Rajesh Surana vs Rekha

M. Jeyapaul, J.—The petitioner S. Rajesh is the husband of the first respondent Rekha. Matrimonial dispute between them has landed in

Principal Family Court, Court, Chennai.

In C.R.P. No. 655 of 2006, the following order was passed by this Court on 6.8.2007:

...Directing the Respondent/wife to hand over the custody of the child by name Ronak @ Siddarth to the petitioner/husband on the 1st Sunday of

every English Calendar month at 9.00 am in the Government Museum at Egmore, Chennai and the petitioner/husband is directed to hand over the

child back to the respondent/wife at 5.00 pm on the same day in the Government Museum, Egmore, Chennai. Besides, the petitioner shall have the

visitation rights of the child from 2.00 pm to3.00 pm on every religious festivals.

The petitioner, in the Contempt Petition, contends as follows:

After the aforesaid order was passed by this Court, the festival of Raksha Bandan, a religious festival fell on 28.8.2007. The respondent is

expected to hand over the custody of the child to the petitioner at 2.00 pm in the Government Museum, Egmore, Chennai and take back the child

at 3.00 pm. Though the petitioner waited anxiously to see his son, the respondent did not turn up with the child. The respondent wilfully disobeyed

the orders of this Court by refraining from handing over the child. Even on 12.9.2007, the day when Mahavir Jayanthi was celebrated, the

respondent did not turn up to the Museum with the child. Inspite of the telegram sent to remind the respondent, the respondent wilfully disobeyed

the orders of this Court. She continued to violate the order even on 2.9.2007, the first Sunday which fell in the month of September 2007. Though

several festivals like Durga Pooja, Vijayadasami, Deepavali and other festivals had come and gone, the respondent never brought the child to the

Museum as directed by this Court. Seven first Sundays and other festivals had passed by after the order was passed by this Court on 6.8.2007,

but, the respondent has not shown any regard for the orders passed by this Court. Despite the observation of the Supreme Court in the S.L.P

preferred by the respondent that the order passed by this Court will continue to operate till any other order is passed, the respondent has not

chosen to obey the orders of this Court. Though the petitioner has been sending telegrams to the respondent even on the previous day itself, the

respondent never obeyed the order even once. The respondent committed act of contempt wilfully, deliberately and intentionally disobeying the

orders of this Court dated 6.8.2007.

In the counter filed by the respondent, she has stated that the petitioner took undue advantage of the order and exercised his rights to his whims

and fancies. When the child does not have a sister, the celebration of Raksha Bandan festival does not arise. Mahavir Jayanthi was not celebrated

by her community on 12.9.2007, but, it falls only during the month of April. The respondent proceeded to Delhi to prepare the S.L.P against the

order passed in C.R.P.No.655 of 2006. Thereafter, she was in mental stress and was also depressed. She was not conscious of anything what she

was doing as the torture given to the respondent by the petitioner was unbearable. Therefore, the respondent could not comply with the order of

this Court. The averment that the respondent did not take the child to the Museum during Durga Pooja, Vijayadasami and Deepavali is incorrect as

those festivals are not of Jains. When the respondent is represented by her Counsel, there is no necessity for the petitioner to torture her by sending

telegrams. The child is so much afraid to go near the petitioner as he had not behaved like a lovable father. He treated the child like a play toy and

tickled his private parts which the child did not relish and fell sick due to the unnatural habit of his father. The child was not showing any interest to

see him. Therefore, the respondent prays for dismissal of the contempt petition.

Learned Senior Counsel appearing for the petitioner would vehemently submit that the very averment found in the counter would disclose that

the respondent has no intention to respect the orders of this Court or the directions of the Supreme Court. Spurious reasons have been given by

the respondent in the counter for not complying with the directions of this Court. The order was passed by this Court on 6.8.2007. She has not

chosen to comply with the directions of this Court not even on one occasion. Therefore, he would submit that the contumacious disobedience of

the respondent may be visited with due punishment under the law of contempt.

Learned Counsel appearing for the respondent would contend that the child is scared of meeting his father. The non-cooperation of the child is

writ large in the report filed by the Advocate Commissioner appointed by this Court. There was no intention on the part of the respondent to

disobey the orders of this Court. Further, the respondent was engaged in taking up the subject order passed by this Court to the Supreme Court

by way of SLP Therefore, he would submit that no contempt was committed wilfully by the respondent.

There is a clear direction by this Court in the order passed in C.R.P. No. 655 of 2006 dated 6.8.2007 that the respondent shall hand over the

custody of the child to the petitioner on the first Sunday of every English calendar month at 9.00 am in the Government Museum at Chennai and

the petitioner shall hand over the child back to the respondent at 5.00 pm on the same day in the Government Museum, Chennai. The petitioner

also shall have visitation rights of the child from 2.00 pm to 3.00 pm during all religious festivals.

The above order passed by this Court would also refer to the report filed by the Advocate Commissioner. The Advocate Commissioner has

noted that the child was found playing freely and happily moving in and around Museum alongwith the petitioner during the time allotted that the

petitioner took the child inside the park in the very same Museum and thereafter he offered new toys to the child and took him in his car. The court

has observed that the child was happy with the petitioner based on the aforesaid report submitted by the Advocate Commissioner during the

pendency of the civil revision petition. Therefore, the submission made by the learned Counsel appearing for the respondent that the child was

averse to the company of his father does not hold water.

The fact remains that the child has been in the custody of the respondent from the very beginning. The child has attained the age of 6 now. When

a child is in the custody of a person throughout till it attains the age of 6, it may resist the company of its father for sometime as the full-fledged

company of the father was not enjoyed by the child. For the past one year, the petitioner has been deprived of the visitation rights accorded to him

by this Court. He is longing for the love and affection of his child atleast during the limited period permitted by this Court. But, the respondent has

deliberately denied the custodial and visitation right conferred on the petitioner by this Court.

The learned Counsel appearing for the respondent submitted the judgment of the Supreme Court in Nil Ratan Kundu and Anr. v. Abhijit

Kundu Civil Appeal No. 4960 of 2008 dated 8.8.2008 wherein the Supreme Court observed as follows:

In the instant case, on overall considerations we are convinced that the Courts below were not right or justified in granting custody of minor

Antariksh to Abhijit-respondent herein without applying relevant and well-settled principle of welfare of the child as paramount consideration. The

trial Court ought to have ascertained the wishes of Antariksh as to with whom he wanted to stay.

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.

That was 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. In such circumstances, the Supreme Court, having observed that the boy did not like to join his father and was very happy

with his maternal grandparents, chose to grant guardianship to the maternal grandparents. Entrustment of a child to the husband, who allegedly

tortured and assaulted his wife which culminated in her death against the wishes of the child, is not definitely conducive for the welfare of the child.

In the instant case, specifically referring to the report of the Advocate Commissioner, this 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 flimsy ground that the child is scared of his father and refused to go with him.

It is contended by the respondent in the counter that Durga Pooja, Vijayadasami and Deepavali are not festivals celebrated by Jains. More

than one year has lapsed from the date of direction flowed from this Court to entrust the child during religious festivals between 2.00 pm and 3.00

pm. But, 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.

The counter was filed by the respondent on 30th July 2008. The order directing her to hand over the child between 9.00 am and 5.00 pm

during all first Sundays of every English Calendar month was never complied with by the respondent despite the observation of the Supreme Court

that the order passed by the High Court will continue to operate till any other order is passed.

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.

It is true that the respondent is represented by her counsel. 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. It is totally unbelievable that the father, who longed to see his child, behaved in an

unnatural way as projected by the respondent. It is only the version of the respondent that is found to be totally unnatural.

The respondent has unambiguously admitted in the counter that she is bound to entrust the child between 9.00 am and 5.00 pm during the first

Sunday of every month and should also entrust the child between 2.00 pm and 3.00 pm during the religious festivals. Mala fide intention is writ

large in the wilful and deliberate disobedience of the orders of this Court by the respondent. 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.

In view of the above, the respondent Mrs. Rekha is found guilty of civil contempt. 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.