Muhammed Rafeeq v. Nehara, Muhammadali, and Bushara (Cont.Case (C) No. 21 of 2023)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 26[TH] DAY OF MAY 2023 / 5TH JYAISHTA, 1945** **CONT.CASE(C) NO. 21 OF 2023 AGAINST THE JUDGMENT DATED 12.10.2022 IN O.P.(FC) NO.566 OF 2022 OF THE HIGH COURT OF KERALA** ## **PETITIONER:** **MUHAMMED RAFEEQ AGED 39 YEARS, S/O MUHAMMADALI, KUNNAKKADAN VEETTIL, MANNARKKAD P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN – 678582.** **BY ADV P.SAMSUDIN** ## **RESPONDENTS:** **1 NEHARA AGED 25 YEARS, D/O. MUHAMMADALI, MALLIYIL VEEDU, CHANGALEERI, P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN – 678582.** - **2 MUHAMMADALI, AGED 50 YEARS,** **(FATHER NAME NOT KNOWN TO THE PETITIONER), RESIDING AT MALLIYIL VEEDU, CHANGALEERI, P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN – 678582.** **3 BUSHARA, AGED 45 YEARS,** **W/O. MUHAMMADALI, RESIDING AT MALLIYIL VEEDU, CHANGALEERI, P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN – 678582.** **BY ADVS. SAHEERA NOUFAL RUBEN GEORGE ROCK** 2 Cont.Case (C) No.21 of 2023 **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR FINAL HEARING ON 26.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Cont.Case (C) No.21 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner is the husband of the 1[st] respondent. Respondents 2 and 3 are the parents of the 1[st] respondent. The petitioner alleging that respondents wilfully disobeyed the direction of this Court contained in the judgment dated 12.10.2022 in O.P.(FC) No.566 of 2022 filed this Contempt Case under Section 12 of the Contempt of Courts Act, 1971. 2. The respondents on receipt of the notice appeared before this Court in person. They were directed to file individual affidavits. They have accordingly filed affidavits. They denied the allegation that they had wilfully disobeyed the order of the court. They took the stand that they were under the impression that the petitioner was allowed to meet the child in the court premises, and therefore, on 24.12.2022 they brought the child to the premises of the Judicial Magistrate of First Class, Mannarakkad and allowed the petitioner to interact with the child. They did not have any instruction from their lawyer that the petitioner was allowed to take the child to his home. 4 Cont.Case (C) No.21 of 2023 3. The petitioner filed a reply-affidavit stating that the respondents purposefully had avoided the petitioner interacting with the child and taking the child along with him. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 5. As per the judgment dated 12.10.2022 in O.P.(FC) No.566 of 2022 the petitioner was allowed to have interaction with the child on every Saturday. The venue was fixed as the premises of the Court of the Judicial Magistrate of the First Class, Mannarkkad. The said order was modified by this Court as per the order dated 08.11.2022 in I.A.No.1 of 2022. Again the petitioner filed a review petition and in that Review Petition No.1095 of 2022 this Court on 20.12.2022 modified the order regarding interim custody. The petitioner was allowed interim custody of the child from 10.30 a.m. till 3.30 p.m. on every Saturday. Instead of the second Saturday, custody was allowed on the second Friday. The petitioner was given permission to take the child to his house, which is only 2 kms. away from the court premises during the period of interim custody. 5 Cont.Case (C) No.21 of 2023 6. The allegation of the petitioner is that respondents did not produce the child in compliance with the said direction on 05.11.2022, 17.12.2022, 24.12.2022 and 31.12.2022. 7. When this matter is taken up for consideration today, the learned counsel appearing for the petitioner would submit that the directions in the aforesaid orders are now being complied with without any failure. That would show that the respondents might not be aware as to the directions contained in the aforesaid orders regarding interim custody, which allowed the petitioner to take the child to his home. Every disobedience of an order would not become an act of contempt of the court. It should be wilful disobedience. 8. 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 6 Cont.Case (C) No.21 of 2023 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 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." 9. 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],** 7 Cont.Case (C) No.21 of 2023 **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]** . 10. From the facts and circumstances mentioned hereinbefore, it is quite evident that the respondents did not disobey wilfully the directions of this Court regarding interim custody of the child. Therefore, no action for contempt of court is liable to be initiated against the respondents. In case of violation of any order, the petitioner may approach the Family Court, Palakkad for enforcement of the order regarding the custody. With the aforesaid observations, this Cont.Case is closed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 8 Cont.Case (C) No.21 of 2023 ## **APPENDIX OF CON.CASE(C) 21/2023** ## **PETITIONER ANNEXURES** - **ANNEXURE A1 CERTIFIED COPY OF THE JUDGMENT DATED 12-10-2022 IN OP (FC) NO. 566 OF 2022 OF THIS HON'BLE COURT** - **ANNEXURE A2 TRUE COPY OF ORDER DATED 08-11-2022 IN IA NO. 1/2022 IN OP (FC) NO. 566 OF 2022 OF THIS HON'BLE COURT** - **ANNEXURE A3 TRUE COPY OF ORDER DATED 20-12-2022 IN RP 1095/2022 IN OP (FC) NO. 566 OF 2022 OF THIS HON'BLE COURT** ## **RESPONDENT ANNEXURES** - **ANNEXURE R3(A) . TRUE COPIES OF MEDICAL PRESCRIPTIONS AND REPORTS PERTAINING ON THE CHILD OF THE PETITIONER AND 1ST RESPONDENT** - **ANNEXURE R3(B) A TRUE COPY OF THE PHOTO OF THE RESPONDENT'S CHILD WHICH WAS TAKEN WHILE HE WAS ADMITTED AT GOVERNMENT HOSPITAL, MANNARKKAD** - **ANNEXURE R3(C) THE PRESCRIPTION ISSUED BY ENT CONSULTANT DR. M. T. RANJITH ON 13.01. 2023** - **ANNEXURE R3(D) THE LETTER ISSUED BY THE HEAD MISTRESS OF THE TREND PUBLIC SCHOOL, MANNARKKAD**