Now, we make a reference to the decision of this Court in
the case of Vimi Vinod Chopra. In our view, the said decision does not
help the Respondent husband. As noted earlier, drastic order under Rule
11 of Order XXXIX can be passed only if the Court comes to the
conclusion that there is a wilful disobedience of the orders by a party.
Mere breach or mere failure to abide by the order does not attract Rule
11 of Order XXXIX. The learned Single Judge in the said decision has
recorded a finding in the facts and circumstances of the case before her
that the wife has committed a complete breach of the order of access.
In the facts of the case, the learned Judge came to the conclusion that it
was a drastic case of complete and wilful default. Hence, the said
decision will have no application. In the present case, no specific finding
of wilful breach of the order has been recorded. As of the date of
impugned order, it was not a fit case to pass a drastic order under Rule
11 of order XXXIX. Therefore, the impugned order will have to be set
aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.20 OF 2013
WITH
CIVIL APPLICATION NO.40 OF 2013
AND
CIVIL APPLICATION NO.214 OF 2013
IN
FAMILY COURT APPEAL NO.20 OF 2013
Mrs. Kavita Krishnamurthy … Appellant
V/s.
Shri. K.N. Krishnamurthy … Respondent
CORAM : A.S. OKA &
A.S. GADKARI, JJ.
DATE : 9th DECEMBER, 2014
Citation; 2015(2) ALLMR 807
On the earlier date, the parties were put to notice that this
Appeal will be taken up for final disposal.
2. The Appellant wife has taken an exception to the order
dated 8th November, 2012 passed by the learned Judge of the Family
Court at Mumbai by which a Petition being Petition No.A1464
of 2008
filed by her was dismissed by the learned Judge of the Family Court in
exercise of powers under Rule 11 of Order XXXIX of the Civil Procedure
Code, 1908 (for short “the said Code”). By the same order, the defence
of the Appellant wife in a Petition being Petition No.D60
of 2009 filed
by the Respondent husband was ordered to be struck out in exercise of
powers under Rule 11 of Order XXXIX of the said Code.
3. The learned counsel appearing for the Appellant wife has
taken us through the averments made in the application at Exhibit 98
filed by the Respondent husband and the reply thereto. He has also
invited our attention to the order dated 13th March, 2012 passed by the
learned Judge of the Family Court on application at Exhibit 98. He
submitted that in terms of paragraph 8 of the said order, the learned
Judge modified the earlier order regarding grant of access to the minor
child. He pointed out that there is a specific observation that if the said
access order is not complied with, the matter will be taken up for orders
under Rule 11 of Order XXXIX of the said Code. He also invited our
attention to further order dated 27th August, 2012. He also pointed out
that there is a dispute between the parties as regards what transpired
on 8th September, 2012. He pointed out the order made by the learned
Judge on 14th September, 2012. He pointed out that a video film was
made by the Appellant to show what exactly transpired on 8th
September, 2012. By order dated 14th September, 2012, the marriage
counsellor was ordered to see the video film and submit a report. The
learned counsel appearing for the Appellant submitted that the report
dated 1st October, 2012 shows that the allegation regarding noncompliance
with the order of the Family Court has not been
substantiated. He urged that in the impugned order, there is no finding
recorded regarding the deliberate or wilful disobedience on the part of
the Appellant of the orders of the Family Court. The submission is that
the learned Judge has committed an error by assigning wrong meaning
to the finding of the Psychiatry Department of the Nair Hospital that the
Appellant has shown “MMPI fake good protocol” symptoms. He relied
upon an article on subject by L.A.R. Stein and John R. Graham as well
as Carolyn L. Williams. He submitted that the facts of the case in the
decision of the learned Single Judge of this Court in the case of Vimi
Vinod Chopra Vs. Vinod Gulshan Chopra1 were completely different.
He urged that as there is no finding recorded of wilful disobedience by
the wife of any particular order of the Family Court, the impugned
drastic order of striking out the defence as well as dismissing the
Petition filed by the Appellant is illegal and harsh.
4. The Respondent husband appearing in person submitted
that at no stage, the Respondent husband was given an opportunity to
enjoy the company of his son whose present age is 11½ years. He
pointed out from the record of attendance maintained in the Children's
Complex at Family Court, Mumbai that there is noncompliance
of the
directions contained in paragraph 8 of the order dated 13th March,
2012. He submitted that there are series of orders passed by the learned
Judge of the Family Court on application at Exhibit 98 and all the
orders will have to be read together to find out whether there is a
categorical finding recorded of wilful breach or wilful disobedience of
the orders of the Family Court. He submitted that there are categorical
findings recorded by the learned Judge of the Family Court regarding
deliberate noncompliance
of the orders regarding access by the
Appellant wife. He urged that the decision of the learned Single Judge
in this case of Vimi Vinod Chopra Vs. Vinod Gulshan Chopra will
squarely apply to the facts of the present case. He urged that even the
1. 2012(1) Mh.L.J. 525
directions issued by this Court during the pendency of this Appeal have
not been complied with by the Appellant. He submitted that the child is
very much attached to him and the child also enjoys the company of his
father. He submitted that the Court has to ensure that the orders
regarding access are implemented. He, therefore, submitted that no
interference is called for with the impugned order. He also pointed out
that Contempt Petition filed by him is pending which will have to be
heard.
5. We have given careful consideration to the submissions.
Rule 11 of Order XXXIX of the said Code which reads thus :“
11. Procedure on parties defying orders of Court, and
committing breach of undertaking to the Court. (
1) Where the Court orders any party to a suit or proceeding to do
or not to do a thing during the pendency of the suit or
proceeding, or where any party to a suit or proceeding gives
any undertaking to the Court to do or to refrain from doing a
thing during the pendency of the suit or proceeding, and such
party commits any default in respect of or contravenes such
order or commits a breach of such undertaking, the Court
may dismiss the suit or proceeding, if the default or
contravention or breach is committed by the plaintiff or the
applicant, or strike out the defences, if the default or
contravention or breach is committed by the defendant or the
opponent.
(2) The Court may, on sufficient cause being shown and on such
terms and conditions as it may deem fit to impose, restore the
suit or proceeding or may hear the party in defence, as the
case may be, if the party that has been responsible for the
default or contravention or breach as aforesaid makes amends
for the default or contravention or breach to the satisfaction
of the Court.”
Provided that before passing any order under this subrule
notice shall be given to the parties likely to be affected by the
order to be passed.”
6. Rule 11 provides for passing a drastic order of striking out
the defence of the defendant or of dismissal of a suit. On plain reading
of Rule 11, it is apparent that mere noncompliance
or mere breach of
the orders of the Court is not sufficient to pass a drastic order of striking
out a defence or dismissal of the proceedings. What is required to be
proved is something more than mere violation or breach. It is only in
the case of wilful disobedience of the orders of the Court that the
drastic power under Rule 11 can be exercised. While dealing with such
prayer, it is open for the party against whom breach is alleged to show
cause as to why the orders could not be complied with. Moreover,
power under Rule 11 of Order XXXIX is a discretionary power. It is not
necessary that in case of every case of wilful disobedience that the
Court should exercise the power. In a case where the breach is of an
order of custody of minor or access to minor, the Court has to keep in
mind that in some cases the compliance with the order depends on the
inclination of the child.
7. In the context of this legal position that the impugned
order will have to be examined. We must note here that in the
application at Exhibit 98, there are several breaches alleged by the
Respondent husband including the breach of the order dated 12th
March, 2009 directing the Appellant to furnish information regarding
school related activities of the son. There is a reply filed by the
Appellant in which she has contended the fact that from time to time
she entered into consent terms for grant of access shows that she was
never interested in denying the access and defying the process of law.
The other material allegations were denied in the reply filed by the
Appellant.
8. The first order passed by the learned Judge of the Family
Court passed on application at Exhibit 98 is of 13th March, 2012. We
have carefully perused the said order. In paragraph 5 of the order, there
is an observation that the wife is flouting the orders of the Court with
impunity and avoiding compliance of the orders of the Court. The
learned Judge has referred to the earlier orders passed by the Family
Court. Paragraph 7 records the observation of the learned Judge that it
would be appropriate to show mercy on the wife and allow her to
comply with the orders. Therefore, the learned Judge proceeded to
change the venue of the access from the place of residence of the
Respondent to the Children's Complex of Family Court at Mumbai.
Paragraphs 8 to 10 of the said order dated 13th March, 2012 read thus :7
of 15
“8. Now, petitioner is directed to produce the child
Siddharth, aged 9 years, in the Children Complex,
Family Court, Mumbai on every first and third of the
working Saturday. The husband will have access to the
child between 3.00 p.m. to 5.00 p.m. The staff of the
Children Complex shall report this Court on 142012
whether the first access is complied or not.
9. Place this application before this Court on 342012
for
further orders.
10. The parties shall note that if the access orders made
herein are not complied, then the matter will be taken
up for orders under Order 39 Rule 11 of the Civil
Procedure Code.”
9. There is a further order dated 27th August, 2012 passed by
the learned Judge in which he has recorded that the Appellant wife was
ready for providing overnight access to the child to the Respondent
husband. The said order refers to counseling given to the parties.
Thereafter, there is an order dated 14th September, 2012. The said order
deals with assurances given by the wife and willingness shown by the
wife to give access to the Respondent husband to meet the child. The
issue was regarding what transpired on 8th September, 2012. The
Appellant produced a Pen Drive containing Videograph of the incident.
The learned Judge directed the marriage counsellor to view the Video
and submit a report. In the meanwhile, he directed both the parties to
undergo counselling.
10. Accordingly, the marriage counsellor submitted a report
dated 1st October, 2012. In the third paragraph of the report, the
marriage counsellor has observed thus :“
The video started with the petitioner and son waiting
on the road in front of a gate. The parties informed the
counsellor that it was respondent's society's gate. After
some time respondent came in. The petitioner handed
over child's bag to the respondent and told the child to
go with him which was understood by her action. The
child refused. Respondent tried to take the child with
him. He was holding the child however, the child
resisted him and ran back to the petitioner and holded
her hand. The child was not allowing the mother to go
away though she was trying. The respondent was
talking to the child. It appeared that she was convincing
the child to go with him. The child did not go and did
not let the petitioner go hence, all three were standing
near the car on the road. Through out the video it
appeared that sometimes there were convincing talks,
sometimes normal conversation, sometimes heated
arguments.”
11. Now, we turn to the impugned order. The impugned order
records that the Department of Psychiatry of the Nair Hospital has
observed that the Appellant wife is suffering from “MMPI fake good
protocol” symptoms and the husband is suffering from “MMPI fake bad
protocol” symptoms. The learned Judge seems to have not relied upon
the report of the marriage counsellor on the ground that video was
recorded by the Appellant wife without proper intimation to the
husband. It will be necessary to make a reference to the findings
recorded by the learned Judge in paragraph 7 of the impugned order
which reads thus :“
7. If we can peruse the report of marriage counsellor Mrs.
A.R. Tularwar dt. 10th October, 2012 she has recorded
that the petitioner handed over the child back to the
respondent, but the child has refused to accompany the
father. Before understanding this report and clipping,
the Court must be taken into consideration the
circumstances under which recording of the event was
made. It is pertinent to note that Court has not ordered
to record the events of handing over the custody of the
child from mother to father. The mother has suomoto
deployed the video camera and recorded the event. It is
amply clear that the fatherrespondent
was not given
preintimation
that the event is being videographed. The
counsellor had recorded that most of the time, the
petitionerwife
is facing camera. These circumstances
made it clear that whole exercise was choreographed by
wife. She has planned to record all these things through
videograph without intimating the husband. Thus, she
had cheated the husband by deploying the video camera
without his knowledge. The psychiatry department of
Nair hospital, Mumbai has already observed that the wife
has shown MMPI fake good protocol that means she is
making show that she is too good. These events in the
clipping shows that she attempted to give away the child
to father. But the reality is different. She wanted the
favourable order of the Court by misguiding Court with
the choreographed event. She is too clever to do all
these things. All these aspect make it clear that she is
bent upon in not providing access of the childSiddharth
to the husband. This attitude is unfortunate for the
child. The child is being deprived from the love of father.
The child is being used as pawn on the board of chess to
win the battle against the husband.”
12. Thereafter, the learned Judge has relied upon the decision
of a learned Single Judge in the case of Vimi Vinod Chopra by
observing that the facts of the said case were identical. In paragraph 8,
he has observed that majesty of the Court needs to be maintained. He
has observed that an opportunity was given by him to the wife to obey
the orders of the Court but the opportunity has been wasted by her.
The relevant finding recorded in paragraph 8 reads thus :“
8. .........................................................................................
The party must obey orders of Court unless modified by
the Hon'ble High Court. Considering the facts of this
case, I am of considered opinion that an opportunity
given to mend behaviour is wasted by wifepetitioner.
There is no point in giving further opportunity to mend
her ways. She is bent upon to force the husband to give
divorce. She will definitely play such tactics and chart
out new game plan to defeat the orders of the court.
Therefore, only course open to this Court is proceed as
provided under order XXXIV rule 11 of Civil Procedure
Code. She is not entitled for any sympathy of this
Court. Therefore, it would be in the interest of justice to
dismiss her petition and to strike out her defence in 'D'
petition. Hence, following order is passed.”
13. Thus, there is no specific finding recorded by the learned
Judge of the Family Court that there was a breach of any particular
order passed earlier in relation to grant of access. Moreover, there is no
finding recorded regarding the wilful and deliberate disobedience of the
orders of the Family Court by the Appellant. Though the learned Judge
has discarded the Video recording of what transpired on 8th September,
2012, he has not recorded a finding on merits that due to any overt acts
or the omissions on the part of the Appellant wife that the husband
could not meet the child or enjoy the company of the child on 8th
September, 2012. Moreover, there is no finding recorded that what is
seen in the Video is not the correct version or is a distorted version.
14. Now, we make a reference to the decision of this Court in
the case of Vimi Vinod Chopra. In our view, the said decision does not
help the Respondent husband. As noted earlier, drastic order under Rule
11 of Order XXXIX can be passed only if the Court comes to the
conclusion that there is a wilful disobedience of the orders by a party.
Mere breach or mere failure to abide by the order does not attract Rule
11 of Order XXXIX. The learned Single Judge in the said decision has
recorded a finding in the facts and circumstances of the case before her
that the wife has committed a complete breach of the order of access.
In the facts of the case, the learned Judge came to the conclusion that it
was a drastic case of complete and wilful default. Hence, the said
decision will have no application. In the present case, no specific finding
of wilful breach of the order has been recorded. As of the date of
impugned order, it was not a fit case to pass a drastic order under Rule
11 of order XXXIX. Therefore, the impugned order will have to be set
aside. It is obvious that as a result of setting aside of the impugned
order dated 8th November, 2012, all orders of the Family Court, whether
interim or adinterim,
which were in operation on 8th November, 2012
and which stood vacated by virtue of the impugned order will stand
restored and the parties will be bound by the said orders subject to
further modifications which may be made by the Family Court. We
make it clear that we are disturbing only the impugned order dated 8th
November, 2012 and no other order passed by the Family Court. Hence,
we pass the following order :
ORDER
(i) The impugned order dated 8th November, 2012 passed by
the learned Judge of the Family Court in Petition A1464
of 2008 is hereby quashed and set aside and the
application made by the Respondent at Exhibit 98 stands
disposed of;
(ii) We make it clear that all orders, whether interim or adinterim,
passed by the Family Court which were operative
on 8th November, 2012 stand restored and the parties will
be bound by the said orders subject to modification, if
any, which may be subsequently made by the Family
Court from time to time. This direction will apply only to
those orders which came to an end by virtue of the
impugned order;
(iii) We direct the parties to appear before the learned Judge
of the Family Court on 22nd December, 2014 at 11.00 am
for fixing the schedule of hearing of the Petition No.A1464
of 2008 and Petition No.D60
of 2009;
(iv) We make it clear that we have made no adjudication on
the merits of the pending controversy between the parties
and we have examined the merits of the case only in the
context of the applicability of Rule 11 of Order XXXIX of
the Civil Procedure Code, 1908;
(v) Petition No.A1464
of 2008 and Petition No.D60
of 2009
shall be clubbed together and shall be heard by the same
learned Judge of the Family Court either together or one
after the other;
(vi) The Appeal is allowed with above terms with no orders as
to costs;
(vii) All pending Civil Applications in this Appeal stand
disposed of.
(A.S. GADKARI, J ) (A.S.OKA, J )
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