1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CONTEMPT PETITION NO. 33/2010 IN M.C.A. NO. 1070/2007 Smt. Alka Ajayrao Londe ..versus.. Ajay Subhashrao Londe and another =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-== Shri S.V.Bhutada, Counsel for Petitioner, Shri G.G.Mishra, counsel for Respondent no.1 C ORAM : K.U.CHANDIWAL, J. DATED : 16th JUNE, 2010. Heard learned counsel for the wife/petitioner and learned counsel for husband/respondent no.1 extensively. 2) In an unfortunate feud between the wife and the husband, HMP No. 287/2007 was filed before the learned C.J.S.D. Amravati The petitioner/wife was not happy to prosecute the matter at Amravati, consequently she moved M.C.A. No.1070/07 before this Court in terms of Section 24 of the Code of Civil Procedure for transfer of said H.M.P. from the Court at Amravati to the Court at Nagpur. The notice of final disposal was issued in the transfer petition. In M.C.A. No. 1070/2007, this Court by order dated 26.11.2007 2 directed issuance of fresh notice to the husband, returnable on 10th January, 2008, additional service was allowed and ad-interim relief in terms of prayer clause (b) in the said petition was granted. The ad-interim relief in terms of prayer clause (b) is, “during the pendency of the instant application, further be pleased to stay further proceedings pending before on the file of the Hon'ble Joint Civil Judge, Senior Division, Amravati, vide Hindu Marriage Petition No. 287 of 2007”. It is a matter of record and not controverted that the husband was served on 29.12.2007, certified by the bailiff concerned, affirmed by the Superintendent at Amravati, on 1st January, 2008. The factum of service on 29.12.2007 to the husband is not controverted or disputed at any place. 3) The situation that has emerged is, inspite of there being stay to the proceedings in HMP No. 287/2007, the learned Joint Civil Judge, Senior Division, having not received any communication and noticing persistent absence of the wife on 4 occasions, proceeded with the matter and disposed of the same. It was the mistake indeed from the Clerk of the said Court in not indicating or putting on record the stay granted by this Court, which has added to unforeseen tragedy and miserable situation. 3 4) It was expected of the husband when he was clamped with the stay to the proceedings and was consciously aware of pending transfer petition, to inform the same to the learned Jt. C.J.S.D. Amravati or atleast to keep himself away from attending the proceedings by leading evidence. Unfortunately, the husband taking advantage of the absence of the wife thought it better to have a decree and consequently filed an affidavit of Evidence. Thereafter, the learned Judge, on 9.4.2008 decreed the proceedings and divorce was granted in favour of the husband. 5) Curious aspect in the matter is, in spite of there being stay order, the husband or through his counsel did not communicate the same even to this Court in transfer petition and ultimately this Court allowed the transfer petition and transferred the disposed of case HMP 287/2007 from the Court of Amravati to the Family Court at Nagpur. This conduct of the husband certainly demonstrate his casual approach, his ill intention to deal with the matter. He elongated the situation for his personal benefit. This is reflected with force, as after the decree dated 9th April, 2008, he remarried on 11th January, 2009. 6) The wife ultimately has approached this Court in the contempt proceeding bringing to the notice of this 4 Court all these events against the husband and the learned Jt. CJSD. However, the role of respondent no.2 was analyzed and examined and this Court on May 7, 2010, found that there could not be deliberate attempt on the part of respondent no.2. Ultimately on 7th June, 2010, this court exonerated the learned Jt. C.J.S.D. - respondent no.2 from the contempt proceedings and the proceedings are dropped against him. 7) The above details illustrate that, it was a duty cast on the husband/respondent no.1 to be diligent and to communicate either to the Jt. C.J.S.D. Amravati that there operates a stay, or even to inform the Court his inability to file affidavit of evidence in the matrimonial proceedings. He did not venture to discharge his obligation and added fuel to renegade in getting a matrimonial decree in his favour. 8) This Court (Coram : Smt. Vasanti A. Naik) by order dated 7th May, 2010, has observed at page 6, “in this case, prima facie, it appears that the respondent cannot be blamed, or at least no action can be initiated against the respondent no.2 under the Contempt of Courts Act, 1971”. The court has also observed at page 4, “ on hearing the learned counsel for the parties and on considering the facts of this case, it appears that all the three parties are somewhat at fault though the 5 action or omission on the part of the parties cannot be prima facie said to be deliberate”. The fault was also spotted to the petitioner as this Court expected the petitioner by exercising several modes of communication to communicate the order of stay to the learned Joint C.J.S.D. Amravati. 9) Ultimately, this Court by the above order at page 8 observed, “the error which had crept in due to inadvertence and due to lack of communication between the parties and the court & between the parties themselves, it could be said that a tragedy has occurred”. 10) The learned counsel for Respondent NO. 1 implored that mistake is unintentional and a lenient view be taken. When I told him, I have found respondent no.1 guilty in the matter, he reiterate to be soft considering the sequence of events. 11) Taking survey of all the facts, reading the affidavit of the husband and additional affidavit in which he has tendered his unconditional apology for the things that has happened either inadvertently or due to lack of proper knowledge of the proceedings, I find that the apology tendered is genuine. However, there is apparently disobedience to the orders of this Court by 6 not communicating the same either to the learned Judge or not refraining from attending the proceedings of the HMP NO. 287/2007 before the learned Judge. 12) During the course of submissions, it is also informed that the husband/respondent no.1 is gainfully employed in Municipal Corporation as a Clerk, while the wife is also employed as a Teacher at Nagpur. The factum of employment of wife is disputed by the learned counsel for the petitioner/wife. 13) The husband/respondent no.1 in the set of above facts has committed contempt of order and created a mess and even went ahead to get second marriage on 11.1.2009 based on the exparte divorce decree. I hold the husband/respondent no.1 in contempt. However, considering the ground realities and he being in employment and has to maintain three independent members, following order is passed. O R D E R 13) The husband/respondent no.1 is found guilty in the Contempt Petition No.33/2010. Instead of sending him to imprisonment or civil prison, the husband is directed to pay a fine of Rs.500/- (Rupees Five Hundred), to deposit the same immediately in this 7 Court, in default, to undergo simple imprisonment for 8 days. The husband/respondent no.1 to additionally pay an amount of Rs.30,000/- (Rupees Thirty Thousand) as costs to the wife within three months, to be deposited in this Court. The remedies of the wife to challenge the decree in the matrimonial proceeding HMP No. 287/07, disposed of by the learned Jt. C.J.S.D. Amravati, in the fact situation, are open. Contempt petition disposed of. (K.U.Chandiwal) JUDGE. Rvjalit