Cont. Cas(C) 72/2015 and CM Appl. 28160/2015. Case: D.K.C. Vs K.C. and Ors.. High Court of Delhi (India)
| Case Number | Cont. Cas(C) 72/2015 and CM Appl. 28160/2015 |
| Counsel | For Appellant: D.N. Goburdhun, Balendu Shekhar, Vivek Jaiswal, Somya Rathore, Advocates and Party-in-Person and For Respondents: Malavika Rajkotia, Ranjay N., Arpita Rai, Vaibhav Vats, Tanya Prasad and Ramakant Sharma, Advocates and Party-in-Person |
| Judges | Manmohan, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XXIII Rule 3A; Contempt Of Courts Act, 1971 - Section 2(b); Hindu Marriage Act, 1955 - Sections 13B(1), 13B(2); Indian Penal Code 1860, (IPC) - Section 363 |
| Citation | 227 (2016) DLT 1 |
| Judgement Date | January 12, 2016 |
| Court | High Court of Delhi (India) |
Judgment:
Manmohan, J.
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Present contempt petition has been filed alleging willful 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.
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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."
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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.
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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.
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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
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Mr. D.N. Goburdhun, learned counsel for petitioner stated that on 1st 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.
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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 31st, 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.
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Mr. Goburdhun contended that respondent No. 1 was not at all apologetic about his contemptuous behavior. 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'.
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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.
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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.
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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.
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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.
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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 counselor who also said that this conduct was truly abhorrent.
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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 behavior".
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Mr. Goburdhun stated that respondent No. 1 had now put false accusation on the petitioner's character.
RESPONDENT No. 1'S ARGUMENTS
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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.
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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.
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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.
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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...
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