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.
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.
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:
"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 thewards demands variation."
The aforesaid judgment was re-considered by this Court (Two-Judge Bench) in Dhanwanti Joshi v. MadhavUnde, (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....."
In Jai Prakash Khadria v. Shyam Sunder Agarwalla&Anr., AIR 2000 SC 2172; and MausamiMoitraGanguli v. JayantGanguli, 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 VikramVir Vohra v. ShaliniBhalla, (2010) 4 SCC 409)
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 orundertaking which is violated by the contemnor is effectuated and thecourt has all powers to enforce the consent order passed by it and also 14issue further directions/orders to do complete justice between theparties. Mutual settlement reached between the parties cannot comein the way of the well established principles in respect of the custody
of the child and, therefore, a subsequent application for custody of aminor cannot be thrown out at the threshold being not maintainable. Itis a recurring cause because the right of visitation given to theapplicant under the agreement is being consistently and continuouslyflouted. Thus, doctrine of res-judicata is not applicable in matters ofchild custody.
If the instant case is considered in totality taking into consideration the above referred judgments, we are of the view that inthe facts and circumstances of the case, inference can be drawn thatthe rights of visitation given to the applicant by this court vide orderdated 3.5.2008 stood completely frustrated and the respondents haveensured that the applicant may not reach his son and all attempts madeby the applicant in this regard stood futile.