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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