Delhi High Court
D.K.C. vs K.C. & Ors. on 12 January, 2016
Author: Manmohan
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 72/2015 & CM APPL. 28160/2015
D.K.C. ..... Petitioner
Through: Mr. D.N. Goburdhun, Advocate with
Mr. Balendu Shekhar, Mr. Vivek
Jaiswal, Ms. Somya Rathore,
Advocates and petitioner in person.
versus
K.C. & ORS. ..... Respondents
Through: Ms. Malavika Rajkotia, Advocate
with Mr. Ranjay N., Ms. Arpita Rai,
Mr. Vaibhav Vats, Ms. Tanya Prasad
Mr. Ramakant Sharma, Advocates for
R-1 & 2 and R-1 in person.
Mr. Ajay Digpaul, CGSC with
Mr. Kunal Gosain, Advocate for R-3.
Reserved on 23rd December, 2015
% Date of Decision: 12th January, 2016
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J:
1. Present contempt petition has been filed alleging wilful disobedience
of the order dated 1st October, 2014 passed by Principal Judge, Family Court
in G.S. 11/14. It is the case of the petitioner-mother that respondent no. 1-
father in violation of the consensual parenting plan accepted by the
Guardianship Court vide aforesaid order, had taken the minor child to
Malaysia on 31st December, 2014 even though he had undertaken that he
would not take the minor child abroad till such time the divorce decree is
passed by way of second motion under Section 13B(2) of the Hindu
Marriage Act, 1955.
2. On 2nd February, 2015, learned Predecessor of this Court had issued a
notice to respondent no. 1 returnable for 17th July, 2015. On 17th July, 2015,
this Court had passed the following order :-
"Prima facie this is a case of child abduction by the
respondent-father, who is stated to be residing in Malaysia.
Since the service report is still awaited, the respondent-
father is permitted to be served upon deposit of process fee by
way of e-mail and courier in addition to registered post.
As the respondent-father is an Indian passport holder,
the Ministry of External Affairs, Government of India is
impleaded as a necessary and proper party because if the facts
stated in the petition are correct, then this Court may be
inclined to issue orders for cancellation of his passport.
Accordingly, let an amended memo of parties be filed within a
period of one week.
Issue notice to the newly impleaded necessary and
proper party through standing counsel for Union of India by
registered post as well as dasti, returnable for 26th August,
2015."
3. On 26th August, 2015, learned counsel for respondent no.1 entered
appearance and at her request she was given an opportunity to file a reply-
affidavit within one week. Respondent no. 1 and the minor child were
directed to be present in Court on the next date of hearing.
4. On 7th September, 2015, respondent no. 1 and the minor child
appeared in Court. They were directed to deposit their passports with the
Deputy Registrar (Appellate) of this Court and Ministry of External Affairs
was directed to issue directions to FRRO that neither respondent no. 1 nor
the minor child shall travel abroad till further orders. Thereafter at the
insistence of the counsel, this Court met both the petitioner and respondent
no. 1 as well as minor child. But as efforts to resolve the matter did not
succeed, the matter was heard on merits.
5. Since the parties have levelled serious personal allegations against
each other and insisted that the same be recorded, it is directed that in the
order that is to be uploaded, initials of the parties would only be mentioned.
ARGUMENTS OF PETITIONER
6. Mr. D.N. Goburdhun, learned counsel for petitioner stated that on 1 st
October, 2014, respondent no. 1 had given a solemn undertaking to the
Principal Judge, Family Court in Guardianship Case No. 11/2014, which had
attained finality. According to him, as per the undertaking the custody of
the minor child was to remain solely with the petitioner-mother and
respondent no. 1-father could not have taken the minor child of seven years
abroad at all.
7. He further stated that respondent no. 1 sought visitation of the minor
child from 27th December, 2014 till 1st January, 2015 and he also sought
minor's passport as an ID for flight journey to Goa. He contended that on
29th December, 2014, the respondent no. 1 surreptitiously purchased an air-
ticket for Malaysia for the minor child without taking any prior consent of
the petitioner and it was only by email dated 1st January, 2015, that he
informed the petitioner that he had whisked away the child to Malaysia for
good. He stated that respondent No. 1 ignored the petitioner‟s call on the
30th and even when he spoke to her on 31 st, he did not inform her about
taking the minor child to Malaysia. Mr. Goburdhun stated that petitioner
immediately asked the respondent no. 1 to return the child and lodged a
police complaint against the respondent no. 1 which has now been converted
into an FIR No. 885/2015 under Section 363 IPC, PS Vasant Kunj. He
stated that as of today respondent no. 1 is a criminal, and accused in a
criminal court.
8. Mr. Goburdhun contended that respondent no.1 was not at all
apologetic about his contemptuous behaviour. He stated that on the contrary
respondent no. 1 was, in fact, boastful and triumphant about his act of
contempt. According to him, the boastful and triumphant attitude of
respondent no. 1 could be seen in the reply in which there was no bona-fide
or genuine apology. He stated that respondent no. 1 is now justifying his act
of contempt by weaving stories like that of „Alice in Wonderland‟.
9. Learned counsel for petitioner pointed out that respondent no. 1 had
divorced his first wife and had a son from her. During the son's
childhood/teenage or adult years, the respondent no. 1 had not visited the
child at all. According to him, respondent no. 1 was not inclined either to
bond with his son or play the role of a responsible father. He stated that
consequently respondent no. 1 was not even allowed overnight custody of
the boy.
10. Mr. Goburdhun alleged that respondent no. 1 has weird sexual
fantasies. According to him, respondent no. 1 used to press the throat of the
petitioner almost choking her to death while having marital relations. He
stated that respondent no. 1 was a sexual maniac who suffered from
„Paraphilia‟ which is to have sexual obsession with an organ of a human.
11. He also stated that respondent no. 1 was an alcoholic and consumed
more than moderate amount of liquor on daily basis. He pointed out that
that in Malaysia respondent no. 1 is registered at various clubs and bars like
Sid's at Damansara WIP. According to him, respondent no. 1 exhibited all
the physical and mental ailments of an alcoholic. He stated that respondent
no. 1 used to get angry, shout, scream and break things when the petitioner
or the minor child stopped him from drinking. He stated that respondent
no.1's physical health started to suffer so much from alcohol abuse that he
urinated in his car one day.
12. He also stated that in December 2011, the respondent no. 1 and the
family had gone to Singapore to open bank account and receive
remuneration but there also he was so drunk that he lost the keys of the
apartment and the petitioner had to spend the night in a shady motel used for
prostitution.
13. Mr. Goburdhun stated that respondent no. 1 used to perform the
absurd act of bathing naked with the minor girl child and when petitioner
objected to it, it did not make any difference to him. He pointed out that this
fact had also been stated in the Guardianship petition and this issue had also
been raised before the counsellor who also said that this conduct was truly
abhorrent.
14. Mr. Goburdhun stated that respondent no. 1's conduct of kissing his
minor daughter on mouth was objected by the petitioner but he paid no heed,
stating that this is their family tradition. He further stated that even the
counsellor had categorically said that it was "not appropriate behaviour".
15. Mr. Goburdhun stated that respondent no. 1 had now put false
accusation on the petitioner's character.
RESPONDENT NO. 1‟S ARGUMENTS
16. On the other hand, Ms. Malvika Rajokotia, learned counsel for
respondent no.1-father contended that it was the petitioner-mother who had
indulged in child abduction inasmuch as it was the petitioner who had
surreptitiously removed the minor child from her home of last seven years,
where she was born.
17. She submitted that the custody arrangement arrived at by the parties
was non-est as it was arrived at by the parents without consulting the minor
child. In support of her submission, she relied upon the judgment of this
Court in Soumitra Kumar Nahar Vs. Parul Nahar, 223 (2015) DLT 202
(DB) wherein it has been held that indubitably both father and mother have a
crucial role to play in a child's life, but the Court cannot overlook the wishes
of a child especially when the child is not gullible and does not get
influenced by others and has her own decision making abilities.
18. She contended that respondent no.1‟s consent for the first motion
petition was vitiated as his consent had been obtained by force by
intimidating him with vicious pleadings and not allowing him to meet the
minor child till he settled all financial aspects of the agreement. She pointed
out that in the case of Surestha Devi Vs. Om Prakash (1991) 2 SCC 25, it
has been held that consent to a mutual divorce could be withdrawn any time
before passing of the divorce decree. Therefore, according to her,
respondent no. 1-husband was entitled to withdraw his consent for divorce
and to the settlement agreement, to which effect a suit for injunction and
cancellation had been filed and was pending.
19. Ms. Rajkotia further submitted that the undertakings are inter-parties
and, therefore, violation of the same does not constitute contempt. In
support of her submission, she relied upon a judgment of the Supreme Court
in Babu Ram Gupta Vs. Sudhir Bhasin & Anr., AIR 1979 SC 1528
wherein it has been held as under:-
"6. Miss Seita Vaidialingam who argued this case before us
with great ingenuity and persuasiveness submitted that even if
the order of the High Court was void, it was not open to the
appellant as a litigant to assume the role of a Judge and
unilaterally decide that the order of the High Court being non
est he was not bound to obey the same. In other words, It was
contended that he having himself filed an appeal before the
Division Bench and thereby having invited the Court to pass a
consent order which was agreed to by the appellant he could
not by virtue of the rule of estoppel by judgment be heard to say
that the appeal filed by the appellant himself being incompetent,
the judgment was void, hence the appellant could disobey the
same with impunity. In support of her submission, the under
Counsel cited the cases of State of Uttar Pradesh v. Ratan
Shukla MANU/UP/0103/1956 : AIR1956All258 . Umrao Singh
v. Man Singh and Ors. I. L. R. (1971) Del 44. Joseph F. Maggio
v. Raymond Zeitz 92 L. Ed 476 and United States of America v.
United Mine Workers of America 91 L. Ed. 884. While we do
find considerable force in the argument of Miss Seita
Vaidyalingam, counsel for the respondent we are of the opinion
that the point is not free from difficulty and in the view that we
have decided to take on the first point raised by counsel for the
appellant, the second point does not fall for determination. We,
therefore, refrain from going into this point and leave the
matter to be decided in a more proper and suitable case.
7. Coming to the first point, the contention of Mr. Asthana was
that there was no undertaking given by the appellant to the
court at all. Our attention has not been drawn by counsel for
the respondent to any application or affidavit filed by the
appellant which contains an undertaking given by the appellant
to hand over possession to the receiver appointed by the High
Court by virtue of the impugned order. It is manifest that any
person appearing before the Court can give an undertaking in
two way : (1) that he files an application or an affidavit clearly
setting out the undertaking given by him to Court, or (2) by a
clear and express oral undertaking given by the contemner and
incorporated by the court in its order. If any of these conditions
are satisfied then a wilful breach of the undertaking would
doubtless amount to an offence under the Act. Although the
High Court observed that the consent order extracted above
had been passed on the basis of various undertakings given by
the contemner, we are unable to find any material on record
which contains such undertakings. It seems to us that the High
Court has construed the consent order itself and the directions
contained therein as an implied undertaking given by the
appellant. Here the High Court has undoubtedly committed an
error of law. There is a clear cut distinction between a
compromise arrived at between the parties or a consent order
passed by the court at the instance of the parties and a clear
and categorical undertaking given by any of the parties. In the
former, if there is violation of the compromise or the order no
question of contempt of court arises, but the party has a right to
enforce the order or the compromise by either executing the
order or getting an injunction from the court."
20. Learned counsel for respondent no.1 stated that it was in Goa that the
minor child expressed her deep unhappiness and revealed several facts about
petitioner's state of mind that showed that she was psychologically unstable,
cussed, obsessive and suffered from deluded righteousness. According to
her, petitioner was very strict with her daughter and it was the absence of
love and indulgence that had dried up the minor's child's love for her mother.
She further stated that it was the petitioner's propensity to punish and not to
indulge that had frightened the minor. She stated that the child's spiritedness
was seen as insubordinate transgression and the child was meted out with
disproportionate punishment that was abusive. According to her, this part of
petitioner's character had been countered by respondent no. 1 when they
were together but by herself, there was no respite for the child who was
dreadfully unhappy.
21. Learned counsel for respondent no.1 emphasised that many parts of
the petitioner's conduct after her meeting with a Swamy had begun to scare
the child for example, her nightly ritual of Kali worship with her tongue
hanging out.
22. Ms. Rajkotia stated that the respondent-father after hearing this was of
the opinion that he needed to protect his child. She contended that a parent's
responsibility to protect his child was a duty over and above any other duty
and that is what respondent no. 1 did. She contended that respondent no. 1's
act of taking the minor child back to Kuala Lumpur was not a premeditated
act, but an instantaneous decision in the best interest of the child. She
pointed out that respondent no. 1 had changed his own ticket to a different
airline and booked two tickets from Goa to Kula Lumpur on 29 th December,
2014 at 11.15 p.m. and in doing so, he suffered a loss of Rs. 1.50 lacs.
According to her, the act of taking the minor child to Malaysia should not be
negatively inferred while deciding this petition as even if respondent no.1
was in Delhi, the refusal of the child to be with her mother would not make
the respondent no.1 liable for contempt.
23. She also contended that respondent no.1‟s act of taking the minor
child to Malaysia was not wilful and consequently, did not constitute
contempt. In support her submission, she relied upon a judgment of the
Supreme Court in M/s. Ashok Paper Kamgar Union & Ors. Vs. Dharam
Godha & Ors., AIR 2004 SC 105 wherein it has been held as under:-
"17. Section 2(b) of Contempt of Courts Act defines 'civil
contempt' and it means willful disobedience to any judgment,
decree, direction, order, writ or other process of a Court or
willful breach of undertaking given to a Court. 'Wilful' means
an act or omission which is done voluntarily and intentionally
and with the specific intent to do something the law forbids or
with the specific intent to fail to do something the law requires
to be done, that is to say with bad purpose either to disobey or
to disregard the law. It signifies a deliberate action done with
evil intent or with a bad motive or purpose. Therefore, in order
to constitute contempt the order of the Court must be of such a
nature which is capable of execution by the person charged in
normal circumstances. It should not require any extra ordinary
effort nor should be dependent, either wholly or in part, upon
any act or omission of a third party for its compliance. This has
to be judged having regard to the facts and circumstances of
each case......."
24. In any event, she stated that as the minor child had been brought back
to the jurisdiction of this Court, the contempt stood discharged. In support
of her submission, she relied upon the Hadkinson Vs. Hadkinson, [1952] 2
All ER 567, wherein according to her, it has been held that return of the
child was adequate for discharge of contempt.
25. Ms. Rajkotia submitted that the equity is a part of contempt
jurisdiction and equity part of contempt jurisdiction is parens patriae. She
submitted that best interest of the child and parens patriae jurisdiction is not
limited to family Courts and custody cases, but all pervasive to every Court
in any case concerning a child in any manner. She further submitted that
justice must be served at every point and in every case particularly, when the
person seeking justice is a child who is not represented in Court. She
pointed out that the Supreme Court in the case of ABC Vs. State (NCT of
Delhi), AIR 2015 SC 2569 has quoted with approval the Convention on the
Rights of the Child in particular its Article 12 which reads as under:-
"1. States Parties shall assure to the child who is capable of
forming his or her own views the right to express those views
freely in all matters affecting the child, the views of the child
being given due weight in accordance with the age and
maturity of the child.
2. For this purpose, the child shall in particular be
provided the opportunity to be heard in any judicial and
administrative proceedings affecting the child, either directly,
or through a representative or an appropriate body, in a
manner consistent with the procedural rules of national law."
26. Learned counsel for respondent no.1 emphasised that the pleadings in
the present case especially with regard to respondent no. 1‟s conduct were
malodorous. According to her, the malodorous pleadings were vitiated by
malice and coercion which would be apparent from the fact that petitioner
had no objection to respondent No.1‟s custody of the child and allowed him
to take her for a holiday to Goa. She submitted that in view of the nature of
the pleadings, the present contempt petition should be dismissed. Ms.
Rajkotia contended that the petitioner‟s only endeavour by making these
allegations was to force a settlement of financial terms.
27. Ms. Rajkotia lastly stated that the petitioner's family is dysfunctional
inasmuch as the petitioner stays with her mother and sister who are both
single and the only engagement outside the immediate family is with Nani
and Masi who are also single. She stated that India is not the minor's child
home and it is Malaysia where she was born and brought up. She stated that
the minor child is a permanent resident of Kuala Lumpur, Malaysia and she
must return to her school in Malaysia at the earliest. She also stated that
petitioner had not made any sincere attempt to repair her deeply damaged
relationship with the minor child.
REJOINDER ON BEHALF OF PETITIONER
28. In rejoinder, Mr. Goburdhun submitted that the contempt jurisdiction
is very limited and is confined to compliance of orders. According to him,
in contempt proceedings the Court can neither supplement nor substitute the
order which has attained finality. In support of his submission, he relied
upon the judgments of the Supreme Court in Prithawi Nath Ram, Vs. State
of Jharkhand & Ors., (2004) 7 SCC 261 and Director of Education,
Uttaranchal & Ors. Vs. Ved Prakash Joshi & Ors., (2005) 6 SCC 98.
29. He further submitted that respondent No.1‟s suit for injunction and
cancellation of settlement agreement was not maintainable in view of Order
XXIII Rule 3A of the Code of Civil Procedure, 1908. According to him,
there was also no document to be cancelled.
30. According to Mr. Goburdhun, the minor child was at the present
moment suffering from „Stockholm Syndrome‟ which is a psychological
phenomenon in which a hostage expresses empathy and sympathy and has
positive feeling towards its captor, sometimes to the point of defending and
identifying with the captor. He stated that these feelings are generally
considered irrational in the light of danger or risk endured by the victim,
who essentially mistakes a lack of abuse from the captor as an act of
kindness.
31. Learned counsel for petitioner stated that in the present case as the
respondent-father has poisoned the minor‟s mind against the petitioner-
mother, the minor child should be taken out of the father‟s custody and even
if that causes some problem that will get neutralised with passage of time.
Consequently, he prays for a direction to return the minor child to
petitioner‟s custody. In support of his prayer, he relied upon the judgments
of the Supreme Court in Gaurav Nagpal Vs. Sumedha Nagpal, (2009) 1
SCC 42, Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw & Anr., (1987) 1
SCC 42 and Nil Ratan Kundu & Anr. Vs. Abhijit Kundu, (2008) 9 SCC
413.
32. Mr. Goburdhun contended that not only the respondent No.1 had
violated the order dated 01st October, 2014, but also the order dated 06th
November, 2015 passed by this Court which directed the petitioner,
respondent No.1 and the minor child to meet daily for a period of one week
at each other‟s residence alternatively. Thus, according to him, respondent
no.1 was a repeat offender under the Contempt of Courts Act, 1971. He also
emphasised that the petitioner had not taken any money as alimony, child
support or maintenance.
EFFORTS TO AMICABLY RESOLVE THE MATTER DID NOT SUCCEED.
33. At the cost of repetition, this Court may mention that prior to
commencing final hearing in the case it had met both the parties at the
instance of the counsel for the parties. During the meetings, the Court had
impressed upon the parties to amicably resolve the case expeditiously as
such a resolution would have been in the best interest of the minor. Not
only the Court's plea fell on deaf ears, but the parties also made serious
allegations against each other by way of pleadings and insisted that they be
recorded.
34. Though this Court has not recorded the allegations and counter
allegations with regard to what transpired in pursuance to this Court's
direction, yet it may mention that during its interaction with the parties, it
was of the view that there were serious differences also with regard to the
approach to be adopted to bring up the minor child. While the petitioner-
mother wanted the minor child to be brought up in a frugal and disciplined
atmosphere, the respondent-father wanted to indulge the child and give her
all the luxuries. During its interaction, the minor child conveyed her desire
to stay with the father in Malaysia. The minor child was also not happy with
the petitioner-mother for having filed the present contempt proceedings
inasmuch as she was scared that her father could be sent to prison.
35. This Court also got an impression during its interaction with the
parties that one of the spouses wanted to use the minor child as a pawn to
ensure that the other spouse comes back to the matrimonial home. The said
spouse was willing to exert pressure and, in fact, this Court saw him engage
in brinkmanship inasmuch as he did not get the minor child admitted to a
school in Delhi even when he knew that resolution of the litigation would
take some time. Even, the minor child was aware that the differences
between the petitioner and the respondent no. 1 were insurmountable. This
Court was sad to note that the minor had prematurely aged and the
quintessential quality of any child namely innocence had been a casualty.
Given the intransigent attitude of the petitioner and the respondent no. 1, this
Court was left with no other option but to finally hear the matter.
IN SELECTING A GUARDIAN THE PARAMOUNT CONSIDERATION IS
THAT OF A WELFARE AND WELL-BEING OF THE CHILD
36. Having heard learned counsel for the parties, this Court is of the
opinion that the law relating to child custody is fairly well settled. In
selecting a guardian of a minor, the paramount consideration is that of a
welfare and well-being of the child and while adjudicating such matters, the
Court exercises parens patriae jurisdiction. The parens patriae jurisdiction
is of ancient origin. Lord Eldon L.C. in described it in the following terms:-
"...it belongs to the King, as parens patriae, having the care of those
who are not able to take care of themselves, and is founded on the
obvious necessity that the law should place somewhere the care of
individuals who cannot take care of themselves, particularly in cases
where it is clear that some care should be thrown round them."
THE VIEWS OF A MINOR ARE RELEVANT BUT NOT DETERMINATIVE
OR CONCLUSIVE
37. The wishes of a devoted and responsible parent are not lightly to be
set aside, but the Court has to make an independent and objective judgment
of its own. Similarly, if the minor is old enough to form an intelligent
preference, the court must consider such preference, though the final
decision rests with the court as to what is conducive for the welfare of the
minor. Consequently, the views of a minor child are relevant but not
determinative or conclusive - as erroneously sought to be contended by the
learned counsel for respondent no. 1.
ORDERS RELATING TO CUSTODY OF THE MINOR ARE TEMPORARY
IN NATURE. DOCTRINE OF RES JUDICATA IS NOT APPLICABLE
38. It is equally well settled law that the doctrine of res judicata is not
applicable in matters of child custody. In fact, orders relating to custody of
the minor wards are temporary in nature, made in existing circumstances
and the Court is entitled to vary such order if such variation is considered in
the welfare of the ward.
39. It is always permissible for either of the parents to apply for
modification of the court order regarding the custody of a child at any stage
if there is any change in circumstances and/or if it is shown that the previous
arrangement was not conducive to the child's welfare or that it had produced
unsatisfactory results.
CORRECTNESS OF THE ORDER HAS TO BE JUDGED BY A SUPERIOR
COURT OR BY A COURT HAVING JURISDICTION TO DO SO.
40. However, in contempt proceedings, it cannot be urged that the order
passed by the Family Court is void or non est. In the opinion of this Court, a
contempt court should normally not act as an Appellate Court of the Family
Court, especially when power of modification, review or variation is
available. There is nothing prima facie to show that the paramount
consideration in minds of the parents while agreeing to the consensual
parenting plan was not the welfare of the minor. After all, no litigant can
be permitted to defy or decline adherence to an order of the Court merely
because he/she is of the opinion that the order is incorrect. The correctness
of the order has to be judged by a superior Court or by a Court having
jurisdiction to do so. The Supreme Court in Union of India & Ors. vs.
Subedar Devassy PV (2006) 1 SCC 613 has held as under:-
"6. If any party concerned is aggrieved by the order which in its
opinion is wrong or against rules or its implementation is neither
practicable nor feasible, it should always either approach the court
that passed the order or invoke jurisdiction of the appellate court.
Rightness or wrongness of the order cannot be urged in contempt
proceedings. Right or wrong, the order has to be obeyed. Flouting
an order of the court would render the party liable for contempt.
While dealing with an application for contempt the court cannot
traverse beyond the order, non-compliance with which is alleged. In
other words, it cannot say what should not have been done or what
should have been done. It cannot traverse beyond the order. It
cannot test correctness or otherwise of the order or give additional
direction or delete any direction. That would be exercising review
jurisdiction while dealing with an application for initiation of
contempt proceedings. The same would be impermissible and
indefensible."
(emphasis supplied)
41. This issue has also to be appreciated in the context that coordinate
benches of this Court exercise original as well as contempt jurisdiction. In
Suits for Partition and/or Maintenance, it is quite common for learned Single
Judges sitting on the original side of this Court to make arrangements with
regard to custody of minor children. Consequently, a learned single judge of
the same court cannot become an appellate Court of another coordinate
Bench just because the latter court is exercising contempt jurisdiction.
PLEA OF PARENS PATRIAE JURISDICTION IS A RED HERRING
INASMUCH AS PEOPLE ARE CONVICTED OF CONTEMPT ONLY
WHEN THEIR ACTION IS WILFUL.
42. Respondent's argument with regard to parens patriae jurisdiction in
contempt proceedings is, in fact, a red herring inasmuch as people are
convicted of contempt only when their action is wilful, that means,
deliberate or intentional and not when it is bona fide or due to genuine
inability to comply. In fact, the Supreme Court in Kapildeo Prasad Sah
and Others Vs. State of Bihar, AIR 1999 SC 3215 has held that 'Wilful'
would exclude casual, accidental, bona fide or unintentional acts or genuine
inability to comply with the terms of the order.
43. The judgment of the Supreme Court in ABC Vs. State of NCT (supra)
cited by learned counsel for respondent no. 1 is clearly inapplicable to the
present case as the issue in the said case was whether in an application for
appointment of a guardian of a child, is it imperative for an unwed mother to
notify the putative father of the child.
RESPONDENT NO.1'S ACTION OF REMOVING THE MINOR FROM
PETITIONER'S CUSTODY WAS WILFUL AND PREMEDITATED. HE
COULD HAVE FILED AN APPLICATION FOR VARIATION OF THE
CONSENSUAL PLAN. THERE WAS NO APPREHENSION OF A LIFE-
THREATENING EMERGENCY.
44. In the present case, respondent no.1's action of removing the minor
child from petitioner's custody was wilful and premeditated. Admittedly,
respondent no. 1 booked the tickets to Kuala Lumpur on 29th December,
2014 and ignored calls of the petitioner on 30th December, 2014. He replied
to petitioner's text only on 31st December, 2014 and did not inform her about
his plan to take the minor child to Malaysia.
45. This Court is of the view that respondent no. 1's act of removing the
minor child from the jurisdiction of this Court is in direct contravention of
the assurance given by him to the Guardianship Court and was certainly not
instantaneous or casual or accidental or unintentional decision taken at the
heat of the moment due to some sudden or grave provocation. In the
opinion of this Court, even if the minor child remained in the custody of
petitioner-mother after 31st December, 2014, „heavens would not have
fallen‟ as there was no apprehension of a life-threatening emergency.
46. Respondent no. 1 is an educated man and understands the significance
and importance of orders of a Court and more so when they are consensual.
This Court also cannot lose sight of the fact that the petitioner, respondent
no. 1 as well as the minor child are Indian citizens. If respondent no. 1 was
subsequently convinced that the consensual parenting plan was not
conducive to the minor child's welfare, he could have certainly filed an
application for variation of the consensual plan and for modification of the
order dated 1st October, 2014, but certainly not whisked her away to another
country.
SUDDEN AND UNAUTHORISED REMOVAL OF CHILDREN FROM ONE
COUNTRY TO ANOTHER IS FAR TOO FREQUENT NOWADAYS, AND IT
IS THE DUTY OF COURTS TO DO ALL THEY CAN TO ENSURE THAT
THE WRONGDOER DOES NOT GAIN AN ADVANTAGE.
47. This Court is of the opinion that the sudden and unauthorised removal
of children from one country to another is far too frequent nowadays, and it
is the duty of all Courts in all countries to do all they can to ensure that the
wrongdoer does not gain an advantage by his wrongdoing. [See: V. Ravi
Chandran (Dr.) Vs. Union of India & Ors., (2010) 1 SCC 174, Arathi
Bandi Vs. Bandi Jagadrakshaka Rao and Ors., AIR 2014 SC 918 and
Surya Vadanan Vs. State of Tamil Nadu and Others, (supra)].
48. In the context of an aggrieved parent not abiding by the Family Court
judgment and moving a minor child to a different jurisdiction, the Supreme
Court in Surya Vadanan Vs. State of Tamil Nadu and Others, (2015) 5
SCC 450 has recently held as under:-
"54. .............No litigant can be permitted to defy or decline adherence
to an interim or an interlocutory order of a court merely because he
or she is of the opinion that that order is incorrect--that has to be
judged by a superior court or by another court having jurisdiction to
do so..............If as a general principle, the violation of an interim or
an interlocutory order is not viewed seriously, it will have widespread
deleterious effects on the authority of courts to implement their
interim or interlocutory orders or compel their adherence.
Extrapolating this to the courts in our country, it is common
knowledge that in cases of matrimonial differences in our country,
quite often more than one Family Court has jurisdiction over the
subject-matter in issue. In such a situation, can a litigant say that he
or she will obey the interim or interlocutory order of a particular
Family Court and not that of another? Similarly, can one Family
Court hold that an interim or an interlocutory order of another
Family Court on the same subject-matter may be ignored in the best
interests and welfare of the child? We think not.............."
(emphasis supplied)
THE ARGUMENT THAT CONSENSUAL CUSTODY ARRANGEMENT IS
VOID AND NON-EST, CANNOT BE DECIDED IN A CONTEMPT
PROCEEDING.
49. Also, the argument of the respondent no. 1 that it is the petitioner who
had indulged in the first instance in child abduction and/or consensual
custody arrangement sanctioned by the Guardianship Court is void and non-
est, cannot be decided in a contempt proceeding. It is further settled law that
disobedience of orders which are subsequently found to be without
jurisdiction and/or null or void or non-est still constitutes contempt. The
Supreme Court in Tayabbhai M. Bugasarwalla & anr. Vs. Hind Rubber
Industries Pvt. Ltd. etc., AIR 1997 SC 1240 has held as under:-
"16. .......... The question is whether the said decision of the High
Court means that no person can be punished for flouting or
disobeying the interim/interlocutory orders while they were in force,
i.e., for violations and disobedience committed prior to the decision
of the High Court on the question of jurisdiction. Holding that by
virtue of the said decision of the High Court (on the question of
jurisdiction), no one can be punished thereafter for disobedience or
violation of the interim orders committed prior to the said decision
of the High Court, would indeed be subversive of rule of law and
would seriously erode the dignity and the authority of the Courts. We
must repeat that this is not even a case where a suit was filed in
wrong court knowingly or only with a view to snatch an interim
order. As pointed out hereinabove, the suit was filed in the Civil
Court bonafide. We are of the opinion that in such a case the
defendants cannot escape the consequences of their disobedience
and violation of the interim injunction committed by them prior to
the High Court's decision on the question of jurisdiction.
(emphasis supplied)
50. If violation of Court orders is not viewed seriously, it will have wide
spread deleterious effect on the authority of the Courts to implement their
orders or compel their adherence.
HADKINSON JUDGMENT NOWHERE STATES THAT ONCE THE CHILD
HAS BEEN BROUGHT BACK, THE CONTEMPT STANDS DISCHARGED.
51. This Court is also not in agreement with respondent no. 1‟s argument
that as the minor child has been brought back, the contempt stands
discharged. In Hadkinson (supra) it was held that till the child was brought
back to the Court that had passed the initial order, the defaulting spouse
would not be heard. Judgment in Hadkinson (supra) nowhere states that
once the child has been brought back to the jurisdiction of the Court that had
passed the initial order, the contempt would stand discharged.
JUDGMENT OF SURESTHA DEVI (SUPRA) HAS NO RELEVANCE AS
UNDERTAKING WAS NOT IN A DIVORCE MATTER.
52. The judgment of Surestha Devi (supra) has also no relevance to the
present case inasmuch as the undertaking in the present case was not in a
divorce matter. In fact, the order dated 1st October, 2014 is not an order
disposing of a first motion petition under Section 13B(1) of Hindu Marriage
Act. The order in the present case was passed in a guardianship petition. In
the said order it had been recorded that parties had agreed to obtain divorce
by mutual consent and that first motion petition would be filed shortly.
Consequently, as the order dated 1st October, 2014 did not amount to
disposal of the first motion petition, judgment of Surestha Devi (supra) is
clearly inapplicable to the present case.
ORDER DATED 1ST OCTOBER, 2014 CONSTITUTES AN
UNDERTAKING.
53. Since an argument has been raised by learned counsel for respondent
no. 1 that no undertaking was, in fact, given by respondent no. 1 to the
Guardianship Court, this Court deems it appropriate to reproduce hereunder
the order dated 1st October, 2014 as well as the joint statements made by
both the parties :-
A) Order dated 1st October, 2014 :-
"G.S.-11/14
01.10.2014
Pr.: Petitioner with Sh. Balendru Shekhar, Adv.
Respondent with Ms. Malvika Rastogi, Senior Adv. with
Ms Anchal Kapoor, Adv.
Heard ld. Counsel for both sides. It transpires from their
arguments that matter can be amicably settled.
Efforts made for amicable settlement.
Parties have amicably resolved their disputes. Their
joint-statement recorded separately. As per their joint
statement, put up on 13.10.2014 for hearing of first motion
petition in case the same is listed before the date fixed."
(emphasis supplied)
B) Joint statement:-
Ms. DKC Sh. KC
Sh. P.C.
Mr. KC
(emphasis supplied)
54. In the opinion of this Court, definition of civil contempt under Section
2(b) of the Contempt of Courts Act, 1971 includes breach of an undertaking
given to a Court. The Supreme Court after extensively analysing the case
law including the case of Babu Ram Gupta (supra) cited by the respondent
no.1 has succinctly outlined the concept of „undertaking‟ in second Rama
Narang (5) vs. Ramesh Narang & Anr., (2009) 16 SCC 126. The relevant
portion of the said judgment is reproduced hereinbelow:-
"35.Black's Law Dictionary, 5th Edn. defines "undertaking" in the
following words:
"A promise, engagement, or stipulation. An engagement by one
of the parties to a contract to the other, as distinguished from
the mutual engagement of the parties to each other. It does not
necessarily imply a consideration. In a somewhat special sense,
a promise given in the course of legal proceedings by a party
or his counsel, generally as a condition to obtaining some
concession from the court or the opposite party. A promise or
security in any form."
36.Osborn's Concise Law Dictionary, 10th Edn. defines
"undertaking" in the following words:
"A promise, especially a promise in the course of legal
proceedings by a party or his counsel, which may be enforced
by attachment or otherwise in the same manner as an
injunction."
37. In M. v. Home Office, All ER at p. 132g, the expression
"undertaking" has been dealt with in the following manner:
"[I]f a party, or solicitors or counsel on his behalf, so act as to
convey to the court the firm conviction that an undertaking is
being given, that party will be bound and it will be no answer
that he did not think that he was giving it or that he was
misunderstood."
38. Hudson, In re, the English court observed as under: (All ER pp.
112 I-113 A)
"An undertaking to the court confers no personal right or
remedy on any other party. The only sanctions for breach are
imprisonment for contempt, sequestration or a fine."
39. Similarly, in Shoreham-by-Sea Urban District
Council v. Dolphin Canadian Proteins Ltd. the Court observed as
under:
"Failure to comply with an undertaking to abate a nuisance
may be visited with a substantial fine."
40. The Division Bench of the Bombay High Court in Bajranglal
Gangadhar Khemka v. Kapurchand Ltd. had an occasion to deal
with similar facts. Chagla, C.J., speaking for the Court, observed as
under: (AIR p. 337, para 4)
"4. We are not prepared to accept a position which seems to us
contrary to the long practice that has been established in this
Court, and, apparently, also in England. There is no reason
why even in a consent decree a party may not give an
undertaking to the court. Although the court may be bound to
record a compromise, still, when the court passes a decree, it
puts its imprimatur upon those terms and makes the terms a
rule of the court; and it would be open to the court, before it
did so, to accept an undertaking given by a party to the court.
Therefore, there is nothing contrary to any provision of the law
whereby an undertaking cannot be given by a party to the court
in the consent decree, which undertaking can be enforced by
proper committal proceedings."
41. In Noorali Babul Thanewala v. K.M.M. Shetty, a tenant
committed breach of undertaking given by him to the Supreme Court
to deliver vacant possession of certain premises. The Supreme Court
held the tenant guilty of contempt. Hon'ble V. Ramaswami, J.,
delivering the judgment observed: (SCC pp. 265-66, para 11)
"11. When a court accepts an undertaking given by one of the
parties and passes orders based on such undertaking, the order
amounts in substance to an injunction restraining that party
from acting in breach thereof. The breach of an undertaking
given to the court by or on behalf of a party to a civil
proceedings is, therefore, regarded as tantamount to a breach
of injunction although the remedies were not always identical.
For the purpose of enforcing an undertaking that undertaking
is treated as an order so that an undertaking, if broken, would
involve the same consequences on the persons breaking that
undertaking as would their disobedience to an order for an
injunction. It is settled law that breach of an injunction or
breach of an undertaking given to a court by a person in a civil
proceeding on the faith of which the court sanctions a
particular course of action is misconduct amounting to
contempt."
42. In Mohd. Aslam v. Union of India this Court dealt with the
contempt proceedings raising the issues as to the amenability of the
State and of its Ministers for failure of obedience to the judicial
pronouncements. In this case, the Chief Minister of Uttar Pradesh
had made a statement before the National Integration Council that
the Government of Uttar Pradesh will hold itself fully responsible for
the protection of the Ram Janma Bhumi-Babri Masjid structures.
Upon this statement of the Chief Minister, this Court had passed an
order. However, in the contempt proceedings it was alleged that the
orders passed on the basis of the statements made have been
deliberately and wilfully flouted and disobeyed by the State of Uttar
Pradesh. While dealing with the expression "undertaking", this
Court observed as under: (SCC p. 453, para 22)
"The Chief Minister having given a solemn assurance to the
National Integration Council and permitted the terms of that
assurance to be incorporated as his own undertaking to this
Court and allowed an order to be passed in those terms cannot
absolve himself of the responsibility unless he placed before the
Court sufficient material which would justify that he had taken
all reasonable steps and precautions to prevent the
occurrence."
43. In Rita Markandey v. Surjit Singh Arora this Court came to the
conclusion that even if the parties have not filed an undertaking
before the court, but if the court is induced to sanction a particular
course of action or inaction on the basis of the representation of
such a party and the court ultimately finds that the party never
intended to act on such representation or such representation was
false, even then the party would be guilty of committing contempt of
court. The Court observed as under: (SCC p. 20, para 12)
"12. Law is well settled that if any party gives an undertaking
to the court to vacate the premises from which he is liable to be
evicted under the orders of the court and there is a clear and
deliberate breach thereof it amounts to civil contempt but since,
in the present case, the respondent did not file any undertaking
as envisaged in the order of this Court the question of his being
punished for breach thereof does not arise. However, in our
considered view even in a case where no such undertaking is
given, a party to a litigation may be held liable for such
contempt if the court is induced to sanction a particular course
of action or inaction on the basis of the representation of such
a party and the court ultimately finds that the party never
intended to act on such representation or such representation
was false."
44. In K.C.G. Verghese v. K.T. Rajendran this Court dealt with the
"undertaking" in contempt proceedings arising out of eviction
proceedings. This Court held that when at the time of giving the
undertaking, the tenant did not indicate that he was in possession of
a part of the premises and not the other portion nor was such a stand
taken in any of the pleadings before the High Court or Rent
Controller, the order of eviction passed against the tenant is equally
binding upon the occupant of the other portion.
45. This Court again had occasion to deal with a case in Bank of
Baroda v.Sadruddin Hasan Daya. In that case, the Court clearly
observed as under: (SCC p. 361g)
"The wilful breach of an undertaking given to a court amounts
to „civil contempt‟ within the meaning of Section 2(b) of the
Contempt of Courts Act. The respondents having committed
breach of the undertaking given to the Supreme Court in the
consent terms they are clearly liable for having committed
contempt of court."
46. The respondents placed reliance on Babu Ram Gupta v. Sudhir
Bhasin. In this case admittedly no application, affidavit or any
undertaking were given by the appellant. Therefore, this case is of no
assistance to the respondents. In this case, the Court observed that:
(SCC p. 53, para 10)
"[E]ven the consent order does not incorporate expressly or
clearly that any such undertaking had been given either by the
appellant or by his lawyer before the court that he would hand
over possession of the property to the receiver. In the absence
of any express undertaking given by the appellant or any
undertaking incorporated in the order impugned, it will be
difficult to hold that the appellant wilfully disobeyed or
committed breach of such an undertaking."
The Court even in this case observed that: (SCC p. 53, para 10)
"In fact, the reason why a breach of clear undertaking given to
the court amounts to contempt of court is that the contemnor by
making a false representation to the court obtains a benefit for
himself and if he fails to honour the undertaking, he plays a
serious fraud on the court itself and thereby obstructs the
course of justice and brings into disrepute the judicial
institution."
(emphasis in original)
47. The critical analysis of the decided cases of this Court clearly
leads to the conclusion that wilful breach of an undertaking given to
the court amounts to contempt of court under Section 2(b) of the Act.
(emphasis supplied)
55. In the present case keeping in view the aforesaid law, this Court is of
the view that the respondent no. 1 had given not only full custody of the
minor child to the petitioner-mother, but had also undertaken that he would
not take the child for holidays abroad leave alone permanently till such time
as the divorce decree was passed. Consequently, this Court is of the opinion
that statement of respondent no. 1 under oath in the presence of his counsel
constitutes an undertaking and assurance to the Guardianship Court which
has been breached.
56. Assuming that respondent no. 1 had not given any specific
undertaking/assurance, this Court is of the view that he had certainly
induced the Guardianship Court to put its imprimatur to a parenting plan by
making a representation and consequently the same constitutes an
undertaking. Since in the present case said undertaking has been breached
by the respondent-father, he is guilty of contempt.
AN UNDERTAKING HAS ALL THE FORCE OF AN INJUNCTION.
57. In the opinion of this Court, it is important for parties to appreciate
that an undertaking has all the force of an injunction. It is equally as
important as an injunction, and it has the same penalties for failure to abide
by it as an injunction. It is all too easy for people to promise and all too easy
for them to break that promise. Then they, quite rightly, have to face the
wrath of the court for having made promises which were not worth the paper
which they have signed.
PLEA MINOR IS UNWILLING TO STAY WITH THE PETITIONER WAS
REJECTED IN SIMILAR FACTS IN HOSHIAM SHAVAKSHA DOLIKUKA.
58. The further plea of respondent no. 1 that he cannot be held guilty of
contempt as the minor child is unwilling to stay with the petitioner was
rejected in similar facts by the Supreme Court in Hoshiam Shavaksha
Dolikuka Vs. Thrity Hoshie Dolikuka, (1982) 2 SCC 577. The relevant
portion of the said judgment is reproduced hereinbelow:-
"6. The main defence of the husband in the contempt replication is
that he was not in a position to carry out the said orders and to
comply with his undertakings, as the daughter Gospi was unwilling to
go to her mother's place. It is his defence that in spite of his best
endeavours he could not pursuade the daughter Gospi to go to her
mother's place, and in view of the attitude of Gospi and taking into
consideration the question of Gospi's health and welfare, he was
prevented from taking Gospi to her mother's place and the violation
is, therefore, unintentional and for reasons beyond his control.
10. ........The defence sought to be put forward on behalf of the
appellant that the appellant was unable to comply with the said orders
and to carry out the undertakings in view of the attitude of the minor
girl does not impress us. If there had been any truth in the case sought
to be made by the appellant, it would have been clearly the duty of the
appellant, to apply to the Court, drawing the notice of the court to this
aspect and to ask for appropriate directions. ............It, however,
appears that the appellant took no such steps in the present case when
the appellant felt that he would not be in a position to carry out the
orders of the Court and to comply with the undertakings given by him.
The fact and circumstances of this case go to suggest that the
appellant was not willing to part with the company of his daughter
and to allow her to stay with her mother. We are, therefore, of the
opinion that the High Court was right in coming to the conclusion that
the appellant has committed acts which amount to contempt of court."
(emphasis supplied)
59. Supreme Court in Gaurav Nagpal (supra) similarly rejected the
arguments of the father that as the minor child was living with him since
long, the arrangement should not be disturbed. The relevant portion of the
said judgment is reproduced hereinbelow:-
"52. The trump card in the appellant's argument is that the child is
living since long with the father. The argument is attractive. But the
same overlooks a very significant factor. By flouting various orders,
leading even to initiation of contempt proceedings, the appellant has
managed to keep custody of the child. He cannot be a beneficiary of
his own wrongs............"
(emphasis supplied)
THERE IS NO BONA FIDE OR GENUINE APOLOGY.
60. This Court is also in agreement with the contention of learned counsel
for the petitioner that in the reply-affidavit filed by respondent no. 1, there is
no bona fide or genuine apology.
DUTY OF CONTEMPT COURT TO ENSURE COMPLIANCE OF
ORDERS.
61. It is the obligation of this Court to uphold the majesty of law and to
ensure that judicial orders are not flouted by a party who believes that it
shall be the judge of its own case. This Court is of the view that it is the
duty of contempt court to ensure compliance of orders and if the respondent
no. 1‟s conduct is not reprimanded, there shall be no rule of law. The
Supreme Court has held so in the following judgments :-
A) Bank of Baroda Vs. Sadruddin Hasan Daya & Another, (2004) 1
SCC 360 wherein it has been held as under:-
"16. .........the court should act with seriousness and severity where
justice is jeopardized by a grossly contemptuous act of a party. If the
judiciary is to perform its duties and functions effectively and true to
the spirit with which they are sacredly entrusted, the dignity and
authority of the courts have to be respected and protected at all
costs. Otherwise, the very cornerstone of our constitutional scheme
will give way and with it will disappear the rule of law and the
civilized life in the society (see Vinay Chandra Mishra, In
re)............."
(emphasis supplied)
B) Anil Ratan Sarkar and Others Vs. Hirak Ghosh and Others, (2002)
4 SCC 21 wherein it has been held as under:-
"22. ......there cannot be any laxity, as otherwise the law courts
would render themselves useless and their order to utter mockery.
Feeling of confidence and proper administration of justice cannot
but be the hallmark of Indian jurisprudence and contra-action by
courts will lose its efficacy. Tolerance of law courts there is, but not
without limits and only up to a certain point and not beyond the
same."
(emphasis supplied)
C) Murray & Co. Vs. Ashok Kr. Newatia and Another, (2000) 2 SCC
367 wherein it has been held as under:-
".........The Contempt of Courts Act of 1971 has been engrafted in the
statute-book for the purpose of bringing in a feeling of confidence of
the people in general for due and proper administration of justice in
the country. It is undoubtedly a powerful weapon in the hands of the
courts and as such it must be exercised with due care and caution
and in cases of larger interest for due administration of justice."
xxxx xxxx xxxx xxxx
9. The right to inflict punishment for contempt of court in terms of
the Act of 1971 on to the law courts has been for the purposes of
ensuring the rule of law and orderly administration of justice. The
purpose of contempt jurisdiction is to uphold the majesty and dignity
of the courts of law since the image of such a majesty in the minds of
the people cannot be led to be distorted. The respect and authority
commanded by courts of law are the greatest guarantee to an
ordinary citizen and the entire democratic fabric of the society will
crumble down if the respect for the judiciary is undermined. It is true
that the judiciary will be judged by the people for what the judiciary
does, but in the event of any indulgence which can even remotely be
termed to affect the majesty of law, the society is bound to lose
confidence and faith in the judiciary and the law courts thus, would
forfeit the trust and confidence of the people in general."
(emphasis supplied)
AS THERE IS A CLEAR BREACH OF THE UNDERTAKING
APPROPRIATE DIRECTIONS HAVE TO BE ISSUED TO CLOSE THE
BREACH.
62. The facts narrated above would clearly indicate that the respondent
No. 1-father is squarely responsible for removal of the child from the
jurisdiction of the Indian Court. As there is a clear breach of the undertaking
given by the respondent No.1-father, this Court is of the opinion that
appropriate directions have to be issued to close the breach. The Supreme
Court in Mohammad Idris and Another Vs. Rustam Jehangir Babuji and
Others, (1984) 4 SCC 216 has held as under:-
"4. On merits, the learned counsel submitted that the
undertaking given was not in respect of the property
concerned and that in any case the learned Single Judge was
not justified in giving certain directions in addition to
punishing the petitioners for contempt of court. We find no
substance in the submissions made by the learned counsel.
There was a clear breach of the undertaking given by the
petitioners and we are of the opinion that the Single Judge
was quite right in giving appropriate directions to close the
breach. The special leave petition is, therefore, dismissed."
(emphasis supplied)
63. It is true that taking the child out of the father‟s custody may cause
some problem, but difficulty in implementation of an order passed by the
Court, is no answer for its non-implementation. The Supreme Court in
Arathi Bandi (supra) has held as under:-
"..........All said and done, in such circumstances, the Court is
left with making a very unpleasant decision. Either way, certain
collateral damage being caused to the child cannot be avoided.
The facts narrated above would clearly indicate that the mother
is singularly responsible for removal of the child from the
jurisdiction of the US courts."
(emphasis supplied)
64. Consequently, the respondent-father is directed to return the minor
child to the petitioner-mother forthwith. If the respondent-father is of the
view that consensual parenting plan is not working in the interest of the
minor, he is given liberty to seek variation, modification and/or recall of the
order dated 01st October, 2014. The rights and contentions of all the parties
are left open.
RESPONDENT NO. 1-FATHER IS GUILTY OF CONTEMPT OF COURT.
65. This Court is also of the opinion that as the respondent No. 1-father
has brought back the child at the earliest, the same should be considered as a
mitigating factor while awarding punishment. Accordingly, while holding
respondent no. 1-father guilty of contempt of Court, he is only sentenced till
the rising of the Court. This Court may also mention that imposing any
harsher punishment on respondent no. 1 would neither serve any purpose
nor would it contribute to the welfare of the minor child. However, the
respondent No. 1-father is warned that if he is found indulging in a
contemptuous act in future, a stricter view would be taken.
66. The directions issued by this Court to the FRRO on 07 th September,
2015 are withdrawn and the Deputy Registrar (Appellate) is directed to
release only the passport of respondent no.1 to him against a signed receipt.
The passport of the minor child shall be transferred to the Court of Principal
Judge, Family Court, Patiala House Courts, New Delhi and it shall abide by
further orders to be passed by that Court.
67. With the aforesaid observations and directions, present contempt
petition and pending application stand disposed of.
MANMOHAN, J
JANUARY 12, 2016
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