IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 14.11.2008. CORAM : THE HONOURABLE MR. JUSTICE M.JEYAPAUL Contempt Petition No.357 of 2008 Rajesh Surana Petitioner vs. Rekha Respondent For Petitioner : Mr.T.R.Rajagopal, Senior Counsel for Mr.T.R.Rajaraman For respondent : Mr.K.Bhavadarini ORDER The petitioner S.Rajesh is the husband of the first respondent Rekha. Matrimonial dispute between them has landed in Principal Family Court, Court, Chennai. 2. 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." 3. 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. 4. 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. 5. 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. 6. 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 S.L.P. Therefore, he would submit that no contempt was committed wilfully by the respondent. 7. 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. 8. 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. 9. 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. 10. The learned counsel appearing for the respondent submitted the judgment of the Supreme Court in NIL RATAN KUNDU AND ANOTHER v. ABHIJIT KUNDU (Civil Appeal No.4960 of 2008 dated 8.8.2008) wherein the Supreme Court observed as follows:- " 83. 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. 84. 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." 11. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. ssk. Contempt Petition No.357 of 2008 M.JEYAPAUL, J. The learned counsel appearing for the respondent would submit that the order passed by this court may be stayed for two weeks to enable the respondent to prefer an appeal as against the orders of this court. The court also heard the submissions of the learned Senior Counsel appearing for the petitioner. 2. Stay till 27.11.2008 is granted to attend the Mediation Centre in Tis Hasari Court, Delhi on 25th and 26th November 2008 and also to enable the respondent to prefer an appeal. nvsri/ssk.