Madhya Pradesh High Court
Smt. Santosh Meena vs Siddharth B.S. Meena on 20 March, 2023
Author: Virender Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VIRENDER SINGH
FIRST APPEAL No. 1696 of 2019
BETWEEN:-
SMT. SANTOSH MEENA W/O SHRI SIDDHARTH B.S. MEENA D/O
MR. K.L. MEENA OCCUPATION: RET IPS D-21, 74 BUNGLOW T.T.
NAGAR NEW MARKET BHOPAL PRESENTLY/PERMANENTLY
RESIDING AT G-45 MAYUR VIHAR MALVIYA NAGAR CHAURAHA
RAJGARH ROAD ALWAR RAJASTHAN (RAJASTHAN)
.....APPELLANT
(BY MS. RUCHIKA GOHIL - ADVOCATE)
AND
SIDDHARTH B.S. MEENA S/O LATE SHRI BHIM SINGH MEENA
OCCUPATION: JOINT COMMISSIONER INCOME TAX
TEMPORARY RESIDING AT FLAT NO.250, 6TH FLOOR, REVENUE
APARTMENT KHEV NAGAR BANDRA E MUMBAI, PERMANENT
ADDRESS X-16 PATALIPUTRA AMBABARI JAIPUR RAJASTHAN
(RAJASTHAN)
.....RESPONDENT
(BY SHRI RAHUL DIWAKAR -ADVOCATE)
..........................................................................................
Reserved on : 20.01.2023
Pronounced on : 20.03.2023
..................................................................................................................
This appeal coming on for final disposal at motion hearing stage this day, the court
passed the following:
JUDGMENT
Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 3/20/2023
5:11:22 PM
A wife who has been held guilty of contumacy and has been fined Rs.120/-,
for disobeying order dated 03.01.2015 passed by 1st additional Principal Judge
Family Court, Bhopal directing her to hand over interim custody of minor son
Arihant for 24 hours to her husband on 1st and 3rd Friday of every calendar
month, has challenged this order dated 31.08.2019 passed by 1st additional
Principal Judge Family Court, Bhopal in MJC No.08/2014.
2. Relevant facts, in brief, are that the appellant is an MBBS doctor and
respondent is an IRS officer. They married on 31.01.2009. A son was born to them
on 12.04.2011 in Mumbai, whose name is Arihant. Due to dispute in their
marriage, the wife left her husband's house in Mumbai along with her minor son
on 13.08.2013 and came to her father's house in Bhopal. The respondent husband
submitted an application in the Family Court at Bhopal for obtaining the custody
of son Arihant, as well as he also submitted an interlocutory application for
interim custody of the son. After hearing this application, the Family Court
ordered on 03.01.2015 that the wife will hand over the minor son Arihant to the
interim custody of the applicant for 24 hours on the first and third Friday of every
month at 4:30 pm in the court.
3. The wife never followed this order seriously. On several occasions, she did
not appear in the court to hand over her son to her husband's custody. For several
such occasions the husband presented several applications in the court alleging
wilful disobedience of the order of the Court. The wife cited several reasons for
noncompliance of the order, but after hearing the parties, the Court didn't find
them satisfactory and imposed a fine of ₹ 360/- on her on 05.01.2017. But even
this punishment did not change her attitude. Despite this fine, she continued to
willfully disobey the Court order. The respondent again preferred applications to
take action for wilful disobedience of the order of the Court. The appellant/wife
Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 3/20/2023
5:11:22 PM
again submitted several reasons for noncompliance of the order. After hearing, the
various reasons given by her for not complying with the order were not found at
all satisfactory by the Court. The Court was of the view that despite the earlier
imposition of fine, the appellant's behavior does not show any change or any
sense of respect for the order of the Court. The earlier penalty has not had any
effect on him. Even after that she has wilfully disobeyed the orders of the Court;
therefore, she was punished under Section 45 of the Guardians and Ward Act,
1890 with a fine of ₹ 120/-. She was also directed to give an undertaking that in
future she would strictly follow the court's order dated 15 January 2013 and other
orders to be passed in future.
4. The Court found that the appellant/wife has wilfully disobeyed the order of
the Court on several occasions before imposing the fine of Rs. 360/- and even
after the said fine, she has wilfully disobeyed the order of the Court on at least
more than 25 occasions and that she has defied Court orders on more than 60
occasions.
5. The wife has challenged the order on the grounds that the learned family
court has taken into considerations only the aspects and contentions of the
father/Respondent and has erroneously granted him permanent custody of the
child from the appellant. The issues that are framed by the learned Court below
are categorically made only to discuss the contentions of the father/Respondent in
as much as the child welfare guidelines of this Hon'ble Court are violated in its
totality. The respondent has been tricking with the learned Court below and is
misguiding them time and again by moving baseless application in the mature of
the interim custody applications that can be filed only once under Section 12 of
the Act. Principle of re judicata applies in such case. Section 45 of the Act applies
only to the order under Section 12 of the Act. The family Court had not granted
permission with regard to the vacation period, therefore, her punishment for
Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 3/20/2023
5:11:22 PM
noncompliance of the order for custody of the minor son during the winter and
summer vacations is bad in law. Section 45 of the Act deals with the contempt, if
any, of the interlocutory custody order and not of any other interim orders. The
impugned order is not in consonance with the statutory provisions of the Section
45 of the Act and the evidence on record; therefore, the same is liable to be set
aside.
6. Learned counsel for the applicant has raised the same grounds in the
argument which have been mentioned above.
7. We have carefully read and analysed the order of the Family Court.
8. We are of the view that the points raised by the appellant in challenge to the
impugned order are based on a wrong assumption, incorrect interpretation and
misconception of law. Section 12 of the Guardians and Wards Act deals with
interim custody of a ward and the impugned order was passed by the learned
Family Court in exercise of the jurisdiction vested under that section. This order
has never been challenged by the appellant before High Court.
9. The reason assigned by the appellant for noncompliance of the order are
that on 01.09.2107 she fell ill, on 15.09.2017 the ward fell ill, on 01.06.2017 her
'Dadi' fell ill, on 04.05.2017 she had gone to Alwar, on 15.06.2017 she had gone
to Kerala with her brother, on 21.09.2018 there was an inspection at the hospital
where she works, on 01.03.2019 ward's exams were scheduled to be held after 12
days from 13.03.2019 to 20.03.2019, on 19.04.2019, ward fell ill in Alwar, 10 &
11.05.2019 ward fell, on 17.05.2019 ward had gone to summer camp, on
07.06.2019 ward suffered a heat stroke and on 21.06.2019 ward's school opened.
She assigned no reason for 05.10.2018 to 11.10.2018 and 25.12.2018 to
29.12.2018, 05.04.2019. The reason assigned for not producing the child on
21.06.2019, 05.07.2019 and 19.07.2019 was that it would disturb his studies. The
appellant is a doctor. For the reason of illness, she either did not produce any
Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 3/20/2023
5:11:22 PM
medical certificate or produced a certificate of the same hospital where she was
working. The record does not show that on any of the occasions she bothered to
intimate the Court or the respondent in advance for her nonappearance or not to
produce the child before the Court.
10. None of the reasons assigned by the appellant before the Family Court for
non-compliance of the said order and which have been mentioned by the Family
Court in its order; appears to us to be reasonable or appropriate. The reasons given
by the learned family court for disallowing them are reasonable and appropriate.
The reply given by the appellant does not seem plausible in any way. Therefore,
keeping in view the number of occassions to disobey the order and the
irrationality of the explanation given for the said disobedience, we are of the clear
view that the order passed by the learned family court after due consideration of
all the facts and circumstances of the case is lawful and there is no ground to
interfere with it. The appeal submitted by the appellant is baseless, meritless,
deserves to be dismissed, and hence, it is dismissed hereby.
(SHEEL NAGU) (VIRENDER SINGH)
JUDGE JUDGE
anand
Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 3/20/2023
5:11:22 PM
