IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 Con.Case(C).No. 1451 of 2010(S) ------------------------------- AGAINST THE ORDER IN IA.NO.3481/2010 IN OP NO.319/2006 OF FAMILY COURT, ERNAKULAM .................... PETITIONER(S): --------------- AJAY KAUSHIK, AGED 39 YEARS, S/O. N.K.KAUSHIK, F-35, KAMALA NAGAR, NEW DELHI 110 007, NOW AT DOOR NO.27/3395-F , CITY SQUARE, PERUMANOOR PO, KOCHI-15. BY ADV. SMT.ANITHA MATHAI MUTHIRENTHY RESPONDENT(S): --------------- NILIMA, AGED 38 YEARS, D/O.GAUTAM, SHILPA, RAJAWADI, CO-OPERATIVE HOUSING SOCIETY GHATKOPER, EAST MUMBAI 400077. ADV. SRI.S.V.BALAKRISHNA IYER SR. FOR R1 SRI.T.X.SHAM JOSEPH FOR R1 SMT.SANDHYA VENI FOR R1 SRI.N.A.SHAJI FOR R1 THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON 05/09/2011 DELIVERED THE FOLLOWING: COC.1451/2010 APPENDIX PETITIONER'S EXHIBITS: ANNEXURE-A1 COPY OF THE ORDER DT 21.3.2006 BY THE FAMILY COURT, ERNAKULAM IN OP NO.319/2006. ANNEXURE-A2 COPY OF IA NO.3481/2010 DT 19.8.2010. ANNEXURE-A3 COPY OF THE JUDGMENT DT 28.10.2010 IN OPFC.387/2010. ANNEXURE-A4 COPY OF THE ORDER IN IA.3481/2010 DT 6.11.2010. ANNEXURE-A5 COPY OF THE TRAIN TIACKET DT 11.11.2010. ANNEXURE-A6 COPY OF THE ETURN TICKET DT 12.11.2010. ANNEXURE-A7 COPY OF THE FLIGHT TICKETDT 15.11.2010. ANNEXURE-A8 COPY OF THE STATEMENT DETAILING THE TRANSFER OF MONEY. ANNEXURE-A9 COPY OF THE LETTER DT 18.4.2011. ANNEXURE-A10 COPY OF THE ENVELOPE OF THE LETTER. ANNEXURE-A11 COPY OF THE JUDGMENT IN WPC.218/2011. ANNEXURE-A12 COPY OF THE TRAIN TICKET DT 21.4.2011. ANNEXURE-A13 COPY OF THE IA NO.8206/2011. RESPONDENT'S EXHIBITS: ANNEXURE-R1(A) COPY OF THE AGREEMETN DT 13.3.2006. ANNEXURE-R1(B) COPY OF THE ATTESTED TRANSLATION OF FIR DT 13.11.2010. ANNEXURE-R1(C) COPY OF THE ORDER DT 10.5.2011. ANNEXURE-R1(D) COPY OF THE ORDER DT 17.5.2011. ANNEXURE-R1(E) COPY OF THE ORDER DT 26.5.2011. ANNEXURE-R1(F) COPY OF THE ORDER DT 26.5.2011. ANNEXURE-R1(G) COPY OF THE ORDER DT 30.5.2011. ANNEXURE-R1(H) COPY OF THE ORDER DT 0.5.2011. // True Copy // P.A. To Judge J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. ````````````````````````````````````````````````````````````` Contempt Case (C) No. 1451 of 2010 ````````````````````````````````````````````````````````````` Dated this the 5th day of September, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Antony Dominic, J. This petition under the Contempt of Courts Act has been filed alleging that respondent has wilfully disobeyed the order dated 06.11.2010 of the Family Court, Ernakulam, directing that custody of the minor child Shreya be given to the petitioner from 10 AM on 10.11.2010 till 4 PM on 19.11.2010. 2. It is stated that, for dissolution of the marital relation between the petitioner and the respondent, O.P.No.319/2006 was filed under Section 13B of the Hindu Marriage Act on the file of the Family Court, Ernakulam. 3. In the said proceedings, I.A.No.3481/2010 was filed by the petitioner, seeking temporary custody of the COC No.1451/2010 : 2 : minor child during Diwali vacation from 30.10.2010 to 21.11.2010. In that IA, the Family Court passed Annexure-A4 order dated 06.11.2010, directing that the petitioner be given custody of the minor child during the period from 10.11.2010 to 19.11.2010. It is his case that, in pursuance to the said order, to get the child in his custody, he went to Mumbai where the respondent and the child live and that the respondent and her father did not even permit the petitioner to see his child. It is alleged that, on account of the refusal of the respondent, he could not get custody of the child and that he had to return to Kerala. This conduct of the respondent is alleged to be in wilful disobedience of Annexure-A4 order of the Family Court and on this basis, this petition has been filed seeking to initiate proceedings under the Contempt of Courts Act against the respondent. 4. Counter affidavit filed by the respondent discloses that, according to her, the petitioner came to her residence COC No.1451/2010 : 3 : on 13.11.2010 and demanded custody of the child. In so far as it is relevant, the counter affidavit reads as under:- “ On 13.11.2010 at about 10 a.m. the petitioner came to the residence of the respondent and demanded the custody of the child. Neither this respondent nor the parents refused to hand over the custody of the child to the petitioner as alleged, but the child refused to go with him crying her heart out. Refusal of the child to go with the petitioner infuriated him and he manhandled the father of the respondent alleging that the child had been brain- washed by the respondent and her parents. Also, he had not taken any effort to take the child forcibly, since his only intention was to cause trouble to this respondent. Thereon, complaint had been lodged with the Mumbai police by the father of the respondent and the police had registered FIR dated 13.11.2010 in respect offences punishable under sections 323, 504 and COC No.1451/2010 : 4 : 506 IPC. True copy of the attested translation of the said FIR is produced herewith and marked as Annexure-R1(b). It is in such circumstances, the petitioner could return to Kerala on 15.11.2010 only. These facts are cleverly suppressed by the petitioner and the contempt of court case has been filed by him in his attempt to wreck vengeance against this respondent and cause harassment. This respondent is ready to produce her minor child before this Honourable court to testify the veracity of the statements made by her as regards the refusal on the part of the child to go with the petitioner and the consequent scenes created by the petitioner.” The respondent has filed reply affidavit and further affidavits have been filed by the parties. 5. We have heard the counsel for the petitioner and also the respondent. On hearing the counsel at length, it was found that in a dispute between the parents, a minor COC No.1451/2010 : 5 : child has become a victim. In a dispute of this nature, the primary duty of Court being the welfare of the minor, this Court passed order dated 25.07.2011, directing that the respondent and the minor child Shreya should be present in Court. Accordingly, the minor was produced before this Court on 09.08.2011 and we interacted with the child at length. During the course of our conversation, the minor child made it clear to us that she was not interested to spend time with the petitioner and according to her, she is comfortable with her mother, the respondent. 6. Therefore, if this Court is to compel compliance of the order passed by the Family Court, necessarily an unwilling child will have to be forced to be in the custody of the petitioner, whose company the child does not cherish. Such an order cannot be in the welfare of the minor child and on the other hand, that will only cause damage to a child of tender age. Further, having seen the reaction of the COC No.1451/2010 : 6 : child, we are convinced that the version given by the respondent that when the petitioner reached her house the child refused to go with the petitioner is probable. In such circumstances, we are unable to find that the respondent has wilfully disobeyed the order of the Family Court warranting initiation of proceedings under the Contempt of Courts Act against her. 7. The counsel for the petitioner relied on the Apex Court judgment in K.G.Derasari and another Vs. Union of India and others [2001 KHC 1261] and contended that, in an application under the Contempt of Courts Act, this Court need only be concerned with the question whether the order of the Court has been complied with. We have no doubt about the correctness of the proposition. But, at the same time, proceedings will be justified only if wilful disobedience is found against the respondent and in this case, we have found that there is no wilful disobedience of the order of the COC No.1451/2010 : 7 : Family Court. In such circumstances, we do not see any relevance to the principle canvased by the learned counsel. For the aforesaid reasons, we do not find any merit in this petition and, therefore, the contempt case will stand dismissed. Sd/- (J.CHELAMESWAR, CHIEF JUSTICE) Sd/- (ANTONY DOMINIC, JUDGE) aks/20/08 // True Copy // P.A. To Judge