Judgment:
M.M. Kumar, J.
1. On account of their significance and frequent presence in a large number of cases the following two questions of law have been referred to this Bench for 'authoritative' opinion:
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?
2. The aforementioned questions are required to be examined in the light of the facts which are evident from the reference order dated 29.8.2007. Smt. Jasbir Kaur has filed the instant petition under Sections 11 and 12 of the Contempt of Courts Act, 1971 (for brevity, 'the Act'), alleging disobedience of order dated 19.9.2003 (P-1) passed by this Court in F.A.O. No. 211-M of 2003. The petitioner-Smt. Jasbir Kaur has filed the appeal (F.A.O. No. 211-M of 2003) assailing the order and decree of divorce, dated 5.8.2003, passed by the learned Additional District Judge, Patiala. On 30.4.1990, marriage between Smt. Jasbir Kaur and Shri Kuljit Singh was solemnised. On 30.9.1996, the husband-respondent filed a petition under Section 13 of the Hindu Marriage Act, 1955 (for brevity, 'the 1955 Act'). On 5.8.2003, learned Additional District Judge, Patiala, allowed his petition by granting him a decree for dissolution of marriage. Feeling aggrieved, the wife-petitioner approached this Court by filing first appeal on 9.9.2003 (FAO No. 211-M of 2003) and this Court on 19.9.2003 passed the following order:
Issue notice to show cause why appeal be not admitted returnable on 9.2.2004. Respondent shall be present in Court on the next date of hearing. In the meantime, respondent is restrained from remarrying.
3. Subsequently, the appeal was admitted by this Court vide order dated 22.3.2005. The wife-petitioner has filed the instant petition alleging that the husband-respondent has contracted second marriage with one Baljit Kaur. Out of that wedlock a male child has also born. It has further been claimed 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. In support of the allegation that the husband-respondent has contracted second marriage with Baljit Kaur certain photographs have also been placed on record as Annexures P-4 to P-7. The wife-petitioner has also placed on record the birth certificate of the male child born on 14.2.2004 (P-2) and another certificate dated 16.3.2005, issued by the Apollo Public School, Urban Estates, Phase-I, Near Radio Station, Patiala, certifying that Jasmeet Singh son of S. Kuljeet Singh Bhatia and Mrs. Baljeet Kaur was a bonafide student of 5th class in the said school and his date of birth is 17.2.1994 (P-3).
4. In reply, the husband-respondent took the stand that he had contracted the marriage on 15.9.2003, which was registered on 18.9.2003, whereas the restraint order was passed by this Court only on 19.9.2003. It has been asserted that the wife-petitioner obtained certified copy of the order and decree of divorce dated 5.8.2003 on 12.8.2003, however, instead of filing an appeal by attaching the said certified copy of the judgment, the petitioner applied for another copy on 26.8.2003 and on the basis of the said copy, she filed F.A.O. No. 211-M of 2003. Moreover, the appeal, complete in all respects, was filed in this Court only on 18.9.2003 and thus, it has been claimed that the marriage performed by the husband-respondent before receipt of notice from this Court, cannot be termed as violation of the orders passed by this Court, inasmuch as, the husband-respondent was not aware of any restraint order.
5. When the matter came up for consideration, Hemant Gupta, J. passed the reference order dated 29.8.2007, by observing that the controversy involved in the instant petition arises quite frequently and is of great importance which requires authoritative consideration by a larger Bench. In this manner, the matter has been referred to this Bench for deciding the above quoted two questions.
6. Mr. Arun Jain, learned Senior counsel for the wife-petitioner has submitted 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 Apt. According to the learned Counsel 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 sup port 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 : [2002]1SCR50 . He has 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. Learned Counsel has 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 he has placed reliance on para 4 of the Division Bench judgment of Calcutta High Court in the case of Smt. Kajal Chowdhury v. Dilip Chowdhury : AIR2004Cal113 .
7. Referring to the facts of the present case, learned Counsel has submitted that the parties got married on 3.4.1990 and divorce petition filed by the husband-respondent was accepted on 5.8.2003 and first appeal, namely, F.A.O. No. 211-M of 2003, was filed on 9.9.2003 in person by the wife-petitioner, which was returned to her on 10.9.2003 as the Registry had raised some formal objections. The appeal could only be re-filed on 18.9.2003 and the restrained order directing the husband-respondent from contracting marriage was passed on 19.9.2003. Mr. Jain has maintained 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. He has argued that 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. He has insisted that if such a course is permitted then it world thwart the interest of justice. According to Mr. Jain 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.
8. On the second question as to whether the act of contracting second marriage would constitute criminal contempt, learned Counsel has submitted 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. According to the learned Counsel, the act of re-marriage must be considered such an act as would obstruct and interfere with due course of judicial proceedings. However, learned Counsel has not been able to answer the query raised by the Court as to whether the act of contracting second marriage after passing of decree of divorce and the expiry of 30 days would constitute criminal contempt because such an act cannot be considered as the one obstructing the course of justice and its due administration.
9. Mr. G.S. Bhatia, learned Counsel for the husband-respondent has submitted that the act of contracting second marriage would result into violation of substantive law as laid done in Section 15 of the 1955 Act. According to the learned Counsel if a marriage is contracted during the life time of a spouse, it would be violative of first condition envisaged by Section 5(i) of the 1955 Act and such a marriage under Section 11 of the 1955 Act may be void marriage. He has maintained that adequate provision for bigamy has been made by Section 17 of the 1955 Act. The Contempt of Courts Act was originally enacted in 1952, which has been replaced by the Contempt of Courts Act, 1971 and had the legislature intended the act of second marriage during the pendency of first appeal as an act of contempt then nothing prevented the legislature to incorporate the same in Section 17 of the 1955 Act. He has maintained that there is neither any express provision nor any revealation by necessary intendment which may warrant an inference that the act of second marriage would result into a civil contempt. He has further submitted that if violation of substantive law could result in contempt then all acts of a citizen violating any substantive law like commission of offences would be regarded as contempt of Court.
10. Another argument raised by the learned Counsel is that Section 23(4) of the 1955 Act provides for supply of a copy of a decree to the parties free of cost. The interpretation given to the aforementioned provision by a Division Bench of this Court in the case of Smt. Surjit Kaur v. Tarsem Singh A.I.R 1978 P&H; 209, would show that even if a copy free of cost is not furnished to the parties on the date of judgment and (decree, the period of 30 days (or 90 days as presently provided) would start running. Adverting to the facts of the present case, learned Counsel has submitted that period of 30 days expired on 4.9.2003, which commenced from 5.8.2003 and the second marriage was contracted on 15.9.2003 by the husband-respondent, which is much beyond the period of limitation of 30 days. Therefore, the husband-respondent was safe to presume that the decree of divorce has attained finality and he was free to enter into second marriage. He has then submitted that even if a marriage has been contracted in contravention of the provisions of Section 15 of the 1955 Act, it would not be void as has been held by Hon'ble the Supreme Court in the case of Smt. Lila Gupta v. Laxmi Narain : [1978]3SCR922 . It is contended that in any case after deletion of proviso to Section 15 of the 1955 Act, the marriage after period of limitation of 30 days is permissible, as has been held by Hon'ble the Supreme Court in the case of Tejinder Kaur v. Gurmit Singh : [1988]2SCR1098 .
11. Having heard learned Counsel for the parties, the stage is now set to answer the legal questions raised.
12. 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 x23. 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.
13. 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. An appeal under Section 28 of the 1955 Act could be filed against decrees and orders before the Court where ordinarily an appeal in the exercise of its original civil jurisdiction is to lie. The period of filing appeal for the purposes of this case is 30 days from date of the decree or order. The appeal in the present case was filed on 9.9.2003 by availing the days for obtaining certified copy. The appeal was returned on 10.9.2003 by the Registry because of some procedural flaw. The appeal was re-filed on 18.9.2003 and an order was passed on 19.9.2003 restraining the husband-petitioner from contracting another marriage and also asking him to be present in the Court on 9.2.2004. Eventually the appeal was admitted on 22.3.2005. It is significant to notice that the husband-respondent did not ever raised any objection based on Section 28(4) of the 1955 Act with regard to the period of limitation within which the appeal should have been filed. It is not disputed that the husband-respondent has contracted second marriage on 15.9.2003. Therefore, it has to be concluded that the appeal has been filed within the period of limitation on 9.9.2003. The conduct of the husband-respondent shows that he was in a shooting hurry and contracted second marriage on 15.9.2003. He also got the marriage registered on 15.9.2003. The conduct of getting the marriage registered further shows the conduct and demeanour of the husband-respondent.
14. 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. : AIR2002SC2063 ; and Narbada Devi Gupta v. Drendra Kumar Jaiswal : AIR2004SC175 . 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.
15. 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.
16. 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. We are of the view that the excuse of entering into second marriage after the period of limitation can not 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. The answer is obvious that such an-argument cannot be raised.
17. We are also inclined to accept the contention raised by Mr. Arun Jain, learned senior counsel for the wife-petitioner, 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.
18. 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 and, therefore, we find no merit in the argument of Mr. G.S. Bhatia; learned Counsel for the husband-respondent, in support of our view we place reliance oh 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.
(emphasis added)
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.
In view of the above, we answer the first question in the affirmative.
19. Re: Question No. 2:
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. 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. Therefore, we are not inclined to accept that contracting second marriage after the period of limitation provided by Section 15 of the 1955 Act would be covered by the expression that it interferes or obstructs the administration of justice within the meaning of Section 2(c)(iii) of the Act. Therefore, we answer the second question in negative.
For the reasons aforementioned, the reference is answered accordingly. Let the matter be now listed before the learned Single Judge as per roster.