ANSHUMAN SHARMA Vs. MONICA GUPTA

JUDGEMENT

(1.) IN the ever increasing disputes in the matrimonies the worse sufferers are the children, who not only get deprived of love, care and affection of one of their parent but practically become target for the parties to score over one another in this mad race and obsession of winning possession, exclusive control and custody of the children. The children have practically no role in breaking of the marriage, but he or she suffers. The marital discord sometimes reaches a stage where the parties are unmindful of what psychological, mental and physical impact it has on children. Children whose parents divorce witness negative family interaction prior to a divorce and also experience many life transitions and strained familial relationships after divorce. Marriages that end in divorce typically begin a process of unraveling, estrangement, or emotional separation years before the actual legal divorce is obtained. During the course of the marriage, one or both of the marital partners begins to feel alienated from the other. Conflicts with each other and with the children intensify, become more frequent, and often go unresolved. Feelings of bitterness, helplessness, and anger escalate as the spouses weigh the costs and benefits of continuing the marriage versus separating. For both parents and children, the most difficult and stressful phase of the divorce process is usually the period leading up to and immediately following parental separation and divorce. In addition, the process of unraveling and family dissolution continues, coupled with numerous potentially life -altering transitions for children. The case at hand is a classic example of such a situation where the parents obsessed with the idea of obtaining exclusive control of their child fought bitter legal battles and traversed the corridors of several courts including this court. The present appeal is filed under Section 28 (2) of the Hindu Marriage Act assailing the order dated 4/11/2006 passed in execution case no. 18/2006 filed for execution of decree dated 12/11/2002 passed in HMA no's 340/2002 and 956/2002.

(2.) THE brief facts of the case relevant for deciding the dispute between the parties as set out in the appeal are as under:

(3.) ON 26.4.2004, the petitioner filed a Civil Contempt Petition before this Court, being CCP No.402 of 2004 On 7.5.2004 this Court was pleased to issue notice to the respondent to show why contempt proceedings be not initiated. On 27.5.2004 this Court directed personal presence of the respondent on the next date of hearing, i.e. 14.6.2004 On 14.6.2004 instead of complying with the said direction by personally appearing on 9.6.2004 the respondent's sister (and not the respondent) filed an Application seeking recall of the order dated 27.5.2004 (being CM No.7837 of 2004). The sister of the petitioner also filed an affidavit in reply to the Show Cause Notice, the idea being to somehow scuttle the hearing of 14.6.2004 On 9.7.2004 the Contempt Petition was taken up for hearing and judgment was reserved. On 3.9.2004 by judgment and order dated 3.9.2004 this Court was pleased to dismiss the contempt petition, inter alia, holding that the contempt petition filed by the petitioner was misconceived as this Court was of the opinion that Revision Petition having been dismissed as withdrawn, no contempt lies for violation of the terms of the MOU and also the Revision Petition was not disposed of in terms of the said MOU. The order left the petitioner to seek such redress as may be otherwise open to him in law. The petitioner then, filed Special Leave Petition (C) No. 21153 of 2004 before the Hon'ble Supreme Court seeking leave to appeal against the order dated 3.9.2004 passed by this Court. On 25.10.2004 notice was issued in the SLP and vide order dated 11.4.2005, the respondent was directed to hand over the custody of the daughter to the petitioner for a period of 30 days. The custody of the daughter was given to the petitioner on 29.4.2005 for a period of 30 days. On 25.7.2005 the case was adjourned by 5 months, however, the petitioner was given visitation right to his daughter which were never complied with by the respondent. The Hon'ble Supreme Court however, by a non speaking order dated January 2, 2006 dismissed the aforesaid SLP. Since the appellant did not succeed in enforcing the terms of MOU compliance of the order dated 1.11.2002 in CR No.4 of 2002, whereby Court recorded the undertaking of both the parties to abide by the terms and conditions contained in the MOU pursuant to joint application by the parties under Order 23 Rule 3 CPC first by seeking the remedy under the Contempt of Courts Act and then the appellant on 4.5.2006 by filing the Execution Case No. 18/06 seeking execution of the decree and order dated 12.11.02 passed by Ms. Urmila Rani, Additional District Judge, Karkardooma Courts, Shahdara, Delhi. The respondent filed her reply to the execution petition. The learned Execution Court vide impugned order dated 4.11.2006 dismissed the aforesaid execution petition and the appellant feeling aggrieved with the order dated 4.11.2006 preferred the present appeal.