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2015 DIGILAW 1560 (JHR)

Ritwik Gupta v. State of Jharkhand

2015-12-15

D.N.PATEL, RATNAKER BHENGRA

body2015
JUDGMENT : Per D.N. Patel, J I.A. No.1819 of 2015 1. This application has been preferred for ignoring the defect pointed out by the office of this Court which is in relation to filing of original Power of Attorney. 2. In view of the reasons stated in the Interlocutory Application, the defect is ignored. 3. I.A. No.1819 of 2015 is allowed and disposed of accordingly. Cont. Case (Civil) No.887 of 2014 4. This contempt application has been preferred for alleged breach of an order passed by this Court dated 23rd April, 2013 in W.P. (Cr.) (HB) (DB) No.415 of 2011. 5. Counsel for the petitioner submitted that the order passed by this Court dated 23rd April, 2013 has not been complied with by Opposite Party No.2 in its true spirit and letter, as the Opposite Party No.2 has to prefer a joint application before the Hon'ble Court at Sweden. This requirement was already pointed out in paragraph 5 onwards of the order dated 23rd April, 2013, because at Sweden, the Court had passed an order for grant of custody of the minor daughter, namely Tiyash Gupta. Custody was to be given to the petitioner as per the order passed by the Hon'ble Court at Sweden, whereas, the petitioner and Opposite Party No.2 have arrived at an amicable settlement which has been reduced in writing by an order dated 23rd April, 2013 in W.P. (Cr.) (HB)(DB) No.415 of 2011, whereby, the custody of the minor daughter was to be retained by Opposite Party No.2 and they had agreed for modification application to be preferred at the Court at Sweden. This application was to be preferred jointly and as the Opposite Party No.2 has not preferred such an application, the instant contempt application has been preferred by the petitioner-husband. 6. Counsel for the petitioner has relied upon a judgment rendered by Hon'ble Supreme Court in the case of Surya Vadanan Vs State of Tamil Nadu & Ors reported in (2015) 5 SCC 450 and another judgment in the case of Arathi Bandi Vs Bandi Jagadrakashaka Rao & Ors reported in (2013) 15 SCC 790 and has submitted that the Opposite Party No.2 has to visit the Court at Sweden so that necessary orders can be passed about the custody of the minor child. We are not in agreement with this contention of the learned counsel for the petitioner mainly for the following facts and reasons: (i) It appears from the facts of the case that initially this Opposite Party No.2 had preferred a criminal case under Section 498A of the Indian Penal Code in which there is an order upon the petitioner not to leave the country, but, he has left the country i.e. India. (ii) Consent order has been passed by this Court whereby this petitioner has agreed to give custody of the minor daughter to Opposite Party No.2 which has been reduced in writing and ultimately an order was passed in a writ of Habeas Corpus being W.P. (Cr.) (HB)(DB) No.415 of 2011. (iii) The petitioner had preferred an application in a Court at Sweden where the custody of the minor daughter was given to this petitioner, but, later on, the very same petitioner has entered into an agreement giving his consent for grant of custody of the minor child to his wife i.e. Opposite Party No.2. This consent has been given at a latter point of time after the order is passed at the Court at Sweden. (iv) Thus, at the desire of the parties i.e. the petitioner and the Opposite Party No.2, the custody of the minor daughter is with this Opposite Party No.2. The Court has to decide the disputes between the parties. If there is no dispute, nothing is to be decided by any competent Court. Looking to the facts of the present case, once a party has agreed about the custody of his minor daughter, any order passed by any court should be modified suitably. The only left out thing is now procedural aspects of the matter. (v) The Opposite Party No.2 has already given a Power of Attorney to prefer necessary application before Hon'ble Court at Sweden. This Power of Attorney holder of the Opposite Party No.2 has preferred an application before the Court at Sweden for modification of the order. This application was not in a proper format as submitted by the counsel for the petitioner. Legal aid is being provided by the Court at Sweden as per submission of counsel for both the sides. This Power of Attorney holder of the Opposite Party No.2 has preferred an application before the Court at Sweden for modification of the order. This application was not in a proper format as submitted by the counsel for the petitioner. Legal aid is being provided by the Court at Sweden as per submission of counsel for both the sides. Once a party has agreed about the grant of custody of the minor daughter to the Opposite Party No.2, proper care will be taken by the Power of Attorney holder at the Court of Sweden and, therefore, there is no willful disobedience by the Opposite Party No.2 of the order passed by this Court in a writ of Habeas Corpus being W.P. (Cr.) (HB)(DB) No.415 of 2011. (vi) The judgments cited by the counsel for the appellant are also of not much helpful to the petitioner, because, here the order passed in W.P. (Cr.)(HB)(DB) No.415 of 2011 is based upon consent about the custody of the minor daughter. Once a party has agreed to grant custody of the minor daughter to the Opposite Party No.2, nothing is left to be decided by any competent court. (vii) Criminal Complaint has been filed by this petitioner-husband against the Opposite Party No.2wife of alleged abduction after the settlement has been arrived at between them. This is the behaviour of the petitioner which is being disputed by the counsel for the petitioner. When interim order was passed by the Court under Section 498A of the Indian Penal Code by the competent court in India, the petitioner was not to leave this country, but, he has left this country. 7. It appears that the Opposite Party No.2 has given a Power of Attorney to one Ms. Chere Nelson, daughter of Jerry Allen Nelson at Sweden. It further appears that the said Power of Attorney holder has already preferred an application before the Hon'ble Court at Sweden for modification of the order, so that the Hon'ble Court at Sweden may pass an order for retaining the custody of the minor daughter by Opposite Party No.2. 8. Lot of grievances have been ventilated by the petitioner about the methodology adopted by Opposite Party No.2 and the learned counsel for the petitioner has submitted that the application is not in a proper format and no lawyer has been engaged by the Opposite Party No.2 at the Court at Sweden. 8. Lot of grievances have been ventilated by the petitioner about the methodology adopted by Opposite Party No.2 and the learned counsel for the petitioner has submitted that the application is not in a proper format and no lawyer has been engaged by the Opposite Party No.2 at the Court at Sweden. It is submitted by the counsels for both sides that the legal aid is also provided in the Court at Sweden. 9. As a cumulative effect of the aforesaid facts and circumstances of the case, there is no willful disobedience by the Opposite Party No.2 of an order passed by this Court dated 23rd April, 2013 in W.B. (Cr.)(HB)(DB) No.415 of 2011. If need arises, the Hon'ble Court at Sweden will provide legal aid to the Opposite Party No.2 (wife) so that the application may be brought in a proper format, if the same is not as per the requirement of the Court at Sweden. So far as the basic question of custody of the minor child is concerned, an agreement has already been arrived at between the parties i.e. the petitioner and the Opposite Party No.2 in India and, therefore, custody of the minor child shall remain with Opposite Party No.2, because, there cannot be a further appeal against the consent order passed by this Court and once the consent is given by the petitioner, we see no further reason to pass any order in this contempt matter, because rest of the things is procedural in nature. 10. Hence, there is no substance in this contempt application and, therefore, the same is hereby dismissed. Cont. Case (Civil) No.1053 of 2013 11. Mr. A.K. Das, learned counsel for the petitioner, submits that he does not want to press this application. 12. Hence, this contempt application is dismissed as not pressed. Application dismissed.