Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 1099

IN THE HIGH COURT AT CALCUTTA
Krishna Rao, J.
Saurov Kumar Mandal - Petitioner
Versus
Madhura Das – Respondent
CRC 3 of 2019 With IA No. CAN 3 of 2019 (Old No. 690 of 2019) In CO 2565 of 2018
Decided On : 13-07-2023

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Rabindra Narayan Dutta, Mr. Sibashis Ghosh, Mr. Hare Krishna Halder, Mr. A. Mukherjee, Mr. Ankit Dhara
For the Respondent: Mr. Jayanta Narayan Chatterjee, Mr. Debashis Banerjee, Ms. Moumita Pandit, Mr. Supreem Naskar, Ms. Jayashree Patra, Ms. Sreeparna Ghosh, Ms. Pritha Sinha, Ms. Ritushree Banerjee

A party who is fully aware of the court orders and acts in violation thereof, commits contempt of court, even if the party did not appreciate that the act or omission breached the order.

Headnote:
CONTEMPT OF COURT - CHILD CUSTODY - VIOLATION OF COURT ORDER - FATHER'S VISITATION RIGHTS - CONSENT ORDER - WILLFUL DISOBEDIENCE - APOLOGY AND ASSURANCE - SPECIAL OFFICER APPOINTED TO MONITOR COMPLIANCE.
Fact of the Case:

The petitioner, a father, filed a contempt application alleging that the respondent, the mother of their minor son, had violated the order passed by the court in a consent judgment, which granted the petitioner certain visitation rights and other liberties in respect of the minor child. Despite repeated service, the respondent failed to appear before the court. The trial court, while disposing of the petitioner's application, imposed certain additional riders, particularly relating to the consent of the mother, which traversed beyond the scope of the compromise order itself. The impugned order further restricted the visitation rights of the petitioner, whereas the initial compromise order gave far wider rights to the father.
Finding of the Court:

The court found that the respondent had willfully and deliberately violated the consent order passed by the Additional District Judge dated May 16, 2017, and the order dated November 26, 2018, by not allowing the petitioner to have the custody as per the terms of the consent judgment. The court held that the respondent's conduct amounted to contempt of court.
Issues: 1. Whether the respondent had violated the consent order passed by the court in a child custody case? 2. Whether the respondent's conduct amounted to contempt of court?
Ratio Decidendi: 1. The court held that the respondent had willfully and deliberately violated the consent order passed by the Additional District Judge dated May 16, 2017, and the order dated November 26, 2018, by not allowing the petitioner to have the custody as per the terms of the consent judgment. 2. The court held that the respondent's conduct amounted to contempt of court, as she was fully aware of the court orders and had acted in violation thereof.
Final Decision: The court accepted the unqualified apology tendered by the respondent and directed her to comply with the consent order dated May 16, 2017, in its true spirit. The court also appointed a Special Officer to monitor the respondent's compliance with the order for a period of eight weeks.

JUDGMENT :

Krishna Rao, J.

1. The present contempt application is filed by the father of the minor son on the allegation of violation of the order passed by this Court in CO No. 2565 of 2018 with CAN No. 7038 of 2018(Sri Saurov Kumar Mandal -vs- Smt. Madhura Das) dated November 26, 2018 wherein this Hon’ble Court passed the following order:

“Affidavit–of-service filed in Court today be taken on record.

Despite repeated service, none appears on behalf of the opposite party.

By virtue of the impugned order the petitioner-father’s prayer for implementation of an agreed order of visitation and custody of the minor child of the parties was disposed of by going beyond the terms of the said compromise.

It is seen from the compromise order dated May 16, 2017 passed in Miscellaneous Case No. 645 of 2014 that the petitioner-father had been granted several liberties in respect of the minor son of the parties, who was then aged about five years and eleven months and is about seven years of age at present.

The trial court, while disposing of the application of the petitioner, imposed certain additional riders, particularly relating to consent of the mother, which traversed beyond the scope of the compromise order itself. The impugned order further order further restricted the visitation rights of the petitioner, whereas the initial compromise order, referred to above, gave far wider rights to the father.

As such, the trial court acted without jurisdiction in passing the impugned order.

Accordingly, C.O. No. 2565 of 2018 is allowed, thereby setting aside the impugned order and directing the opposite party to adhere to the compromise order dated May 16, 2017 passed between the parties in Miscellaneous Case No. 645 of 2014 to the letter.

In enforcing the said order, the petitioner-father will be entitled to take the assistance of the Special Officer appointed by the court below in the impugned order, namely, Smt. Soma Dhar, a practising advocate of the Barasat Court, for which the said Special Officer will be entitled to remuneration of Rs. 10,000/-(Rupees ten thousand) only per month, payable by the petitioner, for the time being, subject to the consent of such Special Officer.

In the event the Special Officer is not agreeable with such arrangement, the Special Officer will be entitled to approach the trial court for her removal as Special Officer. In the event such an application is made by the Special Officer, the trial court will decide the same within a fortnight from the said application being made, upon hearing both sides, appointing a new Special Officer on the same terms as fixed herein.

It is made clear that, in the event the opposite party further violates the compromise order arrived at between the parties, such violation will be treated as a contempt of this court’s order and will be dealt with accordingly.

In view of disposal of the main revisional application, CAN 7038 of 2018 also stands disposed of.

There will, however, be no order as to costs.”

2. Before proceeding further, this Court finds that the facts are required to be brought on record as the present case is having chequered history.

3. The marriage between the petitioner and the respondent was solemnised on June 8, 2010 (now decree of divorce between the parties have been passed) and out of the wed-lock a male child, Master Priyam Mandal was born on May 23, 2011. A dispute between the petitioner and the respondent has arose with regard to the custody of the minor child on the allegation that the respondent had left her matrimonial home with the minor child of her own accord on June 14, 2014 and started residing at her parent’s house and was not allowing the petitioner to see his minor child.

4. The petitioner had filed an application under Guardians and Wards Act, 1890 to get permanent custody of his son before the learned District Judge, North, 24 Parganas at Barasat being Misc Case No. 645 of 2014. In the said case, the petitioner had filed an application for interim order for allo