N.C. Talukdar, J.
1. This is a Rule for contempt issued by our learned brothers. R.N. Dutt and K.K. Mitra. JJ. calling upon the respondent, Santosh Kumar Base, to show cause why he should not be dealt with for contempt of Court for having violated orders dated the 23rd September, 1969 and the 25th July, 1970, passed by Shri P.K. Chanda. Judge, 3rd Bench. City Civil Court, Calcutta, in matrimonial Suit No. 66 of 1969.
2. The facts leading on to the Rule are chequered but can be put in a short compass. The applicant Mira Bose was married to the respondent on the 7th July, 1965 and two sons, viz., Tamal and Prasanta. were born out of the wedlock on the 15th. February. 1967 and the 11th April, 1968 respectively. The relationship between the husband and the wife unfortunately became embittered and on or about 22.11.68 the petitioner was compelled to leave her husband's place due to alleged cruel and inhuman treatment. The children were however kept back by the respondent. The petitioner filed an application against the respondent under Section 10 of the Hindu Marriage Act, 1955 (Act 25 of 1955). being Matrimonial Suit No. 66 of 1969 for judicial separation, inter alia on the grounds of cruelty before the learned Judge, 3rd Bench, City Civil Court. Calcutta. An Application under Section 24 of the Hindu Marriage Act was also filed by the wife for maintenance pendent elite and expenses of proceedings and by an order dated the 31st March, 1970. the petitioner was granted a maintenance at the rate of Rs. 125/- per month. Another application was filed thereafter by the petitioner under Section 26 of Act 25 of 1955 for the interim custody of the two children left behind, on the ground of their tender age requiring thereby their mother's care and attention. The application was opposed and ultimately on 23.9.69 the learned Judge passed an order directing the respondent to make over the custody of the children to the petitioner. The petitioner had filed an application dated 7.10.69 for directions on the respondent to deliver custody of the two children to her at an early date, at a place to be specified by the Court, and an objection thereto was filed by the respondent The operation of the said order was however stayed to enable the respondent to prefer an appeal against the aforesaid order and the same being F.M.A. 3505 of 1969 was dismissed on 1.12.69 by Santosh Kumar Chakrabarty and S.K. Dutta. JJ. The application for leave to appeal there from to the Supreme Court, being application No. 9 of 1970 (S.C.A.T. 3959 of 1969), was refused on the 12th March, 1970 and the special leave application there from being S.L.P. 1287 of 1970, was also refused by the Supreme Court on 21.7.70. The aforesaid application dated 7.10.69 and the objection thereto, which could not be disposed of in view of the pending appeal in the High Court and the subsequent leave applications. After the disposal of the said matters, the petition and the respondent's objection thereto were heard by the learned Judge. The objection by the respondent to the wife's application stated, inter alia, that the Hindu Marriage Act. 1955 provides the mode and procedure for execution of orders and decrees passed under the Act and the proper procedure is for the petitioner to apply for such execution and accordingly the application as filed was not maintainable-Reference was made to the provisions of Section 28 of Act 25 of 1955 to lend assurance to the contention advanced on behalf of the respondent. The learned Judge referred to the submissions made on behalf of the petitioner that the application dated the 7th October, 1969 was not for execution of the order dated the 23rd September, 1969 passed by the Court but that the petitioner simply wanted a direction by the court on the respondent regarding the place and date where the custody of the children would be delivered so that the petitioner could take appropriate steps for enforcement of the order for the custody of the children. The learned Judge held that the objection raised on behalf of the respondent has accordingly no force and to avoid any further complication in connection with the enforcement of the order passed earlier by the court on 23.9.69. he proceeded to specify the date and place where the custody of the children would be delivered to the petitioner and in that view he directed the respondent to deliver the custody of the two children, in pursuance of the earlier order passed on 23.9.69, to the petitioner in court on the 1st August, 1970. The application filed by the wife and the objection thereto submitted by the husband were disposed of accordingly. On the 1st August, 1970 a petition was filed on behalf of the respondent praying for a reconsideration and recall of the order dated 25.7.70 on grounds as mentioned therein. It was inter alia stated that the order dated 25.7.70 is without jurisdiction, not warranted by the provisions of the Hindu Marriage Act, 1955 and the Code of Civil Procedure and as such the prayer made in this behalf by the petitioner was not maintainable in law. The respondent proceeded to state further in paragraph 5 of the aforesaid petition that it will not be possible for your petitioner to bring the children to the court and to deliver them to the plaintiff inasmuch as the children will cry on seeing unknown faces and they cannot be brought to the environment of 'the court at all and their grandmother and great grand-mother and paternal aunt with whom they pass the most part of their time do not consider it possible to do so. 'Ultimately a prayer was made for a reconsideration and recall of the order dated 25.7.70. The said application was however rejected by the learned Judge by Ms order dated the 1st August. 1970 and it was inter alia observed that 'the reason for non-production of the children in court is wholly unsatisfactory ...there is no substance in the petition and it is accordingly rejected.' It was further recorded in the order that 'the learned Advocate appearing on behalf of the respondent submits that the respondent is not going to produce the children in court this day for delivering them to the petitioner mother.' It was ultimately directed that the petitioner may take appropriate steps for enforcement of the order regarding the delivery of the minor children. The orders referred to above were put to execution and by an order dated 16.1.71, the Mat. Ex. Case No. 2 of 1-970 was dismissed for non-prosecution with liberty to file a fresh application for execution. Thereafter the orders dated 23.9.69 and 25.7.70 were put to execution under Section 28 of the Hindu Marriage Act. 1955 read with Section 45 of the Guardians and Wards Act. 1890 and Section 51 of the Code of Civil Procedure and the same is pending before the learned Judge, 3rd Bench, City Civil Court, Calcutta. On 18.8.70 the petitioner filed air application before the learned Judge, 3rd Bench. City Civil Court Calcutta for taking-action against the respondent for contempt of court for violation of the orders dated 23.9.69 and 25.7.70 passed by him. Shri P.K. Chanda. Judge. 3rd Bench, City Civil Court; Calcutta however by his order dated the 22nd January, 1971 reflected the said application holding, inter alia, that the application for contempt was not maintainable in view of the provisions of Section 28 of the Hindu Marriage Act, 1955 laying down that decrees and orders made by the court in any, proceeding under the Act shall be enforced in like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction are enforced. The learned Judge further observed that Sections 36 to 74 and Order 21 of the C.P.C. provide for the execution of the decrees and orders and an order for the custody of the minor children is to be executed by the provisions similar to those of Section 45 of the Guardians and Wards Act. 1890. He ultimately held that when specific remedy is available and when the petitioner had taken out execution of the order, the interests of justice do not require any action for contempt of court to be taken; The present application for contempt of court was thereafter filed in the Court and this Rule was issued on 7.4.71, An affidavit-in-opposition affirmed by, the respondent on 15.11.71 as well as &n.; affidavit-in-reply on behalf of the petitioner Sm. Mira Bose affirmed on 26.11.71 were duly filed thereafter.
3. Mr. Manas Ranjan Chakraborty Advocate (with Miss Uma Misra. Advocate) appearing on behalf of the petitioner. Sm. Mira Bose. submitted that the respondent wilfully violated the orders passed the learned Judge, 3rd Bench, City Civil Court, Calcutta on 23.9.69 and 25.7.70 by keeping the two children in his custody and was acting in contumacious disregard thereof on one ground or other. It was further submitted that the flouting of the order was deliberate in spite of the fact that the respondent lost on the issue before the Judge, 3rd Bench City Civil Court. Calcutta, the High Court and the Supreme Court; Objection was also taken to the manner of the objection and the language couched therein. Mr. Ajit Kumar Dutt. Advocate (with Mr. Shyam Sundar Pal, Advocate) appearing on behalf of the condemner-respondent, submitted that the contentions made on behalf of the petitioner are based on a misapprehension inasmuch as the two orders dated 23.9.69 and 25.7.70 passed by the learned Judge, 3rd Bench, City Civil Court. Calcutta are to be enforced in accordance with the procedure laid down under Section 28 of the Hindu Marriage Act, 1955. Mr. Duttsubmitted in this context that Section 28 of Act 25 of 1955,having laid down the mode and procedure for execution of orders and decrees passed under the Act. it is the duty of the petitioner to apply there under and not to follow a procedure unknown to law. rendering thereby the application filed in that behalf, to be bad and repugnant. In view of the clear and specific provisions of the statute and the unambiguous terms thereof there is no question of any contempt for a purported violation of the said orders. Mr. Dutt further submitted that in the affidavit-in-reply filed on behalf of the contemnor the points raised on behalf of the petitioner have been traversed and there is also an unqualified apology made to the court.
4. Having heard the learned Advocates appearing on behalf of the respective parties and on going through the affidavits which are on the record, we hold that a mere violation of the two orders dated 23.9.69 and 25.7.70 passed by Shri P.K. Chanda Judge 3rd Bench, City Civil Court. Calcutta, would not amount to contempt in view of the specific provisions contained in Section 28 of the Hindu Marriage Act. 1955 laying down the mode and procedure for execution of the two orders passed by the City Civil Court. It is pertinent in this context to refer to the (background of facts. Even on the 25th July. 1970 when the second order was passed by Shri P.K. Chanda, Judge, 3rd Bench. City Civil Court, Calcutta it was made quite clear by him that the said order was being passed to avoid future complications and that date and place were being specified to avoid any. further complication in connection with the enforcement of the order, dated the 23rd September. 1969. He categorically referred to the submissions made on behalf of the petitioner that the application filed in court on 7.10.69 on behalf of the petitioner was not by way of an execution of the order dated 23.9.69 but for necessary directions given in that context to avoid future complications and that the petitioner was aware that she would have to take appropriate steps for enforcement of the order regarding the custody of the children. Such appropriate steps appear to have been taken in fact by filing M.A.T. Ex. Case 2 of 1970, which being dismissed for non-prosecution with liberty to file fresh application, a fresh application for execution was filed and is pending before the learned Judge, 3rd Bench, City Civil Court, Calcutta, It is abundantly clear that the petitioner ultimately followed the proper remedy by filing the first application for execution on 20.8.70 and it being dismissed for non-prosecution, by filing a fresh application for execution which is now pending. It is difficult to comprehend why an application for contempt was filed before the learned Judge, 3rd Bench, City Civil Court, Calcutta two days before the same. The learned Judge, however, by his order dated 22.1.71 ultimately rejected the application for contempt on the ground that it is not maintainable in view of the provisions of Section 28 of the Hindu Marriage Act. 1955, providing for the procedure as to how decrees and orders passed under the Act are to be enforced. Mr. Chakraborty appearing on behalf of the petitioner laid emphasis on the point that there has been in fact a blatant violation of the two orders passed by the Judge. 3rd Bench City Civil Court Calcutta. Mr. Dutt joined issue and submitted that there is no blatant violation but a mere pointing out of the position in law as to how the said order not be carried out excepting in accordance with the procedure of the statute as laid down and the dominant consideration on the part of the contemnor was to make his position clear and not so much as to flout the authority of the court. Mr. Dutt further made it clear that his client, as is mentioned in the affidavit-in-reply filed in this behalf, is a law abiding citizen, haying respect for law and order and it is farthest from his intention to violate the order of the City Civil Court, as alleged or at all.
5. To properly understand the point at issue one has to understand the principles underlying a contempt of court. The law relating to contempt has to be properly understood before an alleged contemnor can be held guilty of a contumacious disregard of an order passed by the court affecting thereby the dignity and authority of the court and interfering with the course of justice. The expression 'contempt's curiae' is as old as the hills. Oswald in his 'Contempt of Court' (3rd Edn. 1910) has defined contempt of court as follows:
To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties litigant, their witnesses during the litigation.
Contempt of court however, is not an ordinary proceeding and the question involved is a serious one. As was observed again by Oswald:
This jurisdiction must, however, be exercised with care and the disobedience must be wilful.
Mr. Justice Kay observed in the case of Gay v. Hancock, (1887) 56 LT 726, that
This Court should exercise a very great care in putting rate force its power and sending persons to prison.
It is quite true that the halo of solemnity surrounding the courts of justice since the dawn of civilization should not be allowed to be disturbed by a blatant interference with its orders, defiling thereby the sacred temples where justice is dispensed with by the high priests, the Judges. Emphasis on due care to be taken in the exercise of the jurisdiction has again been laid by Mr. Justice Binayak Nath Banerjee in the case of P.C. Sen. Chief Minister of West Bengal, reported in 70 Cal WN 579 : 66 Cri LJ 883 wherein Mr. Justice Banerjee observed at page 592 that
The power of committal for contempt must be wielded with the greatest of care and caution, should be exercised with the greatest of reluctance and the greatest of anxiety and only with the object of seeing that the dignity and authority of the court be not impaired.
We may further refer in this context to the observations of M. Hidayatullah, C. J. delivering the judgment of the Court in the case of Debabrata Bandopadhayav v. State of West Bengal reported in AIR 1969 SC 189 at p. 193 : 1949 Cri LJ 401 that
A question whether there is contempt of court or not is a serious one... It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished... Punishment under the law of contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged.
We respectfully agree with the said observations and applying the same to the facts of the present case, we hold that the dominant intention on the part of the contemnor was not to flout the orders of the court as such but to press for the proper procedure to be followed in enforcing such orders in view of the material provisions of Section 28 of Act 25 of 1955 providing for the mode and procedure for execution of such orders. In view of the clear reiteration thereof in the petition of objection and/or of review or reconsideration filed by the respondent on 1.8.70, it is abundantly clear that his failure to produce the minor children as directed in court was not deliberate or wilful but on the basis of the position in law incorporated in the provisions of Section 28 of Act 25 of 1955 and to give effect to the prayer made on behalf of the petitioner would be 'to take action in an unclear case of contempt.'
6. Before we part with the case, we refer to the ancillary submission made on behalf of the petitioner by Mr. Ghakraborty pin-pointing the statements made in Paragraph 5 of the petition of objection filed on 1.8.70 as also the statement of the lawyer incorporated in the order passed by the learned Judge, 3rd Bench. City Civil Court, Calcutta on 1.8.70. Mr. Chakraborty submitted that in view of the language thereof and also in view of the background of facts the same has amounted to contempt. It is pertinent, therefore, to refer to the terms of the Rule. The application for contempt in this Court was specifically on the ground of violation of the order dated 23.9.69 and 25.7.70 passed by the learned Judge, 3rd Bench, City Civil Court. Calcutta in Matrimonial Suit No. 66 of 1969 and the Rule issued by this Court on 7.4.71 called upon the respondent to show cause as to why he should not be dealt with for contempt, for violation of the said two orders. Apart from the question of merit, to give effect to Mr. Chakraborty's submission would be to travel beyond the ambit of the Rule and perhaps embark on a voyage of discovery. It is pertinent in this context to refer to the case of Dulal Chandra Bhar v. Sukumar Banerjee reported in 62 Cal WN 595 : 58 Cri LJ 1162 wherein Chakraborty C. J. delivering the judgment of the Division Bench observed at page 606 that
It is well-established now that a notice or Rule for contempt must set out precisely and in detail the deeds or words which are said to constitute contempt and that if such details of the charge are not given. there is no case to answer.
Here the particulars have been incorporated and the respondent was called upon to make a full answer to the charge against him. The ancillary submission of Mr. Chakraborty does not dovetail into the terms of the Rule. Mr. Chakraborty made an alternative submission that even if, strictly speaking, the Rule was not issued on line basis of such a ground, this Court exercising its inherent powers under the contempt of court jurisdiction has got unfettered rights and in the interests of justice its long arms can reach the purported defiance highlighted in the statements in paragraph 5 and lent assurance to by observations referred to by the learned Judge. Mr. Dutt appearing on behalf of the contemnor submitted in the first instance that the statements in paragraph 5 are not in any way sinister as alleged and have to be read in the context of the previous contentions made in paragraphs 3 and 4. In any event. Mr. Dutt urged that the anxious consideration on the part of the respondent was to explain his difficulties so that he may not be accused of any wilful violation of the order of the Court. The language used may not have been very happy but there was no intention to flout law and order. So far as the observations of the learned lawyer, as contained in the order passed by the learned Judge, 3rd Bench, City Civil Court. Calcutta are concerned. it is difficult for us to take the same into consideration in this context. The learned Judge appears not to have found any fault with the same and the language used in the order may not necessarily have been the language used by the learned Advocate and it would not be fair to impinge it at this stage. So far as the statements in paragraph 5 of the petition of objection dated 1-8-70 are concerned it cannot certainly be overlooked that before the said petition of objection was filed. F.M.A.T. 3505 of 1969 filed by the respondent was summarily dismissed by the High Court on 1.12.69 and the application for leave to appeal to the Supreme Court was also rejected on 12.3.70 followed by an order passed by the Supreme Court on 21.7.70 refusing special leave to appeal. The order dated 12.3.70 passed by the Division Bench of this Court refusing leave has since been reported in (1970) 74 Cal WN 689. It was observed amongst others that 'admittedly parties are Hindus and so the learned Judge was perfectly justified in relying on Section 6 of the Hindu Minority and Guardianship Act. What is more, it is well settled now that it is the welfare of the children which should be the guiding principle in coming to a finding as to with whom the custody of the children should be and as ordinarily the custody of the children aged leas than 5 years should be with the mother unless it is shown that she has forfeited her right.' The learned Judge considered the welfare of the children and as we have pointed out. he has given a definite finding that the children should be in the custody of the mother. Therefore any further discussion of the merits of the order was supremely unwarranted and irrelevant but we ultimately hold that the said observations do not and cannot in the facts and circumstances of the present case amount to contempt. Mr. Dutta appearing on behalf of the contemnor has submitted, as has been referred to above, that the dominant consideration on the part of his client was to explain the bona fide difficulties in bringing the children to the court as he proceeded on the footing that the amendment of the previous order on the 25th July, 1970 meant a direction to deliver the custody of the children physically in Court on the 1st August, 1970 and in that view, the difficulties were pointed out to the court. In any event the respondent expressed his regrets for the said statement. We have given our anxious consideration to the matter and we hold ultimately that the statements made in paragraph 5 do not amount to contempt. Those were certainly unwarranted and uncalled for in the context of the case but do not amount to any interference with the course of justice or lower the dignity of the Court.
7. In the result, we discharge the Rule.
8. Let the affidavits filed in court be kept on the record.