DR. ASHISH RANJANversusDR. ANUPAMA TANDON AND ANR.

                [2010] 14 (ADDL.) S.C.R. 961


                     DR. ASHISH RANJAN                               A
                                v.
            DR. ANUPAMA TANDON AND ANR.
          (Contempt Petition (Civil)· No.394 of 2009)
                     NOVEMBER 30, 2010
                                                                     8
      (P. SATHASIVAM ANO DR. B.S. CHAUHAN, JJ.]

      Child and Family Welfare:

        Compromise order as regards the custody of the child -       c
  Violation of - Respondent-mother agreed to visitation by
  applicant-father and his parents to see the child - Contempt
  petition by applicant against respondents that the terms and
  conditions of the compromise order as regards the visitation
  rights were not complied with - Held: The compromise order         D
  as regards the custody of the child proved unworkable as the
  respondents had succeeded in frustrating the same totally -
  The child had been tutored by the respondents to the extent
  that he had no inclination towards the applicant father - The
  respondents ensured that all efforts of the applicant or his
                                                                     E
  parents to meet the child turned futile - The respondents
  deliberately· and willingly violated the terms of the
  compromise order - In such a fact-situation, they are guilty
  of committing the contempt of court - 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 -   F
  The issue raised being a pure question of fact require
  examination by an appropriate forum taking into
  consideration· all the factual and legal aspects - Liberty given
  to the applicant to approach the appropriate court/forum for
  seeking custody of the child or any other appropriate relief in    G
. this regard - Contempt of Court - Undertaking - Judgment/
  order - Compromise order.

      Custody of child - Paramount consideration - Welfare
                             961                                     H
   962    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A of the child - Held: The provisions of the special statutes
   which govern the rights of the parents or guardians may be
   taken into consideration, however, there is nothing which can
  stand in the way of the court to exercise its parens patriae
  jurisdiction in such cases - Statutory provisions dealing with
B 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 - Mutual settlement
  reached between the parties cannot come in the way of well
   established principles in respect of the custody of the child -
c Jurisdiction - Parens patriae jurisdiction.
        Custody of child - Inapplicability of doctrine of res
  judicata - Held: If welfare of the child is not taken care of by
   the custodial parent, subsequent application by non-custodial
  parent for custody of a minor cannot be thrown out at the
D threshold as not maintainable - Doctrine of res-judicata is not
  applicable in matters of child custody being a recurring cause
  - Doctrine of res-judicata.

       Constitution of India, 1950: Article 142 - Held: A party
E cannot be rendered remediless - 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 Supreme Court to do complete justice
  between the parties, wherever it is just and equitable to do so
F and. must be exercised to prevent any obstruction to the
  stream of justice - Equity - Remedy.

       Contempt of Courts Act, 1971: Violation of undertaking
  - Held: The powers under Articles 129 and 142 of the
  Constitution, in addition to the statutory provisions of the
G Contempt of Court Act, 1971 are always available to Supreme
  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 a/so issue
  further directions/orders to do complete justice between the
H
  DR. ASHISH RANJAN v. DR. ANUPAMA TANDON               963
                  AND ANR.

parties - -Constitution of India, 1950 - Articles 129, 142 -   A
Undertaking - Judgment/order - Compromise order.

    In Lok Adalat proceedings, the matrimonial dispute
between the parties was resolved and a compromise
order was passed. The issue relating to the custody of         B
the minor child born out of the wedlock was also· resolved
therein. The first respondent (mother of the child) had
agreed to visitation by the applicant-father and his
parents to see the child. The applicant-father filed the
instant contempt petition on the ground that the first         C
respondent did not obey the terms of the compromise
order as regards the custody and the visitation rights of
the child.

    Disposing of the contempt petition, the Court
                                                               D
     HELD: 1. The applicant-father could not get the
benefit of his visitation right granted to him by this Court
in the compromise order, and, to certain extent, the
respondents were responsible for tutoring the child as
the conversation between the applicant and the child
                                                               E
revealed many things which a child of tender age of 2-1/
2 years is not supposed to know/understand. Even in
conversation with this Court, the child narrated many
things which could not be in his personal knowledge and
which he could not say by his own memory. During the
conversation with the child, it was observed that the child    F
had been tutored by the respondents to make him
completely hostile towards his father. Undoubtedly, the
compromise order, so far as the custody of the child was
concerned, has proved unworkable as the respondents
succeeded in frustrating the same totally. The child had       G
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
                                                               H
    964   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A had been instructed not to pick up the phon'e, 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 compromise order that the applicant
B 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 of the order that the
  applicant or his parents would be at liberty to talk to the
  child on telephone had never been observed as all
c attempts made by the applicant in this regard have failed.
  [Paras 10, 22) [974-C-E; 979-B-F]

         2. 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
D   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
E   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
F   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
    the problem. Though, the provisions of the special
    statutes which govern the rights of the parents or
G   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. Statutory provisions dealing with the custody of
    the child under any personal law cannot and must not
H
 DR. ASHISH RANJAN v. DR. ANUPAMA TANDON                 965
                 AND ANR.
supersede the paramount consideration as to what is A
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. [Paras 18,19) [977-8-
G]
                                                                 B
     Gaurav Nagpal v. Sumedha Nagpa/ AIR 209 SC 557;
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;
Shi/pa Aggarwal v. A viral Mittal & Anr. (2010) 1 SCC 591;
Athar Hussain v. Syed Siraj Ahmed & Anr. (2010) 2 SCC 654        C.
- relied on.

     3. The submission 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            D.
him, is preposterous. The writ petition 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         E
maintainable for the relief sought herein. It is settled legal
proposition that a party cannot be rendered remediless.
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        F
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. [Paras 11, 14) [97 4-F-G; 975-F]

    Rameshwar Lal v. Municipal Council, Tonk & Ors. (1996) G
6 SCC 100; Mohammad Idris & Anr. v. Rustam Jehangir
Bapuji & Ors. AIR 1984 SC 1826; Y.N. Gangadhara Setty &
Ors. v. Jaya Prakash Reddy, MD, Karnataka Cooperative
Milk Products Federation (2007) 14 SCC 434; Delhi
Development Authority v. Skipper Construction Company (P) H
    966   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   Ltd. & Anr. AIR 1996 SC 2005; Rosy Jacob v. Jacob A.
    Chakramakkal AIR 1973 SC 2090; Dhanwanti Joshi v.
    Madhav Unde (1998) 1 SCC 112; Jai Prakash Khadria v.
    Shyam Sunder Agarwal/a & Anr. AIR 2000 SC 2172;
    Mausami Moitra Ganguli v. Jayant Ganguli AIR 2008 SC
B   2262; Vikram Vir Vohra v. Shalini Bhalla (2010) 4 SCC 409
    - relied on.

         4. The powers under Articles 129 and 142 of the
    Constitution, in addition to the statutory provisions of the
    Contempt of Court Act, 1971 are always available to this
C   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 directions/orders to do complete justice
    between the parties. Mutual settlement reached between
D   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
E   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. (Para 20] (977-H; 978-A-D]

F      5. If the instant case is considered in totality,
  inference can be drawn that the rights of visitation given
  to the applicant by this court by compromise order stood
  completely frustrated and the respondents have ensured
  that the applicant may not reach his son and all attempts
G 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. The
  respondents have deliberately and willingly violated the
  terms of the consent order. In such a fact-situation, they
  are guilty of committing the contempt of this court.
H
  DR. ASHISH RANJAN v. DR. ANUPAMA TANDON                967
                  AND ANR.

However, imposing any punishment on the respondents             A
would not serve any purpose, nor it would serve in a
better way to the welfare of the child. 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. The respondent No.2         B
is quite aged lady who herself has been suffering from
various ailments. Therefore, interest/welfare of the child,
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         c
gets inadequate opportunities for social interaction. It is
necessary for a child that he should be in regular contact
of the non-custodial parent also. In such a fact-situation,
due to non-compliance of the terms of compromise order,
the applicant is fully justified seeking review/modification    D ,
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. Thus, liberty is given to the applicant
to approach the appropriate court/forum for seeking
custody of the child, or any other appropriate relief in this   E
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 compromise order or dismissal order of the writ
petition passed by this Court regarding the custody and         F
visiting rights of the parties towards the child, most
expeditiously. [Paras 21, 22, 23] [978-D-H; 979-A-H; 980-
A-C]

                    Case Law Reference:                         G
    (1996) 6 sec 100            relied on           Para 11
    AIR 1984 SC 1826            relied on           Para 12
    (2001) 14 sec 434           relied on           Para 12
                                                                H
    968    SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.


A         AIR 1996 SC 2005           relied on           Para 13
          AIR 1973 SC 2090           relied on           Para 15
          (1998) 1 sec 112           relied on           Para 16
          AIR 2000 SC 2172           relied on           Para 17
B
          AIR 2008 SC 2262           relied on           Para 17
          c201 O) 4 sec 409          relied on           Para 17
          AIR 209 SC 557             relied on           Para 18
c
          AIR 1987 SC 3              relied on           Para 19
          (1993) 2 sec 6             relied on           Para 19
          (2008) 9 sec 413           relied on           Para 19
D         c201 o) 1 sec 591          relied on           Para 19
          c201 o) 2 sec 654          relied on           Para 19
        CIVIL ORIGINAL JURISDICTION : Contempt Petition (C)
    No. 394 of 2008.
E
                                     IN

          Transfer Petition (C) No. 195 of 2008.

          Prashant Bhshan, Pranav Sachdeva for the Petitioner.
F
          V.K. Shukla, K.K. Mohan for the Respondents.

          The Judgment of the Court was delivered by

        DR. B.S. CHAUHAN, J. 1. The instant contempt petition
G 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.
H
  DR. ASHISH RANJAN v. DR. ANUPAMA TANDON                     969
        AND ANR. [DR. B.S. CHAUHAN, J.]

     2. Applicant herein got married with respondent no.1 on         A
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              B
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
31.122007. The applicant herein, the husband filed H.M.A.            c
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     D·
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 Adalat,        E·
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   F
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:                                                G

    "

    (viii) As agreed between the parties, Dr. Anupma Tandon
    shall have the'physical custody and guardianship of the          H
    970    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A         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
B
          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.

c         (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 might wish. Dr. Anupma
          Tandon stated before the Lok Adalat that while visiting
D         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.
E
          (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
F         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
G         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.
H
  DR. ASHISH RANJAN v. DR. ANUPAMA TANDON                    971
        AND ANR. [DR. B.S. CHAUHAN, J.]

    (xiii) As and when the child reaches his teens and in case           A
    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 out of Ajmer or the city he might          ,B
    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               'C
    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          D
    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.                                                   E
     (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           F
     go out with them.



      5. In order to substantiate his claim, a large number of           G
documents hqve been placed on record by the applicant,
particularly, several returned envelopes seeking visitation rights
for the applicant in the year 2008, with endorsement of "refusal"
                                                                     1




or "the addressee was not available". Copies of E-mails dated
24.6.2008, 17.9.2008 and 23.12.2008 intimating the
                                                                         H
    972    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   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
8   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,
C 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
o 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 :

               "In terms of the earlier direction of this Court dated
E         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
F         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
G         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,
H
    DR. ASHISH RANJAN v. DR. ANUPAMA TANDON                      973
          AND ANR. [DR. B.S. CHAUHAN, J;]

      Sanskriti School, Ajmer, Rajasthan.                                A

             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                B
 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           C
 mind and understand his views about the applicant. We came
 to the conclusion that the matter required full hearing. Hence.
 the matter came for final hearing.

        8. Shri Prashant Bhushan, learned counsel appearing for          D
  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 ofthe child
  has been poisoned/polluted and the child does not have any
  inclination towards his father because of the tutodng by the           E
  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 Gopalgailj Court (Bihar) by the respondent
  no.1. It is not in the interest/welfare of the child to continue his
                                                                         F
· 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            G
 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 should not be disturbed. As the child himself is not
 inclined to talk to the applicant, he cannot be forced to have          H
    974   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   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
B   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
C 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
D 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.
E
        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
F 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
G 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
H
  DR. ASHISH RANJAN v. DR. ANUPAMA TANDON               975
        AND ANR. [DR. B.S. CHAUHAN, J.]
cannot be rendered remediless. (See: Rameshwar Lal v.           A
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 8
Products Federation, (2007) 14 SCC 434, this Court he!d that
even undergoing the punishment for contempt does not mean
that the court 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 D
    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 E
    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        F
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 G
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-judicatal
estoppel in respect of the same and held as under:

    'The appellant's argument based on estoppel and on the      H
    976    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A         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
B         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
c         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,
D (1998) 1 sec 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
E         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
F         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 ..... "

         17. In Jai Prakash Khadria v. Shyam Sunder Agarwal/a
G   & 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.
H
  DR. ASHISH RANJAN v. DR. ANUPAMA TANDON                     977
        AND ANR. [DR. B.S. CHAUHAN, J.]

     (See also Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 A
sec 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         8
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   C
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              D
sentiments applying human touch to 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       E
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 F
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; Chandraka/a Menon v. Vipin Menon, (1993) 2
sec 6; Nil Ratan Kun.du & Anr. v. Abhijit Kundu, (2008) 9 G
sec 413; Shi/pa Aggarwal v. Aviral Mittal & Anr. (2010) 1
SCC 591; and Athar Hussain v. Syed Siraj Ahmed & Anr.,
(2010) 2 sec 654).

    20. In addition to the statutory provisions of the Contempt
of Court Act, 1971 the powers under Articles 129 and 142 of H
    978   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A   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 directions/orders to
    do complete justice between the parties. Mutual settlement
B   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
C   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
D   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
E   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
F   contempt of this court.

         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.

G        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
H   the child, Kislay is not being taken care of at all. A child of this
  DR. ASHISH RANJAN v. DR. ANUPAMA TANDON                      979
        AND ANR. [DR. B.S. CHAUHAN, J.]

age may not be able to learn family values, the importance of          A
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.
                                                                       B
     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        C
of the applicant or his parents to meet the child turned futile.
The child, Kislay, has been instructed not to pick up the phone,
so that even by chance he may not hear the voice of the
applicant or his parents.
                                                                       D
      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.                                          E
     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.
                                                                       F
    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,          G
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
                                                                       H
    980    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   requires to be examined by an appropriate forum taking into
    consideration all the factual and legal aspects.

        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,
8
  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
C 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.

    D.G.                          Contempt Petition disposed of.