Meenal Bhargava vs Naveen Sharma

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 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:

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.

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.

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.

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

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:

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.

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.

MAY 09, 2018.