ANSHUMAN SHARMA Vs. MANIKA JAIN

JUDGEMENT

(1.) .Custody of children often becomes the proverbial bone of contention between spouses when temperamental incompatibility or irreconcilable differences, have irretrievably wrecked, domestic peace and harmony forcing them to part company. The present is in that sense no different from other cases where the couple has gone through considerable stress and trauma before they realised that the marriage had broken down for good and all that they had to crave and fight over was peace for themselves and custody of their only child. A decree of divorce by mutual consent and a document that ostensibly settled the issue regarding the custody of the minor daughter born out of the wedlock did not, unfortunately for the parties, bring either peace to them or give quietus to the proceedings in the court. The present contempt petition filed close on the heels of an earlier one is in that backdrop only an upshot of the proceedings that concluded with an order of this Court passed on 1st November, 2002 in Civil Revision No. 4/2002.

(2.) . The husband's case stated in a nutshell is that he had in terms of an order passed by the Court under the Guardian and Wards Act secured the custody of Himangi, their daughter which direction of the Court was challenged by the respondent wife in Civil Revision Petition No. 4/2002 filed in this court. It was during the pendency of the said revision petition that the parties appear to have negotiated an amicable settlement, the terms whereof were reduced in writing in what is described as a Memorandum of Understanding (MOU). The custody of the minor child was in accordance with the said MOU given to the respondent wife subject to the condition that the husband would have temporary custody once in each calendar year for a period of 30 days during the time the child was free from the school in vacations. The grievance of the husband now is that in accordance with the terms settled between the parties, the husband was entitled to the temporary custody of the child, but the respondent wife has removed the child to Yangon in Myanmar where she is posted as one of the officers in the Embassy of India. The respondent has not despite demands and the terms mutually settled between the parties transferred the custody of the child to the petitioner either at Calcutta or Bangkok to which places the husband was ready to go to take such custody his request for visa to go to Myanmar having been rejected. The husband's further case is that since the Memorandum of Understanding was filed by the parties before the Court and since the parties had agreed to abide by the terms and conditions stipulated therein, the failure of the respondent wife to adhere to the terms settled and stipulated in the said Memorandum amounts to disobedience of the undertaking given to the Court hence punishable in the contempt jurisdiction of this Court.

(3.) The respondent wife has filed detailed objections in which it is inter alia stated that the respondent has not committed any disobedience of the order issued by this Court and that the Memorandum of Understanding even when presented to the Court in Civil Revision Petition No. 4/2002, the Court had not passed any order in the said revision petition in terms of the said Memorandum. On the contrary, the Court had dismissed the revision petition filed by the respondent as withdrawn. It is also pointed out that the Memorandum of Understanding executed between the parties itself envisaged that in the event of any violation of any stipulation contained in the said Memorandum, the party aggrieved of any such violation would be entitled to approach the Court of competent jurisdiction for appropriate relief. The petitioner's remedy in the light of the said stipulation lay in initiation of appropriate proceedings before a competent court under the Guardian and Wards Act and not by way of proceedings in the contempt jurisdiction of this Court especially when the respondent has not committed any such contempt.