A.C. Gupta, J.
1. The propriety of an Order refusing to adjourn a proceeding for judicial separation under Section 10 of the Hindu Marriage Act is challenged by the wife by preferring an appeal from the said order and also by filing a revisional application in the alternative in case it was found that the appeal was not maintainable. The petition under Section 10 was made by the wife and it was she who had asked for adjournment of her suit arising on that petition. The facts in the background leading to the prayer for adjournment which was rejected are as follows:--
Appellant Mira Bose was married to the respondent Santosh Kumar Bose on July 7, 1965. Two male children were born of this marriage on February 15, 1967 and April 11, 1968 respectively. On November 22, 1968 she left the matrimonial home leaving the children behind; according to the husband she left of her own accord, her case is that she was compelled to leave. On May 3, 1969 she filed the petition under section 10 of the Hindu Marriage Act in the City Civil Court at Calcutta for judicial separation. On May 7, 1969 she applied under section 26 of the said Act for interim custody of the children and by order No. 26 passed on September 23, 1969 a learned Judge of the City Civil Court directed the husband to deliver custody of the Children to the mother. The husband took an appeal to this Court from the aforesaid order dated September 23, 1969 which was summarily dismissed. An application made by the husband for leave to appeal to the Supreme Court against the order summarily dismissing his appeal was rejected on March 12, 1970. The husband then made an application before the Supreme Court for special leave to appeal against the order of this Court which was also rejected by the Supreme Court. By order No. 87 dated July 25, 1970 the City Civil Court directed the husband to produce the children in Court on August 1, 1970 to be made over to their mother. On August 1, 1970 he made an application stating that it would not be possible to produce the children in Court and asked for reconsideration of the said order dated July 25, 1970. This application was rejected. On January 28, 1971 the wife applied for execution of the order No. 26 dated September 23, 1969 directing the husband to deliver custody of the children to their mother. On the application of the wife the High Court on April 7, 1971 also issued a Rule calling upon the husband to show cause why he should not be punished for contempt of Court for violation of the aforesaid orders dated September 23, 1969 and July 25, 1970. The matrimonial proceeding was fixed for hearing in the City Civil Court on July 30, 1971. On July 21, 1971 the wife made an application to the learned Judge, Third Bench, City Civil Court that 'for non-compliance of your Honour's said interim order for custody of children the respondent should not be allowed to be heard in the main suit and his defence in the above suit should be struck out', and further that 'if the respondent is given an opportunity of being heard in the above suit and the case is finally heard then your Honour's said interim order for custody of children will have no effect and the same will be infructuous' and praying that in these circumstances 'the hearing date of the above suit should be shifted at least for two months thereby enabling your petitioner to get yowr Honour's said interim order for custody of children executed.' By order No. 114 passed on July 21, 1971 the Court below rejected this application on the ground that there was no sufficient ground for adjourning the hearing of the suit. It is the correctness of this order which is in question.
2. We do not think that an appeal lies from the impugned order. Section 28 of the Hindu Marriage Act, 1955 makes all decrees and orders made 'in any proceeding under this Act' appealable. Construing the section in Anita Karmokar v. Birendra Karmokar, : AIR1962Cal88 . Banerjee, J. observed 'I read the expression 'orders' in Section 28 of the Act to mean orders passed under the Act, namely, orders contemplated by Sections 24, 25 and 26 of the Act. Orders which are not passed under the Act but are merely interlocutory or routine orders, passed under the Civil Procedure Code, are not and do not come within the language of Section 28 of the Act'. We respectfully agree with this view. The order complained of in this case rejecting the prayer for stay of hearing of the suit is certainly not an order passed 'under the Act' and is, therefore, not appealable. The appeal is accordingly dismissed as not maintainable.
3. We now turn to the revisional application to see whether the impugned order calls for interference. It is clear from the facts of the case that the respondent was setting the Court at defiance and was treating the orders of the Court giving the custody of the children to the wife as not worthy of notice. Of course the Rule for contempt issued on the respondent on April 7, 1971 has since been discharged on the finding that the respondent's intention '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 provisions of Section 28 [Hindu Marriage Act] providing for execution of such orders'. The fact however remains that the respondent has not yet carried out the order directing him to make over the custody of the children to their mother and if the suit is heard before the order is either complied with or executed, the respondent would be successful in avoiding the interim arrangement made by the Court regarding the custody of the children. No Court can allow a party to the action to defy its order and to take the law into his own hands. The appellant before us sought to have the suit adjourned for two months expecting that she would be able to execute the order for custody in the meantime. Not only it was natural for the appellant to insist on her right to have interim custody of the children, the Court below in our view, would have been justified in the circumstances of the case in giving the appellant some time to execute the order before taking up the suit for hearing. We are of opinion that the learned Judge was wrong in disallowing the prayer for adjournment without adverting to all the relevant circumstances of the case.
4. We accordingly think that the impugned order should be set aside and the hearing of the suit stayed for some time, at the end of which the Court below would review the position and pass appropriate orders. The respondent was held to be not guilty of contempt on the view that he had no deliberate intention to flout the order of the Court and was misled by an incorrect appreciation of the legal position. Now there seems to be no reason why the respondent should not obey the order, and continued defiance of the Court would certainly amount to contempt. Mr. Mukherjee appearing for the respondent submitted that as Section 28 of the Act makes the order executable and as the appellant was free to enforce the order, there was no question of contempt of Court even if the respondent chose to disregard the order. We are unable to accept this submission. The law in this regard is summarised in Halsbury's Laws of England (third edition) Vol. 8, at pages 20-21 under the heading 'Contempt in Procedure'. Contempt in procedure consists of disobedience to the judgments, orders or other process of the Court, and involves a private injury. 'In circumstances involving misconduct, contempt in procedure bears a two-fold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between party in default and the State, a penal or disciplinary jurisdiction to be exercised by the Court in the public interest.' Misconduct of this kind consists in wilful disobedience to any order or process, or in the breach of an undertaking given to the Court.
5. Relying on the passage from Halsbury, quoted above, Rigby, J. held in Phonographic Performance Ltd. v. Amusement Caterers Ltd., (1963) 3 All ER 493 that deliberate defiance of an order would constitute Corntempt of Court notwithstanding that the order is subsequently complied with. The position was explained in an earlier English decision, Seaward v. Paterson, (1897) 1 Ch 545; repelling the contention that the jurisdiction to commit for contempt 'is an ancillary or subsidiary jurisdiction in order to secure that the plaintiff in a suit shall have his rights', it was observed, 'it is a punitive jurisdiction founded upon this, that it is for the good, not of the plaintiff or of any party to the action, but of the public, that the orders of Court should not be disregarded, and that people should not be permitted to assist in the breach of these orders in what is called Contempt of Court.'
6. It is thus clear that only because an order is enforceable by a party to the action in whose favour it has been made, it cannot be said that disobedience to it cannot be Contempt of Court.
7. In the result, the Revisional Application is allowed and the impugned order is set aside. The bearing of the suit is stayed till January 15, 1973; the Court will thereafter review the position in the light of the observations made above and pass appropriate orders regarding the hearing of the rait, taking into account all the relevant circumstances including the conduct of the parties and the welfare of the children which, of course, is the paramount consideration.
8. The opposite party will pay the costs of this application. Hearing fee 10 G. Ms.
S.K. Bhattacharyya, J.
9. I argee.