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2010 (8) Supreme 162
SUPREME COURT OF INDIA
P. Sathasivam and Dr. B.S. Chauhan, JJ.
Dr. Ashish Ranjan — Petitioner
versus
Dr. Anupama Tandon & Anr. — Contemnors/Respondents
Contempt Petition (Civil) No. 394 of 2009
In
Transfer Petition (Civil) No. 195 of 2008
Decided on : 30-11-2010
Custody of Child- While determining question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of 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, hence, such issues have to be handled by 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 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 (Para 18)
Facts of the Case :
Contempt petition was filed by applicant herein in the instant case alleging that consent order passed by Lok Adalat held by Apex Court had willfully and deliberately been violated by respondents, as it had been ensured by them that applicant may not reach his son.
Findings of the Court :
Applicant could not get benefit of his visitation right under final order passed by Apex Court on 3.5.2008, and, to certain extent, respondents were held responsible for tutoring child as conversation between applicant and the child revealed many things which a child was not supposed to know/understand at the tender age of 2-1/2 years. Conversation with the child revealed that child had been tutored by respondents to make him completely hostile towards his father. In the facts and circumstances of case, inference could be drawn that rights of visitation given to applicant by Apex court vide order dated 3.5.2008 stood completely frustrated and the respondents had ensured that applicant might not reach his son and all attempts made by the applicant in this regard stood futile. The mind of the child had been influenced to such an extent that he had no affection/respect for applicant. In such a fact-situation, held that respondents had deliberately and willingly violated terms of the consent order and was guilty of committing the contempt of court. Contempt petition was disposed of giving liberty to applicant to approach appropriate court/forum for seeking custody of the child, or any other appropriate relief in this regard. In case, such a petition is filed, court concerned was requested to proceed and dispose of the same in accordance with law
Result : Petition Disposed of
Key Points: - The Court discusses using Article 142 to do complete justice and prevent obstruction to justice in contempt of court cases. (!) , (!) - The paramount consideration in custody matters is the welfare of the child, not the parents’ rights, including moral/ethical welfare and the child’s physical well-being. (!) , (!) - The child cannot be treated as property; courts exercise parens patriae to ensure welfare, even when statutory provisions exist. (!) , (!) - The petition found that the consent order dated 3.5.2008 was allegedly violated, with evidence of tutoring and alienation of the child toward the father. (!) , (!) - The court permitted the contemnor to seek custody or other relief in appropriate forums, recognizing the need to adjudicate custody in light of changed circumstances. (!) , (!) - The court concluded that the consent order has proved unworkable due to non-compliance and tutoring, warranting consideration of modification or review in an appropriate forum. (!) , (!) - Observations that mutual settlements cannot override welfare principles in custody matters; res judicata does not apply to child custody. (!) , (!) - The court emphasized the need to act expeditiously and without being bound by prior writ or consent orders when the child’s welfare requires it. (!) , (!)
JUDGMENT
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.
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 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 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
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