Contempt Proceedings Would Not Lie In Absence Of Positive Act For Wilful Disobedience: Gujarat HC Declines Plea Against UK-Based Litigant

"…while dealing with the contempt petition, the Court is not expected to conduct a roving inquiry and go beyond the very judgment which was allegedly violated. The said principle has to be applied with more vigour when disputed questions of facts have arisen and the documents produced are true and genuine being in the realm of adjudication ought to have been taken up for adjudication…"

The Bench was dealing with an Article 215 petition praying that the Respondent be arraigned for the 'wilful breach' of the order of January 2021 passed for the stay of divorce proceedings at the Family Court of United Kingdoms.

The order of stay of proceedings at the Family Court was issued by the Division Bench of the High Court in a First Appeal and the same order came to be extended from time-to-time. Additionally, the Petitioner stated that the order was challenged before the Supreme Court which had not disturbed the order of stay. However, the UK Court passed a preliminary decree.

It was the Petitioner's case that the Respondent had wilfully, through his Solicitor, not informed the UK Court about the order of stay by the Gujarat HC. This tantamounted to contempt u/s 2(b) of the Contempt of Courts Act, 1971.

Per contra, the Respondent asserted that the order of stay was not against the Respondent but against the UK Court. The Respondent had notified the order of the High Court to the counsels in UK but the UK Court proceeded to pass a decree. It was insisted that the Petitioner was a citizen of UK and the Family Court had granted relief of divorce in the form of a decree.

Perusing these contentions, the Bench affirmed that no direction was issued by the High Court to the Respondent to do any particular act. The continuation of the interim order did not indicate any 'positive direction' to the Respondent. Accordingly, it was observed:

"From the E-mail correspondence placed before the Court, it appears that this stay order had been communicated to the Court at Willesden, United Kingdom by the petitioner, but it appears that the Court at United Kingdom did not wait and proceedings have been taken forward which culminated in passing of a decree."

Though the Respondent was keen on getting an order from the UK Family Court, it did not clearly transpire that the Respondent had taken any positive steps to press the matter before the Family Court. In this context, the High Court also explained thus while relying on Dr. U.N. Bora, Ex-Chief Executive Officer & Ors., v. Assam Roller Flour Mills:

"When two views are possible, the element of willfulness vanishes as it involves a mental element. It is a deliberate, conscious and intentional act. What is required is a proof beyond reasonable doubt since the proceedings are quasi-criminal in nature."

As a result, the Bench found no 'concrete material' to conclude that there was a wilful disobedience of the order and if there was any concrete material indicating that the Respondent and Solicitors had taken positive steps for hearing the proceedings before the Family Court, then the Petitioner was at liberty to initiate proceedings in a substantive appeal which was pending for adjudication.

Case No.: C/MCA/384/2021

Case Title: SONAL AASHISH MADHAPARIYA v/s AASHISH HARJIBHAI MADHAPARIYA

Citation: 2022 LiveLaw (Guj) 350

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