Delhi High Court - Orders
Nitin Chopra vs Geeta Vohra @ Geeta Chopra on 13 October, 2020
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.APP.(C) 5/2020
NITIN CHOPRA ..... Appellant
Through: Mr. Sahil Khurana, Mr. Rattandip
Singh and Mr. Lakshay Kumar, Advs.
Versus
GEETA VOHRA @ GEETA CHOPRA ..... Respondent
Through: Mr. Rajnish Ranjan, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
ORDER
% 13.10.2020 [VIA VIDEO CONFERENCING] CM No.25852/2020 (for exemption)
1. Allowed, subject to just exceptions and as per extant rules.
2. The application is disposed of.
CONT.APP.(C) No.5/2020 & CM No.25853/2020 (for stay)
3. This appeal under Section 19 of the Contempt of Courts Act, 1971 impugns the judgment dated 18th September, 2020 of the Single Judge of this Court in Cont.Cas(C) No.1017/2019 filed by the respondent wife against the appellant husband, averring violation by the appellant husband of the order dated 6th June, 2019 passed by the Court of the Magistrate in Complaint No.4388/2019 filed by the respondent wife against the appellant husband under the Protection of Women from Domestic Violence Act, 2005 (DV Act). Vide the impugned judgment, the Single Judge has held the acts CONT.APP.(C) 5/2020 Page 1 of 8 of the appellant husband to be amounting to disobedience of the Court's order but has proceeded to reason that holding the appellant husband guilty of contempt and passing any sentence will not subserve any useful purpose and may not be in the interest of the children of the parties. However the Single Judge took "note of the fact that there is a wilful disobedience of the Court order" and therefore warned the appellant husband that in case the order is flouted in future, stricter view would be taken. The Single Judge ultimately proceeded to pass certain directions.
4. No punishment having been meted out to the appellant husband vide the impugned judgment and Section 19 of the Contempt of Courts Act, invoking which the appeal has been filed, providing for appeal only against an "order or decision... to punishment for contempt", we have enquired from the counsel for the appellant husband that the appellant husband, having not been punished by the Single Judge, how is the appeal maintainable.
5. The counsel for the appellant husband first attempted to say that the punishment is in the form of directions issued by the Single Judge after holding the appellant husband to have disobeyed the order and guilty of wilful disobedience of the Court‟s order. However on attention of the counsel for the appellant husband being drawn to the title of the appeal where the appellant husband has expressly stated that the challenge to the judgment is only "to the extent of giving the findings of contempt of court against the appellant" and that no relief also for setting aside of the directions issued has been sought in this appeal and no ground impugning the said directions has been urged in the body of the appeal, the counsel for the appellant husband has not pressed the said argument.
CONT.APP.(C) 5/2020 Page 2 of 86. The counsel for the appellant husband thereafter states that inspite of his research, he has not been able to find any precedent, whether when a finding of contempt has been given but no punishment meted out, appeal would lie or not.
7. The counsel for the respondent wife appears on advance notice and fairly states that this Court in Raj Singh Gehlot Vs. Pardiam Exports Pvt. Ltd. (2010) 174 DLT 693 (DB) relying upon Midnapore People's Coop. Bank Ltd. Vs. Chunilal Nanda (2006) 5 SCC 399 has held that an order in a contempt case finding the alleged contemnor guilty of contempt but not meeting out any punishment is appealable.
8. That allays our doubt as to the very maintainability of this appeal.
9. As aforesaid, the respondent wife had filed proceedings under the DV Act against the appellant husband. In the said proceedings, the respondent wife filed an application for grant of visitation rights to the son aged about ten years of the parties who was in the custody of the appellant husband. We may at this stage mention that besides the said son, the parties also have a daughter who as of today is stated to be about seven years of age. The Magistrate before whom the proceedings under the DV Act were pending, vide order dated 6th June, 2019 directed, (i) the visitation rights to be exercised by the respondent wife at the Children‟s Room at Family Court Complex, Saket District Court, either in supervision of some staff already deputed for management of such room or under CCTV surveillance; (ii) the first such visitation right to be exercisable on first working day immediately after reopening of the District Court after summer vacation on 1st July, 2019 and thereafter on every Monday, "except in case of unavoidable exigency circumstances such as ailment of the child or his exam etc." and in which CONT.APP.(C) 5/2020 Page 3 of 8 case the appellant husband to inform the respondent wife at least an hour in advance; and, (iii) the continuance of the said order "subject to the continued consent of the child, in view of detailed order passed in this regard on 13th May, 2019".
10. The appellant husband thereafter filed an application before the Court of the Magistrate for vacation of the aforesaid order dated 6th June, 2019, averring that visitation would not be possible on 8th July, 2019 which was a Monday. The respondent wife filed the contempt case before this Court averring that the appellant husband, after 1st July, 2019, never brought the son to the Children‟s Room, Family Court, Saket.
11. Need is not felt for the purposes of this order to go into other details and which are succinctly recorded in the impugned order. Suffice it is to state that the Single Judge, after going through the pleadings, affidavits and after hearing the counsels, returned the findings as aforesaid and thereafter proceeded to dispose of the contempt case with the following directions:
"38. The Court is also conscious of the fact that in the prevailing circumstances on account of Pandemic COVID-19, it is not possible for the child to have physical interaction with the Petitioner or with the sibling and given these circumstances, even the Trial Court may not be in a position to physically interact with the child. Keeping the circumstances in mind, the following directions are issued to the Respondent:
i. Respondent shall make a sincere endeavor to ensure that the child interacts with the Petitioner and his sibling, as directed by the Trial Court, through a virtual medium. The time of the meeting shall be fixed with mutual convenience of the parties and the schedule of the child, keeping in mind the regime of his studies and/or any other curricular activity, one day before the meeting day, CONT.APP.(C) 5/2020 Page 4 of 8 as due to online classes there may be a different regime of studies etc. ii. If the Trial Court is holding proceedings through a virtual medium, it shall continue to make efforts to interact with the child, as and when feasible. iii. As soon as things normalize, the Respondent shall hire the services of a child counsellor so that there is a smooth transition and the child interacts with the Petitioner more frequently.
iv. Last but not the least, Respondent shall ensure that the child cooperates and the meetings, between the child and the Petitioner, are carried out successfully, in compliance of the directions of the Trial Court, in letter and spirit, through a virtual medium, till physical interaction is not feasible.
39. Contempt petition along with the accompanying pending applications is disposed of with the aforesaid observations and a warning to the Respondent not to disobey the order passed by the Trial Court and the directions passed by the Court today."
12. It is the contention of the counsel for the appellant husband that in view of the order dated 6th June, 2019, of which contempt was averred, expressly making the continuance thereof subject to the continued consent/willingness of the son of the parties, the appellant husband could not be held to be in wilful disobedience thereof. It is further argued that such findings could not be given without recording evidence on oath and subjecting the parties to cross-examination.
13. We have enquired from the counsels, whether the Single Judge, at any point of time during the pendency of the contempt case, interacted with the child of the parties.
14. The answer is in the negative.
CONT.APP.(C) 5/2020 Page 5 of 815. We have heard the counsels at length, spending over an hour, in an attempt to work out the best possible arrangement for the children of the parties, both of whom are minors and of impressionable age. It is felt that just like the order dated 6th June, 2019 of the Magistrate was a conditional order i.e. subject to the „continued consent‟ of the child, so is the direction issued by the Single Judge, by being made subject to "sincere endeavour" of the appellant husband. Such orders are incapable of enforcement through the process of law inasmuch as it is next to impossible to determine without a protracted recording of evidence and which process is not in the interest of the children, whether the consent of the child existed or not and/or whether a 'sincere endeavour' was made or not. To determine, whether such an order has been complied or not or whether there is wilful disobedience thereof or not, poses a similar challenge.
16. Though we have toyed with several possibilities but owing to the prevalent Covid-19 pandemic, which for the children as young as of the parties, is likely to result in social distancing for a continued period of time, the solution has eluded us.
17. During the hearing, we have also expressed reservation that a proceeding of this nature, instead of pending before the Family Court, is pending before the Court of the Magistrate. However on enquiry it is informed that a proceeding filed by the appellant husband for guardianship/visitation rights of the minor daughter is pending before the Family Court. The counsels are ad idem, that though a proceeding under DV Act lies before the Court of a Magistrate but if any proceeding is pending before the Family Court, then DV Act can be invoked before the Family Court as well.
CONT.APP.(C) 5/2020 Page 6 of 818. We are of the opinion that it will be in the best interest of the children that the proceedings with respect to the visitation by the mother of the minor son are handled by the Family Court with all the experience, wisdom and paraphernalia at its command. We therefore, in exercise of our supervisory jurisdiction, transfer Complaint Case No.4388/2019 titled Geeta Vohra @ Geeta Chopra Vs. Nitin Chopra pending in the Court of Ms. Aishwarya Sharma, Metropolitan Magistrate, Saket Court Complex, New Delhi to the Court of Ms. Madhu Jain, Principal Judge, Family Court, Saket Court Complex, New Delhi, with immediate effect.
19. We are informed that the next date before the said Principal Judge, Family Court, Saket is 11th November, 2020; the DV Act proceedings be also taken up by the Family Court on 11th November, 2020 and be tried along with the guardianship proceedings already pending before the Family Court.
20. The Family Court is requested to, with the experience at its command, work out a suitable arrangement for exercise of visitation right by the respondent mother to/of the minor son in the custody of the appellant father.
21. As far as the findings of the Single Judge, of the appellant husband being in wilful disobedience of the order dated 6th June, 2019, are concerned, though the counsel for the appellant husband has argued that the same could not have been arrived at without examination and cross- examination, particularly when the order dated 6th June, 2019 was a conditional order capable of two interpretations, but it cannot be said that the said findings are totally baseless. All that we choose to say at this stage is, that if in future, any further proceeding for contempt/disobedience of an order in the nature of visitation right by the respondent wife of the minor son CONT.APP.(C) 5/2020 Page 7 of 8 arises, the same will be dealt with without being bound or influenced by the findings of the Single Judge in the impugned order. We however express our hope that the said occasion does not arise and the parties behave like responsible parents.
22. Till the Family Court works out an arrangement, the appellant husband to arrange a virtual meeting of the minor son with the respondent mother and the younger sister, every Sunday, from 1200 hours to 1300 hours.
23. With the aforesaid observations, the appeal is disposed of.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J.
OCTOBER 13, 2020 'bs' CONT.APP.(C) 5/2020 Page 8 of 8