Anshuman Sharma vs Monica Gupta on 20 December, 2008

IN THE HIGH COURT OF DELHI AT NEW DELHI MAT APP. No. 38/2006

20.12.2008

Judgment reserved on: November 22, 2007 Judgment delivered on: December 20,,2008 Anshuman Sharma …… Appellant Through: Mr. Aman Lekhi, Sr. Advocate with Mr. D.K. Singh, Adv.

versus

Monica Gupta ….. Respondent

Through: Mr. Sunil Gupta, Sr. Advocate with Mr. Jatin Zaveri , Adv. CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may Yes be allowed to see the judgment?

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported Yes in the Digest?

KAILASH GAMBHIR, J.

In the ever increasing disputes in the matrimonies the worse sufferers are the children, who not only get deprived of love, care and affection of one of their parent but practically become target for the parties

to score over one another in this mad race and obsession of winning possession,

exclusive control and custody of the children. The children have practically no

role in breaking of the marriage, but he or she suffers. The marital discord

sometimes reaches a stage where the parties are unmindful of what psychological,

mental and physical impact it has on children. Children whose parents divorce

witness negative family interaction prior to a divorce and also experience many

life transitions and strained familial relationships after divorce. Marriages

that end in divorce typically begin a process of unraveling, estrangement, or

emotional separation years before the actual legal divorce is obtained. During

the course of the marriage, one or both of the marital partners begins to feel

alienated from the other. Conflicts with each other and with the children

intensify, become more frequent, and often go unresolved. Feelings of bitterness, helplessness, and anger escalate as the spouses weigh the costs and

benefits of continuing the marriage versus separating. For both parents and

children, the most difficult and stressful phase of the divorce process is

usually the period leading up to and immediately following parental separation

and divorce. In addition, the process of unraveling and family dissolution

continues, coupled with numerous potentially life-altering transitions for

children. The case at hand is a classic example of such a situation where the

parents obsessed with the idea of obtaining exclusive control of their child

fought bitter legal battles and traversed the corridors of several courts

including this court.

The present appeal is filed under Section 28 (2) of the Hindu Marriage Act assailing the order dated 4/11/2006 passed in execution case no. 18/2006

filed for execution of decree dated 12/11/2002 passed in HMA no?s 340/2002 and

956/2002.

The brief facts of the case relevant for deciding the dispute between the parties as set out in the appeal are as under: On 6.12.1994 petitioner and the respondent were married at New Delhi. From the wedlock on 31.7.2000 a daughter was born to the parties. Soon serious

and irreconcilable differences arose between the parties and resultantly, on

18.5.2001 the petitioner was constrained to move out of the then matrimonial

home and shift to another premises at Delhi with his daughter. Thereafter, on

22.5.2001 the respondent came to the residence of the petitioner and during the

absence of the petitioner took away the daughter on the pretext of inoculation.

The respondent refused to return the daughter to the petitioner. Thereafter, the

respondent filed and initiated various criminal complaints/proceedings against

the petitioner and his parents (being Case FIR No.163/2001 under Sections

498A/405 IPC entitled `State vs. T.R. Sharma and Criminal Complaint No.307/1 of

2002 titled Manika Jain vs. Anshuman Sharma and Others). A petition under

Section 12(1)(ia) of the Hindu Marriage Act was filed by the respondent alongwith applications under Sections 24, 25, 26 and 27 of the Hindu Marriage

Act. All through, the respondent denied access of the daughter to the petitioner. The petitioner on 27.9.2001 filed a petition under Section 25 of the

Guardian and Wards Act (Petition no.105 of 2001) seeking the custody of his

daughter before the Guardianship Court, Tis Hazari, Delhi. The learned Guardianship Court on 28.9.2001 was pleased to pass an order restraining the

respondent from taking away the daughter out of the jurisdiction of the Court.

Thereafter, on 24.12.2001 the learned Guardianship court passed an order

granting interim custody to the respondent. Aggrieved by the said order dated

24.12.2001, the petitioner filed a Revision Petition before the Hon?ble Court of

the Delhi (being CR No.4 of 2002) The respondent in January, 2002 obtained

release from her Delhi posting and immediately left with the daughter to Yangon

(Myanmar) without informing the petitioner as to her whereabouts. The petitioner, who along with his family felt harassed by their involvement in

criminal cases and not wanting the daughter to be embroiled in this seemingly

never ending battle between the parents, and keeping in view the best interest

of the daughter, entered into a Memorandum of Understanding (the MOU) with the

respondent on 28.10.2002, in terms whereof the parties agreed to withdraw all

pending proceedings filed by them. On the strength of the assurance from the

respondent that he would have unfettered right to temporary custody of the

daughter for a period of 30 days in a year, the petitioner agreed to withdraw

his claim to permanent custody. Accordingly, under Clause 7 of the MOU it was,

inter-alia agreed that the custody of the daughter (who at the time was 2 years

and 2 months of age) shall permanently rest with the respondent and the petitioner shall have the right to have temporary custody of the daughter once

in each calendar year for a period of 30 days during the school vacations of the

child irrespective of the place of posting/residence of the respondent. Under

Clause 9(C), it was agreed that in the event the parties are posted at different

places abroad or one in posted in India and one in abroad, the respondent shall

inform the petitioner one month in advance about the programme of school

vacations of the child so that the petitioner may come to pick-up the child for

exercising his rights of custody of the child. At the end of the stipulated

period of custody of the child, the respondent shall visit the place of posting

of the petitioner to take the child back and the petitioner thereon shall be

duty bound to hand over the child back to the respondent. Under Clause 14 the

parties undertook to sign the necessary petitions/applications/undertakings to be moved as mentioned in the MOU as may be required to give effect to the terms

of the MOU. Under Clause 17 it was agreed that in case the terms and conditions

recorded in the MOU were not given effect to and/or implemented and/or any party

fails to appear before any court of law to give effect to the MOU, the present

MOU shall be deemed to become non est and null and void and the parties would be

free to seek their respective remedies in courts of appropriate jurisdictions

without prejudice to their respective rights and contentions. By addendum dated

7.11.2002 to the aforesaid MOU it was inter alia, agreed that the party residing

abroad shall provide requisite letter, if necessary, to the other party for

obtaining VISA. In pursuance of the said MOU and addendum, the parties filed

petitions for dissolving their marriage by mutual consent in terms of the MOU

and addendum aforesaid. Both parties took solemn undertaking before the Court to

abide by the terms and conditions of MOU dated 18.10.2002 and Addendum dated

7.11.2002 to it. A decree of divorce by mutual consent was passed on 12th

November, 2002. Pursuant to and on the basis of the said MOU on 14.11.2002 the

criminal proceedings filed against the petitioner and his family were withdrawn

by the respondent. A Joint Application under Order 23 Rule 3 of the CPC was

filed by both the petitioner and the Respondent (being CM No.2465 of 2002)

before this Court in CR No.4 of 2002 and the said petition was dismissed as

withdrawn by order dated 1.11.2002 after this Court recorded the undertaking of

both the parties to abide by the terms and conditions contained in the MOU.

After entering into MOU and addendum thereto and further getting the marriage

dissolved and Civil Revision No.4/2002 being withdrawn, the respondent flouted

clause 7 of the said MOU and did not hand over the custody of the daughter to

the petitioner for a period of 30 days during summer vacation of the school in

May-June 2003 and created such a situation that it became impossible for the

petitioner to have any access to his daughter. Since the respondent had committed a breach of her undertaking given to this Court of Delhi in Civil

Revision No.4 of 2003 and also violated the direction as given to the parties

in the order dated 1.11.2002 on 22.9.2003 the petitioner filed a Civil Contempt

Petition before this Court, being CCP No.544 of 2003. On 22.9.2003 the Hon?ble

High Court was pleased to issue notice to the respondent to show cause why

contempt proceedings be not initiated. On 28.11.2003 this Court, taking a

serious view of the conduct of the respondent and of the breach by her of the

undertaking given before this Court and also taking note of the petitioner?s

lack of success in obtaining a visa for Myanmar, directed that the petitioner

would take temporary custody of the daughter from Calcutta on the date of her

arrival. The respondent was directed to take custody of the child from the

petitioner at Calcutta with the expenses to and fro for Myanmar to be borne by

the petitioner. On 6.12.2003 the petitioner took temporary custody of the

daughter from the respondent at Calcutta and the daughter remained for some time

with her father and paternal grandparents. On 6.1.2004 the custody of the

daughter, as per the instructions of this court, was handed over to the respondent at New Delhi. In compliance with the directions given by this court,

the petitioner paid to the respondent a sum of Rs.22,600/- being the amount

expended by the respondent as per the photocopies of the air tickets handed

over to the petitioner by the respondent. On 10.1.2004 to exercise his right of

one month custody in 2004, based on the holiday schedule as furnished to him by

the day care center, the petitioner wished to exercise his right of temporary

custody of 30 days for the year 2004 in the month of July, 2004 and by letter

dated 10.1.2004 requested the respondent to let the child spend her July, 2004

break with the petitioner and requested the respondent to confirm the same by

end of January, 2004 so as to enable the petitioner to plan his leave in

advance. Further, in light of the petitioner?s VISA to Myanmar having been

rejected thrice in the past, the respondent was also requested to confirm the

city in India where she would be able to hand over temporary custody. But again

the petitioner?s repeated requests and various communications did not yield any

result as the respondent was in no mood to abide by the terms and conditions of

the MOU after having achieved the desired fruits out of it and she did not hand

over the custody of the daughter for a month in the year 2004 On 26.4.2004, the petitioner filed a Civil Contempt Petition before this Court, being CCP No.402 of 2004 On 7.5.2004 this Court was pleased

to issue notice to the respondent to show why contempt proceedings be not

initiated. On 27.5.2004 this Court directed personal presence of the respondent on the next date of hearing, i.e. 14.6.2004 On 14.6.2004 instead of

complying with the said direction by personally appearing on 9.6.2004 the

respondent?s sister (and not the respondent) filed an Application seeking recall

of the order dated 27.5.2004 (being CM No.7837 of 2004). The sister of the

petitioner also filed an affidavit in reply to the Show Cause Notice, the idea

being to somehow scuttle the hearing of 14.6.2004 On 9.7.2004 the Contempt

Petition was taken up for hearing and judgment was reserved. On 3.9.2004 by

judgment and order dated 3.9.2004 this Court was pleased to dismiss the contempt

petition, inter alia, holding that the contempt petition filed by the petitioner

was misconceived as this Court was of the opinion that Revision Petition having

been dismissed as withdrawn, no contempt lies for violation of the terms of the

MOU and also the Revision Petition was not disposed of in terms of the said MOU.

The order left the petitioner to seek such redress as may be otherwise open to

him in law. The petitioner then, filed Special Leave Petition (C) NO.21153 of

2004 before the Hon?ble Supreme Court seeking leave to appeal against the order

dated 3.9.2004 passed by this Court. On 25.10.2004 notice was issued in the

SLP and vide order dated 11.4.2005, the respondent was directed to hand over

the custody of the daughter to the petitioner for a period of 30 days. The

custody of the daughter was given to the petitioner on 29.4.2005 for a period of

30 days. On 25.7.2005 the case was adjourned by 5 months, however, the petitioner was given visitation right to his daughter which were never complied

with by the respondent. The Hon?ble Supreme Court however, by a non speaking

order dated January 2, 2006 dismissed the aforesaid SLP. Since the appellant

did not succeed in enforcing the terms of MOU compliance of the order dated

1.11.2002 in CR No.4 of 2002, whereby Court recorded the undertaking of both

the parties to abide by the terms and conditions contained in the MOU pursuant

to joint application by the parties under Order 23 Rule 3 CPC first by seeking

the remedy under the Contempt of Courts Act and then the appellant on 4.5.2006

by filing the Execution Case No.18/06 seeking execution of the decree and

order dated 12.11.02 passed by Ms. Urmila Rani, Additional District Judge,

Karkardooma Courts, Shahdra, Delhi. The respondent filed her reply to the

execution petition. The learned Execution Court vide impugned order dated

4.11.2006 dismissed the aforesaid execution petition and the appellant feeling

aggrieved with the order dated 4.11.2006 preferred the present appeal. I have heard learned counsel for the parties at considerable length and perused the record.

Mr. Aman Lekhi, Sr. Advocate appearing for the appellant contended that the appellant had every right to approach the matrimonial Court under Section 26

of the Hindu Marriage Act even after passing of the decree under Section

13(B)(2) of the Hindu Marriage Act so as to enforce the relevant terms of

Memorandum of Understanding dealing with the visitation rights of the appellant

to meet the child for a period of 30 days. The counsel further contended that

each and every term of the Memorandum of Understanding dated 28th October, 2002

is binding upon the parties and therefore, as per Clause 7 of the said agreement

the appellant could not have been deprived of the temporary custody of the child

once in each calendar year, for a period of 30 days, during school vacation of

the child. Counsel also contended that based on the said Memorandum of Understanding both the parties had sought dissolution of their marriage by

mutual consent as envisaged under Section 13-B (1) and (2) of the Hindu Marriage

Act and therefore, every term of the Memorandum of Understanding has to be

treated as an integral part of the decree passed by the Matrimonial Court and

therefore, the appellant gets a legitimate right to enforce Clause 7 to have

temporary custody of the child for a period of 30 days. The counsel placed

reliance on the commentary of celebrated author Mulla on the principles of Hindu

Law Volume II 9th edn pg 265 to buttress his argument that the rule of law is

to be applied whether or not it defeats the intention of the parties. The

contention of the counsel for the appellant was that by rule of law no excluding

or limiting term in the contract can protect a party who is in fundamental

breach of the contract. The argument of the counsel for the appellant was that

Clause 17 of the Memorandum of Understanding cannot put an embargo or fetters on

the right of the appellant in seeking enforcement of Clause 7 of the Memorandum

ofUnderstanding. Clause 17 gives right to the parties to seek their respective

remedies in Courts of appropriate jurisdiction in case any of the terms and

conditions recorded in MOU are not given effect to and/or implemented and/or any

of the parties fail to carry out his/her obligation(s) as undertaken by them in

the said settlement, contended counsel for the petitioner. The counsel further

contended that the respondent cannot take shelter under Clause 17 so as to

resile or wriggle out from Clause 7 as the said Clause 7 is primarily based on

the rule of law which gives right to the appellant, who is a natural father, to

at least have visitation rights or temporary custody of the child. The counsel

thus submitted that the terms of the Memorandum of Understanding must be

interpreted so as to give effect to the real intentions of the parties and both

the clauses i.e. clause 7 and 17 cannot be interpreted in a manner which would

defeat the intention of the parties. In support of this contention the counsel

relied on Chitty on Contract, 27th edn pg 8 Chapter 1; Interpretation of

Contract by M.A. Sujan, 2nd edn, pag 188 and Cheshire and Fitfoot?s Law of

Contract, 10th edn, pg 155. The relevant para from Cheshire is reproduced as

under:

???This distinction between a rule of law and a rule of construction permeates

English law as a whole and in its long life has generated many curious subtleties and provoked many petty quarrels. A rule of law is to be applied

whether or not it defeats the contention of the parties. A rule of construction

exists to give effect to that intention. Within the sphere of contract the

doctrine of public policy operates as a rule of law: a contract which offends it

is void despite the wishes of the parties. The effect of mutual mistake, on the

other hand, is assessed by applying a rule of construction: it must be asked

what, if anything, a reasonable person would think was `the sense of the

promise?.?

The counsel further contended that as per the settled legal position in the event of there being any conflict between the earlier clause and

the later clause and if it is not possible to give effect to both the clauses,

then as per the rule of the construction the earlier clause must override the

later clause and not vice versa. The counsel thus contended that Clause 7 of

the Memorandum of Understanding, which gives right to the appellant to have

temporary custody of the child, has an overriding effect on Clause 17 of the

Memorandum of Understanding. In support of his argument counsel for the appellant placed reliance on the judgment of the Supreme Court reported in AIR

1959 SC 24 Radha Sundar Dutta vs Mohd. Jahadur Rahim and Ors. Relevant para of

this judgment is reproduced as under:- ?11. Now, it is a settled rule of interpretation that if there be admissible two

constructions of a document, one of which will give effect to all the clauses

therein while the other will render one or more of them nugatory, it is the

former that should be adopted on the principle expressed in the maxim ?ut res

magis valeat quam pereat?. What has to be considered therefore is whether it is

possible to give effect to the clause in question, which can only be by construing Exhibit B as creating a separate Patni, and at the same time reconcile the last two clauses with that construction. Taking first the provision that if there be other persons entitled to the Patni of lot Ahiyapur

they are to have the same rights in the land comprised in Exhibit B, that no

doubt posits the continuance in those persons of the title under the original

Patni. But the true purpose of this clause is, in our opinion, not so much to

declare the rights of those other persons which rest on statutory recognition,

but to provide that the grantees under the document should take subject to those

rights. That that is the purpose of the clause is clear from the provision for

indemnity which is contained therein. Moreover, if on an interpretation of the

other clauses in the grant, the correct conclusion to come to is that it creates

a new Patni in favour of the grantees thereunder, it is difficult to see how the

reservation of the rights of the other Patnidars of lot Ahiyapur, should such

there be, affects that conclusion. We are unable to see anything in the clause

under discussion, which militates against the conclusion that Exhibit B creates

a new Patni.?

Counsel for the appellant also invited attention of this court to the joint statement of the parties recorded before the matrimonial Court, which

shows that both of them had undertaken to abide by the terms and conditions of

the Memorandum of Understanding duly exhibited as Exhibit P1 and Addendum dated

7.11.2002 as Exhibit P2. The counsel contended that it was the duty of the

matrimonial Court to see that each and every term of the Memorandum of Understanding which confers certain rights and obligations on the parties should

be implemented in letter and spirit in the event of any complain or breach being

made by any of the parties. The counsel also contended that the learned Trial

Court unnecessarily got influenced with the orders passed by the High Court in

the contempt matter and the order passed by the Apex Court in SLP No. 21153/2004

Counsel deriving support from the judgment in Saurashtra Oil Mills Assn.

Gujarat Vs. State of Gujarat and Anr.- (2002) 3 SCC 202 and State of Manipur Vs.

Thingujam Brojen Meetei-(1996) 9 SCC 29 contended that dismissal in limine is

not binding and does not debar the appellant to seek his remedy. He also stated

that the said orders did not debar the appellant to seek his remedy by way of

filing a suitable petition under Section 26 of the Hindu Marriage Act. Counsel

also contended that the matrimonial Court was competent to grant the relief to

the appellant. The appellant moved an application, which was though labeled as

execution petition, but was in fact an application under Section 26 of the Hindu

Marriage Act. The counsel also contended that it is not the form of the petition

but substance of the petition and the relief claimed therein which the court

must look at before granting the relief. The counsel also placed reliance on the

International Convention on the Rights of the Child, which has been duly adopted

and ratified by our country. Counsel particularly invited attention of this

court to Article 9 of the same to contend that it is a duty of the State that no

child is separated from his or her parents against their Will except when

competent authorities subject to judicial review determine, in accordance with

applicable law and procedures and where such separation is necessary for the

best interest of the child. Article 9 of the Convention of the Rights of the

Child is referred as under:-

?Article 9

1. States Parties shall ensure that a child shall not be separated from his or

her parents against their will, except when competent authorities subject to

judicial review determine, in accordance with applicable law and procedures,

that such separation is necessary for the best interests of the child. Such

determination may be necessary in a particular case such as one involving abuse

or neglect of the child by the parents, or one where the parents are living

separately and a decision must be made as to the child’s place of resident.

2. In any proceedings pursuant to paragraph 1 of the present article, all

interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one

or both parents to maintain personal relations and direct contact with both

parents on a regular basis, except if it is contrary to the child’s best

interests.

4. Where such separation results from any action initiated by a State Party,

such as the detention, imprisonment, exile, deportation or death (including

death arising from any cause while the person is in the custody of the State) of

one or both parents or of the child, that State Party shall, upon request,

provide the parents, the child or, if appropriate, another member of the family

with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be

detrimental to the well-being of the child. States Parties shall further ensure

that the submission of such a request shall of itself entail no adverse consequences for the person (s) concerned.? The contention of the counsel for the appellant is that the said temporary custody of the child and visitation is quite necessary for the proper

growth of the child, both physical and mental, and it is not merely to satisfy

the emotional attachment of the father. The counsel thus contended that the

appellant cannot be deprived from the temporary visitation rights, which are

otherwise agreed to between the parties under the Memorandum of Understanding,

which has a binding effect after its incorporation in the decree of divorce. The

counsel also contended that even the remarriage of the father would not come in

his way to deprive him from the temporary custody. In support of this argument

the counsel placed reliance on the judgment reported in AIR 1929 Madras 81

Atchayya vs Kosaraju Narahari. Per contra Mr. Sunil Gupta, Sr. Advocate appearing for the respondent stoutly refuted the arguments

of the counsel for the appellant. Counsel for the respondent raised a preliminary objection to the very maintainability of the present appeal under

Section 28(2) of the Hindu Marriage Act. The contention of the counsel for the

respondent is that no decree under Section 26 of the Hindu Marriage Act has been

passed and consequently no appeal can be maintained by labeling the impugned

order as if the same has been passed under Section 26 of the Hindu Marriage Act.

Inviting attention of this Court to the judgment and decree passed by the

matrimonial Court under Section 13-B(2) of the Hindu Marriage Act, which clearly

shows that the Memorandum of Understanding under which the appellant was given

the custody right for a period of 30 days, was never a part of the judgment and

decree. Counsel further contended that mere reference made to the Memorandum of

Understanding in the judgment cannot lead to an inference that the Memorandum of

Understanding became a part of the judgment and decree. Counsel further contended that the learned counsel for the appellant has tried to give a colour

to the impugned order as if the same has been passed under Section 26 of the

Hindu Marriage Act only with a view to justify the filing of this appeal

otherwise under no circumstances the impugned order can be treated or considered

to have been passed under Section 26 of the Hindu Marriage Act. Counsel also

invited my attention to the averments made by the appellant in the present

appeal, wherein, at most of the places the appellant has used the expression

execution case. Even in the prayer paragraph the directions have been sought by

the appellant for the execution of the decree. Counsel thus contended that it is

only after the objection to the maintainability of the appeal was raised by the

respondent in reply to the present appeal, the appellant became wise and took

the said stand of considering the impugned order as if the same has been passed

under Section 26 of the Hindu Marriage Act. The counsel for the respondent also

invited attention of this Court to the application filed by the appellant,

which is placed at pages 40 to 42 of the paper book, which is in the format of

execution petition and the details given in reply to the various paragraphs

would clearly show that the appellant had approached the matrimonial Court so as

to seek execution of the judgment and decree dated 12.11.2002. In the prayer

paragraph of the said application also the appellant had prayed for directions

against the respondent to comply with the terms and conditions of the Memorandum

of Understanding dated 28.10.2002 which as per the appellant was made part and

parcel of the judgment dated 12.11.2002. Once there was no decree passed by the

matrimonial Court in terms of Section 26 of the Hindu Marriage Act no question

could arise for the enforcement of the same by filing an execution petition, the

counsel for the respondent contended. Counsel further contended that the remedy

of appeal, which has been provided under Section 28 of the Hindu Marriage Act is

not available to the appellant assailing the order passed in the execution

petition.

Linked with the first argument counsel for the respondent contended that

the application filed by the appellant seeking to enforce the terms of the

Memorandum of Settlement cannot be treated to be an application filed under

Section 26 of the Hindu Marriage Act. The occasion to file an application under

Section 26 of the Hindu Marriage Act could arise only when already provision

has been made by the Court in the decree and not in a case where no such

provision has been made in the decree but still the party would come forward to

take shelter of Section 26 of the Hindu Marriage Act. Counsel also contended

that the situations contemplated under Section 26 of the Hindu Marriage Act are

not satisfied in the facts and circumstances of the present case. The next argument raised by the counsel for the respondent is that for granting decree of divorce by mutual consent the matrimonial Court has to

feel satisfied with the three requirements, firstly that the parties to the

marriage have been living separately for a period of one year or more. Secondly,

that they have not been able to live together for the said period of one year

and third, that they have mutually agreed that their marriage should be dissolved by mutual consent and as regard Section 13B(2) is concerned the Court

has to see that the second motion is preferred after six months has expired from

the date of the first motion and not later than 18 months from the said date and

thereafter on Court being satisfied after hearing the parties and after making

such enquiry as it thinks fit may pass a decree of divorce declaring a marriage

to be dissolved by mutual consent. The contention of the counsel for the

appellant is that the settlement entered into between the parties need not

necessarily become the part of the said proceedings under Section 13B (1) and

(2) of the Hindu Marriage Act. In any event of the matter the counsel contended

that even where such a settlement has to be made a part of the decree then the

Court has to pass a specific order treating such a settlement between the

parties as a part of the judgment and decree. The counsel thus contended that

once the Memorandum of Understanding was not made a part of the decree, therefore, such a memorandum could not have been enforced by the appellant by

way of filing of the execution petition. The next argument taken by the counsel for the respondent is that the controversy of the said Memorandum of Understanding has already attained

finality by the order passed by this Court in CCP No. 402/2004 dated 3/9/2004

and therefore, the appellant cannot be allowed to re-agitate the matter again by

filing the present appeal being hit by the principle of res judicata. The

contention of the counsel for the respondent is that in the contempt petition

filed by the appellant a detailed order has been passed by this Court, rejecting the contempt petition of the appellant and therefore, that controversy

of Memorandum of Understanding cannot be reopened by the appellant after the

same having attained the finality with the said decision of this Court. The

appellant is thus estopped from reagitating the said issue again in the present

appeal or in the other proceedings filed by the appellant in this regard.

Counsel also placed reliance on explanation 8 of Section 11 of the CPC to

contend that the application filed by the appellant was clearly hit by the

principles of res judicata. Counsel for the respondent also seriously disputed

the entitlement of the appellant to the custody of the child on account of

subsequent developments. The contentions raised by the counsel for the respondent in this regard are that the appellant has remarried and apparently,

the appellant is a man without any honorable character as is evident from the

fact that he was arrested by the Myanmar Police under the Prostitution Suppression Special Act and the appellant was prosecuted under S.3 (A) (b) of

that Act and that the appellant, being a foreigner, was released later as State

Approver Witness meaning thereby that the appellant admitted his guilt and it is

for the reason aforesaid that the appellant?s VISA to Myanmar was rejected.

The counsel further submitted that the aforesaid documents were produced by the

Respondent in the Special Leave Petition No.21153 of 2004 filed by the appellant and that the said petition was dismissed by the Hon?ble Supreme Court

of India on the basis of the records of the case. The counsel also submitted

that the minor girl child is presently residing in Jakarta, Indonesia and is

pursuing her studies and it is not in the welfare of the minor girl child that

her custody be handed over to the appellant. Last contention of the counsel for the respondent is that taking into consideration the welfare of the child the same does not lie even in giving any

visitation right to the appellant much less granting him the custody for a

period of 30 days. The counsel relied on the judgment in Mrs. Prabhati Mitra Vs.

D.K. Mitra-25(1984) DLT 186 in support of his contention. The counsel also

invited attention of this court to the various orders passed by the Hon’ble

Supreme Court in the SLP filed by the appellant against dismissal of his

contempt petition, which shows that the Hon?ble Supreme Court took into consideration various subsequent developments and thereafter not only rejected

the said petition of the appellant but also did not pass any order for the

custody of the child nor even granting any visitation rights. In the rejoinder, Mr. Aman Lekhi, counsel for the appellant vehemently refuted the arguments of the counsel for the respondent. Countering

the plea of the counsel for the respondent, counsel for the appellant submitted

that the plea of res judicata is not available to the respondent as the order of

contempt court gave no finding on the memorandum of understanding and any

observation made by the learned High Court while deciding the contempt petition of the appellant was merely an obiter and the same could not have

been considered as ratio of the judgment. In support of his argument, counsel

for the appellant placed reliance on the following judgments:

1. Director of Settlements A.P. and Ors. Vs. M.R. Apparao and Anr.- (2002) 4 SCC

638.

2. State of Haryana Vs. Ranbir Alias Rana (2006) 5 SCC 167 The contention of the counsel for the appellant is that the judgment of the

court has to be read specific to the issues raised in a particular case which

required consideration, adjudication and determination of the court and if in

the process the court makes any observation unrelated with the questions

arising in a particular case then such observation cannot have a binding effect

so as to operate as res judicata between the parties in subsequent proceedings. The issue of memorandum of understanding was not before the

contempt court and therefore, any observations made by the contempt court on the

memorandum of understanding cannot become a road block in the way of the

present appeal filed by the appellant, the counsel contended. Counsel thus

submitted that any interpretation or observation made by the contempt court on

the memorandum of understanding was extraneous so far as question of contempt

was concerned. In support of his argument, counsel for the appellant placed

reliance on the following judgments:

1. Indian Airports Employee?s Union Vs. Ranjan Chatterjee andAnr.-(1999) 2 SCC

537;

2. Commissioner of Income Tax, Bombay and Anr. Vs. Ishwarlal Bhagwandas and

Ors.-(1966)1 SCR 190

Refuting the other argument of the counsel for the respondent that no order or decree under Section 26 of the HMA was passed by the trial court and

therefore, no appeal can be maintained by labelling the impugned order as if the

same was passed under Section 26 of the HMA, counsel for the appellant reiterated, that it is not the form of the application but the substance which

would determine the real intention of a party. The contention of the counsel

for the appellant is that in substance the application which is being labeled as an execution petition was moved by the appellant under Section 26

of the HMA and the order passed by the trial court thereon has to be treated

as an order passed under Section 26 of HMA which is an appealable order.

Referring to Section 26 of the HMA, counsel submitted that the court is not

powerless to pass an order or grant an appropriate relief even after the grant

of final decree and therefore, the appellant was not debarred to seek his

remedy based on the memorandum of understanding to approach the court under

Section 26 of the HMA. Necessary provision with regard to the custody, maintenance and education of minor children can be made in the final decree as

well as thereafter by altering such decree upon an application being made by

any of the parties, for such purpose. In support of his arguments, counsel for

the appellant placed reliance on the judgment of the Apex Court in Prithvichand Ramachand Sablok Vs. S.Y. Shinde-AIR 1993 SC 1929 and on Mayne?s

Treatise on Hindu Law and Usage, 15th edn pg 401. Another line of argument taken by the counsel for the appellant was that

the order regarding the custody of a child is interim in nature and it can be

modified even at a later stage. In support of his arguments, counsel for the

appellant placed reliance on the judgment in Rosy Jacob Vs. Jacob A. Chakramakkar- (1973) 1 SCC 840.

The counsel for the appellant further submitted that while deciding issue relating to the custody of the child, the court exercises a parental

jurisdiction delegated to him by the State. In support of his arguments, counsel

for the appellant placed reliance on the judgment in Dr.(Smt.)Snehlata Mathur

Vs. Mahendra Narain-AIR 1980 Raj 64. Elaborating his arguments further in the rejoinder, counsel for the appellant urged that the procedural laws are handmaid of justice and

therefore, the learned trial court ought to have considered the application

moved by the appellant as a substantive application under Section 26 of the HMA

instead of going by label of the application. In support of his argument,

counsel for the appellant placed reliance on the judgment as the Apex Court in

Rani Kusum(Smt) Vs. Kanchan Devi and Ors.-(2005) 6 SCC 705. Before adverting to deal with various legal issues raised by the parties, first it would be appropriate to reproduce Section 26 of the HMA which

is reproduced as under:

?26. Custody of children.- In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the

decree as it may deem just and proper with respect to the custody, maintenance

and education of minor children, consistently with their wishes, wherever

possible, and may, after the decree, upon application by petition for the

purpose, make from time to time, all such orders and provisions with respect to

the custody, maintenance and education of such children as might have been made

by such decree or interim orders in case the proceeding for obtaining such

decree were still pending, and the court may also from time to time revoke,

suspend or vary any such orders and provisions previously made.? Plain and simple reading of the aforesaid provision would show that in any proceeding under the Hindu Marriage Act, the court trying such a

petition is competent to make provision in respect of (1) Custody; (2) Maintenance; and (3) Education of the children. What are the stages which are

contemplated in the said Section for the court to make such an arrangement for

the custody, maintenance and education of the children are as follows: (1) At anytime before finally passing a decree, the court can pass interim

orders relating to custody, maintenance and education of children. (2) In the decree, the court make provision for the custody, maintenance and

education of children;

(3) Even after a decree is passed, an application may be made to the court by

way of petition for making orders for custody, maintenance and education of

children.

The aforesaid stages as enumerated in the said provision would evidently show that even after the decree, any of the parties to the proceedings under the HMA can move the court to seek orders for the custody,

maintenance and education of the child. In the facts of the present case,

indisputably, the memorandum of understanding dated 28.10.2002 was executed

between the parties. The said memorandum of understanding gives complete detail

of various cases pending between the parties in different courts which, the

parties had taken a decision to finally put at rest. All the other contingencies and disputed issues between the parties including the issue

pertaining to their only child was also extensively dealt with in the MOU so as

to ensure that finality is given to all their inter se disputes and they are

able to lead a peaceful and happy life without there remaining any kind of

further litigation, dispute or claim of any nature, whatsoever. It is also not

in dispute that both the parties gave full effect to the terms of the memorandum of understanding and pursuant to that not only various other cases

were withdrawn but more importantly the marriage of the parties was dissolved

by the decree of divorce granted under Section 13-B(1) and (2) of the HMA.

Surprisingly, despite having agreed to certain arrangements with regard to the

custody of the child and with regard to maintenance etc. in the MOU, the

disputes continued and could never attain finality. It is also not in dispute

that the appellant had withdrawn his revision petition no. 4/2002 based on the

said memorandum of understanding. It is also not in dispute that the contempt

proceedings were initiated by the appellant based on the order passed by the

High court in revision petition no. 4/2002 complaining that the custody of the

child was not handed over to the appellant in terms of the clause (7) of the

memorandum of understanding despite the fact that based on the said memorandum

of understanding the revisional court had passed the order dated 11.11.2002. It

is also not in dispute that this Court while deciding the contempt case no. 402/04 did not find that there is any room for taking any action against

the respondent for initiating contempt proceedings. The decision of the contempt court predicated primarily on two grounds, first, that the revisional

court never affixed its imprimatur on the memorandum of understanding, secondly,

the revision petition was dismissed as withdrawn and therefore, there was no

direction given by the revisional court to any of the parties binding them to

the terms of the memorandum of understanding which could warrant initiation of

contempt proceedings. This order of the High Court in contempt case gained

finality as the special leave petition filed by the appellant against the order

of the High Court was dismissed vide order dated 3.9.2004 In the operative para

the High Court observed as under: ?In the totality of the above circumstances, therefore, there is no room for taking any action against the Respondent in the contempt jurisdiction of this court. This contempt petition is misconceived and is

accordingly dismissed reserving liberty to the Petitioner to seek such redress

as may be otherwise open to him in law before the competent court in fresh

proceedings to be instituted by him in that regard.? After having not succeeded in the contempt proceedings and taking into consideration the said observations of the High Court in contempt

case, the appellant chose to file an execution petition so as to enforce the

judgment and decree dated 12.11.2002, complaining violation of the terms and

conditions of the memorandum of understanding on the part of the respondent

which as per the appellant were part and parcel of the said judgment and

decree. Reply to the said execution was filed by the respondent and by the

impugned order, the learned ADJ dismissed the said execution petition, primarily

on the ground that the remedy of the petitioner as per the observations made by

the High Court in the contempt proceedings was available by way of appropriate

proceedings before the competent court of jurisdiction afresh and not by way

of filing an execution petition which step on the part of the appellant was

considered as short cut method for redressal of his grievance. Now this order

of the learned ADJ is under challenge in the present appeal and this very order

as per the counsel for the appellant is stated to have been passed on the

application moved by the appellant under Section 26 of the HMA. I feel it is

here, where the basic fallacy lies. Sometimes when one takes a wrong step then

one keeps justifying such a wrong act instead of taking any remedial steps to

correct such a wrong step. Clearly the application filed by the appellant was

an execution petition and it goes beyond ones comprehension as to how the

same could have been treated as application under Section 26 of the HMA. There

is neither any question of labeling of application or taking substance of

the same as the averments made in the entire application would show that the

appellant was seeking enforcement of the memorandum of understanding dated

28.10.2002 through execution of the judgment and decree dated 12.11.2002 and

once the execution petition was filed, accordingly, the respondent had also

filed reply thereto treating the same as an execution petition and not the

application under Section 26 of the HMA. Bare perusal of the application moved by the appellant before the Matrimonial Court would show that not only the same is as per the format of

execution petition, but the same also clearly demonstrates that appellant was

trying to enforce the terms and conditions of the MOU considering the same as

part and parcel of the judgment dated 12.11.2002 by seeking the assistance of

the executing court by issuing warrants of arrest and detention against the

respondent/JD for violating the terms and conditions of MOU and its addendum.

For better appreciation of this point in controversy, the para 10 of the

execution petition filed by the appellant is reproduced as under:- 10

In what manner of Courts assistance is sought By issuing warrant of arrest and detention against the JD for violating the

terms and conditions of M.O.U. Ex. P-1 and addendum. There cannot be any dispute with the legal proposition as advanced by the

counsel for the appellant that it is not the format or the nomenclature but the

substance of the application which should be seen for examining as to what was

the real intendment of the party moving such an application. There may be

circumstances where the parties may camouflage the real nature of transaction by

using clever phraseology and it is in such cases not the form but the substance

of the transaction that matters as the nomenclature used may not be decisive or

conclusive. But here is a case where the format and substance of the execution

petition both would show that the same was not only labeled as an execution

petition but in fact the appellant clearly intended to enforce the MOU considering the same as a part of the judgment and decree dated 12.11.2002 by

seeking warrants of arrest and detention against the JD/respondent. The said

principle can be made applicable only in a case where not only the parties to

the lis but also the court trying such an application clearly knows as to what

relief has been sought by the party moving an application and what is the basis

for the same. The opposite party must also know as to in what context he has to

submit his reply in opposition to the application moved by the other party.

In the present case, there cannot be any dispute that the respondent had also

given the reply considering the said application of the appellant as an execution petition and accordingly, the decision of the court is also on the

same lines whereby the execution petition filed by the appellant was dismissed.

Had the said application been under Section 26 of the Hindu Marriage Act, not

only the mere reference to the terms of MOU, but also the appellant would have

spelt out detailed reasons justifying the grant of custody of the child for a

period of 30 days in fulfillment of clause 7 of the memorandum of understanding. Such assertions on the part of the petitioner would also have

afforded due opportunity to the respondent/JD to urge such grounds and only

then there could have been proper appreciation by the court after taking into

consideration the rival contentions of the parties to decide such application of

the appellant/petitioner moved under Section 26 of the Hindu Marriage Act.

Admittedly, nothing of this sort had happened before the matrimonial court,

therefore, I do not find myself in agreement with the contention raised by the

counsel for the appellant that the said execution application in substance was

an application under Section 26 of the Hindu Marriage Act. The next contentious issue arising in the present appeal is as to whether the decision given by the High Court in contempt petition No. 402/2004

dated 03.09.2004 and upheld by the Hon?ble Supreme Court vide orders dated

02.01.2006 estopped the petitioner from taking his remedy under Section 26 of

the Hindu Marriage Act due to the principles of res judicata as envisaged under

Section 11 of the Code of Civil Procedure specially explanation 8 of the same.

To deal with this issue Section 11 of CPC is reproduced as under:-

11. Res judicata.

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former

suit between the same parties, or between parties under whom they or any of them

claim, litigating under the same title, in a Court competent to try such

subsequent suit or the suit in which such issue has been subsequently raised,

and has been heard and finally decided by such Court. Explanation I- The expression “former suit’` shall denote a suit which has been

decided prior to the suit in question whether or not it was instituted prior

thereto.

Explanation II.- For the purposes of this section, the competence of a Court

shall be determined irrespective of any provisions as to a right of appeal from

the decision of such Court.

Explanation III.- The matter above referred to must in the former suit have been

alleged by one party and either denied or admitted, expressly or impliedly, by

the other.

Explanation IV.- Any matter which might and ought to have been made ground of

defence or attack in such former suit shall be deemed to have been a matter

directly and substantially in issue in such suit. Explanation V.- Any relief claimed in the plaint, which is not expressly granted

by the decree, shall, for the purposes of this section, be deemed to have been

refused.

Explanation VI- Where persons litigate bona fide in respect of public right or

of a private right claimed in common for themselves and others, all persons

interested in such right shall, for the purposes of this section, be deemed to

claim under the persons so litigating. [Explanation VII.- The provisions of this section shall apply to a proceeding

for the execution of a decree and reference in this section to any suit, issue

or former suit shall be construed as references, respectively, to proceedings

for the execution of the decree, question arising in such proceeding and a

former proceeding for the execution of that decree. Explanation VIII.-An issue heard and finally decided by a Court of limited

jurisdiction, competent to decide such issue, shall operate as res judicata in

as subsequent suit, notwithstanding that such Court of limited jurisdiction was

not competent to try such subsequent suit or the suit in which such issue has

been subsequently raised.]

The principle of res judicata is founded on considerations of public policy and it is in the interest of the public at large that a finality should

attach to the binding decisions pronounced by the courts of competent jurisdiction. It is also in the public interest that individuals should not be

vexed twice over with the same kind of litigation. Explanation 7 and 8 were

added in Section 11 of CPC by way of 1976 Amendment to the CPC and with the

insertion of explanation 8 even the decision of court of limited jurisdiction on

a particular issue within the competence of such court would operate as res

judicata in a subsequent suit notwithstanding the lack of competence of the

Court to try the subsequent suit. Thus, by this explanation 8 of S. 11 CPC the

requirement of competence of previous court to try the subsequent suit, which

is a condition of limitation engrafted in the general rule of res judicata

provided in CPC by Section 11 has been done away with and therefore, the

explanation practically has been given a place of a substantive provision based

on this explanation 8 of Section 11 of CPC. Counsel appearing for the respondent strongly contended that the decision of the High Court in contempt

petition filed by the appellant becomes res judicata as the contempt court has

given clear finding so far the enforcement of MOU dated 28.10.2002 was concerned

and as a result of such finding of contempt court the appellant was estopped

from filing any application under Section 26 of the Hindu Marriage Act. The

contention of the counsel for the respondent is although that the contempt

court was not competent to try an application under Section 26 of the Hindu

Marriage Act being a court of limited jurisdiction but with the incorporation

of explanation 8 in Section 11 of CPC the decision given by the contempt court

would create a roadblock in the way of the appellant to seek any remedy to

enforce the terms and conditions of the MOU dated 28.10.2002. Before I dwell on this issue, it would be worthwhile to reproduce the operative paras 10 and 11 of the order dated 3.9.2004 of the contempt

court:-

?10. The second aspect of the controversy is no less important. Even assuming

that the order passed by this Court could be said to have incorporated the terms

of the settlement between the parties, the terms so incorporated have to be read

as a part and parcel of the order itself. No part of the settlement can then be

excluded from consideration while examining the issue whether anyone of the

parties is entitled to initiate any action for enforcement of the rights or

obligation flowing from the Memorandum. A reading of para 17 of the memorandum

leaves no manner of doubt, that the understanding between the parties envisaged

that if anyone of the parties committed any default in the discharge of his/her

obligations, the Memorandum of Understanding would become non-est and null and

void in the eyes of law. The parties to the Memorandum then had the liberty to

seek their respective remedies in the courts or appropriate jurisdiction without

prejudice to their respective rights and contentions. In the present case, the

husband alleges that the Respondent is not facilitating the exercise of the

Petitioner?s right for temporary custody of the child and is, therefore,

violating the terms of the understanding. Assuming that to be so, para 17 of

the Memorandum would render non-est the arrangement leaving the petitioner free

to agitate his rights for the custody of the child by agitating the matter in a

Court of Competent jurisdiction. The contempt jurisdiction of this court cannot,

in my opinion, provide a short cut for that purpose, not only because this Court

had dismissed the revision petition but also because even if the settlement

arrived at between the parties was to be read as a part of the direction of the

Court, violation of the conditions of the settlement would have the effect of

effacing the settlement as also the order which may have incorporated the same.

11. In the totality of the above circumstances, therefore, there is no room for

taking any action against the respondent in the contempt jurisdiction of this

court. This contempt petition is misconceived and is accordingly dismissed

reserving liberty to the petitioner to seek such redress as may be otherwise

open to him in law before the competent court in fresh proceedings to be

instituted by him in that regard.? From the above it is evident that the said contempt proceedings were initiated by the appellant/complainant complaining disobedience of the order

passed by the High Court in Civil Court Revision No. 4/2008. The contention of

the counsel for the petitioner before the contempt court was that he had

withdrawn the civil revision petition No. 4/2008 based on the memorandum of

settlement dated 28.10.2002, therefore, the Memorandum of Understanding became

a part of the order of the revisional court and no term thereof could be

violated by the respondent denying the custody of the child to the petitioner

for a period of 30 days in terms of clause 7 of the memorandum of understanding.

It is in this backdrop that the contempt court was confronted with the question

as to whether the revisional court had passed any order, disobedience of which

could possibly tantamount to contempt. The contempt court came to the conclusion that since the revision petition was dismissed as withdrawn, therefore, no part of the order of the revisional court could be taken to have

been construed or understood in the sense of interpreting the said MOU or

according any finality to the terms of the MOU. In the alternative, the contempt court also said that clause 17 of the MOU renders the agreement/said

MOU non est in the case of non-compliance of any of the terms and conditions as

the said clause leaves the parties to agitate their rights in a court of

competent jurisdiction. As already stated above, the doctrine of res judicata

or constructive res judicata is founded on a public policy and therefore, the

same is predominantly a principle of equity, good conscious and justice. Once

an issue of fact has been judicially determined finally between the parties by a

court of competent jurisdiction and if the same issue comes directly in question

in subsequent proceedings between the same parties, then the persons cannot be

allowed to raise the same question which already stands determined by the

competent court. The principle of res judicata thus speaks of the doctrine of

estoppel as it debar such a party to reagitate the same issue on which the

competent court of jurisdiction has given a decision pending between the same

parties. In the facts of the present case both the parties are the same before

the contempt court as well as before the matrimonial court and with the insertion of explanation 8 to Section 11 of CPC the requirement of competence of

the earlier court to try the subsequent suit would be of no consequence as the

decision of a court of limited jurisdiction on an issue would also operate as

res judicata in a subsequent suit. But the crucial question here would be

whether the court exercising contempt jurisdiction which is a quasi criminal

jurisdiction can be said to be a court of limited jurisdiction debaring or

estopping the party to rake up an issue in subsequent proceedings once decided

by the competent court. The answer in my view is emphatic ?No?. A contempt of

court is an offence of a criminal character and a contempt proceeding is often

described as a quasi criminal proceeding because it results in punishment of the

contemnor. The contempt jurisdiction enables the Court to ensure proper administration of justice and maintenance of the rule of law. It is meant to

ensure that the courts are able to discharge their functions properly free from

any sorts of attacks on the system of administration of justice or on Judicial

Officers who administer it and to prevent willful defiance of orders of the

court or undertakings given to it. Before any contempt court the limited issue

for decision is violation or disobedience of any order of the court and no order

of the contempt court can come in the way of the parties to approach the court

of competent jurisdiction to seek any substantive relief on which earlier the

contempt court had taken a decision one way or the other. The finding if any

given by the contempt court cannot come in the way of the Civil Court to finally

give a decision on any pending issue, dispute of which arise between the

parties before a competent court of jurisdiction. Therefore, based on the above

discussion, the contention raised by the counsel for the respondent that the

remedy of the petitioner to approach the court under Section 26 of the Hindu

Marriage Act is hit by the principles of res judicata as envisaged in explanation 8 of Section 11 of CPC is rejected. The related issue as to whether the observations of the Contempt court are an obiter dicta or forms part of ratio of the decision and also

whether the order of the Supreme Court has the effect of giving finality to the

order of the High Court, need not be deliberated, as the findings of the

contempt court and of the order passed by the Supreme Court would not come in

the way of the petitioner to reagitate his rights flowing from the terms of the

memorandum of understanding as well as under Section 26 of the Hindu Marriage

Act.

The next important issue to be deliberated in the present case is as to whether clause 17 of the memorandum of understanding has the effect of rendering clause 7 of the MOU or other clauses as meaningless and inconsequential. The contention raised by the counsel for the petitioner is

that clause 7 which gives right to the appellant for temporary custody of the

child has an overriding effect over clause 17 of the MOU and the later clause

cannot put any kind of embargo or fetters on the rights of the appellant to seek

enforcement of clause 7 of MOU. The counsel also laid much stress on his

argument that the earlier clause in any agreement must override the later clause

if in conflict with the earlier clause. Before giving any decision on this

issue it would be appropriate to reproduce the relevant clauses of the MOU dated

28.10.2002 as under:-

?7. That the parties hereto have agreed that the custody of the female child

`Hemangi ?shall permanently rest with the Second Party. However, the First

Party shall have the right to have temporary custody of the child once in each

calendar year for a period of thirty days during school vacation of the said

child irrespective of the place of posting/residence of the Second Party.

Xxxxxxx

14. That the parties to this Memorandum of Understanding undertake to sign the

necessary petitions/applications/ undertakings and swear affidavits in support

of the petitions/applications to be moved as mentioned in this deed and such

other petitions that may be required though not mentioned herein to give effect

to the terms of understanding as recorded in the present Memorandum of Understanding.

Xxxxxxxxxxxxxxxxx

17. That in case the terms and conditions recorded in the present MOU are not

given effect to and/or implemented and/ or any of the parties hereto fails to

carry out his/her obligation(s) as undertaken herein or fails to appear before

any court of law to give effect to the present MOU, the present MOU shall be

deemed to become non-est and null and void in the eyes of law and the parties

hereto would be at liberty to seek their respective remedies in courts of

appropriate jurisdictions without any prejudice to their respective rights and

contentions.?

A perusal of the aforesaid terms of the memorandum of understanding would show that the parties were in serious litigation and as many

as six cases were pending inter se as on the date of execution of the said

memorandum of understanding which was executed to put at rest their hostility

and bitterness and the entire litigation. For the said reason, the parties had

agreed to resolve their issues with the intervention of common friends and well-

wishers and it is an undeniable fact that acting on the terms of the said MOU

the parties had withdrawn their respective cases. The parties also obtained

divorce by filing a joint petition as envisaged under Section 13- B (1) and ( 2)

of the Hindu Marriage Act and vide judgment and decree dated 12.11.2002 of the

ld. Matrimonial Court the marriage of the parties was dissolved by mutual

consent. Joint statement of the parties was recorded by the matrimonial court

and in their joint statement the MOU dated 28.10.2002 and the addendum to the

MOU dated 7.11.2002 were exhibited as P-1 and P-2 respectively. The relevant

portion of the Joint Statement is referred as under:- ?We have mutually settled all our claims regarding stridhan articles, permanent alimony and maintenance ?past, present and future amicably

as per the terms and conditions mentioned in MOU dated 28.10.2002. The same is

Ex.P1 the Addendum dated 7.11.2002 to it is Ex.P2. Now we have no pending

claims of any nature whatsoever against each other arising out of our marriage.

We undertake to abide by the terms and conditions of Ex P1 to P2. We undertake

not to file any civil/criminal litigation against each other and the family

members of each other.?

As per clause 7 of the MOU both the parties had agreed that the custody of the female child Hemangi shall permanently rest with the second party i.e.

the wife and temporary custody of the child once in each calendar year for a

period of 30 days during school vacation of the said child irrespective of the

place of posting/residence of the wife shall rest with the first party. Clauses 8, 9 and 10 have been added to clarify as to how and in what manner the custody of the child has to be handed over to the father and then to

be restored back to the mother/wife including the payment of maintenance amount

to be exclusively raised for the overall up bringing of the said child. All

these clauses clearly demonstrate that there was a great deal of exercise

undertaken by the parties to decide the issue of the custody of the child and

thereafter a conscious decision was taken to give permanent custody of the child

to the mother and a temporary custody of the child for a period of 30 days to

the father. It would be apparent that the issue of the custody of the child

is a voluntary decision of the parties and therefore, it cannot be said that

the same was not meant to be adhered to or could be easily flouted by any of the

parties.

Clause 17 of the MOU is not a happily worded clause. By taking a plain simple meaning of the said clause it would show that the same was

inserted primarily with a view to see that the terms and conditions of the MOU

were fully adhered to by the parties. It is only in a case where the parties

failed to give effect to the terms and conditions as recorded in the MOU, the

entire MOU could be rendered to have become non est. Clause 17 of the MOU

starts with by saying that :

?In case the terms and conditions recorded in the present MOU are not given effect to and/or implemented and/or any of the parties hereto fails to

carry out his/her obligations(s) as undertaken herein or fails to appear before

any court of law to give effect to the present MOU, the present MOU shall be

deemed to become non-est and null and void in the eyes of law and the parties

hereto would be at liberty to seek their respective remedies in courts of

appropriate jurisdictions without any prejudice to their respective rights and

contentions.?

The aforesaid language of clause 17 would lead to only one conclusion that the said clause was inserted in the MOU apprehending that ultimately if

the parties may not agree or act upon the terms and conditions, then in such a

case the MOU shall be deemed to become non-est and null and void in the eyes of

law. In the present case it cannot be stated that the terms of MOU have not

been implemented or acted upon by the parties. On the contrary most of the terms

have already been acted upon by the parties pursuant to which the parties have

also withdrawn their respective cases and it is only clause 7 and other related

clauses of MOU which have not been adhered to by the respondent as per the

petitioner. When the parties have complied with and adhered to the remaining

terms and conditions of the MOU, therefore, Clause 17 of the MOU so far it

renders the MOU as non est and null and void in the eyes of law cannot come to

the rescue of the respondent and the said term so far it renders the MOU non est

automatically becomes otiose and meaningless. Based on the above discussion, I am of the view that every term of the MOU has to be given full effect and meaning including, clause 17 which could

have been operational only in the event of parties not at all implementing or

acting on the terms of the MOU which, is not a case here. I may also add here

that in most of the matrimonial cases the parties do enter into such compromises

and based on such compromises the parties settle all their inter se disputes and

withdraw their respective cases. There is nothing unlawful and improper for the

parties to enter into such an arrangement and unless such compromise is vitiated

by fraud, misrepresentation or is unconscionable or is against the spirit of any

law, the courts give full legitimacy to such compromise and acting on the same

pass compromise/consent decrees or permit the parties to withdraw their respective cases. A judgment by consent puts an end to the entire lis between

the parties unlike a judgment after contest which is open to challenge before

the higher courts. The courts, therefore, must lean in favour of such compromises and the consent decrees based on such compromises unless such a

compromise or consent decree is vitiated by fraud, coercion, misrepresentation

or the same being in violation of any law or any enactment. In the present case the MOU and addenda were duly signed, executed and accepted by the respective parties as would be reflective from

their joint statement of respective parties in the matrimonial court and

therefore, essentially the MOU was the basis for the grant of decree of divorce

by mutual consent. It is no doubt true that for granting a decree under Section

13-B (1) and (2) the parties approaching the court must jointly file a petition

for divorce before the court and shall also have to satisfy three essential

conditions i.e.

(i) They have been living separately for a period of one year,

(ii) They have not been able to live together, and (iii) They have mutually agreed that marriage should be dissolved.

But it cannot be ignored or overlooked that the parties in the present case had approached to convert their existing divorce petition into mutual

consent petition after their decision to resolve all their disputes in terms of

memorandum of understanding dated 28.10.2002 and addendum dated 7.11.2002.

In my view, therefore, the complete legitimacy has to be attached to the said

MOU dated 28.10.2002 and addendum dated 7.11.2002 based on which the petitioner

had withdrawn his revision petition and based on which alone the marriage of the

parties was dissolved by the grant of decree of divorce dated 12.11.2002.

Now in view of the above position what remedy the petitioner should resort to seek enforcement of clause 7 of MOU against the respondent who

as per the petitioner has flouted the said remedy to hand over the custody of

the child for a period of 30 days in a year. As already discussed above, at the

first instance the respondent should have complied with the said clause 7 of the

MOU by handing over the custody of the child for a period of 30 days in strict

adherence to the terms of the settlement as agreed upon between the parties.

Now since admittedly the respondent is in defiance of the said clause 7 of the

said MOU and already the petitioner has lost in the contempt proceedings, now

the issue is whether the petitioner be left remediless or is still entitled to

seek some legal remedy and if yes then what legal remedy is left to the petitioner. The ld. Counsel for the petitioner has relied upon the judgment in

the case of (Kode) Atachayya Vs. Kosaraju Narahari, AIR 1929 Mad 81; Kumar V. Jahgirdar Vs. Chetana K. Ramatheertha, AIR 2001SC 2179; Chandrakala Menon(Mrs.)

and Anr. Vs. Vipin Menon(Cap.) and Anr.-1993(41) BLJR 536; Smt. Radha Alias

Parimala Vs. N. Rangappa, AIR 2004 Kant 299 and Radhika Vickram Tikkoo Vs.

Vikram Ravi Tikoo Senior-60(1995) DLT 666 to support his argument that for

proper growth, development and upkeep of the child, custody of the child with

the father is no less important than the custody of the child with the mother.

There can be no dispute to this settled legal position subject, however, to the

condition that the paramount consideration will always be the welfare of the

child. Even the mutual terms of settlement with regard to temporary or permanent

custody of the child cannot defeat the right of the child to remain in custody

whether temporary or permanent with that parent who can better maintain and

take care of the child. The silver lining , therefore, would always be the

paramount consideration and supremacy of welfare of the child and every other

thing, even a mutual settlement cannot come in the way of the said sacrosanct

and well established principle with regard to the custody of the child. The

situation always can vary and change to test the competence, stature, financial

and otherwise, personal habits, marital status, surrounding environment,

educational avenues and other such circumstances which can certainly weigh and

influence the decision of the competent court at the time of taking a decision

on the temporary or permanent custody of the child. In my view, no settlement

can create any sort of fetter, hindrance or obstruction in the way of competent

court to take a fresh decision after taking into consideration the welfare of

the child, even at the cost of ignoring mutual settlement of the parties.

The basic unit of society is the family and marriage creates the most important relation in life. During infancy and impressionable age, the care and

warmth of both the parents are required for the welfare of the child. A man in

his social capacity may be reckless or eccentric in certain respects and others

may even develop a considerable distaste for his company with some justification

but all that is a far cry from unfitness to have the natural solace of the

company of one?s own children or for the duty of bringing them up in proper

manner. Many people have shortcomings but that does not imply that they are less

deserving to have the solace and custody of their children. No decision by any

court can restore the broken home or give a child the care and protection of

both dutiful parents. No court welcomes such problems or feels at ease in

deciding them. But there must be, a decision and it cannot be one repugnant to

normal concepts of family and marriage. Also, amongst the many and multifarious

duties that a Judge in Chambers performs by far the most onerous duties cast

upon him is the duty to decide the issue of custody of the child. While doing so

he should place himself in the position of a wise father and be not tired of the

worries which may be occasioned to him in selecting a guardian best fitted to

assure the welfare of a minor and thereafter guide and control the guardian to

ensure the welfare of the ward. In this regard in Lekha v. P. Anil Kumar,(2006)

13 SCC 555, the Hon?ble Apex Court observed as under:

17. In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka this Court held as

under:

?17. The principles of law in relation to the custody of a minor appear to be

well established. It is well settled that any matter concerning a minor, has to

be considered and decided only from the point of view of the welfare and

interest of the minor. In dealing with a matter concerning a minor, the Court

has a special responsibility and it is the duty of the Court to consider the

welfare of the minor and to protect the minor?s interest. In considering the

question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.? No doubt, as already discussed above, the parties must respect the terms

of the settlement even with regard to the terms in the compromise dealing with

the custody, temporary or permanent, visitation rights, maintenance, etc and

the compromise agreement and it is only on the failure of the party due to

changed circumstances that the fresh decision can be invited from the court to

decide the custody or visitatioin rights of the minor child. In the facts of

the present case the respondent has raised certain issues which as per the

respondent disentitles the petitioner to claim even temporary custody of the

child such as re-marriage of the petitioner, which fact as per the respondent

has been suppressed by the petitioner and also registration of criminal case by

the Myanmar Police under the Prostitution Suppression Special Act, rejection of

his visa to Myamar after having been prosecuted under the said Act , continuation of studies of the child in Jakarta, Indonasia and therefore, in my

considered view the remedy of the petitioner lies to approach the matrimonial

court afresh by filing an application under Section 26 of the Hindu Marriage Act

disclosing clear case for his entitlement to have the custody of the child for

the said period of 30 days or even for a longer period and needless to state

that such application of the petitioner shall have to be decided by the matrimonial court without being influenced by the observations made by the High

Court while deciding the contempt petition. Counsel for the respondent challenged the very maintainability of the present appeal and submitted that since the appellant filed execution petition

and same is not an application under Section 26 of HMA and also because the

decree does not include the terms in the MOU regarding the custody of the child,

therefore, the present appeal is not maintainable. In order to go deep in to

this issue it would be worthwhile to reproduce Section 28 HMA: ?28. Enforcement of, and appeal from, decrees and orders.- All decrees and

orders made by the court in any proceeding under this Act shall be enforced in

like manner as the decrees and orders of the court made in the exercise of the

original civil jurisdiction are enforced, and may be appealed from under any law

for the time being in force.

Provided that there shall be no appeal on the subject of costs only.? Bare reading of the said provision reveals that only decrees and orders which have been made by the court in exercise of its civil jurisdiction can be

appealed from. Clearly, as discussed herein above, no order as regards the

custody of the child was made by the trial court, therefore, the ingredients of

section 28 HMA are not met and thus, the present appeal is not maintainable.

In view of the above discussion, the appeal is dismissed as not maintainable.

December 20, 2008 KAILASH GAMBHIR JUDGE

MAT APP No. 38/2006

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Author: savedaughters19

This is a coverage of my struggles to save my daughters.I am thank full to my parents not only for Not killing me ,but also helping me save my daughters... My dream- A big shelter house for women who want to give birth to their daughters and raise them up with dignity and self respect , but have to fight their own families to do so. Will have medical facilities and facilities for legal aid. will have training centers for vocational courses so that they can stand up on their own two feet and stop the dependency on their husbands for finances, A child care center run and managed by the inmates, A kitchen and a vegetable farm run and managed by the inmates. At present only a dream.... But with grace of God will become a reality. God will show the way and means to achieve the dream.

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