Thursday, 10 May 2018

Whether wife can be imprisoned if she fails to obey decree for restitution of conjugal rights?

There is another way of looking into the matter. The consent terms on
which the parties settled the matter contained an important part of
agreement, namely, both the parties decided to live together again. This
happened in the proceedings which essentially related to the custody of
child. No doubt, when the parties agreed to resume the matrimonial
relations and decided to live again as husband and wife, the problem of
custody of Pranav got automatically solved thereby as it brought about
an ideal situation where Pranav could have the company of his both the
parents. Unfortunately, this did not materialise. In a case like this
whether the High Court could force the appellant to join the company of
the respondent and live with him, if he had decided for certain reasons
not to do so? Even when a decree of conjugal rights is filed by a
competent court of law in favour of one of the spouses, such a decree
cannot be executed and the other spouse who is directed to resume the
conjugal relations, cannot be forced to do so. It is a different matter that
for not obeying such a decree, other consequence follow including right
to the decree holder to seek divorce. When that is the position even in
respect of a decree passed by competent court of law forcing the
appellant to join the company of the respondent and on her failing to do
so punishing her in committing contempt of the court’s order, that too by
awarding maximum civil imprisonment in law cannot be countenanced.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1606 OF 2018
MEENAL BHARGAVA  NAVEEN SHARMA 
A.K.SIKRI, J.
Dated:MAY 09, 2018.


These are the cross-appeals, filed by both the parties challenging
different parts of the orders dated January 9, 2018 passed by the High
Court of Judicature at Rajasthan in D.B. Civil Contempt Petition No.
1846 of 2017. The parties are husband and wife. After their marriage in
the year 2007, the wife joined her husband in the United States of
America (USA). Their child, named Pranav, was born out of this
wedlock in August, 2009 at Baltimore, USA. In 2010, they migrated to
Canada. For certain reasons, the matrimonial relations became strained
and the wife viz. Meenal Bhargava (hereinafter referred to as the
‘appellant’), left the company of her husband Naveen Sharma2
(hereinafter referred to as the ‘respondent’) and on July 26, 2013, went
away from her husband, taking Pranav with her. Initially, for some time,
she stayed in Buffalo, New York and thereafter came to India in August,
2013.
2. The respondent filed a case for custody of Pranav in a Canadian Court.
Vide order dated October 29, 2014, the Court granted temporary
custody of Pranav to the respondent. By that time, appellant had
brought Pranav to India i.e. on August 4, 2013. After order dated
October 29, 2014 granting temporary custody of Pranav was passed in
favour of the respondent, the mother of the appellant filed a motion in a
Court at Canada stating that the said Court at Canada had no
jurisdiction in the matter. This contention was, however, rejected by the
Court and, thereafter on April 2, 2015, another order was passed
directing the appellant to return Pranav to its jurisdiction and appear
before the Court on April 16, 2015. The appellant did not comply with
this order, which led to issuance of red corner notice by the FBI/Interpol
against the appellant.
3. Since the appellant had travelled out of territorial jurisdiction of the
Canadian Court and had come to India with Pranav, finding no other
alternative, the respondent herein filed a Habeas Corpus Petition in the
High Court of Judicature at Rajasthan. In the said petition, notice was
issued to the appellant herein. Having regard to the nature of dispute,
the High Court deemed it proper to explore the possibility of settlement
in the first instance. Thus, by order dated December 17, 2015, the
parties were referred to mediation. This effort bore fruits as the
respondent and appellant settled the matter.
4. The appellant agreed to come back to USA and join the company of the
respondent along with Pranav. Consent terms were recorded and on
the basis thereof, the High Court disposed of the Habeas Corpus
Petition vide order dated December 17, 2015 incorporating those terms
of settlement in its order and directing the parties to abide by the same.
These consent terms are as under:
“(1) Both the parties will withdraw their respective cases within 4
months from today.
(2) Mr. Naveen Sharma will find out 3-4 flats for choice of Smt.
Meenal and Smt. Meenal will then go to U.S.A. to select one of
them. This process should complete within 18 months.
(3) In the meantime Mr. Naveen Sharma will come to India to
meet Mrs. Meenal and Pranav at least for 3 time. Similarly Mrs.
Meenal will go to U.S.A. along with her son under the security with
condition that Mr. Naveen will arrange all their expenses including
travelling expenses and will undertake that if both of them desire
to return India then Mr. Naveen will arrange their safe return to
India.
(4) The flat which is going to purchase by Mr. Naveen Sharma
should be in joint name of both party. None of the party will entitle
to sale this flat or it’s any part independently. Mr. Naveen Sharma
will arrange collateral security against loan and in no case the flat
should be taken from ownership and possession of Mrs. Meenal
Sharma. In case any mis-happening the flat will remain in
ownership of Mrs. Meenal Sharma.4
(5) Mr. Naveen, Mrs. Meenal and Pranav will live jointly at U.S.A.
after purchase of flat. None of the family member of both parties
will disturb and interfere in their lives.”
5. For certain reasons, the laudable settlement, hoping to achieve win-win
situation, did not turn into reality. As per the respondent, it is the
appellant who committed breach of the said settlement and also violated
the directions contained in the order of the High Court to comply with
these terms. As she failed to adhere to the settlement and did not
comply with the directions of the High Court in this behalf, the
respondent herein filed Civil Contempt Petition in the High Court seeking
execution of the consent terms and punishment to the appellant under
the Contempt of Courts Act, 1971 (hereinafter referred to as the ‘Act’).
The appellant also, thereafter, filed application in the High Court seeking
recall of the consent order dated December 17, 2015. The High Court
has, by impugned judgment dated January 9, 2018, found the appellant
to be in contempt and award maximum punishment of six months civil
imprisonment under Section 12(1) read with Section 12(3) of the Act with
direction to the appellant to surrender within four weeks. The High Court
has also dismissed the application preferred by the appellant for recall of
order dated December 17, 2015. However, it has not accepted the
request of the respondent to give him the custody of Pranav pursuant to
the Canadian Court’s order dated April 16, 2015 and, instead, permitted
the respondent to seek execution of the said order. 5
6. The appellant has challenged the aforesaid order against the findings of
the High Court holding her to be in contempt of its order and awarding
the said punishment. The respondent feels aggrieved by that part of
the order whereby the High Court has refused to grant him the custody
of Pranav and showed him the route of execution. This, in nutshell, is
the scope of two appeals before this Court.
7. As noted above, Pranav was born in Baltimore, USA on August 22,
2009. He is having US citizenship. Both the parties, after their
marriage, have resided in America or Canada. They have also became
Permanent Residents of Canada as well as America. From the date of
his birth in August, 2009, Pranav remained with their parents, initially in
America and thereafter in Canada till July 26, 2013, when the appellant
went away with him to Buffalo, New York and thereafter came to India on
August 4, 2013. Pranav stayed with his father, along with her mother,
for four years and since then he is living with her mother to the exclusion
of the respondent. He was 4 years of age when he was brought to India
by the appellant and is in India now for more than 4½ years. Another
pertinent fact which is to be noted is that the respondent has got orders
from the Canadian Court giving custody of Pranav to him and has
directed the appellant herein to return the child back to Canada.
8. In the aforesaid background, the respondent had filed petition for
Habeas Corpus. However, the said petition was not heard on merits
inasmuch as parties were relegated to mediation where they settled the
matter leading to disposal of the Habeas Corpus petition vide order
dated December 17, 2015 on the consent terms which were made part
of the order with specific directions to both the parties to adhere to those
conditions. We have already noted the consent terms as per which the
parties had to withdraw their respective cases against each other within
4 months from the date of the order of the High Court. The respondent
was obligated to find out 3-4 flats for choice of the appellant. After
having chosen these flats, he was to show the same to the appellant.
The appellant, at that stage, was supposed to go to USA to select one of
the said flats. On this selection, she was to join the respondent with
Pranav, thereby achieving again the matrimonial alliance and Pranav
having benefit of the company of both his parents. This entire process
was to be completed within 18 months. During the aforesaid period of
18 months which was given to the respondent to find out flats in USA,
the respondent was permitted to come to India, at least three times, to
meet the appellant and Pranav. Likewise, the appellant and Pranav
were also supposed to go to USA under security and for such visits, it
was the responsibility of the respondent to arrange all their expenses
including travelling expenses. During such visits, they were entitled to
remain in USA as per their choice and as and when they desired to7
return to India, the respondent had to arrange their safe return to India.
9. Three main obligations, as per the consent terms, were foisted upon the
respondent, viz.:
(i) To find 3-4 flats in USA to enable the appellant to select one of
them. The chosen flat was to become abode of the family.
(ii) To withdraw the cases filed against the appellant. This included
complaint filed with Police and also take steps to ensure that
warrants/red-corner notice issued by the FBI/Interpol also stands
withdrawn. This was necessary for smooth entry of the appellant in
USA.
(iii) After the selection of the flat by the appellant, the respondent was
obligated to purchase the said flat in joint names.
10.Likewise, the appellant was bound to carry out the following tasks as per
the aforesaid statements:
(i) To withdraw all the cases filed by her against the respondent.
(ii) After earmarking of 3-4 flats by the respondent, to go to USA to
select one of them.
(iii) On selecting the flat and purchase thereof by the respondent in
joint names of the appellant and respondent, she was to go to USA
along with Pranav and stay there with the respondent.
11.For certain reasons, the parties fell apart and the settlement terms could
not be fructified leading to the unfortunate situation. As per the
respondent, he had played his part by complying with the said terms
inasmuch as he withdrew the illinois police complaint,
warrants/red-corner notice issued by FBI/Interpol on February 12, 2016.
He also visited India three times i.e. in August, 2016, December, 2016
and August, 2017. During these visits, the respondent had shown to the
appellant various flats selected online by him with request to the
appellant to make her choice. However, on his third visit in August, 2017,
the appellant did not allow Pranav to meet the respondent as a result of
which police complaint was filed with the SHO, Ajmer on August 26,
2017. The respondent also sent air tickets to the appellant on August 31,
2017 for travel on September 3, 2017 to enable her and Pranav to visit
USA. The respondent further claims that he had also planned a trip to
Disney World, Florida for Pranav along with the appellant. According to
the respondent, in spite of all the efforts made by the respondent, it is
the appellant who backed out and resiled from the settlement as she
failed to perform her role.
12.The appellant, on the other hand, blames the respondent which led to
the aforesaid failure. Her accusation is that after the Habeas Corpus
Petition was disposed of vide order dated December 17, 2015, she filed
following three petitions on April 12, 2016 seeking to withdraw the
following cases filed by her:
(i) Custody Petition filed by her before the Family Court, Ajmer.
(ii) Maintenance case filed by her before the Family Court, Ajmer.
(iii) Divorce case filed by her before the Family Court, Ajmer.
13.It is further claimed by the appellant that even the criminal proceedings
launched by her under Section 498-A IPC etc. were quashed by the
High Court on a petition filed by the respondent under Section 482 of the
Code of Criminal Procedure, 1973 (Cr.P.C.) which happened because of
her no objection as per the settlement. Pointing the finger at the
respondent, her imputation is that he did not withdraw the custody case
filed by him in the Canadian Court and/or sought vacation/rescinding of
order dated April 16, 2015 by which custody of Pranav was ordered in
favour of the respondent. She also alleges that the respondent failed to
send a list of flats to her within the stipulated 18 months time which was
mentioned in the consent terms. Thus, according to the appellant, it is
the respondent who has not fulfilled his obligations under the settlement.
In fact, she even filed miscellaneous application in the petition that was
filed by the respondent under Section 482 Cr.P.C. and was allowed by
the High Court on April 12, 2017, seeking recall of the said order on the
ground that it was the respondent who had committed breach of the
settlement. High Court, however, rejected the said application vide
order dated May 9, 2017 on the ground that the said order had been
passed after issuance of notice to the appellant. 10
14.With this kind of impasse, the respondent filed a miscellaneous
application in the Habeas Corpus Petition seeking revival thereof on the
ground that the appellant had breached the consent terms. This
application was, however, not accepted by the High Court on the ground
that if there was any breach or disobedience on the part of the appellant
herein, there was an alternative remedy available to the respondent to
file contempt petition. This application was, thus, dismissed as
withdrawn by order dated October 5, 2017 with liberty to the respondent
to file the contempt petition. Thereafter, the respondent filed the
contempt petition on November 7, 2017 which has culminated in the
impugned judgment dated January 9, 2018.
15.We may mention at this stage that when the notice of the contempt
petition was served upon the appellant, she filed reply thereto stating
that she had taken requisite steps under the settlement and it is the
respondent who failed to get orders dated April 16, 2015 passed by
Canadian Court nullified thereby disabling her to go to America
inasmuch as she could be arrested immediately on landing in
USA/Canada in view of the aforesaid order. She also alleged that list of
flats was not sent to her. Moreover, conduct of the respondent,
post-settlement, was not good. She had also filed additional reply dated
December 11, 2017 contending (i) pursuant to High Court orders, she
had gone to Delhi hotel to meet respondent and his mother but she was
publicly humiliated there, (ii) she had found that the respondent had
been fired by his employer IBM for taking bribes and he had not been
truthful to the Government also and (iii) respondent had not paid a single
penny as maintenance. This was followed by application dated
December 19, 2017 by the appellant seeking recall of order dated
December 17, 2015.
16.The aforesaid stand of the appellant has been taken note of with a
specific purpose, namely, it is the contention of Mrs. Anjana Prakash,
learned senior counsel appearing for the appellant, that the High Court
has, in the impugned judgment, not even discussed and dealt with the
submissions of the appellant that she had not committed any breach of
the order or consent terms and on the contrary, it is the respondent who
failed to fulfil his obligations thereunder. She submitted that from the
reading of the impugned order, it can be discerned that the High Court
Bench kept on insisting the appellant to join the company of the
respondent along with Pranav and on her refusal to do so, the High
Court has taken the view that appellant has shown strong defiance to
the orders of the Court. In the process, the High Court has not even
cared to examine who was at fault insofar as adherence to the consent
order is concerned. She also submitted that the High Court took into
consideration another extraneous factor. It has noted in the impugned
judgment that statement was given in the Court by the father of the
appellant that the application for recall of order dated May 9, 2017
passed in petition filed by the respondent under Section 482 Cr.P.C.,
was moved by the counsel for the appellant without her instructions.
That, however, was found to be false assertion inasmuch as the High
Court called for the record of that case and found that each page of the
application was signed by the appellant and on realising this, it was
conceded that lawyer was instructed to make such an application. It
was contended by the learned senior counsel that even if this was
correct, it has no bearing insofar as the contempt case is concerned.
17.Mr. Jauhar, learned counsel appearing for the respondent, on the other
hand, put entire blame upon the appellant who, according to him, took
summersault with intention to commit breach of settlement terms as
there was change of heart and she decided not to join the company of
the husband. He took pains to demonstrate that respondent had took all
the necessary steps in terms of the settlement. He still wanted the
appellant to resume matrimonial alliance for the sake of saving the
family ties and also to enable Pranav be in the company of both the
parents.
18.We have duly considered the submissions of counsel for both the
parties. As noted in detail above, both the parties are blaming each
other for the failure of settlement terms. In this backdrop, we have gone
through the impugned order passed by the High Court. In the entire
judgment, the High Court has not adverted to the important aspect that
needed attention in such a case, namely, whether it was the appellant
who was responsible for not adhering to the terms of the consent order
and thereby violated the directions issued by the High Court in in its
orders dated May 09, 2017. After all, the respondent had filed the
contempt petition attributing breach of the directions on the part of the
appellant. In reply, the appellant had taken up the stand that she was
not responsible for the happenings and squarely blamed the respondent
therefor. The High Court has not discussed these aspects. On the
contrary, the approach of the High Court was to insist the appellant to
adhere to the settlement terms even at that stage and on her refusing to
do so it arrived at a finding that she had committed the contempt of the
court’s order as the aforesaid conduct was found to be abhorrent. It is,
thus, the stubborn attitude shown by the appellant during the hearing of
the contempt petition which has weighed by the High Court. That,
according to us, was not the correct approach for punishing the
appellant for contempt of court. The contempt petition was filed by the
respondent alleging that the appellant had not fulfilled her obligations
under the consent terms and the directions given by the High court in
this behalf. It was, thus, necessary for the High Court to discuss and
consider, in the first instance, as to whether these allegations of the
respondent were correct.
19.There is another way of looking into the matter. The consent terms on
which the parties settled the matter contained an important part of
agreement, namely, both the parties decided to live together again. This
happened in the proceedings which essentially related to the custody of
child. No doubt, when the parties agreed to resume the matrimonial
relations and decided to live again as husband and wife, the problem of
custody of Pranav got automatically solved thereby as it brought about
an ideal situation where Pranav could have the company of his both the
parents. Unfortunately, this did not materialise. In a case like this
whether the High Court could force the appellant to join the company of
the respondent and live with him, if he had decided for certain reasons
not to do so? Even when a decree of conjugal rights is filed by a
competent court of law in favour of one of the spouses, such a decree
cannot be executed and the other spouse who is directed to resume the
conjugal relations, cannot be forced to do so. It is a different matter that
for not obeying such a decree, other consequence follow including right
to the decree holder to seek divorce. When that is the position even in
respect of a decree passed by competent court of law forcing the
appellant to join the company of the respondent and on her failing to do
so punishing her in committing contempt of the court’s order, that too by
awarding maximum civil imprisonment in law cannot be countenanced.
In a matter like this, the focus of the High Court should have been on the
custody of the child, which was a subject matter of the Habeas Corpus
petition. However, as far as that aspect is concerned, the High Court
simply stated that it would be open to the respondent to execute the
order of the Canadian Court dated April 16, 2015. Here again the High
Court has fallen into error. In fact, in a matter like this, the High Court
should have restored the Habeas Corpus Petition and decided the same
on merits. However, when application for this purpose was filed by the
respondent, instead of doing so the High Court passed the orders dated
October 05, 2017 giving liberty to the respondent to file the contempt
petition.
20.Having regard to our aforesaid discussion, we allow the appeal filed by
the appellant and set aside the order of the High court whereby the
appellant is punished for contempt. It would be open to the respondent
to press the contempt petition before the High Court and if he so choses
the High Court shall decide the contempt petition in the light of the
aforesaid observations made by this Court, namely, to first find out as to
whether the appellant is correct in her submissions that it is the
respondent who did not take necessary steps to ensure that the
appellant joins the company of the respondents along with Pranav in
USA. We also allow the appeal of the respondent partly by setting aside
the direction of the High Court permitting the respondent to file the
execution petition. Instead with the consent of both the parties, order
dated October 05, 2017 passed in Miscellaneous Application filed by
respondent in Habeas Corpus petition is set aside and her Habeas
Corpus petition is revived which shall be dealt with by the High Court on
merits in order to decide as to whether custody of Pranav is to be
handed over to the respondent. Before us, both the parties have
advanced arguments on this aspect whereas the appellant submitted
that the welfare of Pranav lies in continuing his custody with his mother.
The respondent had made a fervent plea to claim the custody on the
basis of the order of the Canadian Court. However, we are deliberately
not dealing with this aspect as this aspect is the subject matter of
Habeas Corpus Petition pending in the High Court and it is the High
Court which has to deal with and decide this question, in the first
instance.
21.Both the aforesaid appeals are allowed on the aforesaid terms, without
any orders as to costs.
22.Before we part with, we are constrained to make few comments about
the conduct of the parties who are not fully acknowledging the truth and
reality of the situation. It is either the appellant or the respondent or may
be, to some extent, both of them, who are to be blamed for the egoist
approach. No doubt, on an earlier occasion, some differences arose
between them which led to strained relations and the appellant even
came back to India. Legal battles of all kinds started with both the
parties filing multiple proceedings against each other. In these dark
clouds enveloping the relationship between the parties, a silver lining
emerged in the form of mediation. As both the parties acted with
wisdom and maturity, mediation exercise was successful. Both the
parties not only buried their acrimony against each other but decided to
have a new beginning. The magic of mediation worked at that moment.
The consent terms which were recorded in the settlement arrived at
during mediation proceedings brought about the resolution which could
truly be levelled as ‘win-win’ situation. The accord was aimed at reuniting
the two spouses with the aim of bringing happiness in the matrimonial
relationship. More importantly, paramount interest of Pranav as a child
was acknowledged by the parties as any child, particularly at this age,
needs the company of both the parents for him/her to bloom and for
ideal bringing up. In fact, as is clear from the events noted above, both
the parties even took initial steps to make this settlement a success.
However, before it could be seen as ‘happy ending’ and parties could
reach that end of the road where they could find their final destination as
envisaged in the settlement, they encountered a road block. Whether it
happened due to the fault of the appellant or that of respondent, we are
not commenting about the same. Unfortunate part is that instead of18
acknowledging the truth, parties are grumbling continuously and
complaining against each other. This accusation, castigation,
chargeability and dilation, depicting deviation from rectitude is a
mindless exercise and, in the process, true welfare of Pranav is sought
to be sacrificed. We are compelled to express these sentiments
because of the reason that things have still not gone beyond repair. Had
the parties shown positive and cooperative attitude (which, we are sure,
they had demonstrated during mediation talks) they could still achieve
an amiable resolution, inasmuch as it is even now possible to work out
the terms of the compromise that was entered into between them. In
fact, the respondent had expressed his willingness to go an extra-mile to
save the settlement and the matrimonial home. However, the appellant
stood firm in her attitude as she kept on saying that she could no longer
repose confidence and trust in the respondent. She has a grudge that
respondent lured her into the settlement with selfish motive to take away
the custody of Pranav with no love towards her and his moves lack bona
fides. The respondent, on the other hand, maintained the position that
appellant was resorting to falsehood because of her selfish motives
which were kept higher in priority, even at the cost of family life.
However, we may re-emphasise that all is not lost and situation can still
be brought under control if there is a dispassionate and objective
thinking by both the parties, keeping aside their ego. Life has problems.
Parties have to understand those problems and to reflect on the reasons
why these problems have arisen leading to such kind of disputes. Both
the parties have also to reflect on the future and to make up their mind
on that basis as to whether it would be in their interest, as well as in the
interest of Pranav to bury the hatched and have a new beginning. We
say no more.

.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
MAY 09, 2018.
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