RANJAN KUMAR GHOSE Vs. DEBARATI GHOSE

JUDGEMENT

(1.) THE applicant is the petitioner in Appln. No.7102 of 1994 in which he has prayed for an order of interim custody of Minor Rahul Kumar Ghose with a direction to the respondent to hand over the minor during school holidays and weekends pending disposal of the original petition.

(2.) AFTER due enquiry giving opportunity to the respondent to file a counter, an order has been passed by this Court on 7.3.1995. In the said order, it has been directed that the learned Advocates for the applicant and the respondent will have to decide the place where the custody of the boy could be handed over by the respondent to the applicant either in their presence or in the presence of their representatives and vice versa, on every holidays and weekends. A direction has also been given to the respondent to give the custody of the minor to her husband on every Sunday at about 8 a.m., and take him back on the same day at 6.30 p.m.

(3.) THE learned counsel appearing for the applicant would argue that when the order of this Court is specific in stating that the minor should be collected from a place which is to be fixed by consultation of the Advocates of either side, the respondent has requested the petitioner to come and collect the boy at her residence and it is a gross disobedience of the order of this Court. THE learned counsel appearing for the respondent would on the other hand argue that it is only on account of the fact that the minor was not willing to go to the houses of any advocate, the petitioner has been requested to come and collect the boy from the house of the respondent. It is also argued by the learned counsel that in the O.S. Appeal preferred by the respondent, the order of this Court has been modified to the effect that the minor need not be disturbed every week and it is enough if the custody of the boy is handed over during vacations and during summer vacation of the school, the boy was with the petitioner and it cannot be stated that the respondent has committed any disobedience. THE. learned counsel appearing for the applicant has fairly conceded that the minor was with the petitioner during the summer holidays of the school. This is an unfortunate case in which the parents are fighting for the custody of their minor son. It is no doubt true that this Court has passed an order on 7.3.1995 directing that the boy should be brought to a place fixed by consensus of the advocate from where the petitioner should take him to his house. It has been brought to the notice of this Court that subsequently, the minor was entrusted to the custody of the petitioner in the Ashtalakshmi Temple at Besant Nagar since the minor was not willing to go to the house of any advocate and it cannot be stated that it is a wilful disobedience of the orders of this Court. In order to establish that the respondent has committed Contempt of Court, it must be established that there is a wilful disobedience of the order of this Court by the respondent. In the present case, it cannot be stated that respondent has wilfully disobeyed the order of this Court by stating that the minor could be collected from her residence by the petitioner. It may be noted that the custody of the minor was entrusted to the petitioner in the temple. Contempt proceedings cannot be invoked by the parties to a litigation to vindicate their personal vendetta. THE court also cannot consider minor acts said to have been committed by a contemnor is a gross disobedience of the order of the court. THE contemnor in a contempt application is not entitled to all the defences which are available to an accused person in a criminal case. When we approach the case on hand, bearing these principles in mind, taking any action against the respondent, under Contempt of Courts Act would only amount to the court considering even a very minor act on the part of the respondent as a gross violation of the order passed by this Court. I am of opinion that the court has to be magnanimous in considering the rival contentions of both parties while deciding the question whether the contemnor has committed an act of gross disobedience. If such a magnanimous approach is made. I am of opinion that the present application by the petitioner against the respondent cannot be said to be an application taken out by the applicant for upkeeping the prestige, decorum and dignity of the court. I can even go to the extent of saying that it is only an effort attempt made by the applicant to vindicate his personal vendetta against the respondent invoking the provisions of Contempt of Courts Act. I am of opinion that it cannot be approved. Considering all these aspects, I am of opinion that the applicant has failed to establish that the respondent has committed any gross disobedience of the order of this Court in order to hold that the respondent has committed any contempt of court. In that view, I am of opinion that the application is without merits.