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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1606 OF 2018

MEENAL BHARGAVA .....APPELLANT(S)

VERSUS

NAVEEN SHARMA .....RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 3629 OF 2018

J U D G M E N T

A.K.SIKRI, J.

These are the cross-appeals, filed by both the parties challenging

different parts of the orders dated January 9, 2018 passed by the High

Court  of  Judicature  at  Rajasthan in  D.B.  Civil  Contempt  Petition  No.

1846 of 2017.  The parties are husband and wife.  After their marriage in

the  year  2007,  the  wife  joined  her  husband  in  the  United  States  of

America  (USA).   Their  child,  named  Pranav,  was  born  out  of  this

wedlock in August, 2009 at Baltimore, USA.  In 2010, they migrated to

Canada.  For certain reasons, the matrimonial relations became strained

and  the  wife  viz.  Meenal  Bhargava  (hereinafter  referred  to  as  the

‘appellant’),  left  the  company  of  her  husband  Naveen  Sharma

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(hereinafter referred to as the ‘respondent’) and on July 26, 2013, went

away from her husband, taking Pranav with her.  Initially, for some time,

she stayed in Buffalo, New York and thereafter came to India in August,

2013.

2. The respondent filed a case for custody of Pranav in a Canadian Court.

Vide  order  dated  October  29,  2014,  the  Court  granted  temporary

custody  of  Pranav  to  the  respondent.   By  that  time,  appellant  had

brought  Pranav  to  India  i.e.  on  August  4,  2013.   After  order  dated

October 29, 2014 granting temporary custody of Pranav was passed in

favour of the respondent, the mother of the appellant filed a motion in a

Court  at  Canada  stating  that  the  said  Court  at  Canada  had  no

jurisdiction in the matter.  This contention was, however, rejected by the

Court  and,  thereafter  on  April  2,  2015,  another  order  was  passed

directing the appellant  to  return Pranav to its  jurisdiction and appear

before the Court on April 16, 2015.  The appellant did not comply with

this order, which led to issuance of red corner notice by the FBI/Interpol

against the appellant.   

3. Since  the  appellant  had  travelled  out  of  territorial  jurisdiction  of  the

Canadian Court and had come to India with Pranav, finding no other

alternative, the respondent herein filed a Habeas Corpus Petition in the

High Court of Judicature at Rajasthan.  In the said petition, notice was

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issued to the appellant herein. Having regard to the nature of dispute,

the High Court deemed it proper to explore the possibility of settlement

in  the first  instance.   Thus,  by order  dated December  17,  2015,  the

parties  were  referred  to  mediation.   This  effort  bore  fruits  as  the

respondent and appellant settled the matter.

4. The appellant agreed to come back to USA and join the company of the

respondent along with Pranav.  Consent terms were recorded and on

the  basis  thereof,  the  High  Court  disposed  of  the  Habeas  Corpus

Petition vide order dated December 17, 2015 incorporating those terms

of settlement in its order and directing the parties to abide by the same.

These consent terms are as under:

“(1)  Both the parties will withdraw their respective cases within 4 months from today.

(2)  Mr. Naveen Sharma will find out 3-4 flats for choice of Smt. Meenal and Smt. Meenal will then go to U.S.A. to select one of them.  This process should complete within 18 months.

(3)  In the meantime Mr. Naveen Sharma will  come to India to meet Mrs. Meenal and Pranav at least for 3 time. Similarly Mrs. Meenal will go to U.S.A. along with her son under the security with condition that Mr. Naveen will arrange all their expenses including travelling expenses and will undertake that if both of them desire to return India then Mr. Naveen will  arrange their safe return to India.

(4)  The flat which is going to purchase by Mr. Naveen Sharma should be in joint name of both party.  None of the party will entitle to sale this flat or it’s any part independently.  Mr. Naveen Sharma will arrange collateral security against loan and in no case the flat should be taken from ownership and possession of Mrs. Meenal Sharma.   In  case  any  mis-happening  the  flat  will  remain  in ownership of Mrs. Meenal Sharma.

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(5)  Mr. Naveen, Mrs. Meenal and Pranav will live jointly at U.S.A. after purchase of flat.  None of the family member of both parties will disturb and interfere in their lives.”

5. For certain reasons, the laudable settlement, hoping to achieve win-win

situation,  did  not  turn  into  reality.   As  per  the  respondent,  it  is  the

appellant who committed breach of the said settlement and also violated

the directions contained in the order of the High Court to comply with

these terms.   As  she failed to  adhere to  the settlement  and did  not

comply  with  the  directions  of  the  High  Court  in  this  behalf,  the

respondent herein filed Civil Contempt Petition in the High Court seeking

execution of the consent terms and punishment to the appellant under

the Contempt of Courts Act, 1971 (hereinafter referred to as the ‘Act’).

The appellant also, thereafter, filed application in the High Court seeking

recall of the consent order dated December 17, 2015.  The High Court

has, by impugned judgment dated January 9, 2018, found the appellant

to be in contempt and award maximum punishment of  six months civil

imprisonment under Section 12(1) read with Section 12(3) of the Act with

direction to the appellant to surrender within four weeks. The High Court

has also dismissed the application preferred by the appellant for recall of

order  dated December  17,  2015.   However, it  has  not  accepted the

request of the respondent to give him the custody of Pranav pursuant to

the Canadian Court’s order dated April 16, 2015 and, instead, permitted

the respondent to seek execution of the said order.  

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6. The appellant has challenged the aforesaid order against the findings of

the High Court holding her to be in contempt of its order and awarding

the said punishment.   The respondent feels aggrieved by that part of

the order whereby the High Court has refused to grant him the custody

of Pranav and showed him the route of execution.  This, in nutshell, is

the scope of two appeals before this Court.

7. As noted  above,  Pranav  was born in  Baltimore,  USA on  August  22,

2009.   He  is  having  US  citizenship.   Both  the  parties,  after  their

marriage, have resided in America or Canada.  They have also became

Permanent Residents of Canada as well as America.  From the date of

his birth in August, 2009, Pranav remained with their parents, initially in

America and thereafter in Canada till July 26, 2013, when the appellant

went away with him to Buffalo, New York and thereafter came to India on

August 4, 2013.  Pranav stayed with his father, along with her mother,

for four years and since then he is living with her mother to the exclusion

of the respondent.  He was 4 years of age when he was brought to India

by the appellant and is in India now for more than 4½ years.  Another

pertinent fact which is to be noted is that the respondent has got orders

from the  Canadian  Court  giving  custody  of  Pranav  to  him  and  has

directed the appellant herein to return the child back to Canada.

8. In  the  aforesaid  background,  the  respondent  had  filed  petition  for

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Habeas Corpus.  However, the said petition was not heard on merits

inasmuch as parties were relegated to mediation where they settled the

matter  leading  to  disposal  of  the  Habeas Corpus  petition  vide  order

dated December 17, 2015 on the consent terms which were made part

of the order with specific directions to both the parties to adhere to those

conditions.  We have already noted the consent terms as per which the

parties had to withdraw their respective cases against each other within

4 months from the date of the order of the High Court.  The respondent

was obligated to find out  3-4  flats  for  choice of  the appellant.   After

having chosen these flats, he was to show the same to the appellant.

The appellant, at that stage, was supposed to go to USA to select one of

the said flats.  On this selection, she was to join the respondent with

Pranav, thereby achieving again the matrimonial  alliance and Pranav

having benefit of the company of both his parents.  This entire process

was to be completed within 18 months.  During the aforesaid period of

18 months which was given to the respondent to find out flats in USA,

the respondent was permitted to come to India, at least three times, to

meet  the appellant  and Pranav.  Likewise,  the appellant  and Pranav

were also supposed to go to USA under security and for such visits, it

was the responsibility of the respondent to arrange all their expenses

including travelling expenses.  During such visits, they were entitled to

remain in USA as per their  choice and as and when they desired to

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return to India, the respondent had to arrange their safe return to India.

9. Three main obligations, as per the consent terms, were foisted upon the

respondent, viz.:

(i) To find 3-4 flats in USA to enable the appellant to select one of

them.  The chosen flat was to become abode of the family.   

(ii) To withdraw the cases filed against the appellant.  This included

complaint  filed  with  Police  and  also  take  steps  to  ensure  that

warrants/red-corner  notice  issued  by  the  FBI/Interpol  also  stands

withdrawn.   This  was necessary for  smooth entry of  the appellant  in

USA.

(iii)  After the selection of the flat by the appellant, the respondent was

obligated to purchase the said flat in joint names.

10.Likewise, the appellant was bound to carry out the following tasks as per

the aforesaid statements:

(i) To withdraw all the cases filed by her against the respondent.

(ii) After earmarking of 3-4 flats by the respondent, to go to USA to

select one of them.

(iii) On selecting the flat and purchase thereof by the respondent in

joint  names of  the appellant  and respondent,  she was to go to USA

along with Pranav and stay there with the respondent.   

11.For certain reasons, the parties fell apart and the settlement terms could

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not  be  fructified  leading  to  the  unfortunate  situation.   As  per  the

respondent, he had played his part by complying with the said terms

inasmuch  as  he  withdrew  the  illinois  police  complaint,

warrants/red-corner notice issued by FBI/Interpol on February 12, 2016.

He also visited India three times i.e. in August, 2016, December, 2016

and August, 2017.  During these visits, the respondent had shown to the

appellant  various  flats  selected  online  by  him  with  request  to  the

appellant to make her choice. However, on his third visit in August, 2017,

the appellant did not allow Pranav to meet the respondent as a result of

which police complaint  was filed with the SHO, Ajmer on August 26,

2017. The respondent also sent air tickets to the appellant on August 31,

2017 for travel on September 3, 2017 to enable her and Pranav to visit

USA.  The respondent further claims that he had also planned a trip to

Disney World, Florida for Pranav along with the appellant.  According to

the respondent, in spite of all the efforts made by the respondent, it is

the appellant who backed out and resiled from the settlement as she

failed to perform her role.

12.The appellant, on the other hand, blames the respondent which led to

the aforesaid failure.  Her accusation is that after the Habeas Corpus

Petition was disposed of vide order dated December 17, 2015, she filed

following  three  petitions  on  April  12,  2016  seeking  to  withdraw  the

following cases filed by her:

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(i) Custody Petition filed by her before the Family Court, Ajmer.

(ii) Maintenance case filed by her before the Family Court, Ajmer.

(iii) Divorce case filed by her before the Family Court, Ajmer.

13.It is further claimed by the appellant that even the criminal proceedings

launched by her  under  Section 498-A IPC etc.  were quashed by the

High Court on a petition filed by the respondent under Section 482 of the

Code of Criminal Procedure, 1973 (Cr.P.C.) which happened because of

her  no  objection  as  per  the  settlement.   Pointing  the  finger  at  the

respondent, her imputation is that he did not withdraw the custody case

filed by him in the Canadian Court and/or sought vacation/rescinding of

order dated April 16, 2015 by which custody of Pranav was ordered in

favour of the respondent.  She also alleges that the respondent failed to

send a list of flats to her within the stipulated 18 months time which was

mentioned in the consent terms.  Thus, according to the appellant, it is

the respondent who has not fulfilled his obligations under the settlement.

In fact, she even filed miscellaneous application in the petition that was

filed by the respondent under Section 482 Cr.P.C. and was allowed by

the High Court on April 12, 2017, seeking recall of the said order on the

ground that  it  was the respondent who had committed breach of  the

settlement.   High  Court,  however,  rejected  the  said  application  vide

order dated May 9, 2017 on the ground that the said order had been

passed after issuance of notice to the appellant.  

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14.With  this  kind  of  impasse,  the  respondent  filed  a  miscellaneous

application in the Habeas Corpus Petition seeking revival thereof on the

ground  that  the  appellant  had  breached  the  consent  terms.  This

application was, however, not accepted by the High Court on the ground

that if there was any breach or disobedience on the part of the appellant

herein, there was an alternative remedy available to the respondent to

file  contempt  petition.   This  application  was,  thus,  dismissed  as

withdrawn by order dated October 5, 2017 with liberty to the respondent

to  file  the  contempt  petition.   Thereafter,  the  respondent  filed  the

contempt  petition on November 7,  2017 which has culminated in the

impugned judgment dated January 9, 2018.   

15.We may mention at  this  stage that  when the notice of  the contempt

petition was served upon the appellant, she filed reply thereto stating

that  she had taken requisite steps under the settlement and it  is  the

respondent  who failed to get  orders dated April  16,  2015 passed by

Canadian  Court  nullified  thereby  disabling  her  to  go  to  America

inasmuch  as  she  could  be  arrested  immediately  on  landing  in

USA/Canada in view of the aforesaid order.  She also alleged that list of

flats  was  not  sent  to  her.  Moreover,  conduct  of  the  respondent,

post-settlement, was not good.  She had also filed additional reply dated

December 11, 2017 contending (i) pursuant to High Court orders, she

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had gone to Delhi hotel to meet respondent and his mother but she was

publicly  humiliated there,  (ii)  she had found that  the respondent  had

been fired by his employer IBM for taking bribes and he had not been

truthful to the Government also and (iii) respondent had not paid a single

penny  as  maintenance.   This  was  followed  by  application  dated

December  19,  2017  by  the  appellant  seeking  recall  of  order  dated

December 17, 2015.   

16.The aforesaid  stand  of  the appellant  has  been taken note  of  with  a

specific purpose, namely, it  is the contention of Mrs. Anjana Prakash,

learned senior counsel appearing for the appellant, that the High Court

has, in the impugned judgment, not even discussed and dealt with the

submissions of the appellant that she had not committed any breach of

the order or consent terms and on the contrary, it is the respondent who

failed to fulfil  his obligations thereunder.  She submitted that from the

reading of the impugned order, it can be discerned that the High Court

Bench  kept  on  insisting  the  appellant  to  join  the  company  of  the

respondent along with Pranav and on her refusal  to do so,  the High

Court has taken the view that appellant has shown strong defiance to

the orders of the Court.  In the process, the High Court has not even

cared to examine who was at fault insofar as adherence to the consent

order is concerned.  She also submitted that the High Court took into

consideration another extraneous factor.  It has noted in the impugned

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judgment  that  statement  was given in  the Court  by the father  of  the

appellant  that  the  application  for  recall  of  order  dated  May  9,  2017

passed in petition filed by the respondent under Section 482 Cr.P.C.,

was moved by the counsel  for  the appellant  without  her  instructions.

That, however, was found to be false assertion inasmuch as the High

Court called for the record of that case and found that each page of the

application was signed by the appellant  and on realising this,  it  was

conceded that lawyer was instructed to make such an application.  It

was  contended  by  the  learned  senior  counsel  that  even  if  this  was

correct, it has no bearing insofar as the contempt case is concerned.   

17.Mr. Jauhar, learned counsel appearing for the respondent, on the other

hand, put entire blame upon the appellant who, according to him, took

summersault  with  intention  to  commit  breach  of  settlement  terms  as

there was change of heart and she decided not to join the company of

the husband.  He took pains to demonstrate that respondent had took all

the necessary steps in  terms of  the settlement.   He still  wanted the

appellant  to  resume  matrimonial  alliance  for  the  sake  of  saving  the

family ties and also to enable Pranav be in the company of both the

parents.  

18.We  have  duly  considered  the  submissions  of  counsel  for  both  the

parties.  As noted in detail  above, both the parties are blaming each

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other for the failure of settlement terms.  In this backdrop, we have gone

through the impugned order passed by the High Court.   In the entire

judgment, the High Court has not adverted to the important aspect that

needed attention in such a case, namely, whether it was the appellant

who was responsible for not adhering to the terms of the consent order

and thereby violated the directions issued by the High Court in in its

orders  dated  May 09,  2017.   After  all,  the  respondent  had  filed  the

contempt petition attributing breach of the directions on the part of the

appellant.  In reply, the appellant had taken up the stand that she was

not responsible for the happenings and squarely blamed the respondent

therefor.  The High Court  has not  discussed these aspects.   On the

contrary, the approach of the High Court was to insist the appellant to

adhere to the settlement terms even at that stage and on her refusing to

do so it arrived at a finding that she had committed the contempt of the

court’s order as the aforesaid conduct was found to be abhorrent.  It is,

thus, the stubborn attitude shown by the appellant during the hearing of

the contempt  petition which has weighed  by the High Court.   That,

according  to  us,  was  not  the  correct  approach  for  punishing  the

appellant for contempt of court.  The contempt petition was filed by the

respondent alleging that the appellant had not fulfilled her obligations

under the consent terms and the directions given by the High court in

this behalf.  It was, thus, necessary for the High Court to discuss and

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consider, in  the first  instance,  as to whether  these allegations of  the

respondent were correct.

19.There is another way of looking into the matter.  The consent terms on

which  the  parties  settled  the  matter  contained  an  important  part  of

agreement, namely, both the parties decided to live together again.  This

happened in the proceedings which essentially related to the custody of

child.  No doubt,  when the parties  agreed to  resume the  matrimonial

relations and decided to live again as husband and wife, the problem of

custody of Pranav got automatically solved thereby as it brought about

an ideal situation where Pranav could have the company of his both the

parents.   Unfortunately,  this  did  not  materialise.   In  a  case  like  this

whether the High Court could force the appellant to join the company of

the respondent and live with him, if he had decided for certain reasons

not  to  do  so?   Even when a  decree of  conjugal  rights  is  filed  by a

competent court of law in favour of one of the spouses, such a decree

cannot be executed and the other spouse who is directed to resume the

conjugal relations, cannot be forced to do so.  It is a different matter that

for not obeying such a decree, other consequence follow including right

to the decree holder to seek divorce. When that is the position even in

respect  of  a  decree  passed  by  competent  court  of  law  forcing  the

appellant to join the company of the respondent and on her failing to do

so punishing her in committing contempt of the court’s order, that too by

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awarding maximum civil imprisonment  in law cannot be countenanced.

In a matter like this, the focus of the High Court should have been on the

custody of the child, which was a subject matter of the Habeas Corpus

petition.  However, as far as that aspect is concerned, the High Court

simply stated that it  would be open to the respondent to execute the

order of the Canadian Court dated April 16, 2015.  Here again the High

Court has fallen into error.  In fact, in a matter like this, the High Court

should have restored the Habeas Corpus Petition and decided the same

on merits.  However, when application for this purpose was filed by the

respondent, instead of doing so the High Court passed the orders dated

October 05, 2017 giving liberty to the respondent to file the contempt

petition.

20.Having regard to our aforesaid discussion, we allow the appeal filed by

the appellant  and set  aside the order  of  the High court  whereby the

appellant is punished for contempt.  It would be open to the respondent

to press the contempt petition before the High Court and if he so choses

the  High  Court  shall  decide  the  contempt  petition  in  the  light  of  the

aforesaid observations made by this Court, namely, to first find out as to

whether  the  appellant  is  correct  in  her  submissions  that  it  is  the

respondent  who  did  not  take  necessary  steps  to  ensure  that  the

appellant joins the company of the respondents along with Pranav in

USA.  We also allow the appeal of the respondent partly by setting aside

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the  direction  of  the  High  Court  permitting  the  respondent  to  file  the

execution petition.  Instead with the consent of both the parties, order

dated October 05,  2017 passed in Miscellaneous Application filed by

respondent  in  Habeas  Corpus petition  is  set  aside  and  her  Habeas

Corpus petition is revived which shall be dealt with by the High Court on

merits  in  order  to  decide  as  to  whether  custody of  Pranav  is  to  be

handed  over  to  the  respondent.   Before  us,  both  the  parties  have

advanced arguments on this  aspect  whereas the appellant  submitted

that the welfare of Pranav lies in continuing his custody with his mother.

The respondent had made a fervent plea to claim the custody on the

basis of the order of the Canadian Court.  However, we are deliberately

not  dealing  with  this  aspect  as  this  aspect  is  the  subject  matter  of

Habeas Corpus Petition pending in the High Court and it  is the High

Court  which  has  to  deal  with  and  decide  this  question,  in  the  first

instance.  

21.Both the aforesaid appeals are allowed on the aforesaid terms, without

any orders as to costs.

22.Before we part with, we are constrained to make few comments about

the conduct of the parties who are not fully acknowledging the truth and

reality of the situation.  It is either the appellant or the respondent or may

be, to some extent, both of them, who are to be blamed for the egoist

approach.  No doubt, on an earlier occasion, some differences arose

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between them which led to strained relations and the appellant  even

came back to  India.   Legal  battles  of  all  kinds started with  both  the

parties  filing  multiple  proceedings against  each other.  In  these dark

clouds enveloping the relationship between the parties,  a silver lining

emerged  in  the  form  of  mediation.   As  both  the  parties  acted  with

wisdom  and  maturity,  mediation  exercise  was  successful.   Both  the

parties not only buried their acrimony against each other but decided to

have a new beginning.  The magic of mediation worked at that moment.

The consent  terms which were recorded in  the settlement  arrived at

during mediation proceedings brought about the resolution which could

truly be levelled as ‘win-win’ situation. The accord was aimed at reuniting

the two spouses with the aim of bringing happiness in the matrimonial

relationship.  More importantly, paramount interest of Pranav as a child

was acknowledged by the parties as any child, particularly at this age,

needs the company of both the parents for him/her to bloom and for

ideal bringing up.  In fact, as is clear from the events noted above, both

the parties even took initial  steps to make this settlement a success.

However, before it could be seen as ‘happy ending’ and parties could

reach that end of the road where they could find their final destination as

envisaged in the settlement, they encountered a road block.  Whether it

happened due to the fault of the appellant or that of respondent, we are

not commenting about the same.  Unfortunate part  is that  instead of

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acknowledging  the  truth,  parties  are  grumbling  continuously  and

complaining  against  each  other.   This  accusation,  castigation,

chargeability  and  dilation,  depicting  deviation  from  rectitude  is  a

mindless exercise and, in the process, true welfare of Pranav is sought

to  be  sacrificed.   We  are  compelled  to  express  these  sentiments

because of the reason that things have still not gone beyond repair.  Had

the parties shown positive and cooperative attitude (which, we are sure,

they had demonstrated during mediation talks) they could still achieve

an amiable resolution, inasmuch as it is even now possible to work out

the terms of the compromise that was entered into between them.  In

fact, the respondent had expressed his willingness to go an extra-mile to

save the settlement and the matrimonial home.  However, the appellant

stood firm in her attitude as she kept on saying that she could no longer

repose confidence and trust in the respondent.  She has a grudge that

respondent lured her into the settlement with selfish motive to take away

the custody of Pranav with no love towards her and his moves lack bona

fides.  The respondent, on the other hand, maintained the position that

appellant  was  resorting  to  falsehood  because  of  her  selfish  motives

which  were  kept  higher  in  priority,  even  at  the  cost  of  family  life.

However, we may re-emphasise that all is not lost and situation can still

be  brought  under  control  if  there  is  a  dispassionate  and  objective

thinking by both the parties, keeping aside their ego.  Life has problems.

19

Parties have to understand those problems and to reflect on the reasons

why these problems have arisen leading to such kind of disputes.  Both

the parties have also to reflect on the future and to make up their mind

on that basis as to whether it would be in their interest, as well as in the

interest of Pranav to bury the hatched and have a new beginning.  We

say no more.   

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; MAY 09, 2018.