Kerala High Court
Amith vs Divya M.S on 18 November, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2024:KER:85356
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 18TH DAY OF NOVEMBER 2024 / 27TH KARTHIKA,
1946
RP NO. 581 OF 2024
AGAINST THE JUDGMENT DATED 23.02.2024 IN OP (FC) NO.683
OF 2023 OF HIGH COURT OF KERALA
REVIEW PETITIONER/PETITIONER:
AMITH T.S., AGED 40 YEARS
S/O. SOMAN, THANDASSERY HOUSE,
PAZHUVIL WEST DESOM & P.O., KURUMBILAV VILLAGE,
THRISSUR TALUK & DISTRICT.
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
SOMAN, AGED 65, S/O. RAMAN,
PAZHUVIL WEST DESOM KURUMBILAVU VILLAGE,
PAZHUVIL P.O. WEST, THRISSUR TALUK,
THRISSUR DISTRICT, PIN - 680564
BY ADVS.
M.R.VENUGOPAL
DHANYA P.ASHOKAN (SR.)
S. MUHAMMAD ALIKHAN
RESPONDENT/RESPONDENT:
DIVYA M.S., AGED 34 YEARS
W/O. SWAROOP & D/O. SUKUMARAN,
MONEKKATTU HOUSE, KANNARA DESOM & P.O.,
NEAR COMPANY PADI, PANANCHERY VILLAGE,
THRISSUR DISTRICT, PIN - 680652
BY ADVS.
PRAVEEN.K.JOY
E.S.SANEEJ(K-224/2014)
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
22.10.2024, ALONG WITH RP.1003/2024 AND CONNECTED CASES,
THE COURT ON 18.11.2024 DELIVERED THE FOLLOWING:
R.P. No.581 of 2024
in OP(FC) 683 of 2023 & con cases
-: 2 :-
2024:KER:85356
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 18TH DAY OF NOVEMBER 2024 / 27TH KARTHIKA,
1946
RP NO. 1003 OF 2024
AGAINST THE JUDGMENT DATED 23.02.2024 IN OP (FC) NO.63 OF
2024 OF HIGH COURT OF KERALA
REVIEW PETITIONER/RESPONDENT:
AMITH, AGED 40 YEARS
S/O. SOMAN, THANDASSERY HOUSE,
PAZHUVIL WEST DESOM, KURUMBILAVU VILLAGE,
PAZHUVIL P.O. WEST, THRISSUR TALUK,
THRISSUR DISTRICT 680564, REPRESENTED BY POWER
OF ATTORNEY HOLDER SOMAN, AGED 65, S/O. RAMAN,
PAZHUVIL WEST DESOM, KURUMBILAVU VILLAGE,
PAZHUVIL P.O. WEST, THRISSUR TALUK,
THRISSUR DISTRICT, PIN - 680564.
BY ADVS.
M.R.VENUGOPAL
DHANYA P.ASHOKAN (SR.)
S. MUHAMMAD ALIKHAN
ANJANA S. RAJ
RESPONDENT/PETITIONER:
DIVYA M.S.
AGED 34 YEARS
D/O. SUKUMARAN, MONEKATTU HOUSE,
KANNARADESOM, NEAR COMPANYPADI, KANNARA P.O.,
THRISSUR DISTRICT, PIN - 680652
R.P. No.581 of 2024
in OP(FC) 683 of 2023 & con cases
-: 3 :-
2024:KER:85356
BY ADVS.
PRAVEEN.K.JOY
E.S.SANEEJ(K-224/2014)
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
22.10.2024, ALONG WITH RP.581/2024 AND CONNECTED CASES,
THE COURT ON 18.11.2024 DELIVERED THE FOLLOWING:
R.P. No.581 of 2024
in OP(FC) 683 of 2023 & con cases
-: 4 :-
2024:KER:85356
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 18TH DAY OF NOVEMBER 2024 / 27TH KARTHIKA,
1946
RP NO. 1005 OF 2024
AGAINST THE JUDGMENT DATED 23.02.2024 IN OP (FC) NO.108
OF 2024 OF HIGH COURT OF KERALA
REVIEW PETITIONER/RESPONDENT:
AMITH, AGED 40 YEARS
S/O. SOMAN, THANDASSERY HOUSE,
PAZHUVIL WEST DESOM, KURUMBILAVU VILLAGE,
PAZHUVIL P.O. WEST, THRISSUR TALUK,
THRISSUR DISTRICT 680564,
REPRESENTED BY POWER OF ATTORNEY HOLDER SOMAN,
AGED 65, S/O. RAMAN, PAZHUVIL WEST DESOM,
KURUMBILAVU VILLAGE, PAZHUVIL P.O. WEST,
THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680564
BY ADVS.
M.R.VENUGOPAL
DHANYA P.ASHOKAN (SR.)
S. MUHAMMAD ALIKHAN
ANJANA S. RAJ
RESPONDENT/PETITIONER:
DIVYA M.S.,AGED 34 YEARS
D/O. SUKUMARAN, MONEKKATTU HOUSE,
KANNARA DESOM & P.O., NEAR COMPANY PADI,
PANANCHERY VILLAGE,
THRISSUR DISTRICT, PIN - 680652
R.P. No.581 of 2024
in OP(FC) 683 of 2023 & con cases
-: 5 :-
2024:KER:85356
BY ADVS.
PRAVEEN.K.JOY
E.S.SANEEJ(K-224/2014)
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
22.10.2024, ALONG WITH RP.581/2024 AND CONNECTED CASES,
THE COURT ON 18.11.2024 DELIVERED THE FOLLOWING:
R.P. No.581 of 2024
in OP(FC) 683 of 2023 & con cases
-: 6 :-
2024:KER:85356
C.R.
P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
-----------------------------------------------
R.P. No.581 of 2024 in O.P.(FC) No.683 of 2023,
R.P. No.1003 of 2024 in O.P.(FC) No.63 of 2024
and
R.P. No.1005 of 2024 in O.P.(FC) No.108 of 2024
-----------------------------------------------
Dated this the 18th day of November, 2024
ORDER
P.B.Suresh Kumar, J.
The issues arising for consideration in these review
petitions are closely interlinked and they are, therefore,
disposed of by this common order. Parties are referred to in
this order for convenience, as they appear in R.P.No.581 of
2024. The review petitioner is the petitioner in the original
petition, from which the said review petition arises viz, O.P.(FC)
No.683 of 2023. The respondent is the respondent therein and
the former wife of the petitioner. The dispute relates to the
custody of their minor child, Adwaith.
in OP(FC) 683 of 2023 & con cases
2024:KER:85356
2. The petitioner filed G.O.P. 1537 of 2016 before
the Family Court, Thrissur, seeking orders declaring him as the
guardian of the child. The said proceedings was 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 I.A.No.20 of 2023 seeking
orders granting permanent custody of the child to him by
modifying the order passed in the proceedings, and I.A.No.40
of 2023, seeking orders permitting the petitioner to take the
child to Dubai, where he is presently working, so as to enable
the child to continue his education there. The petitioner also
filed I.A.No.43 of 2023 seeking interim custody of the child
pending disposal of I.A.Nos.20 and 40 of 2023.
3. When the petitioner preferred the above
referred interlocutory applications, the respondent filed
I.A.No.26 of 2023 seeking orders permitting her to take the
child to Canada and I.A.No.27 of 2023 seeking orders
in OP(FC) 683 of 2023 & con cases
2024:KER:85356
modifying the visitation rights granted to the petitioner in
terms of the order originally passed by the Court. The Family
Court dismissed I.A.Nos.26 and 27 of 2023 and allowed
I.A.Nos.20 and 40 of 2023 subject to the visitation rights of the
respondent and her parents and also on condition that the
child shall be taken to the place of employment of the
petitioner, Dubai only in the ensuing academic year. I.A.No.43
of 2023 was closed on the same day in the light of the order
passed on I.A.Nos.20 and 40 of 2023.
4. The petitioner filed O.P.(FC) No.683 of 2023
challenging the order passed by the Family Court in I.A.No.43
of 2023 with a prayer to modify the same and allow him to
take the child to Dubai in the same academic year itself. The
respondent filed O.P.(FC) No.63 of 2024 challenging the orders
passed by the Family Court in I.A.Nos.20 and 40 of 2023 and
O.P.(FC) No.108 of 2024 challenging the orders passed by the
Family Court in I.A.Nos.26 and 27 of 2023.
5. This Court disposed of the original petitions by
a common judgment, and the review of the said judgment is
sought in these review petitions. The petitioner has grievance
in OP(FC) 683 of 2023 & con cases
2024:KER:85356
only against the order of the Family Court in I.A.No.43 of 2023
and consequently, he preferred only R.P.No.581 of 2024
initially, seeking review of the judgment in O.P.(FC) No.683 of
2023. The remaining review petitions were later filed by way of
abundant caution, as it was apprehended that the petitioner
may not be able to pursue R.P.No.581 of 2024 without seeking
review of the orders passed in O.P.(FC) Nos.63 and 108 of 2024
also.
6. Heard the learned Senior Counsel for the
petitioner as also the learned counsel for the respondent.
7. As noted, this Court disposed of the original
petitions with a direction to the maternal grandparents to
handover custody of the child to the petitioner and permitting
him to take the child to Dubai to enable the child to continue
his education at Dubai as an interim measure, clarifying that as
and when the mother is able to take the child to Canada, she
can move the Family Court with an application for custody.
Paragraphs 2 and 3 of the order sought to be reviewed read
thus:
"2. Having considered all the contentions advanced, we are of
in OP(FC) 683 of 2023 & con cases
2024:KER:85356
the opinion that it is in the best interest of the child that
interim custody is granted to the father for the time being.
The maternal grandparents shall produce the child before the
Family Court, Thrissur on 02.03.2024. The interim custody
shall be handed over to the father, who has agreed to come
down on the said date, from the premises of the Family Court.
The father shall be permitted to take the child to his work
place on condition that all relevant details including the
photostat copies of the passport, details of the residential
address as well as clear details of the employment of the
father and the school where admission is taken for the child
are provided before the Family Court. The father shall also
swear to an affidavit undertaking to remain bound by the
orders of the Family Court, Thrissur and to abide by the orders
passed by the said Court.
3. The mother is permitted to move the applications for VISA
to take the child along with her to Canada as and when she
completes her studies and has proper employment and is able
to take the child subject to the satisfaction of the Family
Court. It is made clear that the interim custody granted to the
father is purely an interim measure and as and when the
mother is able to take the child with her to Canada, she can
move the Family Court with application for custody which shall
be duly considered in accordance with law by the Family
Court. The respondent shall also make available the passport
of the child and the TC before the Family Court, Thrissur so
that the father is enabled to take possession of the same and
to take the child along with him."
8. In the nature of the original petitions
instituted before this Court, the issue that ought to have been
in OP(FC) 683 of 2023 & con cases
2024:KER:85356
considered was as to the correctness of the orders passed by
the Family Court in I.A.Nos.20, 26, 27 and 40 of 2023, and the
said issue was not considered by this Court. Further, in the
light of the order passed by the Family Court in G.O.P. No.1537
of 2016 and the orders on the above interlocutory applications,
the question whether either of the parties is entitled to interim
custody of the child, had not arisen at all for consideration.
Inasmuch as the issue that arose for consideration in the
matters has not been adjudicated, and inasmuch as the order
sought to be reviewed proceeds on the premise that what is
required to be considered is the question as to the interim
custody of the child, we have no doubt in our minds that the
order is vitiated by an error apparent on the face of the record.
9. Be that as it may, the learned counsel for the
respondent submitted that no relief has been granted by this
Court to the respondent in O.P. (FC) Nos.63 of 2024 and 108 of
2024 and that she has accepted the decision in the said
proceedings. According to the learned counsel, the petitioner
cannot, therefore, have any grievance about the decisions in
O.P. (FC) Nos.63 of 2024 and 108 of 2024. Coming to the
in OP(FC) 683 of 2023 & con cases
2024:KER:85356
decision in O.P (FC) 683 of 2023, the submission made by the
learned counsel for the respondent is that inasmuch as the
petitioner has accepted and acted upon the decision in the
said original petition by receiving the custody of the child and
taking him to his place of employment, the petitioner is
estopped from seeking review of that judgment. In order to
reinforce the said contention, it was also pointed out by the
learned counsel for the respondent that the petitioner has
instituted a proceedings before this Court under the Contempt
of Courts Act to enforce the direction in the order in O.P. (FC)
No.683 of 2023 that the respondent shall make available the
Transfer Certificate of the child before the Family Court. The
learned counsel has placed reliance on the decision of the
Apex Court in Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396,
in support of the said argument.
10. No doubt, the right to seek vacation of a
judgment may be lost by estoppel. Where one knowingly
accepts the benefits of an order, he is estopped from denying
the validity of the same. But, this is a rule which is applied to
ensure equity, and the same cannot be applied in such a
in OP(FC) 683 of 2023 & con cases
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manner so as to violate the principles of what is right and of
good conscience. It is apposite in this context to refer to a few
paragraphs from the decision of the Delhi High Court in
Avenue Realities and Developers Private Limited v. Income Tax,
2012 SCC OnLine Del 1895 which explains and reiterates the
said proposition. The relevant paragraphs read thus:
"37. In America estoppel by acceptance of benefits is one
of the recognised situations that would prevent a party from
taking up inconsistent positions qua a contract or transaction
under which it has benefited. American Jurisprudence,
2nd Edn., Vol. 28, pp. 677-80 discusses "estoppel by
acceptance of benefits" in the following passage:
"Estoppel by the acceptance of benefits.--
38. Estoppel is frequently based upon the acceptance and
retention, by one having knowledge or notice of the facts, of
benefits from a transaction, contract, instrument, regulation
which he might have rejected or contested. This doctrine is
obviously a branch of the rule against assuming inconsistent
positions.
39. As a general principle, one who knowingly accepts the
benefits of a contract or conveyance is estopped to deny the
validity or binding effect on him of such contract or
conveyance.
40. This rule has to be applied to do equity and must not
be applied in such a manner as to violate the principles of
right and good conscience."
The proposition aforesaid has been reiterated by the Apex
Court in Rajasthan State Industrial Development & Investment
Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5
in OP(FC) 683 of 2023 & con cases
2024:KER:85356
SCC 470 also. The pointed question, therefore, is whether it is
equitable on the facts and circumstances of the case, to deny
relief to the petitioner in R.P. No.581 of 2024.
11. 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. In the said view of the matter,
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. Be that as it may, as
noticed, the grievance of the petitioner concerns the right
conferred by this Court to the respondent to prefer application
in OP(FC) 683 of 2023 & con cases
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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. We have no doubt in
our minds that it is for the same purpose, the respondent is
now taking the stand that she has accepted the decisions
impugned in O.P.(FC) Nos.63 of 2024 and 108 of 2024.
Needless to say, it will be inequitable on the facts and
circumstances of this case to hold that the petitioner has lost
the right to seek vacation of the order in O.P. (FC) No.683 of
2023 by estoppel.
in OP(FC) 683 of 2023 & con cases
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In the result, the review petitions are allowed and
the order sought to be reviewed is recalled. List the original
petitions for hearing as per roster. Inasmuch as the petitioner
has taken advantage of the order in O.P.(FC) No.683 of 2023,
which has now been recalled, the respondent would be free to
seek appropriate interim orders in the original petitions.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.PRATHEEP KUMAR, JUDGE.
Ds 25.10.2024
in OP(FC) 683 of 2023 & con cases
2024:KER:85356
PETITIONER ANNEXURES
Annexure I Certified copy of the judgment dated
23.02.2024 of this Hon'ble Court in OP
(FC) 683/2023
Annexure I True copy of the flight ticket dated
09/03/2024
Annexure II True copy of the flight ticket dated
01/05/2024
Annexure III True copy of the medical evaluation
report dated 03/05/2024 of the power
of attorney holder
Annexure IV True copy of the flight ticket dated
11/05/2024
Annexure V True copy of the IA 53/2024 dated
31/05/2024 in OP 1537/2016 on the
files of Family Court, Thrissur
RESPONDENT ANNEXURES
Annexure R 1(b) the true photocopy of the relevant
page of the passport of the minor
child
Annexure R 1(c) true photocopy of the petition
Numbered as IA No. 53/2024 in GOP No.
1537/2016 in Family Court, Thrissur
Annexure R 1(d) true photocopy of the objection in IA
No. 53/2024 in GOP No. 1537/2016 in
Family Court,Thrissur
Annexure R 1(e) true photocopy of the Judgment in COC
No. 787/2024 dated 19.07.2024
in OP(FC) 683 of 2023 & con cases
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Annexure R 1(f) true photocopy of the Work permit of
the respondent dated 23.07.2024 issued
by the Government of Canada
Annexure R 1(g) true photocopy of the Job Offer letter
of the respondent dated 06.05.2024
in OP(FC) 683 of 2023 & con cases
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PETITIONER ANNEXURES
Annexure I Certified copy of the judgment dated
23.02.2024 of this Hon'ble Court in OP
(FC) 63/2024
in OP(FC) 683 of 2023 & con cases
2024:KER:85356
PETITIONER ANNEXURES
Annexure I Certified copy of the judgment dated
23.02.2024 of this Hon'ble Court in OP
(FC) 108/2024
