Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 2426 (BOM)

Kavita Krishnamurthy v. K. N. Krishnamurthy

2014-12-09

A.S.GADKARI, ABHAY SHREENIWAS OKA

body2014
JUDGMENT Abhay Shreeniwas Oka, J. 1. On the earlier date, the parties were put to notice that this Appeal will be taken up for final disposal. 2. The Appellant wife has taken an exception to the order dated 8th November, 2012 passed by the learned Judge of the Family Court at Mumbai by which a Petition being Petition No.A1464 of 2008 filed by her was dismissed by the learned Judge of the Family Court in exercise of powers under Rule 11 of Order XXXIX of the Civil Procedure Code, 1908 (for short "the said Code"). By the same order, the defence of the Appellant wife in a Petition being Petition No.D60 of 2009 filed by the Respondent husband was ordered to be struck out in exercise of powers under Rule 11 of Order XXXIX of the said Code. 3. The learned counsel appearing for the Appellant wife has taken us through the averments made in the application at Exhibit 98 filed by the Respondent husband and the reply thereto. He has also invited our attention to the order dated 13th March, 2012 passed by the learned Judge of the Family Court on application at Exhibit 98. He submitted that in terms of paragraph 8 of the said order, the learned Judge modified the earlier order regarding grant of access to the minor child. He pointed out that there is a specific observation that if the said access order is not complied with, the matter will be taken up for orders under Rule 11 of Order XXXIX of the said Code. He also invited our attention to further order dated 27th August, 2012. He also pointed out that there is a dispute between the parties as regards what transpired on 8th September, 2012. He pointed out the order made by the learned Judge on 14th September, 2012. He pointed out that a video film was made by the Appellant to show what exactly transpired on 8th September, 2012. By order dated 14th September, 2012, the marriage counsellor was ordered to see the video film and submit a report. The learned counsel appearing for the Appellant submitted that the report dated 1st October, 2012 shows that the allegation regarding noncompliance with the order of the Family Court has not been substantiated. By order dated 14th September, 2012, the marriage counsellor was ordered to see the video film and submit a report. The learned counsel appearing for the Appellant submitted that the report dated 1st October, 2012 shows that the allegation regarding noncompliance with the order of the Family Court has not been substantiated. He urged that in the impugned order, there is no finding recorded regarding the deliberate or wilful disobedience on the part of the Appellant of the orders of the Family Court. The submission is that the learned Judge has committed an error by assigning wrong meaning to the finding of the Psychiatry Department of the Nair Hospital that the Appellant has shown "MMPI fake good protocol" symptoms. He relied upon an article on subject by L.A.R. Stein and John R. Graham as well as Carolyn L. Williams. He submitted that the facts of the case in the decision of the learned Single Judge of this Court in the case of Vimi Vinod Chopra Vs. Vinod Gulshan Chopra 2012(1) Mh.L.J. 525 were completely different. He urged that as there is no finding recorded of wilful disobedience by the wife of any particular order of the Family Court, the impugned drastic order of striking out the defence as well as dismissing the Petition filed by the Appellant is illegal and harsh. 4. The Respondent husband appearing in person submitted that at no stage, the Respondent husband was given an opportunity to enjoy the company of his son whose present age is 11 1/2 years. He pointed out from the record of attendance maintained in the Children's Complex at Family Court, Mumbai that there is noncompliance of the directions contained in paragraph 8 of the order dated 13th March, 2012. He submitted that there are series of orders passed by the learned Judge of the Family Court on application at Exhibit 98 and all the orders will have to be read together to find out whether there is a categorical finding recorded of wilful breach or wilful disobedience of the orders of the Family Court. He submitted that there are categorical findings recorded by the learned Judge of the Family Court regarding deliberate noncompliance of the orders regarding access by the Appellant wife. He urged that the decision of the learned Single Judge in this case of Vimi Vinod Chopra Vs. He submitted that there are categorical findings recorded by the learned Judge of the Family Court regarding deliberate noncompliance of the orders regarding access by the Appellant wife. He urged that the decision of the learned Single Judge in this case of Vimi Vinod Chopra Vs. Vinod Gulshan Chopra will squarely apply to the facts of the present case. He urged that even the directions issued by this Court during the pendency of this Appeal have not been complied with by the Appellant. He submitted that the child is very much attached to him and the child also enjoys the company of his father. He submitted that the Court has to ensure that the orders regarding access are implemented. He, therefore, submitted that no interference is called for with the impugned order. He also pointed out that Contempt Petition filed by him is pending which will have to be heard. 5. We have given careful consideration to the submissions. Rule 11 of Order XXXIX of the said Code which reads thus : "11. Procedure on parties defying orders of Court, and committing breach of undertaking to the Court.- (1) Where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding, or where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing a thing during the pendency of the suit or proceeding, and such party commits any default in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff or the applicant, or strike out the defences, if the default or contravention or breach is committed by the defendant or the opponent. (2) The Court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court." Provided that before passing any order under this sub rule notice shall be given to the parties likely to be affected by the order to be passed." 6. Rule 11 provides for passing a drastic order of striking out the defence of the defendant or of dismissal of a suit. On plain reading of Rule 11, it is apparent that mere noncompliance or mere breach of the orders of the Court is not sufficient to pass a drastic order of striking out a defence or dismissal of the proceedings. What is required to be proved is something more than mere violation or breach. It is only in the case of wilful disobedience of the orders of the Court that the drastic power under Rule 11 can be exercised. While dealing with such prayer, it is open for the party against whom breach is alleged to show cause as to why the orders could not be complied with. Moreover, power under Rule 11 of Order XXXIX is a discretionary power. It is not necessary that in case of every case of wilful disobedience that the Court should exercise the power. In a case where the breach is of an order of custody of minor or access to minor, the Court has to keep in mind that in some cases the compliance with the order depends on the inclination of the child. 7. In the context of this legal position that the impugned order will have to be examined. We must note here that in the application at Exhibit 98, there are several breaches alleged by the Respondent husband including the breach of the order dated 12th March, 2009 directing the Appellant to furnish information regarding school related activities of the son. 7. In the context of this legal position that the impugned order will have to be examined. We must note here that in the application at Exhibit 98, there are several breaches alleged by the Respondent husband including the breach of the order dated 12th March, 2009 directing the Appellant to furnish information regarding school related activities of the son. There is a reply filed by the Appellant in which she has contended the fact that from time to time she entered into consent terms for grant of access shows that she was never interested in denying the access and defying the process of law. The other material allegations were denied in the reply filed by the Appellant. 8. The first order passed by the learned Judge of the Family Court passed on application at Exhibit 98 is of 13th March, 2012. We have carefully perused the said order. In paragraph 5 of the order, there is an observation that the wife is flouting the orders of the Court with impunity and avoiding compliance of the orders of the Court. The learned Judge has referred to the earlier orders passed by the Family Court. Paragraph 7 records the observation of the learned Judge that it would be appropriate to show mercy on the wife and allow her to comply with the orders. Therefore, the learned Judge proceeded to change the venue of the access from the place of residence of the Respondent to the Children's Complex of Family Court at Mumbai. Paragraphs 8 to 10 of the said order dated 13th March, 2012 read thus : "8. Now, petitioner is directed to produce the child Siddharth, aged 9 years, in the Children Complex, Family Court, Mumbai on every first and third of the working Saturday. The husband will have access to the child between 3.00 p.m. to 5.00 p.m. The staff of the Children Complex shall report this Court on 1-4-2012 whether the first access is complied or not. 9. Place this application before this Court on 3-4-2012 for further orders. 10. The parties shall note that if the access orders made herein are not complied, then the matter will be taken up for orders under Order 39 Rule 11 of the Civil Procedure Code." 9. 9. Place this application before this Court on 3-4-2012 for further orders. 10. The parties shall note that if the access orders made herein are not complied, then the matter will be taken up for orders under Order 39 Rule 11 of the Civil Procedure Code." 9. There is a further order dated 27th August, 2012 passed by the learned Judge in which he has recorded that the Appellant wife was ready for providing overnight access to the child to the Respondent husband. The said order refers to counseling given to the parties. Thereafter, there is an order dated 14th September, 2012. The said order deals with assurances given by the wife and willingness shown by the wife to give access to the Respondent husband to meet the child. The issue was regarding what transpired on 8th September, 2012. The Appellant produced a Pen Drive containing Videograph of the incident. The learned Judge directed the marriage counsellor to view the Video and submit a report. In the meanwhile, he directed both the parties to undergo counselling. 10. Accordingly, the marriage counsellor submitted a report dated 1st October, 2012. In the third paragraph of the report, the marriage counsellor has observed thus : "The video started with the petitioner and son waiting on the road in front of a gate. The parties informed the counsellor that it was respondent's society's gate. After some time respondent came in. The petitioner handed over child's bag to the respondent and told the child to go with him which was understood by her action. The child refused. Respondent tried to take the child with him. He was holding the child however, the child resisted him and ran back to the petitioner and holded her hand. The child was not allowing the mother to go away though she was trying. The respondent was talking to the child. It appeared that she was convincing the child to go with him. The child did not go and did not let the petitioner go hence, all three were standing near the car on the road. Through out the video it appeared that sometimes there were convincing talks, sometimes normal conversation, sometimes heated arguments." 11. Now, we turn to the impugned order. The child did not go and did not let the petitioner go hence, all three were standing near the car on the road. Through out the video it appeared that sometimes there were convincing talks, sometimes normal conversation, sometimes heated arguments." 11. Now, we turn to the impugned order. The impugned order records that the Department of Psychiatry of the Nair Hospital has observed that the Appellant wife is suffering from "MMPI fake good protocol" symptoms and the husband is suffering from "MMPI fake bad protocol" symptoms. The learned Judge seems to have not relied upon the report of the marriage counsellor on the ground that video was recorded by the Appellant wife without proper intimation to the husband. It will be necessary to make a reference to the findings recorded by the learned Judge in paragraph 7 of the impugned order which reads thus : "7. If we can peruse the report of marriage counsellor Mrs. A.R. Tularwar dt. 10th October, 2012 she has recorded that the petitioner handed over the child back to the respondent, but the child has refused to accompany the father. Before understanding this report and clipping, the Court must be taken into consideration the circumstances under which recording of the event was made. It is pertinent to note that Court has not ordered to record the events of handing over the custody of the child from mother to father. The mother has suo moto deployed the video camera and recorded the event. It is amply clear that the father respondent was not given pre intimation that the event is being videographed. The counsellor had recorded that most of the time, the petitioner wife is facing camera. These circumstances made it clear that whole exercise was choreographed by wife. She has planned to record all these things through videograph without intimating the husband. Thus, she had cheated the husband by deploying the video camera without his knowledge. The psychiatry department of Nair hospital, Mumbai has already observed that the wife has shown MMPI fake good protocol that means she is making show that she is too good. These events in the clipping shows that she attempted to give away the child to father. But the reality is different. She wanted the favourable order of the Court by misguiding Court with the choreographed event. She is too clever to do all these things. These events in the clipping shows that she attempted to give away the child to father. But the reality is different. She wanted the favourable order of the Court by misguiding Court with the choreographed event. She is too clever to do all these things. All these aspect make it clear that she is bent upon in not providing access of the child Siddharth to the husband. This attitude is unfortunate for the child. The child is being deprived from the love of father. The child is being used as pawn on the board of chess to win the battle against the husband." 12. Thereafter, the learned Judge has relied upon the decision of a learned Single Judge in the case of Vimi Vinod Chopra by observing that the facts of the said case were identical. In paragraph 8, he has observed that majesty of the Court needs to be maintained. He has observed that an opportunity was given by him to the wife to obey the orders of the Court but the opportunity has been wasted by her. The relevant finding recorded in paragraph 8 reads thus : "8... The party must obey orders of Court unless modified by the Hon'ble High Court. Considering the facts of this case, I am of considered opinion that an opportunity given to mend behaviour is wasted by wife petitioner. There is no point in giving further opportunity to mend her ways. She is bent upon to force the husband to give divorce. She will definitely play such tactics and chart out new game plan to defeat the orders of the court. Therefore, only course open to this Court is proceed as provided under order XXXIV rule 11 of Civil Procedure Code. She is not entitled for any sympathy of this Court. Therefore, it would be in the interest of justice to dismiss her petition and to strike out her defence in 'D' petition. Hence, following order is passed." 13. Thus, there is no specific finding recorded by the learned Judge of the Family Court that there was a breach of any particular order passed earlier in relation to grant of access. Moreover, there is no finding recorded regarding the wilful and deliberate disobedience of the orders of the Family Court by the Appellant. Hence, following order is passed." 13. Thus, there is no specific finding recorded by the learned Judge of the Family Court that there was a breach of any particular order passed earlier in relation to grant of access. Moreover, there is no finding recorded regarding the wilful and deliberate disobedience of the orders of the Family Court by the Appellant. Though the learned Judge has discarded the Video recording of what transpired on 8th September, 2012, he has not recorded a finding on merits that due to any overt acts or the omissions on the part of the Appellant wife that the husband could not meet the child or enjoy the company of the child on 8th September, 2012. Moreover, there is no finding recorded that what is seen in the Video is not the correct version or is a distorted version. 14. Now, we make a reference to the decision of this Court in the case of Vimi Vinod Chopra. In our view, the said decision does not help the Respondent husband. As noted earlier, drastic order under Rule 11 of Order XXXIX can be passed only if the Court comes to the conclusion that there is a wilful disobedience of the orders by a party. Mere breach or mere failure to abide by the order does not attract Rule 11 of Order XXXIX. The learned Single Judge in the said decision has recorded a finding in the facts and circumstances of the case before her that the wife has committed a complete breach of the order of access. In the facts of the case, the learned Judge came to the conclusion that it was a drastic case of complete and wilful default. Hence, the said decision will have no application. In the present case, no specific finding of wilful breach of the order has been recorded. As of the date of impugned order, it was not a fit case to pass a drastic order under Rule 11 of order XXXIX. Therefore, the impugned order will have to be set aside. Hence, the said decision will have no application. In the present case, no specific finding of wilful breach of the order has been recorded. As of the date of impugned order, it was not a fit case to pass a drastic order under Rule 11 of order XXXIX. Therefore, the impugned order will have to be set aside. It is obvious that as a result of setting aside of the impugned order dated 8th November, 2012, all orders of the Family Court, whether interim or ad interim, which were in operation on 8th November, 2012 and which stood vacated by virtue of the impugned order will stand restored and the parties will be bound by the said orders subject to further modifications which may be made by the Family Court. We make it clear that we are disturbing only the impugned order dated 8th November, 2012 and no other order passed by the Family Court. Hence, we pass the following order : ORDER (i) The impugned order dated 8th November, 2012 passed by the learned Judge of the Family Court in Petition A1464 of 2008 is hereby quashed and set aside and the application made by the Respondent at Exhibit 98 stands disposed of; (ii) We make it clear that all orders, whether interim or ad interim, passed by the Family Court which were operative on 8th November, 2012 stand restored and the parties will be bound by the said orders subject to modification, if any, which may be subsequently made by the Family Court from time to time. This direction will apply only to those orders which came to an end by virtue of the impugned order; (iii) We direct the parties to appear before the learned Judge of the Family Court on 22nd December, 2014 at 11.00 am for fixing the schedule of hearing of the Petition No.A1464 of 2008 and Petition No.D60 of 2009; (iv) We make it clear that we have made no adjudication on the merits of the pending controversy between the parties and we have examined the merits of the case only in the context of the applicability of Rule 11 of Order XXXIX of the Civil Procedure Code, 1908; (v) Petition No.A1464 of 2008 and Petition No.D60 of 2009 shall be clubbed together and shall be heard by the same learned Judge of the Family Court either together or one after the other; (vi) The Appeal is allowed with above terms with no orders as to costs; (vii) All pending Civil Applications in this Appeal stand disposed of.