Case: MEENAL BHARGAVA Vs. NAVEEN SHARMA

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 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 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18.We have duly considered the submissions of counsel for both the parties. As noted in detail above, both the parties are blaming each 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 consider, in the first instance, as to whether these allegations of the respondent were correct.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 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.