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2009 Supreme(Del) 1068
IN THE HIGH COURT OF DELHI AT NEW DELHI
HON’BLE MR. JUSTICE VIPIN SANGHI
PREETI KAPUR ..... Petitioner
Versus
ANSHUMAN KAPUR & ORS. ..... Respondents
CM(M) No.427/2009
Decided on : 08.10.2009
Mr. Amit Khanna and Mr. Pankul Nagpal, Advocates
Mr. Jayant Nath, Senior Advocate with Mr. L.M. Asthana, Advocate for respondent No.1
Headnote:Contempt of Courts Act, 1971 Sections 11 & 12 - Petition for making reference to High Court on account of the alleged wilful breach of the undertaking _ Marriage dissolved u1s. 13-B(2) of Hindu Marriage Act, 1955 by passing a decree - Respondent undertook to transfer the house Transfer of property to be done within six weeks of the making of the statement before the Court - Respondent directed to purge the contempt by causing the transfer of the property within two weeks.
Key Points: - The respondent gave an unequivocal undertaking to transfer the property within six weeks as part of an amicable settlement, which the court accepted and formed the basis of the decree (!) (!) (!) . - The court held that a clear undertaking to the court becomes part of the decree, and its willful breach constitutes civil contempt, irrespective of any separate execution proceedings (!) (!) (!) . - The court quashed the trial order and directed the respondent to transfer the property within two weeks, holding him guilty of contempt for failing to honor the recorded undertaking (!) (!) (!) .
What is the nature of the undertaking given by the respondent and its enforceability by the court?
How should a court approach a petition for contempt when a party fails to comply with an undertaking recorded in court?
What is the correct settlement that the court recognized as binding between the parties?
VIPIN SANGHI, J.
1. In challenge in this petition under Article 227 of the Constitution of India is the order dated 26.3.2009 passed by Shri Narinder Kumar, Additional District Judge-01 (West), Delhi dismissing the petitioner?s Contempt Petition No.1/2009 seeking an order for making reference to this Court under Sections 11 and 12 of the Contempt of Courts Act on account of the alleged willful breach by the respondent No.1 of the undertaking given by him on 31.8.2008 in H.M.A. Case No.550/2008. Respondent Nos.2 & 3 are proforma respondents. They acted as the counsel for respondent No.1 before the trial Court which passed the decree of divorce by mutual consent. The expression “parties” used in this order refers to the petitioner and respondent No.1 only, unless the content otherwise requires.
2. The petitioner was married to the respondent No.1 on 19.4.2000 according to Hindu rites and ceremonies. Two children, namely, Sanah Kapur and Aayana Kapur were born from the wedlock. Due to temperamental differences, the parties (i.e. the petitioner and respondent No.1) could not reconcile their disputes and started living separately since 15.9.2007. It appears that the parties, with a view to arrive at a mutual settlement which, inter alia, provided for divorce by mutual consent entered into an agreement on 13.9.2008. Under this agreement it was recorded that the petitioner herein is in occupation of premises situated at 121, Anupam Gardens, Sainik Farms, New Delhi-110062. This agreement also provided that if the petitioner pays to the respondent a sum of Rs. Two crores by 31st December, 2008 the said property would be transferred to the petitioner along with all rights, title and interest. The petitioner as per this agreement was to retain the custody of the two minor children without any interference by the respondent.
3. The parties thereafter moved a petition jointly u/s 13B (2) of the Hindu Marriage Act. It was stated that the parties had settled all their disputes and claims amicably. They further stated that they have consented to grant divorce to each other without any force or undue influence and that there is not collusion between them.
4. The petitioner stated that she shall have no right in respect of permanent alimony for herself and that she would not claim any lien past, present or future whatsoever over the property, movable and immovable of the respondent herein, and similarly the respondent stated that he shall have no right, claim and lien past, present or future over the properties, both movable and immovable of the petitioner herein. The petitioner also gave up her right to any interim maintenance for the past or in future from the respondent herein. The parties also settled all their disputes regarding dowry, stridhan and stated that no dispute whatsoever regarding dowry items and stridhan is left between the parties. They also undertook to withdraw all their complaints against each other and their family members and stated that they have no dispute left against each other after this settlement is reached between the parties. The joint petition further provided that the petitioner herein shall not claim any right in the property of the respondent which he may inherit or he may acquire with his personal funds, and similarly the respondent shall not claim any right in the property which the petitioner may inherit or may acquire with her personal funds. The respondent also agreed not to claim any right in property which the daughters may inherit or may acquire with their own funds.
5. The first motion was taken up by the Court on 24.10.2008. The statement of the respondent, Shri Anshuman Kapur was recorded as PW-1 wherein he, inter alia, stated as follows:-
“I have settled all my disputes and claims of any nature what so ever (past, present and future) with petitioner no.2 amicably and there will be no claim in future after transfer of the house situated at 121, Anupam Gardens, Sainik farms, New Delhi-11006
