Minor visiting rights- “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.- Hon'ble Apex Court

Ashish Ranjan vs Anupam Tandon on 30 November, 2010

Supreme Court of India
Supreme Court of India
Ashish Ranjan vs Anupam Tandon on 30 November, 2010
Author: . B Chauhan
Bench: P. Sathasivam, B.S. Chauhan
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 JUDGMENT
Dr. B.S. CHAUHAN, J.

Last paras of the Judgment

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. Whileconsidering 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 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 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