1. WAHIDUDDIN AHMAD, J.-This appeal by special leave is directed against the order of a learned Single Judge of the High Court of West Pakistan, Lahore, in Criminal Original No. 154 of 1965 dated the 18th April 1966, whereby the appellant was held guilty of contempt of Court and was reprimanded.
2. The appellant is the husband of Mst. Sultana, respondent. Their relations are estranged and they are living separately. Respondent Mst. Sultana moved an application under section 25 of the Guardians and Wards Act against the appellant claiming custody of her minor children Amer and Saira. Along with the main application she also moved an application under section 12 of the Guardians and Wards Act for interim custody of her minor children. On the 2nd December 1965, the learned Guardian Judge, issued notice to the appellant directing him to produce his two minor children in Court on the 3rd December 1965. This notice was presented to the appellant in the Court premises. After read--ing the notice presented to him by the process-server at about 3-45 p.m., he refused to accept the same. Thereupon, the respon--dent moved an application in the High Court under sections 2 and 3 of the Contempt of Courts Act, 1926, alleging that the appellant has committed contempt of the Guardian Court and he be punished for the same. Notice was issued to the appellant who opposed the application and denied having committed the contempt of the said Court. He alleged that he was not present in the Court compound and he was not present in Lahore on the 2nd December 1965 and did not refuse to accept the service.
3. The parties were allowed to lead evidence in the shape of affidavits. The learned Single Judge, after going through the evidence produced by the parties; came to the `conclusion that the appellant was present in the premises of the Court of the Guardian Judge, Lahore on .The 2nd December 1965 at about 3-00 p.m., and that he refused to accept the service of the notice issued to him by the Guardian Judge when it was presented by Muhammad Nazir process-server. He further held that his refusal to accept the- notice issued to him by the Court brought the authority and the appellant guilty of contempt of Court and reprimanded the appellant for the same. This order is being challenged in this appeal before us.
4. Leave was granted in this case to consider whether the refusal of the appellant to accept service of notice issued by the Guardian Court could be visited with punishment in contempt.
5. Raja Mahmood Akhtar, learned counsel for the appellant, has not contested the findings of the learned Single Judge that the appellant refused to accept service of the notice presented to him by the process-server on the 2nd December 1905 at 3-45 p.m. For the production of his minor children on the 3rd December 1965. His only contention is that the mere refusal to accept service does not amount to contempt of Court within the meaning of sections 2 and 3 of the Contempt of Courts Act, 1926. The learned counsel contended that the refusal to accept service may have result--ed in holding that the appellant has been served with notice and consequentially an ex parte order could be passed against him but he cannot be held to be guilty of contempt of Court.
6. The contention of the learned counsel appears to be well founded. There is nothing on the record to show that the appellant has used any contumacious language while refusing to accept the service of the notice presented to him. He simply refused the service of the notice. In these circumstances, it cannot be said that he had brought in any way the authority and dignity of law into disregard and contempt. His action may be objectionable but certainly it cannot be said that he had been guilty of contempt. It is unnecessary to mention that thousands of notices are issued to the parties and some of them are refused but that would not mean that those persons who have refused to accept the service have committed contempt of Court by bringing down or lowering the dignity of the Court. In support of the contention, Raja Mahmood Akhtar, learned counsel for the appellant, has referred us to a decision of this Court in the case of Bahawal alias Bhaloo v. The State (PLD 1962 S 476). It was held in that case----- "The respect due to a Court itself is owed also to its processes but mere failure to obey any process of the Courts when other methods of enforcing the process are available, does not amount to a contempt of Court unless the person served with the process has done something more to exhibit a disrespect for the, process of the Court, as for example, used insolent or indecent expressions or violent or profane language on being Served with such process assaulted or ill-treated, the process-server." It was further held that- "In the absence of any proof of contumacious disregard of an order of the Court no committal for contempt is possible.--- Considering the facts of the present case in the light of the above observation it is quite clear that the appellant has merely refused to accept service of the notice presented to him by the process- server. From this it cannot be inferred that he has shown any disrespect or disregard to the authority of the court. It is not denied that there were sufficient means to implement the order of the court for the production of the children. Action could be taken against the appellant under section 45 of the Guardians and Wards Act, but later events show that the appellant has produced the children on the 20th December 1965 as directed by the Court. Since the appellant has not used insolent or indecent expressions or ill-treated the process-server, it cannot be said that he had contumaciously disregarded the order of the Court. It will be further noticed that no action has, been taken against the appellant for non-production of the children. In these circumstances, we are of the opinion that the appellant has not been guilty of contempt of Court and has been illegally punished for it. We would, therefore, set aside his conviction and allow the appeal.