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2021 DIGILAW 608 (DEL)

Mithun Radhakrishnan v. Aastha Sahdev

2021-03-15

JYOTI SINGH

body2021
JUDGMENT Jyoti Singh, J. - Present contempt petition has been filed under Sections 2, 10 and 12 of the Contempt of Courts Act, 1971 alleging willful disregard and disobedience of the order passed by the learned Trial Court on 02.05.2015 as well as non compliance of an undertaking given in Court on 02.05.2015, on oath, to abide by the terms of Memorandum of Understanding dated 30.04.2015 in the joint petition filed under Section 13 B (1) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'HMA'). 2. Petitioner and Respondent are Hindus by religion and their marriage was solemnized on 07.09.2013. There is no child from the wedlock. Subsequent to the marriage the parties lived together in Singapore where they worked and were gainfully employed. 3. On account of serious temperamental differences between the parties, they started living apart since April 2014. As the differences increased and the disputes became serious, Respondent herein left Singapore in August, 2014, after quitting her job, as the parties thought of giving some space to each other to reconcile their differences. Several efforts of resolving the differences and reconciliation failed whereupon the parties decided to dissolve the marriage, which in their perception had broken irretrievably. 4. With the efforts of friends and family the parties decided to separate amicably and to dissolve the marriage by mutual consent. Accordingly, a Memorandum of Understanding (hereinafter referred to as MOU) was arrived at between the parties on 30.04.2015 wherein it was agreed that Petitioner herein shall pay to the Respondent / wife a total sum of Rs.34 Lakhs towards full and final settlement with respect to the alimony. Out of Rs.34 Lakhs, a sum of Rs.10 Lakhs was to be paid vide Wire Transfer in Development Bank of Singapore Account, before recording the first motion in the petition for mutual consent under Section 13 B(1) of the Hindu Marriage Act. The balance amount of Rs.24 Lakhs was payable as follows :- (a) First post dated cheque for Rs.10 Lakh was to be drawn up on 01.08.2015; and (b) balance amount of Rs.14 Lakhs was payable vide a Demand Draft at the time of recording of the second motion. 5. The balance amount of Rs.24 Lakhs was payable as follows :- (a) First post dated cheque for Rs.10 Lakh was to be drawn up on 01.08.2015; and (b) balance amount of Rs.14 Lakhs was payable vide a Demand Draft at the time of recording of the second motion. 5. It was also agreed in the MOU that the Petitioner herein / husband would return all the streedhan and belongings of the Respondent before the recording of second motion and thereafter both parties shall have no claim on each other's immovable and / or any other movable property and shall not file any cases, civil or criminal against each other and the family members of each other. Both parties agreed that breach of any of the terms of the above agreement by either of the parties shall amount to a contempt of Court. 6. As per the Petitioner, it was specifically agreed between the parties that the parties shall petition the Court at Delhi praying for a decree of divorce by mutual consent and shall take steps to achieve that end. It was agreed that parties shall cooperate and facilitate the passing of a decree by a Competent Court and shall sign pleadings, swear affidavits and do all other things necessary towards effecting a divorce. 7. Pursuant to the MOU dated 30.04.2015, a petition under Section 13B(1) of the HMA was jointly filed on behalf of the parties in the Family Courts, Saket, New Delhi, being HMA Petition No.462/2015. Conciliation efforts made by the learned Trial Court were unsuccessful and consequently, joint statements of both the parties was recorded on 02.05.2015, wherein it was stated that the parties were unable to live together being incompatible and on account of temperamental differences. It was also stated by the parties that they have settled all their claims and disputes amicably vide MOU dated 30.04.2015 and the MOU was exhibited as Ex. P-1. Relevant part of the order passed by the Trial Court allowing the first motion on 02.05.2015 is as follows :- "Consequently, the joint statement of both the petitioners was recorded on 02.05.2015 wherein it is stated by both the petitioners that they were married to each other on 07.09.2013 in New Delhi at Ocean Pearl Chattarpur according to Hindu Rites and ceremonies. No child was born out of this wedlock. No child was born out of this wedlock. They have been living separately since 1st week of April, 2014 on account of temperamental differences and mental incompatibility. They have not resumed cohabitation since then. With the intervention of well wishers and family friends they have decided to dissolve their marriage by divorce by mutual consent. They have settled all their claims and disputes amicably vide MOU dated 30.04.2015 which is Ex. P-1 and as per para 9 to 11 of the petition which is Ex.P-2 in a total settlement amount of Rs.34,00,000/- (Rupees Thirty Four Lacs) as full and final settlement towards all claims of petitioner no.1/wife. Out of the total settled amount a sum of Rs.10,00,000/- (Rupees Ten Lacs) has already been transferred by petitioner no.2 in the account of petitioner no.1/wife. Out of the remaining amount of Rs.24,00,000/- (Rupees Twenty Four Lacs) a sum of Rs.10,00,000/- (Rupees Ten Lacs) is paid today vide post dated cheque bearing no.000567, dated 01.08.2015, drawn on ICICI Bank Branch Shivalik New Delhi by petitioner no.2 to petitioner no.1 in the Court. The balance amount of Rs.14,00,000/- (Rupee Fourteen Lacs) shall be paid at the time of recording of statement in second motion vide bank draft. We are giving our consent voluntarily without any fear, force or coercion. They further undertook that they shall abide by their statement made by them in Court and mentioned in the petition Ex. P-2 which bears their signatures at Point A and B. Copy of D/L. of petitioner no.1 is Ex.P-3 and that of petitioner no.2 is Ex.P-4, coloured copy of marriage card and marriage photograph are Ex.P5 & Ex.P-6. There is no collusion in filing of this petition. They prayed that their marriage be dissolved." 8. After recording the joint statements of the parties, the learned Trial Court allowed the first motion and the relevant part of the order is as follows :- "In their joint statement, both the petitioners have stated on oath that they are Hindus and their marriage was solemnized in New Delhi at Ocean Pearl Chattarpur on 07.09.2013 according to Hindu Rites and Ceremonies. Both the petitioners have been living separately since 1st week of April 2014 due to their temperamental differences. Both the petitioners have been living separately since 1st week of April 2014 due to their temperamental differences. From the joint statement of both the petitioners, it is also evident that the consent of both the petitioners qua divorce is free from force, fraud, threat, pressure, coercion or undue influence and there is no collusion between them in filing of this petition. Hence the petition is allowed keeping in view the fact that the petitioners have been living separately since 1st week of April 2014. There does not appear any possibility of reconciliation and both the petitioners appear to be sufficiently mature so as to understand the implications and effects of the divorce as they are certain that they want to part ways. The conscience of this Court is, therefore, completely satisfied that the requirements of Section 13-B(1) of the Hindu Marriage Act, 1955 have been duly satisfied in this case. Accordingly, this present petition u/s. 13-B(1) of the Hindu Marriage Act, 1955 is hereby allowed. However, the marriage of both the petitioners cannot be dissolved immediately and straight away in view of the provisions of the sub-section 13B(1I) of Hindu Marriage Act. In view of the above, the present petition is hereby disposed of. File be consigned to Record Room." 9. As per the Petitioner it is undisputed that an amount of Rs.10 Lakhs was paid to the Respondent by a Wire Transfer in the Development Bank of Singapore Account before recording the first motion and a post dated cheque dated 01.08.2015 for an amount of Rs.10 Lakhs was also handed over to the Respondent, which has been encashed. Therefore, out of a total agreed sum of Rs.34 Lakhs, a sum of Rs.20 Lakhs stands paid to the Respondent. 10. After the lapse of statutory period of six months, Petitioner sent letters to the Respondent through his Advocate to comply with the terms and conditions of the MOU as well as the undertaking given in the Court during the joint statement. Getting no response, Petitioner sent a legal notice, but to no avail. According to the Petitioner, Respondent instead of complying with the settlement terms, in the reply to the notice levelled serious allegations on the Petitioner indicating her intent not to comply with the settlement and the undertaking. Getting no response, Petitioner sent a legal notice, but to no avail. According to the Petitioner, Respondent instead of complying with the settlement terms, in the reply to the notice levelled serious allegations on the Petitioner indicating her intent not to comply with the settlement and the undertaking. Since the respondent was not coming forward for the second motion and neither refunding a sum of Rs.20 Lakhs received by her consequent to the MOU, Petitioner filed the present contempt petition. 11. Notice was issued in the present petition on 15.03.2017 and since another matter in Contempt Case (C) 772/2013 titled Rajat Gupta vs. Rupali Gupta, (2018) 249 DLT 289 , on similar facts had been referred to a Division Bench, the Court directed listing of the present petition alongwith the said case before the Division Bench. Several other contempt petitions involving common questions of law were also placed before the Division Bench and in the reference amongst the four questions of law that were to be answered by the Division Bench, the two questions which are relevant to the present petition at this stage are as follows :- "(A) Whether a party, which has under a settlement agreement decreed by a Court undertaken to file a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 or both and has also undertaken to appear before the said Court for obtaining divorce can be held liable for contempt, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13B(2) of the Act? (B) Whether by undertaking before a Court to file a second motion under Section 13B(2) of the Act, 1955 at Section 13B(1) stage or by giving an undertaking to a Court to that effect in a separate court proceeding, a party waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes, whether such right can be waived by a party under Section 13B(2) of the Act, 1955?" 12. If yes, whether such right can be waived by a party under Section 13B(2) of the Act, 1955?" 12. After a detailed consideration of the issues, the Division Bench answered question (A) by holding that the element of mutual consent is a sine qua non for passing a decree of divorce and therefore while dealing with a petition for divorce under Section 13 B of HMA, a defaulting party cannot be compelled to file or appear in the petition or motion or both to obtain divorce by mutual consent, despite a settlement agreement decreed by a Court. Question (B) was answered by holding that not withstanding any undertaking given by a party before a Court to file a second motion or at the Section 13 B(1) stage, its right to rethink / renege under Section 13 B(2) cannot be waived for the reason that the waiver is proscribed by the statute that keeps a window for the parties to withdraw the consent at any stage till the decree of divorce is finally passed. However, having so held the Division Bench clearly held that a defaulting party can be held liable for civil contempt on the ground of breaching the terms and conditions incorporated in an undertaking given to the Court or made a part of a consent order / decree. 13. The matter was thereafter placed before the Roster Bench for further proceedings. Subsequently an application for early hearing and urgent listing was filed by the petitioner which was listed before this Court on 07.08.2020. Notice was issued on the application which was accepted by counsel for the Respondent, who had appeared on advance copy of the application. After the pleadings were completed, arguments were heard and judgment was reserved directing both parties to file written submissions which were filed. I may note that ample chance was given to the counsel for the Respondent to advise his client to refund the money and honour the undertaking but the counsel insisted that the matter be heard on merits. 14. Learned counsel for the Petitioner contends that there is a deliberate and willful disobedience of the order dated 02.05.2015 passed by the learned Family Court. The MOU dated 30.04.2015 was executed by the Respondent and was a part of the petition under Section 13 B(1) of HMA supported by an affidavit of the Respondent and was duly exhibited as Ex.P-1. Learned counsel for the Petitioner contends that there is a deliberate and willful disobedience of the order dated 02.05.2015 passed by the learned Family Court. The MOU dated 30.04.2015 was executed by the Respondent and was a part of the petition under Section 13 B(1) of HMA supported by an affidavit of the Respondent and was duly exhibited as Ex.P-1. It is submitted that the Respondent has admittedly received the payment of Rs.20 Lakhs, out of the total sum of Rs.34 Lakhs, payable in terms of the MOU. Although the payments were received by 01.08.2015, over 5 years have elapsed but the Respondent has in utter disregard of the orders of the Court and the MOU not refunded the money. It is next contended by counsel for the Petitioner that by virtue of Clause 4 of the MOU, it was specifically agreed between the parties that in the event of the Respondent rescinding the terms and conditions of the settlement, the money received by her shall be returned forthwith to the Petitioner herein. Respondent had given a categorical undertaking to abide by the terms and conditions of the MOU in the joint statement, on oath, before the learned Family Court on 02.05.2015 and relies on the said part of the order. 15. Learned counsel for the Respondent, per contra, opposing the contempt petition argued that the Respondent had given no undertaking before the Trial Court to either sign, file or appear before the Court in a second motion petition under Section 13B(2) of the HMA. It is argued that in the case of Rajat Gupta (supra), the Division Bench has clearly held that a party to a settlement has the right to rethink or renege under Section 13 B(2) of the HMA. As such a liberty is proscribed by the statute and the window is kept open to withdraw the consent till the decree of divorce is finally granted. In view of this, there is no question of any willful disobedience on the part of the Respondent as alleged by the Petitioner. 16. It is next argued that even otherwise specific directions laid down by the Court in Rajat Gupta (supra) have not been followed in the proceedings of the first motion in the present case being the following : (a). 16. It is next argued that even otherwise specific directions laid down by the Court in Rajat Gupta (supra) have not been followed in the proceedings of the first motion in the present case being the following : (a). parties did not affirm or undertake on oath before the Family Court that they would be bound by the terms of the MOU; (b). there is no statement on oath that parties have fully understood the terms, consents, effect and consequences of the MOU; (c). there is no statement or undertaking on oath that parties arrived at the MOU of their own free will and volition especially when the settlement was not executed under the aegis of a Mediation Centre; (d). there is no statement on oath that parties would be liable for penal consequences in case of breach of the terms of MOU; (e). the learned Family Court did not apply its judicial mind to satisfy itself that the settlement arrived at was bonafide, equitable and voluntary in nature apart from being enforceable in law and not opposed to public policy. 17. The next contention of the Respondent is that the Petitioner has not pleaded how he is in a disadvantageous position or suffered great prejudice on account of paying a sum of Rs.20 Lakhs to the Respondent which in any case is not a huge amount considering that the Petitioner is a person of sufficient means. The Petitioner has deserted the Respondent in October 2014 and not paid a penny since then towards her maintenance and the amount of Rs.20 Lakhs has been barely enough for her survival through these years. It is also contended that even otherwise the MOU itself does not qualify as an undertaking for obtaining divorce by mutual consent and cannot be equated to an undertaking furnished before a Court. The MOU is not duly stamped and has been signed by the Petitioner under coercion. 18. Counsel for the Respondent has also urged that the MOU contemplated that the jewellery, streedhan and personal belongings of the Respondent had been returned before recording the first motion and whatever remained shall be given at the time of filing the second motion. The MOU is not duly stamped and has been signed by the Petitioner under coercion. 18. Counsel for the Respondent has also urged that the MOU contemplated that the jewellery, streedhan and personal belongings of the Respondent had been returned before recording the first motion and whatever remained shall be given at the time of filing the second motion. However, the fact is that no such articles were returned to her before or after recording the first motion and the order of the Family Court clearly does not even mention of any such articles / belongings having been returned to the Respondent. It is also submitted that the Petitioner in fact sold all her belongings kept in the matrimonial home and prematurely terminated the joint lease in respect of their shared household in Singapore, without her knowledge or consent and moved to another location. Having thus not complied with his part of the settlement terms, the Petitioner cannot allege disobedience or disregard to the terms of the settlement which, even otherwise, are not binding. The MOU clearly records that the Petitioner acknowledges the demand of the Respondent to return the clothes, personal belongings and other articles in his possession which remained to be returned before recording the second motion. Since there was no second motion filed, Petitioner continues to be in illegal possession of the articles and liable to return the same to the Respondent. 19. Counsel for the Respondent contends that the Petitioner has selectively drawn the attention of the Court to only part of the MOU and has not read the same in entirety. The same MOU also records that in case the Petitioner fails to comply with the terms of the MOU, he shall forego the amount paid so far. By not returning the articles belonging to the respondent, Petitioner has miserably failed to adhere to the terms of the MOU and has foregone the amount of Rs.20 Lakhs and is estopped from claiming the same. Counsel for the Respondent in this context relies upon Clauses 2(ii), 2(v) and 4 of the MOU. Counsel for the Respondent relies on a decision of the Coordinate Bench in DTC Workers Union (Regd.) vs. DTC & Anr, Cont. Cas. 377/2005, decided on 18.05.2009 to argue that since the contempt has penal consequences, therefore, the language of the statements or undertakings must be strictly construed. 20. Counsel for the Respondent relies on a decision of the Coordinate Bench in DTC Workers Union (Regd.) vs. DTC & Anr, Cont. Cas. 377/2005, decided on 18.05.2009 to argue that since the contempt has penal consequences, therefore, the language of the statements or undertakings must be strictly construed. 20. Arguing in rejoinder, counsel for the Petitioner submits that the Respondent had amicably resolved the disputes between the parties and executed the MOU in terms of the settlement arrived at out of her free will and without any coercion. The pleadings in the joint petition were read over to the Respondent and accepted by her to be true. The Respondent has not substantiated by any pleadings or evidence that the settlement recorded in the MOU or the joint statements before the Court were not willful or was under coercion. 21. With respect to the belongings of the Respondent, it is argued that most of the belongings were taken back by the Respondent's parents while taking her back to India from Singapore in October 2014 and the rest of them were sent back with one Mr. Ruchir Sachdev, childhood friend of the Respondent, who was residing in Singapore and was travelling to Delhi. Some pending items that remained were sent in a shipment in March 2015 and were delivered at the Petitioner's expense to the Respondent's house in Delhi. As far as the lease of the shared household in Singapore was concerned, it was argued that the lease was for a period of two years and had to be prematurely terminated owing to Respondent's mental health and in fact the Petitioner had to forfeit 4800 Singapore Dollars and was forced into living in a temporary accommodation. 22. Counsel for the Petitioner strenuously argued that the Respondent belongs to a very affluent family and has property, shares and assets in her name including being an heir to a family who owns a 100 Crore plus enterprise and is a shareholder in the same. Immediately after the first motion, Respondent moved to Philippines to work at the biggest telephone company called Globe Telecom and is presently in Canada. Immediately after the first motion, Respondent moved to Philippines to work at the biggest telephone company called Globe Telecom and is presently in Canada. It is thus prayed that the Respondent be punished for contempt and also be directed to refund a sum of Rs.20 Lakhs to the Petitioner forthwith along with interest at the rate of 18% p.a. and restore the parties to the position that prevailed prior to the recording of the Memorandum of Settlement. 23. I have heard the learned counsels for the parties and examined their rival contentions. It is an undisputed fact between the parties that due to a marital discord between them they decided to part company and mutually settled their differences and claims by executing the MOU dated 30.04.2015. Relevant part of the MOU is extracted hereunder for ready reference:- "NOW THIS SETTLEMENT STATES AS FOLLOWS: i) That the jewellery as stated in preceding paras shall be handed over by each party to the part of the other party before the recording of the Second Motion of the petition for mutual consent divorce filed under Section 13 B (2), Hindu Marriage Act. ii) The clothes, personal belonging and other articles if any of the party of the First Part have already been handed over to the aforesaid party by the party of the Second Part and as far as the balance is concerned it shall be returned at any convenient time before the recording of the second motion. iii) That with respect to the total settlement amount of Rs. 34 lakhs (Thirty Four Lakhs) it has been mutually agreed between the parties that the amount of Rs. 10 lakhs (Ten Lakhs) shall be given by the party of the Second Part to the party of First Part before the process of recording of the First Motion of the Petition filed under Section 13 B (1) for mutual divorce under the Hindu Marriage Act, 1955, and shall be deposited in her account No. 0081056551 with Development Bank of Singapore through wire transfer. The balance amount of Rs. 24 lakhs (Twenty Four Lakhs) shall be given by the party of the Second Part to the party of First Part in two instalments: Rs. The balance amount of Rs. 24 lakhs (Twenty Four Lakhs) shall be given by the party of the Second Part to the party of First Part in two instalments: Rs. 10 Lakhs shall be given to the party of the first part by the party of the second part vide postdated cheque on 1 August 2015 and the balance 14 Lakhs shall be paid vide bank draft at the time of recording of the second motion. iv) That on receipt of the clothes, personal belongings, jewellery and the agreed amount of Rs. 34 lakhs (Thirty four lakhs) as mentioned in the preceeding Paras there shall be no claim, right, title, interest of either party against each other or against each others assets or any movable or immovable properties. It is being recorded by the parties, and all concerned, that with the coming into effect of this settlement, and with the execution of this Memorandum, both the parties shall refrain from initiating any litigation, complaint, petition, or other motion before any Court of law, law enforcement authorities, and any other Judicial, quasi-judicial, or any other forum, and that the entire settlement between the parties is recorded herein. The parties agree to be solemnly bound by these terms, and to undertake before the Court in question, that they shall be bound by these terms. v) That it is mutually agreed between both the parties that the First Motion under Section 13 B(l) the Hindu Marriage Act, 1955 shall be moved before the Competent Court forthwith on signing of this Memorandum of Settlement. Every endeavor shall be made by both the parties to have the First Motion for divorce by way of mutual consent be listed before the Hon'ble Court before immediately on signing of the first motion and second motion after the passage of six months thereafter, but without any further delay. 3. That this memorandum of settlement has been entered into between the parties i.e. party of First Part and party of the Second Part voluntarily out of their own free will, and volition without any undue force, pressure or coercion from any side whatsoever. 4. 3. That this memorandum of settlement has been entered into between the parties i.e. party of First Part and party of the Second Part voluntarily out of their own free will, and volition without any undue force, pressure or coercion from any side whatsoever. 4. That it is also agreed between the parties herein that in the event of the first party rescinding the terms and conditions of this settlement as stipulated hereinabove, the money received by the party of the first part shall be returned forthwith to the party of the second part. In case of the second party failing to comply with the terms hereinabove, the party of the second part shall forego the amount paid so far. 5. The principal parties to this memorandum, Aastha Sahdev and Mithun Radhakrishnan, agree to the terms stipulated in this Memorandum of Settlement and sign accordingly." 24. It is equally undisputed that taking forward the understanding under the MOU, the parties filed a petition under Section 13B(1) of the Hindu Marriage Act, 1955 to record the first motion for dissolution of marriage by mutual consent. On 02.05.2015 joint statements of the parties in first motion were recorded by the Court, wherein it was categorically stated that the claims and disputes had been amicably settled vide MOU dated 30.04.2015, which was Ex.P1 and in the statement there was a clear reference to the total settlement amount of Rs. 34 Lakhs as full and final settlement towards the claim of the Respondent herein and the modalities of payment of the said amount including the schedule of payment by the Petitioner. Relevant would it be to note that pursuant to the MOU, Petitioner has paid a sum of Rs. 20 Lakhs to the Respondent and there is no dispute by the wife to this extent. 25. What emerges from a careful reading of the MOU is that the understanding of the parties was on three aspects. The parties had agreed to undergo the divorce by mutual consent and file the first and the second motion. A sum of Rs. 34 Lakhs was payable by the Petitioner towards full and final settlement of the claims of the Respondent and the time limits for payment were also agreed to. Petitioner was obliged to return the streedhan and other articles/belongings of the Respondent before recording of the second motion. Petitioner having paid a sum of Rs. A sum of Rs. 34 Lakhs was payable by the Petitioner towards full and final settlement of the claims of the Respondent and the time limits for payment were also agreed to. Petitioner was obliged to return the streedhan and other articles/belongings of the Respondent before recording of the second motion. Petitioner having paid a sum of Rs. 20 Lakhs, called upon the Respondent, after lapse of statutory period of six months, through his counsel's letter dated 16.12.2015 and 07.07.2016 to comply with the terms of the MOU and the undertaking given before the Family Court during the first motion to file a joint petition for second motion. Getting no response a legal notice dated 03.10.2016 was sent by the Petitioner to take steps so that petition under Section 13B(2) could be filed at the earliest for the second motion. Respondent replied to the legal notice through her counsel on 07.11.2016 and as is obvious from reading of the contents of the reply leveled several allegations and resisted the second motion. Since the Petitioner had paid a sum of Rs. 20 Lakhs and according to him there was a breach of the undertaking to the Court, he filed the present petition. 26. The issue that arises before this Court is whether the Respondent has given an undertaking before the Court and if so, whether there is a willful breach of the said undertaking to amount to contempt of the Court under Section 2(b) of the Contempt of Courts Act, 1971. In order to answer these questions the Court would require to examine the MOU and the statements given before the Court and the order passed thereon coupled with the provisions of the Contempt of Courts Act, 1971 and the law on the subject. 27. Since an argument has been raised by the learned counsel for the Respondent that no undertaking was given before the Court, it would be appropriate to reproduce the joint statement made by the parties before the Court on 02.05.2015 as under :- "We were married to each other on 07.09.2013 in New Delhi at Ocean Pearl Chattarpur according to Hindu Rites and ceremonies. No child was born out of this wedlock. We have been living separately since 1st week of April 2014 on account of temperamental differences and mental incompatibility. We have not resumed cohabitation since then. No child was born out of this wedlock. We have been living separately since 1st week of April 2014 on account of temperamental differences and mental incompatibility. We have not resumed cohabitation since then. With the intervention of well wishers and family friends we have decided to dissolve our marriage by divorce by mutual consent. We have settled all our claims and disputes amicably vide MOU dated 30.04.2015 which is Ex. P-1 and as per para 9 to 11 of the petition which is Ex. P-2 in a total settlement amount of Rs 34,00,000/- (Rupees Thirty Four Lacs) as full and final settlement towards all claims of petitioner no. 1/wife. Out of the total settled amount a sum of Rs.10,00,000/- (Rupees Ten Lacs) has already been transferred by petitioner no. 2 in the account of petitioner no. 1/wife. Out of the remaining amount of Rs 24,00,000/- (Rupees Twenty Four Lacs ) a sum of Rs 10,00,000/- (Rupees Ten Lacs) is paid today vide post-dated cheque bearing no. 000567, dated 01.08.2015, drawn on ICICI Bank Branch Shivalik New Delhi by petitioner no. 2 to petitioner no. 1 in the court. The balance amount of Rs 14,00,000/- (Rupees Fourteen Lacs) shall be paid at the time of recording of statement in second motion vide bank draft. We are giving our consent voluntarily without any fear, force or coercion. We further undertake that we shall abide by our statement made by us in court and mentioned in the petition Ex. P-2 which bears our signatures at point A and B. Copy of DL of petitioner no. 1 is Ex. P-3 and that of petitioner no. 2 is Ex. P-4, coloured copy of marriage card and marriage photograph are Ex. P-5 & Ex. P-6. There is no collusion in filing of this petition. We pray that our marriage be dissolved." 28. The order passed by the Court has already been extracted in the earlier part of the judgement. 29. Section 2(b) of the Contempt of Courts Act defines 'Civil Contempt' which clearly includes breach of an undertaking given to the Court. Section 2(b) is as follows:- "2. Definitions. - In this Act, unless the context otherwise requires, (a) ********** ********** ********** (b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court" 30. Section 2(b) is as follows:- "2. Definitions. - In this Act, unless the context otherwise requires, (a) ********** ********** ********** (b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court" 30. Black'S Law Dictionary, 5th Edn. defines 'undertaking' in the following words:- "A promise, engagement, or stipulation. An engagement by one of the parties to a contract to the other, as distinguished from the mutual engagement of the parties to each other. It does not necessarily imply a consideration. In a somewhat special sense, a promise given in the course of legal proceedings by a party or his counsel, generally as a condition to obtaining some concession from the court or the opposite party. A promise or security in any form." 31. The Division Bench of the Bombay High Court in Bajranglal Gangadhar Khemka vs. Kapurchand Ltd., (1950) AIR Bombay 336 held that there is no reason why even in a consent decree a party may not give an undertaking to the Court. Although the Court may be bound to record a compromise, yet when the Court passes a decree, it puts its imprimatur upon those terms and makes the terms a rule of the Court. Relevant para is as follows:- "4. We are not prepared to accept a position which seems to us contrary to the long practice that has been established in this Court, and, apparently, also in England. There is no reason why even in a consent decree a party may not give an undertaking to the court. Although the court may be bound to record a compromise, still, when the court passes a decree, it puts its imprimatur upon those terms and makes the terms a rule of the court; and it would be open to the court, before it did so, to accept an undertaking given by a party to the court. Therefore, there is nothing contrary to any provision of the law whereby an undertaking cannot be given by a party to the court in the consent decree, which undertaking can be enforced by proper committal proceedings." 32. In Mohd. Therefore, there is nothing contrary to any provision of the law whereby an undertaking cannot be given by a party to the court in the consent decree, which undertaking can be enforced by proper committal proceedings." 32. In Mohd. Aslam vs. Union of India, (1994) 6 SCC 442 , Supreme Court was dealing with contempt proceedings with respect to the failure of obedience of the Ministers to judicial pronouncements and the flouting of the orders passed on the basis of statements made before the Court. In the context of the expression 'undertaking' the Court observed as follows:- "The Chief Minister having given a solemn assurance to the National Integration Council and permitted the terms of that assurance to be incorporated as his own undertaking to this Court and allowed an order to be passed in those terms cannot absolve himself of the responsibility unless he placed before the Court sufficient material which would justify that he had taken all reasonable steps and precautions to prevent the occurrence." 33. In Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360 the Court again dealing with the breach of an undertaking held as follows:- "The willful breach of an undertaking given to a court amounts to "civil contempt" within the meaning of Section 2(b) of the Contempt of Courts Act. The respondents having committed breach of the undertaking given to the Supreme Court in the consent terms they are clearly liable for having committed contempt of court." 34. Useful it would be to refer to the judgement in the case of Noorali Babul Thanewala vs. K.M.M. Shetty, (1990) 1 SCC 259 where the issue was a breach of an undertaking given by a tenant to the Supreme Court to deliver possession of the premises in question. Holding the tenant guilty of contempt, Supreme Court held as follows:- "11. When a court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the court by or on behalf of a party to a civil proceedings is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. The breach of an undertaking given to the court by or on behalf of a party to a civil proceedings is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt." 35. Relying on the above mentioned judgements and several others on similar lines, the Supreme Court in second Rama Narang (5) v. Ramesh Narang, (2009) 16 SCC 126 held that willful breach of an undertaking given to a Court amounts to Contempt of Court under Section 2(b) of the Act. Similarly in Shoreham-by-Sea Urban District Council v. Dolphin Canadian Proteins Limited,1972 71 LGR 261, the Court observed that failure to comply with an undertaking should be visited with a substantial fine. 36. Relying on the said judgement a Co-ordinate Bench of this Court in DKC vs. KC, (2016) 227 DLT 1 observed that an undertaking has the force of injunction. It has the same penalties for failure to abide as injunction. Court also observed that it is all too easy for people to promise and all too easy for them to break that promise. Relevant para is as follows:- "57. In the opinion of this Court, it is important for parties to appreciate that an undertaking has all the force of an injunction. It is equally as important as an injunction, and it has the same penalties for failure to abide by it as an injunction. It is all too easy for people to promise and all too easy for them to break that promise. Then they, quite rightly, have to face the wrath of the court for having made promises which were not worth the paper which they have signed." 37. Reading of these judgements clearly leads to a conclusion that a willful breach of an undertaking given to a Court amounts to Contempt of Court under Section 2 (b) of the Act. Then they, quite rightly, have to face the wrath of the court for having made promises which were not worth the paper which they have signed." 37. Reading of these judgements clearly leads to a conclusion that a willful breach of an undertaking given to a Court amounts to Contempt of Court under Section 2 (b) of the Act. There is no doubt on the proposition of law that the disobedience of a Court order or breach of the undertaking must be 'willful' to amount to a civil contempt. 'Willful' means an act or omission which is done voluntarily and intentionally with a specific intent to do something, the law forbids or with an intent to fail to do something which the law requires to be done. Each case therefore has to be judged on its own facts to ascertain if the disobedience/breach is willful or otherwise. 38. In the case of Kanwar Singh Saini vs. High Court of Delhi, (2012) 4 SCC 307 , Supreme Court held that whenever a breach of an undertaking is alleged the Court must satisfy itself that the breach is willful and intentional. This was so, because the action taken by the Court leads to a penalty including an order of imprisonment. I may also refer to paras 22 & 23 of the judgement of the Bombay High Court in Nirmal Urban Co-operative Bank Ltd. vs. Mamta Keneddy Naidu,2019 SCCOnLineBom 5636, which are as follows:- "22. In an earlier case decided by the Hon'ble Supreme Court in Bank of Baroda Vs. Sadruddin Hasan Daya and another, (2004) 1 SCC 360 , the Court considered such a situation of breach of undertaking. In that case also on facts the Court found that the contemnor had wilfully breached the undertaking given to the Court. This was because the contemnor in a consent order had specifically stated that no charge would be brought on specific properties and yet in a subsequent case also disposed of on consent terms, an undertaking was again given creating a charge on the very same properties. This was found by the Court to be unacceptable and clear breach or violation of the undertaking given to the Court in the first proceeding. In this case also on facts, the Court found that there was violation or breach of undertaking amounting to contempt of the Court, inviting punishment under the said Act. 23. This was found by the Court to be unacceptable and clear breach or violation of the undertaking given to the Court in the first proceeding. In this case also on facts, the Court found that there was violation or breach of undertaking amounting to contempt of the Court, inviting punishment under the said Act. 23. Thus, the position of law that emerges from the aforesaid judgments shows that when the proceeding is disposed of by the Court on consent terms executed between parties, the Court grants its approval or imprimatur to such consent terms. What is essential to be examined is, whether in the facts of a particular case the undertaking given by a party is such that the breach of the undertaking has the consequence of defiance and disobedience of the Court itself. In the present case, the consequence of the failure on the part of the respondent to abide by the undertaking incorporated in Clause 8 of the minutes of the order, was clearly an action available to the petitioner bank under Clause 9 of the minutes of the order. As noted above, this might appear to be onerous for the petitioner bank, but, since it agreed to such specific terms in the minutes of the order, full effect needs to be given to the fall out of Clauses 8 and 9 read together. It is relevant that the manner in which the minutes of the order were drafted, the possession and attachment of the flat has continued with the petitioner bank and it is not as if the respondent got away with the property mortgaged to the bank, as well as being relieved of the obligation of returning the outstanding amount. In this situation, this Court is unable to come to a conclusion that failure on the part of the respondent to abide by the requirements of Clause 8 of the minutes of the order would result in punishment of the respondent for contempt of this Court under Section 12 of the said Act." 39. Examined on the touchstone and anvil of the above judgements, in my view, Respondent had clearly given an undertaking to the Court when the joint statement was recorded on 02.05.2015. It was stated that the claims and disputes were settled between the parties amicably. Examined on the touchstone and anvil of the above judgements, in my view, Respondent had clearly given an undertaking to the Court when the joint statement was recorded on 02.05.2015. It was stated that the claims and disputes were settled between the parties amicably. The modalities of settlement were drawn up in an MOU and the said MOU was exhibited during the joint statement. As a part of the undertaking, the Respondent had agreed to accept a sum of Rs. 34 Lakhs towards full and final settlement, though in three different tranches and undertook to file a petition for divorce by mutual consent (first motion and second motion). Admittedly the Respondent has accepted Rs. 20 Lakhs out of the sum of Rs. 34 Lakhs but has not come forward for the second motion and has neither returned the sum of Rs. 20 Lakhs which were payable as a part of the overall settlement. 40. As mentioned above the Division Bench of this Court in Rajat Gupta (supra) has answered the reference by holding that the defaulting party cannot be compelled to file or appear in the petition under Section 13B of the Hindu Marriage Act on the first motion or both as this would impinge on the jurisdiction of the Court which has an obligation under the statute to undertake an independent inquiry before passing a decree of divorce and will also encroach upon a statutory right of a party to reflect/revisit and retract from its decision of going ahead for grant of divorce by mutual consent, during the cooling off period. In view of this decision, this Court cannot hold the Respondent guilty of contempt for not having joined for filing the second motion. However, in the same judgement the Division Bench has clearly held that a defaulting party can be held liable for civil contempt on the ground of breaching the terms and conditions incorporated in an undertaking given to the Court or made a part of a consent order/decree. This is of course with a rider that the aggrieved party takes a plea that as a consequence of the breach, he/she has been placed in a disadvantageous position or has suffered an irreversible/grave prejudice. This is of course with a rider that the aggrieved party takes a plea that as a consequence of the breach, he/she has been placed in a disadvantageous position or has suffered an irreversible/grave prejudice. The Court further held that in such an event the Contempt Court would also have the jurisdiction to direct restoration of status quo ante and direct the defaulting party to disgorge all the benefits etc. that have inured in his/her favour. Relevant para of the said judgement is as under:- "60. ********** (c) At the same time, a defaulting party can be held liable for civil contempt on the ground of breaching the terms and conditions incorporated in an undertaking given to the court or made a part of a consent order/decree. In the event the aggrieved party approaches the court for initiation of contempt proceedings against the defaulting party for willful/deliberate breach of any of the terms and conditions of an undertaking/settlement agreement/consent order or a decree and takes a plea that as a consequence thereof, he/she has been placed in a disadvantageous position or has suffered an irreversible/grave prejudice, the court in exercise of its inherent powers of contempt, supplemented by the 1971 Act has the requisite jurisdiction to entertain the petition and direct restoration of status quo ante in every possible way. Besides directing the defaulting party to disgorge all the benefits/advantages/ privileges that have/would have enured in its favour and restoring the parties to the position that was before they had arrived at such a settlement/agreement/undertaking and/or before the consent order/decree was passed in terms of the settlement arrived at/undertakings recorded, the court has the discretion to punish the defaulting party for civil contempt, depending on the facts of a given case. Thus, contempt jurisdiction operates in a different field and is uninfluenced by the fetters imposed on a court under the Act of 1955. The only rider to the above is that no direction can be issued even in contempt proceedings to compel the defaulting party to give its consent for a decree of divorce by mutual consent, as it is opposed to the object, policy and intent of Section 13B of the Hindu Marriage Act." 41. The only rider to the above is that no direction can be issued even in contempt proceedings to compel the defaulting party to give its consent for a decree of divorce by mutual consent, as it is opposed to the object, policy and intent of Section 13B of the Hindu Marriage Act." 41. Analysed in the light of the above observations of the Division Bench, in my opinion, the Respondent has clearly breached the undertaking given to the Court inasmuch as having received the money to the tune of Rs. 20 Lacs, she has resisted returning the same to the Petitioner. The Petitioner had parted away with a sum of Rs. 20 Lacs towards settlement and divorce by mutual consent, however, on account of the retraction/failure of the Respondent to abide by the undertaking, he has neither been successful in getting a divorce and nor has recovered his money and is without a doubt in a disadvantageous position. 42. Learned counsel for the Respondent had laboured hard to contend that the MOU was not signed and executed under the aegis of a Mediation Centre and has been signed under coercion, pressure and duress of the Petitioner. I do not find any force in the said contention of the Respondent for two-fold reasons. A perusal of the MOU reveals that in para 3 of the MOU, it was clearly mentioned that the parties had voluntarily out of their own free will and volition without any undue force, pressure or coercion entered into the MOU. In para 4, it was categorically mentioned that in the event of the respective parties rescinding from the terms of the agreement, the consequences would follow and the consequences are mentioned therein. Likewise in the joint statement before the Court, the Respondent had categorically stated that she was giving her consent voluntarily without any fear, force or coercion and undertook to abide by the statement made in the Court. Significantly, after signing the MOU and the joint statement, the Respondent never raised any issue or made any complaint in any Forum of law that the MOU or the joint statement were under force or coercion. 43. Significantly, after signing the MOU and the joint statement, the Respondent never raised any issue or made any complaint in any Forum of law that the MOU or the joint statement were under force or coercion. 43. Insofar as the argument that the Petitioner has not returned the Streedhan and other belongings of the Respondent and therefore, has breached the MOU, giving the right to the Respondent to forfeit the money received, I may note that this stand has been taken for the first time in the reply to the present contempt petition. The Respondent has at no point prior to the filing of the reply taken a position that the Streedhan/belongings have not been returned. On the contrary, the Petitioner has brought out in detail in the rejoinder the various modes and occasions when the belongings were returned to the Respondent. Significant it would be also to note that the Petitioner had sent a legal notice to the Respondent on 03.10.2016 calling upon her to file the second motion. Respondent had replied to the said notice through her counsel and the reply is on record. The reply runs into nearly 4 pages and has been drafted carefully by a counsel. While the Respondent through her counsel has, in the detailed reply, levelled several allegations on the Petitioner and resisted the second motion, however, there is not a whisper that the Streedhan/belongings of the Respondent were not returned by the Petitioner. No complaint with any Authority or Court has been filed and no contempt of the undertaking to return the Streedhan has been filed either. Clearly the stand of the Respondent that she has not received Streedhan is an afterthought and has been set up as a defence only to justify the breach of her undertaking before the Court. I also found that all the guidelines framed by the Court are met in the MOU as a bare reading of it would show. 44. Supreme Court in the case of Rama Narang vs. Ramesh Narang, (2006) 11 SCC 114 has held that in order to maintain sanctity of the orders of the Court, it has become imperative that those who are guilty of deliberately disregarding the orders of the Court in a clandestine manner should be appropriately punished. 44. Supreme Court in the case of Rama Narang vs. Ramesh Narang, (2006) 11 SCC 114 has held that in order to maintain sanctity of the orders of the Court, it has become imperative that those who are guilty of deliberately disregarding the orders of the Court in a clandestine manner should be appropriately punished. It was further held that the Majesty of the Court and the Rule of Law can never be maintained unless this Court ensures meticulous compliance of the orders. A Division Bench of this Court in Mohan Nair vs. Rajiv Gupta, 2015 DLT 332 , held that to say that the orders of the Court are not implementable or unenforceable will make the law and the Court a laughing stock and therefore, it is the duty of every Court to prevent its machinery from being made a sham, thereby running down the Rule of Law and rendering itself an object of ridicule. Supreme Court in Sukhdev Singh vs. Honble C.J.S. Teja Singh & Ors., (1954) SCR 454 AIR while recognising that the power of the High Court to institute proceedings for contempt and punish the contemnor when found necessary is a special jurisdiction which is inherent in all Courts of Record. 45. Respondent has clearly breached the undertaking given in the MOU dated 30.04.2015 and recorded by the Trial Court in its order dated 02.05.2015. Respondent is held guilty of contempt of the said undertaking as well as the order of the learned Trial Court. 46. To come up on 26.04.2021 for order on sentence. Respondent is directed to remain present in Court on the said date.