Delhi High Court: In a case wherein the petition was filed under Sections 12 and 14 of the Contempt of Courts Act, 1971 (‘Contempt Act’) seeking the relief to punish the respondent for the wilful disobedience of the Order dated 29-11-2021 passed by this Court, Chandra Dhari Singh, J., opined that merely not providing consent for moving the Second Motion petition for divorce in itself would not amount to contempt of the Court’s order or direction, since the action/inaction on the part of the respondent could not be considered to fall under the “wilful disobedience” which was an indispensable requirement for making out a case for civil contempt. The Court further opined that the respondent had the statutory right to reconsider his decision and consent for obtaining a decree of dissolution of marriage during the intervening period and hence, an exercise of his rights could in no manner be categorized as wilful disobedience.
Background
In the present case, the marriage between the parties was solemnized in 2013, and out of the wedlock two children were born, a daughter and a son. However, subsequently the parties started to live separately since 7-10-2020 due to temperamental issues between them. During the time the parties were separated, several litigations were initiated between them. In the Guardianship Petition, the respondent had filed an application under Section 12 of the Guardian and Wards Act, 1890 seeking an interim arrangement regarding the custody and visitation rights of the children. In the said application, the Family Court passed the order dated 9-10-2021, whereby the application was allowed. Against the said order, the petitioner preferred an appeal and the Division Bench of this Court in the said appeal suggested the parties to explore the possibility of an amicable settlement.
Consequently, the parties were able to reach an amicable conclusion and a Settlement Agreement thereto was entered into between the parties and the parties mutually decided to withdraw all pending litigations against each other and to file for divorce by mutual consent under the Hindu Marriage Act, 1955. The claim raised by the petitioner before this Court was that, in accordance with Clause 10 of the Settlement Agreement and the order of the Division Bench of this Court binding the parties to the Settlement Agreement, the parties were to file a joint application for waiver of the intervening statutory period of six months, however, despite several attempts to persuade the respondent to move the Second Motion, the respondent was not honouring the terms of the Settlement Agreement and the order passed by the Division Bench this Court.
Analysis, Law, and Decision
The Court noted that the term “civil contempt” had been elaborated to include “wilful disobedience” of any judgment, decree, direction, order, writ, or other process of court and a wilful breach of any undertaking given before and to a court, as per the terms laid under Section 2(b) of the Contempt Act. The Court opined that a person was held to be in civil contempt when he was found to have been “wilfully disobeying” any order of the court or “wilfully breaching” any undertaking given by him to the court.
The Court noted that it was not the case of the petitioner that the respondent had committed contempt of Court during hearing before any Court or in its presence. The entire case of the petitioner was built on the Settlement Agreement entered into between the parties followed by the order of the Division Bench. Hence, the Court opined that it was clear that the case of the petitioner did not fall within the scope of Section 14 of the Contempt Act and the question which, thus, remained was “whether the inaction of the respondent in not giving his consent for moving the petition for Second Motion for divorce amounted to contempt of court as per the exhaustive provisions under the Contempt Act?”.
The Court relied on Dinesh Kumar Gupta v. United India Insurance Co. Ltd., (2010) 12 SCC 770, wherein the Supreme Court emphasized on the principle that “the court adjudicating a contempt petition shall be satisfied that there was a “clear” violation of the order passed by it and the element of will and intention excluded casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order. Moreover, a case for civil contempt would not lie against a party if the order alleged to have been disobeyed itself provided scope for reasonable or rational interpretation of an order or circumstance, which would depend on the facts and circumstances of each case ”.
The Court opined that a derogation of the terms of a settlement agreement or an undertaking, might not by default hold the derogating party in contempt. The Court relied on Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, wherein the Supreme Court opined that “the period during which the Court holds an inquiry into the veracity and authenticity also provides an opportunity to the parties to contemplate confirmation or withdrawal of the consent furnished by it for the dissolution of marriage. While rightly appreciating the intent, objective and the bare language of the Section, it was held that there was nothing in the said provision that prevented the contemplation to change mind regarding dissolution of one’s marriage ”.
The Court opined that in a petition for divorce by mutual consent, the key words were “mutual consent” and the crucial prerequisite of “mutual consent” must be expressed before the Court so as to enable a proper consideration before passing the decree dissolving the marriage and hence, the discretion to waive the statutory period shall also operate and be considered while observing the indispensable element of “consent”. The Court further opined that “the very foundation of Section 13B of the Hindu Marriage Act, 1955 was based upon the key element of “consent” which might neither be compelled to be waived nor be compelled to be observed. The consent of the parties, either or both, in such cases shall be considered the last word. The liberty to furnish, withdraw, and contemplate or reconsider operates and lies with the parties from the day of filing the petition till the day decree was passed. The core objective and purpose of the provision shall fail if a party was coerced to provide its consent for obtaining a decree of dissolution of marriage under Section 13B of the Hindu Marriage Act, 1955”.
The Court opined that merely not providing consent for moving the Second Motion petition in itself would not amount to contempt of the court order or direction, since the action/inaction on the part of the respondent could not be considered to fall under the “wilful disobedience” which was an indispensable requirement for making out a case for civil contempt. The Court further opined that the law itself protected the respondent in such situation and circumstances where he might reconsider or withhold his consent for the statutory time period provided to him from six moths to eighteen months, and there was nothing in the provision which penalized the respondent for not furnishing his consent for motion or for not applying for a waiver of the statutory period.
The Court held that it did not find any reason to exercise its powers and initiate contempt proceedings against the respondent for the sole reason of him exercising his statutory right of observing the intervening period before moving the Second Motion for divorce and there was nothing to show that the respondent had wilfully disobeyed any order or directions of the Court. Thus, the Court dismissed the present petition.
[Vineeta Daulet Singh v. Bikkrama Daulet Singh, 2023 SCC OnLine Del 5333, Order dated 10-08-2023]
Advocates who appeared in this case :
For the Petitioner: Satakshi Sood, Yash Srivastava, Advocates
For the Respondent: Prabhjit Jauhar, Rosemary Raju, Ajunee Singh, Gauri Rajput, Bhanu Thakur, Ranveer Talwar, Advocates
