Take on your para 1 – It is just material facts of the case in hand. Insofar as Civil Contempt of Court Order goes that is what Civil Contempt is all about since a que. on what is your aggrievement all about will be raised during admission stage by the Hon'ble Bench which needs apt short reply by an seasoned advocate of your side to get the Notice issued. Thus help sharpen your advocates opening statement accordingly based on your own opening facts herein r/w apt reading down this last reply paras.
Take on your para 2 – My minor mistake. The case jurisdiction is before Hon’ble HC of Madras and not Mumbai. I stand corrected.
Take on your para 3 – Omit earlier advice on reasoning on why CC to employer and instead still suggest to rope in her company whose info. now you have. Revised reason being when a employee is sponsored for onsite the HR takes family status in view and it is not a question that the HR is not aware of her divorce ! If HR is aware of her divorcee status then it is but obvious when sponsoring DP of a minor they should also be aware of MCD Agreement too (which has certain agreed paras on visitation to Father !) as is generic HR policy in India. I mean how it is possible that a minor is arranged to get DP when minor laws of country states certain conditions to follow all over the world, and may be now HR may state they were not aware of such laws? The next que. still roams why then they be made R2? Bze. Company needs to follow social public policies too and if a employee is not honest about the family status and arrangements that she agreed with her ex spouse in a MCD decree then it is natural that the Company now becomes responsible for granting your ex spouse alternate ‘weekend’ leave ex SG to come to India to honor you visitation arrangements as your ex wife may raise before bench her inability to bring child to India instead may plead come to SG; is it not so J
See here she ignores court assured commitments now how can it be said that the company where she works can also ignore certain public policies especially relating to minor’s? See in family law inference is drawn indirectly to hit the logic. Now how you prepare and serve Notice to which all parties is your ball game. If I were in your place I could have even roped in Immigration authorities too as respondent 3 ! Ended this game with she loosing her job with current employer. But there shall be difference between you and me - right !
Generic parting take – I still suggest your immediate remedy is in Civil Contempt case before Hon’ble HC of Madras r/w making her employer respondent party to such contempt indirectly co-praying a humble prayer as ‘just remedy' which could be read as;
Prayer 1- Punish respondent 1 (wife) for contempt of Court order by meeting litigation expenses along with seeking in writing arrangement to meet with my daughter every alternate weekend in Mumbai meeting to/fro air ticket expenses by herself.
Prayer 2- Direct respondent no. 2 (her company authorized representative) to give written assurance to Hon’ble Court that the Company will grant necessary leave on every alternate weekend to respondent no. 1 employee (i.e. your ex wife) to travel to Mumbai to facilitate minor’s visitation with you till the terms of onsite arrangements stands between them (i.e. employee and employer). Here is catch your advocate will have to respond to i.e. how a company can vouch for such written assurance when company was not made *party to MCD and for the same prepare your advocate to state that it is the company which arranged DP and EPS and they have taken marital status and liabilities thereof statement from ex wife then only they arranged for such collaterals before Ministry of Manpower thus it is necessary till ex wife is onsite under collaterals of the company in SG to give such written undertakings.
During oral arguments you may agree to lodging / boarding expenses of ex wife + child during her stay in Mumbai which is secondary but let above advice prayers may be stated by your advocate. BTW Hon’ble HC of Madras is quick and reasoned enough to act on such contempt notice and is seen to be doing complete justice as is seen from bare reading similar other past arguments favouring aggrieved parties.
PS:
Never express before Bench that you already knew child's whereabouts i.e. employer address.
Lastly the elements generally needed to establish a civil contempt of court order as per facts before me of asked nature are;
A. the making of a valid court order,
Material facts: The Hon’ble Trial Court’s final judgment dated xx-xx-xxxx in a MCD proceeding r/w Decree thereof is clear in its direction and does exists unchallenged by the Contemnor till date hence is not in ambiguity or imagined one.
The referred Hon’ble Trial Court’s final judgment replication is verbatim placed in file as annexure >>> by the complainant. Which means in Contempt of Court Act U/s. 10 and under S. 12 evidentiary Law there exists a Hon’ble Court Order.
B. knowledge of the order by respondent 1,
Material facts: The Trial Court’s final judgment in a MCD proceeding r/w Decree thereof was given dasti copies to both the parties as per request made before the
concerned Hon’ble Court and after receiving dasti copies of the Trial Court’s final judgment in a MCD proceeding r/w Decree, signature of the both the parties and/or their authorized representatives were taken on the Hon’ble Trial Court’s filed Order Sheet.
Which means the said final judgment dated xx-xx-xxxx was not passed without hearing arguments / hearing statements of parties and or as ex Party and since the Order Sheet has signature affixed with wide open eyes of both the educated and able bodied parties to Application after reading the referred Court Order by them and or after hearing with attentive open ears in a Open Court a announced Order in presence of both parties to suit it means it is in knowledge of both parties.
C. ability of the complainant to render compliance, and
Material facts: The complainant has willfully complied the referred final Judgment dated xx-xx-xxxx by physically visiting Chennai for child visitation to visit with
his child to and complete subsequent chain of events that followed are material facts and as mentioned in aforementioned para no. X which may be referred to and is not replicated here for the sake of brevity.
That, there is a expressed ability and compliance of Hon’ble Court direction vide her Order dated XX-XX-xxxx by complainant and its non compliance by contemnor / respondent mother.
D. willful disobedience of the order.
Willful disobedience or willful breach is the gravament of the charge of civil contempt. Mere disobedience or breach with nothing more would not constitute civil contempt.
Question before us now is what would be the ambit of willful?
Answer to above would be that as long as there is the requisite mens rea, willfulness gets attracted ipso facto. When an action is taken with the requisite intention to accomplish an act, the act becomes a willful act.
Materials placed before this Hon'ble Court shows that there is no defence taken by contemnor / respondent mother and has not pleaded that it was in technical breach of the referred final judgment and decree in a divorce proceeding dated xx-xx-
xxxx passed by hon’ble trial Court. Contemnor has not pleaded that she was ignorant of the referred final Judgment. Hence what is pleaded is the defence of justification.
Now question could be raised would justification be a good ground to defend an action brought for civil contempt?
Answer to above point of reasoning in Law is that except for pleading necessity, this Hon’ble Court cannot think of a valid defence to an action for civil contempt when there is evidence that the party in disobedience was aware of the final judgment passed by a concerned Court.
If justification would be accepted as a defence, every party could set-forth some ipsi dixit reasons and plead that the disobedience is not willful. Failing in the defence set-up, party could plead that it bona fide believed that it was justified in exercising its right and if the court held that it was not exercising bona fide it would not ipso facto lead to the conclusion that disobedience was willful.
In the complainant / natural guardian opinion, such a defence would pollute the administration of justice for the reason visitation
agreement judgment in a MCD proceedings would lose their sanctity which is why I have filed as Complainant under Contempt of
Court Act, 1971 this complaint application so that the same are not repeated by the contemnor / respondent mother during the
arguments stage. It is other matter that litigants are aware of the fact that final judgments in a MCD proceeding wherein minor’s
brush with law may cause hardship to a party and there may be change of circumstances, legislature hence included Appeal of a
family court Order – Judgments. Such appeals virtually empowers the Hon’ble HC to set aside, discharge or vary an order, on an
application made thereto by any party. Every order can be discharged, varied or set aside if a change in circumstances
necessitates said discharge, variation or setting aside.
Now the question arises was there any application made bonafide by respondent mother?
No.
At the end of these material facts supported with discussions on points of Law complainant feel that Contemnor / respondent mother could not become a judge of its own cause. Contemnor could not, of its own accord, act as a judge to vary the final judgment – MoU Agreement dated xx-xx-xxxx passed by concerned trial court by not complying to it on her whims and fancies and thus put other party in great hardships which is what reflects from this Complaint case made under Contempt of Court Act, 1971 as amended and uptodated.
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