Calcutta High Court (Appellete Side)
Saurov Kumar Mandal vs Madhura Das on 13 July, 2023
IN THE HIGH COURT AT CALCUTTA
(Civil Special Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Krishna Rao
CRC 3 of 2019
With
IA No. CAN 3 of 2019
(Old No. 690 of 2019)
In
CO 2565 of 2018
Saurov Kumar Mandal
Versus
Madhura Das.
Mr. Rabindra Narayan Dutta
Mr. Sibashis Ghosh
Mr. Hare Krishna Halder
Mr. A. Mukherjee
Mr. Ankit Dhara
.....For the Petitioner
Mr. Jayanta Narayan Chatterjee
Mr. Debashis Banerjee
Ms. Moumita Pandit
Mr. Supreem Naskar
Ms. Jayashree Patra
Ms. Sreeparna Ghosh
Ms. Pritha Sinha
Ms. Ritushree Banerjee
.....For the opposite party/ alleged Contemnor.
2
Hearing Concluded On : 18.05.2023
Judgment on :13.07.2023
Krishna Rao, J.:
1. The present contempt application is filed by the father of the minor son
on the allegation of violation of the order passed by this Court in CO
No. 2565 of 2018 with CAN No. 7038 of 2018(Sri Saurov Kumar Mandal
-vs-Smt. Madhura Das) dated November 26, 2018 wherein this Hon'ble
Court passed the following order:
"Affidavit-of-service filed in Court today be
taken on record.
Despite repeated service, none appears on
behalf of the opposite party.
By virtue of the impugned order the
petitioner-father's prayer for implementation of an
agreed order of visitation and custody of the
minor child of the parties was disposed of by
going beyond the terms of the said compromise.
It is seen from the compromise order dated
May 16, 2017 passed in Miscellaneous Case No.
645 of 2014 that the petitioner-father had been
granted several liberties in respect of the minor
son of the parties, who was then aged about five
years and eleven months and is about seven
years of age at present.
The trial court, while disposing of the
application of the petitioner, imposed certain
additional riders, particularly relating to consent
of the mother, which traversed beyond the scope
of the compromise order itself. The impugned
order further order further restricted the visitation
rights of the petitioner, whereas the initial
compromise order, referred to above, gave far
wider rights to the father.
As such, the trial court acted without
jurisdiction in passing the impugned order.
Accordingly, C.O. No. 2565 of 2018 is
allowed, thereby setting aside the impugned
order and directing the opposite party to adhere
to the compromise order dated May 16, 2017
3
passed between the parties in Miscellaneous
Case No. 645 of 2014 to the letter.
In enforcing the said order, the petitioner-
father will be entitled to take the assistance of the
Special Officer appointed by the court below in
the impugned order, namely, Smt. Soma Dhar, a
practising advocate of the Barasat Court, for
which the said Special Officer will be entitled to
remuneration of Rs. 10,000/- (Rupees ten
thousand) only per month, payable by the
petitioner, for the time being, subject to the
consent of such Special Officer.
In the event the Special Officer is not
agreeable with such arrangement, the Special
Officer will be entitled to approach the trial court
for her removal as Special Officer. In the event
such an application is made by the Special
Officer, the trial court will decide the same within
a fortnight from the said application being made,
upon hearing both sides, appointing a new
Special Officer on the same terms as fixed herein.
It is made clear that, in the event the
opposite party further violates the compromise
order arrived at between the parties, such
violation will be treated as a contempt of this
court's order and will be dealt with accordingly.
In view of disposal of the main revisional
application, CAN 7038 of 2018 also stands
disposed of.
There will, however, be no order as to
costs."
2. Before proceeding further, this Court finds that the facts are required
to be brought on record as the present case is having chequered
history.
3. The marriage between the petitioner and the respondent was
solemnised on June 8, 2010 (now decree of divorce between the parties
have been passed) and out of the wed-lock a male child, Master Priyam
Mandal was born on May 23, 2011. A dispute between the petitioner
and the respondent has arose with regard to the custody of the minor
child on the allegation that the respondent had left her matrimonial
home with the minor child of her own accord on June 14, 2014 and
started residing at her parent's house and was not allowing the
petitioner to see his minor child.
4. The petitioner had filed an application under Guardians and Wards Act,
1890 to get permanent custody of his son before the learned District
Judge, North, 24 Parganas at Barasat being Misc Case No. 645 of 2014.
In the said case, the petitioner had filed an application for interim order
for allowing the petitioner to visit his minor child. On November 21,
2014, the District Judge had permitted the petitioner to visit his minor
son at the present resident of the respondent once in a week for at least
two hours preferably on Saturday or Sunday upon mutual discussion
by both the parties. The petitioner tried to serve a copy of the order
along with the application to the opposite party but the opposite party
refused to accept the same and had not allowed the petitioner to meet
with the minor. On March 16, 2015, the application filed by the
petitioner under Section 151 of the CPC was taken up for hearing ex-
parte and disposed of the said application by allowing the petitioner to
visit his own son at the residence of the respondent and to spend two
hours along with his son on every Sunday until further order.
5. The petitioner has filed further application in the said case for
correction/rectification of the order dated March 16, 2015 and Order
VI, Rule 17 of the CPC for amendment of main application. By an order
dated May 20, 2015, the learned District Judge had directed the
Inspector-in-charge, Haridevpur Police Station as well as the
Chairperson of Child Welfare Committee to watch and study the
present environment in which the child is being brought up by his
mother and to submit detailed report within two months from the date
of receipt of the copy of the impugned order.
6. Being aggrieved by the order dated May 20, 2015, the petitioner had
preferred a Civil Revision Application before this Court being CO No.
2008 of 2015. By an order dated October 13, 2015, this Court held that
intervention of the police authorities for such purposes is unwarranted
and it will not be good for the welfare of the child and directed the
Chairman, Child Welfare Committee to visit the mother and to see the
environment in which the child is brought up and to submit a report
before this Court. By way of an interim arrangement, the petitioner
being the father is permitted to visit the child at the residence of the
mother on every weekend for two hours with prior intimation to the
mother. During three auspicious days of the Puja, namely, Saptami,
Astami and Nabami, the father can take the child from the mother but
shall return the child to the mother within six hours from the time of
taking the child which will not exceed beyond 9 PM on those days.
7. The respondent's wife has not complied with the order passed by this
Court and had also not appeared before this Court, accordingly, a
contempt rule was issued against the respondent. On receipt of
contempt rule, the respondent had appeared before this Court and
several orders were passed by this Court in between. On September 23,
2016, this Court had dismissed the contempt application with the
following observation:
"The contempt jurisdiction is limited in the
sense the Court will confines its scrutiny to the fact
whether the alleged contemnor has willfully or
deliberately violated the solemn order passed by
the Court. There is a strong impression in my mind
that the wife is taking shelter under the umbrella of
the minor child and argued before the Court more
on emotions inculcating an impression that any
isolated visit may turn out to be counter productive.
She is all along firm on her stand that she had
no intention to violate the order of the Court. It is
the circumstances and the behaviour of the child,
which compelled her to remain present during the
visitation.
The fact which does not appear to have been
denied is that she did not hand over the custody of
the child on three auspicious days as directed in
the said order on the pretext that the original copy
of the order was not handed over to her by her
advocate. Even her conduct in course of the
contempt proceeding evidently shows that she
does not want to part with the custody of the child
even for few hours during the visitation.
I am not unmindful of the proposition of law
that in proceeding for contempt, the Court does not
sentence the contemnor with any spirit of revenge
and in ordinary cases may regard a sentence of
fine as good enough to vindicate its dignity and to
meet the ends of justice. (See Aditya Bikram
Birla v. Paramanand Agarwal--96 CWN 366).
Even if this Court held that the alleged
contemnor is a guilty of violation of the solemn
order passed by this Court, will the sentencing
sufficient enough to uphold the majesty and
sanctity of the order in the peculiar facts and
circumstances of the instant case? After all, the
Court has to bear in mind the impact of
punishment, by way of sentencing to the alleged
contemnor, in the mind of the minor child.
The decision of the Supreme Court in case
of Hoshiam Shavaksha Dolikuka v. Thrity
Hoshie Dolikuka reported in AIR 1982 SC 1457
is a complete answer in the above context. The
Apex Court even after found that the father has
violated and/or flouted the Court's order lets off
with reprimand and warning bearing in mind the
welfare of the child.
"11. The main dispute between the parties
has centred around the question of the
custody of their minor daughter. The present
proceeding arose out of the main proceeding
and was taken by the mother for proper
enforcement of the right conferred on her to
have the child with her in terms of the orders
passed by the High Court. We have now
disposed of the main appeal in relation to the
custody of the child and we have delivered
our judgment in that matter. The judgment
delivered by us in the custody case sets the
matter at rest. We cherish earnest hopes that
in view of our judgment and order passed in
the custody appeal, the parties will now get
reconciled to the question of the child's
custody and will properly comply with the
directions given by us in the interest of and for
the welfare of their daughter. We have no
doubt in our mind that the daughter is quite
fond of both her parents. There is also no
manner of doubt that both the father and the
mother are greatly attached to the daughter.
Acrimonious relationship between her parents
who should necessarily have the welfare of
the daughter in their mind, has brought about
a very embarrassing and unfortunate
situation for the little girl. In our judgment in
the main appeal relating to the custody we
have dealt with this aspect at length. We feel
that imposition of any kind of punishment on
the father for whom daughter has a lot of
affection is likely to upset her and cause her
mental distress. In the unfortunate and
acrimonious dispute between the husband
and the wife our main concern in the instant
case has been the welfare of the child. Only
taking into consideration the fact that the
welfare of the child is likely to be affected, we
are of the opinion that under the present
circumstances and in the situation now
prevailing we should let off the father with a
reprimand and a warning, although he has
been rightly found guilty of having committed
contempt of court by the Bombay High Court,
in the hope that the appellant in future will not
do any such act as may constitute contempt of
court and will try to serve the cause of welfare
of the minor daughter by carrying out the
directions given by us in our judgment in the
custody appeal in the proper spirit."
The behaviour of the child and his
attachment with the mother as noticed by this
Court during interaction is such mitigating
circumstances where this Court feels that imposing
any larger punishment may bring negative impact.
This Court therefore dismisses the contempt
application with a note of caution that the
petitioner shall not take such trivial stand to avoid
the compliance of the order of the Court in future."
8. On May 16, 2017, the application filed by the petitioner under Section
25 of the Guardians and Wards Act,1890 was disposed of by the
learned Additional District & Sessions Judge, 4th Court, Barasat on the
basis of the joint compromise application filed by the petitioner and the
respondent and the said compromise application dated May 16, 2017
was made as a part of the judgment. The terms and conditions of the
compromise application entered between the parties are as follows:
"A. That Priyam Mandal is now aged about 5 years 11
months and he is in the custody of the opposite
party/ mother. Minor Priyam is now studying in
local KG school (Nursery school) in the locality
wherein opposite party is staying with the minor
Priyam and the custody of minor Priyam Mandal will
remain with the opposite party, the biological mother
of the child. But, being the biological father, the
petitioner would have every liberty to look after the
welfare of the child Priyam Mandal and the
petitioner being the father will arrange for admission
of Priyam Mandal into a reputed school in the next
academic session and will also make arrangement
for giving tuition and coaching to his son minor
Priyam Mandal either in the residence of Saurov
Kumar Mandal or in the residence of the teacher
who will teach him. As biological father, Saurov
Kumar Mandal will take such Priyam Mandal and
arrange for such tuition so that such Priyam may be
properly educated academically, physically and
culturally.
B. That the petitioner/ father is entitled to visit and to
see his son in any weekdays in the school where the
son is now studying or would be further admitted
and to give him required foods or other articles as
would be required for the minor son Priyam and in
the school record the name of the petitioner/ father
and the name of the opposite party/ mother will be
recorded as natural guardian of the minor Priyam as
parents.
C. That minor Priyam Mandal is suffering from eye
squint problem in his two eyes since birth and he
was under treatment by different eminent doctors.
Besides that, he is having a very high power in his
two eyes and so, the Petitioner, being the biological
father will make all sorts of arrangement as earlier
for treatment of eyes of Priyam Mandal and for his
vaccination and the petitioner will have liberty to
take the child from the custody of the opposite party
with a view to causing such treatment or any other
medical treatment by doctor/ doctors and in any
circumstances neither of respondentswill cause any
disturbance or hindrance to the petitioner at the time
of taking such Priyam Mandal from her custody.
D. That as Priyam Mandal is the only son of the
petitioner, the petitioner shall have liberty to take
such Priyam for purchasing of books, clothings, gifts,
foods etc. and thereafter Saurov Kumar Mandal, the
petitioner will hand over/return the minor son
Priyam Mandal into the custody of the Opp. Party.
E. That if the petitioner and other family members intend
to see such Priyam at their residence, in view of
such position, the petitioner will take such Priyam to
his residence and after passing of 2 (two) days the
petitioner will return back such Priyam into the
custody of the Opp. Party.
F. That such Priyam Mandal is now reading in a K.G.
school in the locality where the opp. Party resides
and during vacation period of the school i.e. in X-
mas, Puja Holidays, summer vacation etc. the
petitioner shall have liberty to take such Priyam at
his place of residence and the petitioner is entitled to
keep and stay with his son and other relations in
the house of the petitioner and after passing of 10
days or so, he would return back such Priyam into
the custody of Madhura Mandal, i.e. the Opp. Party.
These modalities and arrangement will be made
through their respective learned present Advocates
or any other subsequent as would be arranged or
appointed by them.
G. That the petitioner during the school holidays when
such Priyam Mandal will be in the place of Opp.
Party, the petitioner will have liberty to take Priyam
for excursion purpose to Amusement Parks/ places,
zoo Garden, Shopping Mall and other visting
places/festivals etc. and return back to Opp. Party
thereafter.
H. That the petitioner is bound to return such Priyam into
the custody of his mother Madhura Mandal after
tutition hours is over and the petitioner will have the
liberty to take the child from the custody of Madhura
Mandal for attending his classes of Priyam and also
with a view to attending the physician's chamber for
treatment of eyes of Priyam.
I. That, if such Priyam fails ill, in view of such position,
the Opp. Party will intimate the petitioner over
telephone and the petitioner will make arrangement
for his treatment at his own cost.
J. That it was further settled that when the petitioner
will take such Priyam from the custody of Madhura
Mandal for any of the above purposes, in such
situation, the petitioner will be bound to return such
Priyam in the custody of Madhura Mandal after the
purpose is completed.
K. That the petitioner will have every liberty to make
contact with Priyam over Telephone on regular basis
as and when required to ascertain his welfare, in
such situation, the Opposite Party will have no
objection with regard to such telephone talks of the
petitioner with Priyam.
L. It is agreed and recorded that the petitioner is entitled
to give necessary articles, goods, presentations and
gifts either in any festival or on the birthday of every
year of the son Priyam.
M. That the petitioner/father and the opposite party/
mother shall maintain a congenial atmosphere for
upbringing and or well growth, proper education and
health and also for paramount welfare, interest and
benefit of the minor Priyam.
N. That it is agreed and recorded that this arrangement
is made considering the upbringing, well growth,
proper education, medical treatment and also for
paramount welfare, interest and benefit of the minor
subject to further order of modification and/or
alteration and/or rearrangement as would be made
by the Court of Law in the present proceeding even
after disposal of the present proceeding or any other
further proceedings if the parties hereto pray for the
intervention of the Learned Court.
O. That if the Opp. Party causes any disturbance or
hindrance with regard to taking such Priyam from
her custody by the petitioner, in view of such
position, the petitioner will have liberty to enforce the
solenama or compromise through Court and in case
of failure by the petitioner to deliver such Priyam
Mandal in the custody of Madhura Mandal, in such
situation, the Opp. Party also will have the liberty to
enforce the compromise through Court.
P. That this settlement is made without prejudice to the
rights and contentious of the parties in other
proceeding s as decided and pending.
That the parties shall bear their respective cost of
litigation."
9. After disposal of the guardianship case, the respondent has not
complied with the order, accordingly, the petitioner has filed an
application for enforcement of the judgment and order dated May 16,
2017 which was passed on compromise between the parties. By an
order dated January 12, 2018, the learned Additional District and
Sessions Judge had disposed of Misc Case No. 158 of 2017 by passing
the following order:
"that the instant Misc. Case being Misc. Case
No. 158 of 2017 u/s 43 of the Guardian & Wards
Act, 1890, read with Section 151 C.P.C. filed by
the petitioner/husband Sri Saurav Kumar Mondal
against the O.P./wife Smt. Madhura Das praying
for enforcement of the Judgment & Decree dt.
16.05.2017 passed in Misc. Case No. 645 of 2014
on compromise, is hereby disposed of with a
direction to the present O.P./wife to comply with
the terms and conditions of the compromise
Judgment and Decree passed in Misc. Case No.
645 of 2014 and to allow the present
petitioner/husband to meet with his minor son,
namely, Priyam, so that the petitioner/husband
can enjoy the fruits of said compromise decree of
Misc. Case No. 645 of 2014.
The instant Misc. Case No. 158 of 2017 is
accordingly disposed of."
10. The petitioner had filed two applications before the learned Additional
District Judge for modification of order dated January 12, 2018. By an
order dated July 7, 2018, the learned Additional District Judge, 4th
Court, Barasat has disposed of the said application by passing the
following order:
"That, the Petition dated 06.03.2018 for
appointment of an advocate as special officer is hereby
allowed ex parte.
That Smt. Soma Dhar, practising advocate of this
Court is appointed as special officer.
That the Special Officer should take necessary
steps to bring the child Priyam from the custody of the
O.P./mother with her consent either at her residence or
in the court room or any other place convenient for both
the parties, accompanied with the Child Welfare
Officer, Barasat so that the petitioner/father can
exercise his right of visitation and can enjoy the fruit of
the compromise judgment and decree of the Misc. Case
No. 645/14 with a direction upon the O.P./mother to
comply with the terms and conditions of the
compromise judgment an decree passed in Misc. Case
No. 645/14.
That the Child Welfare Officer is directed to
accompany the Special Officer either personally or
through any authorized officer so that the
Petitioner/father may be able to meet his child Priyam
and the welfare of the child shall also be safeguarded.
That after visiting the child, the child shall be sent
back to the house of the O.P./mother.
The petitioner/father is further directed to make
arrangement for suitable conveyance for to and fro
journey and will bear all the expenses to bring and
send back the child as well as the honorarium of the
welfare officer.
The O.P./mother is at liberty to accompany the
child in course of to and fro journey and she is directed
to take necessary steps so that the exclusive right of
visitation of the Petitioner/father should not be
hampered in any manner during the time of visitation.
That the petition dated 28.02.2018 is thus
disposed of and modified to that extent."
11. Being aggrieved with the order passed by learned Additional District
Judge, dated July 7, 2018, the petitioner had preferred a Civil Revision
Application before this Court being CO No. 2565 of 2018. By an order
dated November 26, 2018, this Court had disposed of the Civil Revision
Application.
12. The petitioner alleges that the respondent has violated the order
passed by this Court in CO No. 2565 of 2018 dated November 26, 2018
and hence the present application is filed.
13. Mr. Rabindra Narayan Dutta, learned Advocate representing the
petitioner submits that after filing of the instant application, the matter
was listed on February 26, 2019 and on the date fixed, the learned
Special Officer appointed by the learned Court below was also present
and had informed this Court that the respondent is not complying with
the order passed by this Court and,as such, the Special Officer had
applied before the Trial Court for appropriate orders to enforce the
order dated November 26, 2018. When the matter was listed on March
26, 2019, the Special Officer appointed earlier had informed this Court
that the respondent refused to access the Special Officer to the minor
child and preventing the Special Officer for implementation of the order
passed by this Court and accordingly, this Court had directed the
Special Officer to submit report. On April 9, 2019, the learned Special
Officer had submitted report and this Court found that as per the
submissions of the Special Officer, the respondent is prima facie guilty
of deliberately flouting the order passed by this Court regarding
custody and visitation of the minor child. Aaccordingly, this Court had
issued rule upon the contemptnor.
14. On May 7, 2019, the respondent had appeared in person and without
going into the allegation, this Court had directed the petitioner to go to
residence of the respondent and to take minor son at 04:00 P.M on May
11, 2019 and return the child to the respondent at her residence on
May 14, 2019 at 04:00 P.M. While passing the said order, this Court
clarified that the ad hoc arrangement will not affect the contentions of
the parties in the contempt application and directed to list the matter
on May 16, 2019. On May 16, 2019, the petitioner informed this Court
that the respondent has not complied with the order dated May 7, 2019
and the respondent is also not present in person in spite of the specific
direction.Accordingly, this Court directed the petitioner to file
supplementary affidavit on May 20, 2019 and directed the respondent
to appear in person.
15. On May 20, 2019, the respondent appeared in person and after hearing
the parties, this Court had passed the following order:
"This apart, any child will have a lop-sided
development of character in the event he/she is
deprived of the company of one of the parents or the
family of such parents for an inordinately long period,
being constantly advised against the said absentee
parent in the custody of the other.
As such, it would only be healthy and in the
interest of welfare of the child, that the child is kept in
the custody of the father, albeit only for a short period
for the present.
In such view of the matter, and in order to adhere
to the intention expressed by the mother herself in the
compromise order and to comply with the previous order
of this Court, which was passed within the knowledge
of the mother, the opposite party/mother is again
directed to hand over the minor child of the parties to
the petitioner/father tomorrow, that is, May 21, 2019 at
4.00 p.m. The petitioner/father is permitted to take help
of the local police for the implementation of this order.
After taking custody of the child, the petitioner will
take the child to the petitioner's residence and return
the child to the mother on May 24, 2019 by 4.00 p.m.
It is made clear that this Court reposes its faith on
the paternal love of the petitioner/father for his child
(just as it does on the mother's love too), inasmuch as it
is expected that, despite the mandatory nature of this
order, the petitioner/father will be sensitive to the
apprehended trauma to the child while taking him away
from the custody of the mother.
It is further expected that in the event the petitioner
feels that the child will be in extreme mental agony in
the event he is kept in the custody of the petitioner for
three days, the petitioner will be at liberty to make the
period of custody shorter and return the child to the
mother at an earlier date. However, the above
observations do not dilute the direction incorporated in
this order and it will be incumbent on the opposite
party/mother to hand over the child to the petitioner at
the time and hour as directed.
The local police is directed to act on a website copy
of this order, if need be, without insisting on the certified
copy thereof, for the purpose of implementation of the
same."
16. On 30th July, 2019, the respondent had appeared before this Court and
alleged that on the last occasion of visitation, the petitioner came to see
the child with several police personnel and have created nuisance in
the house of the respondent and have also initiated criminal case
against the respondent, her mother and her brother. The respondent
was granted leave to file affidavit-in-support of her contention that the
petitioner came to the house of the respondent with several police
officials.
17. By an order dated December 13, 2019, this Court had referred the
matter for mediation. Being aggrieved with the said order, the petitioner
had preferred a Special Leave Petition (Civil) Diary No. 560 of 2022 and
the said SLP is disposed of on April 13, 2022 by passing the following
order:
"Learned counsel for the petitioner states
that through the impugned order is dated
13.12.2019, till 26.02.2021 nothing has been
happening in the matter and on various occasions
it has been adjourned. We also find that the
mediation proceedings having failed, the contempt
proceedings having been filed, little purpose is
subseved by continuously referring it to
successive mediations. The Court must take a call
whether there is wilful disobedience of the orders
of the Court or not and take it to the logical
consequence.
We are thus of the view that the
appropriate course of action would be that the
matter is placed before the learned Judge within
the next three weeks to take a call one way or the
other on the controversy in question, more so as
procrastination in a matter of this nature will not
lead us anywhere.
The special leave petitions are disposed of
accordingly.
18. In terms of the order dated July 14, 2022, the petitioner, respondent
and the child were present and this Court had interacted with the child
and found that some time is required to the child to go with the father
in day hours on every Sunday and the learned Counsel for the
respondent prayed for two days time to make necessary endeavour for
making necessary arrangement for sending the child with the father on
every Sunday from 10:00 A.M to 03:00 P.M. Accordingly, the matter
was adjourned till July 28, 2022. On 2nd August, 2022, this Court has
appointed a Special Officer to facilitate the father to meet with the child
on every Sunday from 11:00 A.M to 03:00 P.M and directed the
respondent to bring the child to the residence/office of the Special
Officer and to hand over the child to the Special Officer and the
petitioner would take the custody of the child and will keep the child
with him and will hand over the child at 03:00 P.M to the Special
Officer from where the respondent will take her child to her house. The
said interim arrangement is continuing with certain modifications.
19. As per the order passed by this Court for interim arrangement for
bringing the child to meet the father so that the father can spend some
time with the son. Accordingly as per the order of interim arrangement
with the help of the Special Officer, the father had got an opportunity to
meet with the child and the Special Officer on every date had filed his
report. On April 13, 2023, the counsel for the petitioner prayed for
allowing the petitioner to take the child to his residence and to keep the
child for a night so that he can spend a night with his father and
grandmother at his residence but the mother/respondent has objected
for the same. The Special Officer has suggested that an order can be
passed by allowing the father to take the child to his residence at 10:30
A.M where the grandmother of the child is also residing and after
spending the whole day, the father shall return the child at 6:00 P.M.
As per the suggestion of the Special Officer, this Court allowed the
father to take the son to his residence on Sunday at 10:30 AM and will
bring the child back at 06:00 PM and will hand over to the respondent.
As per the report submitted by the Special Officer dated May 4, 2023,
this Court finds that though the father has taken the child to his
residence but the child refused to enter into the residence in spite of
the request made by the Special Officer over phone and at 04:00 PM the
father brought the child back to the Special Officer and handed over to
the respondent. On the next Sunday, the mother has informed the
Special Officer that on the way of the office of the special officer, the
child got stomach pain and the mother has taken the child to hospital
and when the same was informed to the father, the father also went to
hospital but he came to know that after taking medicine as out door
patient, the respondent went back to her house along with the child.
20. Mr. Dutta, learned Advocate representing the petitioner submits that as
per the consent of the respondent, a joint compromise petition was
entered between the parties and the guardianship case was disposed of
but the respondent has not complied with the order till date.
21. Mr. Dutta submits that this Court while passing the order dated
November 26, 2018 categorically held that in the event, the opposite
party further violates the compromise order arrived at between the
parties, such violation will be treated as contempt of the order passed
by this Court and will be dealt accordingly.
22. Mr. Dutta submits that since the date of the order passed by the
learned District Judge allowing the guardianship application filed by
the petitioner on compromise, till date,the respondent has not sent the
child of her own to meet with the petitioner and to reside with the
petitioner.
23. Mr. Dutta submits that on every occasion only as per the interim
arrangement made by this Court by appointing a Special Officer, the
petitioner was allowed to meet with his son and had not voluntarily
allowed the petitioner to meet his son and to reside with his son as per
the Court's orders.
24. Mr. Dutta submits that the respondent had tutored the minor so that
the minor cannot be allowed to come to the residence of the petitioner
and to reside with the petitioner.
25. Mr. Dutta submits that the respondent had deliberately and wilfully
violated the order passed by this Court and as such the respondent is
to be dealt with in accordance with law.
26. Mr. Dutta in support of his case relied upon the following judgments:
i. 2003 (10) SCC 760 (David Jude -vs- Hannah Grace
Jude and Others).
ii. 2006 (4) ICC (Cal) (Sanjib Saha -vs- Smt. Bidisha
Saha (Nee Roy).
iii. 2011 (2) ICC (SC) page 105 (Dr. Ashish Ranjan -vs-
Dr. Anupama Tandon & Another).
iv. 2018 (1) ICC (Cal)page 605 (Sk. Badroddoza -vs-
Abdullah).
v. 2010 (3) ICC (Cal) (DB) (C) (Subrata Kunda & Others
-vs- Kshiti Goswami and Others).
vi. 2007 (2) ICC (SC) 832 (Palitana Sugar Mills Pvt. Ltd.
& Anr.-vs- Smt. Vilasiniben Ramachandran &
Others).
vii. 2005 (4) ICC (KER) 727 (Krishnan Namboodiri -vs-
Unnikrishnan Namboodiri).
viii. 2012 (6) SCC page 460 (Padmawati -vs- Harijan
Sewak Sangh & Others).
ix. AIR 1990 (SC) 464 (A) (Noorali Babul Thanewala -vs-
Sh. K.M.M. Shetty & Ors.)
x. 2013 (4) SCC page 186 (Union of India & Others -vs-
Ex-GNR Ajeet Singh).
xi. 2019(2) ICC (KARN) 536 (B) (Smt. Ponnurangamma
& Others. -vs- Indira Deenadayalu Naidu).
xii. 2015 (5) SCC 450 (D) & (E)(Surya Vadanan -vs-
State of Tamilnadu& Others).
xiii. Contempt Petition (Civil) No. 180 of 2001 (SC) dt.
12/12/2003 (Bank of Baroda -vs- Sadaruddin
Hasan Daya and Another).
27. Percontra, learned Advocate Mr. Jayanta Narayan Chatterjee
representing the respondent submits that the respondent was always
ready and willing to comply with the order passed by this Court as well
as the District Judge but the minor is not ready and willing to
accompany the petitioner and thus there is no fault on the part of the
respondent and the respondent has not deliberately and wilfully
violated any order passed by this Court.
28. Mr. Chatterjee submits that taking the benefit of the order passed by
this Court dated May 20, 2019, the petitioner along with10/12 police
personnel including lady police officers entered the house of the
respondent and started abusing and threatening the respondent to
hand over the son. Due to fear, the son went inside the room. He also
submitted that when the brother of the respondent had objected the
said act of the police officials, the police has initiated false and
fabricated case against the brother, mother and family of the
respondent and arrested in a false case due to which the respondent
and the brother of the respondent were sent to Alipore Central
Correctional Home and after eight days they were released on bail and
the other brother and mother of the respondent obtained anticipatory
bail from the Court.
29. Mr. Chatterjee submitted that due to the said act of the petitioner, the
minor son has become furious and is not willing to go to the house of
the petitioner but still the respondent is ready to send the child with
the petitioner but the child is not willing to go to the residence of the
petitioner.
30. Mr, Chatterjee submitted that the respondent has not committed wilful
and deliberate violation of the order passed by this Court as alleged by
the petitioner.
31. Mr.Chatterjee has relied upon the following judgments:
i. (1998)1 SCC 112 (Dhanwanti Joshi -vs- Madhav
Unde).
ii. (2005) 12 SCC (Mamta @ Anju -vs- Ashok Jagannath
Bharuka).
iii. (2009)1 SCC 42 (Gaurav Nagpal -vs- Sumedha
Nagpal).
iv. (2010) 4 SCC 409 (Vikram Vir Vohra -vs- Shalini
Bhalla).
v. (2015) 10 SCC 1 (ABC -vs- State (NCT of Delhi).
vi. (2017)3 SCC 231 (Vivek Singh -vs- Romani Singh).
32. Heard the learned Counsel for the respective parties, perused the
materials on record, several orders passed by this Court and the
judgments relied by the parties.
33. In the case filed by the petitioner before the learned District Judge,
subsequently, the same was transferred to the learned 4th Additional
District Judge at Barasat being Case No. 645 of 2014 both the parties
have agreed with the terms as mentioned in paragraphs A to Q (para 9
supra). As per the said terms and condition, it is categorically
mentioned that the petitioner will take the minor to his residence and
after two days, the petitioner will return back the minor to the custody
of the respondent. It is also mentioned that during vacation of a school
that is X-Mas, Puja holidays, summer vacation etc., the petitioner shall
have the liberty to take the minor at his place of residence and the
petitioner is entitled to keep and stay with his son and other relative
and after passing 10 days or so the petitioner will bring the child back
to the respondent. It is also mentioned that if the respondent cause any
disturbance or hindrance with regard to taking the minor child from
her custody by the petitioner, the petitioner shall be at liberty to
enforce this solenama or compromise through the Court and vice versa.
34. After the compromise entered between the parties, the learned
Additional District Judge has disposed of the guardianship case by
making the said terms of settlement as part of the judgment. Though
the respondent had entered into a compromise with regard to custody
of the child but even after entering into settlement and passing of
judgment by the learned Court, the respondent has not allowed the
petitioner to take the minor child with him.
35. The respondent has not complied with the order, accordingly, the
petitioner had made an application before the learned Additional
District & Sessions Judge for compliance of the order dated May 16,
2017 but the learned Additional District Judge had modified the order
dated May 16, 2017 against which the petitioner had filed revisional
application and this Court had set aside the order of modification
passed by the learned Court below and held that "in the event the
opposite party further violates the compromise order arrived between the
parties, such violation will be treated as contempt of Court's order and
will be dealt with accordingly."
36. In spite of the order passed by this Court dated November 26,2018, the
respondent has not allowed the petitioner to take the minor in terms of
the compromise judgment.
37. In the case of David Jude (Supra), the Supreme Court held that:
"It is to be stated that High Court had directed
that the custody of the child be given to the
husband because respondent No.1 gave the
custody of the child to her mother and that she
was staying in United States and serving in the
World Bank at Washington, D.C. The Court also
considered the age of the child who at the relevant
time was of one year and four months and the fact
that as respondent no.1 was serving and staying
alone in United States, it would be difficult for her
to take care of the minor child. To see that the
aforesaid order is set at naught, respondent nos.1
and 2 gave unconditional undertakings to this
court and obtained favourable order.
From the facts stated above it is apparent that
the attitude of the contemnors is without any doubt
defiant and contemptuous. They were given
custody of the minor child on the condition of filing
undertakings before this Court to bring the child
back to India when so ordered by the Family Court.
Respondent nos.1 and 2 have played with the
Court, by giving unconditional undertakings for
securing the custody of the child. It is true that
respondent no.2, the mother of respondent no.1
has stated before this court that respondent no.1 is
now not abiding by the instructions given by her to
produce the child before this Court and the Family
Court.
Further, it is also clear from the conduct of
respondent no.1 that she has no regard for the
notices issued by this Court. If the notice issued by
Apex Court of this land is willfully disobeyed, it
would send a wrong signal to everybody in the
country. It is a sad experience that due regard is
not shown even to the undertakings/order/notice
issued.
Hence, we hold that respondent nos.1 and 2
are guilty for committing contempt of this Court.
Further, we do not think that this is a fit case for
showing mercy as contended by learned senior
counsel, Ms. Indira Jaisingh, appearing on behalf
of respondent no.2. Learned counsel for respondent
no.2 further submitted that respondent no.2, who
is aged about 65 years, has taken enough steps to
secure the presence of respondent no.1 and to
abide by the undertaking given by her. On the
question of punishment, learned senior counsel
submitted that in any case considering the age of
respondent no.2, sentence of imprisonment may
not be imposed upon her. In our view, even though
respondent no.2 has played major part in the
aforesaid episode, considering her age and the fact
that she has an old husband to look after, we think
that imposition of fine would meet the ends of
justice. Hence a fine of Rs. 50,000/- is imposed
upon her, in default three months simple
imprisonment. It is also ordered that her passport
would be seized for a period of five years.
For respondent no.1 considering the fact that
she is well educated, serving in prestigious
institution, namely, the World Bank and her totally
defiant attitude, we do not think that this would be
a fit case for taking a lenient view and not
imposing sentence of imprisonment. Even though
she does not deserve mercy because of her
motivated behaviour yet we impose only three
months simple imprisonment and a fine of
Rs.50,000/- and in default of payment of fine, she
shall further undergo simple imprisonment for one
month. Fine to be paid within one month."
38. In the case of Subrata Kunda (Supra), the Division Bench of this
Court held that:
"22.Thus upon objective study of all the
decisions as above it is our considered view that
contempt proceeding (civil) is not exclusively
meant for guarding punishment of contemnors, it
is at times really directed basically towards
enforcement of the order when it is found order
has not been carried out and awarding
punishment becomes secondary object in that
situation. But when order is complied with, but
not according to the direction of the Court,
awarding punishment may become primary
object. At times proceeding in civil contempt
assumes the character of execution proceedings,
when order is not carried out, yet it cannot be
substitute of formal execution proceedings but
purpose of execution is achieved."
39. In the case of Padmawati (Supra),the Hon'ble Supreme Court held
that :
"17. The faith of people in Judiciary can
only be sustained if the persons on the right side
of the law do not feel that even if they keep
fighting for justice in the court and ultimately win,
they would turn out to be a fool since winning a
case after 20 or 30 years would make the
wrongdoer as real gainer, who had reaped the
benefits for all those years. Thus, it becomes the
duty of the courts to see that such wrongdoers
are discouraged at every step and even if they
succeed in prolonging the litigation due to their
money power, ultimately they must suffer the
costs of all these years' long litigation. Despite the
settled legal positions, the obvious wrongdoers,
use one after another tier of judicial review
mechanism as gamble, knowing fully well that
dice is always loaded in their favour, since even if
they lose, the time gained is the real gain. This
situation must be redeemed by the courts."
40. In the case ofEx-GNR Ajeet Singh (Supra), the Hon'ble Supreme Court
held that:
"22. The expression "failure of justice"
would appear, sometimes, as an etymological
chameleon. The Court has to examine whether
there is really a failure of justice or whether it is
only a camouflage. Justice is a virtue which
transcends all barriers. Neither the rules of
procedure, not technicalities of law can stand in
its way. Even the law bends before justice. The
order of the court should not be prejudicial to
anyone. Justice means justice between both the
parties. The interests of justice equally demand
that the "guilty should be punished" and that
technicalities and irregularities, which do not
occasion the "failure of justice"; are not allowed to
defeat the ends of justice. They cannot be
perverted to achieve the very opposite end as this
would be counter-productive. "Courts exist to
dispense justice, not to dispense with justice.
And, the justice to be dispensed, is not palm-tree
justice or idiosyncratic justice". Law is not an
escape route for law breakers. If this is allowed,
this may lead to greater injustice than upholding
the rule of law. The guilty man, therefore, should
be punished, and in case substantial justice has
been done, it should not be defeated when pitted
against technicalities. (Vide : Ramesh Kumar v.
Ram Kumar & Ors., AIR 1984 SC 1929; S.
Nagaraj v. State of Karnataka,1993 Supp (4) SCC
595; State Bank of Patiala & Ors. v. S.K Sharma,
AIR 1996 SC 1660; and Shaman Saheb M.
Multani v. State of Karnataka, AIR 2001 SC 921)
23. In Delhi Administration v. Gurudeep
Singh Uban, AIR 2000 SC 3737, this Court
observed that justice is an illusion as the meaning
and definition of 'justice' vary from person to
person and party to party. A party feels that it
has got justice only and only if it succeeds before
the court, though it may not have a justifiable
claim. (See also: Girimallappa v. Special Land
Acquisition Officer M & MIP & Anr., AIR 2012 SC
3101) Justice is the virtue by which the
Society/Court/Tribunal gives a man his due,
opposed to injury or wrong.
Justice is an act of rendering what is right and
equitable towards one who has suffered a wrong.
Therefore, while tempering justice with mercy, the
Court must be very conscious, that it has to do
justice in exact conformity with some obligatory
law, for the reason that human actions are found
to be just or unjust on the basis of whether the
same are in conformity with, or in opposition to,
the law."
41. In the case of Vikram Vir Vohra (Supra),the the Hon'ble Supreme
Court held that:
"12. Ina matter relating to custody of a child,
this Court must remember that it is dealing with a
very sensitive issue in considering the nature of
care and affection that a child requires in the
growing stages of his or her life. That is why
custody orders are always considered
interlocutory orders and by the nature of such
proceedings custody orders cannot be made rigid
and final. They are capable of being altered and
moulded keeping in mind the needs of the child."
42. In the case of Vivek Singh (Supra)the Hon'ble Supreme Court held
that:
(i) First, it puts the child squarely in the
middle of a contest of loyalty, a contest which
cannot possibly be won. The child is asked to
choose who is the preferred parent. No matter
whatever is the choice, the child is very likely to
end up feeling painfully guilty and confused. This
is because in the overwhelming majority of cases,
what the child wants and needs is to continue a
relationship with each parent, as independent as
possible from their own conflicts.
(ii) Second, the child is required to make a
shift in assessing reality. One parent is presented
as being totally to blame for all problems, and as
someone who is devoid of any positive
characteristics. Both of these assertions represent
one parent's distortions of reality. The aforesaid
discussion leads us to feel that continuous
company of the mother with Saesha, for some time,
is absolutely essential. It may also be underlying
that the notion that a child's primary need is for the
care and love of its mother, where she has been its
primary care giving parent, is supported by a vast
body of psychological literature. Empirical studies
show that mother infant "bonding" begins at the
child's birth and that infants as young as two
months old frequently show signs of distress when
the mother is replaced by a substitute caregiver. An
infant typically responds preferentially to the
sound of its mother's voice by four weeks, actively
demands her presence and protests her absence
by eight months, and within the first year has
formed a profound and enduring attachment to her.
Psychological theory hypothesizes that the mother
is the center of an infant's small world, his
psychological homebase, and that she "must
continue to be so for some years to come."
Developmental psychologists believe that the
quality and strength of this original bond largely
determines the child's later capacity to fulfill her
individual potential and to form attachments to
other individuals and to the human community.
43. In the present case, during pendency of the guardianship case, the
respondent/mother has come forward to settle the dispute with regard
to the custody of the minor and accordingly in terms of settlement
entered between the parties wherein the respondent/ mother had given
visitation right and some other right to the father over the minor son
and accordingly the learned Additional District Judge on being satisfied
with the terms and settlement, had accepted the same and passed
judgement by making the terms of settlement between the parties as
part of the judgment. This Court cannot treat this matter as an
independent one. This application can be treated to be one for
enforcement of the order of the learned Additional District Judge. The
respondent is neither an insane nor minor and keeping her eyes open
and understanding everything had voluntarily signed terms of
settlement by giving certain right to the petitioner with regard to the
minor. There is no challenge against the order itself nor do to find any
legal ground to challenge. It is alleged that in breach of the consent
order, the respondent has deliberately created such circumstances and
atmosphere and disabused the mind of the minor son so that the
petitioner cannot have access to the minor son as father. Petitioner
being a father has right to see, interact and have company of his son. It
is the basic and natural right of father. It is uncontrollable desire of a
father to see his son and this is why it has been ensured by the Court's
order passed on consent, as such the Court must see that the
petitioner should get his right to be asserted lawfully as for as
practicable.
44. Since after the consent order passed by the learned Additional District
Judge, the respondent has not made any endeavour to comply with the
order so that the father can get an opportunity to have the company of
his son. Since the order till date only on the basis of interim
arrangements made by this court by appointing special officers the
petitioner was allowed to meet the child. This court had also interacted
with the child and during interaction, this Court observed that the
respondent had tutored the minor. By an order dated April 13, 2023
this Court for an interim arrangement directed the respondent to allow
the petitioner to take the son to his residence so that the son can also
meet with the old age grandmother on Sunday from 10:30 AM to 6 PM
but one Sunday, the petitioner has taken the minor to his residence
but the minor refused to enter into the house in spite of the request
made by the Special Officer and on the second Sunday, the respondent
has come within a story that on the way to the Special Officer's office,
the son had all of a sudden reported abdomen pain and went to
hospital and after taking medicine as out door patient return to theirr
house. This act of the respondent also proves that the respondent has
tutored the minor son and has wilfully and deliberately violated the
order inspite of consent given by the respondent while disposing of the
guardianship case.
45. The respondent is also well aware of the order passed by this court in
CO No. 2565 of 2018 dated November 26, 2018 wherein it is held that
"it is made clear that, in the event the opposite party further violates the
compromise order arrived at between the parties, such violation will be
treated as a contempt of this Court's order and will be dealt with
accordingly,"
46. The respondent has taken the plea that by taking advantage of the
order passed by this Court, the petitioner with the help of the police
personnel had tried to take the custody of the son and with the
influence of the petitioner, the respondent, mother of the respondent
and the brothers of the respondents have been entangled with the
criminal case wherein the respondent and her brother were arrested
and were sent to correctional home for eight days. It is revealed from
the record that though in the affidavit in opposition, the respondent
has taken the said stand but after the said alleged incident neither the
respondent has challenged the act the police nor has taken any further
legal action.
47. It is further found from record that initially the District Judge had
passed interim order by granting permission to the petitioner to visit
his own son at the residence of the respondent and subsequently the
matter came up to this court in CO No. 2008 of 2015 and on October
13, 2015, this Court had passed further interim order by allowing the
petitioner to visit the child at the residence of mother on every weekend
for two hours with prior intimation as well as during auspicious Durga
Puja namely Saptami,Astami and Nabami, the father can take the child
from mother but shall return to the mother within six hours from
taking the child. By an order dated September 23, 2016, this Court
held that the respondent has not complied with the order. Though this
Court had dismissed the contempt application of the petitioner but this
Court cautioned the respondent that she shall not take such trivial
stand to avoid the compliance of the order of the Court in future. The
said contempt application was disposed of prior to the consent
judgment passed by the learned Additional District Judge.
48. In the contempt jurisdiction, the Court has to confine itself to the four
corners the order alleged to have been disobeyed. The Court cannot
travel beyond the four corner of the order which is alleged to know have
been flouted.
49. If a party who is fully in the know of the order of the Court, or is
conscious and aware of the consequences and implications of the
Court's order, ignores it or acts in violation thereof, it must be held that
the disobedience is wilful. It may not be possible to prove the actual
intention behind the act or omission. A Court can approach the
question only objectively, and it may presume the intention from the
act done as every man is presumed to intend the probable consequence
of his act.
To establish contempt of Court, it is sufficient to prove that the
conduct was willful and that the Contemnor knew of all the facts which
made it a breach of the order. It is not necessary to prove that he
appreciated that it did breach the order. While the jurisdiction
exercised in cases of contempt is quasi-criminal in nature and the
Court must be satisfied, on the material before it, that Contempt of
Court was in fact committed, such satisfaction may be derived from the
circumstances of the case.For the purposes of judging â civil
contempt, intention or mens rea is not relevant. The question is only
whether the breach was on account of willful disobedience i.e, whether
it was not casual or accidental and unintentional.
50. Taking consideration of all aspects, this Court finds that since the date
of the order passed by the learned Additional District Judge and inspite
of several cautions given to the respondent by this Court, the
respondent instead of complying with the consent order, the
respondent has wilfully and deliberately violated the order dated May
16, 2017 and the order dated November 26, 2018 by not allowing the
petitioner to have the custody as per the terms of consent judgment.
51. The contemnor is examined in person in Court. The Contemnor has
prayed for unqualified apology and submitted that she will complying
with the consent order passed by the Additional District Judge dated
16th May, 2017 in its true spirit. Considering the unqualified apology,
assurance given by the Contemnor, taking the paramount
consideration of the child, the custody of the minor son is with the
Contemnor and the minor son is also pursuing study, this Court is
constrained from passing the sentence either imprisonment or by
imposing fine. The unqualified apology is accepted with the direction to
the Contemnor to comply with the order dated 16th May, 2017 passed
with the consent of both the parties in its true spirit.
52. CRC No. 3 of 2019 is thus disposed of. Consequently, IA No. CAN 3
of 2019 (Old No. CAN 690 of 2019) is thus disposed of.
Parties shall be entitled to act on the basis of a server copy of the
Judgment and Order placed on the official website of the Court.
Urgent Xerox certified photocopies of this Judgment, if applied
for, be given to the parties upon compliance of the requisite
formalities.
(Krishna Rao, J.)
Later :
Learned Counsel appearing for both the parties submitted that for the
time being Special Officer may be appointed to see whether the
respondent/Contemnor is complying with the order dated 16th May, 2017.
With the consent of both the parties, Learned Advocate Mr. Mrinal Kanti
Ghosh is appointed as a Special Officer for the interim period of eight weeks
to see whether the respondent/Contemnor is complying with the order dated
16th May, 2017. The remuneration of Rs. 10,000/- shall be paid by both the
parties in equal share (Rs. 5,000/- each) to the Special Officer. The Special
Officer is directed to file report before the Learned Court of Additional
District and Sessions Judge, 4th Court, Barasat on 14th September, 2023.
(Krishna Rao, J.)
