Bombay High Court
Shri Shafeeq Abdul Rahim vs Smt. Tabassum Shafeeq And Anr on 12 July, 2016
Bench: R.P. Sondurbaldota
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION NO. 509 OF 2013
Tabassum Vinchu (earlier known as
Tabassum Shafeeq)
Aged : 31 years,
Occupation : Housewife/divorcee,
Indian Inhabitant, residing at 158, Bala
Compound, 4th Nizampura, Vanjarpatti
Naka, Bhiwandi-421 302 .....Petitioner
v/s.
Shafeeq Rahim Pagarkar
Aged : 42 years, Indian Inhabitant
residing at 2/64, Samrat, K.C. Marg
Bandra Reclamation, Bandra (W),
Mumbai-400 050. .....Respondent
Ms. Farhana Shah, Advocate appointed for the petitioner.
Mr. E. A. Sasi, Advocate for the respondent.
ALONG WITH
CONTEMPT PETITION NO. 211 OF 2014
IN
CONSENT TERMS DATED 16.04.2013, DULY TAKEN ON
RECORD ON 17.04.2013 AND UNDERTAKING
CONTAINED THEREIN
IN
FIRST APPEAL NO. 1028 OF 2010
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Shri. Shafeeq Abdul Rahim,
Aged : 39 Yrs, Occ : Self Employed
R/at 2/64, Samrat K.C. Marg,
Bandra Reclamation, Bandra
[West], Mumbai-400 050 .....Petitioner
(Appellant/Org.Petitioner)
V/s.
1. Smt. Tabassum Shafeeq, Aged
32 Years, Occ. Housewife,
At Present R/at 158, Bala
Compound, 4th Nizampura,
Vajar Patti Naka, Bhiwandi,
402302, Dist. Thane
2. The State of Maharashtra
Copy to be served on A.G.P.
High Court, Appellate Side ..Respondents
(Respondent no.1-
Contemnor & Org.
Respondent,
Respondent No.2-
formal party)
******
Mr. E.A. Sasi, Advocate for the petitioner.
Ms. Farhana Shah, Advocate appointed for respondent no.1.
CORAM :- SMT. R. P. SONDURBALDOTA, J.
DATED :- 12TH JULY, 2016.
JUDGMENT :-
1). This is the common order on the above two contempt
petitions filed by the parties against each other alleging violation of
the consent terms dated 16th April, 2013 and the order dated 17th
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April, 2013 passed in terms of the consent terms in First Appeal No.
108 of 2010. Though the acts constituting contempt, alleged in the
two petitions, are distinct and different, the background from which
they arise is same. Also there are common contentions involved.
The petitions have been heard together.
2). The petitioner in the first petition is respondent no.1 to
the second petition. They were married under the Shariyat Law. On
16th January, 2007 a girl child was born from the wedlock. After
differences arose between the two, both started residing separately
since July, 2009. The marital tie between the two stands severed
by declaration of "Talaq". However, they continue to be related to
each other through their daughter. Hence, they shall hereinafter be
referred to as "the father" and "the mother". Both the proceedings
also refer to the mother of the father. She will hereinafter be
referred to as "the grandmother". At the time of divorce, the
custody of the daughter was with the mother. Therefore, the father
filed Civil Misc. Application No. 101 of 2010 under Sections 17 and
25 of the Guardians and Wards Act in the District Court, Thane for
custody of the daughter. The District Court, dismissed the
application by its judgment and order dated 7 th July, 2010. Being
aggrieved by the order, the father preferred First Appeal No.102 of
2010 in this Court. During the pendency of the proceedings, various
interim orders as regards the access including the overnight access
and vacation access to the father were passed. On 16 th April, 2013
the parties signed consent terms which were taken on record on 17 th
April, 2013 and the First Appeal disposed off in terms of the consent
terms.
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3). The consent terms, inter-alia, provide for custody of the
daughter to be given to the father from the date of filing of the
consent terms. Clauses-2 to 5 thereof, record arrangements for
access to the mother which include weekend access, vacation access,
access in school and access over telephone. Clauses-6 and 8 are the
agreements about the passport of daughter and financial
arrangement for her and Clause-7 is the agreement arrived at
between the two relating to various proceedings filed against each
other.
4). In the first petition, the mother alleges willful and
deliberate violation of Clauses-2 to 5 of the consent terms by the
father and by the second petition, the father essentially alleges
violation of Clause-7 of the consent terms by the mother. These
clauses read as under :-
"2. Appellant shall give access of their daughter
Reeba to Respondent of every first half major
vacation for Diwali, X'mas and Summer Vacation of
the School where Reeba is taking education.
3. Appellant shall give access of child on every
first and third weekend of every month i.e. from
Saturday at 10 a.m. to Sunday at 5 p.m., to
Respondent, except during Reeba's second half major
vacation of School for Diwali, X'mas, and Summer.
4. For giving access as contemplated in clauses 2
and 3 above, appellant should pick-up and drop
Reeba from Respondent's residence from 4th,
Nisampur, Balla Compound, Bhiwandi. Drop will be
between 8 a.m. to 10 a.m. and pick up will be
between 5 p.m. to 7 p.m. on such scheduled dates.
5. Whenever Respondent comes to Mumbai, she
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will be at liberty to meet Reeba at any place in
Mumbai without any interference from Appellant or
his family members. Appellant shall allow
Respondent to talk to Reeba over phone every day.
7. Appellant and Respondent gives undertaking to
this Hon'ble Court that whatever
complaints/allegations they have made against each
other and their relatives, during the pendency of
present proceedings, in respect of subject matter of
the present dispute shall stand withdrawn from the
date of filing of these consent terms. The actual
formality of such withdrawal/compounding shall be
done by the respective party/complainant without
four weeks of filing of these consent terms from the
concerned Court/authorities. Such fact should be
intimated by the respective party to the other party
through their respective advocates. Appellant and
Respondent give undertaking to this Hon'ble Court
that in future they will not file any complaint or
make allegation against each other and their relatives
in respect of subject mater of the present dispute."
5). Before adverting to the acts of contempt alleged by the
parties against each other, it is necessary to refer to some of the
allegations made by them against each other as regards the past
events which will have some bearing on the two petitions.
6). Each side has pleaded a different case as regards the
reasons for the marital discord, as well as, for filing the consent
terms in the First Appeal. According to the father, the marital
discord between the parties was on account of "criminal
antecedents" of the family of the mother and her continuous
misbehaviour. The reason stated for filing of the consent terms was
that, the daughter was more attached to the father and to her
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grandmother. Secondly, the mother was in a hurry to marry
another person.
7). The mother, on the other hand, alleges that the reason
for the marital strain between the two, was the ignoring, battering
and humiliating attitude of the father and the grandmother. She
alleges that, she was assaulted on many occasions by both, on
account of which she was constrained to complain to the police
resulting into registration of FIR for the offence punishable under
Section 498A Indian Penal Code against both. It is alleged that,
though several attempts at reconciliation were made by her parents,
the same had failed on account of the adamant attitude of the father
and the grandmother, who is herself a divorcee. The father was a
divorcee when he married her. Later, he contracted a third
marriage which also has ended in divorce. The mother denies that,
she was divorced by the petitioner in December, 2010 as alleged by
the father. According to her, she received Talaqnama by post
sometime in mid, 2011. As regards the reason for filing the consent
terms, the mother alleges that whenever the father was to have
access to the child, he would visit the residence of the mother
accompanied by grandmother and create a ruckus so as to
embarrass and harass the mother. She was threatened that, if she
did not handover custody of the daughter, she and her family
members would suffer dire consequences. The threat was actually
put into practice by the father. On 6 th May, 2012 when the father
and the grandmother had visited the residence of the mother for
picking up the child for weekly access, the child in the presence of
the father, had wished Hadi, the brother of the mother "best of luck"
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as he was to appear for an interview at the airport on the next day.
After hearing this, the father and the grandmother went to the local
police station and lodged a frivolous complaint against the mother,
her brother Hadi and her mother. The police picked up Hadi and
detained him in custody for the whole night. With great difficulty,
the mother got him released in the morning after which he went for
the interview.
8). Over the period of time, the nuisance created by the
father and the grandmother increased to such an extent that even
the neighbours of the mother started complaining after each visit for
the access, making the mothers' life miserable. The father called up
the relatives of the mother and threatened that if he did not get
custody of the daughter he would make the life of the mother and
her family more miserable. He would spoil the career of Hadi, and
not spare even the distant relatives and neighbours. When the
things went beyond the capacity of the mother, she succumbed to
the pressure and the consent terms came to be filed.
9). The acts of contempt alleged by the mother are that,
after the initial few occasions when the father adhered to the
consent terms, he gradually stopped permitting the daughter to talk
to the mother over phone. Even when the daughter came over the
phone, the mother could make out that she was talking under
pressure. The father did not hand over custody of the child for
weekly access in the months of September and October without any
explanation. Pursuant to the directions of the Court, the father had
furnished two cell numbers to the mother to enable her to contact
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him or the daughter for the purpose of access. But whenever the
mother gave a call, the cell phone was either switched off or was not
picked up by the father. The mother, at times, was constrained to
take help of local police station to contact the father. In the third
week of October, when the mother was looking forward to meeting
the daughter she received letter dated 15 th October, 2013 from the
father stating that the daughter will not be dropped for the weekly
access as she had examination from 21 st October, 2013. The letter
also suggested that, the mother should take vacation access in the
second half of the vacation as the child needed some dental medical
attention. The father suggested that, he would drop the child on 8 th
November, 2013 and pick her up on 17 th November, 2013. The
mother was reluctant to accept the change since the father had
already flouted the order for weekly access on four previous
occasions. Only because she had no will to fight, she accepted the
change. But the father failed to drop the child even on 8 th
November, 2013. When the mother tried to contact him on the two
cell numbers, he did not pick up the phone. The mother then tried
to contact him through her Advocate. The clerk of the Advocate
when sought to serve a letter upon the father, his premises were
found locked and the letter could not be delivered. The mother then
became anxious and approached Bandra Police Station with the
help of Bhiwandi Shaher Mahila Adhyaksha and requested the local
police authorities to accompany her for getting access to the
daughter. When the mother reached the residence of the father, he
and the daughter were not at home. The grandmother who was
present in the house scolded the mother and the constable and
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asked them not to visit the house again.
10). The mother became desperate and visited the school of
the daughter, only to be told by the School Principal that, the father
had given instructions, not to permit the mother to meet the
daughter. The Principal on noticing the distraught condition of the
mother called the father on his cell phone and informed him of the
incident. The father then visited the school and the mother was
permitted to meet the daughter only in his presence. In that
meeting, the daughter repeated three times that, "Papa aur dadi ne
aap se milne mana kiya hai, woh marenge". When the mother tried
to handover a gift to the daughter, she again repeated "Dadi
marenge, Papa gussa karenge". She hugged the mother very tightly
and started crying. But as soon she saw the father, she removed the
hands from the mother's shoulder. She appeared very depressed
and scared. In the contempt petition, in addition to the prayer for
committal of the father, the mother sought return of custody of the
daughter by setting aside the consent terms.
11). The acts of contempt alleged by the father, on the part of
the mother are, (i) willful and deliberate violation of the consent
terms and the undertakings therein, more particularly, Clause-7
thereof, (ii) false and contumacious statements in Contempt
Petition No. 509 of 2013 which are allegedly contrary to the record
of the case and have the effect of lowering the esteem of the Court in
the eyes of law and (iii) not permitting the father to fetch the child
after completion of access on scheduled time, at times not
remaining present at the house when the child is taken to the
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residence of the respondent.
12). The father has filed in all six affidavits to reply the
petition. The first affidavit is dated 4 th December, 2013 in which he
denies the conduct alleged against him. Instead, he alleges the very
conduct against the mother and her family, of creating ruckus at the
time of access. He further alleges that, the mother and her family
have a criminal background. As regards the failure to maintain
schedule of access, he claims that the access which was to be given
on 10th May, 2013 was given on 12th May, 2013. Similarly access of
15th June, 2013 was alleged to have been given on the next weekend.
The access on 17th August, 2013 was not given because the house of
the mother was allegedly found locked. The access on 21 st August,
2013 and 5th October, 2013 was not given for the reason that the
Saturday was declared as working day by the school and the
daughter was to participate in a competition. But no explanation is
offered for not sending the daughter for Sunday. On 19 th October,
2013 the child who was then studying in Ist Standard, was not sent
because her terminal examination was to commence on 21 st October,
2013. No access was given during Diwali vacation on the pretext of
appointment with dentist and receipt of letter dated 2nd November,
2013 from one, Ramesh Patil. According to the father, by that letter
he was warned that his life and the life of the grandmother would be
in danger if they met the mother. As regards the incident in the
school, the father denies the same.
13). The second affidavit dated 26th June, 2014, as stated at
para 7 thereof, is to bring on record the alleged harassment suffered
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by the father while collecting the daughter at the International
Airport on 7th June, 2014. The third affidavit dated 21 st August,
2014 is to allege perjury against the mother for failure to withdraw
criminal complaint bearing No.1605/PW/2010 pending in the court
of Metropolitan Magistrate 12th Court at Bandra.
14). The next affidavits of the father dated 10 th November,
2014, 11th November, 2014 and 25th February, 2016 concern the
orders dated 14th September, 2014 and 5th November, 2014 passed in
these petitions and the explanations offered by him. The contents of
these affidavits would be discussed later. The last affidavit is a joint
affidavit of the father and the grandmother.
15). During the pendency of these petitions, several orders
were passed relating to the access to the daughter. Some of these
orders, would also throw light upon the allegations and counter
allegations made by the parties. The relevant orders are dated 18 th
July, 2014, 14th October, 2014, 5th November, 2014, 10th November,
2014 and 11th November, 2014.
16). The order of 18th July, 2014 was passed on the Civil
Application filed by the father for modification of the consent order
dated 17th April, 2013 in the First Appeal contending that when the
consent terms were entered between the parties, the daughter was
studying in a school at Bhiwandi. She was thereafter shifted to a
school at Bandra. This resulted in change in the school schedule for
the daughter. This Court, disapproved the shifting of the daughter
to another school by the father without consulting the mother but
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modified the order to suit the new schedule by keeping all the terms
intact. On 10th October, 2014 the mother had complained to the
Court that the father was not complying with the order of access
passed earlier. On 13th October, 2014, Advocate Mr. Shafiq
appearing for the father had made a statement that, the daughter
was with the grandparents. Then an order was passed directing the
father to produce the daughter in the Court i.e. 14th October, 2014.
Instead of bringing the daughter to the Court, on that day, the father
produced Certificate dated 11th October, 2014 from one, Dr. Yaseen
D. Mirza certifying that the child was under his treatment for
Exacerbation of Bronchitis Allergic and was advised bedrest atleast
for one week. The Court refused to believe the Certificate. It
observed that the order dated 18th July, 2014 was not being
complied with by the father since 17th August, 2014. The further
orders passed dated 1st October, 2014 and 13th October, 2014 were
also not complied with for no genuine reason. It expressed a
categorical opinion that the father apparently is a habitual
contemnor and has no regards for the orders of the Court. The
order permitted the mother to have access to the child at the
residence where it was residing, by taking assistance of the police.
The Court also suo-moto issued notice for contempt to the father
calling upon him to show cause why action be not initiated against
him for deliberate non-compliance of the court's orders.
17). On the next date of the mater i.e. 5 th November, 2014 the
father was absent. The mother informed the Court that, she had,
with the help of Bandra Police Station visited the residence of the
father on 16th October, 2014, 18th October, 2014 and 1st November,
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2014. On all the dates, though the house was not locked from
outside and the sounds of television were heard from inside, nobody
had opened the door. The mother and the police had confirmed
from the neighbours that the father and his family were inside the
house. They had deliberately not opened the door. This fact was
evidenced by the Station House Diary of the Bandra Police Station.
This Court then directed Senior Inspector of Bandra Police Station
to visit the father and verify whether the daughter is staying in the
premises or not. It also gave direction to the father to bring the
daughter to the Court on 10th November, 2014. On the adjourned
date, the child was present alongwith the father and the
grandmother. The mother was also present. The Learned Judge
presiding over the Bench, then interviewed the child. In it's order
passed on that date, the Bench observed that, the child was
completely tutored against the mother. The child had on her own
told the Court that, in the month of December she was not available
as the family was going out and on Sundays she cannot be available
because she had to meet her friends. She also mentioned that,
when she was five years old the younger brother of the mother used
to pinch her all over the body and also the private parts and this fact
was known to the mother. The child also said that, she does not love
her mother but loves only "her papa" and "grandma". But at the
same time, the learned Judge noticed that the child was very
comfortable with the mother. The Court also took notice of the fact
that the mother had not met the daughter for two months and
warned the father that he was being given one opportunity to obey
the orders of the Court. It then adjourned the petitions to the next
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day i.e. 11th November, 2014, so that the mother could meet the
daughter at least in the court. On the adjourned date, the father
through his Advocate tendered unconditional apology for non-
compliance of the orders of the court and expressed his readiness
and willingness to obey the same in future. He however broke his
word on the very next date of the access. He preferred Special Leave
Petition to the Apex Court against the order and took the daughter
alongwith him to Delhi.
18). In his last two affidavits i.e. the affidavit dtd. 10 th
November, 2014 and the joint affidavit dtd. 25 th February, 2014, the
father made certain serious allegations against the mother and her
brother, Hadi. He baldly, without stating details, alleged that in the
months of June-July, 2014, the daughter started complaining and
showed disturbed behaviour. Therefore, he took her to Psychologist
and Counsellor namely "Maan" at Bandra (West), where the
daughter was subjected to psychological tests on 7 th July, 2014. The
impression gathered by the psychologist from the tests as
mentioned in the report annexed to the affidavit reads as under:
"Impression: Clinical synthesis directs towards
anxiety due to physical harm and affective
disturbances that interferes in her attention process
and expressed through somatic problems. She
needs behaviour modification for deconditioning
aggressive behaviour."
The report further recommended (i) medication, (ii) parental
counselling and (iii) individual counselling. The affidavits do not
disclose whether the recommendations were adhered to by the
father.
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19). The affidavits further allege that on 20 th August, 2014,
the daughter confided in the grandmother that whenever she went
to the residence of the mother, her maternal uncle Hadi would
"unclothe her, remove her undergarments inside bathroom and
further used to pinch on her private parts." She had allegedly reveal
this fact to her mother and also her maternal grandmother, who not
only did not take the same seriously but instructed the daughter not
to disclose it any body. Then the father accompanied by the
grandmother approached Bandra Police Station and on 22 nd August,
2014, F.I.R. bearing C.R. No. 00 of 2014 was registered against Hadi
for having committed office punishable under Section 354 Indian
Penal Code read with Section 8 of the Protection of Children from
Sexual Offences Act, 2012 ("POCSO Act"), on the basis of the
information given by the grandmother. The relevant portion of the
statement of the grandmother recorded by Police reads as under :
"We have sent her to her mother's place on
16/08/14 to 17/08/14. After returning at home, I
asked Reeba with confidence on 20/08/14, then
she told me that, at & when Reeba went to her
mother's house, at that time her uncle namely
Abdulhadi Vinchu used to pinch and rotated hand
on front and back side of personal part by
removing her underwear when she went into the
bathroom, so she used to suffer by the said fact.
Since she was afraid on this incident, so she did
not tell anything about the said matter. When she
informed the said matter to her mother, then her
mother told her not to tell this fact to me and her
father, as such informed me by Reeba, hence,
today, I have come at Police Station for filing
complaint."
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On 23rd August, 2014, the F.I.R. was transferred to Shanti Nagar
Police Station, Bhiwandi at Thane. During the course of
investigation, on 25th August, 2014, the daughter was subjected to
medical examination at Bhabha Municipal Hospital. The description
of the incident narrated by the grandmother at that time, was
different from that in the F.I.R.. The narration of the description of
the incident to the doctor, is recorded at para 15(A)(vii) of the
Medico Legal Examination Report. It describes a much graver
incident. The narration reads as follows:
"Survivor is their daughter 7½ years Name: Reeba
Shafeeq Pagarkar d/o Shafeeq Pagarkar. Her father
and mother divorced and custody of child is given
to father by court order and visits mother's house at
Bhiwandi every weekend (Saturday and Sunday) as
per history given to Informant. Her mama (mother's
brother) 'Abdul/Hadi Ajmal Vinchu' aged 25 years
staying at mother's place sexually assaulted her by
inserting fingers in survivor's Vagina and Anus
repeatedly since last 1 year. Last date of incidence
17/8/2014 Survivor revealed about this to her
grandmother and father on 20/8/2014 that
Accused used to remove survivor's undergarments
and put finger in survivor's vagina and anus since
last 1 year at mother's place. Accused used to
threaten not to reveal about it to anybody. So
parents (father) brought survivor to the hospital for
medical examination and treatment."
The difference in the two narrations was not just of the gravity of the
actual act but also of the duration of the offending act. The extent of
medical examination of the daughter required for the two narrations
was obviously different. On the same day, the police recorded the
statement of the daughter in question and answer form. Perusal of
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that statement shows that several leading questions had been put to
the daughter and she was led into saying the allegations against the
maternal uncle. She was specifically asked as to what did the
maternal uncle do to her.
20). Hadi, the brother of the mother then filed application for
anticipatory bail being Application No. 1782 of 2014 before the
Sessions Court. After taking into account the entire background, the
Sessions Court allowed the application, by it's detailed order dtd.
15th September, 2014. In the same month, the mother has filed Civil
Application No.3447 of 2014 for setting aside the consent terms
dtd.17th April, 2013 and for handing over custody of the daughter to
the mother, which application is pending. In that application, she
alleged that the criminal complaints made by the father are false.
She has sought to demonstrate therein that on the alleged dates and
times of the incident, her brother Hadi was not even at home. As
regards the allegations of criminal antecedents of her family by the
father and the list produced by him of the offences registered
against Hadi and other family members, the mother, on the basis of
the information received under Right to Information Act from the
concerned police station, has stated in the application that Hadi is
not concerned with four of the offences from the list. He has been
honourably acquitted in the fifth offence registered and the sixth
offence is pending for consideration of the court.
21). On 24th September, 2015, on the information of the
grandmother, second complaint came to be filed, which was
registered as C.R. No.231 of 2015 against the mother as well as her
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brother Hadi under Section 354 read with 34 of Indian Penal Code
and Sections 4, 8, 10 and 21 of Protection of Children from Sexual
Offences Act, 2012 ("POCSO Act" for short). The grandmother in
her statement alleged that the daughter disclosed to her on 22 nd
September, 2015 that on the earlier access to the mother i.e. on 19 th
September, 2015, the mother had made her sleep in another room.
When the daughter was sleeping, her maternal uncle, Hadi went
near her, removed her knicker, pinched her private parts and
inserted his finger in her private parts. When the daughter woke up
and shouted, the maternal uncle ran away. The daughter had
immediately revealed the incident to the mother, who did not pay
any heed to it. Instead she asked the daughter to allow the maternal
uncle to do whatever he was doing. In the morning, the daughter
allegedly disclosed the incident to her elder maternal uncle but he
also laughed off the complaint.
22). After registration of the second complaint, the daughter
was once again subjected to the medical examination, on the same
day i.e. 23rd September, 2015. As per the affidavit of the father, the
statement of the daughter was recorded by police on 24 th
September, 2015 at Bhabha Municipal Hospital, Bandra (West).
That statement was video recorded, and it's C.D. kept in the safe
custody of the police. Then the statement of the daughter was
recorded under Section 164 Cr.PC. Armed with the two FIRs, the
father had again refused access to the mother, which had to be
restored by the orders passed from time to time in various
proceedings, including the present proceedings.
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23). The mother and her brother had filed Criminal Writ
Petition 225 of 2016 for quashing of the above mentioned two FIRs
registered with Shanti Nagar Police Station, Bhiwandi, which was
heard by the Division Bench of this Court. In it's order dtd. 15 th
September, 2016, the Division Bench recorded the statement of the
learned APP on instructions of the concerned police officer that the
statement of the daughter was recorded under Section 164 Cr.P.C.,
in which she has specifically denied all the allegations made in the
two complaints. The learned APP had placed the statement of the
daughter for perusal of the court. After going through the statement,
the Division Bench observed that the statement supported the
contentions of her mother and her brother. It has categorically held
that the two complaints had been filed with an ulterior motive to
deprive the access to the mother. After these observations, the
Division Bench adjourned the petition in view of the statement
made by the learned APP that the investigation was almost complete
and appropriate report would be filed before the concerned
Magistrate within eight days. The learned APP also stated that in the
event the allegations made in the FIR were found to be false,
appropriate action would be taken against the complainant under
the relevant provisions of the Indian Penal Code. The Division
Bench accepted both the statements. On the next date i.e. on 25 th
February, 2016, the learned APP on instruction of the concerned
officer present in the court made a statement that the investigation
in the two FIRs was complete and report under Section 169 Cr.P.C.
was filed. The Division Bench accepted the statement and observed
that in that circumstance the grievance of the petitioners did not
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survive any more and disposed off the petition accordingly. In
another petition i.e. Writ Petition No. 791 of 2016 filed by the father
and grandmother seeking directions to the police for furnishing
them with the copies of the statements of the daughter recorded
during investigation, the learned APP had informed the Division
Bench that report under Section 169 Cr.P.C. in the two complaints
had been filed with the learned Magistrate and a notice had been
issued to the first informant. She had however avoided to remain
present before the learned Magistrate. In view thereof, the Division
Bench refused to entertain the petition and dismissed it. Mr. Sasi,
the learned Advocate for the father does not dispute receipt of
notice from the concerned Magistrate by the grandmother. He
however claims that the grandmother is scared to attend to the
court because she had received threats to her life.
24). Ms. Farhana Shah, the learned advocate appointed to
appear for the mother points out that viciousness of the father and
the grandmother is such that the grandmother had written to the
employer of Hadi about the criminal complaints filed by her against
him and also about some other criminal complaints. Ms. Shah
produced copies of the correspondence by the paternal
grandmother, the result of the correspondence was loss of the
employment of the brother. Ms. Shah submitted that the result of
the correspondence and the complaints was not just loss of job by
him but on account of the allegations, he has been compelled to stay
away from the family. The correspondence by the grandmother is
sought to be explained by Mr. Sasi saying that it was an act of
socially conscious person, who was concerned about the safety to
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12July2016
the general public, since the brother was working with an Airlines.
25). The facts narrated above indicate that he has been even
subsequently violating the orders of the court with impunity, time
and again and for that purpose, he has unfortunately used the
daughter as a tool. Nevertheless, in this Contempt Petition, the
court is required to restrict itself to the lapses referred to in the
petition. In his affidavit-in-reply to the Contempt Petition, the
father has in terms admitted lapses on his part in giving access to
the mother. He has, however, offered explanation by way of
justification for the lapse. In the circumstances, the court is
required to consider the justification offered for the lapses. If the
justification can be accepted, the lapse on the part of the father
cannot be said to be willful and deliberate. However, if the
justification is not acceptable, the lapse would automatically become
willful an deliberate. The admission as regards the lapses is on
following occasions i.e. the access for 17 th August, 2013, 21st August,
2013, 5th October, 2013, 19th October, 2013, 31st October, 2013 and
8th November, 2013. The justification for 17th August, 2013 is that
when the father took the daughter to the residence of the mother,
her house was locked. This allegation is denied by the mother.
There is nothing brought on record by the father to support his
claim. As regards the weekend access for 21 st August, 2013 and 5th
August, 2013, the excuse given is for one day i.e. Saturday. There is
no reasons stated as to why the daughter could not be taken to the
residence of the mother on the evening of the Saturday for the
purpose of access on Sunday. The excuse given for not taking the
daughter for access on 19th October, 2013 is her terminal
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12July2016
examination commencing from 21st October, 2013. The very fact
that the daughter was studying in 1st standard is sufficient to hold
that the excuse is without any substance. Thus, it is clear that there
is willful and deliberate violation of the orders of the court by the
father by not handing over custody of the daughter for weekly access
in the months of September and October.
26). The mother has also alleged that she had with the help of
police authorities visited the residence of the father, when the access
was not provided during this period. The mother has next alleged
the incident of her school visit by way of a desperate attempt at
access. She has given details of the entire incident, which have not
been dealt with specifically by the father in his reply. He has merely
denied the incident. Thus, the material on record establishes that
the father has willfully and deliberately violated the consent terms
dtd. 16th April, 2013 and consent order dtd. 17th April, 2013 passed in
First Appeal No. 108 of 2010.
27). Mr. Sasi, relying upon the decisions of the Apex Court in
(i) Niaz Mohammad vs. State of Haryana, reported in 1994
Dg Law (Supreme Court), page 1995, (ii) Kanwar Singh
Saini vs. High Court of Delhi, dtd. 23rd September, 2011 in
Criminal Appeal No. 1798 of 2009, (iii) Kapildeo Prasad
Sah vs. State of Bihar, reported in 1999 DgLaw (Supreme
Court), page 2404 and (iv) Ashok Paper Kamgar Union vs.
Dharam Godha, reported in 2003 DgLaw (Supreme Court),
page 1653 sought to submit that for an action to be taken for
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12July2016
contempt, there must be willful, disobedience of the orders of the
court. Willful means an act or omission which is done voluntarily
and intentionally and with specific intent to do or not to do
something, which the order requires a person to do or not to do.
28). The proposition of law canvassed by Mr. Sasi is not only
undisputable but the facts of the present case perfectly fit into the
proposition. It is seen that the father willfully, deliberately and
intentionally avoided to give access to the mother. He not just
avoided to give access, but planned and schemed to deny the access.
He did not hesitate to use the daughter as a tool in his schemes. He
filed false criminal complaints of sexual assault on the 8 years old
daughter, exposed her to police investigation, got her statement
recorded and subjected her to medico-legal examination regardless
of the impact of such activities on her. Unfortunately and shockingly
in all these schemes, he was actively supported by his own mother,
the grandmother of the child. As has already been observed by
another Bench, the father is a habitual contemnor and has no regard
whatsoever to the orders of the court. Therefore he is liable for
action for contempt. In the facts and circumstance of the case, not
just the action for contempt but he must also be subjected to
punitive costs.
29). As regards the contempt petition, wherein the father
alleges that the mother has committed breach of clause (7) of the
consent terms by not withdrawing the complaint filed against him
and his mother for commission of the offence punishable under
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12July2016
Section 498-A I.P.C. it been rightly pointed out by Ms. Farhana
Shah that the offence punishable under Section 498-A I.P.C. being
not compoundable it was necessary for the father to file appropriate
proceedings for putting an end to the same and in those proceedings
the mother to have supported the father in view of clause (7) of the
consent terms. The other two allegations of making false and
contumacious statements in her contempt petition and not
permitting the father to fetch the child after completion of access on
scheduled time, are without any material to support and as such
baseless. It is obvious that, the contempt petition filed by the father
is nothing but a counterblast to the contempt petition filed by the
mother. The same is liable to be dismissed with costs.
30). In the shocking and serious facts of the case, continuing
the custody of the daughter with the father is not only not in the
welfare of the daughter but it would be harmful to her. The father
has proved himself to be unworthy of custody of the daughter. The
custody must immediately be transferred to the mother. She has
already filed Civil Application No. 3447 of 2014 for modification of
the consent order and for custody of the daughter. Until that
application is decided on merits, the custody must remain with the
mother until such time as the application is decided for it's merits.
31). Despite the abovementioned conduct, the father was
asked, by way of an opportunity to purge the contempt, whether he
was willing to handover custody of the daughter to the mother. Mr.
Sasi, on instructions from the father, who is present in the Court,
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12July2016
states that the father is not willing to handover the custody to the
mother.
32). In the circumstances and for the reasons stated above,
the following order is passed :-
(i) The notice issued for contempt in Contempt Petition No.
509 of 2013 is made absolute. The respondent to that
petition, Shafeeq Abdul Rahim is sentenced to civil
imprisonment for a period of three months. The sentence
shall start running on expiry of period of four weeks from
today.
(ii) Mr. Shafeeq Abdul Rahim shall pay costs of the
petition quantified at Rs.5,00,000/- (Rs. Five Lakhs only) to
the petitioner Smt. Tabassum Shafeeq Rahim. The costs shall
be paid within four weeks from today. If the costs are not
paid within the time granted, the petitioner Smt. Tabassum
Shafeeq Rahim will be at liberty to recover the same as arrears
of land revenue. The petitioner, Tabassum shall thereafter
deposit the subsistence allowance for Shafiq.
(iii) Shafeeq Abdul Rahim shall hand over custody of the
daughter Reeba to the mother within one week from today. In
the event he fails to hand over custody of the daughter, the
petitioner mother may take assistance of Bandra Police
Station for the purpose.
(iv) Contempt Petition No. 211 of 2014 is dismissed with
costs.
(SMT. R. P. SONDURBALDOTA, J.)
