Rajesh
Surana vs Rekha
(14.11.2008
– MADHC) : MANU/TN/1201/2008
Q)Supreme Court ruling of contempt of court over Child Custody order
Bench : Jts K Mohan Ram and Jts GM Akbar Ali
Acts
• Section 13 (1) (i) (a)
of Hindu Marriage Act, 1955
• Section 9 Hindu
Marriage Act, 1955
• Article 142
Constitution of India, 1950
Facts
• Petitioner was husband
of respondent
• Matrimonial dispute
arose between them and divorce was granted by Family Court.
• Family court issued
order that the custody of child (Ronak age, 6 years) to be given to the
respondent
• But mother has to hand
over custody of child to petitioner on the 1st of Sunday of every month at 9am
to 5 pm in the government museum at Chennai.
• Also, petitioner has
visiting rights from 2 to 3 pm on every religious festival.
• Respondent didn't hand
over custody of child to the petitioner, despite repeated telegrams to remind
respondent.
• And respondent
disobeyed the order passed by the court.
• Petitioner filed
Contempt Petition in the HC of Madras
• Respondent has filed
SLP in the SC
• SC said that order of
the Family Court will continue to stay.
Petitioner’s Contention
• That the respondent
didn’t comply with the order passed by the court on any occasion.
• In spite of telegram
sent to remind the respondent, she wilfully disobeyed the court’s order
• Respondent has
deliberately and intentionally denied the custodial and visitation rights of
petitioner.
Further the respondent has failed to obey the observations made by the
Supreme Court that the order passed by the High Court will continue to operate
Respondent’s Contention
• Many of the festivals
are not celebrated by Jain community
• Going through mental
stress and depression over SLP (Special Leave Petition) in SC and hence forgot
to make child meet his father
• Considered those
telegrams as torture by the petitioner.
• That the child was
himself afraid meeting his father due to his behavior.
Nil Ratan Kundu and Anr. v. Abhijit Kundu
Civil Appeal No. 4960 of 2008
(Cited by the
Respondent)
• A case where
appointment of guardian for a minor boy aged 6 years was under consideration.
The mother of the child was allegedly tortured and assaulted by the father of
the child which culminated in her death. The father of the child was facing a
charge of culpable homicide not amounting to murder.
• “We have called
Antariksh in our chamber. To us, he appeared to be quite intelligent. When we
asked him whether he wanted to go to his father and to stay with him, he
unequivocally refused to go with him or to stay with him. He also started that
he was very happy with his maternal grand-parents and would like to continue to
stay with them. We are, therefore, of the considered view that it would not be
proper on the facts and in the circumstances to give custody of Antariksh to
his father-respondent herein.”
Reasoning of the Court
Report of Advocate Commissioner (in present case)
• Referring to the report
of the Advocate Commissioner, the court has observed that the child was
comfortable in the company of his father. Further, the child's preference falls
outside the scope of the present contempt proceedings. Therefore, exercise of
visitation right by the father cannot be thwarted by the wife on the ground
that the child is scared of his father and refused to go with him.
Contention of respondent that Durga Pooja, Vijayadasami and
Deepavali are not festivals celebrated by Jains
• The respondent, having
not handed over the child during any of the religious festivals for the past
one long year, comes out with a big lie that no festival during the period of
disobedience was celebrated by the Jains. The unacceptable stand that no such
festival was celebrated by the Jains has been taken by the respondent only to
wriggle out the rigors of the orders passed by this court.
Contention of respondent that she was mentally distressed
• A rickety defence has
been set up by the respondent that he could not comply with the order on 2.9.2007,
the first Sunday of September 2007 as she had been to Delhi to prepare the
S.L.P before the Supreme Court and was, thereafter, in great mental stress.
Such an excuse is found to be lame. Not only on 2.9.2007, but during all the
first Sundays of the succeeding months, the respondent has not shown any
inclination to obey the orders of this court. There was no material to
substantiate that she was afflicted with mental stress and encountered
depression
Contention of respondent that she was tortured through telegrams and
unnatural habit of father
• There is no bar for the
petitioner to communicate the due date for exercising his visitation right
through a telegram directly to the respondent more especially when she had no
propensity to honour the directions of this court. By no stretch of
imagination, such a communication sent by the husband through the telegram in
the fond hope of seeing his son can be termed as a torture.
• The respondent has
stated that the child fell sick due to the unnatural habit of his father. Never
had she reported to the court that the child became sick on account of the
unnatural habit of the father.
Contempt of Court
• If the litigants are
permitted to breach the orders without any lawful excuse or justification, the
orders passed by this court will become a subject of mockery and due and proper
administration of justice will be the casualty. As a corollary, the confidence
reposed by the public in the administration of justice will be lost. Here is a
case where the respondent, who is a well-educated person, intentionally
disobeyed the orders of this court not on one or two occasions, but, during the
entire period of one year and three months. Taking into account the adamant
attitude of the respondent, the court is not inclined to show any leniency
which stands unmerited.
Conclusion
• Mrs. Rekha (
respondent) is found guilty of contempt of court. Imposition of fine alone will
not meet the ends of justice as it is not a stray case of disobedience, but a
contumacious act of disobedience. Therefore, the petition seeking to punish the
respondent for contempt of court stands allowed and a direction is issued to
detain the respondent Mrs. Rekha in civil prison for one month and to pay a
fine of Rs. 2000/-failing which she be detained for another fifteen days in
civil prison.
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