Supreme Court: While hearing a contempt petition, the Court had found the contemnor/respondent guilty of contempt in the previous order of the Court dated, 16-01-2023, but the sentence was postponed by the Court to give a last opportunity to the contemnor to make amends. However, the Division Bench of Sanjay Kishan Kaul and Abhay S. Oka*, J., found that the respondent had not shown any signs of remorse and the Court said that the respondent had scant respect for the Orders of the Court. The respondent was sentenced to imprisonment of six months along with fine of Rs. 25 Lakhs.
This Contempt Petition was the outcome of an unfortunate matrimonial dispute between the petitioner-wife and the respondent- husband / contemnor. They have a male child, about 12 years old. After the marriage, the petitioner started residing with the respondent who was already a resident of the USA since 2004. According to the petitioner, after the birth of their child, both the petitioner and the son were sent to Canada where the respondent’s mother and sister were residing. The petitioner’s case is that on 27-07-2013, she along with her son were thrown out of the house which compelled her to come to India in August 2013 along with her son.
Subsequently, the respondent adopted a remedy before the Canadian Court for the custody of his son. An ex-parte order granting sole custody to the respondent was passed by the Court concerned. Even a warrant was ordered to be issued against the petitioner. The respondent adopted a remedy in India by filing a writ petition seeking a writ of habeas corpus to produce the child before the Rajasthan High Court.
Later, the respondent filed a contempt petition before the High Court alleging that the petitioner had committed breaches of the settlement order between the parties. The High Court convicted the petitioner for committing contempt. Thereafter, the petitioner approached the Court challenging the High Court’s decision. The Court, while setting aside the order of conviction, ordered the revival of the disposed of habeas corpus petition.
As India is not a signatory to the Hague Convention, on the application made by the petitioner, the Court permitted the petitioner to get the order of the Court dated 5-04-2021 mirrored by the competent Court in Canada. However, the Court concerned did not mirror the order of the Court due to the respondents claim that he had signed the documents under duress. In terms of the order of the Court dated 05-04- 2021, the respondent took the minor son with him to Canada and brought him back, albeit belatedly.
The respondent took his son with him to Canada. However, he had failed to bring back his son to India even to date. As the respondent did not bring back the child, the present contempt petition was filed on 8-07-2022. The main grievance in the contempt petition was about the failure of the respondent to bring back the child to India in terms of the settlement.
In the previous order of the Court, the Court noted that in the Circuit Court of Cook County, Illinois, the respondent had stated that the Court was exercising improper jurisdiction based on the allegation of abduction of the child. Thus, the Court viewed that the respondent had defied his own undertaking recorded in the order dated 2-09-2022 within twelve days of giving the undertaking. The Court also noted that the respondent had opposed the request for mirroring the order of the Court and therefore, the said request was denied by the Court concerned. Thus, at every stage, the respondent had defied the orders of the Court and committed breaches of the undertakings given by him to the Court from time to time. The breaches committed by the respondent were willful as can be seen from his conduct. As a result of the breaches committed by the respondent, the petitioner has been deprived of the custody of her son though she is entitled to the custody in terms of the order dated 11-05-2022. Therefore, the violations made by the respondent are of a very serious nature.
Thus, the Court held the respondent guilty of civil contempt in the previous order of the Court.
The Court noted that in terms of the undertaking given by the respondent and the orders of the Court passed from time to time, he was under an obligation to bring back the child to India on 1-07-2022. the Court also noted the conduct of the respondent showed that he never had any intention of bringing the child back to India.
Further, the Court noted that the Circuit Court of Cook County, Illinois had appointed a Guardian Ad Litem for the child as the child was sexually abused while he was staying with the petitioner in India, a forensic investigation is in progress in the USA, and therefore, the child cannot be brought back to India until the investigation is over.
The extent of contumacious conduct of the respondent was indicated by the following facts:
a. The child holds a USA passport, which expired long back, and the respondent never applied for renewal of the said passport. The Court said that the respondent has not placed on record any constraint put on him either under any law of USA or any order of the competent Court which prevented him from applying for renewal or extension of the passport of the minor.
b. The respondent never applied to the Court for a grant of extension of time to bring back the child.
c. The respondent always acted contrary to the statement made by him on more than one occasion that he has subjected himself to the jurisdiction of the Court. Moreover, he pleaded in the Courts in USA that he has not subjected himself to the jurisdiction of the Court
d. Even after the expiry of three months from the date of the order holding him guilty of contempt, he did not show any remorse in any manner.
Further, the Court noted that the minor son was talking about his ancestral house being sold. The Court observed that it was gross error on the part of the contemnor to talk to the child about pending litigations either in India or Canada. The Judge of the Circuit Court directed the contemnor that was “truly and utterly” prohibited from discussing the litigations in India, USA and Canada with his minor son.
The Court said that the respondent had shown scant respect to the judicial proceedings of the Court. The respondent went to the extent of opposing the request for mirroring the order of the Court, which resulted in the denial of the said request by the Foreign Court. Further, the Court said that due to the misrepresentation by the respondent, the Foreign Court did not honor the principle of comity of Courts. The act of denying the fact that he voluntarily submitted to the jurisdiction of the Court and his conduct of opposing the request for the grant of mirroring order amounts to interference with the administration of justice and obstructing the administration of justice.
The Court also noted another disturbing feature of the conduct of the respondent before the Circuit Court, wherein he submitted that the said Court should make sure that an order is passed that the questions and answers in the proceedings should not be used in any proceedings in India. He also tried to warn the Guardian Ad Litem, that based on the proceedings, he can be summoned by Indian Courts.
Thus, the Court said that the acts and omissions of the respondent amounts to both civil and criminal contempt, which calls for strict action against him.
The Court also observed that the power of the Court to punish a person for contempt is unrestricted by the Contempt of Courts Act, 1971.
Thus, the Court issued following directions:
The contemnor was sentenced to undergo simple imprisonment for six months.
He shall pay a fine of Rs. 25 lakhs within a period of six months from the date of judgment. The fine amount shall be deposited with the Registry of the Court.
On the respondent failure to pay the fine within the stipulated time, he shall undergo a further sentence of simple imprisonment for two months.
After the fine amount is deposited in the Court, the same shall be released to the petitioner, who will be under an obligation to use the said amount only for the welfare and benefit of the minor son.
The Government of India as well as the Central Bureau of Investigation shall take all possible and permissible steps to secure the presence of the respondent in India with a view to ensure that he undergoes the sentence and pays the fine.
[Meenal Bhargava v. Naveen Sharma, 2023 SCC OnLine SC 641, Decided on 16-05-2023]