The Kerala High Court recently observed that when the Court itself makes an error in an order, the principle of estoppel cannot be invoked to oppose a party/ litigant from questioning such an order, even if the litigant has previously benefitted from it.

A Bench of Justices PB Suresh Kumar and C Pratheep Kumar made the observation while recalling an order passed by it in a child custody dispute.

The recalled order had granted interim custody of a child to the child's father, while allowing the mother to file for custody in future - once she secures employment in Canada where she wished to take the child.

However, the father (petitioner) later filed a revision plea questioning the correctness of the decision, on the ground that it failed to adjudicate key issues raised before the High Court.

The petitioner's ex-wife opposed the revision petition by pointing out that the petitioner had already benefitted from the order under challenge and had even taken over the custody of the child by using this court order. Her counsel argued that the father was estopped from challenge this order after benefitting from it.

The Court, however, found that there were patent errors in the order under challenge, which warranted its recall. The Court added fairness and justice must prevail over rigid legal principles like estoppel, especially in cases involving child welfare.

"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 manner so as to violate the principles of what is right and of good conscience ... 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 Court said.

By way of background, the child custody case was initially before a family court in Thrissur. After mediation, it was decided that the mother would get permanent custody of the child, while the father would have visitation rights.

However, the mother later remarried and moved to Canada for higher studies. This led the father to file applications to alter the earlier custody arrangement. The father sought permanent custody of the child and permission to take the child to Dubai where he was employed.

The mother, meanwhile, moved applications for permission to take the child the Canada.

The family court rejected the mother's applications and allowed the father to take the child to Dubai, albeit in the next academic year.

Both parents then approached the High Court. The father sought to take the child to Dubai immediately, without waiting for the next academic year, while the mother wished to take him to Canada.

The High Court passed a common order, permitting the father to take the child to Dubai immediately, as an interim measure. However, it also clarified that the mother could file for child custody before the family court once she secured employment in Canada.

The father challenged this decision through a review petition. His primary grievance lay with the High Court stating that his custody rights were subject to the mother's rights once she secured employment in Canada.

The mother, on the other hand, contended that since father has already acted on the order by taking custody of the child, he could now seek to modify the order due to the doctrine of estoppel.

After considering the rival arguments, the Court eventually recalled its earlier directions on finding patent errors in it. The Court said that the mother cannot be allowed to benefit from such errors. The Court added that in any case, child custody orders can always be varied if there is a change of circumstances.

The Court proceeded to allow the petitioner's review plea, recalled its earlier order and posted the matter for a fresh hearing.

"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," the Court added.

The petitioner (father) was represented by Senior Counsel Dhanya P Ashokan and advocates MR Venugopal, S Muhammad Alikhan and Anjana S Raj.

Advocates Praveen K Joy and ES Saneej appeared for the respondent (mother).

[Read Order]