A person cannot be hauled up for contempt if he resorts to the legal remedy of filing a petition under the Guardians and Wards Act, 1890, seeking custody of his minor child, despite having given an undertaking not to interfere with the child’s custody with the mother while obtaining divorce on mutual consent, the Madras High Court has held.
The Third Division Bench of Justices P.N. Prakash and RMT Teekaa Raman said a prima facie case of contempt of court might arise if the person was accused of constantly disturbing the wife and the child after having given an undertaking to the contrary before a court of law. However, no such charge could be made out if he resorts to a statutory remedy.
“When a person resorts to a legal remedy that is available to him, it cannot amount to contempt. None can contract out of a statute,” the Bench observed while dismissing, as devoid of merits, a contempt of court petition filed by the former wife of a person who had approached the court seeking custody of his three-year-old son.
The judges said it was true that the petitioner’s former husband had given an undertaking before the Family Court in December 2020 that the child could remain with the petitioner and he would not claim even visitation rights. However, thereafter, the child might not have been taken care of properly by the mother.
In such circumstances, the father could not be prevented from exercising his statutory right to approach a court of law seeking custody in the paramount interest of the child, the Bench added.
