Contempt of Courts Act, 1971:
s.12(1) r/w s. 12(3) – Appellant (wife) left company of her husband (respondent) with her son – Canadian Court granted custody of the child to the husband – Wife without complying with the order of Canadian Court, came to India – Husband filed Habeas Corpus petition in the High Court in India – The parties reached settlement on certain terms – Husband thereafter filed contempt petition seeking execution of consent terms and punishment of wife for contempt of Court – High Court found the wife guilty of contempt of court awarding punishment of six months civil imprisonment – On appeal, held: High Court was not right in punishing the wife for contempt without considering the allegations as to whether she fulfilled her obligations under the consent terms – Settlement as regards resumption of matrimonial relations was reached in the proceedings which essentially related to custody of the child – Therefore, focus of the High Court should have been on the custody of the child and should have restored the Habeas Corpus petition and decided the same on merit – Order passed in contempt petition is set aside – Habeas Corpus petition is revived which shall be decided by High Court on merits.
Allowing the appeals, the Court
HELD: 1. When the notice of the contempt petition was served upon the appellant, she filed reply thereto stating that she had taken requisite steps under the settlement and it is the respondent who failed to get orders dated April 16, 2015 passed by Canadian Court nullified thereby disabling her to go to America inasmuch as she could be arrested immediately on landing in USA/Canada in view of the aforesaid order. She also alleged that list of flats was not sent to her. Moreover, conduct of the respondent, post-settlement, was not good. She had also filed additional reply dated December 11, 2017 contending that (i) pursuant to High Court orders, she had gone to Delhi hotel to meet respondent and his mother but she was publicly humiliated there, (ii) she had found that the respondent had been fired by his employer for taking bribes and he had not been truthful to the Government also and (iii) respondent had not paid a single penny as maintenance. This was followed by application dated December 19, 2017 by the appellant seeking recall of order dated December 17, 2015. [Para 15][530-A-C]
2. The High Court has not adverted to the important aspect that needed attention in such a case, namely, whether it was the appellant who was responsible for not adhering to the terms of the consent order and thereby violated the directions issued by the High Court in its orders dated May 09, 2017. The approach of the High Court was to insist the appellant to adhere to the settlement terms even at that stage and on her refusing to do so, it arrived at a finding that she had committed the contempt of the court’s order as the aforesaid conduct was found to be abhorrent. It is,thus, the stubborn attitude shown by the appellant during the hearing of the contempt petition which has weighed by the High Court. That, was not the correct approach for punishing the appellant for contempt of court. The contempt petition was filed by the respondent alleging that the appellant had not fulfilled her obligations under the consent terms and the directions given by the High court in this behalf. It was, thus, necessary for the High Court to discuss and consider, in the first instance, as to whether these allegations of the respondent were correct. [Para 18][531D-H]
3. The consent terms on which the parties settled the matter contained an important part of agreement, namely, both the parties decided to live together again. This happened in the proceedings which essentially related to the custody of child. No doubt, when the parties agreed to resume the matrimonial relations and decided to live again as husband and wife, the problem of custody got automatically solved thereby as it brought about an ideal situation where the child could have the company of his both the parents. However, this did not materialise. Even when a decree of conjugal rights is filed by a competent court of law in favour of one of the spouses, such a decree cannot be executed and the other spouse who is directed to resume the conjugal relations, cannot be forced to do so. It is a different matter that for not obeying such a decree, other consequence follow including right to the decree holder to seek divorce. When that is the position even in respect of a decree passed by competent court of law forcing the appellant to join the company of the respondent and on her failing to do so punishing her in committing contempt of the court’s order, that too by awarding maximum civil imprisonment in law cannot be countenanced. In a matter like this, the focus of the High Court should have been on the custody of the child, which was a subject matter of the Habeas Corpus petition. However, as far as that aspect is concerned, the High Court simply stated that it would be open to the respondent to execute the order of the Canadian Court dated April 16, 2015. Here again the High Court has fallen into error. In fact, in a matter like this, the High Court should have restored the Habeas Corpus Petition and decided the same on merits. However, when application for this purpose was filed by the respondent, instead of doing so the High Court passed the orders dated October 05, 2017 giving liberty to the respondent to file the contempt petition. Therefore, the order of the High court whereby the appellant was punished for contempt, is set aside. [Paras 19, 20][532-A-F, G]
4. It would be open to the respondent to press the contempt petition before the High Court and if he so chooses the High Court shall decide the contempt petition by first finding out as to whether the appellant is correct in her submissions that it is the respondent who did not take necessary steps to ensure that the appellant joins the company of the respondents along with the child in USA. The appeal of the respondent is also partly allowed by setting aside the direction of the High Court permitting the respondent to file the execution petition. Instead with the consent of both the parties, order dated October 05, 2017 passed in Miscellaneous Application filed by respondent in Habeas Corpus petition is set aside and his Habeas Corpus petition is revived which shall be dealt with by the High Court on merits in order to decide as to whether custody of the child is to be handed over to the respondent. [Para 20][532-G-H; 533-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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