After a diplomatic row, the Norwegian authorities had decided to award the custody of the children to their father’s brother, enabling him to bring them back to India. In 2013, Sagarika was granted custody of her children by the court.
Now, the Supreme Court has sentenced a non-resident Indian to six months in jail and imposed a fine of Rs 25 lakh for defying a previous order to bring back his child to India. Acting on a contempt petition filed by his wife, the Court noted that the man did not show any remorse even after three months of having been guilty of contempt of court. The case stemmed from a custody battle arising from a matrimonial dispute between the couple.
By judgment and order dated January 16, 2023, the Court held the contemnor guilty of contempt. In terms of the undertaking given by the contemnor and the orders of the Court passed from time to time, he was under an obligation to bring back the child to India on July 1, 2022. The Court noted the conduct of the contemnor that he never had any intention of bringing the child back to India.
The following facts indicate the contumacious conduct of the contemnor:
(i) A finding was recorded in the Court’s earlier order that the contemnor never intended to bring back the child to India;
(ii) The child holds a USA passport. The contemnor did not apply for the renewal of the passport though the passport expired long back. In one of the earlier hearings, he had pleaded that since an investigation was pending in USA over the sexual abuse of the child, he could not apply for renewal of his passport. However, he could not place on record any constraint put on him either under any law of USA or an order of the competent court which prevented him from applying for renewal or extension of the passport of the minor;
(iii) The contemnor never applied to the Court for a grant of extension of time to bring back the child. For the first time, by filing a counter affidavit to the contempt petition, he tried to seek an extension of time without giving any justification;
(iv) The contemnor always acted contrary to the statement made by him on more than one occasion that he had subjected himself to the jurisdiction of the Court. He pleaded in the courts in USA that he had not subjected himself to the jurisdiction of the Court; and
(v) Even after the expiry of three months from the date of the order holding him guilty of contempt, he did not show any remorse in any manner.
The top court observed that it was now dealing with the claim of the contemnor that he acted in the best interests of the minor. The proceedings of the US Circuit Court, dated January 24, 2023, are relevant for the purpose. The Court noted that the minor son was talking about his ancestral house being sold. The Court observed that it was a gross error on the part of the contemnor to talk to the child about pending litigations either in India, USA or Canada. The judge of the Circuit Court directed the contemnor that he was “truly and utterly” prohibited from discussing the litigations in India, USA and Canada with his minor son.
The apex court further noted that the child talked about the sale of the property of his grandmother during one of the video conference hearings, wherein he appeared with the contemnor. It is obvious that it is the contemnor who must have apprised the child about the litigation.
The property of the contemnor’s mother was required to be sold due to the gross default committed by the contemnor. The contemnor is least bothered about the fact that his mother lost her property due to his default. However, apart from committing impropriety by informing the child about the details of the pending litigations, he tried to prejudice the minor’s mind by telling him that his ancestral property was being sold at the instance of his mother.
The Court further observed that the contemnor had shown scant respect for the judicial proceedings pending in the Court. He defied assurance given to the Court that he had submitted himself to the jurisdiction of the Court. The contemnor went to the extent of opposing the request for mirroring the order of the Court, which resulted in the denial of the said request by the concerned foreign court. In fact, due to the misrepresentation made by the contemnor, the foreign court did not honour the principle of comity of courts. The act of denying the fact that he voluntarily submitted to the jurisdiction of the Court and his conduct of opposing the request for the grant of mirroring order amounts to interference with the administration of justice and obstructing the administration of justice, the Court observed.
The contemnor submitted before the Circuit Court that the said Court should make sure that there is an order passed that the questions and answers in the proceedings should not be used in any proceedings in India. The contemnor reiterated that he wanted to be careful as the proceedings had been used in Indian Courts. The contemnor knows that his conduct of defying the orders of the Court and showing disrespect to the orders of the Court can be established from the proceedings in the Circuit Court. His attempt before the Circuit Court was to ensure that his contumacious conduct, as reflected in the Circuit Court’s proceedings, should not be made available to this Court. In short, his attempt was to suppress the proceedings.
The apex court in Re Perry Kansagra, while relying upon decisions of the Court in Pallav Sheth vs Custodian and Re Vijay Kurle and Others held that in view of Article 129 of the Constitution of India, the power of this Court to punish a person for contempt is not constrained by the provisions of the Contempt of Courts Act, 1971.
Accordingly, the Supreme Court issued the following directions:
“(i) The contemnor is sentenced to undergo simple imprisonment for six months. He shall pay a fine of Rs 25 lakh within a period of six months from today. The fine amount shall be deposited with the Registry of this Court. On the failure of the contemnor to pay the fine within the stipulated time, he shall undergo a further sentence of simple imprisonment for two months.
(ii) After the fine amount is deposited in this Court, the same shall be released to the petitioner, who will be under an obligation to use the said amount only for the welfare and benefit of the minor son.
(iii) We direct the Government of India as well as the Central Bureau of Investigation to take all possible and permissible steps to secure the presence of the contemnor in India with a view to ensure that he undergoes the sentence and pays the fine.”
In November 2022, the Supreme Court had awarded six months imprisonment to a Kenyan citizen of Indian origin and imposed a fine of Rs 25 lakh on him for deliberately committing such acts, which lowered the dignity of the Court and attracted punishment for contempt of court, besides civil contempt. The bench of then Chief Justice of India UU Lalit and Justice PS Narasimha passed the order on a petition filed by Smriti Kansagra, challenging the Court’s 2020 order in a child custody matter.
—By Shivam Sharma and India Legal Bureau