Custody Battle In Canadian Court | Husband's Father, Lawyer Serving Contempt Notice At Wife's House Not Criminal Trespass: MP High Court

Madhya Pradesh High Court has quashed proceedings arising from the charge of criminal trespass against a father-in-law who served the contempt notice issued by a Canadian Court directly at the house of his daughter-in-law.

At the time of serving the said notice issued in pursuance of the custody battle for the child, which is being fought between the petitioner's son and daughter-in-law, the petitioner was accompanied by his lawyer.

The single-judge bench of Justice Subodh Abhyankar held that serving the notice directly at the house of the daughter-in-law cannot be said to have been tainted with any mala fide intention, especially when the petitioner-father-in-law was accompanied by his lawyer. The e-mail sent to the petitioner's son mentioned the alternatives of serving it either to the complainant or her counsel.

“If this entire episode of the petitioner going to the house of the complainant along with his lawyer to serve the notice issued by a Canadian court is viewed objectively, this court finds that the petitioner and his lawyer cannot be saddled with the intention of criminal trespass. It may be that as the notice was not to the liking of the complainant, there might be some heated arguments but that cannot be held to be an intention to commit the offence of criminal trespass”, the bench sitting at Indore clarified.

The court noted that the contempt notice issued by the Canadian Court and included in the seizure memo of the Police required the complainant to be present before the court on 20.09.2022. The notice stipulated that the contemnor should remain in the said address until the case has been dealt with.

“…Thus, there is a clear order against the complainant to be present before the Court. And apparently, the said Notice cannot be said to be of the complainant's liking which has been served on her by the petitioner who happens to be the father in-law of the complainant”, Justice Abhyankar observed.

The court placed its reliance on the apex court's decision in Mahmood Ali v. State of UP, 2023 LiveLaw (SC) 613 to conclude that the ingredients of criminal trespass have not been made out. In Mahmood Ali, the apex court observed that a High Court, while considering a Section 482 CrPC petition, is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of the investigation.

While allowing the petition and quashing the F.I.R for offences under Sections 452, 506 and 34 of the IPC, the High Court also observed that the complaint was just an afterthought to wreak vengeance against the father-in-law.

Senior Advocate S.K Vyaas a/w Advocate Aniruddha Gokhale represented the applicant/accused. Government Advocate Surendra Gupta appeared for the state. Senior Advocate A.S.Grag a/w Advocate Raunak Choukse appeared for the respondent/complainant.

Facts

Petitioner's son married the complainant in 2014 and started living in Canada. The complainant-wife returned to India with her child in 2022 after a dispute arose between the spouses. Upon the wife informing the petitioner's son that she wouldn't return to Canada, the latter instituted an application for securing the custody of his minor daughter on 10.06.2022. Likewise, the wife filed a divorce petition before the Family Court, Indore on 20.06.2022.

On 13.07.2022, the Canadian Court in Ontario instructed the complainant to produce the child before the court within 30 days which was not complied with. A contempt petition was filed by the petitioner's son for discarding the Canadian Court's directions. Later, on 08.09.2022, the lawyer of the petitioner's son sent an email asking him to serve the process of contempt to the complainant.

Since the petitioner's son was not residing in Indore, the petitioner who is a chartered accountant, along with his lawyer, went to the house of the complainant on 12.09.2022 and served notice on her. After six hours, F.I.R. was lodged by the complainant against the petitioner and an unknown person alleging criminal trespass.

Case Title: Shyam Malpani v. The State Of Madhya Pradesh Station House Officer Through Police Station Lasudiya & Anr.

Case No: Misc. Criminal Case No. 17305 of 2023

Citation: 2024 LiveLaw (MP) 32

Click Here To Read/ Download Order