Mr. Ashwin Chaudhary vs Ms. Kiran Chaudhary & another

MANOJ K. TIWARI, J. (ORAL)

This contempt petition has been filed by the husband, alleging that his wife has willfully disobeyed the order dated 20.07.2017 passed by Division

Bench of this Court in Appeal From Order No. 327 of 2017, filed under Section 19 of Family Courts Act, 1984 as well as order dated 30.09.2016

passed by Judge, Family Court, Nainital in Miscellaneous Civil Case No. 17 of 2016, filed under Section 26 of Hindu Marriage Act, 1955.

Petitioner filed a divorce petition against respondent No. 1, under Section 13(1)(i) and (i-a) of the Hindu Marriage Act, 1955 before Judge, Family

Court, Nainital. The said divorce petition is still pending. In the said proceedings, petitioner filed an application under Section 26 of the Hindu Marriage

Act, 1955 seeking interim custody of his minor son, Master Kushagra Chaudhary. Learned Judge, Family Court, Nainital partly allowed the said

application vide order dated 12.07.2016 and granted visitation rights to t he petitioner. It was provided in the said order that petitioner can meet his son

at his school i.e. the Asian Public School, Dehradun, as per rules of the school. It was further provided that whenever there is holiday of 5 days or

more in the school, petitioner can have custody of the child for two days, after informing respondent No. 1 (mother). It was further provided that

petitioner can have the custody of child for two weeks during summer vacation.

It transpires that petitioner subsequently moved an application seeking modification of the aforesaid order, which was allowed by learned Judge,

Family Court, Nainital vide order dated 30.09.2016 and it was provided that mother will ensure that the child is given in the custody of his father

(petitioner) on first and third Saturday of each month at 3:30pm at Gate No. 5 of Vasant Vihar Colony, Dehradun and petitioner (father) will handover

custody of the child back to his wife at 06:30 pm on the next day. It was further provided that during winter and summer vacations of more than one

month, respondent No. 1 would handover custody of the child for two weeks to the petitioner and further that during holidays of more than five days,

i.e. Holi & Deepawali, respondent No. 1 shall handover custody of child to the petitioner for two days.

Both the orders passed by learned Principal Judge, Family Court, Nainital were challenged by petitioner by filing WPMS No. 2769 of 2016. The

writ petition was dismissed vide judgment and order dated 26.10.2016 with the following observations:-

“The paramount consideration in the custody matter is to secure the welfare of the child.

However, it is made clear that child shall not be coerced/forced to accompany his father.â€​

In the meantime, divorce petition and applications pending therein, were transferred from Family Court, Nainital to Family Court, Dehradun at the

instance of respondent No. 1.

The petitioner filed an application for execution of orders dated 30.09.2016 and 12.07.2016 before the Principal Judge, Family Court, Dehradun,

which was registered as Execution Case No. 3 of 2017. The Family Court, Dehradun vide order dated 19.05.2017, appointed a Counselor to facilitate

transfer of custody of the child with a direction to ensure that no force is used, while handing over custody of the child to his father (petitioner).

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On 26.05.2017, learned Principal Judge, Family Court, Dehradun considered the report submitted by the Counselor, which stated that the child does

not want to go with his father, and based on the said report, execution proceeding were closed.

The petitioner, thereafter, filed Appeal under Section 19 of the Family Courts Act, 1984, which was registered as Appeal From Order No. 327 of

2017. The two orders dated 19.05.2017 and 26.05.2017 passed by executing court in Execution Case No. 3 of 2017 were challenged in the said

appeal. The said appeal was decided by a Division Bench of this Court vide judgment and order dated 20.07.2017. Operative portion of the said

judgment is extracted below:-

“Looking to the findings recorded to which this Court is not agreeing in principle, as it defeats the purpose of the decree which is un-assailed and

the logic which has been attached by the Court was with regard to the intention of Kushagra Chaudhary, expressing his willingness, which is not

trustworthy, this Court disposes of this Appeal with the direction that the Executing Court will appoint an independent Administrative Officer who

while handing over the child to the father in compliance of the judgment dated 30th September, 2016, will ensure that the information is given to the

Senior Superintendent of Police and the protection of the child is ensured.â€​

This contempt petition has been filed by the husband for enforcement of the judgment and order dated 20. 07.2017. In the contempt petition, it is

alleged that respondent No. 1 â€" Ms. Kiran Chaudhary is obstructing the visitation rights of the father (petitioner) and secondly she is poisoning the

mind of the child against his father. Petitioner has relied upon two letters dated 09.08.2017 and 23.08.2017, respectively, issued by Tehsildar,

Dehradun, who was entrusted the task of overseeing and ensuring execution of visitation rights of the petitioner, in terms of the judgment dated

20.07.2017 passed by Division Bench of this Court, which are on record as annexure No. 7 to the contempt petition.

In the first letter dated 09.08.2017, addressed to Principal Judge, Family Court, Dehradun, Tehsildar has stated that he had gone to Gate No. 5 of

Vasant Vihar Colony for ensuring compliance of the order, where Smt. Kiran was present with her son, however the son refused to go with his father,

who was also present there. In the subsequent letter dated 23.08.2017, Tehsildar has stated that on 19.08.2017, he was late by half an hour and he

found neither respondent No. 1 nor her son present at Gate No.5. When he contacted respondent No. 1 telephonically, then she informed that she

would be coming within half an hour, but she did not turn up till 05:00pm, as such, custody of the child could not be handed over to the father.

Tehsildar, who is respondent No. 2 in the contempt petition, has filed his response affidavit. Para 8 and 9 of the said affidavit are extracted below.

“8. That the contents of para no. 15 of the affidavit filed in support of the contempt petition are wrong and denied. It is submitted that on

05.08.2017 the parents of the child were present where the child (Kushagra Chaudhary) refused to go with his father. The answering respondent

requested the respondent no.1 to ask the child and allow the child to go with his father for one day as directed by the learned Court, but child refused

to do so. At that time the answering respondent was escorted by Sub Inspector, Constable and two lady Constables and two other persons with the

respondent no.1. In this regard a copy of letter dated 09.08.2017 and the C.D. prepared at that time is being filed herewith and marked as Annexure

No. 2 & 3 to this affidavit.

That in reply to the contents of para no.16 of the affidavit filed in support of the contempt petition it is submitted that the respondent no.2 was not

well on 02.09.2017 and the information with this regard was given to the parents of the child with request that in place of 3:30 the answering

respondent would be available at4:30 and the answering respondent was present there on 4:30 at Gate No. 5 Basant Vihar Colony. Respondent No.1

sent the child with the respondent no.2 and the respondent no.2 tried to handover the child to the petitioner, but the child refused to go with his father.

Therefore the contention of the petitioner is wrong and vehemently denied. In this regard a letter dated 04.09.2017 written by the answering

respondent to the Family Court is annexed herewith and marked as Annexure No.4 to this affidavit.â€​

In the said response affidavit, one letter written by Tehsildar to the Principal Judge, Family Court, Dehradun on 04.09.2017 has been enclosed as

annexure No. 4, stating that on 02.09.2017, he visited Vasant Vihar Colony in compliance of court’s order and respondent No.1 asked her son to

go with his father, however, child refused to go with him (father) by saying that “I do not want to goâ€​ and then he went back to his mother.

This Court appreciates the sincere efforts made by respondent No. 2 â€" Tehsildar for implementing the order passed by Division Bench of this

Court.

From perusal of the evidence available on record, it cannot be inferred that respondent No. 1 has willfully disobeyed the order of this Court. It is

very much clear from the letters written by concerned Tehsildar that sincere efforts were made, but the child was not ready to accompany his father

(petitioner). The fact remains that the child is not a chattel who can be forced to go with his father against his wishes, that too when he is a grown up

boy of 14 years.

Proceedings under Contempt of Courts Act are quasi criminal in nature. A person cannot be punished under Section 12 of the said Act without

recording a finding that disobedience of the judgment/order caused by him/her is deliberate and willful. The present contempt proceedings have been

drawn against respondent no.1 on the ground that she has caused obstruction in carrying out the order of this Court, in as much as she has not handed

over custody of the child to her husband (petitioner herein). The child, whose custody was to be given, is not an infant or a toddler but is an

adolescent. The boy is present in court and when asked to go with his father, he flatly refused. When the child is not willing to go with his father, then

his mother (respondent no.1) cannot be held guilty of contempt of Court.

There is yet another aspect which cannot be lost sight of. The order passed by Division Bench of this Court in Appeal From Order No. 327 of

2017 is executable, therefore, contempt jurisdiction would not be the appropriate remedy for enforcement of the said order, as held by Hon’ble

Supreme Court in the case of Kanwar Singh Saini Vs High Court of Delhi reported in (2012) 4SCC 307. The relevant portion of the said judgment is

extracted below:-

“18. In case there is a grievance of non-compliance of the terms of the decree passed in the civil suit, the remedy available to the aggrieved person

is to approach the execution court under Order 21 Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their

evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application

under Order 39 Rule 2-A CPC is not maintainable once the suit stood decreed. Law does not permit to skip the remedies available under Order 21

Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the Act 1971 when an effective

and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order

embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree

or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right

in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provisions of Order 39 Rule 2-A

CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree.

In Food Corporation of India v. Sukha Deo Prasad, AIR 2009 SC 2330, this Court held that the power exercised by a court under Order 39 Rule

2-A is punitive in nature, akin to the power to punish for civil contempt under the Act 1971. Therefore, such powers should be exercised with great

caution and responsibility. Unless there has been an order under Order 39 Rule 1 or 2 CPC in a case, the question of entertaining an application under

Order 39 Rule 2A does not arise. In case there is a final order, the remedy lies in execution and not in an action for contempt or disobedience or

breach under Order 39 Rule 2A. The contempt jurisdiction cannot be used for enforcement of decree passed in a civil suit.â€​

In such view of the matter, this Court is of the opinion that it is not a fit case for exercise of powers under Contempt of Courts Act. The petitioner

is not remediless, therefore he can approach the appropriate forum for enforcement of the judgment dated 20.07.2017.

Accordingly, the contempt petition is closed. Notices issued to the respondents are hereby discharged.