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, the Supreme Court has held.

Giving this ruling, a Bench of Justices P. Sathasivam and B.S. Chauhan said: “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 wellbeing. The child cannot be treated as a property or a commodity and therefore, such issues have to be handled by the court with care, caution, love, and affection and applying a human touch to the problem.”

Writing the judgment, Justice Chauhan said: “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.”

In the instant contempt case, Ashish Ranjan, the appellant was aggrieved that a consent order, passed on May 3, 2008 by the Lok Adalat held in the Supreme Court that he and his parents must have visitation rights to see his minor son Kislay Ranjan, was wilfully violated by his ex-wife Anupama Tandon.

Disposing of the contempt petition, the Bench said: “The applicant could not get the benefit of his visitation rights. During our conversation with the child we could clearly note that the child had been tutored by the respondents to make him completely hostile towards his father and that he could not meet his son.”

On the respondents' contention that since a final order had been passed no further relief should be granted, the Bench said: “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. Thus, doctrine of res judicata is not applicable in matters of child custody.”

The Bench said: “If the instant case is considered in totality, the child, Kislay, has been tutored by the respondents and he has adopted a hostile attitude towards the applicant. In such a fact-situation the applicant is fully justified in seeking review/modification of the said order.

The Bench granted 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.”

President of the Children's Rights Initiative For Shared Parenting (CRISP) Kumar V. Jahgirdar in a statement welcomed the judgment and said: “Child tutoring/brain washing by the custodial parent against non-custodial parent to settle their personal scores by keeping the child as a tool of vengeance is not in the best interest of the children in the long run. The court should take a serious view and punish the parent indulging in such acts including non-compliance of court orders on visitation rights. If the tutoring continues in spite of warning by the court then child custody should be given to the other parent since the child needs the love and affection of both the parents to lead a normal life. This matter is even more serious since the divorce rates are increasing year by year especially in metro cities.”