Cross-Border Child Custody|Andhra Pradesh HC|Pavan Kumar V. Maheshwari(2025)|Produce the Child before Court or Face Jail: Court Issues Ultimatum to Wife in a 7 Year US–India Custody Battle
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- Dec 5
- 26 min read
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AP High Court – Contempt Case No: 617/2019 - Date of Order : 12.09.2025
Justice R Raghunandan Rao And Justice T.C.D. Sekhar
N Pavan Kumar (Petitioner) Vs. R Maheswari (Respondent)
Reason: Contempt Case under Sections 10 to 12 of Contempt of Courts Act 1971 praying that the High Court may be pleased to punish the wife under Section 10 and 12 of Contempt of courts Act for wilfully disobeying the orders of this Hon'ble Court Dt 12.04.2019 and not complying with the directions given by the Hon’ble Court in W.P. No. 47795/2018.
Brief Facts: The parties were married on 18.ll.2010, in Tirupathi. They had a son, who is the centre of the present dispute. The parties, after their marriage, had settled in Michigan State, U.S.A. Due to disputes between them, the husband filed a divorce petition in the Circuit Court of Wayne Country, Family Division of the State of Michigan and divorce was granted, by an order, on 21.01.2016. This order also stipulated the manner in which the custody of the child is to be regulated.
ln June, 2017, the husband and the child came down to India and started living in Tirupathi. The wife, sought return of the child, by approaching the Circuit Court, in the state of Michigan and the erstwhile High Court of Judicature at Hyderabad for the state of Telangana and the State of Andhra Pradesh, by way of w.p.No.30964 of 2018. The husband then filed F.C.O.P..No.110 of 2018 before the Family court-cum-V Additional District Judge, Tirupathi, seeking a declaration that the husband is the lawful guardian of the child, and for a further restraint on the wife from interfering with his peaceful custody of the child.
Initially, the III Circuit Court, Michigan, by an Order, dated 22.08.2018, directed the husband to appear along with the minor child, on 18.09.2018, before the Court in Michigan. Subsequently, on 01.10.2018, the III Circuit Court, Michigan passed final orders declining jurisdiction and dismissed the case of the wife for return of the child.
ln the course of the proceedings, in W.P. No.30964 of 2018, the wife sought temporary custody of the child. This Court permitted such temporary custody from 14.09.2018 to 16.09.2018 with the condition that the wife would deposit her passport and also file an affidavit not to take the child out of the jurisdiction Of the High Court. The wife after obtaining temporary custody, had returned the child to the custody of the father on 16.09.2018.
On 15.ll.2018, the wife, through her counsel, withdrew W.P.No.30964 of 2018, when the matter had come up for hearing. Thereafter, the husband filed W.P.No.47795 of 2018 contending that the wife, on 15.ll.2018, taking advantage of the absence of the husband, who had come down to Hyderabad for the hearing in W.P.No.30964 of 2018, had forcibly taken away the child from the house of the husband at Tirupathi and went back to the United States of America. The husband contended that the wife had effectively kidnapped the child to the U.S.A. The husband also stated that the wife, after reaching USA, had filed a temporary application before the Judicial District U.S Court (Texas), on the basis of which the court in Texas, by an order, dated 28.ll.2018, had issued a temporary ex-parte order by which the husband was excluded from possession or access to the minor child and that the husband had filed special appearance before the Texas Court. On the basis of these pleadings, the husband sought issuance of a Writ of Habeas Corpus directing the wife therein to produce the child before the High Court and to return the child to his habitual residence in Tirupathi, Andhra Pradesh.
The wife filed her counter affidavit. In the counter affidavit, the wife, after setting out the places where she has been working from the year 2007, in U.S.A, and the details of her marriage with the husband, stated that the order of the Circuit Court in Michigan, dated 21.01.2016, granted joint custody of the child to the parties, until he attains the age of 18 years with the stipulation that parenting time shall alternate on a three monthly basis. The wife further stated that, on 18.05.2017, the husband informed her that his father was ill and that he wanted to take the child to India so that the child could spend 8 to 10 weeks with his father, after which the child would be brought back to the USA, The wife is said to have agreed to this request. However, the husband refused to bring the child back to the U.S.A even after the said period was over. Due to this conduct, of the husband, the wife had to file a complaint before the Federal Bureau of Investigation after which notice was issued by Interpol by treating the husband as an accused in a case of parental kidnapping. The main contention of the wife, in the counter affidavit, was that the husband had violated the orders of the Circuit Court in Michigan, and as such she had come down to India and taken the child with her to U.S.A, after instructing her counsel to withdraw W.P.No.30964 of 2018.
This Court, by an order dated 12.04.2019, allowed the Writ Petition with a direction to the wife to produce the child before the Family Court at Tirupathi within 8 to 12 weeks from the date of receipt of the order. After such production of the child, the Family Court was to decide the issue of interim custody of the child pending disposal of the main petition in FCOP/GWOP.No.110 of 2018 before the Family Court-cum-V Additional District Judge, Tirupathi.
The wife being aggrieved by the order of this Court, moved the Hon'ble Supreme Court, by way of SLP. Crl. No. 6436 of 2019. While the said Special Leave Petition was pending before the Court, the F.C.O.P came to be dismissed by the Family Court, Tirupathi. The Hon’ble Supreme Court, disposed of the Special Leave Petition, by observing that there is no question of production of the child before the Family Court, as the main petition itself had been dismissed. As a large part of the defense of the wife, in the present contempt case, revolves around the directions and observations of the Hon'ble Supreme Court, in this order, the same is being extracted:
“We are now informed through the documents placed on record before us that the petition filed by the wife at the Tirupati Court has been dismissed though learned counsel for the wife states that the appeal is pending before the High Court.
As the aforesaid subsequent act has overtaken the aspect of challenge before us and thus there is no question of production of the child before the Family Court at Tirupati.
The special leave petition is disposed of accordingly."
The husband, filed the present Contempt Case, on 29.07.2019, contending that the Order Of the Court in W.P.No.47795 of 2018, dated 12.04.2019, had been violated by the wife, who refused to produce the child before the Family Court, Tirupathi. The wife filed her counter affidavit, on 13.03.2020, stating that it was the husband who had wrongfully abducted the child to India in contravention of the judgment of the Circuit Court in Michigan and that the Family Court at Tirupathi had dismissed FCOP.No.110 of 2018 on 20.12.2019 and that the Hon’ble Supreme Court had passed the order, extracted above, on 24.01.2020. The wife further stated that the Family Court in Texas had already taken jurisdiction over the matter and the wife had been joined as the sole conservator of the child while the husband was granted visitation rights. She contended that in the circumstances, the Contempt Case should be dismissed.
The husband filed a reply to the counter affidavit along with documents running into about 290 pages. There was a lull after the filing of the reply by the husband on 14.04.2021. The matter underwent various adjournments until 13.07.2022. Thereafter, the matter came up before this court on 20.06.2025. The matter was adjourned on the following dates to enable the parties to make their submissions. The case was called on 20.06.2025, 01.07.2025, 08.07.2025, 14.07.2025, 16.07.2025, 22.07.2025, 28.07.2025, 29.07.2025, 04.08.2025, 11.08.2025 and 12.08.2025 when the matter was reserved for orders.
This Court also has to observe one aspect of the hearing. Large compilations of documents and judgments had been filed by both sides in the following manner:
The compilations filed on behalf of the husband:
1. The husband filed a memo of judgment on 20.06.2025 consisting of 44 pages.
2. Memo of additional documents filed on 01.07.2025 consisting of documents from page 2 to 16.
3. Judgments of the Hon’ble High Court of Allahabad page 27 to 58 and written submissions of 11 pages along with copies of judgments of the Hon'ble Supreme Court from page 11 to 24 filed on 04.08.2025.
4. Written submissions of .petitioner filed on 14.08.2025 consisting of 7 pages.
The compilations filed on behalf of the wife:
1. Memo-cum-written submissions filed on 08.07.2025, consists of 23 pages of written submissions and copies of orders and other documents from page 24 to 45.
2. Memo filed on 14.07.2025 containing testimonials of residents of the U.S.A.
3. Memo of additional written submissions filed on 16.07.2025 consisting of written submissions in page 17 to 18 and copies of orders and other material from page 19 to 265.
4. Additional documents filed under a memo on 17.07.2025 consisting of 43 pages.
5. Revised submissions of the wife, under a memo dated 29.07.2025, consisting of 20 pages of revised submissions and copies of orders from page 21 to 59.
6. Memo of rebuttal of the written submissions filed by the husband dated ll.08.2025 consisting of 13 pages of written submissions.
7. Advance copies of final submissions filed under a memo on 18.08.2025 consisting of 19 pages along with copies of judgments from page 20 to 150.
It is not clear as to whether all these papers have been filed for the purpose of assisting this Court or to delay the consideration of all these submissions.
The written submissions and documents, mentioned above can be summarized as follows:
The case of the husband is that the direction of this court, dated 12.04.2019, in W.P.No.47795 of 2018, requires the wife to produce the child before the Family Court, Tirupathi in FCOP.No.110 of 2018. The refusal to produce the child before the Family Court amounts to contempt of court. Further, various steps taken by the wife to obviate the orders of the Court and to ensure non-compliance of the orders of the Court, would amount to aggravated contempt which requires to be dealt with severely by this Court.
The defense of the wife, that the orders of the Hon’ble Supreme Court, had effectively obviated the orders of this Court, dated 12.04.2019, is not tenable. The Hon'ble Supreme Court, on the ground that FCOP.No.110 of 2018 had been dismissed, had held that there was no need to produce the child before the Family Court. However, FCOP.NO.110 of 2018 came to be restored to file, in view of the orders of the Division Bench of this Court in FCA.No.172 of 2019, dated 07.05.2020. ln this judgment, a Division Bench of this Court, had held that the orders of the Hon'ble Supreme Court, dated 24.O1.2020, is not an absolute bar, for further proceedings including production of the child. The judgment of this Court, had been challenged before the Hon'ble Supreme Court, by way of Civil Appeal No.6363 of 2022. The Hon’ble Supreme Court by an order, dated 09.10.2023, had refused to interfere with the impugned order in FCA.No.172 of 2019 and consequently the order of the Division Bench of this Court in FCA.No.172 of 2019 had merged into the order of the Hon’ble Supreme Court. ln view of these orders, the direction of this Court, in the order dated 12.04.2019 cannot be said to have been set aside or had become incapable of implementation.
These submissions, it is contended, are further fortified by the fact that a review filed against the order of dismissal, dated 09.10.2023, in Civil Appeal No.6363 of 2022 came to be dismissed, on 28.02.2024.
ln a further proceeding, in C.R.P.No.1119 and 1120 of 2024, one of us, sitting single, had held that the wife was bound to produce the child before the Family Court, in view of the binding directions of the Division Bench in W.P.No.47795 of 2018, dated 12.04.2019. This order came to be challenged, before the Hon'ble Supreme Court, by way of S.L.P. Nos. 21796 - 21797 of 2024. Both these S.L.Ps were dismissed, by the Hon'ble Supreme Court, on 11.11.2024. In that view of the matter also, it would have to be held that the observations of the Hon'ble Supreme Court in the order, dated 20.01.2020, in S.L.P. (Crl.). No. 6436 of 2019 would not in any manner set aside the order of this Court, dated 12.04.2019.
The contention of the wife that the best interest of the child would be served, by allowing the child to remain in the U.S.A and that it would be against the interest of the child, to be brought back to Tirupathi is misplaced. The question before this Court is the violation of the orders of this Court, by the wife. Further, the production of the child, in the Family Court, Tirupathi, is for the purpose of deciding the very same issue as to whether it would serve the interest of the child to continue to reside in the, USA or in Tirupathi. Apart from this, the question of the wife having forcefully taken away the child, from the lawful custody of the husband, requires to be rectified, by the child being produced in Tirupathi.
The wife, on the other hand contends as follows:
1. The Circuit Court in Michigan, had granted alternate parental custody, of three months each, to the husband and the wife with a further stipulation that the child should not be taken out of the U.S.A. By bringing the child to Tirupathi, under a false pretext of illness of his father, the husband having violated the directions of the Court in Michigan cannot now tum around and claim legal custody of the child.
2. The various testimonials, of the teachers of the child, as well as the testimonials of persons who had witnessed the domestic violence perpetrated by the husband, would clearly show that it is in the best interest of the child that he is allowed to remain in the U.S.A in the custody of the wife.
3. A case of contempt can be made out against the wife, if there was wilful disobedience of the orders of the court. There was no such wilful disobedience. The Court in Texas, had already assumed jurisdiction, on the basis of the residence of the wife and her child. In such circumstances, the wife cannot be forced to submit herself and her child to the jurisdiction of the Court in Tirupathi. Approaching the Texas Court, was a lawful exercise of a legal right, not a defiance of Indian courts. The remedy of approaching the court in Texas, is a remedy available to the wife, as she was a resident of Texas since 2011. Further, the child cannot be brought to India, on account of the orders of restraint, issued by the court in Texas. The wife’s action of obtaining orders from a court was only for the purposes of obtaining clarity and protection for the child under the framework of law available in the united states of America. Such actions, which were taken in good faith, cannot be equated to wilful disobedience of the orders of the court.
4. The orders of the court in Texas, prohibit the wife from taking the child out of the United States of America. Any such action by the wife, would constitute breach of law in the jurisdiction where the wife resides and as such she cannot bring the child to Tirupati. Any step taken by her would amount to disobeying the orders of this Court or the court in Texas.
5. The wife has consistently offered to participate in the custody proceedings before the family court in Tirupati, through video conference. As far as the production of the Child is concerned, the same is not executable, in “normal circumstances". The judgment in Ashok Paper Kamgar Union vs. Dharam Godha is relied upon for this proposition.
6. The orders. of the Hon'ble Supreme court, dated 20.01.2019, cannot be treated to have worked themselves out and no order to the contrary can be passed by any other court, until and unless the Hon'ble Supreme Court, itself, vacates or modifies its orders. ln the present case, the subsequent orders of this court, in F.C.A. No. 172 of 2019, cannot be treated to have superseded the earlier order of the Hon’ble Supreme Court.
Consideration of the Hon’ble Court:
1. The admitted facts are that the joint custody of the child was given to both the husband and the wife by the Court in Michigan. The child was brought to India in 2017. Thereafter, the wife moved proceedings before the Court in Michigan as well as the erstwhile High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, with the contention that the husband had violated the directions of the Court in Michigan and that she was entitled to take the child back to the U.S.A. The wife withdrew the writ petition, filed before this Court. The court in Michigan refused to exercise jurisdiction on her request for a direction to the husband to return the child to Michigan.
2. The further admitted fact, is that the child was in the custody of the husband on 15.ll.2018, when the child was taken away by the wife to the USA. The husband contends that this was done by moving the child, surreptitiously, from Tirupathi to Nepal and so on, till the wife and child reached the U.S.A.
3. The order of this Court, dated 12.04.2019, required the wife to produce the child before the Family Court, Tirupathi in FCOP. No. 110 of 2018. The wife has not complied with this direction.
The wife has defended her action on the following grounds:
1. The Hon'ble Supreme Court in its order, dated 24.01.2020, in S.L.P. (Crl). No. 6436 of 2019 had closed the said petition, with the observation that there was no question of production of the child before the Family Court, Tirupathi. No subsequent order of this court, either in FCA No.172 of 2019 or CRP Nos.1119 and 1120 of 2024, can alter that order. The present proceeding cannot be continued, in the face of this direction of the Hon'ble Supreme Court.
2. The welfare of the child has to be given priority and the dislocation of the child from the U.S.A to Tirupathi after more than six years have elapsed and after the child has developed roots and is accustomed to live in U.S.A would be clearly against the interest of the child. The wife has also raised other grounds which are set out above.
3. There must be wilful disobedience of the orders of the court, to bring home a charge of civil contempt. There is no such wilful disobedience, as the wife, on account of the orders of the court in Texas, is precluded from taking the child out of the United States of America. Neither can the action of the wife approaching the court in Texas be treated as disrespecting the Indian courts.
4. The Family Court in Tirupathi has no jurisdiction inasmuch as the husband and the child are United States’ citizens while the wife is a permanent resident of Texas State. It is only the Court in Texas which would have jurisdiction and the Family Court in Tirupathi has no jurisdiction since the child does not normally reside in India or within the jurisdiction of the Family Court, Tirupathi. Section 9 (1) of the Guardians and Wards Act,1890 clearly stipulates that it is only the Court where the child is normally resident, that would be competent to take up any dispute relating to the custody of the child. Further, the Court in Texas has already adjudicated on the question of custody of child in favour of the wife and the same cannot be interfered with.
5. The wife relies on the Judgment of the Hon'ble Supreme Court in Nithya Anand Raghavan vs. State (NCT of Delhi) and Somprabha Rana v. State of Madhya Pradesh to contend that a writ of Habeas Corpus to enforce directions given by a Foreign Court or to take away custody of the child from the mother when such custody cannot be treated as illegal custody.
Before considering the other grounds of defense, it would be appropriate to consider the grounds of defense raised above, namely, 2 (welfare of child), 4 (jurisdiction) & 5 (Hon'ble Supreme Court judgments relied upon in enforcement of Habeas Corpus directions) raised by the wife.
On ground 2 (welfare of child):
1. Under ground 2, the learned Senior Counsel, appearing for the wife, has drawn the attention of this Court to various testimonials produced by the wife as well as the various judgments of the Hon'ble Supreme Court, to contend, that the welfare of the child is the first and only issue that would be looked into by the Courts, while deciding the custody or the production of the child. There is no quarrel with this proposition and we wholeheartedly endorse, the principle, that the welfare of the child attains primacy in any consideration of grant of custody to either parent. ln that view of the matter, we do not propose to set out the testimonials or the judgments and submissions made by the learned Senior Counsel as we are in agreement with him on principle.
2. Though on principle, we are in agreement with learned Senior Counsel, the question of what would serve the best interest of the child, are issues which would be decided by the Family Court, on production of the child before the Family Court in Tirupathi. Such production of the child, does not mean that the child will, forever, remain in Tirupathi. This Court, after considering the very same issue, that the interests of the child should be given primacy, had passed the order, dated 12.04.2019. The order of this Court, dated 12.04.2019, is very clear and specific that, the question of interim custody of the child, pending final disposal of the petition, would be decided by the Family Court in Tirupathi, after the production of the child. ln such a situation, the contention of learned Senior Counsel that the child cannot be produced before the Court in Tirupathi, as his interests are not being taken into account, cannot be accepted. The issue raised by learned Senior Counsel is an issue that would be answered by Family Court at Tirupathi, after hearing both sides and after the child is produced before the family court Tirupathi. The issue, before this Court, is whether the orders of this Court have been complied or not.
On ground 4 (jurisdiction):
1. The issue raised in ground 4 relating to jurisdiction of the Court in Tirupathi and the effect of the judgment of the Court in Texas, are issues which would have to be raised before the Family Court, Tirupathi. In fact, these issues have already been raised and came to be rejected by this Court in FCA. No. 172 of 2019. The scope of the petition before this Court, is whether there has been violation of the directions of this Court in W.P. No. 47795 of 2018. The dispute regarding the question of jurisdiction of the Family Court, Tirupathi, or the effect of the judgment of the Court in Texas, are outside the scope of consideration in the present Contempt Case. As such this ground has to be rejected.
On ground 5 (Hon'ble Supreme Court judgments relied upon in enforcement of Habeas Corpus directions):
1. The issues raised in ground 5 relate to the jurisdiction of this Court, in issuing a Writ of Habeas Corpus, for production of the child before the Family Court, Tirupathi. These are issues which were considered by this Court in W.P. No. 47795 of 2018. In any event, the said Order has become final and it would not be open to this Court to go into the question of whether that issue was appropriately decided by a Division Bench of this Court or not.
The issue, raised in ground 1, above, as to whether the observation of the Hon’ble Supreme Court, would forever prohibit the production of the child in Tirupathi requires to be considered. The details of the proceedings and the manner in which the child had been taken back to the U.S.A, by the wife, have already been set out. The husband moved W.P. No. 47795 of 2018, for production of the child and for restoration of custody. A Division Bench of this Court, after holding that the child had been forcibly taken away by the wife, had not directed restoration of custody to the husband.
The Division Bench, after noting the fact that FCOP. No. 110 of 2018 was already pending before the Family Court, Tirupathi, regarding the question of custody of the child, had directed that the wife should produce the child before the Family Court which would then decide the question of interim custody and final custody of the child.
The wife challenged this order, by way of S.L.P. (Crl.) No. 6436 of 2019, filed on 23.07.2019. The Hon’ble Supreme Court, by an order dated 29.07.2019, had stayed the direction requiring the production of the child before the Family Court, Tirupathi. On 24.01.2020, the Hon'ble Supreme Court was informed that FCOP.No.110 of 2018 had been dismissed and that an appeal against the said order of dismissal was already pending before this Court. The Hon'ble Supreme Court, after recording these facts, held that the subsequent dismissal of the petition by the Family Court, Tirupathi had overtaken the aspect of challenge before the Hon'ble Supreme Court and therefore, there would be no question of production of child before the Family Court at Tirupathi.
The appeal filed against the order of dismissal of FCOP. No. 110 of 2018, by the Family Court, Tirupathi came to be numbered as FCA. No. 172 of 2019. This appeal was allowed on 23.09.2021. The issues that were raised in the Family Court appeal was whether the Family Court, Tirupathi had jurisdiction in view of the earlier orders of the Michigan Court. The Division Bench held that the Court in Tirupathi cannot decline jurisdiction on the ground that the child was brought to Tirupathi without the permission of the Michigan Court as the child had been brought to India with the consent of the wife.
Another contention, which had come up before the Division Bench, in the above appeal, was that the direction, in the order, dated 12.04.2019, in W.P. No. 47795 of 2018, need not be followed, on account of the orders of the Hon'ble Supreme Court in S.L.P. (Crl). No. 6436 of 2019, dated 24.01.2020.
The Division Bench dealt with this contention, in the following manner:
“It is contended by the wife that the order in W.P. No. 47795 of 2018 was challenged in Special Leave to Appeal (Crl) No.6436 of 2019 before the Hon'ble Apex Court and therefore the direction in W.P.No.47795 of 2018 need not be followed. We cannot appreciate this argument. A perusal of the order dated 24.01.2020 passed by the Hon’ble Apex Court in Special Leave to Appeal (CrI). No.6436/2019 would show that on 29.07.2019 stay was granted against the order in W.P. NO. 47795 of 2018. Thereafter, on being informed that the F.C.O.P.No.110/2018 was dismissed by the Family Court, Tirupati and an appeal was pending before the High Court of Andhra Pradesh against the said order, Hon'ble Apex Court observed that the aforesaid subsequent act has over taken the aspect of the challenge before the Supreme Court and thus there was no question of production of child before the Family Court at Tirupati. With that observation Special Leave Petition was disposed of. It should be noted that Hon'ble Apex Court has not set aside the order in W.P. No. 47795 of 2018 on merits. It was only held that the question of production of the child before the Family Court at Tirupati does not arise because of dismissal of F.C.O.P. No. 110/2018 by the Family Court at Tirupati. Therefore, the wife cannot contend that the order in W.P. No. 47795 of 2018 can be ignored. The other contentions raised by the wife are of not much significance. The decisions cited also will be no avail."
The direction, in W.P. No. 7795 of 2018, referred to in the above order in the Family Court Appeal, is the direction, to the wife, to produce the child before the Family Court at Tirupathi and for determination of interim and final custody of the child. The Division Bench, in FCA. No. 172 of 2019 had specifically considered the aforesaid submission and had held that the direction in W.P. No. 47795 of 2018 cannot be ignored and has to be followed.
This judgment was challenged before the Hon'ble Supreme Court, which admitted the S.L.P filed by the wife, and heard the matter as a Civil Appeal. The Civil Appeal was numbered as Civil Appeal No.6363 of 2022.
The Hon’ble Supreme Court, passed an order, dated 09.10.2023, dismissing the Civil Appeal in the following manner:
“In the given facts and circumstances of the case, we ultimately do not see any reason as to why we should interfere with the impugned order. The Civil Appeal stands dismissed.”
The order of the Division Bench, in F.C.A. No. 172 of 2019 is deemed to have merged into this order of the Hon'ble Supreme Court as the order has been passed in a Civil Appeal and not in an S.L.P. The judgment of the Hon'ble Supreme Court in the case of Kunhayammed and Others vs. State of Kerala and another would apply in this case. Even if the argument of the learned senior counsel for the wife, that subsequent orders of this court, cannot take away the effect of the orders of the Hon'ble Supreme Court, is to be accepted, the order of this court, in FCA. No. 172 of 2019, has merged into the order of the Hon’ble Supreme Court in C.A. No. 6363 of 2022 and the said contention does not survive.
A further fact, which needs to be noted, is that the wife moved a review petition against the said order of dismissal. This review petition also came to be dismissed by an order, dated 28.02.2024, in the following manner:
“Delay condoned. We have carefully perused the review petition as also the grounds in support thereof. ln our opinion, no case for review of the order dated 09.10.2023 is made out. The review petition is, accordingly, dismissed."
In related proceedings, in CRP. Nos. 1119 and 1120 of 2024, this Court had held that the order of the Division Bench in FCA. No. 172 of 2019, which had been affirmed in Civil Appeal No. 6363 of 2022 made it clear that the wife would have to comply with the directions of this Court dated 12.04.2019 in W.P. No. 47795 of 2018. The orders of this Court in CRP. Nos. 1119 and 1120 of 2024 came to be challenged before the Hon'ble Supreme court by way of S.L.P. No. 21796 and 21797 of 2024. Both these S.L.Ps came to be dismissed. On 11.11.2024, the learned Senior Counsel for the wife would contend that an order of dismissal, at the stage of Special Leave Petition, would not result in the merger of the order of this court, and relied on the order of the Hon'ble Supreme Court in Kunhayammed and Others vs. State of Kerala and another. There is no dispute that the order of this court did not merge into the orders of the Hon'ble Supreme Court. However, the fact remains that the earlier order of the Division Bench, in FCA. No. 172 of 2019 came to be affirmed by the order of the Hon'ble Supreme Court in a Civil Appeal and consequently the order of the Division Bench in FCA. No. 172 of 2019 would have to be treated as merged into the order of the Hon’ble Supreme Court. ln these circumstances, it is clear that the wife is bound to comply with the directions of this Court dated 12.04.2019 in W.P. No. 47795 of 2018, failing which, she would be guilty of contempt of court under the provisions of the Contempt of Court Act.
The case of the wife is that, she had rightfully invoked the jurisdiction Of the Court in Texas and because of the orders of the court in Texas, is prohibited from taking the child out of the United States of America. The wife further contends that the orders of this court cannot be “normally implemented" and no contempt would arise, on non-implementation of the orders of this court. It is also contended that a case of contempt would arise only when there is wilful disobedience of the judgment and that benefit of doubt should be given to the contemnor where two equally consistent possibilities of contemnor having wilfully disobeyed or disobeyed out of compulsion would have to be taken into account.
The wife relies upon the following judgments for these propositions:
1. Ashok Paper Kamgar Union v. Dharam Godha
2. Chhotu Ram v. Urvashi Gulati
3. Sudhir Vasudeva v. George Ravishekeran
4. R.N. Dey & Ors. V. Bhagyabati Pramanik & Ors
5. M/s. Gojer Bros. Pvt. Ltd. V. Ratan Lal Singh
6. Sulthan Said lbrahim v. Prakasan & Ors
7. Shankar Ramachandra Abhyankar v. Krishnaji Dattatreya Bapat
8. Harshad Chiman Lal Modi v. DLF Universal Ltd
These judgments arise out of cases, where it is contended that the orders of the court could not be implemented, because of certain circumstances. Before going into the judgments, cited by the Learned Senior Counsel for the wife, it is necessary to ascertain, the conduct of the wife and whether such conduct was wilful disobedience of the orders of this court.
Section 2 (b ) of the Contempt of Courts Act, reads as follows:
“The Civil Contempt means wilful disobedience to any judgment, decree, direction, order, Writ or other process of a Court or wilful breach of undertaking given to a Court."
The division bench of this court which passed the order dated 12.4.2019 in W.P. No. 47795 of 2018, was informed, in the course of the hearing, that the wife had approached the court in Texas and had obtained orders of custody from that court. The division bench, after considering this fact and the manner in which the wife had obtained custody of the child and the manner in which he was taken out and after noticing the judgments in V. Ravichandran (Dr.) v. Union of India, Kanika Goel v. State (NCT of Delhi), Elizabeth Dinshaw v. Arvand M. Dinshaw, Nithya Anand Raghavan vs. State (NCT of Delhi), Surya Vadanan v. State of Tamil Nadu, Alekhya Yalamanchili v. State of Andhra Pradesh and others, Prateek Gupta v. Shilpi Gupta had held as follows:
“24. However, the record clearly shows that on the day when the writ petition was withdrawn, the boy was abducted from the lawful guardianship of his grandmother. It is no doubt true that orders are passed by the Courts in U.S., but, at the same time, the Courts in India, while recognizing the custody of the boy with the father, granted interim custody to the father, meaning thereby, the boy is in lawful custody of the father in India. Forcible taking away of the boy from the custody of his grandmother, is not permitted by any law or by any order passed by the Courts in U.S. In fact, there is no answer from the counsel when the Court posed a query as to how the mother came into custody of the boy on 15.ll.2018. Since November 2018, the boy is in the custody of the mother and father has been visiting USA fighting out the litigation in the said Courts. At the same time, the appropriate Civil Court in India is also seized of the matter with regard to the custody of the child vide FCOP/GWOP No.110 of 2018 before the Family Court at Tirupati”.
Since the boy has been forcibly taken away without any lawful authority or with the aid of any order passed by the Indian Court and since the welfare of the child is a paramount consideration, it will be just and proper for us to direct the mother to subject herself to the jurisdiction of the Civil Court in FCOP/GWOP No.110 of 2018 before the Family Court-Cum-V Additional District Judge, Tirupati, and produce the child before the said court. In which event, the said Court shall examine the boy, father, mother and all concerned and then pass appropriate orders. In our view, deciding of the issue by the appropriate Civil Court is very much essential, more so, in view of the judgment of the division bench of this Court in Alekhya Yalamanchili’s case, where the court held that even if the child is not within the territorial jurisdiction of the court, if parties have approached the Civil Court, which is within the supervisory or superintendence jurisdictional area of High Court, it is entitled to assume jurisdiction.
In the result, the Writ Petition is allowed, directing the wife to produce the son, a minor child aged about 5 years, son of the parties, before the Family Court at Tirupati within 8 to 12 weeks from the date of receipt of a copy of this order. On which, the concerned Civil Court shall decide the issue relating to interim custody of the child pending O.P. as well the O.P. in accordance with law at the earliest.
The finding of this court, which has become final, is that the wife has taken away the child, from the lawful custody of the husband, and that she has to return the child to India for a decision on further custody. The continued refusal to comply with the directions of the court is clearly wilful. The wife now contends that she is unable to bring the child to Tirupathi because of the orders of the court in Texas. What is not highlighted is that the wife herself, after the child had been brought to India, approached the court in Michigan, for obtaining custody of the child and then approached the court in Texas, after the court in Michigan refused to take up the case. The orders, prohibiting the movement of the child from America, were orders obtained by her. These are not orders passed against her. These are orders, that she obtained, which can be withdrawn at her request. It is clear that these orders were obtained by her to circumvent the orders of this court. ln such a situation, the judgments cited by the learned senior counsel are of no avail.
The actions of the wife are deliberate actions, done to set up a defense and smokescreen against compliance of the orders of this court. The wife is wilfully disobeying the orders of this court, and is clearly guilty of wilful disobedience of the orders of this court. This court has no hesitation to hold that the wife has committed contempt of court.
This court is cognisant of the fact that the present application has come up in a child custody matter, where parental affection makes parents go to any length to retain or obtain custody of their children. However, this court cannot turn a blind eye to the deliberate and clear cut violations of the orders of this court.
Balancing both factors, this court is of the opinion that the wife should be given an opportunity to purge herself of the contempt of court committed by her. Accordingly, she is given an opportunity to produce the child before the Family Court Tirupati, within three months from today, failing which she shall undergo simple imprisonment of two weeks and pay a fine of Rs.2000/-. Failure to pay the said fine shall result in further simple imprisonment of three days.
Accordingly, this contempt case is allowed.
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