Madhukar Duggirala vs Shobha Duggirala

K. Chandru, J.—The Petitioner is the husband and the Respondent is the wife. The contempt petition came to be filed for the alleged

disobedience of the order passed by this Court in O.P. No. 571 of 2007, dated 11.11.2009. By the aforesaid order, this Court had directed the

custody of the minor children in the hands of the Respondent Wife. The Petitioner father was allowed to have weekend custody in alternate

Saturdays or Sundays if there was no examination for the children on the following Monday.

It must be noted that the boy Suraj is at present 17 years old and the girl Sonal is 14 years old. After 13.11.2010, the two children had not

visited the Petitioner during December and January. The Respondent by not entrusting the children in the custody of the Petitioner had violated the

order passed by this Court. It is admitted by both sides that an appeal in O.S.A. No. 153 of 2010 was filed as against the said order. During the

hearing of the O.S.A., the violation was also brought to the notice of the Bench. In the affidavit, it was also indicated that on an application filed by

the Petitioner in M.P. No. 3 of 2010, the passports of the two children were directed to be kept with the Registry. The Petitioner also got

permission to renew the passports and redeposit the same into the Court.

When the matter is pending before the Division Bench in the appeal, it is not clear as to why the Petitioner has filed the present contempt. This

Court directed the counsel who appeared for the Respondent to get instructions from the Respondent. Ms. Geetha Ramaseshan has filed a counter

affidavit signed by her client, dated 21.3.2011. The Respondent had denied any willful disobedience of the order passed by this Court. It is stated

that her son Suraj is preparing to write entrance examination for IIT and that her daughter is going to 10th Grade in first April. It is claimed that

both children had visited the Petitioner on 27.11.2010. Their examinations were over only on 19.12.2010. When the children called the Petitioner

on 23.12.2010, he did not respond to their call. They had also visited his house on the same day, but were informed by the watchman that the

Petitioner was not in the house. Even on 13.1.2011 when daughter Sonal was expecting birthday wish from her father, the same was not

forthcoming. There was no consistency in the stand of the Petitioner. It is also claimed by Ms. Geetha Ramaseshan that a divorce petition is

pending before the Family Court in HMOP No. 3637 of 2007.

It is not clear as to how the contempt petition is maintainable especially when the order, over which the contempt petition is filed, is pending in

the form of an appeal before the Division Bench and the parties had the advantage of getting the interim order. Further, the main divorce petition is

also pending before the Family Court. Considering the explanation offered by the Respondent, this Court do not consider that there was any willful

disobedience of the order passed by this Court.

In this context, it is necessary to refer to a judgment of the Supreme Court in Elizabeth Dinshaw v. Arvand M. Dinshaw reported in (1987) 1

SCC 42 in child custody matter. The following passage found in paragraph 8 may be usefully extracted below:

Whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the

legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice

interviewed Dustan in our chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any

independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that

have elapsed since his being brought to India by the process of illegal abduction by the father, he has spent the rest of his life in the United States of

America and he was doing well in school there. In our considered opinion it will be in the best interests and welfare of Dustan that he should go

back to the United States of America and continue his education there under the custody and guardianship of the mother to whom such custody

and guardianship have been entrusted by a competent court in that country. We are also satisfied that the Petitioner who is the mother, is full of

genuine love and affection for the child and she can be safely trusted to look after him, educate him and attend in every possible way to his proper

upbringing. The child has not taken root in this country and he is still accustomed and acclimatized to the conditions and environments obtaining in

the place of his origin in the United States of America. The child''s presence in India is the result of an illegal act of abduction and the father who is

guilty of the said act cannot claim any advantage by stating that he has already put the child in some school in Pune. The conduct of the father has

not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the

present.

Even with reference to penalty to be imposed when there was a strong case to punish for contempt, the Supreme Court in Hoshiam Shavaksha

Dolikuka Vs. Thrity Hoshie Dolikuka, in paragraphs 10 and 11 held as follows:

In the view that we have taken we do not consider it necessary to deal at length with the various submissions made from the Bar. It is an

admitted fact that the orders passed by the High Court have not been complied with and there has been a violation of the undertakings given by the

Appellant to the Court. The defence sought to be put forward on behalf of the Appellant that the Appellant was unable to comply with the said

orders and to carry out the undertakings in view of the attitude of the minor girl does not impress us. If there had been any truth in the case sought

to be made by the Appellant, it would have been clearly the duty of the Appellant, to apply to the Court, drawing the notice of the court to this

aspect and to ask for appropriate directions. It may be mentioned in this connection that on an earlier occasion when the girl Gospi had been found

missing from her mothers place and was found in her fathers place, the Appellant had produced the girl before the Court and asked for appropriate

directions so that the Appellant might not be held up for contempt of court. It, however, appears that the Appellant took no such steps in the

present case when the Appellant felt that he would not be in a position to carry out the orders of the Court and to comply with the undertakings

given by him. The fact and circumstances of this case go to suggest that the Appellant was not willing to part with the company of his daughter and

to allow her to stay with her mother. We are, therefore, of the opinion that the High Court was right in coming to the conclusion that the Appellant

has committed acts which amount to contempt of court.

The main dispute between the parties has centered around the question of the custody of their minor daughter. The present proceeding arose

out of the main proceeding and was taken by the mother for proper enforcement of the right conferred on her to have the child with her in terms of

the orders passed by the High Court. We have now disposed of the main appeal in relation to the custody of the child and we have delivered our

judgment* in that matter. The judgment delivered by us in the custody case sets the matter at rest. We cherish earnest hopes that in view of our

judgment and order passed in the custody appeal, the parties will now get reconciled to the question of the childs custody and will properly comply

with the directions given by us in the interest of and for the welfare of their daughter. We have no doubt in our mind that the daughter is quite fond

of both her parents. There is also no manner of doubt that both the father and the mother are greatly attached to the daughter. Acrimonious

relationship between her parents who should necessarily have the welfare of the daughter in their mind, has brought about a very embarrassing and

unfortunate situation for the little girl. In our judgment in the main appeal relating to the custody we have dealt with this aspect at length. We feel

that imposition of any kind of punishment on the father for whom daughter has a lot of affection is likely to upset her and cause her mental distress.

In the unfortunate and acrimonious dispute between the husband and the wife our main concern in the instant case has been the welfare of the child.

Only taking into consideration the fact that the welfare of the child is likely to be affected, we are of the opinion that under the present

circumstances and in the situation now prevailing we should let off the father with a reprimand and a warning, although he has been rightly found

guilty of having committed contempt of court by the Bombay High Court, in the hope that the Appellant in future will not do any such act as may

constitute contempt of court and will try to serve the cause of welfare of the minor daughter by carrying out the directions given by us in our

judgment in the custody appeal in the proper spirit.

In the light of the above, the contempt petition is misconceived. Accordingly, the contempt petition will stand dismissed. No costs.