one month from the date of receipt of a copy of this order, this Court further directs that the Family Court, Warangal shall not proceed with the divorce OP pending on its file until and unless the respondent herein complies with the subsisting orders of interim maintenance passed I.A.No.770 of 2011 in O.P.No.574 of 2011 originally on the file of Additional Family Court, Hyderabad and confirmed by this Court in its orders dated 08.02.2013 in C.R.P.No.2743 of 2012. In the event of failure of the respondent to pay the arrears, as indicated above, he shall be detained in civil prison for a period of one week. His daily subsistence allowance is fixed at Rs.150/-. There shall be no order as to costs.

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Miscellaneous petitions, if any, pending in this contempt case shall stand closed.

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_____________________ M. SEETHARAMA MURTI, J

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08^th December 2014 RAR

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[1] (1995) 1 GLH 1197

Smt. K. Hima Bindu v. Kudikala Ashok Kumar

Case brief

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Smt. K. Hima Bindu v. Kudikala Ashok Kumar

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