Aysha C.M vs Ali Abdul Latheef

P.G. Ajithkumar, J

The petitioner in O.P.No.15 of 2023 has filed this Review Petition under Section 114 and Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. She seeks to review the judgment dated 08.03.2023 by which O.P.(FC) No.15 of 2023 along with O.P.(FC) Nos.18 and 19 of 2023 and Mat.Appeal Nos.28 and 30 of 2023 were disposed of.

Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

The order in O.P.(FC) No.15 of 2023 is sought to be reviewed on the grounds that the direction to give the child on interim custody for a continuous period of 15 days to the respondent was without taking into account the facts, namely, (i) for the last two years, except for a solo incident, the child has not been in the custody of the respondent; (ii) repeated instances of cruelties perpetrated against the child by the respondent; and (iii) the respondent has been suffering from hepatitis-B, a contagious disease.

A detailed objection was filed by the respondent reiterating mostly the contentions justifying his claim for interim custody of the child. Of course, it is also contended that there is no error in the judgment justifying its review. The respondent produced Annexure R1(A) series photographs along with the counter affidavit. Annexure R1(A) are pictures of various joyous moments while the child was in the custody of the respondent.

The Family Court, Thrissur passed orders regulating interaction and interim custody of the child and also an injunction restraining the petitioner from removing the child from the jurisdiction of the said court. There was also an order directing the petitioner to produce the child before the Family Court and directing initiation of prosecution steps in the event of disobedience of that direction. It was after considering the challenge of the petitioner against the said composite order passed by the Family Court on a few interlocutory applications in O.P.No.1677 of 2021, this Court rendered the judgment dated 08.03.2023. As per the said judgment, O.P.(FC) Nos.15, 18 and 19 of 2023 and Mat.Appeal Nos.28 and 30 of 2023 were disposed of. In modification of the order of the Family Court and on setting aside the initiation of the prosecution steps, but leaving the question of prosecution of the petitioner open, this Court made arrangements regarding the interim custody of the child as follows:

“16. Considering the change in circumstances, essentially that the child is now staying along with the mother in Qatar, the direction regarding interim custody requires modification. Accordingly, we direct that hereafter the father will have right to interact with the child on every day through WhatsApp or video conferencing between 7.00 p.m. and 7.30 p.m. and the father shall be given interim custody of the child during first 15 days of school vacation of the child in Qatar, which, as submitted by the mother in court, is during July-August.”

In Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170] the Apex Court held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of the Code.

In Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715] the Apex Court, in the context of the power of review under Order XLVII, Rule 1 of the Code held that, 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 that 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 XLVII, Rule 1 of the Code. In the exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition has a limited purpose and cannot be allowed to be “an appeal in disguise”.

In Lily Thomas v. Union of India [(2000) 6 SCC 224] the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.

In Anantha Reddy N. v. Anshu Kathuria [(2013) 15 SCC 534] the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for a review. The mistake apparent on record means that the mistake is self-evident, needs no search, and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit the rehearing of the matter on merits.

The  Apex  Court  in  S.Madhusudhan Reddy v.V.Narayana Reddy and others [2022 SCC OnLine SC 1034 : 2022 (5) KLT SN 18] held that the Court’s jurisdiction of review is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review under Order XLVII Rule 1 of the Code.

The order of the Family Court regarding interim custody of the child allowed the respondent to have interim custody from 10.00 a.m. on every second and fourth Saturday till 4.00 p.m. on the following Sunday, first five days of Onam and Christmas holidays, on the dates of Bakrid and Eid and also the first half of April and May during summer vacation. That order was modified by this Court after taking into account the fact that the child was taken to Qatar by the petitioner (which, in fact, was in disobedience of the order of injunction). The interim custody of the child was restricted to 15 days during the school vacation of the child at Qatar, which the petitioner herself submitted to be during July-August. Absolutely no material was produced before this Court to prove when was the respondent afflicted with hepatitis-B or rather even to show that he has been suffering from such a disease.

Having heard the detailed submissions of the learned counsel on either side and deliberated upon the aforementioned facts and circumstances in the light of the law laid down in the decisions referred to above, we find no sufficient reason to review or recall the judgment dated 08.03.2023 in O.P.(FC) No.15 of 2023.

In Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840] the Apex held that all orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. Orders relating to custody of wards even when based on consent are liable to be varied by the Court if the welfare of the wards demands variation.

Therefore the order regarding interim custody of the child contained in the judgment of this Court dated 08.03.2023 may be varied if there is change of circumstances warranting a variation or modification. Therefore, the parties are at liberty to bring to the notice of the Family Court such changes as is sufficient to modify the order of interim custody and in that event the Family Court can certainly consider the same on its merits. As long as there is no such change, the parties are bound to obey, without any fail, the directions regarding interim custody of the child. We also clarify that during the custody of the child with the respondent-father, the petitioner-mother shall have the right to contact the child through audio/video call between 7.00 p.m. and 7.30 p.m. every day.

The Review Petition is disposed of accordingly.