Anshuman Sharma vs Monica Gupta on 20 December, 2008

Delhi High Court

IN THE HIGH COURT OF DELHI AT NEW DELHI

MAT APP. No. 38/2006

20.12.2008

Judgment reserved on: November 22, 2007

Judgment delivered on: December 20,,2008

Anshuman Sharma ...... Appellant

Through: Mr. Aman Lekhi, Sr. Advocate with Mr. D.K. Singh, Adv.

versus

Monica Gupta ..... Respondent Through: Mr. Sunil Gupta, Sr. Advocate with Mr. Jatin Zaveri , Adv. CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may Yes be allowed to see the judgment?

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported Yes in the Digest?

KAILASH GAMBHIR, J.

In the ever increasing disputes in the matrimonies the worse sufferers are the children, who not only get deprived of love, care and affection of one of their parent but practically become target for the parties to score over one another in this mad race and obsession of winning possession, exclusive control and custody of the children. The children have practically no role in breaking of the marriage, but he or she suffers. The marital discord sometimes reaches a stage where the parties are unmindful of what psychological, mental and physical impact it has on children. Children whose parents divorce witness negative family interaction prior to a divorce and also experience many life transitions and strained familial relationships after divorce. Marriages that end in divorce typically begin a process of unraveling, estrangement, or emotional separation years before the actual legal divorce is obtained. During the course of the marriage, one or both of the marital partners begins to feel alienated from the other. Conflicts with each other and with the children intensify, become more frequent, and often go unresolved. Feelings of bitterness, helplessness, and anger escalate as the spouses weigh the costs and benefits of continuing the marriage versus separating. For both parents and children, the most difficult and stressful phase of the divorce process is usually the period leading up to and immediately following parental separation and divorce. In addition, the process of unraveling and family dissolution continues, coupled with numerous potentially life-altering transitions for children. The case at hand is a classic example of such a situation where the parents obsessed with the idea of obtaining exclusive control of their child fought bitter legal battles and traversed the corridors of several courts including this court.

The present appeal is filed under Section 28 (2) of the Hindu Marriage Act assailing the order dated 4/11/2006 passed in execution case no. 18/2006 filed for execution of decree dated 12/11/2002 passed in HMA no?s 340/2002 and 956/2002.

The brief facts of the case relevant for deciding the dispute between the parties as set out in the appeal are as under: On 6.12.1994 petitioner and the respondent were married at New Delhi. From the wedlock on 31.7.2000 a daughter was born to the parties. Soon serious and irreconcilable differences arose between the parties and resultantly, on 18.5.2001 the petitioner was constrained to move out of the then matrimonial home and shift to another premises at Delhi with his daughter. Thereafter, on 22.5.2001 the respondent came to the residence of the petitioner and during the absence of the petitioner took away the daughter on the pretext of inoculation. The respondent refused to return the daughter to the petitioner. Thereafter, the respondent filed and initiated various criminal complaints/proceedings against the petitioner and his parents (being Case FIR No.163/2001 under Sections 498A/405 IPC entitled `State vs. T.R. Sharma and Criminal Complaint No.307/1 of 2002 titled Manika Jain vs. Anshuman Sharma and Others). A petition under Section 12(1)(ia) of the Hindu Marriage Act was filed by the respondent alongwith applications under Sections 24, 25, 26 and 27 of the Hindu Marriage Act. All through, the respondent denied access of the daughter to the petitioner. The petitioner on 27.9.2001 filed a petition under Section 25 of the Guardian and Wards Act (Petition no.105 of 2001) seeking the custody of his daughter before the Guardianship Court, Tis Hazari, Delhi. The learned Guardianship Court on 28.9.2001 was pleased to pass an order restraining the respondent from taking away the daughter out of the jurisdiction of the Court. Thereafter, on 24.12.2001 the learned Guardianship court passed an order granting interim custody to the respondent. Aggrieved by the said order dated 24.12.2001, the petitioner filed a Revision Petition before the Hon?ble Court of the Delhi (being CR No.4 of 2002) The respondent in January, 2002 obtained release from her Delhi posting and immediately left with the daughter to Yangon (Myanmar) without informing the petitioner as to her whereabouts. The petitioner, who along with his family felt harassed by their involvement in criminal cases and not wanting the daughter to be embroiled in this seemingly never ending battle between the parents, and keeping in view the best interest of the daughter, entered into a Memorandum of Understanding (the MOU) with the respondent on 28.10.2002, in terms whereof the parties agreed to withdraw all pending proceedings filed by them. On the strength of the assurance from the respondent that he would have unfettered right to temporary custody of the daughter for a period of 30 days in a year, the petitioner agreed to withdraw his claim to permanent custody. Accordingly, under Clause 7 of the MOU it was, inter-alia agreed that the custody of the daughter (who at the time was 2 years and 2 months of age) shall permanently rest with the respondent and the petitioner shall have the right to have temporary custody of the daughter once in each calendar year for a period of 30 days during the school vacations of the child irrespective of the place of posting/residence of the respondent. Under Clause 9(C), it was agreed that in the event the parties are posted at different places abroad or one in posted in India and one in abroad, the respondent shall inform the petitioner one month in advance about the programme of school vacations of the child so that the petitioner may come to pick-up the child for exercising his rights of custody of the child. At the end of the stipulated period of custody of the child, the respondent shall visit the place of posting of the petitioner to take the child back and the petitioner thereon shall be duty bound to hand over the child back to the respondent. Under Clause 14 the parties undertook to sign the necessary petitions/applications/undertakings to be moved as mentioned in the MOU as may be required to give effect to the terms of the MOU. Under Clause 17 it was agreed that in case the terms and conditions recorded in the MOU were not given effect to and/or implemented and/or any party fails to appear before any court of law to give effect to the MOU, the present MOU shall be deemed to become non est and null and void and the parties would be free to seek their respective remedies in courts of appropriate jurisdictions without prejudice to their respective rights and contentions. By addendum dated 7.11.2002 to the aforesaid MOU it was inter alia, agreed that the party residing abroad shall provide requisite letter, if necessary, to the other party for obtaining VISA. In pursuance of the said MOU and addendum, the parties filed petitions for dissolving their marriage by mutual consent in terms of the MOU and addendum aforesaid. Both parties took solemn undertaking before the Court to abide by the terms and conditions of MOU dated 18.10.2002 and Addendum dated 7.11.2002 to it. A decree of divorce by mutual consent was passed on 12th November, 2002. Pursuant to and on the basis of the said MOU on 14.11.2002 the criminal proceedings filed against the petitioner and his family were withdrawn by the respondent. A Joint Application under Order 23 Rule 3 of the CPC was filed by both the petitioner and the Respondent (being CM No.2465 of 2002) before this Court in CR No.4 of 2002 and the said petition was dismissed as withdrawn by order dated 1.11.2002 after this Court recorded the undertaking of both the parties to abide by the terms and conditions contained in the MOU. After entering into MOU and addendum thereto and further getting the marriage dissolved and Civil Revision No.4/2002 being withdrawn, the respondent flouted clause 7 of the said MOU and did not hand over the custody of the daughter to the petitioner for a period of 30 days during summer vacation of the school in May-June 2003 and created such a situation that it became impossible for the petitioner to have any access to his daughter. Since the respondent had committed a breach of her undertaking given to this Court of Delhi in Civil Revision No.4 of 2003 and also violated the direction as given to the parties in the order dated 1.11.2002 on 22.9.2003 the petitioner filed a Civil Contempt Petition before this Court, being CCP No.544 of 2003. On 22.9.2003 the Hon?ble High Court was pleased to issue notice to the respondent to show cause why contempt proceedings be not initiated. On 28.11.2003 this Court, taking a serious view of the conduct of the respondent and of the breach by her of the undertaking given before this Court and also taking note of the petitioner?s lack of success in obtaining a visa for Myanmar, directed that the petitioner would take temporary custody of the daughter from Calcutta on the date of her arrival. The respondent was directed to take custody of the child from the petitioner at Calcutta with the expenses to and fro for Myanmar to be borne by the petitioner. On 6.12.2003 the petitioner took temporary custody of the daughter from the respondent at Calcutta and the daughter remained for some time with her father and paternal grandparents. On 6.1.2004 the custody of the daughter, as per the instructions of this court, was handed over to the respondent at New Delhi. In compliance with the directions given by this court, the petitioner paid to the respondent a sum of Rs.22,600/- being the amount expended by the respondent as per the photocopies of the air tickets handed over to the petitioner by the respondent. On 10.1.2004 to exercise his right of one month custody in 2004, based on the holiday schedule as furnished to him by the day care center, the petitioner wished to exercise his right of temporary custody of 30 days for the year 2004 in the month of July, 2004 and by letter dated 10.1.2004 requested the respondent to let the child spend her July, 2004 break with the petitioner and requested the respondent to confirm the same by end of January, 2004 so as to enable the petitioner to plan his leave in advance. Further, in light of the petitioner?s VISA to Myanmar having been rejected thrice in the past, the respondent was also requested to confirm the city in India where she would be able to hand over temporary custody. But again the petitioner?s repeated requests and various communications did not yield any result as the respondent was in no mood to abide by the terms and conditions of the MOU after having achieved the desired fruits out of it and she did not hand over the custody of the daughter for a month in the year 2004 On 26.4.2004, the petitioner filed a Civil Contempt Petition before this Court, being CCP No.402 of 2004 On 7.5.2004 this Court was pleased to issue notice to the respondent to show why contempt proceedings be not initiated. On 27.5.2004 this Court directed personal presence of the respondent on the next date of hearing, i.e. 14.6.2004 On 14.6.2004 instead of complying with the said direction by personally appearing on 9.6.2004 the respondent?s sister (and not the respondent) filed an Application seeking recall of the order dated 27.5.2004 (being CM No.7837 of 2004). The sister of the petitioner also filed an affidavit in reply to the Show Cause Notice, the idea being to somehow scuttle the hearing of 14.6.2004 On 9.7.2004 the Contempt Petition was taken up for hearing and judgment was reserved. On 3.9.2004 by judgment and order dated 3.9.2004 this Court was pleased to dismiss the contempt petition, inter alia, holding that the contempt petition filed by the petitioner was misconceived as this Court was of the opinion that Revision Petition having been dismissed as withdrawn, no contempt lies for violation of the terms of the MOU and also the Revision Petition was not disposed of in terms of the said MOU. The order left the petitioner to seek such redress as may be otherwise open to him in law. The petitioner then, filed Special Leave Petition (C) NO.21153 of 2004 before the Hon?ble Supreme Court seeking leave to appeal against the order dated 3.9.2004 passed by this Court. On 25.10.2004 notice was issued in the SLP and vide order dated 11.4.2005, the respondent was directed to hand over the custody of the daughter to the petitioner for a period of 30 days. The custody of the daughter was given to the petitioner on 29.4.2005 for a period of 30 days. On 25.7.2005 the case was adjourned by 5 months, however, the petitioner was given visitation right to his daughter which were never complied with by the respondent. The Hon?ble Supreme Court however, by a non speaking order dated January 2, 2006 dismissed the aforesaid SLP. Since the appellant did not succeed in enforcing the terms of MOU compliance of the order dated 1.11.2002 in CR No.4 of 2002, whereby Court recorded the undertaking of both the parties to abide by the terms and conditions contained in the MOU pursuant to joint application by the parties under Order 23 Rule 3 CPC first by seeking the remedy under the Contempt of Courts Act and then the appellant on 4.5.2006 by filing the Execution Case No.18/06 seeking execution of the decree and order dated 12.11.02 passed by Ms. Urmila Rani, Additional District Judge, Karkardooma Courts, Shahdra, Delhi. The respondent filed her reply to the execution petition. The learned Execution Court vide impugned order dated 4.11.2006 dismissed the aforesaid execution petition and the appellant feeling aggrieved with the order dated 4.11.2006 preferred the present appeal. I have heard learned counsel for the parties at considerable length and perused the record.

Mr. Aman Lekhi, Sr. Advocate appearing for the appellant contended that the appellant had every right to approach the matrimonial Court under Section 26 of the Hindu Marriage Act even after passing of the decree under Section 13(B)(2) of the Hindu Marriage Act so as to enforce the relevant terms of Memorandum of Understanding dealing with the visitation rights of the appellant to meet the child for a period of 30 days. The counsel further contended that each and every term of the Memorandum of Understanding dated 28th October, 2002 is binding upon the parties and therefore, as per Clause 7 of the said agreement the appellant could not have been deprived of the temporary custody of the child once in each calendar year, for a period of 30 days, during school vacation of the child. Counsel also contended that based on the said Memorandum of Understanding both the parties had sought dissolution of their marriage by mutual consent as envisaged under Section 13-B (1) and (2) of the Hindu Marriage Act and therefore, every term of the Memorandum of Understanding has to be treated as an integral part of the decree passed by the Matrimonial Court and therefore, the appellant gets a legitimate right to enforce Clause 7 to have temporary custody of the child for a period of 30 days. The counsel placed reliance on the commentary of celebrated author Mulla on the principles of Hindu Law Volume II 9th edn pg 265 to buttress his argument that the rule of law is to be applied whether or not it defeats the intention of the parties. The contention of the counsel for the appellant was that by rule of law no excluding or limiting term in the contract can protect a party who is in fundamental breach of the contract. The argument of the counsel for the appellant was that Clause 17 of the Memorandum of Understanding cannot put an embargo or fetters on the right of the appellant in seeking enforcement of Clause 7 of the Memorandum ofUnderstanding. Clause 17 gives right to the parties to seek their respective remedies in Courts of appropriate jurisdiction in case any of the terms and conditions recorded in MOU are not given effect to and/or implemented and/or any of the parties fail to carry out his/her obligation(s) as undertaken by them in the said settlement, contended counsel for the petitioner. The counsel further contended that the respondent cannot take shelter under Clause 17 so as to resile or wriggle out from Clause 7 as the said Clause 7 is primarily based on the rule of law which gives right to the appellant, who is a natural father, to at least have visitation rights or temporary custody of the child. The counsel thus submitted that the terms of the Memorandum of Understanding must be interpreted so as to give effect to the real intentions of the parties and both the clauses i.e. clause 7 and 17 cannot be interpreted in a manner which would defeat the intention of the parties. In support of this contention the counsel relied on Chitty on Contract, 27th edn pg 8 Chapter 1; Interpretation of Contract by M.A. Sujan, 2nd edn, pag 188 and Cheshire and Fitfoot?s Law of Contract, 10th edn, pg 155. The relevant para from Cheshire is reproduced as under:

???This distinction between a rule of law and a rule of construction permeates English law as a whole and in its long life has generated many curious subtleties and provoked many petty quarrels. A rule of law is to be applied whether or not it defeats the contention of the parties. A rule of construction exists to give effect to that intention. Within the sphere of contract the doctrine of public policy operates as a rule of law: a contract which offends it is void despite the wishes of the parties. The effect of mutual mistake, on the other hand, is assessed by applying a rule of construction: it must be asked what, if anything, a reasonable person would think was `the sense of the promise?.?

The counsel further contended that as per the settled legal position in the event of there being any conflict between the earlier clause and the later clause and if it is not possible to give effect to both the clauses, then as per the rule of the construction the earlier clause must override the later clause and not vice versa. The counsel thus contended that Clause 7 of the Memorandum of Understanding, which gives right to the appellant to have temporary custody of the child, has an overriding effect on Clause 17 of the Memorandum of Understanding. In support of his argument counsel for the appellant placed reliance on the judgment of the Supreme Court reported in AIR 1959 SC 24 Radha Sundar Dutta vs Mohd. Jahadur Rahim and Ors. Relevant para of this judgment is reproduced as under:-

?11. Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim ?ut res magis valeat quam pereat?. What has to be considered therefore is whether it is possible to give effect to the clause in question, which can only be by construing Exhibit B as creating a separate Patni, and at the same time reconcile the last two clauses with that construction. Taking first the provision that if there be other persons entitled to the Patni of lot Ahiyapur they are to have the same rights in the land comprised in Exhibit B, that no doubt posits the continuance in those persons of the title under the original Patni. But the true purpose of this clause is, in our opinion, not so much to declare the rights of those other persons which rest on statutory recognition, but to provide that the grantees under the document should take subject to those rights. That that is the purpose of the clause is clear from the provision for indemnity which is contained therein. Moreover, if on an interpretation of the other clauses in the grant, the correct conclusion to come to is that it creates a new Patni in favour of the grantees thereunder, it is difficult to see how the reservation of the rights of the other Patnidars of lot Ahiyapur, should such there be, affects that conclusion. We are unable to see anything in the clause under discussion, which militates against the conclusion that Exhibit B creates a new Patni.?

Counsel for the appellant also invited attention of this court to the joint statement of the parties recorded before the matrimonial Court, which shows that both of them had undertaken to abide by the terms and conditions of the Memorandum of Understanding duly exhibited as Exhibit P1 and Addendum dated 7.11.2002 as Exhibit P2. The counsel contended that it was the duty of the matrimonial Court to see that each and every term of the Memorandum of Understanding which confers certain rights and obligations on the parties should be implemented in letter and spirit in the event of any complain or breach being made by any of the parties. The counsel also contended that the learned Trial Court unnecessarily got influenced with the orders passed by the High Court in the contempt matter and the order passed by the Apex Court in SLP No. 21153/2004 Counsel deriving support from the judgment in Saurashtra Oil Mills Assn. Gujarat Vs. State of Gujarat and Anr.- (2002) 3 SCC 202 and State of Manipur Vs. Thingujam Brojen Meetei-(1996) 9 SCC 29 contended that dismissal in limine is not binding and does not debar the appellant to seek his remedy. He also stated that the said orders did not debar the appellant to seek his remedy by way of filing a suitable petition under Section 26 of the Hindu Marriage Act. Counsel also contended that the matrimonial Court was competent to grant the relief to the appellant. The appellant moved an application, which was though labeled as execution petition, but was in fact an application under Section 26 of the Hindu Marriage Act. The counsel also contended that it is not the form of the petition but substance of the petition and the relief claimed therein which the court must look at before granting the relief. The counsel also placed reliance on the International Convention on the Rights of the Child, which has been duly adopted and ratified by our country. Counsel particularly invited attention of this court to Article 9 of the same to contend that it is a duty of the State that no child is separated from his or her parents against their Will except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures and where such separation is necessary for the best interest of the child. Article 9 of the Convention of the Rights of the Child is referred as under:-

?Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of resident.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person (s) concerned.?

The contention of the counsel for the appellant is that the said temporary custody of the child and visitation is quite necessary for the proper growth of the child, both physical and mental, and it is not merely to satisfy the emotional attachment of the father. The counsel thus contended that the appellant cannot be deprived from the temporary visitation rights, which are otherwise agreed to between the parties under the Memorandum of Understanding, which has a binding effect after its incorporation in the decree of divorce. The counsel also contended that even the remarriage of the father would not come in his way to deprive him from the temporary custody. In support of this argument the counsel placed reliance on the judgment reported in AIR 1929 Madras 81 Atchayya vs Kosaraju Narahari. Per contra Mr. Sunil Gupta, Sr. Advocate appearing for the respondent stoutly refuted the arguments of the counsel for the appellant. Counsel for the respondent raised a preliminary objection to the very maintainability of the present appeal under Section 28(2) of the Hindu Marriage Act. The contention of the counsel for the respondent is that no decree under Section 26 of the Hindu Marriage Act has been passed and consequently no appeal can be maintained by labeling the impugned order as if the same has been passed under Section 26 of the Hindu Marriage Act. Inviting attention of this Court to the judgment and decree passed by the matrimonial Court under Section 13-B(2) of the Hindu Marriage Act, which clearly shows that the Memorandum of Understanding under which the appellant was given the custody right for a period of 30 days, was never a part of the judgment and decree. Counsel further contended that mere reference made to the Memorandum of Understanding in the judgment cannot lead to an inference that the Memorandum of Understanding became a part of the judgment and decree. Counsel further contended that the learned counsel for the appellant has tried to give a colour to the impugned order as if the same has been passed under Section 26 of the Hindu Marriage Act only with a view to justify the filing of this appeal otherwise under no circumstances the impugned order can be treated or considered to have been passed under Section 26 of the Hindu Marriage Act. Counsel also invited my attention to the averments made by the appellant in the present appeal, wherein, at most of the places the appellant has used the expression execution case. Even in the prayer paragraph the directions have been sought by the appellant for the execution of the decree. Counsel thus contended that it is only after the objection to the maintainability of the appeal was raised by the respondent in reply to the present appeal, the appellant became wise and took the said stand of considering the impugned order as if the same has been passed under Section 26 of the Hindu Marriage Act. The counsel for the respondent also invited attention of this Court to the application filed by the appellant, which is placed at pages 40 to 42 of the paper book, which is in the format of execution petition and the details given in reply to the various paragraphs would clearly show that the appellant had approached the matrimonial Court so as to seek execution of the judgment and decree dated 12.11.2002. In the prayer paragraph of the said application also the appellant had prayed for directions against the respondent to comply with the terms and conditions of the Memorandum of Understanding dated 28.10.2002 which as per the appellant was made part and parcel of the judgment dated 12.11.2002. Once there was no decree passed by the matrimonial Court in terms of Section 26 of the Hindu Marriage Act no question could arise for the enforcement of the same by filing an execution petition, the counsel for the respondent contended. Counsel further contended that the remedy of appeal, which has been provided under Section 28 of the Hindu Marriage Act is not available to the appellant assailing the order passed in the execution petition.

Linked with the first argument counsel for the respondent contended that the application filed by the appellant seeking to enforce the terms of the Memorandum of Settlement cannot be treated to be an application filed under Section 26 of the Hindu Marriage Act. The occasion to file an application under Section 26 of the Hindu Marriage Act could arise only when already provision has been made by the Court in the decree and not in a case where no such provision has been made in the decree but still the party would come forward to take shelter of Section 26 of the Hindu Marriage Act. Counsel also contended that the situations contemplated under Section 26 of the Hindu Marriage Act are not satisfied in the facts and circumstances of the present case. The next argument raised by the counsel for the respondent is that for granting decree of divorce by mutual consent the matrimonial Court has to feel satisfied with the three requirements, firstly that the parties to the marriage have been living separately for a period of one year or more. Secondly, that they have not been able to live together for the said period of one year and third, that they have mutually agreed that their marriage should be dissolved by mutual consent and as regard Section 13B(2) is concerned the Court has to see that the second motion is preferred after six months has expired from the date of the first motion and not later than 18 months from the said date and thereafter on Court being satisfied after hearing the parties and after making such enquiry as it thinks fit may pass a decree of divorce declaring a marriage to be dissolved by mutual consent. The contention of the counsel for the appellant is that the settlement entered into between the parties need not necessarily become the part of the said proceedings under Section 13B (1) and (2) of the Hindu Marriage Act. In any event of the matter the counsel contended that even where such a settlement has to be made a part of the decree then the Court has to pass a specific order treating such a settlement between the parties as a part of the judgment and decree. The counsel thus contended that once the Memorandum of Understanding was not made a part of the decree, therefore, such a memorandum could not have been enforced by the appellant by way of filing of the execution petition.

The next argument taken by the counsel for the respondent is that the controversy of the said Memorandum of Understanding has already attained finality by the order passed by this Court in CCP No. 402/2004 dated 3/9/2004 and therefore, the appellant cannot be allowed to re-agitate the matter again by filing the present appeal being hit by the principle of res judicata. The contention of the counsel for the respondent is that in the contempt petition filed by the appellant a detailed order has been passed by this Court, rejecting the contempt petition of the appellant and therefore, that controversy of Memorandum of Understanding cannot be reopened by the appellant after the same having attained the finality with the said decision of this Court. The appellant is thus estopped from reagitating the said issue again in the present appeal or in the other proceedings filed by the appellant in this regard. Counsel also placed reliance on explanation 8 of Section 11 of the CPC to contend that the application filed by the appellant was clearly hit by the principles of res judicata. Counsel for the respondent also seriously disputed the entitlement of the appellant to the custody of the child on account of subsequent developments. The contentions raised by the counsel for the respondent in this regard are that the appellant has remarried and apparently, the appellant is a man without any honorable character as is evident from the fact that he was arrested by the Myanmar Police under the Prostitution Suppression Special Act and the appellant was prosecuted under S.3 (A) (b) of that Act and that the appellant, being a foreigner, was released later as State Approver Witness meaning thereby that the appellant admitted his guilt and it is for the reason aforesaid that the appellant?s VISA to Myanmar was rejected. The counsel further submitted that the aforesaid documents were produced by the Respondent in the Special Leave Petition No.21153 of 2004 filed by the appellant and that the said petition was dismissed by the Hon?ble Supreme Court of India on the basis of the records of the case. The counsel also submitted that the minor girl child is presently residing in Jakarta, Indonesia and is pursuing her studies and it is not in the welfare of the minor girl child that her custody be handed over to the appellant.

Last contention of the counsel for the respondent is that taking into consideration the welfare of the child the same does not lie even in giving any visitation right to the appellant much less granting him the custody for a period of 30 days. The counsel relied on the judgment in Mrs. Prabhati Mitra Vs. D.K. Mitra-25(1984) DLT 186 in support of his contention. The counsel also invited attention of this court to the various orders passed by the Hon'ble Supreme Court in the SLP filed by the appellant against dismissal of his contempt petition, which shows that the Hon?ble Supreme Court took into consideration various subsequent developments and thereafter not only rejected the said petition of the appellant but also did not pass any order for the custody of the child nor even granting any visitation rights. In the rejoinder, Mr. Aman Lekhi, counsel for the appellant vehemently refuted the arguments of the counsel for the respondent. Countering the plea of the counsel for the respondent, counsel for the appellant submitted that the plea of res judicata is not available to the respondent as the order of contempt court gave no finding on the memorandum of understanding and any observation made by the learned High Court while deciding the contempt petition of the appellant was merely an obiter and the same could not have been considered as ratio of the judgment. In support of his argument, counsel for the appellant placed reliance on the following judgments:

1. Director of Settlements A.P. and Ors. Vs. M.R. Apparao and Anr.- (2002) 4 SCC

638.

2. State of Haryana Vs. Ranbir Alias Rana (2006) 5 SCC 167 The contention of the counsel for the appellant is that the judgment of the court has to be read specific to the issues raised in a particular case which required consideration, adjudication and determination of the court and if in the process the court makes any observation unrelated with the questions arising in a particular case then such observation cannot have a binding effect so as to operate as res judicata between the parties in subsequent proceedings. The issue of memorandum of understanding was not before the contempt court and therefore, any observations made by the contempt court on the memorandum of understanding cannot become a road block in the way of the present appeal filed by the appellant, the counsel contended. Counsel thus submitted that any interpretation or observation made by the contempt court on the memorandum of understanding was extraneous so far as question of contempt was concerned. In support of his argument, counsel for the appellant placed reliance on the following judgments:

1. Indian Airports Employee?s Union Vs. Ranjan Chatterjee andAnr.-(1999) 2 SCC 537;

2. Commissioner of Income Tax, Bombay and Anr. Vs. Ishwarlal Bhagwandas and Ors.-(1966)1 SCR 190

Refuting the other argument of the counsel for the respondent that no order or decree under Section 26 of the HMA was passed by the trial court and therefore, no appeal can be maintained by labelling the impugned order as if the same was passed under Section 26 of the HMA, counsel for the appellant reiterated, that it is not the form of the application but the substance which would determine the real intention of a party. The contention of the counsel for the appellant is that in substance the application which is being labeled as an execution petition was moved by the appellant under Section 26 of the HMA and the order passed by the trial court thereon has to be treated as an order passed under Section 26 of HMA which is an appealable order. Referring to Section 26 of the HMA, counsel submitted that the court is not powerless to pass an order or grant an appropriate relief even after the grant of final decree and therefore, the appellant was not debarred to seek his remedy based on the memorandum of understanding to approach the court under Section 26 of the HMA. Necessary provision with regard to the custody, maintenance and education of minor children can be made in the final decree as well as thereafter by altering such decree upon an application being made by any of the parties, for such purpose. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Apex Court in Prithvichand Ramachand Sablok Vs. S.Y. Shinde-AIR 1993 SC 1929 and on Mayne?s Treatise on Hindu Law and Usage, 15th edn pg 401.

Another line of argument taken by the counsel for the appellant was that the order regarding the custody of a child is interim in nature and it can be modified even at a later stage. In support of his arguments, counsel for the appellant placed reliance on the judgment in Rosy Jacob Vs. Jacob A. Chakramakkar- (1973) 1 SCC 840.

The counsel for the appellant further submitted that while deciding issue relating to the custody of the child, the court exercises a parental jurisdiction delegated to him by the State. In support of his arguments, counsel for the appellant placed reliance on the judgment in Dr.(Smt.)Snehlata Mathur Vs. Mahendra Narain-AIR 1980 Raj 64.

Elaborating his arguments further in the rejoinder, counsel for the appellant urged that the procedural laws are handmaid of justice and therefore, the learned trial court ought to have considered the application moved by the appellant as a substantive application under Section 26 of the HMA instead of going by label of the application. In support of his argument, counsel for the appellant placed reliance on the judgment as the Apex Court in Rani Kusum(Smt) Vs. Kanchan Devi and Ors.-(2005) 6 SCC 705. Before adverting to deal with various legal issues raised by the parties, first it would be appropriate to reproduce Section 26 of the HMA which is reproduced as under:

?26. Custody of children.- In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.? Plain and simple reading of the aforesaid provision would show that in any proceeding under the Hindu Marriage Act, the court trying such a petition is competent to make provision in respect of (1) Custody; (2) Maintenance; and (3) Education of the children. What are the stages which are contemplated in the said Section for the court to make such an arrangement for the custody, maintenance and education of the children are as follows: (1) At anytime before finally passing a decree, the court can pass interim orders relating to custody, maintenance and education of children. (2) In the decree, the court make provision for the custody, maintenance and education of children;

(3) Even after a decree is passed, an application may be made to the court by way of petition for making orders for custody, maintenance and education of children.

The aforesaid stages as enumerated in the said provision would evidently show that even after the decree, any of the parties to the proceedings under the HMA can move the court to seek orders for the custody, maintenance and education of the child. In the facts of the present case, indisputably, the memorandum of understanding dated 28.10.2002 was executed between the parties. The said memorandum of understanding gives complete detail of various cases pending between the parties in different courts which, the parties had taken a decision to finally put at rest. All the other contingencies and disputed issues between the parties including the issue pertaining to their only child was also extensively dealt with in the MOU so as to ensure that finality is given to all their inter se disputes and they are able to lead a peaceful and happy life without there remaining any kind of further litigation, dispute or claim of any nature, whatsoever. It is also not in dispute that both the parties gave full effect to the terms of the memorandum of understanding and pursuant to that not only various other cases were withdrawn but more importantly the marriage of the parties was dissolved by the decree of divorce granted under Section 13-B(1) and (2) of the HMA. Surprisingly, despite having agreed to certain arrangements with regard to the custody of the child and with regard to maintenance etc. in the MOU, the disputes continued and could never attain finality. It is also not in dispute that the appellant had withdrawn his revision petition no. 4/2002 based on the said memorandum of understanding. It is also not in dispute that the contempt proceedings were initiated by the appellant based on the order passed by the High court in revision petition no. 4/2002 complaining that the custody of the child was not handed over to the appellant in terms of the clause (7) of the memorandum of understanding despite the fact that based on the said memorandum of understanding the revisional court had passed the order dated 11.11.2002. It is also not in dispute that this Court while deciding the contempt case no. 402/04 did not find that there is any room for taking any action against the respondent for initiating contempt proceedings. The decision of the contempt court predicated primarily on two grounds, first, that the revisional court never affixed its imprimatur on the memorandum of understanding, secondly, the revision petition was dismissed as withdrawn and therefore, there was no direction given by the revisional court to any of the parties binding them to the terms of the memorandum of understanding which could warrant initiation of contempt proceedings. This order of the High Court in contempt case gained finality as the special leave petition filed by the appellant against the order of the High Court was dismissed vide order dated 3.9.2004 In the operative para the High Court observed as under:

?In the totality of the above circumstances, therefore, there is no room for taking any action against the Respondent in the contempt jurisdiction of this court. This contempt petition is misconceived and is accordingly dismissed reserving liberty to the Petitioner to seek such redress as may be otherwise open to him in law before the competent court in fresh proceedings to be instituted by him in that regard.?

After having not succeeded in the contempt proceedings and taking into consideration the said observations of the High Court in contempt case, the appellant chose to file an execution petition so as to enforce the judgment and decree dated 12.11.2002, complaining violation of the terms and conditions of the memorandum of understanding on the part of the respondent which as per the appellant were part and parcel of the said judgment and decree. Reply to the said execution was filed by the respondent and by the impugned order, the learned ADJ dismissed the said execution petition, primarily on the ground that the remedy of the petitioner as per the observations made by the High Court in the contempt proceedings was available by way of appropriate proceedings before the competent court of jurisdiction afresh and not by way of filing an execution petition which step on the part of the appellant was considered as short cut method for redressal of his grievance. Now this order of the learned ADJ is under challenge in the present appeal and this very order as per the counsel for the appellant is stated to have been passed on the application moved by the appellant under Section 26 of the HMA. I feel it is here, where the basic fallacy lies. Sometimes when one takes a wrong step then one keeps justifying such a wrong act instead of taking any remedial steps to correct such a wrong step. Clearly the application filed by the appellant was an execution petition and it goes beyond ones comprehension as to how the same could have been treated as application under Section 26 of the HMA. There is neither any question of labeling of application or taking substance of the same as the averments made in the entire application would show that the appellant was seeking enforcement of the memorandum of understanding dated 28.10.2002 through execution of the judgment and decree dated 12.11.2002 and once the execution petition was filed, accordingly, the respondent had also filed reply thereto treating the same as an execution petition and not the application under Section 26 of the HMA.

Bare perusal of the application moved by the appellant before the Matrimonial Court would show that not only the same is as per the format of execution petition, but the same also clearly demonstrates that appellant was trying to enforce the terms and conditions of the MOU considering the same as part and parcel of the judgment dated 12.11.2002 by seeking the assistance of the executing court by issuing warrants of arrest and detention against the respondent/JD for violating the terms and conditions of MOU and its addendum. For better appreciation of this point in controversy, the para 10 of the execution petition filed by the appellant is reproduced as under:- 10

In what manner of Courts assistance is sought

By issuing warrant of arrest and detention against the JD for violating the terms and conditions of M.O.U. Ex. P-1 and addendum.

There cannot be any dispute with the legal proposition as advanced by the counsel for the appellant that it is not the format or the nomenclature but the substance of the application which should be seen for examining as to what was the real intendment of the party moving such an application. There may be circumstances where the parties may camouflage the real nature of transaction by using clever phraseology and it is in such cases not the form but the substance of the transaction that matters as the nomenclature used may not be decisive or conclusive. But here is a case where the format and substance of the execution petition both would show that the same was not only labeled as an execution petition but in fact the appellant clearly intended to enforce the MOU considering the same as a part of the judgment and decree dated 12.11.2002 by seeking warrants of arrest and detention against the JD/respondent. The said principle can be made applicable only in a case where not only the parties to the lis but also the court trying such an application clearly knows as to what relief has been sought by the party moving an application and what is the basis for the same. The opposite party must also know as to in what context he has to submit his reply in opposition to the application moved by the other party. In the present case, there cannot be any dispute that the respondent had also given the reply considering the said application of the appellant as an execution petition and accordingly, the decision of the court is also on the same lines whereby the execution petition filed by the appellant was dismissed. Had the said application been under Section 26 of the Hindu Marriage Act, not only the mere reference to the terms of MOU, but also the appellant would have spelt out detailed reasons justifying the grant of custody of the child for a period of 30 days in fulfillment of clause 7 of the memorandum of understanding. Such assertions on the part of the petitioner would also have afforded due opportunity to the respondent/JD to urge such grounds and only then there could have been proper appreciation by the court after taking into consideration the rival contentions of the parties to decide such application of the appellant/petitioner moved under Section 26 of the Hindu Marriage Act. Admittedly, nothing of this sort had happened before the matrimonial court, therefore, I do not find myself in agreement with the contention raised by the counsel for the appellant that the said execution application in substance was an application under Section 26 of the Hindu Marriage Act. The next contentious issue arising in the present appeal is as to whether the decision given by the High Court in contempt petition No. 402/2004 dated 03.09.2004 and upheld by the Hon?ble Supreme Court vide orders dated 02.01.2006 estopped the petitioner from taking his remedy under Section 26 of the Hindu Marriage Act due to the principles of res judicata as envisaged under Section 11 of the Code of Civil Procedure specially explanation 8 of the same. To deal with this issue Section 11 of CPC is reproduced as under:-

11. Res judicata.

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I- The expression ``former suit'` shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI- Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

[Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]

The principle of res judicata is founded on considerations of public policy and it is in the interest of the public at large that a finality should attach to the binding decisions pronounced by the courts of competent jurisdiction. It is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. Explanation 7 and 8 were added in Section 11 of CPC by way of 1976 Amendment to the CPC and with the insertion of explanation 8 even the decision of court of limited jurisdiction on a particular issue within the competence of such court would operate as res judicata in a subsequent suit notwithstanding the lack of competence of the Court to try the subsequent suit. Thus, by this explanation 8 of S. 11 CPC the requirement of competence of previous court to try the subsequent suit, which is a condition of limitation engrafted in the general rule of res judicata provided in CPC by Section 11 has been done away with and therefore, the explanation practically has been given a place of a substantive provision based on this explanation 8 of Section 11 of CPC. Counsel appearing for the respondent strongly contended that the decision of the High Court in contempt petition filed by the appellant becomes res judicata as the contempt court has given clear finding so far the enforcement of MOU dated 28.10.2002 was concerned and as a result of such finding of contempt court the appellant was estopped from filing any application under Section 26 of the Hindu Marriage Act. The contention of the counsel for the respondent is although that the contempt court was not competent to try an application under Section 26 of the Hindu Marriage Act being a court of limited jurisdiction but with the incorporation of explanation 8 in Section 11 of CPC the decision given by the contempt court would create a roadblock in the way of the appellant to seek any remedy to enforce the terms and conditions of the MOU dated 28.10.2002. Before I dwell on this issue, it would be worthwhile to reproduce the operative paras 10 and 11 of the order dated 3.9.2004 of the contempt court:-

?10. The second aspect of the controversy is no less important. Even assuming that the order passed by this Court could be said to have incorporated the terms of the settlement between the parties, the terms so incorporated have to be read as a part and parcel of the order itself. No part of the settlement can then be excluded from consideration while examining the issue whether anyone of the parties is entitled to initiate any action for enforcement of the rights or obligation flowing from the Memorandum. A reading of para 17 of the memorandum leaves no manner of doubt, that the understanding between the parties envisaged that if anyone of the parties committed any default in the discharge of his/her obligations, the Memorandum of Understanding would become non-est and null and void in the eyes of law. The parties to the Memorandum then had the liberty to seek their respective remedies in the courts or appropriate jurisdiction without prejudice to their respective rights and contentions. In the present case, the husband alleges that the Respondent is not facilitating the exercise of the Petitioner?s right for temporary custody of the child and is, therefore, violating the terms of the understanding. Assuming that to be so, para 17 of the Memorandum would render non-est the arrangement leaving the petitioner free to agitate his rights for the custody of the child by agitating the matter in a Court of Competent jurisdiction. The contempt jurisdiction of this court cannot, in my opinion, provide a short cut for that purpose, not only because this Court had dismissed the revision petition but also because even if the settlement arrived at between the parties was to be read as a part of the direction of the Court, violation of the conditions of the settlement would have the effect of effacing the settlement as also the order which may have incorporated the same.

11. In the totality of the above circumstances, therefore, there is no room for taking any action against the respondent in the contempt jurisdiction of this court. This contempt petition is misconceived and is accordingly dismissed reserving liberty to the petitioner to seek such redress as may be otherwise open to him in law before the competent court in fresh proceedings to be instituted by him in that regard.?

From the above it is evident that the said contempt proceedings were initiated by the appellant/complainant complaining disobedience of the order passed by the High Court in Civil Court Revision No. 4/2008. The contention of the counsel for the petitioner before the contempt court was that he had withdrawn the civil revision petition No. 4/2008 based on the memorandum of settlement dated 28.10.2002, therefore, the Memorandum of Understanding became a part of the order of the revisional court and no term thereof could be violated by the respondent denying the custody of the child to the petitioner for a period of 30 days in terms of clause 7 of the memorandum of understanding. It is in this backdrop that the contempt court was confronted with the question as to whether the revisional court had passed any order, disobedience of which could possibly tantamount to contempt. The contempt court came to the conclusion that since the revision petition was dismissed as withdrawn, therefore, no part of the order of the revisional court could be taken to have been construed or understood in the sense of interpreting the said MOU or according any finality to the terms of the MOU. In the alternative, the contempt court also said that clause 17 of the MOU renders the agreement/said MOU non est in the case of non-compliance of any of the terms and conditions as the said clause leaves the parties to agitate their rights in a court of competent jurisdiction. As already stated above, the doctrine of res judicata or constructive res judicata is founded on a public policy and therefore, the same is predominantly a principle of equity, good conscious and justice. Once an issue of fact has been judicially determined finally between the parties by a court of competent jurisdiction and if the same issue comes directly in question in subsequent proceedings between the same parties, then the persons cannot be allowed to raise the same question which already stands determined by the competent court. The principle of res judicata thus speaks of the doctrine of estoppel as it debar such a party to reagitate the same issue on which the competent court of jurisdiction has given a decision pending between the same parties. In the facts of the present case both the parties are the same before the contempt court as well as before the matrimonial court and with the insertion of explanation 8 to Section 11 of CPC the requirement of competence of the earlier court to try the subsequent suit would be of no consequence as the decision of a court of limited jurisdiction on an issue would also operate as res judicata in a subsequent suit. But the crucial question here would be whether the court exercising contempt jurisdiction which is a quasi criminal jurisdiction can be said to be a court of limited jurisdiction debaring or estopping the party to rake up an issue in subsequent proceedings once decided by the competent court. The answer in my view is emphatic ?No?. A contempt of court is an offence of a criminal character and a contempt proceeding is often described as a quasi criminal proceeding because it results in punishment of the contemnor. The contempt jurisdiction enables the Court to ensure proper administration of justice and maintenance of the rule of law. It is meant to ensure that the courts are able to discharge their functions properly free from any sorts of attacks on the system of administration of justice or on Judicial Officers who administer it and to prevent willful defiance of orders of the court or undertakings given to it. Before any contempt court the limited issue for decision is violation or disobedience of any order of the court and no order of the contempt court can come in the way of the parties to approach the court of competent jurisdiction to seek any substantive relief on which earlier the contempt court had taken a decision one way or the other. The finding if any given by the contempt court cannot come in the way of the Civil Court to finally give a decision on any pending issue, dispute of which arise between the parties before a competent court of jurisdiction. Therefore, based on the above discussion, the contention raised by the counsel for the respondent that the remedy of the petitioner to approach the court under Section 26 of the Hindu Marriage Act is hit by the principles of res judicata as envisaged in explanation 8 of Section 11 of CPC is rejected.

The related issue as to whether the observations of the Contempt court are an obiter dicta or forms part of ratio of the decision and also whether the order of the Supreme Court has the effect of giving finality to the order of the High Court, need not be deliberated, as the findings of the contempt court and of the order passed by the Supreme Court would not come in the way of the petitioner to reagitate his rights flowing from the terms of the memorandum of understanding as well as under Section 26 of the Hindu Marriage Act.

The next important issue to be deliberated in the present case is as to whether clause 17 of the memorandum of understanding has the effect of rendering clause 7 of the MOU or other clauses as meaningless and inconsequential. The contention raised by the counsel for the petitioner is that clause 7 which gives right to the appellant for temporary custody of the child has an overriding effect over clause 17 of the MOU and the later clause cannot put any kind of embargo or fetters on the rights of the appellant to seek enforcement of clause 7 of MOU. The counsel also laid much stress on his argument that the earlier clause in any agreement must override the later clause if in conflict with the earlier clause. Before giving any decision on this issue it would be appropriate to reproduce the relevant clauses of the MOU dated 28.10.2002 as under:-

?7. That the parties hereto have agreed that the custody of the female child `Hemangi ?shall permanently rest with the Second Party. However, the First Party shall have the right to have temporary custody of the child once in each calendar year for a period of thirty days during school vacation of the said child irrespective of the place of posting/residence of the Second Party. Xxxxxxx

14. That the parties to this Memorandum of Understanding undertake to sign the necessary petitions/applications/ undertakings and swear affidavits in support of the petitions/applications to be moved as mentioned in this deed and such other petitions that may be required though not mentioned herein to give effect to the terms of understanding as recorded in the present Memorandum of Understanding.

Xxxxxxxxxxxxxxxxx

17. That in case the terms and conditions recorded in the present MOU are not given effect to and/or implemented and/ or any of the parties hereto fails to carry out his/her obligation(s) as undertaken herein or fails to appear before any court of law to give effect to the present MOU, the present MOU shall be deemed to become non-est and null and void in the eyes of law and the parties hereto would be at liberty to seek their respective remedies in courts of appropriate jurisdictions without any prejudice to their respective rights and contentions.?

A perusal of the aforesaid terms of the memorandum of understanding would show that the parties were in serious litigation and as many as six cases were pending inter se as on the date of execution of the said memorandum of understanding which was executed to put at rest their hostility and bitterness and the entire litigation. For the said reason, the parties had agreed to resolve their issues with the intervention of common friends and well- wishers and it is an undeniable fact that acting on the terms of the said MOU the parties had withdrawn their respective cases. The parties also obtained divorce by filing a joint petition as envisaged under Section 13- B (1) and ( 2) of the Hindu Marriage Act and vide judgment and decree dated 12.11.2002 of the ld. Matrimonial Court the marriage of the parties was dissolved by mutual consent. Joint statement of the parties was recorded by the matrimonial court and in their joint statement the MOU dated 28.10.2002 and the addendum to the MOU dated 7.11.2002 were exhibited as P-1 and P-2 respectively. The relevant portion of the Joint Statement is referred as under:- ?We have mutually settled all our claims regarding stridhan articles, permanent alimony and maintenance ?past, present and future amicably as per the terms and conditions mentioned in MOU dated 28.10.2002. The same is Ex.P1 the Addendum dated 7.11.2002 to it is Ex.P2. Now we have no pending claims of any nature whatsoever against each other arising out of our marriage. We undertake to abide by the terms and conditions of Ex P1 to P2. We undertake not to file any civil/criminal litigation against each other and the family members of each other.?

As per clause 7 of the MOU both the parties had agreed that the custody of the female child Hemangi shall permanently rest with the second party i.e. the wife and temporary custody of the child once in each calendar year for a period of 30 days during school vacation of the said child irrespective of the place of posting/residence of the wife shall rest with the first party. Clauses 8, 9 and 10 have been added to clarify as to how and in what manner the custody of the child has to be handed over to the father and then to be restored back to the mother/wife including the payment of maintenance amount to be exclusively raised for the overall up bringing of the said child. All these clauses clearly demonstrate that there was a great deal of exercise undertaken by the parties to decide the issue of the custody of the child and thereafter a conscious decision was taken to give permanent custody of the child to the mother and a temporary custody of the child for a period of 30 days to the father. It would be apparent that the issue of the custody of the child is a voluntary decision of the parties and therefore, it cannot be said that the same was not meant to be adhered to or could be easily flouted by any of the parties.

Clause 17 of the MOU is not a happily worded clause. By taking a plain simple meaning of the said clause it would show that the same was inserted primarily with a view to see that the terms and conditions of the MOU were fully adhered to by the parties. It is only in a case where the parties failed to give effect to the terms and conditions as recorded in the MOU, the entire MOU could be rendered to have become non est. Clause 17 of the MOU starts with by saying that :

?In case the terms and conditions recorded in the present MOU are not given effect to and/or implemented and/or any of the parties hereto fails to carry out his/her obligations(s) as undertaken herein or fails to appear before any court of law to give effect to the present MOU, the present MOU shall be deemed to become non-est and null and void in the eyes of law and the parties hereto would be at liberty to seek their respective remedies in courts of appropriate jurisdictions without any prejudice to their respective rights and contentions.?

The aforesaid language of clause 17 would lead to only one conclusion that the said clause was inserted in the MOU apprehending that ultimately if the parties may not agree or act upon the terms and conditions, then in such a case the MOU shall be deemed to become non-est and null and void in the eyes of law. In the present case it cannot be stated that the terms of MOU have not been implemented or acted upon by the parties. On the contrary most of the terms have already been acted upon by the parties pursuant to which the parties have also withdrawn their respective cases and it is only clause 7 and other related clauses of MOU which have not been adhered to by the respondent as per the petitioner. When the parties have complied with and adhered to the remaining terms and conditions of the MOU, therefore, Clause 17 of the MOU so far it renders the MOU as non est and null and void in the eyes of law cannot come to the rescue of the respondent and the said term so far it renders the MOU non est automatically becomes otiose and meaningless.

Based on the above discussion, I am of the view that every term of the MOU has to be given full effect and meaning including, clause 17 which could have been operational only in the event of parties not at all implementing or acting on the terms of the MOU which, is not a case here. I may also add here that in most of the matrimonial cases the parties do enter into such compromises and based on such compromises the parties settle all their inter se disputes and withdraw their respective cases. There is nothing unlawful and improper for the parties to enter into such an arrangement and unless such compromise is vitiated by fraud, misrepresentation or is unconscionable or is against the spirit of any law, the courts give full legitimacy to such compromise and acting on the same pass compromise/consent decrees or permit the parties to withdraw their respective cases. A judgment by consent puts an end to the entire lis between the parties unlike a judgment after contest which is open to challenge before the higher courts. The courts, therefore, must lean in favour of such compromises and the consent decrees based on such compromises unless such a compromise or consent decree is vitiated by fraud, coercion, misrepresentation or the same being in violation of any law or any enactment. In the present case the MOU and addenda were duly signed, executed and accepted by the respective parties as would be reflective from their joint statement of respective parties in the matrimonial court and therefore, essentially the MOU was the basis for the grant of decree of divorce by mutual consent. It is no doubt true that for granting a decree under Section 13-B (1) and (2) the parties approaching the court must jointly file a petition for divorce before the court and shall also have to satisfy three essential conditions i.e.

(i) They have been living separately for a period of

one year,

(ii) They have not been able to live together, and

(iii) They have mutually agreed that marriage should be dissolved.

But it cannot be ignored or overlooked that the parties in the present case had approached to convert their existing divorce petition into mutual consent petition after their decision to resolve all their disputes in terms of memorandum of understanding dated 28.10.2002 and addendum dated 7.11.2002. In my view, therefore, the complete legitimacy has to be attached to the said MOU dated 28.10.2002 and addendum dated 7.11.2002 based on which the petitioner had withdrawn his revision petition and based on which alone the marriage of the parties was dissolved by the grant of decree of divorce dated 12.11.2002. Now in view of the above position what remedy the petitioner should resort to seek enforcement of clause 7 of MOU against the respondent who as per the petitioner has flouted the said remedy to hand over the custody of the child for a period of 30 days in a year. As already discussed above, at the first instance the respondent should have complied with the said clause 7 of the MOU by handing over the custody of the child for a period of 30 days in strict adherence to the terms of the settlement as agreed upon between the parties. Now since admittedly the respondent is in defiance of the said clause 7 of the said MOU and already the petitioner has lost in the contempt proceedings, now the issue is whether the petitioner be left remediless or is still entitled to seek some legal remedy and if yes then what legal remedy is left to the petitioner. The ld. Counsel for the petitioner has relied upon the judgment in the case of (Kode) Atachayya Vs. Kosaraju Narahari, AIR 1929 Mad 81; Kumar V. Jahgirdar Vs. Chetana K. Ramatheertha, AIR 2001SC 2179; Chandrakala Menon(Mrs.) and Anr. Vs. Vipin Menon(Cap.) and Anr.-1993(41) BLJR 536; Smt. Radha Alias Parimala Vs. N. Rangappa, AIR 2004 Kant 299 and Radhika Vickram Tikkoo Vs. Vikram Ravi Tikoo Senior-60(1995) DLT 666 to support his argument that for proper growth, development and upkeep of the child, custody of the child with the father is no less important than the custody of the child with the mother. There can be no dispute to this settled legal position subject, however, to the condition that the paramount consideration will always be the welfare of the child. Even the mutual terms of settlement with regard to temporary or permanent custody of the child cannot defeat the right of the child to remain in custody whether temporary or permanent with that parent who can better maintain and take care of the child. The silver lining , therefore, would always be the paramount consideration and supremacy of welfare of the child and every other thing, even a mutual settlement cannot come in the way of the said sacrosanct and well established principle with regard to the custody of the child. The situation always can vary and change to test the competence, stature, financial and otherwise, personal habits, marital status, surrounding environment, educational avenues and other such circumstances which can certainly weigh and influence the decision of the competent court at the time of taking a decision on the temporary or permanent custody of the child. In my view, no settlement can create any sort of fetter, hindrance or obstruction in the way of competent court to take a fresh decision after taking into consideration the welfare of the child, even at the cost of ignoring mutual settlement of the parties. The basic unit of society is the family and marriage creates the most important relation in life. During infancy and impressionable age, the care and warmth of both the parents are required for the welfare of the child. A man in his social capacity may be reckless or eccentric in certain respects and others may even develop a considerable distaste for his company with some justification but all that is a far cry from unfitness to have the natural solace of the company of one?s own children or for the duty of bringing them up in proper manner. Many people have shortcomings but that does not imply that they are less deserving to have the solace and custody of their children. No decision by any court can restore the broken home or give a child the care and protection of both dutiful parents. No court welcomes such problems or feels at ease in deciding them. But there must be, a decision and it cannot be one repugnant to normal concepts of family and marriage. Also, amongst the many and multifarious duties that a Judge in Chambers performs by far the most onerous duties cast upon him is the duty to decide the issue of custody of the child. While doing so he should place himself in the position of a wise father and be not tired of the worries which may be occasioned to him in selecting a guardian best fitted to assure the welfare of a minor and thereafter guide and control the guardian to ensure the welfare of the ward. In this regard in Lekha v. P. Anil Kumar,(2006) 13 SCC 555, the Hon?ble Apex Court observed as under:

17. In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka this Court held as under:

?17. The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor?s interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.?

No doubt, as already discussed above, the parties must respect the terms of the settlement even with regard to the terms in the compromise dealing with the custody, temporary or permanent, visitation rights, maintenance, etc and the compromise agreement and it is only on the failure of the party due to changed circumstances that the fresh decision can be invited from the court to decide the custody or visitatioin rights of the minor child. In the facts of the present case the respondent has raised certain issues which as per the respondent disentitles the petitioner to claim even temporary custody of the child such as re-marriage of the petitioner, which fact as per the respondent has been suppressed by the petitioner and also registration of criminal case by the Myanmar Police under the Prostitution Suppression Special Act, rejection of his visa to Myamar after having been prosecuted under the said Act , continuation of studies of the child in Jakarta, Indonasia and therefore, in my considered view the remedy of the petitioner lies to approach the matrimonial court afresh by filing an application under Section 26 of the Hindu Marriage Act disclosing clear case for his entitlement to have the custody of the child for the said period of 30 days or even for a longer period and needless to state that such application of the petitioner shall have to be decided by the matrimonial court without being influenced by the observations made by the High Court while deciding the contempt petition.

Counsel for the respondent challenged the very maintainability of the present appeal and submitted that since the appellant filed execution petition and same is not an application under Section 26 of HMA and also because the decree does not include the terms in the MOU regarding the custody of the child, therefore, the present appeal is not maintainable. In order to go deep in to this issue it would be worthwhile to reproduce Section 28 HMA: ?28. Enforcement of, and appeal from, decrees and orders.- All decrees and orders made by the court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the court made in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force.

Provided that there shall be no appeal on the subject of costs only.? Bare reading of the said provision reveals that only decrees and orders which have been made by the court in exercise of its civil jurisdiction can be appealed from. Clearly, as discussed herein above, no order as regards the custody of the child was made by the trial court, therefore, the ingredients of section 28 HMA are not met and thus, the present appeal is not maintainable. In view of the above discussion, the appeal is dismissed as not maintainable.

December 20, 2008 KAILASH GAMBHIR JUDGE

MAT APP No. 38/2006

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