Cont.Case(C) No.187 of 2023 (Contempt of Court) — In the High Court of Kerala at Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 5[TH] DAY OF JUNE 2023 / 15TH JYAISHTA, 1945 CON.CASE(C) NO. 187 OF 2023 ORDER DATED 06.01.2023 IN I.A.NO.5 OF 2022 IN O.P (FC)NO. 116 OF 2022 OF HIGH COURT OF KERALA** ## **PETITIONER/PETITIONER/PETITIONER:** **RENJU DAS AGED 37 YEARS S/O.N.A. MOHANDAS 34-/8, KANAKKARY P.O., KOTTAYAM 686 632, NOW RESIDING AT FLAT NO 11F, TRINITY WORLD NEPTUNE TOWER, KAKKANAD ERNAKULAM, PIN - 682030** **BY ADVS. C.G.PREETHA N.G.ANITHA DR.ABHILASH O.U.** ## **RESPONDENT/1ST RESPONENT/1ST RESPONDENT:** **AMRITHA RENJU DAS AGED 31 YEARS D/O.PADMANABHAN JAYAPRAKASH INFRA ASPIRE APARTMENT 8C, VSNL ROAD, KAKKANAD ERNAKULAM 682 030 AMRITHAPRAKASH88@GMAIL.COM, +965 65936782 REPRESENTED BY POWER OF ATTORNEY HOLDER SMT. SAROJ V. HARIDAS FATHER'S NAME NOT KNOWN TO THE PETITIONER W/O. PADMANABHAN JAYAPRAKASH, AGED 61 YEARS RESIDING AT INFRA ASPIRE APARTMENT 8C VSNL ROAD,** 2 Cont.Case(C) No.187 of 2023 **KAKKANAD KOCHI (AADHAR CARD NO 4314 6016 1403), PIN - 682030** **BY ADV. GEORGE VARGHESE(PERUMPALLIKUTTIYIL)** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 05.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Cont.Case(C) No.187 of 2023 ## **J U D G M E N T** ## P.G.Ajithkumar, J. The petitioner in O.P.(FC) No.116 of 2022 has filed this contempt case alleging that the respondent willfully disobeyed the order of this Court dated 06.01.2023 in I.A.No.5 of 2022 in O.P.(FC) No.116 of 2022. 2. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. 3. The direction in the order dated 06.01.2023 in I.A.No.5 of 2022 is as follows: “This application is allowed and the petitioner is allowed to have custody of the child from 9.30 a.m. on 14.01.2023 till 5.00 p.m on 15.01.2023 (U.K. Time). The 1st respondent-mother will entrust and get back the child with/from the petitioner in the premises of the office of the High Commission of India, India House, Aldwych, London, U.K.” 4. The petitioner would contend that he went to London for getting custody of the child in terms of the aforementioned order, but the respondent did not bring the 4 Cont.Case(C) No.187 of 2023 child. It is alleged that the respondent did not inform the petitioner about her inability to bring the child also. Therefore petitioner seeks to take action against the respondent for wilful disobedience of the said order under the Contempt of Courts Act, 1971. 5. In the counter affidavit filed by the respondent, she averred that her inability to reach London was informed the petitioner sufficiently early and she claims that she did not purposefully violate the order of interim custody. Para No.4 to 6 in the counter affidavit are as follows: “4. It is submitted that 14[th] and 15[th] of January, 2023 are Saturday and Sunday and therefore were holidays for the Indian High Commission at London. Therefore neither the respondent nor the petitioner could have entered the premises of the Indian High Commission, London on the said dates for the implementation of the said order. It is further submitted that Indian High Commission does not permit casual entries even on working days for Indians or others and all visitors must have an official reason to enter the premises of the Indian High Commission and the same is required to be written in a form supplied at the entry by security. Since the impugned order does not vest or 5 Cont.Case(C) No.187 of 2023 create any responsibility of supervision over the handing over of custody of minor child on any Embassy officials, the impugned order per se may not have enabled an access for the respondent to enter into the premises of Indian High Commission. Therefore it is most respectfully submitted that the impugned order in itself created an impossibility which prevented its compliance by the respondent. 5. It is also submitted that the respondent-mother along with the minor child stays at Manchester City which is at a travel time of 6 hours away from London. Therefore if the respondent were to comply with the order, she and her minor child, in order to reach London by 9 a.m. on 14.01.2023, would have had to either travel to London on the previous day which is not possible due to the fact that petitioner is a probationer in her new job or might have had to start her travel from Manchester by at least 3 a.m, which is also harsh due to the freezing temperatures present in U.K. at this time of the year. Similarly, the journey to Manchester from London after the custody is remitted back to the respondent would also be harsh and difficult considering the long train journey the respondent and her minor child might have to go through late into the cold and freezing night in January. Furthermore, the train services to London from Manchester was also closed on the said dates 6 Cont.Case(C) No.187 of 2023 due to strike and that would mean the Respondentmother and minor child to rely only on road travel to London which is very difficult and 6 hours long and another 1 hour travel by metro services to the Indian High Commission office. 6. Due to the all these reasons, the respondent had communicated her inability to comply with this impugned order to the petitioner well in advance before he was to travel to London. A true copy of the email dated 12.01.2023 sent by the respondent to the petitioner is produced herewith and marked as **Exhibit R1 (a)** . It is also submitted that the respondent had also filed the Petition seeking grant of Special Leave (SLP) before the Honourable Supreme Court against the impugned order on 12.01.2023 itself. It is submitted that the said SLP(C) No.2269/2023 was dismissed without any interference by the Honourable Supreme Court on 07.02.2023. A true copy of the order dated 07.02.2023 in SLP(C) No.2269/2023 passed by the Honourable Supreme Court is produced herewith and marked as **Exhibit R1(b)** .” 6. The petitioner filed a reply affidavit refuting the contentions in the counter affidavit. It is contended that he was never informed that the respondent was unable to reach the office of High Commission at London. As a matter of fact, 7 Cont.Case(C) No.187 of 2023 the respondent challenged the order dated 06.01.2023 before the Apex court but the challenge was unsuccessful. Therefore the attempt of the respondent to disobey the order is quite evident and it is wilful. 7. In **S.Sundaram Pillai v. V.R. Pattabiraman [(1985) 1 SCC 591]** the Apex Court held that in order to punish a contemnor, it has to be established that disobedience of the order is "wilful". The word "wilful" introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one's state of mind. "Wilful" means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide, unintentional acts, or genuine inability. Wilful acts do not encompass involuntary or negligent actions. The act has to be done with a "bad purpose or without justifiable excuse or stubbornly, obstinately or perversely". The wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It 8 Cont.Case(C) No.187 of 2023 does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with an evil motive on his part. Even if there is disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished." 8. The above principle was reiterated by the Apex Court in **Rakapalli Raja Ram Gopala Rao v. Naragani Govinda Sehararao [(1989) 4 SCC 255], Niaz Mohammad v. State of Haryana, [(1994) 6 SCC 332], Chordia Automobiles v. S. Moosa, [(2000) 3 SCC 282], Ashok Paper Kamgar Union v. Dharam Godha [(2003) 11 SCC 1], State of Orissa v. Mohammed Illiyas [(2006) 1 SCC 275]** and **Uniworth Textiles Limited v. Commissioner of Central Excise, Raipur [(2013) 9 SCC 753]** . 9. From the counter affidavit filed by the respondent, 9 Cont.Case(C) No.187 of 2023 it is seen that there was reason for not reaching the office of the High Commission along with the child on 14.01.2023. But when there was an order for bringing the child to the premises of the office of the High Commission of India at London, such an excuse is insufficient to disobey the direction. Even if the office was closed, there was no difficulty for her to bring the child near the office and hand over to the petitioner who is none other than the father of the child. 10. Therefore, we are of the view that the act of the respondent disobeying the said order is not innocent or accidental. However, considering the fact that the petitioner and respondent are parents of the child, custody of whom is in question, we feel that a drastic step of convicting the respondent-mother for an act of contempt of court is not in the interest of justice or the welfare of the child. It may be noted that the original petition filed for the custody of the child is still pending consideration and therefore the petitioner can pursue his claim for interim custody in the said proceedings. 10 Cont.Case(C) No.187 of 2023 In such circumstances, we do not propose to proceed further in the matter. This contempt case is accordingly closed. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV 11 Cont.Case(C) No.187 of 2023 ## **APPENDIX OF CON.CASE(C) 187/2023** RESPONDENTS' ANNEXURES Annexure R1(b) A true copy of the order dated 07.02.2023 in SLP(c) 2269/2023 passed by the Honourable Supreme Court Annexure R1(a) A true copy of the email dated 12.01.2023 sent by the respondent to the petitioner PETITIONER'S ANNEXURES ANNEXURE A1 THE CERTIFIED COPY OF THE ORDER IN I.A.NO 5 OF 2022 IN O.P.(F.C.)NO 116 OF 2022 PASSED BY THIS HON'BLE COURT DATED 06.01.2023