Bhaskar Bhattacharya, J.@mdashThis Rule has been issued on an application for contempt filed by the appellant of a First Miscellaneous Appeal
alleging willful disobedience of the respondent by violating the order dated 22nd June, 2007 passed by a Division Bench of this Court in
connection with the said appeal whereby the respondent was restrained from further proceeding with the application for divorce being numbered
as 06 FA 1452 of the Circuit Court, Branch1, at Waukesha Country of Wisconsin State, United States of America. According to the applicant, in
spite of full knowledge of such order, the respondent proceeded with the said Matrimonial Proceeding and got an ex parte order of divorce from
the above Court of the United States of America.
2. The petitioner before us filed a suit being Matrimonial suit No. 893 of 2007 in the Court of District Judge, Alipore, District: South 24- Parganas
for judicial separation against the respondent and also for declaration that their marriage cannot be dissolved except in accordance with the
provision of the Special Marriage Act and in connection with the said suit, she filed an application for injunction restraining the respondent from
proceeding with the Matrimonial Proceedings being 06 FA 1452 in the Unites States of America as stated above.
3. The learned District Judge having refused to grant any ad interim order of injunction, the petitioner preferred an appeal being F.M.A.T. No.
2334 of 2007 before this Court and immediately after admission of the said appeal under Order 41 Rule 11 of the Code of Civil Procedure, she
moved an application for appropriate order being CAN No. 5281 of 2007 whereupon a Division Bench of this Court directed the learned
advocate for the petitioner to serve copy of the application upon the respondent informing that the matter would appear before appropriate Bench
after four weeks from 22nd June, 2007. Direction was given for service of the copy of the application not only direct upon the respondent but also
through the Indian Embassy in the Unites States of America. The Division Bench also passed an ad interim order of injunction restraining the
respondent from further proceeding with the application for divorce being 06 FA 1452 of the Circuit Court, Branch 1, at Waukesha Country of
Wisconsin State, Unites States of America till five weeks from that day or till the disposal of the application whichever was earlier with liberty to
the petitioner to apply for extension of order of injunction after service of the notice upon the respondent.
4. As indicated earlier, on the allegation that in spite of full knowledge of the order dated 22nd June, 2007 passed by the Division Bench, the
respondent proceeded with the said proceeding for divorce before the Court of United States of America and got an ex parte decree on 12th
September, 2007, this application for contempt has been filed.
5. The specific allegation of the petitioner in this application is that in spite of definite knowledge of the order of the Division Bench, the respondent
on 17th July, 2007 appeared before the said Court in the United States of America to proceed with the said application for divorce. Although
attention of the said Court was drawn to the fact that a Division Bench of this Court had already granted injunction restraining the respondent from
proceeding with the same at the instance of the petitioner, by subsequent order dated 12th September, 2007 the said Court granted a decree for
divorce.
5. The respondent has entered appearance in this Rule and filed affidavit-in opposition thereby contending that the order dated 22nd June, 2007
was served upon him only on 3rd August, 2007. It was sought to be contended that on 3rd August, 2007 when the order dated 22nd June, 2007
was served upon him, by that time, the interim order passed by the Division Bench had already expired and he was under the impression that the
extension of the said order of injunction would be made only after service of appropriate notice him. Subsequently, the parties were directed to file
supplementary affidavit for the purpose of bringing on record of this Court the extract of the proceeding of the said American Court during the
subsistence of the order of injunction and those have been filed before this Court.
6. After hearing the learned Counsel for the parties and after going through the materials on record, we are satisfied that although the order dated
22nd June, 2007 was officially served in the month of August, 2007 the respondent had specific knowledge of the order on 10th July, 2007 as the
copy of the order was served upon his learned advocate in the United States of America. It further appears that on 12th July, 2007 when the
matter appeared before the American Court, the petitioner drew the attention of the said Court to the fact that this Court had already passed an
order restraining the husband from proceeding with the said proceeding for divorce and the respondent was present in Court on that day with his
learned advocate. It further appears from the materials on record that in answer to the specific question put by the Court as to whether the
respondent was willing to proceed with the matter, his counsel, in his presence, expressed his intention to proceed with the said proceeding for
divorce. We are, therefore, convinced that in spite of knowledge of the explicit order passed by this Court that the respondent was restrained from
continuing with the said proceeding for divorce, he decided to proceed with the said proceedings and thus, violated the order of this Court.
7. We, now, proceed to consider whether in view of our aforesaid finding, it is a fit case for imposition of penalty under the provision of Contempt
of Court Act.
8. Mr. Moloy Kumar Basu, the learned senior advocate appearing on the behalf of the respondent by referring to the details of the proceedings
before the said American Court submitted before us that both the parties filed a joint petition for divorce in the said Court and suppressing such
fact, the wife has obtained the ad interim order of injunction from this Court. According to Mr. Basu, his client decided to proceed with the said
proceeding for divorce on the basis of advice of his learned Counsel in the Court of America with the understanding that if the proceeding was not
continued, the Court would dismiss the proceeding for divorce and his client would be deprived of his accrued right to get divorce. In such
compelling circumstances, his client was constrained to violate the order of this Court.
9. Mr. Basu further contends that the petitioner in same breath is contending that the American Court had no jurisdiction to deal with the said
proceeding and at the same time, had asked the appellant to pay the money pursuant to the order of divorce granted by the said Court. In such
circumstances, Mr. Basu contended that this Court should condone the unintentional act of his client.
10. Mr. Bose, the learned advocate appearing on behalf of the wife-petitioner, however, has opposed the aforesaid contention and has contended
that the husband has deliberately violated the order of this Court with full knowledge of the same, and thus, it is a fit case for imposing a penal
order. Mr. Bose further contends that his client has not received any amount of money from the husband pursuant to the order of divorce passed
by the American Court. He, therefore, prays for not only passing penal order but also passing appropriate order revoking the decree for divorce
passed by the American Court. Therefore, the questions that fall for determination in this rule is whether we should pass a penal order upon the
respondent for willful violation of the order of this Court and should also pass necessary direction for restitution of the matrimonial status of the
parties as it existed on the date of passing the ad interim order namely June 22, 2007.
11. As pointed out by a five-Judge-Bench of the Apex Court in the case of Supreme Court Bar Association Vs. Union of India and Another, , the
jurisdiction relating to the contempt of Court is a special jurisdiction to be exercised sparingly and with caution, whenever an act adversely affects
the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. According to the
said decision, this jurisdiction may also be exercised when the act complained of adversely affects the Majesty of Law or dignity of the Courts and
the purpose of contempt jurisdiction is to uphold the Majesty and dignity of the Courts of law. It was further pointed out that it is an unusual type of
jurisdiction combining ""the jury, the Judge and the hangman"" and it is so because the Court is not adjudicating upon any claim between litigating
parties. The Supreme Court further emphasised that this jurisdiction is not be exercised to protect the dignity of an individual Judge but to protect
the administration of justice from being maligned and in the general interest of the community, it is imperative that the authority of Courts should not
be imperiled and there should be no unjustifiable interference in the administration of justice. It was further held that it is a matter between the Court
and the contemnor and third parties cannot intervene. It is exercised in a summary manner in aid of the administration of justice, the Majesty of law
and the dignity of the Courts and no such act can be permitted which may have the tendency to shake the public confidence in the fairness and
impartiality of the administration of justice.
12. Bearing in mind the aforesaid principles laid down by the Apex Court, we propose to consider the respective submissions of the learned
advocates for the parties.
13. In this case, by violating the order of this Court granting injunction, the respondent has tried to make the appeal and the application for
injunction pending in the Trial Court in fructuous. The fact that the respondent was aware of the order passed by this Court has been well
established and it will appear from the order passed by the foreign Court itself that option was given to the respondent to decide whether he would
proceed with the proceedings of divorce and the respondent decided to ignore the prohibitive order passed by this Court to secure his own
interest. It is therefore clear that the violation was intentional to protect his own interest at the cost of Majesty of the Court of his own motherland.
We are not at all impressed by the submission of Mr. Basu, the learned senior advocate appearing on behalf of the respondent, that his client acted
on the advice of his lawyer in the foreign Court. The respondent is an educated person and is capable understanding the simple and plain meaning
of the order of injunction passed by this Court. The act complained of has definitely interfered with due administration of justice and as such, we
propose to inflict punishment upon the respondent for deliberate violation of our order.
14. As pointed out by the Supreme Court in the case of Smt. Pushpaben and Another Vs. Narandas V. Badiani and Another, , normally the
sentence that should be given to an offender who is found guilty of civil contempt, is fine and not imprisonment, which should be given only where
the Court is satisfied that ends of justice require the imposition of such a sentence.
15. In this case, although the respondent has secured a decree for divorce from a foreign Court, we are conscious that the petitioner is not
remediless and she can dispute the legality of such decree in the suit itself out of which the appeal before this Court has been filed or by filing a
fresh suit in this country. Moreover, we cannot lose sight of the fact that the said divorce proceedings were initiated by a joint application for
divorce by both the parties. Although Mr. Basu, the learned senior advocate appearing on behalf of the respondent, tried to impress upon us that
the petitioner has also taken benefit of the said order and that the suit out of which the present application for contempt has been filed was
instituted only with mala fide intention, we have not gone into merit of such submission in this jurisdiction when it has been found that the order
passed by this Court has been deliberately violated causing interference with due administration of justice.
16. We have considered the apology tendered by the respondent but having regard to the fact that the violation is a deliberate one, we are of the
view that such prayer of acceptance of apology is not sincere one and has been made only to00/- payable to the petitioner within one week after
the reopening of this Court after the annual vacation.
avoid punishment.
17. On consideration of the materials and record and the conduct of the parties, we impose a fine of Rs. 2000/- to be paid by the respondent
within two days after the date of reopening of this Court after the annual vacation. In default, he will undergo simple imprisonment for 7days.
18. We do not find any merit in the contention of Mr. Bose, the learned advocate for the appellant that we should also restore his client to the
position that prevailed when the order of injunction was passed by setting aside the decree for divorce passed by the foreign Court. The order
passed by this Court was an ex parte interim order without hearing the respondent. If the petitioner can succeed on merit in the suit out of which
the appeal before this High Court arises, she will get her complete remedy. But in this application for contempt we propose not to enter into the
question whether the decree passed by the foreign Court based on the law of that country will be binding upon the parties when they are still the
Indian citizens and their marriage was governed by the law of this land.
19. The Rule is, thus, made absolute to the extent indicated above with costs which we assess at Rs. 10,0
Prasenjit Mandal, J.
20. I agree.