Anshuman Sharma vs Manika Jain
2004 Latest Caselaw 840 Del

JUDGMENT

T.S. Thakur, J.

1. Custody of children often becomes the proverbial bone of contention between spouses when temperamental incompatibility or irreconcilable differences, have irretrievably wrecked, domestic peace and harmony forcing them to part company. The present is in that sense no different from other cases where the couple has gone through considerable stress and trauma before they realised that the marriage had broken down for good and all that they had to crave and fight over was peace for themselves and custody o their only child. A decree of divorce by mutual consent and a document that ostensibly settled the issue regarding the custody of the minor daughter born out of the wedlock did not, unfortunately for the parties, bring either peace to them or give qui tus to the proceedings in the court. The present contempt petition filed close on the heels of an earlier one is in that backdrop only an upshot of the proceedings that concluded with an order of this Court passed on 1st November, 2002 in Civil Revision No.4/2002.

2. The husband's case stated in a nutshell is that he had in terms of an order passed by the Court under the Guardian and Wards Act secured the custody of Himangi, their daughter which direction of the Court was challenged by the respondent wife in Civil Revision Petition No.4/2002 filed in this court. It was during the pendency of the said revision petition that the parties appear to have negotiated an amicable settlement, the terms whereof were reduced in writing in what is described as a Memorandum f Understanding(MOU). The custody of the minor child was in accordance with the said MOU given to the respondent wife subject to the condition that the husband would have temporary custody once in each calendar year for a period of 30 days during the tie the child was free from the school in vacations. The grievance of the husband now is that in accordance with the terms settled between the parties, the husband was entitled to the temporary custody of the child, but the respondent wife has removed the child to Yangon in Myanmar where she is posted as one of the officers in the Embassy of India. The respondent has not despite demands and the terms mutually settled between the parties transferred the custody of the child to the petitioner either at Calcutta or Bangkok to which places the husband was ready to go to take such custody - his request for visa to go to Myanmar having been rejected. The husband's further case is that since the Memorandum of Understanding was filed by the parties before the out and since the parties had agreed to abide by the terms and conditions stipulated therein, the failure of the respondent wife to adhere to the terms settled and stipulated in the said Memorandum amounts to disobedience of the undertaking given to the Court hence punishable in the contempt jurisdiction of this Court.

3. The respondent wife has filed detailed objections in which it is inter alia stated that the respondent has not committed any disobedience of the order issued by this Court and that the Memorandum of Understanding even when presented to the Court in Civil Revision Petition No.4/2002, the Court had not passed any order in the said revision petition in terms of the said Memorandum. On the contrary, the Court had dismissed the revision petition filed by the respondent as withdrawn. It is also pointed out that the Memorandum of Understanding executed between the parties itself envisaged that in the event of any violation of any stipulation contained in the said Memorandum, the party aggrieved of any such violation would be entitled to approach the Court f competent jurisdiction for appropriate relief. The petitioner's remedy in the light of the said stipulation lay in initiation of appropriate proceedings before a competent court under the Guardian and Wards Act and not by way of proceedings in the contempt jurisdiction of this Court especially when the respondent has not committed any such contempt.

4. I have heard learned counsel for the parties at considerable length and perused the record. The short question that falls for consideration is whether this Court has passed any order, the disobedience whereof can possibly tantamount to contempt to warrant any action against the respondent. Two aspects in that connection need to be noticed at the threshold. The first is the nature of the Memorandum of Understanding executed between the parties while the second relates to the order passed by this Court by which Civil Revision Petition No.4/2002 was disposed of. A copy of the Memorandum of Understanding executed between the parties has been placed on record, from a reading whereof, it appears that the parties had on account of an irretrievable break down of the wedlock decided to part company for good by seeking dissolution of their marriage by mutual consent in proceedings under Section 13-B of the Hindu Marriage Act, 1956. The Memorandum of Understanding also dealt with the question of custody of the child born out of the wedlock and made a specific provision in that regard in Para 7, which runs as under:-

That the parties hereto have agreed that the custody of the female child `Hemangi' shall permanently rest with the Second Party. However, the First Party shall have the right to have temporary custody of the child once in each calendar year for a period of thirty days during school vacation of the said child irrespective of the place of post/residence of the Second Party.

5. We are not for the present concerned with the other stipulations contained in the Memorandum of Understanding or the mechanism by which the petitioner husband could exercise his right of temporary custody available to him under the clause reproduced above. Significantly the understanding between the parties could remain good and workable so long as there was no violation of the obligation which the Memorandum cast upon one or the other party. What is remarkable and peculiar about the arrangement was that the event of any failure on the part of any one of the parties to carry out his/her obligation, the Memorandum reserved to the aggrieved party the right to seek appropriate remedies in the Court of competent jurisdiction. The Memorandum was in that event to become non-est and null and void in the eyes of law as is evident from Para 17 of the same which may be gainfully reproduced at this stage:-

''That in case the terms and conditions recorded in the present MOU are not given effect to and/or implemented and/or any of the parties hereto fails to carry out his/her obligation(s) as undertaken herein or fails to appear before any court of law to give effect to the present MOU, the present MOU shall be deemed to become non-est and null and void in the eyes of law and the parties hereto would be at liberty to seek their respective remedies in courts of appropriate jurisdictions without any prejudice t their respective rights and contentions.''

6. On the basis of the terms agreed between them in the Memorandum, the parties appear to have approached the competent court for dissolution of their marriage by mutual consent. More importantly, the Memorandum envisaged withdrawal of all cases filed by the parties against each other and referred to in Paras 11, 12 and 13 of the Memorandum. In Para 13 of the Memorandum, it was specifically stated that the parties shall approach the Tis Hazari Court in Delhi seized of Guardianship Case No.105/2001 as also the High Court of Delhi where Civil Revision No.4/2002 was pending for disposal /withdrawal of the said cases in terms of the settlement recorded in the Memorandum of Understanding. An application was accordingly moved by the parties for the disposl of Civil Revision Petition No.4/2002 in this Court in which this Court passed a brief order which may for the purpose of reference may be extracted in extenso:- ''The petition was filed by the petitioner challenging the order passed by the Guardianship Judge in proceedings under the Guardians and Wards Act. During the pendency of the petition, the parties have entered into a settlement, which is incorporated in he memorandum of understanding dated 28.10.2002, which is duly signed by both the parties as well as the witnesses. Parties are present in person and they admit that the application under Order 23 Rule 3 of the Code of civil Procedure as well as the memorandum of understanding has been signed by them voluntarily and they undertake to abide by the terms and conditions contained in the said understanding. The counsel for the petitioner states that since the parties have arrived at an understanding and ha e undertaken to abide by the same, he does not want to press this petition. In view of the submissions made, the petition is dismissed as withdrawn. Parties will remain bound by the undertaking given in the memorandum of understanding.''

7. A careful reading of the above would show that counsel for the petitioner wife had made a statement to the effect that since the parties had arrived at an understanding and had undertaken to abide by the same, he did not wish to press the revision petition. The Court had in the light of the said submission dismissed the revision petition as withdrawn thereby leaving the parties to work out their rights and obligations including their legal remedies in accordance with the understanding arrived at between them.

8. It was contended by learned counsel for the respondent and in my opinion rightly so, that the dismissal of the revision petition as withdrawn left no room for the court to pass any effective order, the implementation whereof could be enforced through contempt proceedings or otherwise. The order of dismissal was no doubt passed in the light of an understanding between the parties but that is not the same thing as the court incorporating the terms of understanding in the order or affixing its imprimatur on the same. The parties having resolved their differences amicably any order in the Revision Petition was considered unnecessary which was at the instance of the party filing the same dismissed as withdrawn.

9. It is in the above background difficult to see how the respondent can be said to have committed the disobedience of any direction of this court in a Revision Petition which was dismissed. There is no gainsaying that if the parties intended the dispute to be resolved finally in terms of the settlement, they could and ought to have insisted upon disposal of the Revision Petition and other proceedings in terms of the said settlement. That was not done obviously because the party who had filed the revision petition was not keen to have the settlement incorporated in the order of this Court.

10. Considerable emphasis was, however, laid on behalf of the petitioner on the last line of the order which according to the petitioner constitutes a direction that will amount to incorporation of Memorandum of Understanding in the order of the Court . I regret my inability to accept that line of argument. The revision petition having been dismissed as withdrawn, it was neither legally possible nor necessary to issue any direction regarding the parties remaining bound by the terms of the Memorandum of Understanding. That apart, the last line of the order passed by this Court cannot be torn out of context or understood in a manner that may be destructive of the earlier portion which is much too clear to be capable of being understood in any fashion other than the one indicated above. It is fairly well settled that in order to justify initiation of contempt proceedings against the party, the order of the Court must be clear and unequivocal. An order which is open to equivocation in its interpretation or understanding by the parties cannot be made a basis for sustaining a contempt action which is in the nature of a quasi-criminal charge against the party who faces such proceedings. The present case even by that standard does not qualify for any furter action against the respondent.

11. The second aspect of the controversy is no less important. Even assuming that the order passed by this Court could be said to have incorporated the terms of the settlement between the parties, the terms so incorporated have to be read as a part and parcel of the order itself. No part of the settlement can then be excluded from consideration while examining the issue whether anyone of the parties is entitled to initiate any action for enforcement of the rights or obligation flowing from the Memorandum. A reading of Para 17 of the Memorandum leaves no manner of doubt, that the understanding between the parties envisaged that if anyone of the parties committed any default in the discharge of his/her obligations, the Memorandum of Understanding would become non-est and null and void in the eyes of law. The parties to the Memorandum then had the liberty to seek their respective remedies in the courts of appropriate jurisdiction without prejudice to their respective rights and contentions. In the resent case, the husband alleges that the respondent is not facilitating the exercise of the petitioner's right for temporary custody of the child and is, therefore, violating the terms of the Understanding. Assuming that to be so, Para 17 the Memorandum m would render non-est the arrangement leaving the petitioner free to agitate his rights for the custody of the child by agitating the matter in a Court of competent jurisdiction. The contempt jurisdiction of this court cannot, in my opinion, provide short cut for that purpose, not only because this Court had dismissed the revision petition but also because even if the settlement arrived at between the parties was to be read as a part of the direction of the Court , violation of the conditions of th settlement would have the effect of effacing the settlement as also the order which may have incorporated the same.

12. In the totality of the above circumstances, therefore, there is no room for taking any action against the respondent in the contempt jurisdiction of this Court. This contempt petition is misconceived and is accordingly dismissed reserving liberty to the petitioner to seek such redress as may be otherwise open to him in law before the competent court in fresh proceedings to be instituted by him in that regard.