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
Vs.
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
ORDER
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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sgl
To
The I
Additional Judge,
Family
Court, Chennai.
M.VENUGOPAL,
J.
