Full Judgment Text
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CASE NO.:
Appeal (civil) 4797 of 1998
PETITIONER:
David Jude
RESPONDENT:
Vs.
Hannah Grace Jude and others
DATE OF JUDGMENT: 30/07/2003
BENCH:
M.B. SHAH & ARUN KUMAR.
JUDGMENT:
J U D G M E N T
Shah, J.
This petition for Contempt is filed by the applicant-husband
with a prayer for punishing the respondents â\200\223 wife and mother-in-law
for the breach of undertaking given by them and also for breach of
directions issued by this Court.
By order dated 15th September, 1998, this Court permitted
respondent no.1- wife to take the child to USA on the condition that
respondents would file undertaking before the Court to the effect that
wife will appear before the family court as and when required, and it
would be open to the applicant-husband to visit the child in USA after
making prior arrangement with the wife.
The brief facts of this case are that â\200\224 applicant and respondent
no.1 were married on 7.2.1989 at Hyderabad according to Christian
rites. Soon after marriage, the couple left for America. On 2.5.1997,
a son was born out of this wedlock. Because of strained relationship
between the wife and husband, both started living separately. Wife
approached the Circuit Court, Maryland in USA and got issued a
protective order against the husband on condition that the child will
not be taken out of the jurisdiction of that court. The wife, however,
brought the child to India on 14.4.1998 and after keeping him in the
care and custody of her mother â\200\223 respondent no.2, she left India. On
knowing this, husband dashed back to India on 23rd April 1998 and on
30th April, 1998 he took over the custody of the child from respondent
no.2 for celebrating the birthday of the child which was on 2.5.1998.
Thereafter, on 1.5.1998, the husband filed O.P. No.300 of 1998
before the Family Court at Hyderabad under Sections 7, 10 and 25 of
the Guardians and Wards Act 1890, seeking an order appointing him
as guardian of the minor Child. Respondent No.2-grand-mother also
moved the same Court for restoring the custody of the chi ld to her.
The Family Court by order dated 19.8.1998 dismissed the application
of the husband and directed him to restore the custody of child to the
grandmother. Aggrieved thereby, the husband filed Civil Revision
Petition No.3229 of 1998 before the High Court of Andhra Pradesh at
Hyderabad, which was allowed and the custody of the child was given
to the husband with visiting rights to the wife.
Being aggrieved by the said order, respondents No.1 and 2 filed
S.L.P. No.15185 of 1998 before this Court. This Court by order dated
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15.9.1998 granted interim custody of the child to the wife with
permission to take the child to USA on the condition of furnishing a
written undertaking to bring the child back to India and disposed of
the matter by passing the following order:â\200\224
"Special leave granted.
Looking to the age of the child, the interim custody
of the child is given to the Ist appellant â\200\223 mother. She
will be at liberty to take the child to USA on condition
that both the appellants file undertakings before this
Court on or before 25th of September, 1998 to bring the
child back to India when so ordered by the Family Court
and the Ist appellant will also file an undertaking to the
effect that the Ist appellant will appear before the Family
Court as and when required by the Family Court. If
during the interregnum the respondent wants to visit the
child in USA, he can do so after making prior
arrangement with the Ist appellant to see the child.
Passport of the child should be released on the filing of
the undertaking. The impugned order of the High Court
is accordingly set aside. The Family Court should
dispose of the matter as expeditiously as possible,
preferably within 18 months. The appeal is disposed of
accordingly."
After passing of the aforesaid order, both the respondents
submitted their undertakings by way of affidavits in this Court. The
relevant portion of the undertakings is as under: â\200\224
"By Respondent no.1 (Wife)
As directed by this Hon’ble Court in the order
dated 15.9.1998, I hereby undertake to bring the child
back to India when so ordered by the Hon’ble Family
Court and further undertake to appear before the Hon’ble
Family Court, Hyderabad, as and when required by the
Hon’ble Family Court.
By Respondent no.2 (Mother of Respondent No.1)
As directed by this Hon’ble Court, I undertake to
bring the child back to India as and when required by the
Hon’ble Family Court, Hyderabad."
Meanwhile, respondent no.1 filed case No.5249 of Family Law
before the Circuit Court for Montgomery country, Maryland inter alia
for divorce and custody of the child.
Thereafter, the Family Court at Hyderabad proceeded with the
trial and examined the husband. The matter was kept for evidence on
behalf of the wife but she failed to appear before the Court on
7.2.2000. Various orders were passed by the Family Court, but she
remained absent from the proceedings. Finally, on 11.4.2000, the
Family Court passed the following order:â\200\224
1. The husband is appointed as the guardian of the minor
child;
2. The wife is directed to restore the custody of the minor
child to the husband within one month from the date of
the order;
3. The wife is permitted to take interim custody of the
minor child whenever she comes to Hyderabad and hand
over the minor to the husband while she leaves the
country;
4. The wife is not entitled to remove the custody of the
minor child out of the jurisdiction of the Family Court at
Hyderabad at any time;
5. The husband is directed not to handle the amounts lying
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in FDR of Rs.5,00,000/- including the interest accrued
thereon till the minor attains the age of majority.
Being aggrieved by the aforesaid order, the respondents/
contemnors filed appeal before the High Court of Andhra Pradesh,
which is still pending.
Meanwhile, the husband moved this Court for initiating
contempt proceedings against the respondents / contemnors for
violating the undertakings given by them before this Court and the
order passed by this Court in Civil Appeal No.4797 of 1998.
Further, in the execution petition filed before the Family Court,
the Family Court passed an order holding that the failure to restore the
custody of the minor child to the husband amounts to breach of the
undertakings given and ordered the arrest of respondent no.2 (mother
of respondent no.1) to serve civil imprisonment for a period of six
months. Appeal filed by respondent no.2 against the above arrest
order before the High Court was also dismissed. Against that order,
she has filed SLP No.22990 of 2001 before this Court.
The instant Contempt Petition was first listed on 28.9.2000 and
noticed was issued for 8.1.2001. Respondent no.2, mother of
respondent no.1, was present. She was directed to abide by the
undertaking given to this Court. On the next date, i.e. on 12.3.2001,
learned counsel for respondent no.1 sought eight weeks time so as to
enable her to remain present with the child. Respondent no.2 was
directed to deposit her passport with the Registrar (Judicial). On
8.5.2001, respondent no.1 did not appear but learned counsel for
respondent no.1 assured that she would remain present before this
court with child on 6th August, 2001. On 6th August 2001 also
respondent no.1 remained absent. On that day, at the instance of
applicant, leave was granted to add the Union of India as a party
respondent. Thereafter, on 17th September, 2001, the Court directed
the concerned officer of Union of India to write a letter to the
employer of respondent no.1 about the undertaking given before the
Apex Court and breach of undertaking and also the fact that despite
the service of notice, she was not remaining present before this Court.
On 7th January, 2002, Mr. Y. Raja Gopala Rao, Advocate appeared on
behalf of respondent no.1 and stated that he would file necessary
reply. On 6th February, 2002 an order was passed to the effect that
respondent nos.1 and 2 have committed breach of unconditional
undertakings and notice was issued as to why they should not be
punished for contempt of this Court. Relevant part of the said order is
as under:â\200\224
"In our view, considering the unconditional
undertakings given by the respondents to this Court there
is no question of not taking further action against them
for not bringing the child back to India as directed by the
Family Court. In this view of the matter, prima facie, we
are of the view that respondents have committed the
contempt of this Court and appropriate action is required
to be taken under the Contempt of Courts Act for
committing breach of unconditional undertaking.
Therefore, we direct that notice be issued as to why they
should not be punished for contempt of this Court."
When the matter came up for hearing on 6th March, 2002, at the
request of the learned counsel for the respondents, the matter was
further adjourned for four weeks. On 3rd April, 2002, counsel
appearing for respondent no.2 stated that respondent no.1 would
remain present with the child without fail, on 30th July, 2002. On 30th
July, 2002, matter was again adjourned. On 29th August, 2002, the
Court directed that respondent no.1 shall remain present before this
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Court with her child on 13th November, 2002. On 14th November,
2002, respondent no.1 remained absent and, therefore, direction was
issued to the Union Government to take necessary steps for securing
her presence with child in this Court. Thereafter, matter was
repeatedly adjourned to see that the wisdom prevails with respondent
no.1 to abide by the undertaking given to this Court. Subsequently,
respondent no.1 filed an affidavit on 13th November, 2002 wherein
she has stated that Maryland Circuit Court has granted full custody of
the child to her in October, 2000 and that her job precludes her from
being able to travel to India. She has further stated that even though
she was unable to appear in person, she always retained a legal
representative on each and every date of hearing of the case and
submitted that taking into consideration her previous affidavits,
petition against her be dismissed. Finally, in the affidavit which was
tendered by her on 6th May, 2003, it is stated that petitioner had
threatened her in past by saying that he is going to show her how he
intends to use the Indian Courts to get back at her, and it is her belief
that her husband is now using the system against her family.
At the time of hearing, written submissions were filed by the
parties. It is the contention of the learned counsel for the applicant that
breach of undertaking given before this Court by the wife amounts not
only to a civil contempt but also to criminal contempt. It is submitted
that this Court’s jurisdiction under Articles 129 and 142 of the
Constitution is not restricted by the Contempt of Courts Act, 1971 and
the Court may award even higher punishment than which is provided
under the Act. It is the submission of learned counsel for the
applicant that one of the primary objects of a proceeding for contempt
is to see that the order or undertaking which is violated by the
contemnor is effectuated. Thus, besides punishment, the Court may
issue such directions to restore the custody of the child to the
applicant-husband.
It is to be stated that High Court had directed that the custody of
the child be given to the husband because respondent No.1 gave the
custody of the child to her mother and that she was staying in United
States and serving in the World Bank at Washington, D.C. The Court
also considered the age of the child who at the relevant time was of
one year and four months and the fact that as respondent no.1 was
serving and staying alone in United States, it would be difficult for her
to take care of the minor child. To see that the aforesaid order is set at
naught, respondent nos.1 and 2 gave unconditional undertakings to
this court and obtained favourable order.
From the facts stated above it is apparent that the attitude of the
contemnors is without any doubt defiant and contemptuous. They
were given custody of the minor child on the condition of filing
undertakings before this Court to bring the child back to India when
so ordered by the Family Court. Respondent nos.1 and 2 have played
with the Court, by giving unconditional undertakings for securing the
custody of the child. It is true that respondent no.2, the mother of
respondent no.1 has stated before this court that respondent no.1 is
now not abiding by the instructions given by her to produce the child
before this Court and the Family Court.
Further, it is also clear from the conduct of respondent no.1 that
she has no regard for the notices issued by this Court. If the notice
issued by Apex Court of this land is willfully disobeyed, it would send
a wrong signal to everybody in the country. It is a sad experience
that due regard is not shown even to the undertakings/order/notice
issued.
Hence, we hold that respondent nos.1 and 2 are guilty for
committing contempt of this Court. Further, we do not think that this
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is a fit case for showing mercy as contended by learned senior
counsel, Ms. Indira Jaisingh, appearing on behalf of respondent no.2.
Learned counsel for respondent no.2 further submitted that respondent
no.2, who is aged about 65 years, has taken enough steps to secure the
presence of respondent no.1 and to abide by the undertaking given by
her. On the question of punishment, learned senior counsel submitted
that in any case considering the age of respondent no.2, sentence of
imprisonment may not be imposed upon her. In our view, even
though respondent no.2 has played major part in the aforesaid episode,
considering her age and the fact that she has an old husband to look
after, we think that imposition of fine would meet the ends of justice.
Hence a fine of Rs. 50,000/- is imposed upon her, in default three
months simple imprisonment. It is also ordered that her passport
would be seized for a period of five years.
For respondent no.1 considering the fact that she is well
educated, serving in prestigious institution, namely, the World Bank
and her totally defiant attitude, we do not think that this would be a fit
case for taking a lenient view and not imposing sentence of
imprisonment. Even though she does not deserve mercy because of
her motivated behaviour yet we impose only three months simple
imprisonment and a fine of Rs.50,000/- and in default of payment of
fine, she shall further undergo simple imprisonment for one month.
Fine to be paid within one month.
Respondent â\200\223 Union of India is directed to take appropriate
steps to ensure compliance of this order qua respondent No.1.
Contempt Petition stands disposed of accordingly.