‘A mere technicality cannot prevent the court from doing justice in exercise of its inherent power,’ said the apex court bench of Justice P. Sathasivam and Justice B.S. Chauhan in a recent judgment.
Speaking for the bench, Justice Chauhan said that ‘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 the obstruction of the stream of justice’.
The Article 142 of the constitution provides for the enforcement of orders of the Supreme Court that it may pass in the exercise of its jurisdiction for doing complete justice in any case.
The apex court said this while entertaining an application by Ashish Ranjan who filed a contempt petition against his divorced wife for allegedly denying him the right to visit their child in breach of the apex court’s May 3, 2008, order.
The judges, who met the child in their chamber Oct 22, said that the child had been tutored and knew things which he could not have known as a matter of personal knowledge or could have recalled from his memory.
The child’s mother, Anupama Tandon, is associated with a medical institute in Uttar Pradesh.
The court made the reference to its vast powers in response to Tandon’s counsel saying that Ranjan had filed a writ petition seeking the same relief about 15 months back and that was dismissed. Thus, his fresh application was not maintainable.
The court said that while giving the custody of a child to either of the parents the ‘paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute’.
‘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, love, affection and sentiments applying a human touch to the problem,’ the judgment said.
It said that though the rights of the parents under the statute must be taken into consideration by the courts, ‘there is nothing which can stand in the way of court exercising its ‘parens patriae’ (power of the court) jurisdiction arising in such cases’.
While disposing the petition, the court permitted Ranjan to move the appropriate court for seeking the custody of the child.