Delhi High Court
V vs S on 3 December, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 03rd December, 2018
+ REVIEW PET. 263/2016 in CONT.CAS(C) 321/2015
V ..... Petitioner
Through: Ms. Geeta Luthra, Senior Advocate
with Mr. Vijay Gupta, Mr. Prateek
Yadav, Advocates
versus
S ..... Respondent
Through: Mr. Deepak Anand, Ms. Hemlata
Rawat, Mr. Aayushman, Advocates
along with respondent in person.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The petitioner and the respondent were married according to Hindu
rites and ceremonies on 11th July, 2008. The parties were blessed with a son
on 11th July, 2009. The parties separated on 08th June, 2010.
2. Dissolution of marriage by mutual consent
2.1 On 17th October, 2011, the parties filed a joint petition, HMA No.
1035/2011 for dissolution of their marriage by mutual consent under Section
13B of the Hindu Marriage Act, 1955 on the following terms:
(i) The respondent shall pay Rs.25,00,000/- to the petitioner in full
and final settlement of all her claims in respect of dowry,
stridhan articles, maintenance-past, present and future and
permanent alimony.
(ii) The petitioner shall handover the custody of minor child Master
Vaibhav Sabharwal to the respondent at the time of the joint
statement in the second motion and petitioner shall have the
visitation rights.
(iii) The petitioner shall withdraw the proceedings pending before
the Family Court under Domestic Violence Act; and the
complaint filed against respondent with CAW Cell.
(iv) The petitioner shall withdraw the claim petition under Section
125 Cr.P.C. and petition under Section 18 Hindu Adoption and
Maintenance Act, 1956.
(v) The parties shall have no right, title, claim or interest against
each other.
(vi) The parties undertake not to file any complaint/case/suit against
each other or their respective family members before any Court
or authority in respect of the matrimonial relations or any other
claim arising out of it.
2.2 On 17th October, 2011, the joint statement of the parties was recorded
by the District Judge in divorce petition which is reproduced hereunder:-
"We got married on 11.07.2008 at Delhi, according to
the Hindu rites and rituals. The petitioner No.1 has placed on
record his affidavit Ex P-1 which bears his signatures at point A
and B. The petitioner No.2 has placed on record her affidavit
Ex.P-2 which bears her signatures at point C and D. The
photocopy of the election identity card of petitioner no.1 and
petitioner No.2 are Ex P-3 and Ex.P-4 respectively (Originals
seen and returned). The marriage was duly consummated and
one male child, namely, Master Vaibhav was born from the
wedlock on 11.07.2009.
We have been living separately since 08.06.2010 and
have not been able to live together since then. There is no
possibility of our living together again as husband and wife. We
have accordingly decided to dissolve our marriage by mutual
consent. Our consent for divorce by mutual consent has not
been obtained by force, fraud or undue influence. There is no
collusion between us in filing of the present petition.
We both have resolved all our claims/disputes amicably
before the Court.
As per the settlement, I (petitioner No.2) have agreed to
pay a total sum of Rs.25,00,000/- (Rupees twenty five lacs only)
to the petitioner No.1 towards full and final settlement of all her
claims in respect of dowry/stridhan articles, maintenance-past,
present and future and permanent alimony. Out of the said total
sum of Rs.25,00,000/-(Rupees twenty five lacs only), a sum of
Rs.12,00,000/-(Rupees twelve lacs only)has already been paid
by me (petitioner No.2) to the petitioner No.1 at the time of
withdrawal of the petition (sic) under Section 156(3) Cr.P.C.
The same amount (Rs.12,00,000/-) shall act as consideration for
the first motion of the mutual petition for divorce. The balance
amount of Rs.13,00,000/-(Rupees thirteen lacs only) shall be
paid by me (petitioner No.2) to the petitioner No.1 at the time of
recording of our joint-statement in the second motion.
I (petitioner No.1) undertake that after receipt of the said
total sum of Rs.25,00,000/- (Rupees twenty five lacs only) from
the petitioner No.2, no claim of any kind whatsoever shall be
left against the petitioner No.2 and his family members qua the
marriage.
I (petitioner No.2) have already handed over the
articles/stridhan of the petitioner No.1 to the petitioner No.1.
However, if small articles of the petitioner No.1 remain in the
matrimonial home even after today, the petitioner (sic) No.2
shall hand over the same to the petitioner No.1. It is, however,
made clear that no article of value remains to be delivered.
I (petitioner No.2) have also handed over the papers with
thumb impressions of the petitioner No.1 to the petitioner No.1.
I (petitioner No.1) shall withdraw the proceedings under
the Domestic Violence Act and the complaint from the CAW
Cell filed against the petitioner No.2 and his family members at
the earliest.
I (petitioner No.1) shall also withdraw the petition under
Section 125 Cr.P.C and the petition under Section 18 of Hindu
Adoption and Maintenance Act filed against the petitioner No.2
before the next date of hearing i.e. 02.11.2011.
It has been agreed between us that the custody of our
minor son, namely, Master Vaibhav shall remain with the
petitioner No.1/wife till the date of second motion and the
petitioner No.2/husband shall have the visitation rights once in
a month on any Sunday outside the premises of petitioner No.1
in a public place for 3 to 4 hours within that period. At the time
of recording of joint-statement in the second motion, the
petitioner No.1/wife shall hand over the custody of the minor
son, namely, Master Vaibhav to the petitioner No.2/husband
and thereafter, the permanent custody of the minor son, namely,
Master Vaibhav shall remain with the petitioner No.2/husband
only and the petitioner No.1/wife being the natural mother shall
also enjoy the right of visitation accordingly.
We shall have no right, title, claim or interest of any
nature whatsoever against each other in the properties in our
possession or acquired/obtained in future after the second
motion.
We both undertake to abide by the terms and conditions
as mentioned in the joint-petition Ex.P-A as well as our joint-
statement recorded today in the Court.
We both further undertake to withdraw all the
cases/complaints, if any, filed against each other and not to file
any complaint/case/suit against each other or our respective
family members in future before any Court of law or authority
in respect to our matrimonial relations or any other claim
arising out of it.
Present petition has been signed and verified by both of
us and the same is supported by our affidavits. Contents of the
petition are correct. We pray that our petition under Section
13B (1) of the H.M. Act may be allowed."
(Emphasis Supplied)
2.3 On 17th October, 2011, the District Judge allowed the first motion and
passed the following order:-
"1. The present petition under Section 13B(1) of the Hindu
Marriage Act, 1955 (for short, the Act) has been filed by the
Petitioners for the dissolution of their marriage by way of a decree
of divorce through mutual consent.
2. Efforts for reconciliation made between the parties proved
futile and consequently, a joint-statement of both the parties has
been recorded separately.
3. I heard the submissions of ld. Counsel for both the
Petitioners and have also perused the material on record.
4. From the averments made in the petition supported by
affidavits of both the parties as well as the joint-statement of the
parties recorded on oath, it is evident that they were married on
11.07.2008 at Delhi, according to the Hindu rites and rituals. The
marriage was duly consummated and one male child, namely,
Master Vaibhav was born from the wedlock on 11.07.2009. The
Petitioners have been living separately since 08.06.2010 and there
has been no cohabitation between them since then. There is no
possibility of their living together as husband and wife and the
marriage has broken down irretrievably beyond repair. Thus, they
have mutually agreed that their marriage may be dissolved.
5. The record, also, reveals that the parties have settled all
their claims and disputes amicably in respect of dowry/stridhan
articles, maintenance (past, present and future) and permanent
alimony before the Court. The Petitioners have undertaken to
abide by the terms and conditions as mentioned in the joint-
petition Ex. P-A as well as their joint-statement recorded today in
the Court.
6. From the joint-statement of the Petitioners, I am satisfied
that their consent, for divorce by mutual consent, is free from
force, fraud or undue influence and there is no collusion between
them in filing the present petition.
7. I am, therefore, satisfied that the requirements of petition
under Section 13B(1) of the Act, have been duly satisfied in this
case. Hence, the same is allowed.
8. File be consigned to the record room."
(Emphasis supplied)
2.4 On 07th February, 2013, the parties filed the second motion HMA
No.83/2013 before the District Judge and the joint statement of the parties
was recorded by the District Judge which is reproduced hereunder:-
"We got married at Delhi on 11.07.2008 according to the
Hindu rites and ceremonies. The marriage was duly
consummated and one male child master Vaibhav was born on
11.07.2009 from the wedlock. We lived together as husband and
wife till 08.06.2010 and thereafter, there has been no
cohabitation between us after 08.06.2010. We moved a joint
petition for dissolution of marriage by mutual consent and our
first motion was accepted on 17.10.2011 by this court.
Thereafter, also, we have reconsidered our decision. We have
failed to stay together as husband & wife and have agreed to
dissolve our marriage. We are firm on our decision and
accordingly filed the present joint petition Ex.P1 which is
supported by our affidavits Ex.P2 and Ex.P3. The affidavit
Ex.P2 bears signatures of Petitioner No.1 at points A and B and
the affidavit Ex.P3 bears signature of Petitioner No.2 at point C
and D. The copy of Voter ID cards of Petitioners No.1 & 2 are
respectively Mark-A and Mark-B. We have resolved / settled all
our disputes and differences amicably for full and final
settlement amount of Rs.25 lacs and on payment of Rs.25 lacs,
the petitioner no.1 shall be left with no claim regarding
stridhan, dowry articles, permanent alimony, maintenance-
past, and future.
As per the settlement, out of the settled amount, I,
Petitioner No.2, have already paid Rs.12 lacs to the petitioner
no.1 at the time of first motion. I am depositing a sum of Rs.13
lacs today in the court. The Petitioner No.1 shall be entitled to
receive the said amount after quashing of FIR No. 95/12 u/s
498A /406/34 IPC PS SPUW&C, Nanakpura, Delhi.
I, Petitioner No.1, undertake to withdraw my petition
under the Domestic Violence Act pending in the court of Ms.
Vandana, MM, Mahila Court, Rohini Court, Delhi and my
contempt petition pending in Hon'ble High Court of Delhi
within a month. I undertake to cooperate with the petitioner
no.2 in quashing of the said FIR before the Hon'ble High Court
of Delhi.
Both the Petitioners have agreed that the custody of the
minor child shall remain with Petitioner No.2 and Petitioner
No.1 is handing over the custody of the child to the petitioner
no.2 today in the court at 2.30 PM. However, the Petitioner
No.1 shall have visitation rights to meet the child once a month
and additionally as mutually agreed by both the parties.
Both the Petitioners shall have no right, title, claim or
interest of any nature whatsoever against each other in the
properties in their possession or acquired/obtained in future.
The petitioners shall withdraw all other pending
litigations, if any, against each other or their respective family
members, if any, forthwith and have also agreed not to file any
proceedings against each other in future with respect to the
present matrimonial dispute.
There is no force, coercion, undue pressure from any
quarter for filing the present petition. There is no collusion
between us in filing the present petition. We pray that our
petition be allowed."
(Emphasis supplied)
2.5 On 07th February, 2013, the District Judge allowed the second motion
and dissolved the marriage by a decree of divorce. The order dated 07 th
February, 2013 is reproduced hereunder:
"Petition presented on this 24th Day of January 2013.
This petition coming on this 7th Day of February, 2013
for final disposal before me in the presence of Petitioner No.1
with Sh. Vijay Gupta, Advocate, and Petitioner No.2 with Ms.
Vaishali, Advocate.
It is ordered that the marriage between the parties i.e.
Petitioner No.1 and Petitioner No.2 is hereby dissolved by a
decree of divorce by mutual consent under section 13(B)(2) of
the Hindu Marriage Act, 1955 with effect from today.
Given under my hand and the seal of the court on this 7th
Day of February 2013."
3. HAM No.2/2012 under Section 18 of the Hindu Adoption and
Maintenance Act, 1956
3.1. On 24th January, 2013, both the parties recorded their joint statement
before the Family Court, Rohini in HAM No.02/2012 under Section 18 of
the Hindu Adoptions and Maintenance Act, 1956 which was disposed of as
compromised.
3.2. The joint statement is reproduced hereunder:-
"We have resolved our disputes regarding maintenance
and custody of the child amicably. We have now decided to file
second motion under Section 13B(2) of the H.M. Act for
dissolution of our marriage.
I, Saurabh Sabharwal/Respondent, will deposit a sum of
Rs.13 lacs in the shape of Demand Draft favouring Smt. Vibha
Gulati/petitioner and the said Draft shall be released to her at
the time of quashing of FIR.
I, Vibha Gulati Sabharwal/Petitioner, shall handover the
custody of the minor child to Sh. Saurabh Sabharwal at the time
of recording of our joint-statement in the second motion.
We shall remain bound by our joint-statement made
today. We pray that the present petition be disposed of as
compromised."
(Emphasis supplied)
3.3. The order dated 24th January, 2013 is reproduced hereunder:-
"Both the parties have resolved their disputes regarding
maintenance and custody of the child amicably and have
decided to file second motion for dissolution of their marriage.
A joint-statement of the parties to this effect has been recorded
separately. The parties shall remain bound by the joint-
statement made by them today in the Court.
In view of the submissions made and joint-statement of
the parties recorded today, the present petition is disposed of as
compromised.
File be consigned to record room."
(Emphasis supplied)
4. Case No.100/2012 under Section 125 Cr.P.C.
4.1. On 24th January, 2013, both the parties recorded their joint statement
before the Family Courts, Rohini in Case No.100/2012 under Section 125,
Cr.P.C which was disposed of as compromised.
4.2. The joint statement is reproduced hereunder:-
"We have resolved our disputes regarding maintenance
and custody of the child amicably. We have now decided to file
second motion under Section 13B(2) of the H.M. Act for
dissolution of our marriage.
I, Saurabh Sabharwal/Respondent, will deposit a sum of
Rs.13 lacs in the shape of Demand Draft favouring Smt. Vibha
Gulati/petitioner and the said Draft shall be released to her at
the time of quashing of FIR.
I, Vibha Gulati Sabharwal/Petitioner, shall handover the
custody of the minor child to Sh. Saurabh Sabharwal at the time
of recording of our joint-statement in the second motion.
We shall remain bound by our joint-statement made
today. We pray that the present petition be disposed of as
compromised."
(Emphasis supplied)
4.3. The order dated 24th January, 2013 passed by the Family Court,
Rohini disposing of the petition as comprised is reproduced hereunder:-
"Both the parties have resolved their disputes regarding
maintenance and custody of the child amicably and have
decided to file second motion for dissolution of their marriage.
A joint-statement of the parties to this effect has been recorded
separately. The parties shall remain bound by the joint-
statement made by them today in the Court.
In view of the submissions made and joint-statement of
the parties recorded today, the present petition is disposed of as
compromised.
File be consigned to record room."
(Emphasis supplied)
th
5. On 04 October, 2014, the respondent issued a notice to the petitioner
in which the respondent notified that the petitioner had agreed to contribute
for the maintenance of the minor child. The relevant portion of the notice
dated 04th October, 2014 is reproduced hereunder:-
Under the instructions and on behalf of my client Dr. Saurabh
Sabharwal S/o Shri. suved prakash arya F/o master vaibhav
sabharwal R/o A-94, majlis (sic) park, delhi-110033, I hereby
serve you with the following legal notice.
1) That my client got mutual consent divorce on 07/02/2013
from the court of Shri kamlesh kumar, Principal Judge, rohini
Courts.
2) That as per mutual consent agreement the custody of
master vaibhav sabharwal was granted to my client on
07/02/2013.
3) That you addresses mutually agreed to contribute equally
for the maintenance of master vaibhav sabharwal s/o Dr
saurabh sabharwal who is in the custody of my client.
4) That to the great anguish, my client was shocked that you
addresses never bothered about the welfare/development
/maintenance of the child and even is not bothered about his
future.
5) That my client herein wanted to remind you of your legal,
moral and social responsibility of contributing equally for the
welfare of the child master vaibhav sabharwal.
6) That the negligent, unfriendly, prejudiced behaviour
actions and in actions of you the addresses which are very clear
and blatant, as well as breach of promise from trust and
reposed confidence as ensued on my client.
7) That you have been regularly defaming my client in
professional arena and publically post divorce.
8) Despite of all this my client does not choose going into
litigations, only tried to remind you the act of you addresses.
I through this notice call upon you to immediately reply for
your said activity within a period of 15 days, failing which my
client will be constraint to initiate legal proceedings against
you in the court of law having competent jurisdiction. In case of
litigations all the expenses shall be borne (sic) by you since the
litigations would be for the welfare of the child master vaibhav
sabharwal."
6. The respondent issued a reminder notice dated 20 th October, 2014 in
which he reiterated paras 1 to 8 of the notice dated 04th October, 2014.
7. In October, 2014, the respondent instituted a petition under Section
125 Cr.P.C. on behalf of his minor son seeking minimum maintenance of
Rs.30,000/- per month from the petitioner.
8. On 15th April, 2015, the petitioner instituted this contempt petition
against the respondent for breach of the undertaking dated 17th October,
2011 given by the respondent to the Family Court and the order dated 07th
February, 2013 passed by the Family Court. According to the petitioner, the
parties settled all their claims relating to their matrimonial relationship as
well as custody and maintenance of the child and the respondent had taken
the permanent custody of the minor child along with the responsibility of
upbringing the child and the respondent violated the undertaking by filing an
application for maintenance under Section 125 Cr.P.C. The petitioner
compromised the proceedings under Protection of Women from Domestic
Violence Act, 2005, Section 125 Cr.P.C. as well as Section 18 of the Hindu
Adoption and Maintenance Act by accepting a meager amount of
Rs.25,00,000/- in order to buy peace and put an end to all the litigations. It is
inconceivable that the petitioner would give up her claim of custody and
maintenance of the child and keep the maintenance of the child issue open
by accepting a meager amount of Rs.25,00,000/-. According to the
petitioner, the permanent custody of the minor child Master Vaibhav was
given to the respondent who took the entire responsibility of upbringing the
child and the respondent has filed the petition under Section 125 Cr.P.C. in
violation of the undertakings given by the respondent to the Family Court as
well as orders passed by the Family Court.
9. On 20th April, 2015, this Court issued notice to the respondent with
respect to the petitioner's grievance relating to the refusal of the visitation
rights by the respondent to the petitioner.
10. On 14th August, 2015, the petitioner filed an application for
modification of the order dated 20th April, 2015 for taking cognizance of the
contempt by the respondent by breach of the undertakings and the orders of
the Family Courts.
11. Vide order dated 17th August, 2015, this Court issued notice of CM
No.15608/2015 to the respondent and stayed the maintenance proceedings
under Section 125 Cr.P.C. filed by the respondent.
12. On 01st March, 2016, this Court partly heard the arguments of both the
parties and listed the matter for further hearing on 02nd March, 2016.
13. On 02nd March, 2016, the respondent undertook to withdraw the
maintenance case No.300/2014 under Section 125 Cr.P.C. within two weeks
and not to file a similar petition for compensation. The undertaking of the
respondent was accepted in pursuance to which the petitioner did not press
the contempt petition. The contempt petition and the pending applications
were disposed of in view of the undertaking of the respondent. The order
dated 02nd March, 2016 is reproduced hereunder:-
"1. Both the parties are present with their respective
counsels.
2. The respondent undertakes to withdraw the Case
No.300/2014 titled Master Vaibhav Sabharwal v. Dr. Vibha
Gulati pending before Sh. Girish Kathpalia, Principal Judge,
Family Courts, Rohini within a period of two weeks from today.
The respondent further agrees not to file similar petition for
claiming compensation for Master Vaibhav. The undertaking of
the respondent is accepted.
3. In view of the undertaking of the respondent, learned
counsel for petitioner does not press this petition.
4. The petition as well as pending application are disposed
of in view of the undertaking of the respondent."
14. The respondent challenged the order dated 02nd March, 2016 before
the Division Bench by Contempt Appeal 4/2016 which was withdrawn on
29th April, 2016 with liberty to file an application for review/consequential
order before this Court.
15. On 18th May, 2016, the respondent filed the Review Petition 263/2016
seeking review of the order dated 02nd March, 2016.
16. Learned counsel for the respondent urged at the time of hearing that
Master Vaibhav has an absolute right to claim maintenance from both the
parents which cannot be waived by either of the parents. It is further
submitted that the respondent has not committed contempt of any
undertaking or order of the Family Court. It is further submitted that the
limited notice of visitation rights was issued to the respondent. It is further
submitted that this Court made oral observations that the contempt was made
out against the respondent whereupon respondent took the hasty decision to
give an undertaking. It is further submitted that the respondent was misled
by oral observations of this Court and, therefore, the undertaking was given
on 02nd March, 2016. The respondent seeks permission to withdraw the
undertaking given to this Court on 02nd March, 2016. It is further submitted
that the contempt petition be decided on merits. The respondent also seeks
restoration of Section 125 proceedings for maintenance of the minor child
Master Vaibhav.
17. Learned senior counsel for the petitioner urged at the time of hearing
that the contempt petition was heard on 01st March, 2016 when this Court
observed that the respondent was prima facie guilty of contempt.
According to the petitioner, this Court observed that if the respondent was
ultimately held guilty of contempt, the respondent would suffer
consequences of contempt apart from dismissal of the maintenance
application whereupon the respondent sought time to think over. On 02 nd
March, 2016, the respondent present before this Court along with his counsel
gave solemn undertaking to this Court to withdraw the maintenance
application filed on behalf of the minor child within two weeks whereupon
this Court accepted the undertaking and disposed of the contempt petition in
view of the undertaking. It is submitted that the allegations of coercion by
the respondent are absolutely false. It is further submitted that the
respondent appeared before the Family Court on 19th March, i.e. sixteen
days after the order dated 02nd March, 2016 and withdrew the maintenance
petition. It is further submitted that the respondent is a dishonest litigant and
has raised a false claim before this Court. It is further submitted that no case
for review of the order dated 02nd March, 2016 is made out.
Findings
18. This Court is of the prima facie view that the parties amicably
resolved all their disputes including the disputes relating to the maintenance
and custody of the minor child, Master Vaibhav and the respondent took
over the permanent custody of the minor child along with entire
responsibility of maintaining the child which is clear from the joint
statement of the parties on oath and the orders of the Family Court, Rohini
on 24th January, 2013 in HAM No.2/2012 under Section 18 of the Hindu
Adoption and Marriage Act and Case No.100/2012 under Section 125
Cr.P.C. The joint statement of the parties recorded in the aforesaid two
proceedings is reproduced in paras 3.2 and 4.2 above. The relevant portion
of the statement is again reproduced hereunder:-
"We have resolved our disputes regarding maintenance and custody of
the child amicably. We have now decided to file second motion under
Section 13B(2) of the H.M. Act for dissolution of our marriage."
(Emphasis supplied)
19. The learned Family Court recorded in the orders dated 24th January,
2013 in HAM No.2/2012 and Case No.100/2012 that the parties have
resolved their disputes regarding maintenance and custody of the child
amicably and, therefore, the petitions were disposed of as compromised.
Both these orders are reproduced in paras 3.3 and 4.3 above. The relevant
portion of these orders is again reproduced hereunder:-
"Both the parties have resolved their disputes regarding
maintenance and custody of the child amicably and have
decided to file second motion for dissolution of their marriage.
A joint-statement of the parties to this effect has been recorded
separately. The parties shall remain bound by the joint-
statement made by them today in the Court.
In view of the submissions made and joint-statement of
the parties recorded today, the present petition is disposed of as
compromised."
(Emphasis supplied)
20. The respondent has raised false claims before this Court. In the
notices dated 04th October, 2014 and 20th October, 2014, the respondent
claimed that the petitioner had agreed to share the maintenance of the child
whereas a contrary plea has been raised by the respondent in reply to CM
No.15068/2015 that there was no settlement between the parties with respect
to the maintenance of the child. Both these contentions appears to be false as
the parties settled all their disputes relating to the maintenance and custody
of the minor child as recorded in the joint statement of both the parties and
the orders of the Family Court. The respondent has abused the process of
law by raising false claims and has thereby interfered with the administration
of justice. This case warrants strict action to be taken. It is fit case to
initiate proceedings for Contempt of Court.
21. The respondent is a dishonest litigant who has no respect for truth and
has raised false claims before this Court without any hesitation. The
averments made by the respondent in the maintenance petition under Section
125 Cr.P.C. filed by the respondent clearly show that the respondent is using
his minor son as a pawn to somehow take back the settlement amount of
Rs.25,00,000/- from the petitioner and teach her a lesson. Reference be made
to para 4 of the maintenance application (Annexure A-9 at page 278) in
which the respondent has re-opened all the allegations of harassment by the
petitioner to the respondent which were put to an end by decree of divorce
by mutual consent.
22. During the course of the hearing dated 01st March, 2016, this Court
made these prima facie observations whereupon the respondent voluntarily
gave undertaking to withdraw the maintenance petition on 02nd March, 2016.
The undertaking of the respondent to withdraw the maintenance petition was
a voluntary and the contrary allegations of the respondent are contemptuous.
23. With respect to the respondent's averment that only limited notice had
been issued on visitation rights, it is noted that this Court vide order dated
17th August, 2015 issued notice of CM No.15608/2015 for taking
cognizance of the contempt by the respondent in respect of the joint
statement and orders of the Family Court and stayed maintenance
proceedings under Section 125 Cr.P.C. CM No.15608/2015 was being
heard by this Court on 01st and 02nd March, 2016 when the respondent chose
to give the undertaking.
24. There is no merit in the averments made by the respondent in the
petition. The respondent has raised false claims before this Court and is
liable for its consequences. However, this Court is of the view that it would
be in the interest of justice to recall the order dated 02nd March, 2016 insofar
as this Court had disposed of the contempt petition and to revive the
contempt petition to adjudicate it on merits after considering the contentions
of both the parties.
Conclusion
25. In the facts and circumstances of this case, the order dated 02nd
March, 2016 is recalled in so far as this Court had disposed of the contempt
petition and CM No.15608/2015. The contempt petition and the CM
No.15608/2015 are revived. The interim order dated 17th August, 2015 is
also revived. CONT.CAS(C) 321/2015 shall be decided on the merits after
hearing the parties and considering all their contentions.
26. CM No.15608/2008 is allowed and the order dated 20 th April, 2015 is
modified. A show cause notice is hereby issued to the respondent to show
cause as to why the respondent be not punished for Contempt of Court for
raising false claims before this Court as well as for breach of the
undertakings dated 17th October, 2011, 24th January, 2013 and 07th February,
2013 given by the respondent before the Family Court and the orders dated
17th October, 2011, 24th January, 2013 and 07th February, 2013 of the Family
Court.
27. The reply to the show cause notice be filed within one week.
Rejoinder within one week thereafter.
28. The respondent's prayer for discharge of the undertaking and for
restoration of proceedings under Section 125 Cr.P.C. shall be considered at
the time of final hearing of the contempt petition. The respondent's
contention that the absolute right of the minor child to claim maintenance
from both parents cannot be waived, shall be considered at the time of final
hearing. The consequences of raising false claims by the respondent shall
also be considered at the time of final hearing of the contempt petition
before this Court.
29. The review petition is disposed of in the above terms.
CONT.CASE 321/2015
30. List on 18th December, 2018 before the Roaster Bench.
31. Both the parties shall remain present in Court on the next date of
hearing.
DECEMBER 03, 2018 J.R. MIDHA
ak/dk/ds (JUDGE)
