Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

Contempt Petition (Civil) No. 394 of 2009

IN

Transfer Petition (Civil) No. 195 of 2008

Dr. Ashish Ranjan ...Petitioner

Versus

Dr. Anupama Tandon & Anr. ...Contemnors/Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1.The instant contempt petition has been filed by the applicant

alleging that the consent order dated 3.5.2008 passed by the Lok

Adalat held by this Court has willfully and deliberately been violated

by the respondents, as it has been ensured by them that the applicant

may not reach his son.

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2.Applicant herein got married with respondent no.1 on

31.10.2002 at Ajmer (Rajasthan), though both of them had been

married earlier and stood separated from their respective spouses after

getting divorced. Out of the said wedlock, one male child namely,

Kislay was born at Ajmer in 2003. Father of respondent No.1 died on

9.1.2005 and soon thereafter relations between the parties became

very strained and the respondent No.1 returned to her mother’s place

at Ajmer. She also filed FIR No.43 of 2007 with Ajmer Police on

29.3.2007, wherein after investigation the charge sheet was filed on

31.12.2007. The applicant herein, the husband filed H.M.A. Case

No.2 of 2008 at Gopalganj (Bihar) on 5.1.2008 seeking divorce.

3.After receiving the summons of the said matrimonial case, the

respondent no.1 approached this Court by filing Transfer Petition

(Civil) No.195 of 2008 seeking transfer of the said case from Gopal-

ganj (Bihar) to the Family Court, Ajmer. At the time of hearing of the

transfer petition, this Court vide order dated 31.3.2008 stayed the

proceeding in matrimonial case pending at Gopalganj and referred the

matter to Lok Adalat for disposal by mutual consent. Before the Lok

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Adalat, the parties agreed to resolve all their disputes and for that the

terms and conditions were reduced in writing.

This Court vide order dated 3.5.2008 disposed of the transfer

petition on the consent terms resolving all the civil and criminal cases

pending between the parties and dissolved their marriage.

4.So far as the issue relating to custody of the child, Kislay, as

per the said consent order is concerned, the following clauses are

relevant:

“………

(viii) As agreed between the parties, Dr. Anupma Tandon

shall have the physical custody and guardianship of the

child Master Kislay Ranjan who is at present four and a half

years old.

(ix) Dr. Ashish Ranjan and his parents shall have visiting

rights to Master Kislay Ranjan who is at present living in

Ajmer with his maternal grand-parents. Since Dr. Ashish

Ranjan and/or his parents would have to come to Ajmer

from Gopalganj at long distance, they would naturally

advise about the dates and length of their visits at Ajmer

before hand either by telephone or through a letter.

(x)In Ajmer, Dr. Ashish Ranjan and/or his parents will

visit Master Kislay Ranjan at mutually convenient

time(s) in the house where he is living. They will stay

with the child for a few hours or as long as the child

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might wish. Dr. Anupma Tandon stated before the

Lok Adalat that while visiting Master Kislay Ranjan,

Dr. Ashish Ranjan and his parents will be treated

with courtesy and dignity and she would do

everything reasonable to facilitate their meeting with

the child. It will be open to Dr. Ashish Ranjan and/or

his parents to bring suitable gifts for the child.

(xi)To begin with, the meetings with the child will be held

only in the house where he might be living with his

maternal grandparents or his mother. However, as

confidence builds up between all concerned,

including the child and as the child grows up and he

himself wishes to go out with his father or

grandparents, it will be open to Dr. Ashish Ranjan

and/or his parents to take out the child in the city

where he might be living initially for brief periods.

(xii) As the child further grows up and in case he expresses

his willingness and consent to spend one or two nights with

his father Dr. Ashish Ranjan and/or his grandparents, it will

be open to Dr. Ashish Ranjan and/or his parents to take the

child out from his residence for some period and to keep him

with them for one or two nights in the same city.

(xiii) As and when the child reaches his teens and in case he

is willing to spend some of his holidays or vacations with his

father or grandparents away from the place where he might

be living with her maternal grandparents or mother, it will be

open to Dr. Ashish Ranjan and/or his parents to take the child

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out of Ajmer or the city he might be living in at that time for

as long as the child might wish to stay with them during his

holidays or vacations.

(xiv) On each occasion when Dr. Ashish Ranjan and/or his

parents take away the child from his guardian, i.e., Dr.

Anupma Tandon or his maternal grandparents, it will be their

duty and obligation to take full care of the physical, mental

and emotional well-being of the child while he remains with

them and to return him to his mother/maternal grandparents

at the agreed time. As and when the child is taken out from

Ajmer, all the expenses of his travel and stay will be borne by

Dr. Ashish Ranjan and/or his parents.

(xv) Dr. Ashish Ranjan and/or his parents will be at liberty

to speak to Master Kislay Ranjan on telephone at convenient

times.

(xvi) All these arrangements insofar as they relate to the

child will be subject to the express wish and willingness of the

child. No visits to see him or taking him out would be

permitted unless the child himself is willing and prepared to

meet the father and the grandparents and is willing to go out

with them.

…………………………..”

To begin with, the meeting with the child will be held o

5.In order to substantiate his claim, a large number of documents

have been placed on record by the applicant, particularly, several

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returned envelopes seeking visitation rights for the applicant in the

year 2008, with endorsement of “refusal” or “the addressee was not

available”. Copies of E-mails dated 24.6.2008, 17.9.2008 and

23.12.2008 intimating the respondent no.3 in this respect have also

been filed. It has also been submitted that telephone calls made by the

applicant were not attended by the respondent no.1, as she had the

facility of identifying the caller on her landline Telephone Set. The

applicant claims that he had gone to Ajmer in July 2008 to meet his

son, Master Kislay, but the respondents ensured that he could not

meet his son.

In view of the fact that the applicant could not receive any

response for his proposal to meet the child, the applicant and his

parents have to cancel the Ajmer visit scheduled on July 22, 2008. On

10.9.2009, the applicant travelled along with his parents to Ajmer by

car to see the child but they found the house of the respondent No.2

locked and could not meet the child.

6. In this contempt petition, notice was issued by this Court on

15.1.2010. The respondent entered appearance. On 5.4.2010, the

respondent No.1 appeared in person. After considering the grievances

of the applicant, this Court passed the following order :

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“In terms of the earlier direction of this

Court dated 03.05.2008, we pass the following

order:

`It is brought to our notice that at present the

Child Master Kislay Ranjan is studying in

Sanskriti School, Ajmer. The petitioner Dr. Ashish

Ranjan is permitted to visit the above referred

school from 12.07.2010 to 23.07.2010. We request

the Principal of the School to permit Dr. Ashish

Ranjan and his parents to meet the child Master

Kislay Ranjan after school hours in his/her

chamber or any suitable place within the school

premises. We also request the Principal to render

all assistance for a conducive atmosphere and

send a report to this Court about the behaviour

and attitude of the child Master Kislay Ranjan

towards his father Dr. Ashish Ranjan.’

Copy of this order be forwarded to the

Principal, Sanskriti School, Ajmer, Rajasthan.

List in the first week of August, 2010.”

7.In pursuance to the aforesaid order, the applicant had gone to

Ajmer and was allowed to meet his son at Sanskriti School, Ajmer.

The Principal of the said school has also submitted a report. After

perusing the same, this Court vide order dated 13.9.2010 directed that

both the parties alongwith the child, Master Kislay, would remain

present before this Court on 22.10.2010. On the said date, both of us

had a long conversation with the child in Chambers and tried to know

his mind and understand his views about the applicant. We came to

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the conclusion that the matter required full hearing. Hence, the matter

came for final hearing.

8.Shri Prashant Bhushan, learned counsel appearing for the

applicant, has submitted that there is ample evidence on record to

show that the consent order passed in the Lok Adalat has been

violated by the respondents. The mind of the child has been

poisoned/polluted and the child does not have any inclination towards

his father because of the tutoring by the respondents. The child had

been taught not to pick up the phone. Respondent No.2 is quite aged,

seriously ill and it was one of the main grounds seeking transfer of the

matrimonial case pending before Gopalganj Court (Bihar) by the

respondent no.1. It is not in the interest/welfare of the child to

continue his education at Ajmer, as the respondent No.1 lives and is

working in U.P. Institute of Medical Sciences at Saifai, Dist. Etawah

(U.P.). The Court must ensure the compliance of the right of

visitation to his son given to the applicant.

9.Shri V.K. Shukla, learned counsel appearing for the

respondents, has fairly conceded that the applicant has right of

visitation and must be concerned about the welfare of the child.

However, the child is getting the best education at Ajmer, which

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should not be disturbed. As the child himself is not inclined to talk to

the applicant, he cannot be forced to have any

communication/meeting with the applicant. None of the respondents

has tutored the child. The applicant has filed a writ petition No. 155

of 2009 before this Court seeking the relief, which has been sought in

this petition, and the same stood dismissed vide order dated

29.9.2009. Therefore, this petition itself is not maintainable and, thus,

is liable to be dismissed.

10.We have considered the rival submissions made by the learned

counsel for the parties and perused the record.

This matter has been heard by us and we had an opportunity to

talk to the parties, as well as to the child. We are of the view that the

applicant could not get the benefit of his visitation right under the

final order passed by this Court on 3.5.2008, and, to certain extent, the

respondents are responsible for tutoring the child as the conversation

between the applicant and the child reveals many things which a child

is not supposed to know/understand at the tender age of 2-1/2 years.

Even in conversation with us, the child, Master Kislay, has narrated

many things which could not be in his personal knowledge and which

he could not say by his own memory.

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During our conversation with the child we could clearly note

that the child has been tutored by the respondents to make him

completely hostile towards his father.

11.The submission made by Shri Shukla, learned counsel for the

respondents, that the writ petition filed by the applicant seeking the

same relief stood dismissed and thus, no relief can be granted to him,

is preposterous. It stood dismissed more than 15 months ago, wherein

the applicant had appeared in person. The niceties of law cannot

come in the way of this Court while deciding an issue of such a

delicate nature. More so, the writ petition could not be maintainable

for the relief sought herein.

Be that as it may, it is settled legal proposition that a party

cannot be rendered remediless. (See: Rameshwar Lal v. Municipal

Council, Tonk & Ors. (1996) 6 SCC 100).

12.In Mohammad Idris & Anr. v. Rustam Jehangir Bapuji &

Ors., AIR 1984 SC 1826; and Y.N. Gangadhara Setty & Ors. v.

Jaya Prakash Reddy, MD, Karnataka Cooperative Milk Products

Federation, (2007) 14 SCC 434, this Court held that even

undergoing the punishment for contempt does not mean that the court

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is not entitled to give appropriate directions to remedy and rectify the

consequences of actions in violation of its orders.

13.In Delhi Development Authority v. Skipper Construction

Company (P) Ltd. & Anr., AIR 1996 SC 2005, this Court held as

under:

“There is no doubt that the salutary rule has to be

applied and given effect to by this court, if necessary, by

over-ruling any procedural or other technical objections.

Article 129 is a constitutional power and when exercised

in tandem with Article 142, all such objections should

give way. The Court must ensure full justice between the

parties before it.”

14.Thus, it is evident from the above that a mere technicality

cannot prevent the Court from doing justice in exercise of its inherent

powers. The power under Article 142 of the Constitution can be

exercised by this Court to do complete justice between the parties,

wherever it is just and equitable to do so and must be exercised to

prevent any obstruction to the stream of justice.

15.In Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC

2090, this Court (Three-Judge Bench) considered the nature of

custody of a minor under the provisions of Guardians and Wards Act,

1890 and application of doctrine of res-judicata/estoppel in respect of

the same and held as under:

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“The appellant’s argument based on estoppel and on the

orders made by the court under the Indian Divorce Act

with respect to the custody of the children did not appeal

to us. All orders relating to the custody of the minor

wards from their very nature must be considered to be

temporary orders made in the existing circumstances.

With the changed conditions and circumstances,

including the passage of time, the Court is entitled to

vary such orders if such variation is considered to be in

the interest of the welfare of the wards. It is unnecessary

to refer to some of the decided cases relating to estoppel

based on consent decrees, cited at the bar. Orders

relating to custody of wards even when based on consent

are liable to be varied by the Court, if the welfare of the

wards demands variation.”

16.The aforesaid judgment was re-considered by this Court (Two-

Judge Bench) in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC

112, and after quoting the ratio of the said judgment, held as under:

“21……However, we may state that in respect of orders

as to custody already passed in favour of the appellant

the doctrine of res judicata applies and the Family Court

in the present proceedings cannot re-examine the facts

which were formerly adjudicated between the parties on

the issue of custody or are deemed to have been

adjudicated. There must be proof of substantial change

in the circumstances presenting a new case before the

court. It must be established that the previous

arrangement was not conducive to the child’s welfare or

that it has produced unsatisfactory results…..”

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17.In Jai Prakash Khadria v. Shyam Sunder Agarwalla &

Anr., AIR 2000 SC 2172; and Mausami Moitra Ganguli v. Jayant

Ganguli, AIR 2008 SC 2262, this court held that it is always

permissible for the wards to apply for the modification of the order of

the court regarding the custody of the child at any stage if there is any

change in the circumstances.

(See also Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409)

18.It is settled legal proposition that while determining the

question as to which parent the care and control of a child should be

given, the paramount consideration remains the welfare and interest of

the child and not the rights of the parents under the statute. Such an

issue is required to be determined in the background of the relevant

facts and circumstances and each case has to be decided on its own

facts as the application of doctrine of stare decisis remains irrelevant

insofar as the factual aspects of the case are concerned. While

considering the welfare of the child, the “moral and ethical welfare of

the child must also weigh with the court as well as his physical well-

being”. The child cannot be treated as a property or a commodity and,

therefore, such issues have to be handled by the court with care and

caution with love, affection and sentiments applying human touch to

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the problem. Though, the provisions of the special statutes which

govern the rights of the parents or guardians may be taken into

consideration, there is nothing which can stand in the way of the court

exercising its parens patriae jurisdiction arising in such cases. (vide

Gaurav Nagpal v. Sumedha Nagpal, AIR 209 SC 557).

19.Statutory provisions dealing with the custody of the child under

any personal law cannot and must not supersede the paramount

consideration as to what is conducive to the welfare of the minor. In

fact, no statute on the subject, can ignore, eschew or obliterate the

vital factor of the welfare of the minor. (vide Elizabeth Dinshaw v.

Arvand M. Dinshaw, AIR 1987 SC 3; Chandrakala Menon v.

Vipin Menon, (1993) 2 SCC 6; Nil Ratan Kundu & Anr. v. Abhijit

Kundu, (2008) 9 SCC 413; Shilpa Aggarwal v. Aviral Mittal &

Anr. (2010) 1 SCC 591; and Athar Hussain v. Syed Siraj Ahmed

& Anr., (2010) 2 SCC 654).

20.In addition to the statutory provisions of the Contempt of Court

Act, 1971 the powers under Articles 129 and 142 of the Constitution

are always available to this court to see that the order or undertaking

which is violated by the contemnor is effectuated and the court has all

powers to enforce the consent order passed by it and also issue further

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directions/orders to do complete justice between the parties. Mutual

settlement reached between the parties cannot come in the way of the

well established principles in respect of the custody of the child and,

therefore, a subsequent application for custody of a minor cannot be

thrown out at the threshold being not maintainable. It is a recurring

cause because the right of visitation given to the applicant under the

agreement is being consistently and continuously flouted. Thus,

doctrine of res-judicata is not applicable in matters of child custody.

21.If the instant case is considered in totality taking into

consideration the above referred judgments, we are of the view that in

the facts and circumstances of the case, inference can be drawn that

the rights of visitation given to the applicant by this court vide order

dated 3.5.2008 stood completely frustrated and the respondents have

ensured that the applicant may not reach his son and all attempts made

by the applicant in this regard stood futile. The mind of the child has

been influenced to such an extent that he has no affection/respect for

the applicant. In such a fact-situation, we do not hesitate in holding

that the respondents have deliberately and willingly violated the terms

of the consent order and are guilty of committing the contempt of this

court.

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However, imposing any punishment on the respondents would

not serve any purpose, nor it would serve in a better way to the

welfare of the child, Kislay.

The respondent No.1 is serving at Saifai, Dist. Etawah (U.P.) at

a distance of about 500 Kms. from Ajmer and is certainly not in a

position to take care of the child, Kislay. The respondent No.2 is quite

aged lady who herself has been suffering from various ailments.

Therefore, interest/welfare of the child, Kislay is not being taken care

of at all. A child of this age may not be able to learn family values,

the importance of bonding or have interpersonal relationships, etc. if

he gets inadequate opportunities for social inaction. It is necessary for

a child that he should be in regular contact of the non-custodial parent

also.

22.Be that as it may, undoubtedly, the order dated 3.5.2008, so far

as the custody of the child, Kislay, is concerned, has proved

unworkable as the respondents succeeded in frustrating the same

totally. The child has been tutored by the respondents to the extent

that he has no inclination towards the applicant father. The

respondents have ensured that all efforts of the applicant or his parents

to meet the child turned futile. The child, Kislay, has been instructed

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not to pick up the phone, so that even by chance he may not hear the

voice of the applicant or his parents.

In such a charged/hostile atmosphere, it is beyond one’s

imagination that the other terms/conditions incorporated in the order

dated 3.5.2008, that the applicant may take out the child to another

city; or stay with the child for few nights in the same city, would be

complied with.

More so, further, clause no.(XV) of the order, that the applicant

or his parents would be at liberty to talk to the child on telephone has

never been observed as all attempts made by the applicant in this

regard have failed.

The child, Kislay, has been tutored by the respondents and he

has adopted an hostile attitude towards the applicant.

In such a fact-situation, where circumstances have substantially

changed subsequent to the order dated 3.5.2008, due to non-

compliance of the terms of compromise order, the applicant is fully

justified seeking review/modification of the said order.

The issue raised herein being a pure question of fact requires to

be examined by an appropriate forum taking into consideration all the

factual and legal aspects.

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23.Thus, in view of the above, we dispose of the contempt petition

giving liberty to the applicant to approach the appropriate court/forum

for seeking custody of the child, Kislay, or any other appropriate relief

in this regard. In case, such a petition is filed, the court concerned is

requested to proceed and dispose of the same in accordance with law,

without being influenced by the consent order dated 3.5.2008 or

dismissal order of the writ petition dated 29.9.2009 passed by this

Court regarding the custody and visiting rights of the parties towards

the child, most expeditiously.

Needless to say that the court concerned would proceed with

the case, if any, without taking note of any observation made

hereinabove in this judgment as we have expressed no opinion on

merit on the issue of custody.

………………………………J.

(P. SATHASIVAM)

..……………………………J.

(Dr. B.S. CHAUHAN)

New Delhi;

November 30, 2010

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