$~ * % + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:
03. d December, 2018 REVIEW PET. 263/2016 in CONT.CAS(C) 321/2015 V S Through: Ms. Geeta Luthra, Senior Advocate with Mr. Vijay Gupta, Mr. Prateek Yadav, Advocates .....
... Petitionerversus Through: Mr. Deepak Anand, Ms. Hemlata Rawat, Mr. Aayushman, Advocates along with respondent in person. ..... Respondent CORAM: HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT1 The petitioner and the respondent were married according to Hindu rites and ceremonies on 11th July, 2008. The parties were blessed with a son on 11th July, 2009. The parties separated on 08th June, 2010.
2. Dissolution of marriage by mutual consent 2.1 On 17th October, 2011, the parties filed a joint petition, HMA No.1035/2011 for dissolution of their marriage by mutual consent under Section 13B of the Hindu Marriage Act, 1955 on the following terms: (i) The respondent shall pay Rs.25,00,000/- to the petitioner in full and final settlement of all her claims in respect of dowry, stridhan articles, maintenance-past, present and future and permanent alimony. Rev.Pet.263/2016 in Cont.Cas321/2015 Page 1 of 18 (ii) The petitioner shall handover the custody of minor child Master Vaibhav Sabharwal to the respondent at the time of the joint statement in the second motion and petitioner shall have the visitation rights. (iii) The petitioner shall withdraw the proceedings pending before the Family Court under Domestic Violence Act; and the complaint filed against respondent with CAW Cell. (iv) The petitioner shall withdraw the claim petition under Section 125 Cr.P.C. and petition under Section 18 Hindu Adoption and Maintenance Act, 1956. (v) The parties shall have no right, title, claim or interest against each other. (vi) The parties undertake not to file any complaint/case/suit against each other or their respective family members before any Court or authority in respect of the matrimonial relations or any other claim arising out of it. 2.2 On 17th October, 2011, the joint statement of the parties was recorded by the District Judge in divorce petition which is reproduced hereunder:-
"“We got married on 11.07.2008 at Delhi, according to the Hindu rites and rituals. The petitioner No.1 has placed on record his affidavit Ex P-1 which bears his signatures at point A and B. The petitioner No.2 has placed on record her affidavit Ex.P-2 which bears her signatures at point C and D. The photocopy of the election identity card of petitioner no.1 and petitioner No.2 are Ex P-3 and Ex.P-4 respectively (Originals seen and returned). The marriage was duly consummated and one male child, namely, Master Vaibhav was born from the wedlock on 11.07.2009. Rev.Pet.263/2016 in Cont.Cas321/2015 Page 2 of 18 We both have resolved all our claims/disputes amicably We have been living separately since 08.06.2010 and have not been able to live together since then. There is no possibility of our living together again as husband and wife. We have accordingly decided to dissolve our marriage by mutual consent. Our consent for divorce by mutual consent has not been obtained by force, fraud or undue influence. There is no collusion between us in filing of the present petition. before the Court. As per the settlement, I (petitioner No.2) have agreed to pay a total sum of Rs.25,00,000/- (Rupees twenty five lacs only) to the petitioner No.1 towards full and final settlement of all her claims in respect of dowry/stridhan articles, maintenance-past, present and future and permanent alimony. Out of the said total sum of Rs.25,00,000/-(Rupees twenty five lacs only), a sum of Rs.12,00,000/-(Rupees twelve lacs only)has already been paid by me (petitioner No.2) to the petitioner No.1 at the time of withdrawal of the petition (sic) under Section 156(3) Cr.P.C. The same amount (Rs.12,00,000/-) shall act as consideration for the first motion of the mutual petition for divorce. The balance amount of Rs.13,00,000/-(Rupees thirteen lacs only) shall be paid by me (petitioner No.2) to the petitioner No.1 at the time of recording of our joint-statement in the second motion. I (petitioner No.1) undertake that after receipt of the said total sum of Rs.25,00,000/- (Rupees twenty five lacs only) from the petitioner No.2, no claim of any kind whatsoever shall be left against the petitioner No.2 and his family members qua the marriage. I (petitioner No.2) have already handed over the articles/stridhan of the petitioner No.1 to the petitioner No.1. However, if small articles of the petitioner No.1 remain in the matrimonial home even after today, the petitioner (sic) No.2 shall hand over the same to the petitioner No.1. It is, however, made clear that no article of value remains to be delivered. I (petitioner No.2) have also handed over the papers with thumb impressions of the petitioner No.1 to the petitioner No.1. I (petitioner No.1) shall withdraw the proceedings under the Domestic Violence Act and the complaint from the CAW Rev.Pet.263/2016 in Cont.Cas321/2015 Page 3 of 18 Cell filed against the petitioner No.2 and his family members at the earliest. I (petitioner No.1) shall also withdraw the petition under Section 125 Cr.P.C and the petition under Section 18 of Hindu Adoption and Maintenance Act filed against the petitioner No.2 before the next date of hearing i.e. 02.11.2011. It has been agreed between us that the custody of our minor son, namely, Master Vaibhav shall remain with the petitioner No.1/wife till the date of second motion and the petitioner No.2/husband shall have the visitation rights once in a month on any Sunday outside the premises of petitioner No.1 in a public place for 3 to 4 hours within that period. At the time of recording of joint-statement in the second motion, the petitioner No.1/wife shall hand over the custody of the minor son, namely, Master Vaibhav to the petitioner No.2/husband and thereafter, the permanent custody of the minor son, namely, Master Vaibhav shall remain with the petitioner No.2/husband only and the petitioner No.1/wife being the natural mother shall also enjoy the right of visitation accordingly. We shall have no right, title, claim or interest of any nature whatsoever against each other in the properties in our possession or acquired/obtained in future after the second motion. We both undertake to abide by the terms and conditions as mentioned in the joint-petition Ex.P-A as well as our joint- statement recorded today in the Court. the further undertake cases/complaints, if any, filed against each other and not to file any complaint/case/suit against each other or our respective family members in future before any Court of law or authority in respect to our matrimonial relations or any other claim arising out of it. to withdraw all We both Present petition has been signed and verified by both of us and the same is supported by our affidavits. Contents of the petition are correct. We pray that our petition under Section 13B (1) of the H.M. Act may be allowed.” (Emphasis Supplied) Rev.Pet.263/2016 in Cont.Cas321/2015 Page 4 of 18 2.3 On 17th October, 2011, the District Judge allowed the first motion and passed the following order:-
"I heard the submissions of ld. Counsel for both the “1. The present petition under Section 13B(1) of the Hindu Marriage Act, 1955 (for short, the Act) has been filed by the
... Petitioners for the dissolution of their marriage by way of a decree of divorce through mutual consent.
2. Efforts for reconciliation made between the parties proved futile and consequently, a joint-statement of both the parties has been recorded separately.
3.
... Petitioners and have also perused the material on record.
4. From the averments made in the petition supported by affidavits of both the parties as well as the joint-statement of the parties recorded on oath, it is evident that they were married on 11.07.2008 at Delhi, according to the Hindu rites and rituals. The marriage was duly consummated and one male child, namely, Master Vaibhav was born from the wedlock on 11.07.2009. The
... Petitioners have been living separately since 08.06.2010 and there has been no cohabitation between them since then. There is no possibility of their living together as husband and wife and the marriage has broken down irretrievably beyond repair. Thus, they have mutually agreed that their marriage may be dissolved.
5. The record, also, reveals that the parties have settled all their claims and disputes amicably in respect of dowry/stridhan articles, maintenance (past, present and future) and permanent alimony before the Court. The
... Petitioners have undertaken to abide by the terms and conditions as mentioned in the joint- petition Ex. P-A as well as their joint-statement recorded today in the Court.
6. From the joint-statement of the
... Petitioners, I am satisfied that their consent, for divorce by mutual consent, is free from force, fraud or undue influence and there is no collusion between them in filing the present petition.
7. I am, therefore, satisfied that the requirements of petition under Section 13B(1) of the Act, have been duly satisfied in this case. Hence, the same is allowed.
8. File be consigned to the record room.” (Emphasis supplied) Rev.Pet.263/2016 in Cont.Cas321/2015 Page 5 of 18 2.4 On 07th February, 2013, the parties filed the second motion HMA No.83/2013 before the District Judge and the joint statement of the parties was recorded by the District Judge which is reproduced hereunder:-
"till 08.06.2010 and “We got married at Delhi on 11.07.2008 according to the Hindu rites and ceremonies. The marriage was duly consummated and one male child master Vaibhav was born on 11.07.2009 from the wedlock. We lived together as husband and wife thereafter, there has been no cohabitation between us after 08.06.2010. We moved a joint petition for dissolution of marriage by mutual consent and our first motion was accepted on 17.10.2011 by this court. Thereafter, also, we have reconsidered our decision. We have failed to stay together as husband & wife and have agreed to dissolve our marriage. We are firm on our decision and accordingly filed the present joint petition Ex.P1 which is supported by our affidavits Ex.P2 and Ex.P3. The affidavit Ex.P2 bears signatures of
... PetitionerNo.1 at points A and B and the affidavit Ex.P3 bears signature of
... PetitionerNo.2 at point C and D. The copy of Voter ID cards of
... Petitioners No.1 & 2 are respectively Mark-A and Mark-B. We have resolved / settled all our disputes and differences amicably for full and final settlement amount of Rs.25 lacs and on payment of Rs.25 lacs, the petitioner no.1 shall be left with no claim regarding stridhan, dowry articles, permanent alimony, maintenance- past, and future. As per the settlement, out of the settled amount, I,
... PetitionerNo.2, have already paid Rs.12 lacs to the petitioner no.1 at the time of first motion. I am depositing a sum of Rs.13 lacs today in the court. The
... Petitioner No.1 shall be entitled to receive the said amount after quashing of FIR No.
u/s 498A /4
IPC PS SPUW&C, Nanakpura, Delhi. I,
No.1, undertake to withdraw my petition under the Domestic Violence Act pending in the court of Ms. Vandana, MM, Mahila Court, Rohini Court, Delhi and my contempt petition pending in Hon’ble High Court of Delhi within a month. I undertake to cooperate with the petitioner Rev.Pet.263/2016 in Cont.Cas321/2015 Page 6 of 18 no.2 in quashing of the said FIR before the Hon’ble High Court of Delhi. Both the
... Petitioners have agreed that the custody of the minor child shall remain with
... PetitionerNo.2 and
... PetitionerNo.1 is handing over the custody of the child to the petitioner no.2 today in the court at 2.30 PM. However, the
... PetitionerNo.1 shall have visitation rights to meet the child once a month and additionally as mutually agreed by both the parties. Both the
... Petitioners shall have no right, title, claim or interest of any nature whatsoever against each other in the properties in their possession or acquired/obtained in future. The petitioners shall withdraw all other pending litigations, if any, against each other or their respective family members, if any, forthwith and have also agreed not to file any proceedings against each other in future with respect to the present matrimonial dispute. There is no force, coercion, undue pressure from any quarter for filing the present petition. There is no collusion between us in filing the present petition. We pray that our petition be allowed.” (Emphasis supplied) 2.5 On 07th February, 2013, the District Judge allowed the second motion and dissolved the marriage by a decree of divorce. The order dated 07th February, 2013 is reproduced hereunder: “Petition presented on this 24th Day of January 2013. This petition coming on this 7th Day of February, 2013 for final disposal before me in the presence of
... PetitionerNo.1 with Sh. Vijay Gupta, Advocate, and
... PetitionerNo.2 with Ms. Vaishali, Advocate. It is ordered that the marriage between the parties i.e.
... PetitionerNo.1 and
... PetitionerNo.2 is hereby dissolved by a decree of divorce by mutual consent under section 13(B)(2) of the Hindu Marriage Act, 1955 with effect from today. Given under my hand and the seal of the court on this 7th Day of February 2013.” Rev.Pet.263/2016 in Cont.Cas321/2015 Page 7 of 18 3. HAM No.2/2012 under Section 18 of the Hindu Adoption and Maintenance Act, 1956 3.1. On 24th January, 2013, both the parties recorded their joint statement before the Family Court, Rohini in HAM No.02/2012 under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 which was disposed of as compromised. 3.2. The joint statement is reproduced hereunder:-
"“We have resolved our disputes regarding maintenance and custody of the child amicably. We have now decided to file second motion under Section 13B(2) of the H.M. Act for dissolution of our marriage. I, Saurabh Sabharwal/Respondent, will deposit a sum of Rs.13 lacs in the shape of Demand Draft favouring Smt. Vibha Gulati/petitioner and the said Draft shall be released to her at the time of quashing of FIR. I, Vibha Gulati Sabharwal/Petitioner, shall handover the custody of the minor child to Sh. Saurabh Sabharwal at the time of recording of our joint-statement in the second motion. We shall remain bound by our joint-statement made today. We pray that the present petition be disposed of as compromised.” (Emphasis supplied) 3.3. The order dated 24th January, 2013 is reproduced hereunder:-
"“Both the parties have resolved their disputes regarding maintenance and custody of the child amicably and have decided to file second motion for dissolution of their marriage. A joint-statement of the parties to this effect has been recorded separately. The parties shall remain bound by the joint- statement made by them today in the Court. In view of the submissions made and joint-statement of the parties recorded today, the present petition is disposed of as compromised. File be consigned to record room.” (Emphasis supplied) Rev.Pet.263/2016 in Cont.Cas321/2015 Page 8 of 18 4. Case No.100/2012 under Section 125 Cr.P.C. 4.1. On 24th January, 2013, both the parties recorded their joint statement before the Family Courts, Rohini in Case No.100/2012 under Section 125, Cr.P.C which was disposed of as compromised. 4.2. The joint statement is reproduced hereunder:-
"“We have resolved our disputes regarding maintenance and custody of the child amicably. We have now decided to file second motion under Section 13B(2) of the H.M. Act for dissolution of our marriage. I, Saurabh Sabharwal/Respondent, will deposit a sum of Rs.13 lacs in the shape of Demand Draft favouring Smt. Vibha Gulati/petitioner and the said Draft shall be released to her at the time of quashing of FIR. I, Vibha Gulati Sabharwal/Petitioner, shall handover the custody of the minor child to Sh. Saurabh Sabharwal at the time of recording of our joint-statement in the second motion. We shall remain bound by our joint-statement made today. We pray that the present petition be disposed of as compromised.” (Emphasis supplied) 4.3. The order dated 24th January, 2013 passed by the Family Court, Rohini disposing of the petition as comprised is reproduced hereunder:-
"“Both the parties have resolved their disputes regarding maintenance and custody of the child amicably and have decided to file second motion for dissolution of their marriage. A joint-statement of the parties to this effect has been recorded separately. The parties shall remain bound by the joint- statement made by them today in the Court. In view of the submissions made and joint-statement of the parties recorded today, the present petition is disposed of as compromised. File be consigned to record room.” 5. On 04th October, 2014, the respondent issued a notice to the petitioner (Emphasis supplied) Rev.Pet.263/2016 in Cont.Cas321/2015 Page 9 of 18 in which the respondent notified that the petitioner had agreed to contribute for the maintenance of the minor child. The relevant portion of the notice dated 04th October, 2014 is reproduced hereunder:-
"Under the instructions and on behalf of my client Dr. Saurabh Sabharwal S/o Shri. suved prakash arya F/o master vaibhav sabharwal R/o A-94, majlis (sic) park, delhi-110033, I hereby serve you with the following legal notice.
1) That my client got mutual consent divorce on 07/02/2013 from the court of Shri kamlesh kumar, Principal Judge, rohini Courts.
2) That as per mutual consent agreement the custody of master vaibhav sabharwal was granted to my client on 07/02/2013.
3) That you addresses mutually agreed to contribute equally for the maintenance of master vaibhav sabharwal s/o Dr saurabh sabharwal who is in the custody of my client.
4) That to the great anguish, my client was shocked that you addresses never bothered about the welfare/development /maintenance of the child and even is not bothered about his future.
5) That my client herein wanted to remind you of your legal, moral and social responsibility of contributing equally for the welfare of the child master vaibhav sabharwal.
6) That the negligent, unfriendly, prejudiced behaviour actions and in actions of you the addresses which are very clear and blatant, as well as breach of promise from trust and reposed confidence as ensued on my client.
7) professional arena and publically post divorce.
8) litigations, only tried to remind you the act of you addresses. I through this notice call upon you to immediately reply for your said activity within a period of 15 days, failing which my client will be constraint to initiate legal proceedings against you in the court of law having competent jurisdiction. In case of litigations all the expenses shall be borne (sic) by you since the That you have been regularly defaming my client in Despite of all this my client does not choose going into Rev.Pet.263/2016 in Cont.Cas321/2015 Page 10 of 18 6. litigations would be for the welfare of the child master vaibhav sabharwal.” The respondent issued a reminder notice dated 20th October, 2014 in which he reiterated paras 1 to 8 of the notice dated 04th October, 2014.
7. In October, 2014, the respondent instituted a petition under Section 125 Cr.P.C. on behalf of his minor son seeking minimum maintenance of Rs.30,000/- per month from the petitioner.
8. On 15th April, 2015, the petitioner instituted this contempt petition against the respondent for breach of the undertaking dated 17th October, 2011 given by the respondent to the Family Court and the order dated 07th February, 2013 passed by the Family Court. According to the petitioner, the parties settled all their claims relating to their matrimonial relationship as well as custody and maintenance of the child and the respondent had taken the permanent custody of the minor child along with the responsibility of upbringing the child and the respondent violated the undertaking by filing an application for maintenance under Section 125 Cr.P.C. The petitioner compromised the proceedings under Protection of Women from Domestic Violence Act, 2005, Section 125 Cr.P.C. as well as Section 18 of the Hindu Adoption and Maintenance Act by accepting a meager amount of Rs.25,00,000/- in order to buy peace and put an end to all the litigations. It is inconceivable that the petitioner would give up her claim of custody and maintenance of the child and keep the maintenance of the child issue open by accepting a meager amount of Rs.25,00,000/-. According to the petitioner, the permanent custody of the minor child Master Vaibhav was given to the respondent who took the entire responsibility of upbringing the child and the respondent has filed the petition under Section 125 Cr.P.C. in Rev.Pet.263/2016 in Cont.Cas321/2015 Page 11 of 18 violation of the undertakings given by the respondent to the Family Court as well as orders passed by the Family Court.
9. On 20th April, 2015, this Court issued notice to the respondent with respect to the petitioner’s grievance relating to the refusal of the visitation rights by the respondent to the petitioner.
10. On 14th August, 2015, the petitioner filed an application for modification of the order dated 20th April, 2015 for taking cognizance of the contempt by the respondent by breach of the undertakings and the orders of the Family Courts.
11. Vide order dated 17th August, 2015, this Court issued notice of CM No.15608/2015 to the respondent and stayed the maintenance proceedings under Section 125 Cr.P.C. filed by the respondent.
12. On 01st March, 2016, this Court partly heard the arguments of both the parties and listed the matter for further hearing on 02nd March, 2016.
13. On 02nd March, 2016, the respondent undertook to withdraw the maintenance case No.300/2014 under Section 125 Cr.P.C. within two weeks and not to file a similar petition for compensation. The undertaking of the respondent was accepted in pursuance to which the petitioner did not press the contempt petition. The contempt petition and the pending applications were disposed of in view of the undertaking of the respondent. The order dated 02nd March, 2016 is reproduced hereunder:-
"“1. Both the parties are present with their respective The respondent undertakes counsels.
2. the Case No.300/2014 titled Master Vaibhav Sabharwal v. Dr. Vibha Gulati pending before Sh. Girish Kathpalia, Principal Judge, Family Courts, Rohini within a period of two weeks from today. The respondent further agrees not to file similar petition for to withdraw Rev.Pet.263/2016 in Cont.Cas321/2015 Page 12 of 18 In view of the undertaking of the respondent, learned claiming compensation for Master Vaibhav. The undertaking of the respondent is accepted.
3. counsel for petitioner does not press this petition.
4. of in view of the undertaking of the respondent.” The petition as well as pending application are disposed 14. The respondent challenged the order dated 02nd March, 2016 before the Division Bench by Contempt Appeal 4/2016 which was withdrawn on 29th April, 2016 with liberty to file an application for review/consequential order before this Court.
15. On 18th May, 2016, the respondent filed the Review Petition 263/2016 seeking review of the order dated 02nd March, 2016.
16. Learned counsel for the respondent urged at the time of hearing that Master Vaibhav has an absolute right to claim maintenance from both the parents which cannot be waived by either of the parents. It is further submitted that the respondent has not committed contempt of any undertaking or order of the Family Court. It is further submitted that the limited notice of visitation rights was issued to the respondent. It is further submitted that this Court made oral observations that the contempt was made out against the respondent whereupon respondent took the hasty decision to give an undertaking. It is further submitted that the respondent was misled by oral observations of this Court and, therefore, the undertaking was given on 02nd March, 2016. The respondent seeks permission to withdraw the undertaking given to this Court on 02nd March, 2016. It is further submitted that the contempt petition be decided on merits. The respondent also seeks restoration of Section 125 proceedings for maintenance of the minor child Master Vaibhav. Rev.Pet.263/2016 in Cont.Cas321/2015 Page 13 of 18 17. Learned senior counsel for the petitioner urged at the time of hearing that the contempt petition was heard on 01st March, 2016 when this Court observed that the respondent was prima facie guilty of contempt. According to the petitioner, this Court observed that if the respondent was ultimately held guilty of contempt, the respondent would suffer consequences of contempt apart from dismissal of the maintenance application whereupon the respondent sought time to think over. On 02nd March, 2016, the respondent present before this Court along with his counsel gave solemn undertaking to this Court to withdraw the maintenance application filed on behalf of the minor child within two weeks whereupon this Court accepted the undertaking and disposed of the contempt petition in view of the undertaking. It is submitted that the allegations of coercion by the respondent are absolutely false. It is further submitted that the respondent appeared before the Family Court on 19th March, i.e. sixteen days after the order dated 02nd March, 2016 and withdrew the maintenance petition. It is further submitted that the respondent is a dishonest litigant and has raised a false claim before this Court. It is further submitted that no case for review of the order dated 02nd March, 2016 is made out. Findings 18. This Court is of the prima facie view that the parties amicably resolved all their disputes including the disputes relating to the maintenance and custody of the minor child, Master Vaibhav and the respondent took over the permanent custody of the minor child along with entire responsibility of maintaining the child which is clear from the joint statement of the parties on oath and the orders of the Family Court, Rohini on 24th January, 2013 in HAM No.2/2012 under Section 18 of the Hindu Rev.Pet.263/2016 in Cont.Cas321/2015 Page 14 of 18 Adoption and Marriage Act and Case No.100/2012 under Section 125 Cr.P.C. The joint statement of the parties recorded in the aforesaid two proceedings is reproduced in paras 3.2 and 4.2 above. The relevant portion of the statement is again reproduced hereunder:-
"“We have resolved our disputes regarding maintenance and custody of the child amicably. We have now decided to file second motion under Section 13B(2) of the H.M. Act for dissolution of our marriage.” (Emphasis supplied) 19. The learned Family Court recorded in the orders dated 24th January, 2013 in HAM No.2/2012 and Case No.100/2012 that the parties have resolved their disputes regarding maintenance and custody of the child amicably and, therefore, the petitions were disposed of as compromised. Both these orders are reproduced in paras 3.3 and 4.3 above. The relevant portion of these orders is again reproduced hereunder:-
"“Both the parties have resolved their disputes regarding maintenance and custody of the child amicably and have decided to file second motion for dissolution of their marriage. A joint-statement of the parties to this effect has been recorded separately. The parties shall remain bound by the joint- statement made by them today in the Court. In view of the submissions made and joint-statement of the parties recorded today, the present petition is disposed of as compromised.” (Emphasis supplied) 20. The respondent has raised false claims before this Court. In the notices dated 04th October, 2014 and 20th October, 2014, the respondent claimed that the petitioner had agreed to share the maintenance of the child whereas a contrary plea has been raised by the respondent in reply to CM No.15068/2015 that there was no settlement between the parties with respect Rev.Pet.263/2016 in Cont.Cas321/2015 Page 15 of 18 to the maintenance of the child. Both these contentions appears to be false as the parties settled all their disputes relating to the maintenance and custody of the minor child as recorded in the joint statement of both the parties and the orders of the Family Court. The respondent has abused the process of law by raising false claims and has thereby interfered with the administration of justice. This case warrants strict action to be taken. It is fit case to initiate proceedings for Contempt of Court.
21. The respondent is a dishonest litigant who has no respect for truth and has raised false claims before this Court without any hesitation. The averments made by the respondent in the maintenance petition under Section 125 Cr.P.C. filed by the respondent clearly show that the respondent is using his minor son as a pawn to somehow take back the settlement amount of Rs.25,00,000/- from the petitioner and teach her a lesson. Reference be made to para 4 of the maintenance application (Annexure A–9 at page
278) in which the respondent has re-opened all the allegations of harassment by the petitioner to the respondent which were put to an end by decree of divorce by mutual consent.
22. During the course of the hearing dated 01st March, 2016, this Court made these prima facie observations whereupon the respondent voluntarily gave undertaking to withdraw the maintenance petition on 02nd March, 2016. The undertaking of the respondent to withdraw the maintenance petition was a voluntary and the contrary allegations of the respondent are contemptuous.
23. With respect to the respondent’s averment that only limited notice had been issued on visitation rights, it is noted that this Court vide order dated 17th August, 2015 issued notice of CM No.15608/2015 for taking cognizance of the contempt by the respondent in respect of the joint Rev.Pet.263/2016 in Cont.Cas321/2015 Page 16 of 18 statement and orders of the Family Court and stayed maintenance proceedings under Section 125 Cr.P.C. CM No.15608/2015 was being heard by this Court on 01st and 02nd March, 2016 when the respondent chose to give the undertaking.
24. There is no merit in the averments made by the respondent in the petition. The respondent has raised false claims before this Court and is liable for its consequences. However, this Court is of the view that it would be in the interest of justice to recall the order dated 02nd March, 2016 insofar as this Court had disposed of the contempt petition and to revive the contempt petition to adjudicate it on merits after considering the contentions of both the parties. Conclusion 25. In the facts and circumstances of this case, the order dated 02nd March, 2016 is recalled in so far as this Court had disposed of the contempt petition and CM No.15608/2015. The contempt petition and the CM No.15608/2015 are revived. The interim order dated 17th August, 2015 is also revived. CONT.CAS(C) 321/2015 shall be decided on the merits after hearing the parties and considering all their contentions.
26. CM No.15608/2008 is allowed and the order dated 20th April, 2015 is modified. A show cause notice is hereby issued to the respondent to show cause as to why the respondent be not punished for Contempt of Court for raising false claims before this Court as well as for breach of the undertakings dated 17th October, 2011, 24th January, 2013 and 07th February, 2013 given by the respondent before the Family Court and the orders dated 17th October, 2011, 24th January, 2013 and 07th February, 2013 of the Family Court. Rev.Pet.263/2016 in Cont.Cas321/2015 Page 17 of 18 27. The reply to the show cause notice be filed within one week. Rejoinder within one week thereafter.
28. The respondent’s prayer for discharge of the undertaking and for restoration of proceedings under Section 125 Cr.P.C. shall be considered at the time of final hearing of the contempt petition. The respondent’s contention that the absolute right of the minor child to claim maintenance from both parents cannot be waived, shall be considered at the time of final hearing. The consequences of raising false claims by the respondent shall also be considered at the time of final hearing of the contempt petition before this Court.
29. The review petition is disposed of in the above terms. CONT.CASE3212015 30. List on 18th December, 2018 before the Roaster Bench.
31. Both the parties shall remain present in Court on the next date of hearing. DECEMBER03 2018 ak/dk/ds J.R. MIDHA (JUDGE) Rev.Pet.263/2016 in Cont.Cas321/2015 Page 18 of 18