Kasula Abhitej vs Kasula @ Sangem Manvita & others

Surepalli Nanda, J

Heard Sri Nageshwar Rao Pujari, learned counsel appearing on behalf of the petitioner and Sri Krishna Murthy Devarakonda, learned counsel appearing on behalf of respondents.

The present Contempt Case is filed assailing Non compliance of the orders of this Court dated 03.11.2023 passed in W.P.No.24231 of 2023 under Sections 10 to 12 of the Contempt of the Court Act, 1971 and praying this Court to punish the respondents herein for willful disobedience of the orders passed by this Court in W.P.No.24231 of 2023 dated 03.11.2023.

Relevant Para Nos.3 and 7 of the order dated 03.11.2023 passed in W.P.No.24231 of 2023 is extracted hereunder:

“3. The Hon’ble Division Bench of this Court vide its order dated 09.08.2023 passed in W.P.No.20129 of 2023 filed by the petitioner herein invoking the writ of Habeas Corpus seeking production of petitioner’s minor daughter Kasula Medha Sree on an earlier occasion issued certain specific directions which are extracted here under:

“I. Respondents 6 and 7 are directed to comply with the orders dated 30.06.2023 in I.A.No.29 of 2022 in GWOP No.38 of 2022 passed by the learned Principal District and Sessions Judge – cum Family Court, Medchal-Malkajgiri District at Malkajgiri.

II. They shall cooperate with the petitioner in taking the minor child by name ‘Kasula Medha Sree’ during the aforesaid period.

III. They shall not create any hurdle including locking of house, non-availability of the minor child etc.

IV. They shall give custody of the minor child on 2nd and 4th Sunday in a month to the petitioner to enable him to take the minor child to his house from 10.00 A.M. to 5.00 P.M.,

V. They shall bring the child to the house of the respondents 6 and 7 after 5.00 P.M. on the aforesaid days in compliance with the order dated 30.06.2023.

VI. Liberty is granted to the respondents 5 and 6 to seek modification of the aforesaid order dated 30.06.2023 and also to challenge the said order.

VII. Violation if any of this order by the parties will be viewed seriously.

VIII. Respondents 5 to 7 are directed not to leave the Country with minor child during the pendency of the aforesaid GWOP No.38 of 2022 without obtaining prior permission of the Court below in GWOP No.38 of 2022.

ix. This order is subject to result of CRP(SR) No.29709 of 2023 filed by the petitioner.”

Taking into consideration the submissions made by learned counsel appearing on behalf of respondent Nos.4 and 5, this Court opines that the condition No.VIII of the said conditions as imposed by this Court in order dated 09.08.2023 passed in W.P.No.20129 of 2023 has been duly complied with and the respondents 4 and 5 are directed to follow the said condition No.VIII strictly.”

It is specifically averred at para ‘7’ of the affidavit filed by the petitioner as under:

I respectfully submit that 14.01.2024, being the Second Sunday, as per the orders of the Hon’ble Family Court in I.A.No.29 of 2023, I along with my parents went to the house of the respondent Nos.2 and 3 in order to collect my child, at 10:15 a.m. To my utter surprise, I was greeted with an open door unlike before, where the respondent no.2 and the counsel on record for respondent no.1 in G.W.O.P. along with few other persons were present. When I asked the respondent no.2 to bring my minor child so that I can take her to my home as per the orders, the respondent no.2 replied that the child is not available and the respondent no.1 had taken the child and told us to leave. When I sought for the clarification of the same, the said counsel intervened. At that time, I had shown the said counsel the copies of the orders in I.A.No.29 of 2023 granting me visitation on 2nd and 4th Sunday, copy of the order in W.P.No.20129 of 2023 restraining the respondent nos.1 to 3 from leaving the Country with the child without permission of the Family Court and the copy of the order in W.P.No.24231 of 2023 where the Hon’ble Court stated that the direction no. viii in W.P.No.20129 of 2023 ought to be strictly complied with by the respondent nos.1, 2 and 3. At this juncture it was clear to me that the child was not present at the house. The respondent No.2 was completely disinclined to explain the non availability of my minor child other than stating that the mother took the child. Even when I enquired about the whereabouts of the mother/respondent no.1, no information was given to me. Meanwhile the said counsel on record for the respondent no.1 in G.W.O.P., who was present at the residence of the respondent no.2, intervened and stated that if I had any grievance about the same then we should take it up before the court asked us to leave at once. Moreover, even the respondent no.2 told me and my parents to “get lost”. In order to not prolong the situation, I and my family who were along with me, left the residence of the respondent no.2”.

The learned counsel appearing on behalf of the petitioner placing reliance upon the averments made in the affidavit filed in support of present writ petition No.24231 of 2023 contends that there is deliberate willful disobedience of the orders made by this Hon’ble Court and the respondents 1 to 3 herein are liable for punishment under the Provisions of Contempt of Courts Act, 1971 for non compliance of the orders of this Hon’ble Court in W.P.No.20129 of 2023 dated 09.08.2023.

The counter affidavit has been filed on behalf of Respondent No.1, relevant paragraph Nos.42, 43 and 44 are extracted hereunder:

“42. I submit that, the Hon'ble Supreme court has time and again held in various cases that the welfare of the minor child is the paramount factor for consideration in cases under guardians and wards act and the legal right of a parent only comes second to the welfare and better future of the minor. As already stated above, the respondent No.1 has left to USA for her employment only, which is her source of income for providing a financial security for her minor child. The petitioner has only made bald allegations of being ready to bear the expenses without ever taking any initiative to make such averments come true. As such the respondent No.1 is thus justified in taking her daughter with her to the USA, where the respondent No.1 is having a sufficient paying job and where the better interests of the minor lie.

I submit that, after many hurdles and inconveniences caused by the petitioner at every step, the respondent No.1 had to take the minor child to the US as her vaccines are long due and she would also lack and lose her academic year. As such the respondent No. 1 took her minor child with her to the USA and the minor child is hale and healthy under the care and custody of her mother i.e., the respondent No.1.

I submit that, I came to know through my parents that the petitions filed before the Family court were withdrawn as not pressed and in the meanwhile, after my leaving to USA, my parents were terrified as to what nuisance and ruckus the petitioner would cause at our house. As such they have requested the presence of our counsel at our house and obliging to their request and considering their ages and circumnutates, our counsel was present at our house on 14-01-2024, when the petitioner along with several other people came to our house. But no incidents as alleged by the petitioner occurred and my parents informed the petitioner that I have taken the child with me. The petitioner already knew about my travel, since he was spying on my movements, which is clear from his act of handing over copies of orders obtained by him from the Hon'ble courts to my parents and counsel. The petitioner already came prepared with the xerox copies of/the orders and feigned innocence for gaining sympathy of this Hon'ble court.”

The learned counsel appearing on behalf of Respondents 1 to 3 mainly relying upon the averments made in the counter affidavit filed on behalf of the respondents contends that the Contempt Case has to be dismissed by imposing reasonable costs.

In the present case admittedly there is clear violation of the orders of this Court dated 03.11.2023 passed in W.P.No.24231 of 2023, since condition No.VIII imposed by this Court in its order dated 09.08.2023 passed in W.P.No.20129 of 2023 had not been duly complied with though this Court in its orders dated 03.11.2023 passed in W.P.No.24231 very clearly directed condition No.VIII to be followed strictly by respondents herein.

This Court however takes note and also takes into consideration para ‘6’ of the order dated 17.10.2022 passed in W.P.No.37963 of 2022 filed by the 1st respondent and another and the same is extracted hereunder:

“6. In view of the above discussion, this writ petition is disposed of directing respondent Nos.2 to 4 not to prevent the petitioners from travelling abroad i.e., USA if they have valid passports with them and valid VISA. However, in the circumstances of the case, there shall be no order as to costs.”

Taking into consideration the order of this Court dated 17.10.2022 passed in W.P.No.37963 of 2022 which has become final and the averments made in the counter affidavit filed by the respondents herein, in particular paras 42 to 44, the Contempt Case is closed. However, there shall be no order as to costs.

Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.