Disposed

Dr.Mrinal S.Pillai v. Dr.Athira Mrinal @ Athira Krishnan

Kerala HC3 Feb 2020Con.Case(C)/143/2020

Case brief

AI extract

What is this about?

The court addressed a contempt petition alleging wilful disobedience of a mediation settlement regarding child custody and visitation. The court found no wilful or intentional disobedience on the respondent's part due to circumstances beyond her control and closed the case without imposing punishment.

What did the court decide?

The contempt case is closed without any punishment as the court found no wilful disobedience on the part of the respondent.

Dr.Mrinal S.Pillai Vs Dr.Athira Mrinal @… — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941

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Con.Case(C).No.143 OF 2020 IN OP (FC). 359/2019

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AGAINST THE JUDGMENT IN OP (FC) 359/2019 OF HIGH COURT OF KERALA

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PETITIONER/PETITIONER:

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DR.MRINAL S.PILLAI AGED 37 YEARS S/O. K.S PILLAI, MAAMOOTTIL, TTC 3/629, T.K DIVAKARAN ROAD, MUTTADA P.O, PIN 695 025, THIRUVANANTHAPURAM

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BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ SMT.MAITREYI SACHIDANANDA HEGDE

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RESPONDENT/RESPONDENT:

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DR.ATHIRA MRINAL @ ATHIRA KRISHNAN AGED 32 YEARS D/O. SANTHI RADHAKRISHNAN, SMRITHI, TC 91607-1 SMRA-69, SRK HOSPITAL ROAD, SASTHAMANGALAM P.O, THIRUVANANTHAPURAM 695 010.

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R1 BY ADV. SRI.V.K.BALACHANDRAN R1 BY ADV. SMT.DRISHYA K.PRAKASH

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THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Cont. Case (C) No. 143/2020

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: 2 :

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Dated this the 3^rd day of February, 2020. JUDGMENT

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S. Manikumar, CJ

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Alleging wilful disobedience of the terms of mediation agreement, which culminated in Annexure I judgment, instant contempt case is filed. The terms of the memorandum of settlement filed under Section 89 of the Code of Civil Procedure r/w Rules 24 and 25 of the Civil Procedure (Alternative Dispute Resolution) Rules, 2008, reads thus:

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The custody of the children, Amartya Mrinal Pillai and Aditya Mrinal Pillai, will be continued with the respondent mother. The respondent agreed that she will not take the children with her to Koothuparamba, Kannur or seek admission for them to any school outside Trivandrum District.

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The petitioner father will have the right to interact with the children. The petitioner and the respondent will take the children for outing one or two days in a week. The date and time of outing will be decided mutually by the petitioner and respondent in advance.

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Both the children will be admitted in Sree Sree Ravisankar School at Maruthamkuzhay, Thiruvananthapuram in the coming academic year 2019-2020.

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Cont. Case (C) No. 143/2020 : 3 :

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Both the petitioner and respondent have agreed that unnecessary interference of their respective parents will be avoided.

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The O.P.(G&W) 626/2019 filed by the petitioner against the respondent before the Family Court, Trivandrum will be kept in abeyance so as to verify the feasibility of this settlement.

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Both the petitioner and the respondent have agreed that they will not file any new cases on complaints before any authorities against each other for custody of the children for the time being.

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If any, of the parties fail to comply the above mentioned terms and conditions, this agreement shall be enforced through Court of Law.

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The above OP(FC) may be disposed of recording and in accordance with this settlement.”

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Disputing the averments made in the Contempt Petition, respondent/mother has filed an affidavit, relevant portion of which reads thus:

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“On 02.01.2020, I along with the children and petitioner went to Mall of Travancore for outing. When we reached there, I saw the mother of the petitioner and his brother's son. Other family members of the petitioner were also there. The children pestered me to return. I sensed some danger also. I informed the petitioner and returned with the children. My lawyer sent a letter to the petitioner's lawyer intimating these matters. A true copy of the letter dated 07.01.2020 is produced herewith and marked as Annexure R(1).

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It is the petitioner who has violated the terms of the settlement. The settlement was to take the children for outing with the petitioner. But the petitioner without informing me brought his

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Cont. Case (C) No. 143/2020

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: 4 :

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family members and his mother to the Mall. The children were hesitant to mingle with them. The petitioner is not showing any love or affection towards the children. In spite of several outings, the petitioner was not able to develop intimacy with the children. He cannot blame me or my mother for that. The petitioner has the habit of persuading the children to speak against me and my mother by giving toys and gifts and recording their conversations in his mobile phone. His ploys is to create evidence in the cases pending before the Court below.”

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That apart, placing reliance on Section 43 of the

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Guardians and Wards Act, 1890 ('the Act' for short), Mr. V.K. Balachandran, learned counsel for the respondent, submitted that there is an alternative remedy provided under the Act and without availing the same, instant contempt petition is filed only to harass her.

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Per contra, Mr. Kaleeswaram Raj, learned counsel

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for the petitioner, submitted that the said provision is inapplicable to the facts of the instant case.

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Heard the learned counsel on both sides and

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perused the materials on record.

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Section 43 of the Act reads thus:

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“43. Orders for regulating conduct or proceedings of guardians, and enforcement of those orders.—

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(1) The Court may, on the application of any person interested or of its own motion, make an order regulating the conduct or proceedings of any guardian appointed or declared by the Court.

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Cont. Case (C) No. 143/2020

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: 5 :

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(2) Where there are more guardians than one of a ward and they are unable to agree upon a question affecting his welfare, any of them may apply to the Court for its direction, and the Court may make such order respecting the matter in difference as it thinks fit.

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(3) Except where it appears that the object of making an order under sub-section (1) or sub-section (2) would be defeated by the delay, the Court shall, before making the order, direct notice of the application therefor or of the intention of the Court to make it, as the case may be, to be given, in a case under sub-section (1), to the guardian or, in a case under sub-section (2), to the guardian who has not made the application.

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(4) In case of disobedience to an order made under sub-section (1) or sub-section (2), the order may be enforced in the same manner as an injunction granted under section 492 or section 493 of the Code of Civil Procedure, 1882 (14 of 1882)1, in a case under sub-section (1), as if the ward were the plaintiff and the guardian were the defendant or, in a case under sub-section (2), as if the guardian who made the application were the plaintiff and the other guardian were the defendant.

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(5) Except in a case under sub-section (2), nothing in this section shall apply to a Collector who is, as such, a guardian.”

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7. On a perusal of the affidavit, we find that for the

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reasons which were beyond the control of the respondent/alleged contemnor, children were not taken for outing as agreed to by them.

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Learned counsel for the respondent has also advanced arguments stating that there is no wilful and intentional disobedience of the judgment. He has further submitted that clause (2) of the memorandum of agreement, which formed part of the judgment, would be

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Cont. Case (C) No. 143/2020

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: 6 :

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implemented without giving room for further litigation and that the children would be taken out for outing in the ensuing Saturdays and Sundays of this month.

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Placing on record the above submission, instant contempt case is closed. However, it is desirable that, in future, the parties being doctors, should act in the best interest of the children.

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sd/-

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S. MANIKUMAR, CHIEF JUSTICE.

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sd/-

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SHAJI P. CHALY, JUDGE.

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Cont. Case (C) No. 143/2020 : 7 :

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APPENDIX

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PETITIONER'S EXHIBITS:

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ANNEXURE 1 TRUE COPY OF THE JUDGMENT DATED 03-06-2019 IN OP(FC) NO. 359/2019 ANNEXURE II TRUE COPY OF THE LAWYER NOTICE SENT ON 12-122019 ALONG WITH ITS POSTAL RECEIPT ANNEXURE III TRUE COPY OF THE REPLY DATED 23-12-2019

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RESPONDENT'S EXHIBITS:

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ANNEXURE R1: TRUE COPY OF THE LETTER DATED 07.01.2020 ISSUED TO THE PETITIONER'S LAWYER.

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/True Copy/

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PS to Judge.

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Dr.Mrinal S.Pillai v. Dr.Athira Mrinal @ Athira Krishnan

Case brief

What is this about?

What did the court decide?

Dr.Mrinal S.Pillai v. Dr.Athira Mrinal @ Athira Krishnan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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