Meenal Bhargava vs Naveen Sharma

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1606 OF 2018

MEENAL BHARGAVA .....APPELLANT(S)

VERSUS

NAVEEN SHARMA .....RESPONDENT(S)

WITH

CIVIL APPEAL NO. 3629 OF 2018

JUDGMENT

A.K.SIKRI, J.

These are the cross-appeals, filed by both the parties challenging

different parts of the orders dated January 9, 2018 passed by the High

Court of Judicature at Rajasthan in D.B. Civil Contempt Petition No.

1846 of 2017. The parties are husband and wife. After their marriage in

the year 2007, the wife joined her husband in the United States of

America (USA). Their child, named Pranav, was born out of this

wedlock in August, 2009 at Baltimore, USA. In 2010, they migrated to Signature Not Verified Digitally signed by ASHWANI KUMAR Canada. For certain reasons, the matrimonial relations became strained Date: 2018.05.09 17:04:39 IST Reason:

and the wife viz. Meenal Bhargava (hereinafter referred to as the

‘appellant’), left the company of her husband Naveen Sharma 2

(hereinafter referred to as the ‘respondent’) and on July 26, 2013, went

away from her husband, taking Pranav with her. Initially, for some time,

she stayed in Buffalo, New York and thereafter came to India in August,

2013.

2. The respondent filed a case for custody of Pranav in a Canadian Court.

Vide order dated October 29, 2014, the Court granted temporary

custody of Pranav to the respondent. By that time, appellant had

brought Pranav to India i.e. on August 4, 2013. After order dated

October 29, 2014 granting temporary custody of Pranav was passed in

favour of the respondent, the mother of the appellant filed a motion in a

Court at Canada stating that the said Court at Canada had no

jurisdiction in the matter. This contention was, however, rejected by the

Court and, thereafter on April 2, 2015, another order was passed

directing the appellant to return Pranav to its jurisdiction and appear

before the Court on April 16, 2015. The appellant did not comply with

this order, which led to issuance of red corner notice by the FBI/Interpol

against the appellant.

3. Since the appellant had travelled out of territorial jurisdiction of the

Canadian Court and had come to India with Pranav, finding no other

alternative, the respondent herein filed a Habeas Corpus Petition in the

High Court of Judicature at Rajasthan. In the said petition, notice was 3

issued to the appellant herein. Having regard to the nature of dispute,

the High Court deemed it proper to explore the possibility of settlement

in the first instance. Thus, by order dated December 17, 2015, the

parties were referred to mediation. This effort bore fruits as the

respondent and appellant settled the matter.

4. The appellant agreed to come back to USA and join the company of the

respondent along with Pranav. Consent terms were recorded and on

the basis thereof, the High Court disposed of the Habeas Corpus

Petition vide order dated December 17, 2015 incorporating those terms

of settlement in its order and directing the parties to abide by the same.

These consent terms are as under:

“(1) Both the parties will withdraw their respective cases within 4 months from today.

(2) Mr. Naveen Sharma will find out 3-4 flats for choice of Smt. Meenal and Smt. Meenal will then go to U.S.A. to select one of them. This process should complete within 18 months.

(3) In the meantime Mr. Naveen Sharma will come to India to meet Mrs. Meenal and Pranav at least for 3 time. Similarly Mrs. Meenal will go to U.S.A. along with her son under the security with condition that Mr. Naveen will arrange all their expenses including travelling expenses and will undertake that if both of them desire to return India then Mr. Naveen will arrange their safe return to India.

(4) The flat which is going to purchase by Mr. Naveen Sharma should be in joint name of both party. None of the party will entitle to sale this flat or it’s any part independently. Mr. Naveen Sharma will arrange collateral security against loan and in no case the flat should be taken from ownership and possession of Mrs. Meenal Sharma. In case any mis-happening the flat will remain in ownership of Mrs. Meenal Sharma.

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(5) Mr. Naveen, Mrs. Meenal and Pranav will live jointly at U.S.A. after purchase of flat. None of the family member of both parties will disturb and interfere in their lives.”

5. For certain reasons, the laudable settlement, hoping to achieve win-win

situation, did not turn into reality. As per the respondent, it is the

appellant who committed breach of the said settlement and also violated

the directions contained in the order of the High Court to comply with

these terms. As she failed to adhere to the settlement and did not

comply with the directions of the High Court in this behalf, the

respondent herein filed Civil Contempt Petition in the High Court seeking

execution of the consent terms and punishment to the appellant under

the Contempt of Courts Act, 1971 (hereinafter referred to as the ‘Act’).

The appellant also, thereafter, filed application in the High Court seeking

recall of the consent order dated December 17, 2015. The High Court

has, by impugned judgment dated January 9, 2018, found the appellant

to be in contempt and award maximum punishment of six months civil

imprisonment under Section 12(1) read with Section 12(3) of the Act with

direction to the appellant to surrender within four weeks. The High Court

has also dismissed the application preferred by the appellant for recall of

order dated December 17, 2015. However, it has not accepted the

request of the respondent to give him the custody of Pranav pursuant to

the Canadian Court’s order dated April 16, 2015 and, instead, permitted

the respondent to seek execution of the said order.

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6. The appellant has challenged the aforesaid order against the findings of

the High Court holding her to be in contempt of its order and awarding

the said punishment. The respondent feels aggrieved by that part of

the order whereby the High Court has refused to grant him the custody

of Pranav and showed him the route of execution. This, in nutshell, is

the scope of two appeals before this Court.

7. As noted above, Pranav was born in Baltimore, USA on August 22,

2009. He is having US citizenship. Both the parties, after their

marriage, have resided in America or Canada. They have also became

Permanent Residents of Canada as well as America. From the date of

his birth in August, 2009, Pranav remained with their parents, initially in

America and thereafter in Canada till July 26, 2013, when the appellant

went away with him to Buffalo, New York and thereafter came to India on

August 4, 2013. Pranav stayed with his father, along with her mother,

for four years and since then he is living with her mother to the exclusion

of the respondent. He was 4 years of age when he was brought to India

by the appellant and is in India now for more than 4½ years. Another

pertinent fact which is to be noted is that the respondent has got orders

from the Canadian Court giving custody of Pranav to him and has

directed the appellant herein to return the child back to Canada.

8. In the aforesaid background, the respondent had filed petition for 6

Habeas Corpus. However, the said petition was not heard on merits

inasmuch as parties were relegated to mediation where they settled the

matter leading to disposal of the Habeas Corpus petition vide order

dated December 17, 2015 on the consent terms which were made part

of the order with specific directions to both the parties to adhere to those

conditions. We have already noted the consent terms as per which the

parties had to withdraw their respective cases against each other within

4 months from the date of the order of the High Court. The respondent

was obligated to find out 3-4 flats for choice of the appellant. After

having chosen these flats, he was to show the same to the appellant.

The appellant, at that stage, was supposed to go to USA to select one of

the said flats. On this selection, she was to join the respondent with

Pranav, thereby achieving again the matrimonial alliance and Pranav

having benefit of the company of both his parents. This entire process

was to be completed within 18 months. During the aforesaid period of

18 months which was given to the respondent to find out flats in USA,

the respondent was permitted to come to India, at least three times, to

meet the appellant and Pranav. Likewise, the appellant and Pranav

were also supposed to go to USA under security and for such visits, it

was the responsibility of the respondent to arrange all their expenses

including travelling expenses. During such visits, they were entitled to

remain in USA as per their choice and as and when they desired to 7

return to India, the respondent had to arrange their safe return to India.

9. Three main obligations, as per the consent terms, were foisted upon the

respondent, viz.:

(i) To find 3-4 flats in USA to enable the appellant to select one of

them. The chosen flat was to become abode of the family.

(ii) To withdraw the cases filed against the appellant. This included

complaint filed with Police and also take steps to ensure that

warrants/red-corner notice issued by the FBI/Interpol also stands

withdrawn. This was necessary for smooth entry of the appellant in

USA.

(iii) After the selection of the flat by the appellant, the respondent was

obligated to purchase the said flat in joint names.

10.Likewise, the appellant was bound to carry out the following tasks as per

the aforesaid statements:

(i) To withdraw all the cases filed by her against the respondent.

(ii) After earmarking of 3-4 flats by the respondent, to go to USA to

select one of them.

(iii) On selecting the flat and purchase thereof by the respondent in

joint names of the appellant and respondent, she was to go to USA

along with Pranav and stay there with the respondent.

11.For certain reasons, the parties fell apart and the settlement terms could 8

not be fructified leading to the unfortunate situation. As per the

respondent, he had played his part by complying with the said terms

inasmuch as he withdrew the illinois police complaint,

warrants/red-corner notice issued by FBI/Interpol on February 12, 2016.

He also visited India three times i.e. in August, 2016, December, 2016

and August, 2017. During these visits, the respondent had shown to the

appellant various flats selected online by him with request to the

appellant to make her choice. However, on his third visit in August, 2017,

the appellant did not allow Pranav to meet the respondent as a result of

which police complaint was filed with the SHO, Ajmer on August 26,

2017. The respondent also sent air tickets to the appellant on August 31,

2017 for travel on September 3, 2017 to enable her and Pranav to visit

USA. The respondent further claims that he had also planned a trip to

Disney World, Florida for Pranav along with the appellant. According to

the respondent, in spite of all the efforts made by the respondent, it is

the appellant who backed out and resiled from the settlement as she

failed to perform her role.

12.The appellant, on the other hand, blames the respondent which led to

the aforesaid failure. Her accusation is that after the Habeas Corpus

Petition was disposed of vide order dated December 17, 2015, she filed

following three petitions on April 12, 2016 seeking to withdraw the

following cases filed by her:

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(i) Custody Petition filed by her before the Family Court, Ajmer.

(ii) Maintenance case filed by her before the Family Court, Ajmer.

(iii) Divorce case filed by her before the Family Court, Ajmer.

13.It is further claimed by the appellant that even the criminal proceedings

launched by her under Section 498-A IPC etc. were quashed by the

High Court on a petition filed by the respondent under Section 482 of the

Code of Criminal Procedure, 1973 (Cr.P.C.) which happened because of

her no objection as per the settlement. Pointing the finger at the

respondent, her imputation is that he did not withdraw the custody case

filed by him in the Canadian Court and/or sought vacation/rescinding of

order dated April 16, 2015 by which custody of Pranav was ordered in

favour of the respondent. She also alleges that the respondent failed to

send a list of flats to her within the stipulated 18 months time which was

mentioned in the consent terms. Thus, according to the appellant, it is

the respondent who has not fulfilled his obligations under the settlement.

In fact, she even filed miscellaneous application in the petition that was

filed by the respondent under Section 482 Cr.P.C. and was allowed by

the High Court on April 12, 2017, seeking recall of the said order on the

ground that it was the respondent who had committed breach of the

settlement. High Court, however, rejected the said application vide

order dated May 9, 2017 on the ground that the said order had been

passed after issuance of notice to the appellant.

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14.With this kind of impasse, the respondent filed a miscellaneous

application in the Habeas Corpus Petition seeking revival thereof on the

ground that the appellant had breached the consent terms. This

application was, however, not accepted by the High Court on the ground

that if there was any breach or disobedience on the part of the appellant

herein, there was an alternative remedy available to the respondent to

file contempt petition. This application was, thus, dismissed as

withdrawn by order dated October 5, 2017 with liberty to the respondent

to file the contempt petition. Thereafter, the respondent filed the

contempt petition on November 7, 2017 which has culminated in the

impugned judgment dated January 9, 2018.

15.We may mention at this stage that when the notice of the contempt

petition was served upon the appellant, she filed reply thereto stating

that she had taken requisite steps under the settlement and it is the

respondent who failed to get orders dated April 16, 2015 passed by

Canadian Court nullified thereby disabling her to go to America

inasmuch as she could be arrested immediately on landing in

USA/Canada in view of the aforesaid order. She also alleged that list of

flats was not sent to her. Moreover, conduct of the respondent,

post-settlement, was not good. She had also filed additional reply dated

December 11, 2017 contending (i) pursuant to High Court orders, she 11

had gone to Delhi hotel to meet respondent and his mother but she was

publicly humiliated there, (ii) she had found that the respondent had

been fired by his employer IBM for taking bribes and he had not been

truthful to the Government also and (iii) respondent had not paid a single

penny as maintenance. This was followed by application dated

December 19, 2017 by the appellant seeking recall of order dated

December 17, 2015.

16.The aforesaid stand of the appellant has been taken note of with a

specific purpose, namely, it is the contention of Mrs. Anjana Prakash,

learned senior counsel appearing for the appellant, that the High Court

has, in the impugned judgment, not even discussed and dealt with the

submissions of the appellant that she had not committed any breach of

the order or consent terms and on the contrary, it is the respondent who

failed to fulfil his obligations thereunder. She submitted that from the

reading of the impugned order, it can be discerned that the High Court

Bench kept on insisting the appellant to join the company of the

respondent along with Pranav and on her refusal to do so, the High

Court has taken the view that appellant has shown strong defiance to

the orders of the Court. In the process, the High Court has not even

cared to examine who was at fault insofar as adherence to the consent

order is concerned. She also submitted that the High Court took into

consideration another extraneous factor. It has noted in the impugned 12

judgment that statement was given in the Court by the father of the

appellant that the application for recall of order dated May 9, 2017

passed in petition filed by the respondent under Section 482 Cr.P.C.,

was moved by the counsel for the appellant without her instructions.

That, however, was found to be false assertion inasmuch as the High

Court called for the record of that case and found that each page of the

application was signed by the appellant and on realising this, it was

conceded that lawyer was instructed to make such an application. It

was contended by the learned senior counsel that even if this was

correct, it has no bearing insofar as the contempt case is concerned.

17.Mr. Jauhar, learned counsel appearing for the respondent, on the other

hand, put entire blame upon the appellant who, according to him, took

summersault with intention to commit breach of settlement terms as

there was change of heart and she decided not to join the company of

the husband. He took pains to demonstrate that respondent had took all

the necessary steps in terms of the settlement. He still wanted the

appellant to resume matrimonial alliance for the sake of saving the

family ties and also to enable Pranav be in the company of both the

parents.

18.We have duly considered the submissions of counsel for both the

parties. As noted in detail above, both the parties are blaming each 13

other for the failure of settlement terms. In this backdrop, we have gone

through the impugned order passed by the High Court. In the entire

judgment, the High Court has not adverted to the important aspect that

needed attention in such a case, namely, whether it was the appellant

who was responsible for not adhering to the terms of the consent order

and thereby violated the directions issued by the High Court in in its

orders dated May 09, 2017. After all, the respondent had filed the

contempt petition attributing breach of the directions on the part of the

appellant. In reply, the appellant had taken up the stand that she was

not responsible for the happenings and squarely blamed the respondent

therefor. The High Court has not discussed these aspects. On the

contrary, the approach of the High Court was to insist the appellant to

adhere to the settlement terms even at that stage and on her refusing to

do so it arrived at a finding that she had committed the contempt of the

court’s order as the aforesaid conduct was found to be abhorrent. It is,

thus, the stubborn attitude shown by the appellant during the hearing of

the contempt petition which has weighed by the High Court. That,

according to us, was not the correct approach for punishing the

appellant for contempt of court. The contempt petition was filed by the

respondent alleging that the appellant had not fulfilled her obligations

under the consent terms and the directions given by the High court in

this behalf. It was, thus, necessary for the High Court to discuss and 14

consider, in the first instance, as to whether these allegations of the

respondent were correct.

19.There is another way of looking into the matter. The consent terms on

which the parties settled the matter contained an important part of

agreement, namely, both the parties decided to live together again. This

happened in the proceedings which essentially related to the custody of

child. No doubt, when the parties agreed to resume the matrimonial

relations and decided to live again as husband and wife, the problem of

custody of Pranav got automatically solved thereby as it brought about

an ideal situation where Pranav could have the company of his both the

parents. Unfortunately, this did not materialise. In a case like this

whether the High Court could force the appellant to join the company of

the respondent and live with him, if he had decided for certain reasons

not to do so? Even when a decree of conjugal rights is filed by a

competent court of law in favour of one of the spouses, such a decree

cannot be executed and the other spouse who is directed to resume the

conjugal relations, cannot be forced to do so. It is a different matter that

for not obeying such a decree, other consequence follow including right

to the decree holder to seek divorce. When that is the position even in

respect of a decree passed by competent court of law forcing the

appellant to join the company of the respondent and on her failing to do

so punishing her in committing contempt of the court’s order, that too by 15

awarding maximum civil imprisonment in law cannot be countenanced.

In a matter like this, the focus of the High Court should have been on the

custody of the child, which was a subject matter of the Habeas Corpus

petition. However, as far as that aspect is concerned, the High Court

simply stated that it would be open to the respondent to execute the

order of the Canadian Court dated April 16, 2015. Here again the High

Court has fallen into error. In fact, in a matter like this, the High Court

should have restored the Habeas Corpus Petition and decided the same

on merits. However, when application for this purpose was filed by the

respondent, instead of doing so the High Court passed the orders dated

October 05, 2017 giving liberty to the respondent to file the contempt

petition.

20.Having regard to our aforesaid discussion, we allow the appeal filed by

the appellant and set aside the order of the High court whereby the

appellant is punished for contempt. It would be open to the respondent

to press the contempt petition before the High Court and if he so choses

the High Court shall decide the contempt petition in the light of the

aforesaid observations made by this Court, namely, to first find out as to

whether the appellant is correct in her submissions that it is the

respondent who did not take necessary steps to ensure that the

appellant joins the company of the respondents along with Pranav in

USA. We also allow the appeal of the respondent partly by setting aside 16

the direction of the High Court permitting the respondent to file the

execution petition. Instead with the consent of both the parties, order

dated October 05, 2017 passed in Miscellaneous Application filed by

respondent in Habeas Corpus petition is set aside and her Habeas

Corpus petition is revived which shall be dealt with by the High Court on

merits in order to decide as to whether custody of Pranav is to be

handed over to the respondent. Before us, both the parties have

advanced arguments on this aspect whereas the appellant submitted

that the welfare of Pranav lies in continuing his custody with his mother.

The respondent had made a fervent plea to claim the custody on the

basis of the order of the Canadian Court. However, we are deliberately

not dealing with this aspect as this aspect is the subject matter of

Habeas Corpus Petition pending in the High Court and it is the High

Court which has to deal with and decide this question, in the first

instance.

21.Both the aforesaid appeals are allowed on the aforesaid terms, without

any orders as to costs.

22.Before we part with, we are constrained to make few comments about

the conduct of the parties who are not fully acknowledging the truth and

reality of the situation. It is either the appellant or the respondent or may

be, to some extent, both of them, who are to be blamed for the egoist

approach. No doubt, on an earlier occasion, some differences arose 17

between them which led to strained relations and the appellant even

came back to India. Legal battles of all kinds started with both the

parties filing multiple proceedings against each other. In these dark

clouds enveloping the relationship between the parties, a silver lining

emerged in the form of mediation. As both the parties acted with

wisdom and maturity, mediation exercise was successful. Both the

parties not only buried their acrimony against each other but decided to

have a new beginning. The magic of mediation worked at that moment.

The consent terms which were recorded in the settlement arrived at

during mediation proceedings brought about the resolution which could

truly be levelled as ‘win-win’ situation. The accord was aimed at reuniting

the two spouses with the aim of bringing happiness in the matrimonial

relationship. More importantly, paramount interest of Pranav as a child

was acknowledged by the parties as any child, particularly at this age,

needs the company of both the parents for him/her to bloom and for

ideal bringing up. In fact, as is clear from the events noted above, both

the parties even took initial steps to make this settlement a success.

However, before it could be seen as ‘happy ending’ and parties could

reach that end of the road where they could find their final destination as

envisaged in the settlement, they encountered a road block. Whether it

happened due to the fault of the appellant or that of respondent, we are

not commenting about the same. Unfortunate part is that instead of 18

acknowledging the truth, parties are grumbling continuously and

complaining against each other. This accusation, castigation,

chargeability and dilation, depicting deviation from rectitude is a

mindless exercise and, in the process, true welfare of Pranav is sought

to be sacrificed. We are compelled to express these sentiments

because of the reason that things have still not gone beyond repair. Had

the parties shown positive and cooperative attitude (which, we are sure,

they had demonstrated during mediation talks) they could still achieve

an amiable resolution, inasmuch as it is even now possible to work out

the terms of the compromise that was entered into between them. In

fact, the respondent had expressed his willingness to go an extra-mile to

save the settlement and the matrimonial home. However, the appellant

stood firm in her attitude as she kept on saying that she could no longer

repose confidence and trust in the respondent. She has a grudge that

respondent lured her into the settlement with selfish motive to take away

the custody of Pranav with no love towards her and his moves lack bona

fides. The respondent, on the other hand, maintained the position that

appellant was resorting to falsehood because of her selfish motives

which were kept higher in priority, even at the cost of family life.

However, we may re-emphasise that all is not lost and situation can still

be brought under control if there is a dispassionate and objective

thinking by both the parties, keeping aside their ego. Life has problems. 19

Parties have to understand those problems and to reflect on the reasons

why these problems have arisen leading to such kind of disputes. Both

the parties have also to reflect on the future and to make up their mind

on that basis as to whether it would be in their interest, as well as in the

interest of Pranav to bury the hatched and have a new beginning. We

say no more.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN) NEW DELHI;

MAY 09, 2018.