Thursday, January 10, 2013
custody of child given to mother
Custody of child given to mother
“On a careful consideration of respective contentions, this Court is of the considered view that 'the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 directing the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future' is a valid one and the same does not suffer from any mistake much less an error on the face of record and the same is not an erroneous one and further this Court opines that the petitioner/husband is not entitled to file the present review application as an appeal in disguise and viewed in that perspective, rehearing of the matter is not permissible under the guise of review and resultantly, the Review Application is dismissed to prevent an aberration of justice. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised.”
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Review Application No.51 of 2009
R.Swaminathan ... petitioner
Sivagowri ... Respondent
Review Application filed under Order XLVII Rule 1 of the Civil Procedure Code r/w.114 of C.P.C., reviewing the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.1.2009.
For petitioner : Mr.I.Subramanian, S.C.
For M/s.Uma Vijayakumar
For respondent : Mrs.Sudha Ramalingam
The petitioner/respondent/husband has filed this Review Application praying this court to review its order dated 20.01.2009 made in CRP.(PD).No.4091 of 2008.
2.Earlier, the respondent/petitioner/wife has filed C.R.P.(PD).No.4091 of 2008 before this Court as against the order dated 14.11.2008 in I.A.No.1420 of 2008 in O.P. No.3556 of 2007 passed by the learned First Additional Judge, Family Court, Chennai in directing the respondent/ wife to hand over the child to the petitioner/respondent/ husband on every Sunday at 9.00 a.m. at a common place agreed to by both and the petitioner/husband has been directed to hand over the child to the respondent/wife on the same day at 5.00 p.m. at the same place etc.
3.This court on 20.01.2009 in C.R.P.(PD).No.4091 of 2008 has passed the following order:
"One cannot ignore an important fact that a proceeding in regard to the grant of interim custody of a minor child is a proceeding indeed for the welfare of a child and not a litigation between the parties, in the considered opinion of this Court and viewed in this perspective, a direction issued by the trial Court ordering the revision petitioner/ wife to hand over the child to the respondent/husband on every Sunday at 9.00 a.m. at a common place agreed to by both and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 5.00 p.m. at the same place etc., is not for the welfare of the child. However, the visiting right of the respondent/husband (as a father of the child being an interested person) cannot be totally curtailed and therefore, this Court, looking into the facts and appreciating the social conditions and other natural conditions and on overall assessment of the cumulative circumstances of the case and considering the interest of the welfare of the child, in modification of the order passed by the trial Court as an equitable remedy, directs the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/ wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future."
4.In the grounds of review, the petitioner/husband has averred that this Court has erred in modifying the order of the Family Court passed in I.A.No.1420 of 2008 much detriment of the petitioner/review applicant's right to visit his daughter/child for one day in a week and that the petitioner suffered both physical and mental torture at the hands of respondent/wife since the marriage has been a turbulent one and the torture so inflicted on the petitioner by the respondent/wife has been to such an extent that it traumatised the child a great deal and further that he is keen that the child must be brought up in a peaceful, serene and calm environment and the daughter has developed a parental alienation syndrome and the previous school in which she has been studying has advised the petitioner/father to take the child for a professional counseling and moreover, the petitioner's belongings such as certificates, laptop etc. are all in respondent/wife's custody and she has refused to give it back to the petitioner and that the child has been shifted from Vidyodaya Matriculation Academy without consulting the petitioner/husband and that the petitioner/husband has been forced to pay the donation of Rs.65,000/- for admission in the Chettinad Vidyashram School and also that the respondent/wife in order to have total control over the child has got a job as a Teacher in the same school and that the petitioner/husband is neither allowed to meet the child nor the school authorities to enquire about the child's progress and well being and as a matter of fact, the correspondent of Vidyodaya Schools Society (the previous school where the child has been studying) has now given the petitioner a letter dated 09.2.2009 which has not been available when the order has been passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and the order of the Family Court dated 14.11.2008 in I.A.No.1420 of 2008 in O.P.No.3556 of 2007 satisfied the parties who have been benefited by the same and this Court has declined to set aside the order of the Family Court in toto while passing orders in C.R.P.(PD).No.4091 of 2008 but reduce the number of times the petitioner/father can visit his daughter and the contents of the letter dated 09.02.2009 given by the Vidyodaya Schools Society may warrant review of the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and restore the visitation rights of the petitioner/husband as initially granted by the Family Court etc.
5.The further pleas of the petitioner/husband are that the letter dated 09.2.2009 of the Headmistress of Vidyodaya Schools Society that the petitioner/husband has visited the school only during lunch break and that too only on the insistence of the Teacher and not as stated by the respondent/wife in her affidavit and indeed the parents have equal rights to the child/daughter and neither parties rights are superior to that of the other and that the plight of the petitioner has been deprived of the company of his precious daughter.
6.According to the learned counsel for the petitioner that the order passed in matrimonial proceedings are interlocutory orders and not the final orders and even in compromise orders a modification order can be filed and as far as the petitioner/husband is concerned, he is not interested in initiating the contempt proceedings against the respondent/wife and as per Section 6 of the Hindu Minority and Guardianship Act, the father viz., the petitioner is the natural guardian of the Hindu minor and that the statute mandates that the father is the natural guardian and in the present case before us, the child/ daughter is 8 years and there is nothing to indicate that the petitioner/father is disqualified and when the respondent/wife has floated the orders passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009, she cannot avail the benefit of the said order.
7.In support of the contention that custody orders passed by the Court in matrimonial proceedings are an interlocutory one, the learned counsel for the petitioner cites the decision in B.Suresh Babu V. Nithya 2009 (1) CTC 402 wherein this Court has held that 'revision under Article 227 of the Constitution could be maintainable only if there is no alternative remedy available to prevent abuse of process of Court and to meet ends of justice under the supervisory power of the High Court and further it is the settled proposition of law that in case of custody of minor child, welfare of child is paramount and even orders passed on compromise has to be treated as an Interlocutory Order subject to modification and that the revision petitioner/father of the child is entitled to place all his defence to substantiate his visiting right as per compromise decree and Court below is empowered to decide the same on merits and that the respondent has to establish alleged change of circumstance warranting filing of an application and justify the relief sought for and taht the Court is not an functus officio.'
8.He also relies on the decision of Hon'ble Supreme Court in Jai Prkash Khadria V. Shyam Sunder Agarwalla and another in (2000) 6 Supreme Court Cases 598 at page 599 wherein it is held that 'orders relating to custody of children are by their very nature not final but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child.'
9.The learned counsel for the petitioner/husband brings it to the notice of this Court in the decision of Hon'ble Supreme Court in Nil Ratan Kundu and another V. Abhijit Kundu (2008) 9 SCC 413 wherein the Hon'ble Supreme Court has inter alia observed that 'in regard to the issues pertaining to the custody of minor the same should be handled with love, affection, sentiments and applying human touch to the problem.'
10.It is to be borne in mind that as a general rule, the Court will appoint the father as a guardian of the minor and will not deprive him of the custody of minor if it is satisfied that having regard to the facts and circumstances of the case, the father must have the custody of the minor. In all such cases, the vital consideration in appointing the guardian ought to be the welfare of the minor child and the Court may not give custody of the minor to the father. In the decision Mohini V. Veerendrakumar AIR 1977 S.C., it is held that 'the mother is entitled to guardianship and custody of minor son 11 years old.'
11.When the father is alive, he is the natural guardian and it is only after him the mother becomes the natural guardian. However, there can be an exceptional case where the minor can be legally represented by the mother as the natural guardian, even though the father may be alive. Where the father of the minor has been alive, but the father and mother has fallen down and the mother with whom the minor has been living and has been managing the affairs of the minor daughter for over 20 years it is held that a lease executed by the mother on behalf of the minor has been valid and binding on the minor, the mother being recorded as a natural guardian of the minor in the particular circumstances as per decision Jijabai Vithalrao Gajre V. Pathankhan AIR 1971 SC 315.
12.The learned counsel for the petitioner/husband submits that he is not seeking a review of the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 but prays for an issuance of an order to modify the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009.
13.In response, the learned counsel for the respondent/wife submits that the review application is not maintainable before this Court since there is no error apparent on the face of record in the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and the review jurisdiction is an extraordinary remedy in limited cases and that is not similar to an appeal and under the guise of review, the petitioner ought not to be permitted to re-agitate the pleas and in fact, the petitioner has not made out a case that the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 suffers from an error apparent on the face of record and as such, the review application is liable to be dismissed.
14.In support of the contention that rehearing the matter for deducting an error in the earlier decision and then correcting the same do not fall within the purview of review jurisdiction, the learned counsel for the respondent /wife cites the decision of Hon'ble Supreme Court in Parsion Devi and others V. Sumitri Devi and others (1997) 8 SCC 715 at page 716 wherein it is inter alia observed as follows: "Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".
15.Also reliance is placed on the decision in Meera Bhanja V. Nirmala Kumari Choudhury (1995) 1 SCC 170 wherein it is laid down that 'review must be confined to error apparent on the face of the record and error must be such as would be apparent on mere looking of the record without requiring any long-drawn process of reasoning and reappraisal of the entire evidence on record for finding the error would amount to exercise of appellate jurisdiction which is permissible etc.'
16.In the additional affidavit of the petitioner/ husband it is among other things mentioned that 'for 8 months he has been denied access to his daughter and finally the Family Court in I.A.No.1420 of 2007 granted him two hours visitation rights of Thursdays and after his daughter's school reopened this has been reduced to one hour a week on the request of the respondent/wife before the Court and the Family Court passed final orders in I.A.No.1420 of 2007 on 14.11.2008 granting him visitation rights on all Sundays from 9.00 a.m. to 5.00 p.m. and when this has been challenged in C.R.P.(PD).No.4091 of 2008 orders have been passed reducing the visitation rights to the first and third Sundays in a month and pending adjudication of the review application, a changed circumstance has occurred and on 04.06.2009 Mr.Dilip, the junior of his wife's counsel called and told him to pay the child's school fees and when the authorities of the school wanted him to furnish the roll number of the child which he is not aware and the authorities after verifying the records has come back and informed him that he cannot pay the fees as they have been instructed by his wife not to entertain him at any cost or to give any access to the child or information about her progress in the school and the school authorities refuse to allow him to pay the fees and asked him to leave the school premises and he has an equal right to the welfare of the child.
17.In the counter filed (in the review application) by the respondent/wife, it is among other things stated that it is the husband who volunteered to pay school fees and donation to Chettinad Vidyashram School before the Family Court Judge and he enjoyed visitation rights on Thursdays in the child care centre at the Family Court premises and there is no need for him to visit the child in the school and disturb her in the presence of her other classmates and schoolmates and she has obeyed the orders of the Family Court and this Court except on two occasions, when her daughter has been sick and when her family has gone on a pilgrimage and even on such occasions, she informed the husband duly through the Family Court counsellor Ms.Lalitha, in whose house the child is generally handed over during visitation hours and in fact, on her instruction, her counsel's junior has requested the husband to pay the school fees as he has already volunteered to pay for it in the Family Court and that he has not paid the fees and therefore, she has paid the same and when the child is in her custody and the husband has only visitation rights on alternative Sundays, disturbing the child at any other time violates the rights of the child and that of her to live in peace and harmony and the review petitioner/ husband has no new circumstances to substantiate his claim for review and has been engaging in vexatious litigation purely to harass her and her family.
18.In the decision of this Court in K.Jagannathan V. A.M.Vasudevan Chettiar and others (2001) 1 M.L.J. 614 it is held that 'Admittedly the mother has not alienated the property of the minor. Under the document joint family properties were divided and the minor was represented by his mother as guardian. Though father is a natural guardian as per Sec.6, it was the father who permitted the mother to act as the guardian of the minor and he did not raise any objection.'
19.It is not out of place to point out that as per Section 26 of the Hindu Marriage Act, the Court, pending the matrimonial proceedings from time to time, may pass orders as to the interim custody of the minor child.
20.This Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 by directing the revision petitioner/wife to hand over the child Shreya to the respondent/husband (review petitioner/father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. etc. has not denied a complete access to the review petitioner/husband.
21.The power of review under Order 47 Rule 1 constitute an exception to the general rule to the effect that once a judgment is signed and delivered it cannot afterwards be altered. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for a patent error as per decision in Saravana Pillai V. A.S.Mariappan 2003 1 MLJ 693. Indeed, the ambit of review is for review of 'error apparent' only and not to review the judgment/order, even if the parties are placed in a situation to satisfy the Court that the order under review is an erroneous one as per decision Ahmedabad Electricity Company Limited V. State of Gujarat AIR 2003 Guj 157 (159) D.B. The aim is not to enable a Judge to write a second judgment because the first one was wrong as per decision in Krishnan V. Narayanan AIR 1951 Madras at page 660.
22.Even if a decision or an order is erroneous in law or on merits it cannot be accepted that it is an error apparent on the face of the record. Where there are two possible views regarding the interpretation or application of law vis-a-vis the particular facts of a case, taking one view, even if it is erroneous cannot be said to be an error apparent on the face of the record. There exist a distinction between a mere erroneous decision and an error apparent on the face of the record. An error can be said to be apparent on the face of record only when such an error is patent and can be found out without any detail argument without any scope for any controversy in regard to such error, which as if at a glance stares at the face. But if there is no error apparent on the face of record review petition is not maintainable as per decision Kailash Talkies V. State of Rajesthan 1998 AIHC 2401. Moreover, if a view adopted by the Court in the original order is a possible view, it cannot be an error apparent on the face of record even though another view is also possible as per decisionC.N.Ramachandra V. State AIR 1997 Kant 181, 183. In short, a review cannot repair the verdict once given if it is not an error on the face of it as per decision in Sabad Ch Deka V. Naomai Deka AIR 1985 NOC 19 (Gau).
23.A review petition has to be entertained only on the face of the error apparent on the face of record but not on any other reason in the considered opinion of this Court. The limitation of the power of a Court of law under Order 47 Rule 1 C.P.C. is akin to the jurisdiction available to the High Court while seeking review of the orders under Article 226 of the Constitution as per decisionMeera Bhanja V. Nirmal Kumar Choudhury (1995) 1 SCC at page 170. Mere possibility of two views is not a ground for review, the review Court cannot said as an Appellate Court therefore, reassessing the evidence and pointing out the defects in the order of the Court is not proper as per decision Santhosh Kumar V. Nageshwar Prasad AIR 2001 All 187. Admittedly, the power of review the hedged in by the restrictions specified in Order 47 it can be exercised on the application of an individual on the discovery of new matter of evidence which, after the exercise of due diligence has not been within its knowledge or could not be produced by him at the time when the order has been made. Suffice it for this Court to point out that a review cannot be claimed or asked for merely for a fresh hearing or an argument, or a correction on an erroneous view taken earlier, that is to say, the power of review can be exercised only for the correction of a patent error of law or fact which stares in the face without any detail arguments being required for establishing the same. The expression 'any other sufficient reason' employed in Order 47 Rule 1 means a reason sufficiently analogous to those mentioned in the rule.
24.Mere discovery of vital new matter or evidence is not sufficient ground for a review. A party seeking review has also to establish that such additional material has not been within its knowledge and even after the exercise of due diligence could not be produced any Court earlier. An error contemplated under Order 47 Rule 1 C.P.C. must be such which is an apparent on the face of record and not an error which has to be fished out and searched in the considered opinion of this Court A reappraisal of the evidence on record for finding out the error will amount to an exercise of appellate jurisdiction which is not permissible by the constitute.
25.The learned counsel for the respondent/wife cites the decision in Mohan Lal Bagla V. Board of Revenue AIR 2005 All 308 wherein it is held as follows:
"To argue same details as a question of fact in second inning of the matter cannot be permitted. It is under very exceptional circumstances where it can be demonstrated that on the finding and reasoning so given, there is error apparent on the face of record which can be termed to be mistake within the meaning of error apparent as that can be discovered without any argument, it may be filed by a new advocate but that too after obtaining no objection from earlier counsel. If a case is to be argued on the same set of facts by change of counsel, at several occasions, it may be possible that with imminence of the counsel, a new dimension to the augment may come on same set of facts. Skill in the argument and advocacy is to vary always from counsel to counsel. Although earlier two senior advocates of this Court namely Sri R.N. Singh and Sri V.B. Upadhyaya argued the matters on behalf of applicant at length with full vehemence at their command but now Sri V.B. Singh, learned senior advocate wants to argue the matter in his own way by placing the same record and same pleadings. On the facts of present case, this Court is of the view that filing of review petition on the ground so taken in the application cannot be said to be just and proper so as to entitle Sri Saran, learned advocate and Sri Singh, learned senior advocate to file and argue this review petition. It is thus established that change of counsel during review proceedings is a deprecated practice that is actively discouraged by the Courts. Such practice acts as a backdoor to abuse of review proceedings. With changed counsel, pleas are re-agitated as though in appeal, thereby obliterating the distinct differences in the nature of appellate and review proceedings. The present case suffers from the same malady where the Petitioner is attempting to disguise his appeal in the cloak of review proceedings complete with change of counsel."
26.The learned counsel for the petitioner/husband submits that the Correspondent of Vidyodaya Schools Society, Chennai-600 017 in her letter dated 09.02.2009 addressed to the petitioner herein inter alia stating that the petitioner has come to Vidyodaya School only during lunch time at the insistence of her teacher who felt that she has been missing you and her impression that Shreya has been happy and relieved to see him and enjoyed the treats that you have brought and further the students of Standard I being only 5 years old neither understood nor commented on any family problem and it is her impression that Shreya enjoyed being a student of Vidyodaya Matriculation Academy and access to her has always only with the permission of the school authorities and only during the lunch interval and counselling for her has been recommended because of her behaviour in class room etc. and as such, the averments of the respondent/wife in her affidavit are false which in turn is a good ground for this Court to reconsider its order passed in the main civil revision petition. However, the learned counsel for the respondent/wife contends that the letter of the school Correspondent dated 09.02.2009 addressed to the petitioner/husband cannot be relied upon as it is contrary to facts and the same has been given solely to please him and further the Correspondent is not competent or qualify to enter a judgment in regard to the mental state of the child, apart from the fact that the said letter has been issued more than a year after the child has been transferred from the said school. In effect, the letter dated 09.02.2009 of the Correspondent of the Vidyodaya Schools Society addressed to the petitioner/ husband is very much disputed on the side of the respondent /wife. In this connection, it is apt for this Court to cite the decision of Hon'ble Supreme Court in Union of India V. Paul Manickam AIR 2003 SC 4622, 4629 wherein it is held that 'the Court will not entertain a review petition with an entirely new substratum of issues or where there is suppression of facts.' In the decision Bahadur V. Bachai AIR 1963 All. 186 it is observed that 'the High Court cannot set aside or recall its own decision on a review application under Order 47 of C.P.C. but it can set right the wrong committed by it in exercise of its inherent jurisdiction. The learned counsel for the respondent/wife brings it to the notice of this Court that the Delhi High Court in Krishna Bus Service (P) Ltd., V. Satvir Singh, W.P.(C).No.3275/2001 (decided on 19.03.2008) has held as follows: "Discovery of new evidence or material by itself is not sufficient to entitle a party for review of a judgment. A review is permissible on the ground of discovery of new evidence only when such an evidence is relevant and of such a character that if it had been produced earlier it might possibly have altered the judgment, further, it must be established that the applicant had acted with due diligence and that the existence of the evidence, which he has now discovered, was not within his knowledge when the order was passed. If it is found that the petitioner has not acted with the diligence then it is not open to the Court to admit evidence on the ground of sufficient cause. The party seeking a review should prove strictly the diligence he claims to have exercised. In a review application a party cannot be allowed to introduced fresh documents merely to supplement evidence which might possibly have had some effect on the result."
27.Added further, the learned counsel for the respondent/wife relies on the decision of Hon'ble Supreme Court in Tamil Nadu Electricity Board V. N.Raju Reddiar (1997) 9 SCC 736 wherein it is held as follows:
".... except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the advocate on record who neither appeared nor was party in the main case. It is salutary that court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the advocate on record at earlier stage. This is not conductive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession." Furthermore, in the aforesaid decision it is observed as follows:
"Once the petition for review is dismissed, no application for clarification should be filed, much less with the change of the Advocate-on-Record. This practice of changing the advocates and filing repeated petitions should be deprecated with a heavy hand for purity of administration of law and salutary and healthy practice.
The application is dismissed with exemplary costs of Rs.20,000 as it is an abuse of the process of Court in derogation of healthy practice. The amount should be paid to the Supreme Court Legal Aid Services Committee within four months from the date of judgment."
28.The utmost requirement under Order 47 Rule 1 of C.P.C. is that the order of which review is sought suffers from any error apparent on the face of order and permitting the order to stand will lead to failure of justice as per decision Rajendra Kumar V. Ram Bai AIR 2003 SC 2095 (2096). No wonder, the power of review is not to be confused with the appellate power which enable the appellate Court to correct all errors of Subordinate Court. A review means the act of looking, offer something again with a view to correction or improvement and that the same is also not an appeal in disguise as per decision Lily Thomas V. Union of India AIR 2000 SC 1650 (1652). Also there cannot be a reappraisal of the entire evidence on record for finding an error. It is needless to state that if there is reappraisal, it will amount to exercise of appellate jurisdiction, which is not permissible. The learned counsel for the respondent/wife refers to the decision of Hon'ble Supreme Court in Thungabhadra Industries Limited V. The Government of Andhra Pradesh, 1965 (5) SCR 174 (186) wherein it is held that 'a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.' Another decision of this Court in Hindustan Photo Films Company Limited and another V. H.B. Vinobha and others AIR 1998 Madras 358 is relied on the side of the respondent/wife wherein it is held as follows: "the power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground, It may not be exercised on the ground that the decision was erroneous on merits since that would be the province of Court of Appeal and the same cannot be a ground for review. Where the very same objections were raised in review which were earlier raised and considered on the fact of information furnished by both sides while disposing of the writ petitions, the review applications would be liable to be dismissed."
29.In regard to the contention that the orders pertaining to custody of children are interlocutory in nature and subject to modification at any future time based on proof of change of circumstance and such change in custody ought to be established in the paramount interest of the child, the learned counsel for the petitioner refers to the decision of Hon'ble Supreme Court in Rosy Jacob V. Jacob A. Chakramakkal (1973) 1 SCC 840.
30.On a careful consideration of respective contentions, this Court is of the considered view that 'the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 directing the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future' is a valid one and the same does not suffer from any mistake much less an error on the face of record and the same is not an erroneous one and further this Court opines that the petitioner/husband is not entitled to file the present review application as an appeal in disguise and viewed in that perspective, rehearing of the matter is not permissible under the guise of review and resultantly, the Review Application is dismissed to prevent an aberration of justice. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised.
31.In fine, the Review Application is dismissed, leaving the parties to bear their own costs. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised. Considering the relationship of the parties and the facts and circumstances of the case, there shall be no order as to costs. 3.08.2009
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The I Additional Judge,
Family Court, Chennai.