Summary
A father of Indian origin and Kenyan citizenship obtained custody of his son from the Supreme Court in 2020 on undertakings to submit to Indian jurisdiction and to obtain a 'mirror order' in Kenya, and took the child abroad. When the Kenyan High Court held the Indian judgment unregistrable he suppressed that order, cut off the mother's access, discharged his counsel, challenged the Indian courts' jurisdiction in Kenya and ignored every notice. A three-Judge Bench on 07.10.2021 recalled the custody judgment as obtained by fraud and initiated suo motu contempt. With the contemnor absent and his counsel declining to argue, the Court held that one who makes false statements to deceive the Court interferes with the administration of justice, and found him guilty of criminal contempt and of breaching express undertakings.
Issues
- Whether tendering affidavits and undertakings containing false statements, and suppressing material developments, to obtain custody of a minor amounts to criminal contempt in addition to contempt for breach of undertakings.
- Whether a contemnor who has removed a child from the jurisdiction in breach of undertakings and refuses to appear may be proceeded against and found guilty in his absence.
- What directions may be issued to secure the presence of the contemnor and the child.
Provisions considered
- Criminal contempt and contempt for violation of undertakings given to courts, Contempt of Courts Act, 1971Following ABCD v. Union of India, Chandra Shashi v. Anil Kumar Verma, Dhananjay Sharma and K.D. Sharma v. SAIL, a person who makes a false statement before the Court and attempts to deceive it interferes with the administration of justice; the Court not only has inherent power but would be failing in its duty if such a person were not dealt with in contempt jurisdiction. The contemnor was held guilty of criminal contempt and of violating express undertakings. (¶¶ 14, 15, 16)
- Notice in Form I, Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975On 25.01.2022 notice in Form I was directed quoting the prima facie findings; it was served by post and by the e-mail used by the contemnor, who filed no response and did not appear despite repeated opportunities. (¶¶ 6, 7, 13)
Held
- The custody orders of 28.10.2020 and 08.12.2020 rested on the contemnor's undertakings and on a Kenyan registration order he represented to be a 'mirror order'; the Kenyan High Court's later order of 21.05.2021 holding the judgment unregistrable was never disclosed, access to the mother was cut off, counsel were discharged on the eve of compliance hearings and proceedings were filed in Kenya denying the Indian courts' jurisdiction. The three-Judge Bench had found a well-planned design to obtain custody by fraud and recalled the orders, declaring the custody illegal and void ab initio. (¶¶ 2, 3, 4, 12)
- Though a contemnor who removes a child from the jurisdiction is ordinarily not entitled to be heard until the contempt is purged (Hadkinson v. Hadkinson), the matter was adjourned several times to give him adequate opportunity, and even at the final hearing his counsel was invited to argue but declined. The material on record clearly established the violations found prima facie in paragraph 34 of the order of 07.10.2021. (¶¶ 9, 11, 13, 16)
- The contemnor is guilty of criminal contempt of court, apart from contempt for violating express undertakings given to the High Court and this Court. Although sentence could be passed in his absence, a final opportunity was given to present himself with the child on 22.07.2022 and to address the Court on punishment; if he purges the contempt a sympathetic view may be taken. (¶¶ 16, 17)
- For securing the presence of the contemnor and the child, the Union agencies including the CBI, which had already issued look-out, red corner and yellow corner notices, shall exercise all powers, not restricted to the earlier directions to register criminal proceedings, secure the child's custody for the mother and extend logistical support through the Ministry of External Affairs and the Indian Embassy in Kenya. (¶¶ 8, 18)
Result
Contemnor held guilty under the Contempt of Courts Act, 1971 of criminal contempt and of violating undertakings; matter listed on 22.07.2022 at 3.00 pm for his appearance with the child and submissions on sentence, with liberty to purge the contempt; Union agencies to secure their presence.