Jude Vs. Hannah Grace Jude & Ors  Insc 330 (30 July 2003)
Shah & Arun Kumar. Shah, J.
petition for Contempt is filed by the applicant-husband with a prayer for
punishing the respondents – wife and mother-in-law for the breach of undertaking
given by them and also for breach of directions issued by this Court.
order dated 15th September, 1998, this Court permitted respondent no.1- wife to
take the child to USA on the condition that respondents would file undertaking
before the Court to the effect that wife will appear before the family court as
and when required, and it would be open to the applicant-husband to visit the
child in USA after making prior arrangement with the wife.
brief facts of this case are that — applicant and respondent no.1 were married
on 7.2.1989 at Hyderabad according to Christian rites. Soon
after marriage, the couple left for America. On 2.5.1997, a son was born out of this wedlock. Because of strained
relationship between the wife and husband, both started living separately. Wife
approached the Circuit Court, Maryland in USA and got issued a protective order against the
husband on condition that the child will not be taken out of the jurisdiction
of that court. The wife, however, brought the child to India on 14.4.1998 and after keeping him
in the care and custody of her mother – respondent no.2, she left India. On knowing this, husband dashed
back to India on 23rd April 1998 and on 30th April, 1998
he took over the custody of the child from respondent no.2 for celebrating the
birthday of the child which was on 2.5.1998.
on 1.5.1998, the husband filed O.P. No.300 of 1998 before the Family Court at Hyderabad under Sections 7, 10 and 25 of the
Guardians and Wards Act 1890, seeking an order appointing him as guardian of
the minor Child. Respondent No.2-grand-mother also moved the same Court for
restoring the custody of the chi ld to her.
Family Court by order dated 19.8.1998 dismissed the application of the husband
and directed him to restore the custody of child to the grandmother. Aggrieved
thereby, the husband filed Civil Revision Petition No.3229 of 1998 before the
High Court of Andhra Pradesh at Hyderabad, which was allowed and the custody of the child was given to the
husband with visiting rights to the wife.
aggrieved by the said order, respondents No.1 and 2 filed S.L.P. No.15185 of
1998 before this Court. This Court by order dated 15.9.1998 granted interim
custody of the child to the wife with permission to take the child to USA on
the condition of furnishing a written undertaking to bring the child back to
India and disposed of the matter by passing the following order:— "Special
to the age of the child, the interim custody of the child is given to the Ist
appellant – mother. She will be at liberty to take the child to USA on
condition that both the appellants file undertakings before this Court on or
before 25th of September, 1998 to bring the child back to India when so ordered
by the Family Court and the Ist appellant will also file an undertaking to the
effect that the Ist appellant will appear before the Family Court as and when
required by the Family Court. If during the interregnum the respondent wants to
visit the child in USA, he can do so after making prior
arrangement with the Ist appellant to see the child.
of the child should be released on the filing of the undertaking. The impugned
order of the High Court is accordingly set aside. The Family Court should
dispose of the matter as expeditiously as possible, preferably within 18
months. The appeal is disposed of accordingly." After passing of the
aforesaid order, both the respondents submitted their undertakings by way of
affidavits in this Court. The relevant portion of the undertakings is as under:
— "By Respondent no.1 (Wife) As directed by this Hon'ble Court in the
order dated 15.9.1998, I hereby undertake to bring the child back to India when
so ordered by the Hon'ble Family Court and further undertake to appear before
the Hon'ble Family Court, Hyderabad, as and when required by the Hon'ble Family
Respondent no.2 (Mother of Respondent No.1) As directed by this Hon'ble Court, I undertake to bring the child
back to India as and when required by the Hon'ble
Family Court, Hyderabad." Meanwhile, respondent no.1
filed case No.5249 of Family Law before the Circuit Court for Montgomery country, Maryland inter alia for divorce and custody
of the child.
the Family Court at Hyderabad proceeded with the trial and
examined the husband. The matter was kept for evidence on behalf of the wife
but she failed to appear before the Court on 7.2.2000. Various orders were
passed by the Family Court, but she remained absent from the proceedings.
Finally, on 11.4.2000, the Family Court passed the following order:—
husband is appointed as the guardian of the minor child;
wife is directed to restore the custody of the minor child to the husband
within one month from the date of the order;
wife is permitted to take interim custody of the minor child whenever she comes
to Hyderabad and hand over the minor to the
husband while she leaves the country;
wife is not entitled to remove the custody of the minor child out of the
jurisdiction of the Family Court at Hyderabad at any time;
husband is directed not to handle the amounts lying in FDR of Rs.5,00,000/-
including the interest accrued thereon till the minor attains the age of
aggrieved by the aforesaid order, the respondents/ contemnors filed appeal
before the High Court of Andhra Pradesh, which is still pending.
the husband moved this Court for initiating contempt proceedings against the
respondents / contemnors for violating the undertakings given by them before
this Court and the order passed by this Court in Civil Appeal No.4797 of 1998.
in the execution petition filed before the Family Court, the Family Court
passed an order holding that the failure to restore the custody of the minor
child to the husband amounts to breach of the undertakings given and ordered
the arrest of respondent no.2 (mother of respondent no.1) to serve civil
imprisonment for a period of six months. Appeal filed by respondent no.2
against the above arrest order before the High Court was also dismissed.
Against that order, she has filed SLP No.22990 of 2001 before this Court.
instant Contempt Petition was first listed on 28.9.2000 and noticed was issued
for 8.1.2001. Respondent no.2, mother of respondent no.1, was present. She was
directed to abide by the undertaking given to this Court. On the next date,
i.e. on 12.3.2001, learned counsel for respondent no.1 sought eight weeks time
so as to enable her to remain present with the child. Respondent no.2 was
directed to deposit her passport with the Registrar (Judicial). On 8.5.2001,
respondent no.1 did not appear but learned counsel for respondent no.1 assured
that she would remain present before this court with child on 6th August, 2001. On 6th August 2001 also respondent no.1 remained absent. On that day, at the
instance of applicant, leave was granted to add the Union of India as a party
respondent. Thereafter, on 17th September, 2001, the Court directed the concerned officer of Union of India to write a
letter to the employer of respondent no.1 about the undertaking given before
the Apex Court and breach of undertaking and also
the fact that despite the service of notice, she was not remaining present
before this Court.
On 7th January, 2002, Mr. Y. Raja Gopala Rao, Advocate
appeared on behalf of respondent no.1 and stated that he would file necessary
reply. On 6th February,
2002 an order was
passed to the effect that respondent nos.1 and 2 have committed breach of
unconditional undertakings and notice was issued as to why they should not be
punished for contempt of this Court. Relevant part of the said order is as
under:— "In our view, considering the unconditional undertakings given by
the respondents to this Court there is no question of not taking further action
against them for not bringing the child back to India as directed by the Family
Court. In this view of the matter, prima facie, we are of the view that
respondents have committed the contempt of this Court and appropriate action is
required to be taken under the Contempt of Courts Act for committing breach of
we direct that notice be issued as to why they should not be punished for
contempt of this Court." When the matter came up for hearing on 6th March, 2002, at the request of the learned counsel
for the respondents, the matter was further adjourned for four weeks. On 3rd April, 2002, counsel appearing for respondent
no.2 stated that respondent no.1 would remain present with the child without
fail, on 30th July,
2002. On 30th July, 2002, matter was again adjourned. On 29th August, 2002, the Court directed that respondent
no.1 shall remain present before this Court with her child on 13th November, 2002. On 14th November, 2002, respondent no.1 remained absent and, therefore,
direction was issued to the Union Government to take necessary steps for
securing her presence with child in this Court. Thereafter, matter was
repeatedly adjourned to see that the wisdom prevails with respondent no.1 to
abide by the undertaking given to this Court. Subsequently, respondent no.1
filed an affidavit on 13th
November, 2002 wherein
she has stated that Maryland Circuit Court has granted full custody of the
child to her in October, 2000 and that her job precludes her from being able to
travel to India. She has further stated that even
though she was unable to appear in person, she always retained a legal
representative on each and every date of hearing of the case and submitted that
taking into consideration her previous affidavits, petition against her be
dismissed. Finally, in the affidavit which was tendered by her on 6th May,
2003, it is stated that petitioner had threatened her in past by saying that he
is going to show her how he intends to use the Indian Courts to get back at
her, and it is her belief that her husband is now using the system against her
time of hearing, written submissions were filed by the parties. It is the
contention of the learned counsel for the applicant that breach of undertaking
given before this Court by the wife amounts not only to a civil contempt but
also to criminal contempt. It is submitted that this Court's jurisdiction under
Articles 129 and 142 of the Constitution is not restricted by the Contempt of
Courts Act, 1971 and the Court may award even higher punishment than which is
provided under the Act. It is the submission of learned counsel for the
applicant that one of the primary objects of a proceeding for contempt is to
see that the order or undertaking which is violated by the contemnor is
effectuated. Thus, besides punishment, the Court may issue such directions to
restore the custody of the child to the applicant-husband.
to be stated that High Court had directed that the custody of the child be
given to the husband because respondent No.1 gave the custody of the child to
her mother and that she was staying in United States and serving in the World Bank at Washington, D.C. The Court also considered the age of the child who at the
relevant time was of one year and four months and the fact that as respondent
no.1 was serving and staying alone in United States, it would be difficult for her to take care of the minor
child. To see that the aforesaid order is set at naught, respondent nos.1 and 2
gave unconditional undertakings to this court and obtained favourable order.
the facts stated above it is apparent that the attitude of the contemnors is
without any doubt defiant and contemptuous. They were given custody of the
minor child on the condition of filing undertakings before this Court to bring
the child back to India when so ordered by the Family
Court. Respondent nos.1 and 2 have played with the Court, by giving
unconditional undertakings for securing the custody of the child. It is true
that respondent no.2, the mother of respondent no.1 has stated before this
court that respondent no.1 is now not abiding by the instructions given by her
to produce the child before this Court and the Family Court.
it is also clear from the conduct of respondent no.1 that she has no regard for
the notices issued by this Court. If the notice issued by Apex Court of this
land is willfully disobeyed, it would send a wrong signal to everybody in the
country. It is a sad experience that due regard is not shown even to the
we hold that respondent nos.1 and 2 are guilty for committing contempt of this
Court. Further, we do not think that this is a fit case for showing mercy as
contended by learned senior counsel, Ms. Indira Jaisingh, appearing on behalf
of respondent no.2.
counsel for respondent no.2 further submitted that respondent no.2, who is aged
about 65 years, has taken enough steps to secure the presence of respondent
no.1 and to abide by the undertaking given by her. On the question of
punishment, learned senior counsel submitted that in any case considering the
age of respondent no.2, sentence of imprisonment may not be imposed upon her.
In our view, even though respondent no.2 has played major part in the aforesaid
episode, considering her age and the fact that she has an old husband to look
after, we think that imposition of fine would meet the ends of justice.
a fine of Rs. 50,000/- is imposed upon her, in default three months simple
imprisonment. It is also ordered that her passport would be seized for a period
of five years.
respondent no.1 considering the fact that she is well educated, serving in
prestigious institution, namely, the World Bank and her totally defiant
attitude, we do not think that this would be a fit case for taking a lenient view
and not imposing sentence of imprisonment. Even though she does not deserve
mercy because of her motivated behaviour yet we impose only three months simple
imprisonment and a fine of Rs.50,000/- and in default of payment of fine, she
shall further undergo simple imprisonment for one month.
to be paid within one month.
– Union of India is directed to take appropriate steps to ensure compliance of
this order qua respondent No.1.
Petition stands disposed of accordingly.