No Question Of Estoppel Against A Party When Error Is Committed By Court Itself: Kerala High Court In Custody Dispute Case

“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.”

The review petitioner father (before the division bench) and the respondent mother of the child were divorced. The mother had remarried and was doing her higher studies in Canada. The father/review petitioner was working in Dubai; he moved the family court seeking to be the child's guardian. These proceedings was disposed of based on a mediation settlement, in terms of which permanent custody of the child was given to the respondent mother, subject to the visitation rights of the petitioner father.

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 by modifying the order passed in the proceedings. He also moved another application seeking orders permitting him to take the child to Dubai, where he is presently working, so as to enable the child to continue his education there.

The mother also moved cross applications, which were dismissed by the family court and the father was allowed to take the child to Dubai 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.

Subsequently the father filed original petitions against the family court's orders before the the single bench with a prayer to modify the same and allow him to take the child to Dubai in the same academic year itself; the mother also filed original petitions.

Ultimately the single bench 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. 

Before the division bench the petitioner in review challenged this order for giving the respondent/ mother the right to approach the family court for custody once she has obtained the employment.

The respondent mother argued that the petitioner cannot challenge the order of the Single Judge after accepting the custody of the child. The respondent submitted that the petitioner even instituted contempt proceedings against them for obtaining the transfer certificate of the child. The mother argued that as per the principle of estoppel, the petitioner cannot deny the validity of an order after accepting its benefits.

The Court observed that the Single Judge had not decided on the correctness of the orders of the family court challenged before it. The Court held that the order is vitiated by an 'error apparent on the face of the record'.

The Court observed that estoppel cannot violate the principles of what is right and of good conscience. It said that 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 manner so as to violate the principles of what is right and of good conscience,” the court underscored.

The Court observed that if the various orders of the Family Court are considered, the mother is not entitled to any right to apply for custody at a later point. It said that the mother had obtained a "windfall" on account of an error committed by the high court. 

"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," the court said. 

Allowing the father's review petitions the high court recalled the order of the Single Judge and ordered fresh hearing in the matter.

Case Title: X. v Y

Counsel for Petitioners: Advocates M. R. Venugopal, Dhanya P. Ashokan (Sr.), S. Muhammad Alikhan

Counsel for Respondents: Advocates Praveen K. Joy, E. S. Saneej

Case No: R.P. No. 581 of 2024

Citation: 2024 LiveLaw (Ker) 734

Click Here To Read/Download Order