David Jude vs Hannah Grace Jude And Others

with a prayer for punishing the respondents – 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 — 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 – 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

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:—

"Special leave granted.

Looking to the age of the child, the interim custody

of the child is given to the Ist appellant – 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: —

"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:—

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

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:—

"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

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

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 – 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.