Vimal Kirti Gupta v. Rajan Gupta

Delhi High Court · 15 Feb 2024 · 2024:DHC:1176

Jasmeet Singh

CONT.CAS(C) 233/2022

2024:DHC:1176

family conviction_upheld Significant

AI Summary

The Delhi High Court held the respondent guilty of wilful contempt for deliberate non-payment of maintenance despite a binding court order, emphasizing that financial incapacity must be genuine and that appeal without stay does not excuse non-compliance.

Full Text

CONT.CAS(C) 233/2022
HIGH COURT OF DELHI

JUDGMENT

reserved on: 16.11.2023

Judgment pronounced on: 15.02.2024

CONT.CAS(C) 233/2022
VIMAL KIRTI GUPTA ..... Petitioner
Through: Dr. Pankaj Garg, Sr. Adv. with Mr. Milind Garg, Mr. Yaksh Gard, Ms. Astha Chetanf, Advs.

versus

RAJAN GUPTA..... Respondent
Through: Ms. Anu Narula, Ms. Meena, Advs.

CORAM:

HON'BLE MR. JUSTICE JASMEET SINGH

JUDGMENT

: JASMEET SINGH, (J)

1. This is a petition seeking initiation of contempt proceedings against the respondents for violation of the order dated 19.02.2021 passed by the learned MM-01 (Mahila Court), NW, Rohini Courts, Delhi in case titled as “Vimal Kirti Gupta v. Rajan Gupta”.

BRIEF FACTS GIVING RISE TO THE PRESENT PETITION

2. The petitioner and the respondent got married according to Hindu rites and ceremonies on 22.06.2003. Two children namely Moksha Gupta and Diksha Gupta were born out of their wedlock on 16.08.2004 and 23.07.2007 respectively. On 22.04.2011, a male child named Viraj Gupta was born out of the wedlock.

3. It is alleged that after their marriage, the respondent subjected the petitioner to physical and mental abuse by beating her, harassing her on account of bringing insufficient dowry and also taking away her stridhan. It is further alleged that in July 2018, the respondent threw the petitioner out of the house and since then, the petitioner is living separately from the respondent along with her three children. The petitioner has alleged that the respondent is wilfully neglecting to maintain the petitioner and their three children.

4. In August 2019, the petitioner filed an application u/s 12 of Prevention of Women from Domestic Violence Act, 2005 before the learned MM (North West), Rohini, Delhi. The petitioner had claimed that the respondent is running a business under the name and style of M/s SRT Manufacturing Industries and is earing approximately Rs. 2 to 3 crores per annum therefrom.

5. The respondent filed a written statement therein denying all the allegations of cruelty and harassment raised by the petitioner against the respondent. The respondent has admitted that he is running a business in the name and style of M/s SRT Manufacturing Industries but has denied that he is earning Rs. 2 to 3 crores as claimed by the petitioner. He states that this business is running in a loss and as such, he is in no position to pay the maintenance to the petitioner.

6. The respondent has further stated that he was running a Gold Gym wherein he was the Director, however, since October 2018, the Gym was closed down due to the acts of the petitioner. He states that on the other hand, the petitioner is working in the factory of her brother-in-law and is earning sufficient income to maintain herself.

7. Vide order dated 19.02.2021, the learned MM came to a finding that the petitioner is entitled to maintenance from the respondent. Accordingly, the Court directed the respondent to pay a total sum of Rs 53,000/- per month. The breakup of the amount is:i. Rs. 25,000/- per month to the petitioner; ii. Rs. 18,000/- per month to the three children(Rs. 6,000/- per child) and iii. Rs.10,000/- per month towards rental accommodation for the petitioner.

8. The relevant portion of the order dated 19.02.2021 reads as under:-

“9. In view of above discussion and after perusal of the material available on record and considering the financial as well as the social status of the parties, age of the minor children and the schools where they were study, this court is of the opinion that payment of maintenance amount of Rs. 25,000/- per month towards maintenance of the petitioner and payment of Rs. 18,000/- per month towards maintenance of the three children will meet the interest of justice. Accordingly, R-1 is directed to pay sum of Rs. 25,000/- per month towards interim maintenance of the petitioner and Rs. 18,000 per month towards interim maintenance of the three children (i.e. Rs. 6,000/- per month per child) from the date of application till they are legally entitled to be maintained by him as per law. The money, if any, received by the petitioner from R-1 towards maintenance of herself and aforesaid three children, granted by any Hon'ble Court, shall be adjusted. The maintenance amount be paid on or before the

10th of each month. Arrears shall be cleared within a time of six months from today.

10. Petitioner has prayed that respondent be directed to secure same level of residence for her or that she be awarded rent. R-1 is undoubtedly under an obligation to provide shelter to the petitioner, who is admittedly his wife and his three children. Petitioner has stated in her income affidavit that she is incurring expense of Rs. 10,000/- per month towards rent. The said averment appears to be plausible. In totality of the facts and circumstances of the case and the above discussion, R-1 is directed to pay Rs. 10,000/- as rent per month to the petitioner in lieu of accommodation of the petitioner and the three children, subject to placing on record the rent agreement and rent receipts. It is clarified that as no rent receipt is on record, therefore the said amount shall be granted as future rent. Petitioner is directed to provide bank account details to R-1 so that amount of rent in lieu of accommodation can be deposited in the said account directly, on or before 10th day of each calendar month subject to furnishing rent receipts by the petitioner.

9. The petitioner has alleged that despite the passing of the aforesaid order, the respondent has not paid a single penny to the petitioner or their children. In March 2021, the petitioner filed an Execution Petition bearing No.61/2021 for realization of the interim maintenance amount as ordered by the Court on 19.02.2021. It is further alleged that the respondent has not appeared in the Execution Case bearing No. 61/2021 despite numerous dates having been fixed. She states that the respondent has challenged the order of 19.02.2021, but there is no stay in favour of the respondent.

10. Hence, the contempt petition.

SUBMISSIONS ON BEHALF OF THE PETITIONER

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11. Mr. Garg, learned counsel for the petitioner submits that the respondent is guilty of violating the order dated 19.02.2021. He states that the respondent has ample funds at his disposal and is the owner of the following immovable properties:i. Top Floor of House No.9, Pocket-11, Sector-5, Rohini, Delhi; ii. A plot along with building thereon, measuring in approx. 150 sq yds. situated at Khasra No. 873/4,Rithala Nala Road, Village Rithala, Rohini, Delhi 110085.

12. He further states that the respondent also has two bank accounts, namely: i. Bank account in the name of M/s SRT Manufacturing Industries (Prop. Sh. Rajan Gupta) Account No. 01811300083270 in Punjab & Sind Bank; ii. Bank account in the name of Rajan Gupta Account NO. 05581000007476 in HDFC Bank, Sector-7, Rohini, Delhi.

13. It is submitted by learned counsel for the petitioner that the status of the business and income of the respondent has already been appreciated by the learned MM vide order dated 19.02.2021 and there is no iota of doubt that the respondent, being a person with sufficient means, has intentionally disobeyed the order of the Court by not paying the maintenance to the SUBMISSIONS ON BEHALF OF THE RESPONDENT

14. Ms. Narula, learned counsel for the respondent has primarily stated that the respondent does not have enough means and has expressed his inability to pay the maintenance as awarded by the order dated 19.02.2021 to the

15. She states that the Courts are well within the powers to reject the defence of inability to pay maintenance, but in case the inability for non-payment is not malafide, deliberate or wilful, then the Contempt Court should abstain from initiating Contempt proceedings. The Courts are well within their powers to reject the said defence, i.e. the inability to pay the maintenance, however, if the inability to pay or non-payment is not laced with any deliberate/wilful/ determined non-compliance or with malicious intent, then the act is not contemptuous.

16. She further states that if the defence of inability to pay maintenance is not genuine, the Executing Court may still issue warrants of arrest, but the Contempt Court, in law as well as equity cannot do so without arriving at the conclusion that non-payment is wilful/deliberate/intentional and hence contemptuous.

17. Ms. Narula, learned counsel submits that the order of 19.02.2021 has not yet attained finality and the challenge to the order dated 19.02.2021 is still pending adjudication in this Court in CRL.REV. 476/2023.

18. She has placed reliance on the judgement of the Hon’ble Supreme Court titled as “R.N. Dey v. Bhagyabati Pramanik” [(2000) 4 SCC 400], wherein it was observed that:- “7. We may reiterate that the weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for.”

19. She further places reliance upon a judgement of this Court titled as “Indian Overseas Bank v. Lalit Kumar Aggarwal” [2000 SCC OnLine Del 710], which reads as under:- “….. This apart, it appears, that petitioner Bank was using contempt action either to bypass execution process or to use it as its substitute to ensure speedy recovery of its money which had nothing to do with the dignity or majesty of the court or its order. Needless to emphasis that contempt is a matter between the court and the alleged contemner and is not to be used for purposes of recovery of money or executing a decree, more so where a law provides a procedure or mechanism and alternative remedy for it.”

20. Reliance is also placed upon a judgement “Kinri Dhir v. Veer Singh”[2022 SCC OnLine Del 1177] of this Court, and more particularly paras 15-17 to state that the mere disobedience of orders is not contempt, unless the Court comes to a finding that the same is a wilful and deliberate disobedience. The relevant portion reads as under:-

“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)”

21. She additionally submits that while it is admitted that the Gold Gym is closed, the respondent is continuing to pay the maintenance awarded to his children on a regular basis without any default. Moreover, he has also paid a lumpsum amount of Rs. 7 lakhs towards arrears of maintenance to the petitioner based on the financial resources at his disposal. Hence, the present Petition is liable to be rejected.

ANALYSIS AND CONCLUSION

22. I have heard learned counsels for the parties.

23. The order dated 04.08.2022 passed by this Court reads as under: “1. The present petition has been filed alleging non-compliance with the directions contained in the order dated 19.02.2021, passed by the learned MM-01 (Mahila Court), NW, Rohini, Delhi. In the terms of the directions contained in the said order, the respondent is liable to pay a total maintenance of amount of Rs.53,000/- per month w.e.f. 14.08.2019. It is stated by learned counsel for the petitioner that the total arrears as on date are to the tune of more than Rs.20 Lacs.

3. Prima facie, the respondent is guilty of contempt of the aforesaid order dated 19.02.2021.

4. Issue show cause notice to the respondent, as to why action for committing contempt of court under Section 2(b) read with Sections 10 and 12 of the Contempt of Courts Act, 1971 be not taken against the respondent.

5. The respondent is also directed to remain personally present on the next date of hearing.

6. List on 26.08.2022.”

24. The order dated 14.12.2022 passed by this Court reads as under:

“1. The Respondent is personally present in Court in compliance with the order dated 30th November, 2022. 2. The learned counsel for the Respondent states that the Respondent has made a payment of Rs. 4 lakhs on 13th December, 2022 to the Petitioner in compliance with the undertaking given to this Court, which is recorded vide order dated 10th October, 2022. 3. The learned counsel for the Petitioner confirms the receipt of the said payment. However, he states that even after the receipt of the said amount, there is an arrear of Rs. 13,67,000/- due and payable to the Petitioner by the Respondent. He states that the Respondent may be directed to timely remit the maintenance due and payable for the current month of December, 2022 and the successive months, without any further defaults. He states that it is a matter of record that as per order dated 19th February, 2021 passed by the Ld. MM- 01 (Mahila Court), NW, Rohini, Delhi, there are three components of maintenance i.e., Rs.35,000/- for the Petitioner, Rs.18,000/- for the minor child and Rs. 10,000/- for the rent. The sum total of the amounts is Rs. 53,000/-. 4. The learned counsel for the Respondent on instructions states that the Respondent cannot comply with the order of maintenance. She states the Respondent is currently in a position to only make a monthly payment of Rs. 18,000/- to the minor child. She states that the Respondent is unwilling to assure this Court that he will remit the payment as towards the maintenance for the Petitioner and the rent. She prays that the proceedings be adjourned to await the orders of

the Appellate Court as the Respondent is hopeful of the Trial Court order being modified.

5. At the outset, it is observed that the aforesaid submission of the Respondent cannot be accepted by this Court. The unwillingness of the Respondent to pay maintenance for the current month cannot be countenanced by this Court. Though an appeal has been filed, admittedly there is no stay granted by the Appellate Court. The order of the Trial Court until it is modified by the Appellate Court is binding on the parties and the Respondent cannot exercise an option to not abide by the orders of the Trial Court. The parties have taken recourse to law and approached the competent Court to determine their rights and obligations. The Trial Court after duly considering the material before it has determined the maintenance to be payable by the Respondent. Inasmuch as the Petitioner herein will be bound by any modification which may be made by the Appellate Court, so also the Respondent is bound to comply with the order of the Trial Court. For the rule of law to prevail it is necessary that the parties who take recourse to legal remedies have confidence that the orders passed by the Courts shall be complied with by the opposite party; lest the proceedings before the competent courts be reduced to a mock trial.

6. In a civil society which favours the rule of law, no person can be allowed to elect to not comply with the orders of the Court. In this regard, this Court would like to refer to the decision of the Hon‟ble Supreme Court in Subrata Roy Sahara v. Union of India and Others, (2014) 8 SCC 470 wherein it was held as follows: “185.2. Disobedience of orders of a court strikes at the very root of the rule of law on which the judicial system rests. Judicial orders are bound to be obeyed at all costs. Howsoever grave the effect may be, is no answer for non-compliance with a judicial order. Judicial orders cannot be permitted to be circumvented. In exercise of the contempt jurisdiction, courts have the power to enforce compliance with judicial orders, and also, the power to punish for contempt. (For details, refer to paras 15- 21.)” (Emphasis supplied) This Court finds that the Respondent himself has taken a recourse to filing an appeal and has approached the Appellate Court. It is the contention of the Respondent that the Petitioner herein should await the orders of the Appellate Court and not press the present proceedings though, he is expressing his unwillingness to comply with the order of the Trial Court. It is thus, evident that Respondent is taking inconsistent stands to the prejudice of the Petitioner and exhibiting disregard for the orders of the Court.

7. This Court therefore finds the Respondent‟s election to not pay the Petitioner her maintenance and rent as determined by the Trial Court, is a defiant stand. The order of the Trial Court is in operation and the Respondent is bound by the same. If the Respondent continues to default in his obligation to comply with the orders of the Trial Court, he shall face the consequences of non-compliance.

8. The learned counsel for the Respondent seeks time to file reply affidavit to the show cause notice issued in pursuance to the order dated 4th August, 2022 within a period of four weeks. Rejoinder, if any, within two weeks thereafter, before the next date of hearing.

9. List on 25.01.2023.”

25. Pursuant to the order dated 04.08.2022 and 14.12.2022, the respondent has filed an affidavit dated 09.02.2023. In the said affidavit, the emphasis of the respondent is on the behaviour of the petitioner. As regards the finances, it is stated that the petitioner was one of the Directors of M/s. SRT Fitness Private Ltd and was 50% shareholder in that company. M/s SRT Fitness Private Ltd took franchise of M/s Gold Gym. It is also stated that the petitioner created hurdles in the day-to-day affairs of M/s SRT Fitness Private Ltd, instructed the Branch Manager of ICICI Bank, Rohini not to disburse the loan amount and not to allow any transaction in the account of M/s. Gold Gym. Hence, the whole business fell apart. It is further stated that M/s. Gold Gym was closed and an FIR bearing No. 261/2018 under Sections 406/420 IPC was registered against the petitioner as well as the respondent for deficiency in services and cheating.

26. On 16.10.2018, the respondent was remanded to judicial custody for 10 days in FIR No. 261/2018. The franchise with gold gym was also terminated. It is further submitted that the respondent is an acute diabetic patient and on account of his health condition, is unable to do his business of dyes started in the year 2019. It is further stated that there are cases filed by the bank, there are dues of the municipal authorities and hence, the respondent on account of financial insufficiency is unable to pay the amount of maintenance awarded to the petitioner and towards her rental accommodation. Lastly, it is submitted that the respondent is only earning about Rs. 20,000/- to Rs. 25,000/- per month. Hence, the primary defence of the respondent is that he is unable to comply with the Court order due to severe financial difficulty.

27. Section 2(b) of Contempt of Courts Act, 1971 defines Civil Contempt. It states that “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court”.

28. Thus, it is clear that in order to punish under the Contempt of Courts Act, there must be: i. An order passed by a Court/ undertaking given to a Court. ii. The disobedience of such an order/undertaking must be deliberate, wilful and malafide.

29. In the present case, an order dated 19.02.2021 has been passed by the learned Trial Court directing the respondent to make payments towards maintenance of the petitioner, their children and towards the rental accommodation of the petitioner. There is also no stay of order dated 19.02.2021 by the sessions Court or by this Court. This Court on 26.08.2022 directed the respondent to pay Rs. 3,00,000/- to the petitioner. Thereafter, vide order dated 10.10.2022, the respondent was directed to pay Rs. 4,00,000/- to the petitioner which was paid, though belatedly.

30. The primary defence taken by the respondent for non-compliance of the order dated 19.02.2021 is that he is unable to pay the amount as awarded by the learned Trial Court. He has expressed his inability to comply with the order. In view of financial hardships, the respondent prays for dismissal of this case.

31. I am unable to agree with the submissions made by learned counsel for the respondent.

32. The defence taken by the respondent that he is continuously paying Rs. 18,000/-towards maintenance of the children does not help the respondent. The order of 19.02.2021 contains specific directions to pay maintenance not only to the three children, but also to the petitioner and towards her rental accommodation. It does not lie upon the respondent to selectively adhere to directions that are convenient to him and ignore the directions that are inconvenient. Partial compliance is no compliance and full adherence to Court orders is mandatory. The orders passed by Courts and undertakings made before the Court must be fully honoured.

33. It is argued by the respondent that an appeal against order dated 19.02.2021 has been filed and hence the order dated 19.02.2021 has not yet attained finality. It is a settled law that merely filing an appeal does not absolve the parties from complying with the mandate of the order which is challenged in appeal. Throughout the pendency of the appeal, in the absence of any stay, the parties remain obligated to adhere to the terms of the order/judgment in appeal and must comply with the all the directives contained therein.

34. Order XLI Rule 5 of CPC reads as under:- “Stay by Appellate Court- (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.”

35. Thus, it is clear that initiation of an appeal does not grant a temporary reprieve from compliance, the parties are required to adhere to the terms of the order appealed, until the appellate Court has set aside/stayed the order. Additionally, on 14.09.2023 in CRL.REV. 476/2023, this Court expressly clarified that there is no stay of proceedings before the learned Trial Court. Hence, the argument that on account of pendency of appeal, the order dated 19.02.2021 need not be complied with, is without any merit.

36. The next question that is necessary for my consideration is whether in view of the fact that the remedy for execution is available and that the petitioner has already filed an execution, then whether this contempt will lie. The Hon’ble Supreme Court in “Urban Infrastructure Real Estate Fund v. Dharmesh S. Jain” [(2022) 6 SCC 662] has considered the observations made in R.N. Dey (supra). The relevant portion reads as under:- “19.2.R.N. Dey v. Bhagyabati Pramanik, wherein this Court held that the weapon of initiating contempt proceedings could not be used for execution of a decree or implementation of an order. That is, a court should not invoke contempt jurisdiction, where alternate remedies are available to secure the terms of an order. We are mindful of the fact that contempt proceedings should not be of the nature of „execution proceedings in disguise.‟ However, we hold that the case law cited supra would not come to the aid of the contemnor herein as the facts of the said case were significantly different from the case at hand. In the said case, no stay was operating on the decree of which contempt was alleged. Therefore, the decree-holder therein could very well initiate execution proceedings. However, in the instant case, the High Court, by order dated 8-8-2019 [Nirmal Lifestyle Ltd. v. Urban Infrastructure Real Estate Fund, 2019 SCC OnLine Bom 13106] stayed the Award subject to the deposit of an amount. The time period of such deposit has been extended by this Court on two occasions while continuing the order of stay by implication. Having taken the advantage of the extended time period, the respondent-contemnor cannot, at this juncture, take the plea that non-compliance with the condition of deposit would only render the arbitrator's award enforceable and that such failure to comply would have no consequences under the Contempt of Courts Act, 1971.

20. Further, it is trite law that the jurisdiction of a court under the Act, would not cease, merely because the order or decree of which contempt is alleged, is executable under law, even without having recourse to contempt proceedings.

21. Contempt jurisdiction could be invoked in every case where the conduct of a contemnor is such as would interfere with the due course of justice; vide Rama Narang v. Ramesh Narang. Contempt is a matter which is between the Court passing the order of which contempt is alleged and the contemnor; questions as to executability of such order is a question which concerns the parties inter se. The power of the Court to invoke contempt jurisdiction, is not, in any way, altered by the rights of the parties inter se vide Bank of Baroda v. Sadruddin Hasan Daya.”

37. This Court in “Indra Pasricha v. Deepika Chauhan” [(2022) 2 HCC (Del) 769] also opined that: - “8. The law of contempt has been brought primarily to secure public respect and confidence in the judicial process and provide a sanction for any act or conduct which is likely to destroy or impair such respect and confidence. It is well settled that contempt must not be resorted to when there are provisions for execution, but at the same time, just because remedy of execution lies, it does not mean that contempt proceedings cannot be initiated. (Refer: Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, Bombay (P) Ltd.).”

38. Execution proceedings seek enforcement of inter se rights between the parties concerned, whereas Contempt proceedings are initiated wherein the orders passed by the Court are wilfully, deliberately and malafidely disobeyed. The lis in Contempt proceedings is between the Court and the contemnor.

39. The same is also borne out from a meaningful reading of the observations made in Kinri Dhir (supra) and Indian Overseas Bank (supra). In fact, in Kinri Dhir (supra), this Court has stated that in case of conscious and wilful disobedience of an order of the Court, a case of contempt can be made out.

40. There is a thin line between the remedy of Execution of an order and resorting to Contempt proceedings. While the recourse of Execution may be an available option, however, what cannot be lost sight of is that the Court must also be conscious of its dignity, majesty, respect and compliance of its orders. The respect, confidence and supremacy of judicial proceedings must be maintained at all costs to secure rule of law and order in the society. People must have confidence in the judicial proceedings and the sanctity of the orders passed by the Courts.

41. For the said reasoning, I am of the view that merely because the petitioner has a right to file an execution petition, and that the petitioner has filed an execution petition, will not absolve the respondent from non-compliance of the directions contained in the order dated 19.02.2021.

42. The last question that arises for my consideration is whether the noncompliance of the order dated 19.02.2021 is intentional, malafide and deliberate. The learned MM on 19.02.2021 directed a total payment of Rs. 53,000/- per month to the petitioner (Rs. 25,000/- for the petitioner, Rs.18,000/- for the three children and Rs. 10,000/- towards rental accommodation of the petitioner). Admittedly, the respondent is making a payment of only Rs. 18,000/- for the three children out of the said sum of Rs. 53,000/-.

43. The stand of the respondent regarding inability to make the payment of maintenance to the petitioner is based on averments that his business M/s SRT Manufacturing Industries is running into losses. To support his argument of financial incapacity, he has annexed copies of his ITR’s which show his total income of Rs. 2,80,170 and Rs. 2,76,640 for the assessment years 2021-22 and 2022-23 respectively.

44. The Courts time and again have noticed and observed that parties tend to fudge their financial figures and assets in matrimonial matters on account of severe acrimony and hostility in order to make less payment to the other spouse.

45. In the present case, the respondent owns 2 properties namely (i) Top Floor of House No.9, Pocket-11, Sector-5, Rohini, Delhi and (ii) a plot along with building thereon, measuring in approx. 150 sq yds. situated at Khasra NO. 873/4, Rithala Nala Road, Village Rithala, Rohini, Delhi 110085. The respondent has admitted ownership of both the properties in his reply to the Contempt Petition. However, the respondent has only annexed documents regarding property being Khasra No. 873/4, Rithala, Rohini, New Delhi-

110085. The documents annexed with the reply to the show cause are SARFAESI notices, property tax notices and one notice u/s 138 of the Negotiable Instruments Act. The respondent has not filed any document to show the status of the property being House No.9, Pocket-11, Sector-5, Rohini, Delhi and why this property cannot be utilised to comply with the order dated 19.02.2021. In addition, the respondent has also not filed any document to show as to what steps the respondent has taken to settle the loan of the bank, to move applications before the bank for auction of the property, find some prospective buyer so that amounts can be salvaged to comply with the order dated 19.02.2021.

46. The inability to comply with the directions of the Court orders on account of circumstances beyond the control of a party (as in the present case being financial inability) must be put on the highest degree of scrutiny and threshold as that would be enabling a party to circumvent the order of a Court on account of supervening circumstances. In case the Courts only go on the statements of the parties that they are unable to comply with the orders of the Court on account of financial difficulties without conducting any assessment of that alleged financial incapacity, the respect for the sanctity and confidence of the orders passed by the Court and it’s need to be implemented, will be eroded. The orders passed by the Courts (until and unless set aside by a superior Court or reviewed by the Court itself) are to be complied with in its true letter, spirit and intent and every effort must be made in that direction.

47. The documents definitely seem to suggest that the respondent is not in a comfortable financial position, however, in view of the fact that he is running a business of M/s SRT Manufacturing Industries, has two immovable properties, I am also of the view that his financial incapacity is not to such an extent that he is incapable to comply with the directions contained in order dated 19.02.2021. To me, the averment of the respondent that he is unable to comply with Court’s directives due to financial incapacity seems to be a lame excuse in an attempt to evade the compliance of the order dated 19.02.2021.

48. The learned Trial Court has passed the order dated 19.02.2021 after duly appreciating and considering the facts of the case and the material on record. In the present case, the respondent is able-bodied, was running good business and thus, the quantum of the awarded amount is not so huge that the respondent cannot arrange the same by legitimate means. The respondent has not been able to show any mitigating circumstances as to why he should not be punished for the wilful breach of the order dated 19.02.2021.

49. The observations made by the Division Bench of this Court in “Sonali Bhatia v. Abhivansh Narang” [2021 SCC OnLine Del 5114] are important and read as under:-

“34. It has been time and gain reiterated by the Supreme Court that the orders of Courts have to be obeyed unless and until they are set aside in appeal/revision. The onus is on the party to establish and satisfy the court that the order is null and void, and therefore not executable or enforceable. However, in the present case, the respondent has withdrawn his appeal against the order of the Family Court. Thus, there is no question of his establishing that the order

passed by the Family Court granting maintenance to the petitioner, or the order passed by this Court in the respondent‟ matrimonial appeal was null and void. Even otherwise, they cannot be considered as null and void, since they were passed by Courts of competent jurisdiction after hearing the respondent herein. The Respondent has not shown any regard towards the majesty of the court by obeying its orders. He has shown no remorse or regret for non-compliance of the aforesaid orders. If there is wilful disobedience to any judgment, decree direction, order writ or other process of a court, or wilful breach of undertaking given to the court, the contempt court shall take note of such violation, that needs to be punished. The wilful disobedience by the contemnor undermines the dignity and authority of the Courts and outrages the majesty of law. In Ram Kishan v. Tarun Bajaj, (2014) 16 SCC 204, the Court has delineated the contours for initiating civil contempt action. The Court observed thus:

12. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is “wilful”. The word “wilful” introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one's state of mind. “Wilful” means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a “bad purpose or without justifiable excuse or stubbornly, obstinately or perversely”. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. “Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct.”

35. The conduct of the respondent taken note of hereinabove shows that he has tried to act over smart with the Court by concealing his true income and expenditure, and the channels into which his incomes are flowing, and the manner in which they have been utilised. He has not come clean despite grant of repeated opportunities. His conduct shows that he his defiantly disobeying the orders of the Court despite being called upon to comply with them repeatedly.

37. We, therefore, impose a fine upon the respondent of Rs. 2,000/-. We punish him with simple imprisonment for a term of 3 months.”

50. For the reasons recorded above, the respondent is held guilty of intentionally and deliberately violating the order dated 19.02.2021 passed by the learned MM-01 (Mahila Court), NW, Rohini Courts, Delhi in case titled as “Vimal Kirti Gupta v. Rajan Gupta” in Ct. Cases 15327/2019.

51. The respondent is sentenced to undergo Simple Imprisonment for a period of 1 month and is also liable to pay fine of Rs. 2,000/-. The order passed today will be with effective from 16.03.2024 in order to enable the respondent to purge himself of the Contempt and clear the dues before the said date.

52. List before the Joint Registrar on 20.03.2024 for compliance, if any.

53. With these directions, the petition is disposed of.

Vimal Kirti Gupta v. Rajan Gupta

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