Document Fragment View

Matching Fragments

PRELIMINARY OBJECTION ON BEHALF OF THE PETITIONER

4. At the outset, Mr. Dayan Krishnan learned senior counsel for the petitioner- Ms. Kiran Lohia (mother of the minor Baby Raina) stated that the applicant-respondent no. 4 cannot be heard in the present case till he has purged his contempt. According to learned senior counsel for the petitioner, this principle of common law jurisprudence had been well expounded in the English case of Hadkinson Vs. Hadkinson, (1952) 2 All ER 567 wherein Lord Denning has held as under:-

11. Mr. Gopal Sankaranarayanan, learned Amicus Curiae submitted that the rule that a party in contempt cannot be heard until he has purged his contempt comes from the canon law adopted by the Chancery Court and the Ecclesiastical courts in England as explained at length by Denning L.J. in the oft quoted passage from Hadkinson (supra). He stated that the application of the rule in the Chancery Court comes from the ordinance of Lord Bacon in 1618 wherein it was laid down:

―they that are in contempt are not to be heard neither in that suit, nor in any other, except the court of special grace suspend the contempt.‖

62. The ‗flexible' approach has been adopted by the Courts of United Kingdom in the following subsequent judgments:- 

 i.      Mubarak v Mubarak, [2006] EWHC 1260 (Fam).
        ii.     Assoun v. Assoun, [2017] EWCA Civ 21.
        iii.    Gafforj v. Gafforj, [2018] EWCA Civ 2070.

63. Consequently, according to Lord Denning‟s approach in the Hadkinson (supra), disobedience of a Court order is not per se a bar to the disobedient party being heard. However, if the disobedience is such that it impedes the course of justice and/or renders it impossible for the Court to enforce its orders, and/or initiation of contempt proceedings has had no deterrent or reformatory effect on the contemnor, and/or the contemnor has shown his lack of worth by attacking the judicial system, a Court can refuse to hear the contemnor. After all, as pointed by Lord Denning in Hadkinson (supra), the refusal to hear a party is only to be justified by grave considerations of public policy.

70. In the opinion of this Court, the Hadkinson principle applies to the present case on all fours as in that case as well, the child had been taken out of the jurisdiction of the country without this Court‟s leave. This fact would be apparent from the following passage from Lord Denning‟s concurring opinion in Hadkinson (supra):

―The present case is a good example of a case where the disobedience of the party impedes the course of justice. So long as this boy remains in Australia, it is impossible for this Court to enforce its orders in respect of him. No good reason is shown why he should not be returned to this country so as to be within the jurisdiction of this Court. He should be returned before counsel is heard on the merits of this case, so that, whatever order is made, this Court will be able to enforce it. I am prepared to accept the view that in the first instance the mother acted in ignorance of the order, but nevertheless, once she came to know of it, she ought to have put the matter right by bringing the boy back. Until the boy is returned, we must decline to hear her appeal.‖ (emphasis supplied)