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CASE NO.: Appeal (civil)  4797 of 1998

PETITIONER: David Jude                                       

RESPONDENT: Vs. Hannah Grace Jude and others                     

DATE OF JUDGMENT: 30/07/2003

BENCH: M.B. SHAH & ARUN KUMAR.

JUDGMENT:

J U D G M E N T

Shah, J.

This petition for Contempt is filed by the applicant-husband  with a prayer for punishing the respondents â\200\223 wife and mother-in-law  for the breach of undertaking given by them and also for breach of  directions issued by this Court.                  By order dated 15th September, 1998, this Court permitted  respondent no.1- wife to take the child to USA on the condition that  respondents would file undertaking before the Court to the effect that  wife will appear before the family court as and when required, and it  would be open to the applicant-husband to visit the child in USA after  making prior arrangement with the wife.

The brief facts of this case are that â\200\224 applicant and respondent  no.1 were married on 7.2.1989 at Hyderabad according to Christian  rites.  Soon after marriage, the couple left for America.  On 2.5.1997,  a son was born out of this wedlock.  Because of strained relationship  between the wife and husband, both started living separately. Wife  approached the Circuit Court, Maryland in USA and got issued a  protective order against the husband on condition that the child will  not be taken out of the jurisdiction of that court.  The wife, however,  brought the child to India on 14.4.1998 and after keeping him in the  care and custody of her mother â\200\223  respondent no.2, she left India.  On  knowing this, husband dashed back to India on 23rd April 1998 and on  30th April, 1998 he took over the custody of the child from respondent  no.2 for celebrating the birthday of the child which was on 2.5.1998.   

Thereafter, on 1.5.1998, the husband filed O.P. No.300 of 1998  before the Family Court at Hyderabad under Sections 7, 10 and 25 of  the Guardians and Wards Act 1890, seeking an order appointing him  as guardian of the minor Child.  Respondent No.2-grand-mother also  moved the same Court for restoring the custody of the chi ld to her.   The Family Court by order dated 19.8.1998 dismissed the application  of the husband and directed him to restore the custody of child to the  grandmother.  Aggrieved thereby, the husband filed Civil Revision  Petition No.3229 of 1998 before the High Court of Andhra Pradesh at  Hyderabad, which was allowed and the custody of the child was given  to the husband with visiting rights to the wife.

       Being aggrieved by the said order, respondents No.1 and 2 filed  S.L.P. No.15185 of 1998 before this Court.  This Court by order dated

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15.9.1998 granted interim custody of the child to the wife with  permission to take the child to USA on the condition of furnishing a  written undertaking to bring the child back to India and disposed of  the matter by passing the following order:â\200\224 "Special leave granted. Looking to the age of the child, the interim custody  of the child is given to the Ist appellant â\200\223 mother.  She  will be at liberty to take the child to USA on condition  that both the appellants file undertakings before this  Court on or before 25th of September, 1998 to bring the  child back to India when so ordered by the Family Court  and the Ist appellant will also file an undertaking to the  effect that the Ist appellant will appear before the Family  Court as and when required by the Family Court.  If  during the interregnum the respondent wants to visit the  child in USA, he can do so after making prior  arrangement with the Ist appellant to see the child.   Passport of the child should be released on the filing of  the undertaking.  The impugned order of the High Court  is accordingly set aside.  The Family Court should  dispose of the matter as expeditiously as possible,  preferably within 18 months.  The appeal is disposed of  accordingly."

        After passing of the aforesaid order, both the respondents  submitted their undertakings by way of affidavits in this Court.  The  relevant portion of the undertakings is as under: â\200\224 "By Respondent no.1 (Wife) As directed by this Hon’ble Court in the order  dated 15.9.1998, I hereby undertake to bring the child  back to India when so ordered by the Hon’ble Family  Court and further undertake to appear before the Hon’ble  Family Court, Hyderabad, as and when required by the  Hon’ble Family Court.

By Respondent no.2 (Mother of Respondent No.1) As directed by this Hon’ble Court, I undertake to  bring the child back to India as and when required by the  Hon’ble Family Court, Hyderabad."

Meanwhile, respondent no.1 filed case No.5249 of  Family Law  before the Circuit Court for Montgomery country, Maryland inter alia  for divorce and custody of the child.

       Thereafter, the Family Court at Hyderabad proceeded with the  trial and examined the husband.  The matter was kept for evidence on  behalf of the wife but she failed to appear before the Court on  7.2.2000. Various orders were passed by the Family Court, but she  remained absent from the proceedings. Finally, on 11.4.2000, the  Family Court passed the following order:â\200\224 1.      The husband is appointed as the guardian of the minor  child; 2.      The wife is directed to restore the custody of the minor  child to the husband within one month from the date of  the order; 3.      The wife is permitted to take interim custody of the  minor child whenever she comes to Hyderabad and hand  over the minor to the husband while she leaves the  country; 4.      The wife is not entitled to remove the custody of the  minor child out of the jurisdiction of the Family Court at  Hyderabad at any time; 5.      The husband is directed not to handle the amounts lying

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in FDR of Rs.5,00,000/- including the interest accrued  thereon till the minor attains the age of majority.  

Being aggrieved by the aforesaid order, the respondents/  contemnors filed appeal before the High Court of Andhra Pradesh,  which is still pending.   

Meanwhile, the husband moved this Court for initiating  contempt proceedings against the respondents / contemnors for  violating the undertakings given by them before this Court and the  order passed by this Court in Civil Appeal No.4797 of 1998.

Further, in the execution petition filed before the Family Court,  the Family Court passed an order holding that the failure to restore the  custody of the minor child to the husband amounts to breach of the  undertakings given and ordered the arrest of respondent no.2 (mother  of respondent no.1) to serve civil imprisonment for a period of six  months.  Appeal filed by respondent no.2 against the above arrest  order before the High Court was also dismissed.  Against that order,  she has filed SLP No.22990 of 2001 before this Court.

The instant Contempt Petition was first listed on 28.9.2000 and  noticed was issued for 8.1.2001.  Respondent no.2, mother of  respondent no.1, was present.  She was directed to abide by the  undertaking given to this Court.  On the next date, i.e. on 12.3.2001,  learned counsel for respondent no.1 sought eight weeks time so as to  enable her to remain present with the child.  Respondent no.2 was  directed to deposit her passport with the Registrar (Judicial).  On  8.5.2001, respondent no.1 did not appear but learned counsel for  respondent no.1 assured that she would remain present before this  court with child on 6th August, 2001.  On 6th August 2001 also  respondent no.1 remained absent.  On that day, at the instance of  applicant, leave was granted to add the Union of India as a party  respondent.  Thereafter, on 17th September, 2001, the Court directed  the concerned officer of Union of India to write a letter to the  employer of respondent no.1 about the undertaking given before the  Apex Court and breach of undertaking and also the fact that despite  the service of notice, she was not remaining present before this Court.   On 7th January, 2002, Mr. Y. Raja Gopala Rao, Advocate appeared on  behalf of respondent no.1 and stated that he would file necessary  reply.  On 6th February, 2002 an order was passed to the effect that  respondent nos.1 and 2 have committed breach of unconditional  undertakings and notice was issued as to why they should not be  punished for contempt of this Court.  Relevant part of the said order is  as under:â\200\224 "In our view, considering the unconditional  undertakings given by the respondents to this Court there  is no question of not taking further action against them  for not bringing the child back to India as directed by the  Family Court.  In this view of the matter, prima facie, we  are of the view that respondents have committed the  contempt of this Court and appropriate action is required  to be taken under the Contempt of Courts Act for  committing breach of unconditional undertaking.  Therefore, we direct that notice be issued as to why they  should not be punished for contempt of this Court."

When the matter came up for hearing on 6th March, 2002, at the  request of the learned counsel for the respondents, the matter was  further adjourned for four weeks. On 3rd April, 2002, counsel  appearing for respondent no.2 stated that respondent no.1 would  remain present with the child without fail, on 30th July, 2002.   On 30th  July, 2002, matter was again adjourned.  On 29th August, 2002, the  Court directed that respondent no.1 shall remain present before this

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Court with her child on 13th November, 2002.  On 14th November,  2002, respondent no.1 remained absent and, therefore, direction was  issued to the Union Government to take necessary steps for securing  her presence with child in this Court.  Thereafter, matter was  repeatedly adjourned to see that the wisdom prevails with respondent  no.1 to abide by the undertaking given to this Court.  Subsequently,  respondent no.1 filed an affidavit on 13th November, 2002 wherein  she has stated that Maryland Circuit Court has granted full custody of  the child to her in October, 2000 and that her job precludes her from  being able to travel to India.  She has further stated that even though  she was unable to appear in person, she always retained a legal  representative on each and every date of hearing of the case and  submitted that taking into consideration her previous affidavits,  petition against her be dismissed.  Finally, in the affidavit which was  tendered by her on 6th May, 2003, it is stated that petitioner had  threatened her in past by saying that he is going to show her how he  intends to use the Indian Courts to get back at her, and it is her belief  that her husband is now using the system against her family.

               At the time of hearing, written submissions were filed by the  parties. It is the contention of the learned counsel for the applicant that  breach of undertaking given before this Court by the wife amounts not  only to a civil contempt but also to criminal contempt.  It is submitted  that this Court’s jurisdiction under Articles 129 and 142 of the  Constitution is not restricted by the Contempt of Courts Act, 1971 and  the Court may award even higher punishment than which is provided  under the Act.  It is the submission of learned counsel for the  applicant that one of the primary objects of a proceeding for contempt  is to see that the order or undertaking which is violated by the  contemnor is effectuated.  Thus, besides punishment, the Court may  issue such directions to restore the custody of the child to the  applicant-husband.

It is to be stated that High Court had directed that the custody of  the child be given to the husband because respondent No.1 gave the  custody of the child to her mother and that she was staying in United  States and serving in the World Bank at Washington, D.C. The Court  also considered the age of the child who at the relevant time was of  one year and four months and the fact that as respondent no.1 was  serving and staying alone in United States, it would be difficult for her  to take care of the minor child.  To see that the aforesaid order is set at  naught, respondent nos.1 and 2 gave unconditional undertakings to  this court and obtained favourable order.

From the facts stated above it is apparent that the attitude of the  contemnors is without any doubt defiant and contemptuous.  They  were given custody of the minor child on the condition of filing  undertakings before this Court to bring the child back to India when  so ordered by the Family Court.  Respondent nos.1 and 2 have played  with the Court, by giving unconditional undertakings for securing the  custody of the child.  It is true that respondent no.2, the mother of  respondent no.1 has stated before this court that respondent no.1 is  now not abiding by the instructions given by her to produce the child  before this Court and the Family Court.

Further, it is also clear from the conduct of respondent no.1 that  she has no regard for the notices issued by this Court.  If the notice  issued by Apex Court of this land is willfully disobeyed, it would send  a wrong signal to everybody in the country.   It is a sad experience  that due regard is not shown even to the undertakings/order/notice  issued.   

Hence, we hold that respondent nos.1 and 2 are guilty for  committing contempt of this Court.  Further, we do not think that this

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is a fit case for showing mercy as contended by learned senior  counsel, Ms. Indira Jaisingh, appearing on behalf of respondent no.2.   Learned counsel for respondent no.2 further submitted that respondent  no.2, who is aged about 65 years, has taken enough steps to secure the  presence of respondent no.1 and to abide by the undertaking given by  her.  On the question of punishment, learned senior counsel submitted  that in any case considering the age of respondent no.2, sentence of  imprisonment may not be imposed upon her.  In our view, even  though respondent no.2 has played major part in the aforesaid episode,  considering her age and the fact that she has an old husband to look  after, we think that imposition of fine would meet the ends of justice.  Hence a fine of Rs. 50,000/- is imposed upon her, in default three  months simple imprisonment.  It is also ordered that her passport  would be seized for a period of five years.

For respondent no.1 considering the fact that she is well  educated, serving in prestigious institution, namely, the World Bank  and her totally defiant attitude, we do not think that this would be a fit  case for taking a lenient view and not imposing sentence of  imprisonment.  Even though she does not deserve mercy because of  her motivated behaviour yet we impose only three months simple  imprisonment and a fine of Rs.50,000/- and in default of payment of  fine, she shall further undergo simple imprisonment for one month.   Fine to be paid within one month.

Respondent â\200\223 Union of India is directed to take appropriate  steps to ensure compliance of this order qua respondent No.1.

Contempt Petition stands disposed of accordingly.