Full Text
Cont. Cas (C) No.170/2014
Date of Decision: 18th December, 2014 RAMONA JIND ..... Petitioner
Through: Mr. Saurabh Chauhan & Mr. Varun Jain, Advocates with petitioner in person.
Through: Mr. Prag Chawla & Mr. Abhey Narula, Advocates.
JUDGMENT
1. The present contempt petition is premised on the fact that the respondent has wilfully breached his undertaking purported to have been given to the court on 25.7.2013.
2. The petitioner and the respondent apparently seem to be having a matrimonial dispute which resulted in filing of Crl. M. (C) No.3731/2012. The parties have two children from the wedlock, who are informed to be US citizens. The petitioner is also a US citizen but presently she is in India and the respondent also happens to be a US citizen, stationed in America. 2014:DHC:7231
3. During the pendency of the aforesaid petition, on 25.7.2013, the learned senior counsel appearing for the respondent, on instructions, stated that the respondent would have no objection to prayer (a) of the application being Crl. M.A. No.10195/2013.
4. I have been informed that the aforesaid application was filed by the present petitioner seeking signatures of the respondent (father of the minor children) in order to get the children’s passports, visa and application for OCI card extended as the same were expiring.
5. On the basis of the aforesaid concession having been made by the learned senior counsel appearing for the respondent, the learned judge of this court observed that the respondent may sign and send the relevant documents for renewal of passports, extension of visa and application for OCI card within a period of four weeks.
6. Apparently the respondent did not oblige by adhering to the concession made by him through his counsel.
7. The learned counsel has pointed out that the aforesaid order was repeated in Crl. Revision Petition No.591/2013 on 30.10.2013 filed by the respondent herein, where the court had taken note of the fact that the respondent (petitioner in the said revision petition) had not adhered to the terms contained in para 4 of the order dated 25.7.2013. In the same revision petition, on 11.12.2013, the court again noted the fact that the respondent was acting truant and accordingly, directed the respondent (petitioner in the revision petition) to file an affidavit with respect to the renewal of the passports/visa and the application for OCI card to be signed by him in terms of para 4 of the order dated 25.7.2013 within ten days.
8. The contention of the learned counsel for the petitioner is that instead of filing this affidavit, the respondent filed an affidavit dated 27.12.2013, duly notarized by the notary in California, USA, wherein he had stated that he had received a legal opinion from an attorney in USA and, therefore, he did not sign the documents as conceded by him. The learned counsel has contended that by filing this affidavit, the respondent has breached the undertaking and not complied with the order and thus, he is guilty of contempt.
9. I have considered the submissions made by the learned counsel.
10. Section 2 (b) of the Contempt of Courts Act, 1971, defines ‘civil contempt’ which means wilful, disobedience of any order, direction, judgment or a decree passed by the court or any undertaking given to a court. The learned counsel has construed the action on the part of the respondent as a breach of an order passed by the court as well as the breach of an undertaking given by him and thus, wants an action for contempt to be initiated against him.
11. So far as the undertaking is concerned, I am not in agreement with the contention of the learned counsel for the petitioner that the respondent has given any undertaking to the court to sign the documents for extension of visa, passports and OCI card application.
12. The learned counsel for the respondent had only conceded, on instructions, that his client has no objection to the signing of these documents. Later on, the respondent, on a second thought had resiled from the said concession and this is the reason why the court had specifically passed an order directing the respondent to file an affidavit.
13. This affidavit filed by the respondent was not at all in line with para 4 of the order dated 25.7.2013 and, therefore, the affidavit filed by him on 27.12.2013, wherein he has annexed the opinion of some counsel in USA stating that signing of the papers may be construed against him, cannot be treated to be an undertaking to this court so as to warrant any action on account of the alleged breach. Therefore, in the absence of any specific commitment, assurance or undertaking having not been given to the court, I do not think the question of breach of the same arises.
14. The second component alleged is with regard to violation of the court order. The refusal to sign the documents, as stated hereinabove, cannot be treated as a breach of the order as the order was not a direction by the court, it was only an order which was passed on the basis of the concession having been made by the learned senior counsel for the respondent.
15. The court was conscious of the fact that the respondent had resiled from his concession and that is the reason why it passed an order directing him to file an affidavit so that he could have been pinned down for violation of the undertaking. Therefore, the order by virtue of which he was directed to file an affidavit with respect to signing the documents for extension of visa or OCI card or the passports, cannot be treated as a direction having been given by the court.
16. Assuming, though not admitting, that the direction was given by the court, it is not necessary that every disobedience results in violation/contempt. The violation of an order of the court must be wilful, contemptuous, deliberate and gross, then only it will warrant an action against the respondent.
17. In the instant case, the respondent has tried to justify his noncompliance by relying upon some opinion purported to have been furnished by some attorney in the USA. Therefore, the respondent is well within his right to protect his rights by not signing, if he has been advised to do so. I feel that no case for contempt is made out.
18. Accordingly, the contempt petition is dismissed and the contempt notice is discharged; however, the petitioner is free to take such recourse in law as may be permissible to him to get his grievances redressed. V.K. SHALI, J. DECEMBER 18, 2014 ‘AA’