No Question Of Estoppel Against Party Where Error Is Committed By Court Itself; Court Under Bounder Duty To Correct Its Mistake: Kerala HC

The Kerala High Court observed that there is no question of estoppel against a party where an error is committed by the Court itself and the Court is under a bounden duty to correct its mistake.

The Court observed thus in a batch of Review Petitions in which the dispute was related to the custody of minor child.

A Division Bench comprising Justice P.B. Suresh Kumar and Justice C. Pratheep Kumar held, “… if the records of this Court in respect of a matter which would come up at a later point of time before the Family Court for consideration are not kept properly, the Family Court which is bound by orders of this Court may not be able to exercise its jurisdiction properly in subsequent proceedings. That apart, there is no question of estoppel against a party where an error is committed by the court itself and the court is under a bounden duty to correct its own mistake.”

Senior Advocate Dhanya P. Ashokan represented the Petitioners while Advocate Praveen K. Joy represented the Respondents.

Brief Facts -

The issues in the Review Petitions were closely interlinked. In the lead case, the Petitioner was the husband and the Respondent was the wife and the dispute was related to the custody of their minor child. The Petitioner filed a plea before the Family Court, seeking Orders declaring him as the guardian of the child. The proceedings were disposed of based on a mediation settlement in terms of which permanent custody of the child was given to the Respondent, subject to the visitation rights of the Petitioner.

Subsequently, when the Respondent entered into a second marriage and relocated to Canada to pursue higher studies entrusting the child with her parents in India, the Petitioner filed an Application seeking Orders granting permanent custody of the child to him. On the other hand, the Respondent filed an Application seeking permission to take the child to Canada. The Family Court dismissed the pleas of the Petitioner and allowed that of the Respondent. The Petitioner challenged this and the High Court disposed of the Petitions. Hence, review of this Judgment was sought in the Review Petitions.

The High Court after hearing the arguments from both sides, said, “As noticed, the order sought to be reviewed is vitiated by a patent error on the face of the record. Every order of custody, whether interim or permanent, could be varied on change of circumstances. As such, even the orders of the Family Court which were impugned before this Court in the original petitions are liable to be varied, if circumstances warrant, at a later point of time.”

The Court further noted that the grievance of the Petitioner concerns the right conferred by the Court to the Respondent to prefer Application before the Family Court seeking permission to take the child to Canada on completing her studies and on obtaining employment, and the direction in the order that the permission given to the Petitioner to take the child to the place of his employment is subject to that right of the Respondent.

“This, according to us, is a windfall that the respondent has obtained on account of an error committed by this Court for, having regard to the various orders passed by the Family Court hitherto, the respondent is not entitled to such a right. It is with a view to sustain the benefit of the said order which she is not otherwise entitled to, according to us, the doctrine of approbate and reprobate is raised by the respondent to get the review petition dismissed on that ground”, it added.

Accordingly, the High Court allowed the Review Petitions and recalled the Order sought to be reviewed.

Cause Title- ABC v. XYZ (Neutral Citation: 2024:KER:8535)

Appearance:

Petitioners: Senior Advocate Dhanya P. Ashokan, Advocates M.R. Venugopal, and S. Muhammed Alikhan.

Respondents: Advocates Praveen K. Joy and E.S. Saneej.

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