Madras High Court
Mr.Gopal Arumugam vs Mrs.Lalithamani Deivasigamani on 4 September, 2020
Author: R.Subbiah
Bench: R.Subbiah, R.Pongiappan
Cont.P.No.2056 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 04.09.2020
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Contempt Petition No. 2056 of 2019
Mr.Gopal Arumugam .. Petitioner
Vs.
Mrs.Lalithamani Deivasigamani .. Respondent
Contempt Petition filed under Section 10 of the Contempt of Courts Act
to take cognizance of the contempt committed by the respondent with regard
to the order of the Additional Family Court, Coimbatore passed in I.A.No.1 of
2019 in H.M.O.P.No.932 of 2019, dated 02.07.2019 and punish her for
committing and continuing to commit Contempt of the Court's order.
For petitioner : M/s.K.Sumathi
For respondent : Mr.N.Sridhar for Mr.R.Bharath Kumar
ORDER
R.SUBBIAH, J This Contempt Petition is filed by the petitioner praying to take action against the respondent under the provisions of the Contempt of Courts Act for wilfully disobeying the order of the Additional Family Court, Coimbatore http://www.judis.nic.in Page No.1/38 Cont.P.No.2056 of 2019 passed in I.A.No.1 of 2019 in H.M.O.P.No.932 of 2019, dated 02.07.2019 and punish her for committing and continuing such disobedience of the order of the Court.
2. Brief facts as culled out from the affidavit, which are necessary to decide the issue involved in this Contempt Petition, are as follows:
(a) The petitioner is the husband and the respondent is the wife. The marriage between them was solemnised on 22.02.2002 as per the Hindu Rites and customs at Maharaja Hall, Pollachi, Coimbatore District and the marriage was also registered in the Office of the Marriage Registrar/Sub-Registrar, Anaimalai on 01.03.2002. Due to their wed-lock, a son (Trilokh) was born on 07.12.2007 and a daughter (Gayathri) was born on 23.03.2009. Originally, the couple were residing in Canada, where the petitioner-husband had business interest.
(b) In the year 2014, the petitioner and the respondent discussed and decided to shift their residence to India for obvious reason(s) including the upbringing of their children as per Indian values and Tamil Culture. In anticipation of such move, the petitioner-husband, even in March 2014, had made arrangements for purchase of a house/villa at Coimbatore, located at Mayflower Sakthi Garden at Nanjundapuram Road, Coimbatore - 641 036, which was subsequently purchased by the petitioner in the name of the http://www.judis.nic.in Page No.2/38 Cont.P.No.2056 of 2019 respondent-wife. The sole reason to select Coimbatore as the place of residence of the family, was, to heed to the petitioner's wife's pleading, since she hails from the same place where she studied.
(c) In June 2015, the petitioner and respondent along with their children, came down to India, Coimbatore. Initially, they resided in a rented house at No.2E, Olive, Mayflower Sakthi Garden, Coimbatore and thereafter, they moved to the Villa purchased by the petitioner-husband in the name of the respondent-wife at Mayflower Sakthi Garden. In June 2015, the children were admitted in Vivekalaya's Prakriya International School (IB Curriculum) at Coimbatore. Thus, the family of the petitioner migrated and settled down at Coimbatore, consciously treating the same as their permanent place of residence. The family called this Coimbatore house as their family home, where the respondent-wife had the total freedom and complete mobility with a fully paid car for her own use and house servants and close proximity to the respondent's mother's residence.
(d) While so, the respondent-wife, in late 2018, started to behave little indifferently with disrespect towards the petitioner-husband. She was counselled by her family as well as the petitioner-husband, but it was of no avail. She became very adamant and openly expressed her disinclination to live with the petitioner or continue the marriage with him. In such a situation, http://www.judis.nic.in Page No.3/38 Cont.P.No.2056 of 2019 on 29.12.2018, the petitioner left for Canada on account of his business commitment and planned to return to India by February 2019. On 12.01.2019, the petitioner-husband was shocked to receive a phone call from the respondent-wife, informing that she along with the children, had landed in Canada without any prior intimation to her husband, the petitioner herein. At that time, the children were in the midst of the Academic Year, studying VI Std. and IV Std. at Coimbatore. The action of the respondent-wife on her arrival to Canada, clearly revealed a meticulously planned scheme, hatched and executed in collusion with the external and vested interests. Immediately, on the next day of her arrival, she demanded payment of 20,000 Canadian Dollars. She also threatened the petitioner-husband with complaint to the Canadian Revenue Authority, unless her financial demands are met immediately. The petitioner-husband tried to calm down the respondent-wife and sought to know as to why she had left India abruptly, without even caring to inform the petitioner-husband. The petitioner was acidly told that he was nobody to seek any answers regarding the respondent and/or the children. The petitioner was deeply hurt and distressed by the action, conduct and words of the respondent-wife. The petitioner-husband refused to provide 20,000 Canadian Dollars immediately, unless the respondent-wife was prepared to explain her actions and the reason for the sudden travel to Canada. While so, http://www.judis.nic.in Page No.4/38 Cont.P.No.2056 of 2019 on 13.01.2019, the respondent-wife lodged a false and spurious complaint with the Police in Canada against the petitioner-husband. He was called for enquiry and the Police found no truth or substance in the said compliant. Thereafter, she again lodged a complaint with the Children Aid Society of Toronto (CAS) as if the petitioner-husband was abusing the children. Here-again, an enquiry was held in which the children were also heard and again it was found that there was no truth or substance in the complaint.
(e) The respondent-wife, even on 14.01.2019, had engaged a Lawyer at Ontario and started preparing/taking steps for commencement of divorce proceedings against the petitioner-husband. It became apparent that the respondent had abruptly planted herself and the children in Canada, so as to vest the Court at Canada with jurisdiction to adjudicate the divorce proceedings. The conduct of the respondent-wife in travelling to Canada in January 2019, leaving a well settled home at Coimbatore, merely to launch matrimonial proceedings, is artificial and mala-fide. Such fake and unnatural acts will not and cannot confer jurisdiction upon the Court at Canada. The respondent-wife exposed the children to danger in putting them on the plane to fly to the other side of the world, without even informing the petitioner (husband) who is their father, who ought to be the emergency contact for the children's foreign travel.
http://www.judis.nic.in Page No.5/38 Cont.P.No.2056 of 2019
(f) The respondent-wife issued notice dated 06.03.2019 declaring that she had separated from the petitioner-husband and declared the date of separation as 22.01.2019. On 13.05.2019, she filed divorce proceedings before the Superior Court at Ontario, Canada in File No.FS.19-0010020. It is the specific case of the petitioner-husband that none of the requisites for the Canadian Court to acquire jurisdiction to entertain a divorce petition, was present and the proceedings launched were one with no jurisdiction. Thus, the respondent-wife had invoked the process of a Court having no jurisdiction over the matter and which is also incapable of granting the relief of divorce, as the parties hereto are Hindus governed by and married under the Hindu Marriage Act. In such circumstances, the petitioner-husband was constrained to file a petition in H.M.O.P.No.932 of 2019 before the Additional Family Court, Coimbatore, praying for the following reliefs:
(i) of divorce under Section 13(1)(i-a) of the Hindu Marriage Act;
(ii) to grant the custody of the children Trilokh, aged 12 years and Gayathri, aged 10 years, as per the provisions of Section 26 of the Hindu Marriage Act; and
(iii) also for anti-suit injunction with the prayer to grant an order of permanent injunction restraining the respondent-wife from prosecuting or proceeding http://www.judis.nic.in Page No.6/38 Cont.P.No.2056 of 2019 with the matrimonial proceedings launched by her before the Superior Court, Ontario, Canada in Court File No.FS-19-0010020.
(g) That apart, the petitioner-husband also filed an application in I.A.No.1 of 2019 in H.M.O.P.No.932 of 2019, for temporary injunction restraining the respondent-wife from prosecuting and proceeding with the matrimonial proceedings launched by her before the Superior Court at Ontario, Canada in File No.FS.19-0010020 till the disposal of the said Original Petition. The Additional Family Court, Coimbatore granted an order of interim injunction on 02.07.2019 as prayed for. According to the petitioner-
husband, the said interim order of injunction is still in force.
(h) The notice in the above proceedings and also the interim order of injunction granted by the Family Court in I.A.No.1 of 2019, had since been duly served/intimated to the respondent/wife in compliance of the requirement of Order 39 Rule 3 of the Civil Procedure Code (C.P.C). The pleadings, documents and also the interim order granted by the Family Court, were sent to the respondent-wife by Registered Post on 03.07.2019. The counsel for the respondent was also intimated of the order of injunction even on 09.07.2019 itself. The petitioner-husband's counsel at Canada wrote to the respondent- wife's counsel as per letter dated 09.07.2019 stating that, "Attached for your http://www.judis.nic.in Page No.7/38 Cont.P.No.2056 of 2019 information and records is the Order dated July 2, 2019 of the Honourable Family Judge of Coimbatore granting an interim injunction against your client relating to the Ontario Superior Court divorce application". She had entered appearance through her counsel Mr.N.Sridhar at Coimbatore in the above matter before the Additional Family Court, Coimbatore for the hearing held on 13.09.2019. The provisions of the Family Court do not permit a party to appear through a Counsel. Section 13 of the Family Courts Act provides for a Counsel to be appointed as an Amicus Curiae to assist a litigant before the Family Court. However, their personal appearance cannot be dispensed with. Even Power Agents can represent the parties on the hearing dates, but the litigant has to be present for the proceedings of counselling and other hearings in person. The respondent-wife, in this case, had never appeared before the Family Court even on a single day and her counsel is being permitted to represent her in her absence, which is opposed to the Family Courts Act/Rules. After entering appearance through her counsel, the respondent-wife did not come forward to file her version in the above application or in the interim injunction application.
(i) Notwithstanding the order passed by the Family Court, Coimbatore, the respondent-wife proceeded with her case at Ontario, Canada. This according to the petitioner is a clear strategy adopted by her to delay the http://www.judis.nic.in Page No.8/38 Cont.P.No.2056 of 2019 conclusion of the Original proceedings pending before the Family Court, besides being contemptuous. With total disregard and impunity, the respondent-wife proceeded to prosecute and actively participated in the proceedings initiated by her before the Supreme Court, Ontario, Canada. In fact, the petitioner's counsel at Canada, by e-mail dated 21.10.2019, wrote to the respondent's counsel, "Your client remains in contempt of the Coimbatore order enjoining her from proceeding in Ontario. Please confirm that you agree to the adjournment of the Ontario case conference until after the Coimbatore hearing takes place, now scheduled for November 7, 2019. Our client will be seeking sanctions in the Coimbatore proceeding for her ongoing violation of the Indian injunction. Thank you." Shockingly, the response received from the respondent-wife's Canadian counsel on 21.10.2019 was that, "we will proceeding with the Ontario divorce proceeding and the upcoming case conference." This serves as great evidence in words and deeds of the respondent-wife's vehement and wilful act of disobedience of the order passed by the Additional Family Court at Coimbatore in I.A.No.1 of 2019 in H.M.O.P.No.932 of 2019, dated 02.07.2019. In those circumstances, the petitioner-husband has come forward with the present Contempt Petition for the relief stated supra.
http://www.judis.nic.in Page No.9/38 Cont.P.No.2056 of 2019
3. When the Contempt Petition is taken up for consideration, the learned counsel appearing for the petitioner-husband submitted that the Family Court at Coimbatore had granted ad-interim order of injunction on 02.07.2019, restraining the respondent-wife from proceeding with the matrimonial proceedings at Canada. Though notice was sent to the respondent-wife, she entered appearance with much delay only on 13.09.2019. Having appeared through a counsel during the second week of September 2019, she had not filed counter statement till date, either in the main application or in the anti- suit injunction application. The respondent also did not appear in person, inspite of direction by the Family Court.
4. The learned counsel appearing for the petitioner-husband further submitted that the respondent-wife does not deny the disobedience of the order of the Family Court, Coimbatore, on the other hand, she offered several reasons for such disobedience. Inspite of the order of interim injunction, dated 02.07.2019 and the service of notice of the said order on her, she continued to proceed with the case initiated by her before the Superior Court, Ontario, Canada. This gave rise to a situation where she was neither appearing in person as directed by the Family Court, nor abiding by the order of injunction order granted by the Family Court. Further, repeated adjournments were taken and the matter is being protracted. In fact, the learned counsel appearing for http://www.judis.nic.in Page No.10/38 Cont.P.No.2056 of 2019 the petitioner-husband at Canada, on two occasions, wrote to the learned counsel appearing for the respondent-wife at Canada, seeking to adjourn the proceedings in Canada, in view of the injunction order granted by the Family Court at Coimbatore, but the learned counsel appearing for the respondent- wife sent a reply, rejecting his plea and asserted in writing in and by e-mail, dated 21.10.2019 that she would proceed with the divorce proceedings at Canada, which shows that there is wilful disobedience on the part of the respondent in obeying the order of the Family Court. This aspect also shows that it was not only mere disobedience, but wilful disobedience committed by her, thus jeopardising the Majesty of the Honourable Courts in India.
5. Further, the learned counsel appearing for the petitioner-husband submitted that the respondent-wife never made any attempt to approach the Superior Court at Ontario, Canada to seek a reasonable time for her to deal with the order of injunction passed by the Family Court, Coimbatore, by due process of law and then to revert back to the Superior Court at Ontario, to continue with the proceedings after obtaining the necessary orders to enable her to proceed with the case at the Superior Court, Ontario. She never appeared before the Family Court in person to express her apology in person, nor did she file an affidavit tendering such apology showing the circumstances under which she could not obey the order of the Family Court, Coimbatore. http://www.judis.nic.in Page No.11/38 Cont.P.No.2056 of 2019 Thus, the learned counsel appearing for the petitioner-husband submitted that there is wilful disobedience by the respondent-wife in respect of the order passed by the Family Court and he prayed to punish the respondent-wife for such wilful disobedience.
6. Countering the above submissions, the learned counsel appearing for the respondent-wife submitted that the wife initiated the matrimonial proceedings and the other related reliefs against the petitioner-husband before the Superior Court, Ontario, Canada on 13.05.2019. On the date of filing the petition, the respondent-wife and her children were living in Canada. The petitioner-husband thereafter flew to India from Canada for the purpose of filing H.M.O.P.No.932 of 2019 before the First Additional Family Court, Coimbatore on 02.07.2019. The Family Court at Coimbatore has no jurisdiction to entertain the said H.M.O.P. filed by him. In other words, the Family Court at Coimbatore has no territorial jurisdiction to entertain the petition filed by the petitioner-husband for divorce. Further, originally, the petitioner-husband was a Srilankan and before his marriage itself, he migrated to Canada for his avocation and settled there. He is now a citizen of Canada. After the marriage between the petitioner and the respondent in 2002, the respondent-wife moved to Canada along with the petitioner-husband and now she is having citizenship in Canada. The petitioner-husband is engaged in http://www.judis.nic.in Page No.12/38 Cont.P.No.2056 of 2019 running a business in Canada on permanent basis. Both the children born to the parties, are also Canadian citizens. They were permanently settled in Canada for several years. They are habitual residents of Canada and not permanent residents of India.
7. The learned counsel for the respondent-wife further submitted that the respondent-wife is of Indian origin holding certain assets in India, including a house in Mayflower, Phase IV, Sakthi Garden, Coimbatore and she does not have any permanent residence in India. The matrimonial home of the petitioner and the respondent is No.37, Rochadale Avenue, Ontario, Canada. She was forced to move to India and she reluctantly lived in Coimbatore along with her children for some time. Thereafter, she went back to Canada in 2019 along with her children and now she is living with her two minor children in the said address at Canada, which is her matrimonial home. Therefore, the permanent place of residence as well as the last place of residence/joint living, is the said address at Canada. Therefore, the Courts in India inherently lack jurisdiction to entertain any matrimonial dispute between them. The petitioner-husband had falsely invoked the territorial jurisdiction of the Family Court, Coimbatore and filed the said Original Petiition and obtained an order of injunction against her from proceeding with the matrimonial proceedings in a Court at Canada, which is having jurisdiction to decide the divorce proceedings. http://www.judis.nic.in Page No.13/38 Cont.P.No.2056 of 2019
8. The learned counsel appearing for the respondent-wife further contended that the respondent-wife had already subjected herself to the jurisdictional Court at Canada and it is not possible for her to abandon the legal proceedings initiated by her at Canada and that too, on the basis of the injunction order granted by the Court at Coimbatore, which has no territorial jurisdiction. The injunction is in the form of mandatory injunction directing the respondent-wife to drop/withdraw the proceedings initiated by her at Canada. In law, no litigant can be compelled to withdraw or abandon the legal proceedings, which are under the superintendence and jurisdiction of another Court having clear jurisdiction. She bona-fidely continued the case initiated by her before the Canadian Court, which was filed even before filing of the said Original Petition by the petitioner-husband. There is no wilful act on the part of the respondent-wife, in disobeying the injunction order granted by the Family Court, Coimbatore. Therefore, the action of the respondent as to whether it was contemptuous as alleged by the petitioner, or not, has to be decided only on the basis of the jurisdiction of the Family Court to entertain the said Original Petition at all. In this regard, the learned counsel appearing for the respondent-wife invited the attention of this Court to Section 19 of the Hindu Marriage Act, which reads as follows:
http://www.judis.nic.in Page No.14/38 Cont.P.No.2056 of 2019 "Chapter V: Jurisdiction and Procedure:
Section 19: Court to which the petition shall be presented: Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction--
(i) the marriage was solemnised or
(ii) the respondent, at the time of the presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or (iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive."
9. The learned counsel appearing for the respondent-wife further contended that as per Section 19(i) extracted above, the petition shall be presented to the District Court within the local limits where the marriage was http://www.judis.nic.in Page No.15/38 Cont.P.No.2056 of 2019 solemnised. But the marriage between the petitioner and the respondent was solemnised in Pollachi, which is outside the jurisdiction of the Family Court, Coimbatore and therefore, Section 19(i) of the Hindu Marriage Act cannot be invoked for filing the Original Petition. Even in the Original Petition, the address of the respondent-wife is quoted as No.37, Rochdale Avenue, Ontario, Canada. Therefore, the petitioner-husband is not entitled to file the Original Petition even by invoking Section 19(ii) extracted above. In Paragraph xviii
(iv) of H.M.O.P.No.932 of 2019, it is stated by the petitioner-husband that, "... but on 19th January 2019, the petitioner and the respondent were together and sharing the same residence at Canada". In paragraph xviii (vii), the petitioner- husband further asserted that, "... the petitioner and the respondent continue to live and reside at the same house at 37, Rochdale Ave, Toronto, Ontario, M6E 1W9, Ontario thereby not living separately and apart from the relief of divorce to be granted, as this is a statutory requirement at the determination of proceedings. In other words, unless the petitioner and the respondent reside separately and apart, with the intention to reside separate and apart, the relief of divorce cannot be granted." This would clearly reveal that on the date of filing of petition in H.M.O.P.No.932 of 2019, the petitioner and the respondent were residing in Canada. Therefore, the petitioner-husband in his own admission, is not entitled to invoke Section 19(iii) of the Hindu Marriage http://www.judis.nic.in Page No.16/38 Cont.P.No.2056 of 2019 Act also. Therefore, the First Additional Family Court, Coimbatore, has no jurisdiction to pass any restraint order against the respondent-wife. In other words, the First Additional Family Court has no jurisdiction to issue any injunction order against the respondent-wife. Therefore, the order of injunction granted by the Family Court is without jurisdiction and is not valid and has no force in the eye of law. Hence, the interim order granted by the Family Court is no way helpful to the petitioner-husband to initiate contempt proceedings against the respondent.
10. In the above context, the learned counsel appearing for the respondent-wife relied upon the judgment of this Court reported in 2014 (3) LW 7 = 2014 (4) MLJ 142 = MANU/TN/0768/2014 (Sical Logistics Limited Vs. Kyko Global Inc), wherein, this Court had dealt with the circumstances under which an order of injunction can be granted and it was observed by this Court that the Courts in India have power to issue an order of injunction to a party over which it has personal jurisdiction.
11. It is the further submission of the learned counsel appearing for the respondent-wife that, admittedly, the First Additional Family Court has no personal jurisdiction to entertain a petition against the respondent-wife. The entire course of the conduct on the part of the petitioner-husband, is a deliberate attempt to obtain an order of injunction against the respondent-wife http://www.judis.nic.in Page No.17/38 Cont.P.No.2056 of 2019 and thereby, the husband had wrongly invoked the jurisdiction of the Family Court, Coimbatore. Such a conduct amounts to "forum shopping" and filing the petition before the Family Court is not maintainable.
12. The learned counsel appearing for the respondent-wife further relied on a decision of the Supreme Court reported in AIR 1998 SC 2330 = 1998 (5) SCC 310 = MANU/SC/0296/1998 (World Tanker Carrier Corporation Vs. SNP Shipping Services Pvt. Ltd)., wherein, it has been held that under the principles of Private International Law, a Court cannot entertain an action against a foreigner-resident outside country or a foreigner not carrying on business within the country, unless he submits to the jurisdiction of the Court here. This principle applies to actions-in-personam.
13. The learned counsel appearing for the respondent-wife also relied on a judgment of the Supreme Court reported in AIR 2018 SC 2094 = MANU/SC/0393/2018 = 2018 (5) LW 215 = 2018 (5) MLJ 735 (Dinesh Singh Thakur Vs. Sonal Thakur), wherein the Apex Court referred to its earlier decision reported in 2003 (4) SCC 341 = MANU/SC/0039/2003 (Modi Entertainment Network and another Vs. WSG Cricket PTE Ltd.), in which, certain principles required to be taken into consideration by any Court while granting an anti-suit injunction, are laid down.
14. The learned counsel appearing for the respondent-wife further relied http://www.judis.nic.in Page No.18/38 Cont.P.No.2056 of 2019 on a decision of the Bombay High Court reported in 1997 Cri.L.J. 1953 = MANU/MH/0131/1996 (K.S.Jhunjhunwala and another Vs. Tayebhai Mohammedbhai Bagasapwalla and others), in support of his contention that if the order passed is without jurisdiction or void-ab-initio, then it is not binding on the parties and for committing breach thereof, there can be no punishment for contempt. Thus, for the above reasons, the learned counsel appearing for the respondent-wife prayed for dismissal of the Contempt Petition.
15. By way of reply, the learned counsel appearing for the petitioner- husband submitted that the respondent-wife, who is the contemnor of the proceedings, is trying to side-line the issue by raising the question of jurisdiction of the Family Court in passing the interim order. The factual aspects of the case show that inspite of the order of injunction passed by the Family Court, she is proceeding with the case initiated by her before the Canadian Court. The learned counsel appearing for the petitioner-husband further contended that the submission of the learned counsel appearing for the respondent-wife that the interim order of the Family Court is a nullity and therefore, no "Contempt" of such an order arises, appears to be blatantly illegal. The respondent-wife is emboldened enough to advance an argument that an order, which according to her is a nullity, even though there is no judicial pronouncement that such an order is a nullity, is sufficient enough to http://www.judis.nic.in Page No.19/38 Cont.P.No.2056 of 2019 disobey the order. In fact, the respondent-wife being conscious of the legal position, filed an application for rejecting the plaint and she ought to have obeyed the interim order, until she gets an order rejecting the plaint on account of the territorial jurisdiction, which of-course is not available in law. The suit even if presented before a Court not having jurisdiction, the same had to be returned to be presented before the Court concerned in appropriate form and the same does not warrant rejection of the plaint.
16. It is the further reply of the learned counsel appearing for the petitioner-husband, by relying upon the decision of this Court reported in AIR 1966 Madras 53 = 1966 Cri.L.J. 146 (Nalla Senapathi Sarkarai Mandradiar and others Vs. Sri Ambal Mills (P) Ltd), that an order irregularly obtained, cannot be treated as a nullity, but it must be implicitly obeyed, until, by a proper application, it is discharged (Oswald on Contempt, 1910 Edn. Page
107).
17. The learned counsel for the petitioner-husband also made reliance on a decision of the Karnataka High Court, reported in 1990 (1) Kar.L.J. 352 = MANU/KA/0362/1990 (D.M.Samyulla Vs. Commissioner, Corporation of the City of Bangalore), to the effect that a party who knows an order, whether it is null or valid, regular or irregular, cannot be permitted to disobey it and it would be dangerous to allow the party to decide as to whether an order was http://www.judis.nic.in Page No.20/38 Cont.P.No.2056 of 2019 null or valid and whether it was regular or irregular. Such a principle would be attracted in cases where there has been an order of the Court against any particular person or authority and that person or authority takes the stand that the order of the Court is illegal or it is bad for not following any mandatory procedures or takes upon himself or itself to disobey the order of the Court.
18. The learned counsel appearing for the petitioner-husband further relied on a decision reported in 1952 (Vol.2) All England Law Reports 567 (Hadkinson Vs. Hadkinson) to contend that a party, who knows of an order, whether null or void, regular or irregular, cannot be permitted to disobey it; it would be most dangerous to hold that the suitors or their solicitors, could themselves judge whether an order was null or valid --- whether it was regular or irregular and that they should come to the Court and not take upon themselves to determine such a question and that the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the Court that it might be affected by it, was plain. He should apply to the Court that it might be discharged and as long as it existed, it must not be disobeyed.
19. The learned counsel appearing for the petitioner-husband further submitted that the decision of the Bombay High Court reported in 1997 Cri.L.J. 1953 = MANU/MH/0131/1996 (K.S.Jhunjhunwala and others Vs. http://www.judis.nic.in Page No.21/38 Cont.P.No.2056 of 2019 Tayebhai Mohammedbhai Bagasapwalla and others) (cited supra), relied on by the learned counsel appearing for the respondent-wife, in which it was held that the disobedience of the order passed by the Court which had no jurisdiction, if disobeyed, does not amount to "Contempt" and it proceeds on the basis that the order passed by a Court, which lacks jurisdiction, is void, had been over-ruled by the Supreme Court in the decision reported in AIR 1997 SC 1240 (Tayabbhai M.Bagasarwalla and others Vs. Hind Rubber Industries Pvt. Ltd. and others).
20. The learned counsel for the petitioner-husband also relied upon a decision of this Court reported in AIR 1969 Madras 232 = MANU/TN/0189/1969 (Mottur Hajee Abdul Rahman and Company Vs. Deputy Commercial Tax Officer, Vaniyambadi, North Arcot Distrct and others), in which, this Court emphasised on tendering apology and the manner in which it should be tendered. In the instant case, she has not even chosen to tender the apology in the Contempt Petition.
21. The learned counsel for the petitioner-husband further submitted that the question of jurisdiction is a mixed question of law and facts and it can be adjudicated only during the course of deciding the application filed by the petitioner for rejection of the plaint. Ultimately, the learned counsel for the petitioner-husband prayed for allowing the Contempt Petition by negativing http://www.judis.nic.in Page No.22/38 Cont.P.No.2056 of 2019 the submissions made by the learned counsel appearing for the respondent- wife.
22. Heard the submissions made by the learned counsel on either side and perused the materials available on record.
23. In view of the submissions made on either side, the following questions fall for consideration in this Contempt Petition :
(i) Whether there is wilful disobedience on the part of the respondent-wife in complying with the order of injunction passed by the Family Court, Coimbatore?
(ii) Whether the respondent is right in contending that lack of jurisdiction on the Court to pass the interim order, can be a ground for discharging a person from the Contempt proceedings ?
24. If the above questions are answered, that would suffice to decide the issue involved in this Contempt Petition. As both the questions are inter- related to each other, they are dealt with in common hereunder.
25. It is an admitted fact that during June 2015, the petitioner as well as respondent came down to India, Coimbatore, by consciously taking a decision to settle themselves in India, Coimbatore, where the respondent studied and it is also the place where her parents reside. The petitioner also purchased a http://www.judis.nic.in Page No.23/38 Cont.P.No.2056 of 2019 house at Coimbatore and put their children for schooling in Coimbatore. Admittedly, the house property was purchased by the petitioner/husband in the name of the respondent/wife at Coimbatore. Thus, the respondent is the owner of the house at Coimbatore, in which house, she lived until 2018. According to the petitioner-husband, the respondent-wife, at this stage, started behaving indifferently much to his chagrin and he could not succeed in getting her behaviour pattern changed. Therefore, the petitioner would contend that from 2015 till 2018, he and the respondent resided at Coimbatore, India. It is also the contention of the petitioner that matrimonial discord had surfaced between the couple only during their stay at Coimbatore, India. In other words, the petitioner's contention is that the starting point for the matrimonial dispute began when they resided at Coimbatore, India purportedly due to indifferent behaviour of the respondent. According to the petitioner-husband, when the respondent was attempted to be counselled by him or by her parents, she expressed her disinclination to live with him. In such a situation, on 29.12.2018, the petitioner-husband left for Canada towards his business commitment and planned to return India during February 2019 and the same was also intimated to the respondent-wife. However, on 12.01.2019, the respondent, along with her two children, reached Canada, without any prior intimation to the petitioner and he was taken by surprise on seeing them back http://www.judis.nic.in Page No.24/38 Cont.P.No.2056 of 2019 in Canada. It is contended that until 10.01.2019, the respondent resided at Coimbatore, India, during which stay the matrimonial disruption had taken place. On the other hand, the respondent-wife contends that she is a Citizen of Canada and the two children born to them are also citizens of Canada, whereas, according to the petitioner, even though the respondent and the children born to her may be the Citizens of Canada, when the petitioner and the respondent resided for a brief period at Coimbatore where their matrimonial life strained, the Courts at Coimbatore will be competent to entertain a Original Petition at the instance of the petitioner-husband. It is also brought to the notice of this Court that in the petition for dissolution of marriage filed by the petitioner before the Family Court at Coimbatore, the address of the petitioner was given as No.138, Phase-4, May Flower Sakthi Garden, Nanjundapuram, Coimbatore - 641 036 viz., the property was purchased by the petitioner in the name of the respondent to which the respondent is the owner. Pending the petition for divorce filed by the petitioner in HMOP.No.932 of 2019 on 15.06.2019, the petitioner has also filed I.A. No. 1 of 2019 in HMOP.No. 932 of 2019 in which an order of interim injunction was granted, restraining the respondent from proceeding further with the matrimonial proceedings in the Superior Court at Ontario, Canada. The petitioner-husband also filed an application for custody of the http://www.judis.nic.in Page No.25/38 Cont.P.No.2056 of 2019 children under Section 26 of the Guardian and Wards Act. The order of interim injunction was also duly served on the respondent.
26. It is an admitted fact that even before the petitioner had instituted the matrimonial proceedings before the Family Court at Coimbatore, the respondent has filed Petition for divorce before the Superior Court at Ontario, Canada on 13.05.2019. Before instituting the matrimonial proceedings at Ontario, Canada by the respondent, there were exchange of notices. In the reply notice dated 22.03.2019, sent on behalf of the petitioner, it was stated that "the parties last habitual residence together was India which raises issues regarding the applicable property laws in this case" . Further, at the time when such proceeding was initiated by the respondent, the petitioner was in Coimbatore, India. According to the petitioner, on 19.01.2019, he left Canada to India to see his ailing mother and stayed there. Therefore, the petitioner would contend that at the time when the HMOP No. 932 of 2019 was filed, he was very much residing in Coimbatore, India and therefore the Family Court at Coimbatore is vested with jurisdiction to entertain the Original Petition filed by him.
27. The factual narration mentioned above would abundantly make it clear that the respondent was fully aware of the matrimonial proceedings initiated by the petitioner before the Family Court at Coimbatore. She was http://www.judis.nic.in Page No.26/38 Cont.P.No.2056 of 2019 also fully aware of the interim order passed by the Family Court, Coimbatore prohibiting her from proceeding further with the matrimonial proceedings, she had initiated at the Superior Court, Ontario, Canada. While so, the respondent is not expected to proceed with the matrimonial proceedings initiated at her instance at the Superior Court, Ontario, Canada and any further attempt to proceed with the case at Ontario, Canada will be nothing short of an abuse of the order of interim injunction passed by the Family Court, Coimbatore. It is also a matter of record that on 09.07.2019, the counsel for the respondent was intimated by way of a letter about the order dated 02.07.2019 passed in I.A. No. 1 of 2019 in HMOP No. 932 of 2019 by the Family Court, Coimbatore. Subsequently, another intimation was given to the counsel for the respondent about their action of proceeding with the matrimonial proceedings before the Superior Court at Ontario, Canada, unmindful of the order dated 02.07.2019 passed by the Family Court, Coimbatore at the instance of the petitioner. In response, a reply dated 21.10.2019 was sent by the counsel for the respondent, purportedly as per the instructions given by her, stating that the respondent will proceed with the divorce proceedings initiated by her at Ontario, Canada. In fact, the petitioner participated in the divorce proceedings initiated by the respondent at Ontario, Canada, without prejudice to his rights to prosecute the matrimonial proceedings, which he had initiated at Family Court, Coimbatore. http://www.judis.nic.in Page No.27/38 Cont.P.No.2056 of 2019 He had also specifically filed a Motion before the Court at Ontario to the effect that the Court in India is seized of the matter. The counsel for the petitioner also intimated the respondent by a communication dated 25.11.2019 that the Family Court, Coimbatore had posted the HMOP No. 932 of 2019 for hearing and sought her consent for a long adjournment of the matrimonial proceeding she had initiated at Ontario. On the same day, a reply was sent by the counsel for the respondent that the respondent would proceed with the petition she filed in the Court at Ontario. There were similar exchange of communications between the counsel for the petitioner and the respondent. Ultimately, the petitioner has filed the present Contempt Petition before this Court on 15.11.2019 praying to punish the respondent for wilfully disobeying the order of injunction passed by the Family Court, Coimbatore. It is also stated that the respondent has not chosen to appear before the Family Court, Coimbatore atleast once, besides she did not file her counter in the case by assuming and presuming that the Family Court at Coimbatore has no jurisdiction to deal with the matrimonial issues and that The Superior Court at Ontario, Canada will be the competent Court to deal with all the matrimonial disputes between her and the petitioner.
28. It is seen that the respondent, on her own accord, had, independently decided that the Family Court, Coimbatore has no jurisdiction http://www.judis.nic.in Page No.28/38 Cont.P.No.2056 of 2019 to adjudicate the petition filed by the petitioner and consequently, the order passed by the Family Court, Coimbatore will not bind her in any manner. This assumption of the respondent cannot be countenanced or it will not mitigate her blame-worthy conduct. The respondent is not an illiterate or a lay-woman. She is literate and she knows very much the consequences that may flow out of the non-adherance of the order passed by a Court. Even assuming that the Family Court, Coimbatore lacks inherent or territorial jurisdiction, she could have contested the matrimonial proceedings by appearing in person by filing a counter statement stating that the Original Petition filed by the petitioner deserves to be dismissed for lack of jurisdiction. On the other hand, by her conduct, she had assumed and presumed that the Family Court at Coimbatore has no jurisdiction to deal with the matrimonial dispute between her and the petitioner and that the Court at Ontario, Canada alone has jurisdiction. On the basis of such assumption and presumption, the respondent not only desisted from appearing before the Family Court, Coimbatore, but also proceeded with the matrimonial proceedings she had initiated before the Superior Court at Ontario, Canada. The respondent, on her own, assumed herself that the Family Court at Coimbatore has erroneously adjudicated upon the petition filed by the petitioner and granted an interim injunction. Such an assumption on the part of the litigant like the respondent will not only bring down the http://www.judis.nic.in Page No.29/38 Cont.P.No.2056 of 2019 majesty of law, but will adversely affect the streams of justice in the justice delivery system.
29. In this context, the learned counsel for the respondent placed heavy reliance on the decision of the Honourable Supreme Court in the case of Jeewanti Pandey Vs. Kishan Chandra Pandy, reported in 1981 (4) SCC 517 to contend that for the purpose of Clause (ii) of Section 19 of The Contempt of Courts Act, the word "resides" must mean the actual place of residence and not a legal or constructive residence. The word 'resides' is a flexible one and has many shades of meaning, but must take its colour and content from the context in which it appears and cannot be read in isolation. It follows that it was the actual residence of the appellant, at the commencement of the proceedings that had to be considered for determining whether the District Judge, Almora, had jurisdiction or not.
30. In that case before the Honourable Supreme Court, both the husband and wife were ordinarily residing at Delhi, however, the husband had initiated the matrimonial proceedings at Almora, Uttar Pradesh. The Honourable Supreme Court, holding that the petitioner and the respondent therein lastly resided at Delhi, the appellant-wife was residing in her uncle's house at Delhi and that the husband was also employed in Delhi, however, for obvious reasons, the matrimonial proceedings were initiated by the respondent- http://www.judis.nic.in Page No.30/38 Cont.P.No.2056 of 2019 husband at District Court, Almora, Uttar Pradesh. Therefore, this decision will not lend support to the case of the respondent to show that the Family Court at Coimbatore has no jurisdiction to entertain the Original Petition filed by the petitioner-husband in this case.
31. The learned counsel for the respondent also referred to the dictionary meaning connoted to the word "ordinary residence" or "habitual residence" and contended that the jurisdiction of a Court continues to be determined on the basis of ordinary residence of the parties. By referring to the common law usage of the word 'habitual residence', it was sought to be contended that although duration of a residence is only one factor to be considered in deciding if a person is habitually resident in a place, it is unlikely that habitual residence can be acquired based upon a very brief period of residence, regardless of the person's intention, since habitual residence implies a significant period of presence together with an intention to live in a place. By placing reliance on the above reference, the learned counsel for the respondent contended that the respondent was not a resident of Coimbatore at the time when the Original Petition was filed by the petitioner, she was at Canada, where she is habitually residing and therefore the Court at Coimbatore has no jurisdiction to entertain the original petition.
32. Above all, as per Section 19(i) of the Hindu Marriage Act, the http://www.judis.nic.in Page No.31/38 Cont.P.No.2056 of 2019 petition for Divorce can be filed before the Court within the local limits of ordinary original civil jurisdiction where the marriage was solemnised. Even as per the contention of the respondent-wife, the marriage of the petitioner and the respondent was solemnised at Pollachi, which is outside the jurisdiction of the Family Court at Coimbatore, and therefore, Section 19(i) of the Hindu Marriage Act cannot be invoked for filing the HMOP. The learned counsel appearing for the respondent-wife further submitted that even according to the petitioner-husband, in the petition filed by him, he has given the address of the respondent-wife as No.37, Rochdale Avenue, Toronto, Ontario, M6E-IW9, Canada. Therefore, the petitioner-husband is not entitled to file HMOP before the Family Court at Coimbatore by invoking Section 19(i) of the Hindu Marriage Act. The learned counsel appearing for the respondent-wife further submitted that the respondent-wife is a Canadian citizen on the date of passing the injunction order. She is not residing within the jurisdiction of the Family Court and hence, the anti-suit injunction order is not valid in the eye of law and the same is void.
33. It is a matter on record that even though the respondent all along contends that the Family Court at Coimbatore has no jurisdiction to entertain the original petition of the petitioner-husband and the Court at Ontario, Canada has jurisdiction to decide the matrimonial dispute, the petition filed by http://www.judis.nic.in Page No.32/38 Cont.P.No.2056 of 2019 the respondent herein before The Superior Court at Ontario, Canada itself was disposed of on 08.01.2020. The Judgment pronounced by The Superior Court at Ontario, Canada, was to the effect that all the matrimonial issues between the parties shall be resolved as per Indian Laws.
34. Be that as it may. At the outset, in the present contempt petition, we are not called upon to decide as to whether the Family Court, Coimbatore has jurisdiction to entertain the Original Petition filed by the petitioner or not. In the present contempt petition, we are only called upon to examine as to whether the respondent had disobeyed the order of injunction passed by the Family Court at Coimbatore.
35. As regards the jurisdiction of the Family Court, Coimbatore to entertain the petition filed by the petitioner for dissolution of the marriage, it is the contention of the respondent-wife that the Family Court, Coimbatore has no jurisdiction at all to entertain the Original Petition filed by the petitioner- husband. If it is so, the respondent ought to have appeared before the Family Court, Coimbatore and filed necessary application or counter stating that the Family Court, Coimbatore has no jurisdiction to entertain the Original Petition. In other words, under the garb of self-assumption that Family Court has no jurisdiction to entertain the Original Petition filed by the petitioner, the respondent cannot flout the order passed by the Family Court, Coimbatore http://www.judis.nic.in Page No.33/38 Cont.P.No.2056 of 2019 with impunity and proceed with the matrimonial proceedings, which she had initiated at The Superior Court, Ontario, Canada.
36. We are also refraining ourself from rendering any finding with respect to jurisdiction of Family Court, Coimbatore to entertain the petition for divorce filed by the petitioner-husband, since the respondent has already filed an application under Order 7 Rule 11 CPC to reject the Original Petition filed by the petitioner-husband on the ground that the Family Court has no jurisdiction to entertain it. Such an application has been filed on 10.12.2019 purportedly after service of notice in the contempt petition, which the petitioner had filed on 11th November 2019 before this Court. In our view, the action of the respondent in filing an application under Order VII Rule 11 of CPC purportedly after the filing of the present Contempt petition by the petitioner, will not absolve her acts of contempt committed by her. There are abundant evidence made available to show that the respondent wilfully disobeyed the order passed by the Family Court, Coimbatore by proceeding with the matrimonial proceedings she filed before The Superior Court, Ontario, Canada. It is also necessary for us to observe that the respondent on her own, independently assumed that the Family Court at Coimbatore has no jurisdiction to entertain the Original Petition filed by the petitioner. If it is the intention of the respondent, we reiterate that she ought to have subjected http://www.judis.nic.in Page No.34/38 Cont.P.No.2056 of 2019 herself to the matrimonial proceedings initiated by the petitioner before the Family Court, Coimbatore and defended such proceedings by appearing in person and by filing a counter statement and waited for an adjudication on merits. The respondent did not do so till date, but harps upon saying that the Family Court, Coimbatore is not vested with the jurisdiction to deal with the original petition filed by the petitioner. She also proceeded to prosecute the Petition she filed at The Superior Court, Ontario, Canada knowing fully well about the interim order passed by the Family Court, Coimbatore. Therefore, the respondent, knowing fully well about the order passed by the Family Court, Coimbatore has flouted it with scant respect to the Court. However, she is defending this contempt petition by citing the lack of jurisdiction of the Family Court, Coimbatore to pass the interim order. Further, the letter sent by the learned counsel appearing for the petitioner-husband, at Canada, clearly indicates the intention of the respondent-wife that she will proceed with the proceedings at Canada by wilfully disobeying the order of the Family Court, Coimbatore. Therefore, we are of the opinion that the respondent-wife is liable to be punished for her wilful disobedience of the order of the Family Court.
37. The reason why the concept of contempt exists is to insulate the institution from unfair attacks and prevent a sudden fall in the Judiciary's reputation in the public eye. The Contempt of Courts Act was enacted to http://www.judis.nic.in Page No.35/38 Cont.P.No.2056 of 2019 define and limit the powers of certain Courts in punishing Contempts of Courts and to regulate their procedure in relation thereto. A perusal of the statement of objects and reasons for enacting the said law shows that the then existing law relating to Contempt of Courts was somewhat uncertain, undefined and unsatisfactory and that the jurisdiction to punish for Contempt touches upon two important fundamental rights of the citizen, namely the right to personal liberty and the right to freedom of expression. The Court has to take umbrage at two tweets, namely (i) when a contemnor brings disrepute to the administration of justice, and (ii) when a contemnor is capable of undermining the dignity and authority of the institution. One has to respect the authority and dignity of the Court. The Contempt Law was originally intended to maintain a "blaze of glory" around Courts. In the words of Honourable Mr.Justice V.R.Krishna Iyer, "the Law of Contempt has a vague and wandering jurisdiction with uncertain boundaries and the Contempt Law, regardless of public good, may unwittingly trample upon civil liberties". No party to the legal proceedings shall bring disrepute to the Court. If any party brings disrepute to the Court, definitely, he/she should be treated with iron hands and penalised. If one scandalises the authority of the Court, more so, with mala-fide intention, then he/she must be taken to task for "Contempt". When it comes to a charge of interfering with the administration of justice, http://www.judis.nic.in Page No.36/38 Cont.P.No.2056 of 2019 then inevitably, the party who disrespects the Court, should be punished.
38. Having regard to the above parameters devised to deal with the contempt proceedings, we hold that the respondent-wife is guilty of Contempt of the order dated 02.07.2019 in I.A.No.1 of 2019 in H.M.O.P.No.932 of 2019 on the file of the Additional Family Court, Coiombatore and hence, this Court imposes a fine of Rs.2,000/- (Rupees two thousand only) on the respondent- wife, to be deposited in the Additional Family Court, Coimbatore to the credit of H.M.O.P.No.932 of 2019. The said fine of Rs.2,000/- shall be deposited as stated above, within a period of four weeks from the date of receipt of a copy of this order, in default, the respondent-wife shall undergo one week simple imprisonment.
39. With the above observations and direction, the Contempt Petition is allowed.
(R.P.S.J) (R.P.A.J)
04.09.2020
Index: Yes
Speaking Order:Yes
cs/rsh
To
The Additional Judge,
Family Court,Coimbatore.
http://www.judis.nic.in
Page No.37/38
Cont.P.No.2056 of 2019
R.SUBBIAH, J
and
R. PONGIAPPAN, J
cs
Pre-delivery Order in
Cont.P.No.2056 of 2019
04.09.2020
http://www.judis.nic.in
Page No.38/38