Mediation agreement breached is it contempt of court?

In Avneesh Sood vs Tithi Sood on 30 April, 2012 [1]
Shikha Bhatia (supra) the wife had filed an FIR against the husband.
The husband filed the anticipatory bail application and during pendency
of that petition, a settlement was reached between the parties to
the effect that the parties will seek divorce by mutual consent, and
husband will pay 8 lakhs to the wife at different stages and all the
pending cases between the parties will be withdrawn by both the parties.
Acting on that settlement the anticipatory bail was granted to the
husband and he also paid certain amount to the wife. Thereafter the
husband did not comply with the terms of the settlement and the Court
held him guilty of contempt of Court. The Court observed:
“The respondents once having taken the advantage of the agreement entered
into the terms of the settlement cannot CONT.CAS (C) 559/2011 Page
23 of 34 be withdrawn by the respondents to suit his whims and fancies
and to the determent of the petitioner.”
In Avneesh Sood vs Tithi Sood on 30 April, 2012 [1]

Image result for contempt of court
In Hitesh Bhatnagar (supra), both husband and wife had filed mutual
divorce petition. After the passing of the first motion petition the
wife withdrew her consent before the decree of divorce could be granted.
The husband insisted for passing of the decree and the matter travelled
up to Supreme Court. The Supreme Court framed the following question
to be determined “Whether the Court can grant a decree of divorce
by mutual consent when the consent has been withdrawn by one of the
parties, and if so, under what circumstances”.
43. The Court answered the above mentioned question in the following
CONT.CAS (C) 559/2011 Page 21 of 34
“15)……… Besides, from the language of the Section, as well as
the settled law, it is clear that one of the parties may withdraw their
consent at any time before the passing of the decree. The most important
requirement for a grant of a divorce by mutual consent is free
consent of both the parties. In other words, unless there is a complete
agreement between husband and wife for the dissolution of the marriage
and unless the Court is completely satisfied, it cannot grant a
decree for divorce by mutual consent. Otherwise, in our view, the expression
divorce by mutual consent would be otiose.
16) In the present fact scenario, the second motion was never made by
both the parties as is a mandatory requirement of the law, and as has
been already stated, no Court can pass a decree of divorce in the
absence of that. The non-withdrawal of consent before the expiry of the
said eighteen months has no bearing. We are of the view that the eighteen
month period was specified only to ensure quick disposal of cases
of divorce by mutual consent, and not to specify the time period
for withdrawal of consent, as canvassed by the appellant.”
44. In neither of these cases the Supreme Court was dealing with the
issue, whether the breach of an undertaking given to the Court in terms
of a settlement arrived at between the parties, to grant consent for
the second motion petition, would amount to civil contempt, or not
. A party is not bound at the stage of moving the first motion petition
to give an undertaking to the Court that he/she shall grant his/her
consent for moving a second motion petition as well. The law gives
both the spouses the right to opt out of the divorce proceedings, and
not to give their respective consent to proceed with the second motion.
In the present case as well, it was open to the respondent not to
have given her undertaking to the Court, that she would give her consent
to CONT.CAS (C) 559/2011 Page 22 of 34 move the second motion petition.
However she did, as a matter of fact, give her undertaking to
the Court to this effect. She gave this undertaking on account of heContempt
Indian Kanoon 1
r settlement with the petitioner wherein she received a substantial amount
of Rs.1.5 crores from out of the total settlement amount of Rs.
7 crores. Had she not agreed to give the said undertaking and, in fact,
not given the said undertaking to the Court, obviously the settlement
agreement would not have been acted upon by the petitioner and he
would not have paid the said amount to the respondent which she accepted,
pocketed and appropriated.
In Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010 [2]
For holding the respondents to have committed contempt, civil contempt
at that, it has to be shown that there has been willful disobedience
of the judgment or order of the Court. Power to punish for contempt
is to be resorted to when there is clear violation of the Court’s order.
Since notice of contempt and punishment for contempt is of far reaching
consequence, these powers should be invoked only when a clear
case of willful disobedience of the court’s order has been made out.
Whether disobedience is willful in a particular case depends on the
facts and circumstances of that case. Judicial orders are to be properly
understood and complied. Even negligence and carelessness can amount
to disobedience particularly when attention of the person is drawn
to the Court’s orders and its implication. Disobedience of Court’s
order strikes at the very root of rule of law on which our system of
governance is based. Power to punish for contempt is necessary for the
maintenance of effective legal system. It is exercised to prevent perversion
of the course of justice. In his famous passage, Lord Diplock
in Attorney General v. Times Newspapers Ltd. (1973) 3 All.E.R. 54
said that there is also “an element of public policy in punishing civil
contempt, since administration of justice would be undermined if the
order of any court of law could be disregarded with impunity”. Jurisdiction
to punish for contempt exists to provide ultimate sanction
against the person who refuses to comply with the order of the court
or disregards the order continuously. Initiation of contempt proceedings
is not a substitute for execution proceedings though at times that
purpose may also be achieved.
No person can defy Court’s order. Wilful would exclude casual, accidental
bona fide or unintentional acts or genuine inability to comply
with the terms of the order. A petitioner who complains breach of Court’s
order must allege deliberate or contumacious disobedience of the
Court’s order.
In Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010 [2]
Rama Narang Vs. Ramesh Narang & Anr., reported at (2006) 11 SCC 114,
it has been held by the Supreme Court of India that even in the absence
of undertaking in appropriate cases, defiance even of a compromise
decree may be contemptuous if the conduct is found to be interfering
in the due course of justice. It has also been held in the case of Santanu
Chaudhuri Vs. Subir Ghose, reported at (2007) 10 SCC 114 that
even without an undertaking a contempt may be made out when the Court
has acted on the basis of a representation of a party. In this case
not only the order dated 23.10.2007 read with orders dated 8.1.2008 and
15.2.2008 would show that the Court had disposed of the bail petitioners
on the basis of a settlement between the parties. A complete reading
of the order would show that the parties were bound to comply
with the obligation as per the settlement.
1. a, b Avneesh Sood vs Tithi Sood on 30 April, 2012
2. a, b Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010

By Nitish Banka


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