IN THE HIGH COURT OF MADHYA
PRADESH PRINCIPAL SEAT AT JABALPUR
MISCELLANEOUS CIVIL CASE NO. OF 2017
APPLICANT/ : MRS.
REKHA YADAV
VERSUS
NON-APPLICANT/ : RAVI
KUMAR YADAV
I N D E X
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Sno
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Description
of documents
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Annexure
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Pages
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1.
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Index
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1
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2.
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Chronology
of events
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2 TO 4
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3.
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Memo of Application Under Order 39 Rule
2-A Of The Code Of Civil Procedure, 1908 (No. 5 Of 1908) Read With Section 15 In The Hindu Marriage
Act, 1955 alongwith affidavit
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5 TO 18
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4.
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List of documents
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19
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5.
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Certified Copy of the Order
dated 21.07.2015 passed by this Hon’ble High Court in the matter of MRS. REKHA YADAV
Vs RAVI KUMAR YADAV in the file of First Appeal No.
636 of 2015
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A-1
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20
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6.
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Copy of the legal notice dated
30.07.2015
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A-2
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21
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7.
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Copy of the postal receipt
dated 01.08.2015
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A-3
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22
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8.
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Copy of the returned Envelope
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A-4
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23
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9.
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Copy of the postal receipt
dated 04.09.2015
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A-5
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24
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10.
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Copy of the returned Envelope
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A-6
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25
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11.
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Copy of Public Notice on
15.09.2015 in a local daily newspaper “Nai Dunia” Bhopal Edition
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A-7
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26
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12.
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Copy of the reply dated 13.04.2016
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A-8
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27 TO 29
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13.
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Copy
of the Card of Marriage and wedding Photographs alongwith reply
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A-9
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30 & 31
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14.
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Vakalatnama
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32
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15.
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Court
Fee
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33
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PLACE : JABALPUR
DATE : ADVOCATE FOR APPLICANT
IN THE HIGH COURT OF MADHYA
PRADESH PRINCIPAL SEAT AT JABALPUR
MISCELLANEOUS CIVIL CASE NO. OF 2017
APPLICANT/ : MRS.
REKHA YADAV
VERSUS
NON-APPLICANT/ : RAVI
KUMAR YADAV
CHRONOLOGY OF EVENTS
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S.No
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Date
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Events
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1.
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09.03.2008
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Marriage
of
both the parties was solemnized on 09.03.2008 in
the City of Bhopal according to Hindu rites and ceremonies in the
presence of friends, relatives and family members.
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2.
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November,
2008
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It was
alleged by the plaintiff that marriage was not consummated since November,
2008 and they are living separately since then.
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3.
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28.06.2011
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Non-applicant/
plaintiff had filed a Regular Civil Suit on 28.06.2011 for Decree of
dissolution of marriage solemnized on 09.03.2008 in the City of Bhopal according to Hindu
rites and ceremonies in the presence of friends, relatives and family members
of both the parties as enumerated under the
provisions of Section 13 (1) (ia) & 13 (1) (ib) of the Hindu Marriage
Act, 1955 (No. 25 of 1955) on the ground that the marriage was not consummated
since November, 2008 and they are living separately since then.
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4.
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22.04.2015
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Defendant
filed a suit on 22.04.2015 under Section 9 of the Hindu Marriage Act, 1955 (No. 25 of 1955) for restitution of conjugal
rights before the Principal Judge, Family Court, Bhopal forming subject
matter of Regular Civil Suit No. 435-A of 2015 which is still pending for
final adjudication.
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5.
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18.06.2015
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Judgment and Decree dated 18.06.2015 passed by the Court of IInd
Additional Principal Judge, Mr. D. K. Paliwal, Family Court, Bhopal, District
– Bhopal (Madhya Pradesh) in the matter of Ravi Kumar Yadav V/s Mrs. Rekha
Yadav, in the file of Regular Civil Suit No. 460-A of 2011.
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6.
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13.07.2015
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Defendant
preferred a First Appeal Under Section 19 Of The Family Courts Act, 1984 (No. 66 Of 1984)
against the Judgment and Decree dated 18.06.2015
passed by the Court of IInd Additional Principal Judge, Mr. D. K. Paliwal,
Family Court, Bhopal, District – Bhopal (Madhya Pradesh) in the matter of
Ravi Kumar Yadav V/s Mrs. Rekha Yadav, in the file of Regular Civil Suit No.
460-A of 2011 before the Hon’ble High Court of Madhya Pradesh Principal Seat
at Jabalpur.
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7.
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21.07.2015
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Order dated 21.07.2015 passed
by this Hon’ble High Court in the matter of MRS. REKHA YADAV Vs RAVI KUMAR
YADAV in the file of First Appeal No. 636 of 2015
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8.
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28.07.2015
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Accordingly a Process Fee NO. 7759/2015 was
paid on 28.07.2015.
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9.
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30.07.2015
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Applicant sent a legal notice
30.07.2015 through her counsel Mr. Shyam Bihari Singh, Advocate Bhopal
informing him the temporary mandatory injunction granted by this Hon’ble High
Court.
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10.
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01.08.2015
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Postal receipt dated
01.08.2015 showing legal notice sent.
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11.
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It was returned back for the
reason not known to the applicant.
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12.
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04.09.2015
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Since this notice retuned back,
applicant again sent the same notice to the non-applicant.
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13.
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It was also retuned back with
a false endorsement that nobody is residing on the address given.
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14.
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15.09.2015
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Applicant also published a Public Notice on 15.09.2015 in a
local daily newspaper “Nai Dunia” Bhopal Edition.
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15.
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29.02.2016
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Since the notice issued by this Hon’ble Court was returned
un-served. Therefore a fresh Process Fee No. 2732/2016 was paid on 29.02.2016
and the same was also returned un-served.
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16.
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22.03.2016
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Non-applicant thereafter appeared before this Hon’ble High Court
on 22.03.2016 by filing Vakalatnama No. 2955/2016.
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17.
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13.04.2016
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While
submitting the reply vide Document No. 2807/2016 to application under Order
39 Rule 1 & 2 CPC non-applicant categorically stated that he had
solemnized his second marriage on 08.07.2015 at Durga Mandir, J. K. Road,
Bhopal allegedly according to Hindu Rites and Rituals.
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18.
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Affidavit
in support of this reply shows the address is same as reflected in cause
title above. Non-applicant also submitted Card of Marriage and wedding
Photographs alongwith reply as Annexure R-1.
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19.
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Applicant preferred an Application Under
Order 39 Rule 2-A Of The Code Of Civil Procedure, 1908 (No. 5 Of 1908) Read
With Section
15 In The Hindu Marriage Act, 1955 before Hon’ble High Court of Madhya
Pradesh Principal Seat at Jabalpur Arising Out of an Order dated
21.07.2015 passed by this Hon’ble High Court in the matter of Mrs. Rekha
Yadav V/s Ravi Kumar Yadav, in the file of First Appeal No. 636 of 2015.
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PLACE : JABALPUR
DATE : ADVOCATE
FOR APPLICANT
IN THE HIGH COURT OF MADHYA
PRADESH PRINCIPAL SEAT AT JABALPUR
MISCELLANEOUS CIVIL CASE NO. OF 2017
APPLICANT/ : MRS.
REKHA YADAV, Aged about 33
Defendant years,
W/o Mr. Ravi Kumar Yadav, D/o Mr. Sahendra Prasad, Occupation : Housewife, R/o House
No. 91, Vikas Nagar, N-1, D-Sector, Govindpura, Bhopal (Madhya Pradesh)
Permanent R/o Village Dhalkochak, Post – Dualatpur, Police Station – Masauri
(Daulatganj), District – Patna (Bihar). Videocon : 9074705975
VERSUS
NON-APPLICANT/ : RAVI KUMAR YADAV, Aged
about 35
Plaintiff years,
S/o Late Mr. Ram Charitra Singh Yadav, R/o F- 179, C-Sector, Minal Residency,
J. K. Road, Bhopal (Madhya Pradesh).
APPLICATION UNDER ORDER 39 RULE
2-A OF THE CODE OF CIVIL PROCEDURE, 1908 (NO. 5 OF 1908) READ WITH SECTION 15 IN THE HINDU MARRIAGE ACT, 1955
Arising Out of an Order dated 21.07.2015 passed by this Hon’ble
High Court in the matter of Mrs. Rekha Yadav V/s Ravi Kumar Yadav, in the file
of First Appeal No. 636 of 2015, the applicant/ defendant named above most
humbly and respectfully begs to prefer the instant application on following
facts amongst the others :
Material facts of the case
1.
Applicant/ Defendant had preferred a First Appeal on 13.07.2015 Under
Section 19 Of The Family Courts Act, 1984 (No. 66 Of 1984) against the Judgment and Decree dated 18.06.2015 passed by the Court of
IInd Additional Principal Judge, Mr. D. K. Paliwal, Family Court, Bhopal,
District – Bhopal (Madhya Pradesh), in the matter of Ravi Kumar Yadav V/s Mrs.
Rekha Yadav, in the file of Regular Civil Suit No. 460-A of 2011 whereby and
whereunder a Decree for dissolution of marriage solemnized on 09.03.2008 was
granted.
2.
This Hon’ble High Court was pleased to kind enough in admitting
the First Appeal and passed the following Order :
“FA-636-2015
(MRS. REKHA YADAV Vs RAVI KUMAR YADAV)
21-07-2015
Shri
V.R. Singh, learned counsel for the appellant.
Admit.
Issue
notice to the respondent on payment of process fee within one week.
Notice
be also issued on I.A. No.8648/2015.
Call
for the records.
List
for hearing alongwith records.
Till
the next date, respondent shall not contract second marriage.
C.C.
as per rules.
(RAJENDRA
MENON) (SUSHIL
KUMAR GUPTA)
JUDGE JUDGE”
Certified Copy of the Order
dated 21.07.2015 passed by this Hon’ble High Court in the matter of MRS. REKHA YADAV Vs
RAVI KUMAR YADAV in the file of First Appeal No. 636
of 2015 is filed herewith and marked as Annexure
A-1.
3.
This Order has been passed on these circumstances : Non-applicant/
plaintiff had filed a Regular Civil Suit on 28.06.2011 for Decree of
dissolution of marriage solemnized on 09.03.2008 in the City of Bhopal according to Hindu
rites and ceremonies in the presence of friends, relatives and family members
of both the parties as enumerated under the
provisions of Section 13 (1) (ia) & 13 (1) (ib) of the Hindu Marriage Act,
1955 (No. 25 of 1955) on the ground that the marriage was not consummated since
November, 2008 and they are living separately since then.
4.
By filing the written statement Applicant/ defendant denied all
the adverse allegations and contentions raised against her by submitting that
the she was being harassed by the plaintiff for bringing less dowry inspite of
the fact that her father, according to his capacity gave sufficient dowry at
the time of solemnization of marriage. A demand of car was also made by the
plaintiff inspite of the fact that Rs.2 Lacs was given cash with household articles
worth Rs.1 Lac was given at the time of solemnization of marriage. It was also
submitted that once she was conceived but her feoteous was aborted at Vijay
Laxmi Hospital, Gautam Nagar, Bhopal at the instance of the plaintiff on the
ground that he does not need the child. It was also submitted that the marriage
is still subsisting as she is residing joint family in her matrimonial home
along with Maternal Father, Maternal Mother, Jeth, Jethani & their children and the
plaintiff frequently visits this place to consummate the marriage.
5.
Defendant
filed a suit on 22.04.2015 under Section 9 of the Hindu Marriage Act, 1955 (No. 25 of 1955) for restitution of conjugal rights
before the Principal Judge, Family Court, Bhopal forming subject matter of
Regular Civil Suit No. 435-A of 2015 which is still pending for final
adjudication. The Court below failed to consider the various submissions made
by the defendant and have mechanically without applying of the mind granted the
Decree of dissolution of marriage solemnized on
09.03.2008.
6.
Accordingly a Process Fee NO. 7759/2015 was paid on 28.07.2015.
Applicant sent a legal notice 30.07.2015 through her counsel Mr. Shyam Bihari
Singh, Advocate Bhopal informing him the temporary mandatory injunction granted
by this Hon’ble High Court. Copy of the legal notice dated 30.07.2015 is filed
herewith and marked as Annexure A-2.
Copy of its postal receipt dated 01.08.2015 is filed herewith and marked as Annexure A-3. It was returned
back for the reason not known to the applicant. Copy of the Envelope is filed
herewith and marked as Annexure A-4.
Since this notice retuned back, applicant again sent the same notice to the
non-applicant. Copy of the postal receipt dated 04.09.2015 is filed herewith
and marked as Annexure A-5.
It was also retuned back with a false endorsement that nobody is residing on
the address given. Copy of the returned Envelope is filed herewith and marked
as Annexure A-6. Applicant
also published a Public Notice on 15.09.2015 in a local daily newspaper “Nai
Dunia” Bhopal Edition. Copy of Public Notice on 15.09.2015 in a local daily
newspaper “Nai Dunia” Bhopal Edition is filed herewith and marked as Annexure A-7.
7.
Since the notice issued by this Hon’ble Court was returned
un-served. Therefore a fresh Process Fee No. 2732/2016 was paid on 29.02.2016
and the same was also returned un-served. Non-applicant thereafter appeared
before this Hon’ble High Court on 22.03.2016 by filing Vakalatnama No. 2955/2016. While
submitting the reply vide Document No. 2807/2016 to application under Order 39
Rule 1 & 2 CPC non-applicant categorically stated that he had solemnized
his second marriage on 08.07.2015 at Durga Mandir, J. K. Road, Bhopal allegedly
according to Hindu Rites and Rituals. Copy of the reply dated 13.04.2016 is
filed herewith and marked as Annexure
A-8. Affidavit in support of this reply shows the address is same as
reflected in cause title above. Non-applicant also submitted Card of Marriage
and wedding Photographs alongwith reply as Annexure R-1. Copy of the Card of
Marriage and wedding Photographs alongwith reply as Annexure A-9.
8.
It is humbly submitted that as per Section
15 of the 1955 Act, no person can re-marry even if a marriage
has been dissolved by a decree of divorce, till the period of filing an appeal
has expired without an appeal having been presented or the appeal having been dismissed.
Section 15 in The Hindu Marriage Act, 1955 is quoted below :
“15. Divorced
persons when may marry again. —When a marriage has been dissolved by a
decree of divorce and either there is no right of appeal against the decree or,
if there is such a right of appeal, the time for appealing has expired without
an appeal having been presented, or an appeal has been presented but has been
dismissed, it shall be lawful for either party to the marriage to marry again”.
9.
Hence
this application seeking punishment for disobedience and/ or willful breach of
temporary mandatory injunction on the following grounds amongst the others :
GROUNDS URGED :
A.
For that the expression 'other process of the Court' must be taken
to mean that any obstruction either by a party to litigation or anyone else
would constitute civil contempt within the meaning of Section 2(b) of the Act. Any
act on the part of a litigant or any other person which result in interference
or flouting the course of justice by his or her overt or covert acts must be
regarded as a civil contempt. In support of his submission, learned Counsel has
placed reliance on para 13 of the judgment of Hon'ble the Supreme Court in the
case of Savitri Pandey v. Prem Chandra Pandey . It
is further submitted that the intention of the parry contacting second marriage
in violation of Section 15 of the 1955 Act could be easily
to ascertained by his conduct because a duty is cast on such a party to make
inquiries about the filing of appeal, by the losing party, especially when it
is first appeal. It is humbly submitted that to err is human and right of one
appeal is recognized in all civilized judicial systems world over. In support
of his submission she places reliance on para 4 of the Division Bench judgment
of Calcutta High Court in the case of Smt.
Kajal Chowdhury v. Dilip Chowdhury .
B.
For
that, in such like cases it would be consistent with the policy of law to lay
down that it is undue interference in the process of a court and would
constitute a civil contempt. if a winning party is allowed to contract second
marriage without allowing the process of law to come to its logical end then no
re-conciliation and patch up between the parties at stage of first appeal
before the High Court would be possible. If such a course is permitted then it
world thwart the interest of justice. Law must effectively check the designed
tendency of a married person by bringing such person within 'civil contempt' to
contract second marriage after the presentation of appeal by the losing party
because it would advance larger public interest.
C.
For that a bare perusal of Section
2(c)(iii) of the Act would show that once the act of a party
are found to prejudice or interfere with due course of any judicial proceedings
or obstruct or tends to obstruct the administration of justice in any other
manner then it would constitute a criminal contempt. The act of re-marriage may
be considered such an act as would obstruct and interfere with due course of
judicial proceedings.
D.
For that, It would be appropriate first to notice the provisions
of Section
2(a) and (b) of the Act and Sections
15 and 23(2)(3)(4) of the 1955 Act, which are
reproduced as under:
Section
2(a) & (b) of Contempt
of Courts Act, 1971:
2(a) "contempt of court" means
civil contempt or criminal contempt;
(b) "civil contempt" means wilful
disobedience to any judgment, decree, direction, order, that writ or other
process of a court or wilful breach of an undertaking given to a court;
(c) "criminal contempt" means the
publication (whether by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of any other act
whatsoever which-
(i) scandalizes or tends to scandalize, or
lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to
interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with,
or obstructs or tends to obstruct, the administration of justice in any other
manner;
Sections
15 and 23(2)(3) & (4) of the Hindu
Marriage Act, 1955:
15.
Divorced persons when may marry again.- When a marriage has been dissolved by a decree of divorce and
either there is no right of appeal against the decree or, if there is such a
right of appeal, the time for appealing has expired without any appeal having
been presented, or an appeal has been presented but has been dismissed it shall
be lawful for either party to the marriage to marry again.
x
x x x
23.
Decree in proceedings.- (1) xxx
xxx xxx xxx
(2)
Before proceeding to grant any relief under this Act, it shall be the duty of
the court in the first instance, in every case where it is possible to do
consistently with the nature and circumstances of the case, to make every
endeavour to bring about a reconciliation between the parties:
Provided that nothing contained in this
Sub-section shall apply to any proceeding wherein relief is sought on any of
the grounds specified in Clause (ii), Clause (iii), Clause (iv), Clause (v),
Clause (vi) or Clause (vii) of Sub-section (1) of Section
13.
(3)
For the purpose of aiding the court in bringing about such reconciliation, the
court may, if the parties so desire or if the court thinks it just and proper
so to do, adjourn the proceedings for a reasonable period not exceeding fifteen
days and refer the matter to any person named by the parties in this behalf or
to any person nominated by the court if the parties fail to name any person,
with directions to report to the court as to whether reconciliation can be and
has been, effected and the court shall in disposing of the proceeding have due
regard to the report.
(4) In every case where a marriage is
dissolved by a decree of divorce, the court passing the decree shall give a
copy thereof free of cost to each of the parties.
E.
For that, A perusal of Sub-section (b) and (c) of affection 2 of
the Act makes it evident that in order to constitute civil contempt there has
to be a wilful disobedience to any judgment or 'other process of a court'. The
expression 'process of a court' would necessarily include the right to file an
appeal within the period of limitation. The conduct of getting the marriage solemnized
further shows the conduct and demeanor of the husband-respondent.
F.
For that, A perusal of Section
23(2) and (3) of the 1955 Act would show that a statutory duty
has been imposed on the Trial Courts to make an Endeavour to bring about the re
conciliation between the parties. By virtue of Sub-section (3) of Section
23 of the 1955 Act, the Court has been expressly empowered even
to adjourn be proceedings for a period not exceeding 15 days and refer the
matter to any person suggested by the parties in that behalf or any person
nominated by the Court with the direction to report as to whether
re-conciliation has taken place or could be effected. A further obligation has
been imposed on the Court to have due regard to the report while disposing of
the proceedings. Although no such express provision has been made imposing
similar obligation on the-first Appellate Court by Section
28 of the 1955 Act, yet, the Appellate Court is enjoined upon
performing such functions which are required to be performed by the Court that
has passed the decree. In that regard statutory guidance is available in
Section 96 of the Code of Civil Procedure, 1908. Section
96 has been interpreted repeatedly by their Lordships' of
Hon'ble the Supreme Court in the cases of H.K.N. Swami v. Irshad Basith
(2005)10 S.C.C. 243; Tarak Nath Sha v. Bhutoria Bros. Pvt. Ltd. ;
and Narbada Devi Gupta v. Drendra Kumar Jaiswal .
It has been repeatedly held in the aforementioned judgments that the Court
hearing the first appeal is competent to interfere in questions of facts and
law. It is a duty enjoined upon on the first Appellate Court to undertake all
the endeavours by examining the evidence in detail. It follows that in
matrimonial cases the first Appellate Court would also be duty bound to
undertake reconciliation process.
G.
For that, It is in the aforementioned context that the expression
'other process of the Court', as used in Section
2(b) of the Act, has to be construed. Once there is a duty cast
on the Court to make all endeavour to forge re-conciliation between the parties
and if the party obtaining decree enters into second marriage in a hurried way
displaying such a conduct which would defeat the purpose 'of filing first
appeal or nullifying the right of the losing spouse then it would be covered by
the expression 'wilful disobedience to other process of the Court.
H.
For that, The principles governing contempt jurisdiction do not
require that disobedience of the 'other process of the Court' is required to be
proved beyond reasonable doubt. The right of appeal is a substantive right
granted to the losing spouse by Section
28 of the 1955 Act, which is presumed to be known to the holder
of a decree of divorce. If any element of that right is defeated by the acts of
holder of a decree of divorce then it would constitute wilful disobedience of
'other process of the Court'. The fact of entering into second marriage by the
holder of a decree of divorce beyond the period of limitation would not
constitute a basis for him or her to argue that provisions of Section
15 of the 1955 Act alone may be attracted because Section
15 of the 1955 Act does not take into account wilful
disobedience of the other process of the Court, which include the right of
filing an appeal. Once the right of filing appeal is conceded as a substantive
right then reconciliation proceedings have to be construed as part of the right
of appeal. the excuse of entering into second marriage after the period of
limitation cannot be put forward as a valid excuse for testing the conduct of a
spouse in the light of the disobedience of other process of the Court. Suppose,
an appeal has been filed within the period of limitation and it is heard by the
Court a week after the expiry of the period of limitation, the Court after
hearing the appeal also issues an interim order restraining the holder of a
decree of divorce to remarry, the process of the Court is likely to take some
time. Is it possible for the holder of decree of divorce to argue that since
he/she has married after the expiry of the period of limitation as provided
under Section 28 of the 1955 Act, he/she should
not be held guilty of violating the other process of the Court.
I.
For, that such an approach would be consistent with the policy of
law as reflected in Section 23(2) and (3) of the 1955 Act. If
the law be otherwise then a game of hide and seek would follow, which may
result in defeating basic principles of law aimed at re-conciliation. It is
well known that a 'family' comprised of husband, wife and their children, is a
unit of the society and if a 'family' is disintegrated on account of minor
differences between the spouses, which could be avoided by a reconciliation,
then the spouses themselves would suffer. They may not be able to ever overcome
the physical and mental agony which could bring them back the same world of
their first marriage. The reconciliation proceedings, therefore, is one such
stage where the Court could play a vital role. The significance attached to
reconciliation cannot be over-emphasised. It is, however, suffice to observe
that many marriages have been saved by the interference of the Courts. The role
allocated to the Courts is something more than what Section
15 of the 1955 Act declares. According to Section
15 of the Act, a party to the dissolved marriage could marry
again if period of filing an appeal has expired or the appeal has been
dismissed. It necessarily implies that the decree holder has to make inquiries
that no appeal has been filed within the period of limitation or that the
appeal has been dismissed. Such a spouse cannot sit at home and wait the
summons to come because service of summons may not necessarily be effected on
the winning spouse within the period of limitation.
J.
For that, Once the act of entering into another marriage by
successful party is unlawful within the meaning of Section
15 of the 1955 Act, it would have consequences as per the
provisions of Section 11 and 17 of
the 1955 Act but those proceedings has nothing to do with the proceedings to be
initiated under Section 2(b) of the Act because Sections
5, 11 and 17 of
the 1955 Act operate in entirely different area and do not contemplate wilful
disobedience of 'process of a Court' as provided by Section
2(b) of the Act. It is true that any violation of a substantive
law would result into penal and other consequences and action is to be taken as
per provisions of such a substantive law. But every breach of substantive law
would not necessarily result into wilful disobedience of 'other process of the
Court'. The peculiarity in the proceedings under the 1955 Act involving role of
the Court is distinct in support of this view applicant place reliance of para
16 of the judgment of Hon'ble the Supreme Court in the case of Savitri Pandey
(supra), which reads thus:
“16. To appreciate such a submission some
facts have, to be noticed and the interest of public and society to be borne in
mind. It appears that the marriage between the parties was dissolved by a
decree of divorce vide the judgment and decree of the Family Court dated
18.7.1996. The respondent-husband filed appeal against the judgment and decree
on 19.1.1997. As no stay was granted, the appellant solemnised the second
29.5.1997, admittedly, during the pendency of the appeal before the High Court.
There is no denial of the fact that right of at least one appeal is a
recognised right under all systems of civilised legal jurisprudence. If despite
the pendency of the appeal, the appellant chose to solemnise the second
marriage, the adventure is deemed to have been undertaken at her own risk and
the ultimate consequences arising of the judgment in the appeal pending in the
High Court. No person can be permitted to flout the cause of justice by his or
her overt and covert acts. The facts of the cases relied upon by the learned
Counsel for the appellant are distinct having no proximity with the facts of
the present case. In all the cases relied upon by the appellant and referred to
hereinabove, the marriage between the parties was dissolved by a decree of
divorce by mutual consent in terms of application under Section
13B of the Act. This Court while allowing the applications
filed under Section 13B took into consideration the
circumstances of each case and granted the relief on the basis of compromise.
Almost in all cases the other side was duly compensated by the grant of lumpsum
amount and permanent provision regarding maintenance”.
K.
For that, It is well settled that when the contempt alleged is
with respect to wilful disobedience of 'other process of a Court which has been
provided for the benefit of both the parties and larger public interest then it
would plainly be civil contempt and there is no criminality in the disobedience
of such a process. The below mentioned questions
are required to be examined in the light of the facts which are evident from
this application :
1. Whether performance of a marriage after
filing of appeal, an unlawful act in terms of Section
15 of the Hindu Marriage Act, 1955, amounts to willful
disobedience to the "other process of the Court" disclosing a civil
contempt within the meaning of Section
2(b) of the Act?
2. Whether the act of marriage by the
respondent after the filing of the appeal interferes or obstructs the
administration of justice and thereby amounts to a criminal contempt within the
meaning of Section 2(c) of the Act?
L.
For that, In order to answer the second question we may first
notice Section 2(c) of the Act, which reads thus:
2(c) "criminal contempt" means the
publication (whether by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of any other act
whatsoever which-
(i) scandalizes or tends to scandalize, or
lowers (i) or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to
interfere with, the due course of any judicial the majesty of law and undermine
the dignity of the Court.
M. For
that, In cases where a contemner adds defiance of the Court to disobedience of
the order or process and/or he continues himself in a manner which amounts to
obstruction or interference with the course of justice then the contempt
committed by him/her is of a mixed character. Between him and his opponent it
may be a civil contempt and between the contemner and the Court it may be in
the nature of a criminal contempt.
N. For that, The
provision under Order 39, Rule 2-A(1) relates to the consequence of
disobedience for breach of injunction. The remedy available in case of
disobedience or breach of injunction is provided therein itself, which in this
view, has been made to provide a speedy inexpensive and effective forum and to
avoid multiplicity of litigation before different forums. The legislative
policies and intendment should necessarily weigh with us in giving meaningful
interpretation to the provision.
2A.Consequence of
disobedience or breach of injunction.- (1) In the case of disobedience of
any injunction granted or other Order made under rule 1 or 2 or breach of any
of the terms on which the injunction was granted or the Order made, the court
granting the injunction or making the order, or any court to which the Suit or
proceeding is transferred, may Order the property of the person guilty of such
disobedience or breach to be attached, and may also Order such person to be
detained in the civil prison for a term not exceeding three months, unless in
the meantime the court directs his release.
(2) No attachment
made under this rule shall remain in force for more than one year at the end of
which time, if the disobedience or breach continues, the property attached may
be sold and out of the proceeds, the court may award such compensation as it
thinks fit to the injured party and shall pay the balance, if any, to the party
entitled thereto.
10.
Non-applicant
has no respect and regard to the authority of this Hon’ble High Court. he has
willfully flouted the orders and directions passed by this Hon’ble Court. Inspite of appeal was filed, the non-applicant
entered into second marriage.
11.
It
is expedient in the larger interest of justice that Non-applicant be punished
in the accordance with law for default of breach of injunction order of this
Hon’ble Court.
12.
No
Special Leave Petition has been filed, challenging the order, in respect of
which breach of injunction order has been averred.
Caveat :
13.
That, no notice of lodging a caveat by the opposite party is
received.
An affidavit in
support of this application is being filed herewith.
P R A Y E R
It
is therefore, most humbly and respectfully, prayed that Non-applicant may
kindly be punished in the accordance with law for disobedience and/ or breach
of injunction order of this Hon’ble High Court, in the larger interest of
Justice with costs throughout.
PLACE : JABALPUR
DATED: ADVOCATE
FOR APPLICANT
IN THE HIGH COURT OF MADHYA
PRADESH PRINCIPAL SEAT AT JABALPUR
MISCELLANEOUS CIVIL CASE NO. OF 2017
APPLICANT/ : MRS.
REKHA YADAV
VERSUS
NON-APPLICANT/ : RAVI
KUMAR YADAV
AFFIDAVIT
I, MRS. REKHA YADAV, Aged about 33 years, W/o Mr. Ravi Kumar
Yadav, D/o Mr. Sahendra Prasad, R/o House No. 91, Vikas Nagar, N-1, D-Sector,
Govindpura, Bhopal (Madhya Pradesh) Permanent R/o Village Dhalkochak, Post –
Dualatpur, Police Station – Masauri (Daulatganj), District – Patna (Bihar),
the above named deponent, solemnly affirm and state on oath as under:
1.
That
I am the Applicant in the above mentioned application and am fully conversant
with the facts deposed to in the application.
2.
That
the contents of paragraphs 1 to 13 of the accompanying application are true to
my personal knowledge and the contents of paragraphs are based on legal advice,
which I believe to be true. No material has been concealed and no part is
false.
3.
That
the Annexure No(s). to the accompanying application are true copies of the
originals and I have compared the said Annexures with their respective
originals and certify them to be true copies thereof.
PLACE
: JABALPUR
DATED : DEPONENT
VERIFICATION
I, MRS. REKHA YADAV, the above named deponent do hereby
verify on oath that the contents of the affidavit above are true to my personal
knowledge and nothing material has been concealed or falsely stated. Verified
at ______this______day of _______
DEPONENT
IN THE HIGH COURT OF MADHYA
PRADESH PRINCIPAL SEAT AT JABALPUR
MISCELLANEOUS CIVIL CASE NO. OF 2017
APPLICANT/ : MRS.
REKHA YADAV
VERSUS
NON-APPLICANT/ : RAVI
KUMAR YADAV
LIST OF DOCUMENTS
|
S.No
|
Description of
document
|
Date of document
|
Original / copy
|
Number of page
|
|
1.
|
Order passed by this Hon’ble
High Court in the matter of MRS. REKHA YADAV Vs RAVI KUMAR YADAV in the file of First Appeal No. 636 of 2015
|
21.07.2015
|
Certified Copy
|
1
(One)
|
|
2.
|
Legal notice sent by applicant
through her counsel
|
30.07.2015
|
Xerox
|
1
(One)
|
|
3.
|
Postal receipt
|
01.08.2015
|
Xerox
|
1
(One)
|
|
4.
|
Returned Envelope
|
Xerox
|
1
(One)
|
|
|
5.
|
Postal receipt
|
04.09.2015
|
Xerox
|
1
(One)
|
|
6.
|
Returned Envelope
|
|
Xerox
|
1
(One)
|
|
7.
|
Public Notice in a local daily
newspaper “Nai Dunia” Bhopal Edition
|
15.09.2015
|
Xerox
|
1
(One)
|
|
8.
|
Reply submitted by non-applicant
|
13.04.2016
|
Xerox
|
3
(Three)
|
|
9.
|
Card of Marriage and wedding Photographs
alongwith reply
|
|
Xerox
|
2
(Twos)
|
PLACE : JABALPUR
DATE : ADVOCATE
FOR APPLICANT
APPENDIX 1-A
FORMAT OF V A K A L A T N A M A
[Rules 4
(1) of the Rules framed under the Advocates Act, 1961]
IN THE HIGH COURT OF MADHYA
PRADESH PRINCIPAL SEAT AT JABALPUR
MISCELLANEOUS CIVIL CASE NO. OF 2017
APPLICANT/ : MRS.
REKHA YADAV
VERSUS
NON-APPLICANT/ : RAVI
KUMAR YADAV
I, the Applicant/defendant
named below do hereby appoint, engage and authorize advocate (s) named
below to appear, act and plead in
aforesaid case / proceeding, which shall include applications for restoration,
setting aside for ex - parte orders, corrections, modifications, review and
recall of orders assed in these proceedings, in this Court or in any other
Court in which the same may be tried / heard / proceeded with and also in the
appellate, revisional or executing Court in respect of the proceedings arising
from this case / proceedings as per agreed terms and conditions and authorize
them to sign and file pleadings ,
appeals, cross objections, petitions, applications, affidavits, or the other
documents as may be deemed necessary and proper for the prosecution / defence of the said case in all its stages
and also agrees to ratify and confirm acts done by them as if done by us.
In
witness whereof we do hereby set our hands to these presents, the contents of
which have been duly understood by us, this – day of ----------------- 201
Particulars (in block letters) of each Party
Executing Vakalatnama
|
Name
and father s / Husband s Name
|
Registered
Address
|
E-Mail
Address (if any)
|
Telephone
Number (if any)
|
Status
in the case
|
Full
Signature/ **Thumb Impression
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
(6)
|
|
MRS. REKHA YADAV, Aged about
31 years, W/o Mr. Ravi Kumar Yadav, D/o Mr.
Sahendra Prasad,
|
R/o
House No. 91, Vikas Nagar, N-1, D-Sector, Govindpura, Bhopal (Madhya Pradesh)
Permanent R/o Village Dhalkochak, Post – Dualatpur, Police Station – Masauri
(Daulatganj), District – Patna (Bihar)
|
|
|
APPLICANT
|
|
Accepted
Particulars (in block letters) of each
Advocate Accepting Vakalatnama
|
|
Full
Name & Enrollment No. in State Bar Council
|
Address
for Service
|
E-mail
Address (if any)
|
Telephone
Number (if any)
|
Full
Signature
|
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
1.
|
VIJAY
RAGHAV SINGH
EN.
No. M. P. / ADV / 1554 / 2003
|
SEAT
NO. 93, GOLDEN JUBILEE BUILDING, CHAMBER NO. 317, VIDHI BHAWAN, HIGH COURT
PREMISES, JABALPUR 482 001
|
vijayraghav_singh@rediffmail.com
|
IDEA
98261-43925
|
|
|
2.
|
AMIT
KUMAR KHARE,
EN.
No. M. P. / ADV / 1291/ 2006
|
HOUSE
NO. 1483 / 17, SARASWATI COLONY, BEHIND PARIJAT BUILDING, CHERITAL, JABALPUR
482 001
|
NIL
|
BSNL
94258 66726
LAND LINE 0761 - 2345 005
|
|
|
3.
|
VIJAY
KUMAR SHRIVASTAVA, EN. No. M. P. / ADV
/ 949/ 2006
|
SEAT
NO. 81, HALL NO. 1, FIRST FLOOR, VIDHI BHAWAN, HIGH COURT PREMISES, JABALPUR
482 001
|
NIL
|
RIM
93015 04927
AIRTEL
97554 82448
|
|
*Score out which is not applicable
** The thumb impression shall be attested by
a literate person giving above particulars.
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