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Gauhati High Court · body

2006 DIGILAW 554 (GAU)

MD. Riazuddin Ahmed v. Farida Begum and Anr.

2006-06-08

H.N.SARMA

body2006
1. Heard Mr. A.R. Banerjee, learned senior counsel for the review petitioner and also heard Mr. A.B. Choudhury, learned senior counsel for the respondents. 2. This review petition has been filed by the unsuccessful appellant in RFA No. 126 of 2000 which was dismissed by the learned Single Judge of this court, vide judgment and order dated 3.10.2002 upholding the judgment and order passed by the learned District Judge, Tinsukia in Title Suit No. 26 of 1998 by which the learned District Judge, Tinsukia allowed the custody of the minor children to the respondent No 1. 3. The petitioner and respondent No. 1 were husband and wife at one point of time and now they have divorced each other. Out of their martial life, two children were born, one male and the other is female. The male child has been named as Md. Bonny Aquib and the female child as Nazifa Ahamed, who are now aged about 15 and 18 years respectively. When the female child, Nazifa Ahamed attained 5(five) months, the defendant/respondent No. 1 got herself transferred to Guwahati and stayed with the plaintiff/review petitioner till she was divorced. After the divorce, an unfortunate subject of dispute arose between the parties. The children having remained with the custody of the mother/respondent No. 1, the father of the petitioner filed Title Suit No. 26/98 in the court of the learned District Judge, Tinsukia for a declaration that the custody of the children given to the mother/respondent No. 1 by the respondent No. 2 is void and the respondent No. 2 also is liable to get Rs. 1.00 lakh as compensation. The learned trial courts decided the suit against the plaintiff and vide judgment and order dated 10.7.2000 dismissed the claim of the plaintiff. While deciding the matter, the learned trial court considered in details the evidence and materials on record. The learned trial court also considered the capability of the mother to maintain her children and she being a government employee and there was nothing on record, the custody of the children to the plaintiff was not granted. The said judgment and order passed by the learned trial court was carried into this court by filing RFA No. 126 of 2000. The learned trial court, after hearing the parties vide judgment and order dated 3.10.2002, dismissed the appeal. The said judgment and order passed by the learned trial court was carried into this court by filing RFA No. 126 of 2000. The learned trial court, after hearing the parties vide judgment and order dated 3.10.2002, dismissed the appeal. While so dismissing the appeal, the paramount welfare and security of the children was duly taken into consideration and upon such consideration, the learned Single Judge, opined that it would be in the best welfare and security of the children to remain in the custody of the mother/respondent No. 1. The present review petition has been filed by the appellant challenging the said judgment and order. 3. During the course of hearing, Mr. A.R. Banerjee, learned senior counsel appearing for the appellant/review petitioner, submits that under the provisions of section 357 as incorporated on the principles of Mahomedan Law (Mulla's) that the father is entitled to the custody of a boy over seven years of age (ii) and of an unmarried girl who has attained puberty. Failing the father, the custody belongs to the paternal relation in the order given in section 355 above, and subject to the proviso to that section. If there be one of these, it is for the court to appoint a guardian of the person of the minor. The learned counsel submits that while disposing of the same, the learned court did not consider this aspect of the matter and accordingly arrived at the wrong decision. Had this point been considered, the appeal would have been allowed for non-consideration of the said provisions of law, which is the sufficient reason within the meaning of order 47, rule 1 of the CPC to review the said judgment. Mr. Choudhury, learned senior counsel appearing on behalf of the mother/respondent No. 1, on the other hand, submits that the point which has been raised in the review petition having not urged at the time of hearing of the appeal, cannot now be permitted to be re-agitated in view of the various decisions rendered by this court in similar cases after hearing both the parties. It is further submitted that the learned trial court considered the paramount welfare and security of the children rightly upon consideration of the materials available on record by affirming the judgment and decree passed by the learned trial court. 4. I have considered the rival submissions made by the learned counsel for the parties. It is further submitted that the learned trial court considered the paramount welfare and security of the children rightly upon consideration of the materials available on record by affirming the judgment and decree passed by the learned trial court. 4. I have considered the rival submissions made by the learned counsel for the parties. While this matter was pending before this court, two minor children and their parents appeared before this court and they were personally talking with the learned Single Judge of this court. After talking with them, the learned Single Judge of this court, recorded his finding in the order dated 13.9.2004: "13.9.2004 As per order of this court dated 4.8.2004 and 23.7.2004, the respondent is present in the Court along with her minor son and daughter Shri Bonni Aquib (14 years) and Smti Nazifa Ahmed (16 years). I have talked to them personally in the chamber. Both of them have expressed that they are not willing to live with the review petitioner, their father and that they are happy living with their mother, the respondent. The review petitioner was also called to the chamber for personal discussion. To a specific question as to whether, although he and his wife stands already divorced from each other, he would like to remarry her, he answered in the affirmative. However, the respondent-wife opposed to such a proposition and expressed her mind not to go for any re-union with the review petitioner. Learned advocates for the parties have been apprised of the respective opinions and desire expressed by the review petitioner, the respondent and the minor children. Hearing stands adjourned for two weeks. List the matter after two weeks." A review is a stricture of statute and such power of review having been provided under section 114 of the CPC as well as in order 47, rule 1 of the CPC, the present review petition, in order to be allowed, requires complete satisfaction of those provisions of law. Admittedly, such a review, in the instant case, is for non-consideration of the provisions of law by the learned Single Judge while disposing the RFA No. 126 of 2000 and the said provision of law, as referred to above, is the provision contained in the section 357 of the Principles of Mahomed an Law. 5. Admittedly, such a review, in the instant case, is for non-consideration of the provisions of law by the learned Single Judge while disposing the RFA No. 126 of 2000 and the said provision of law, as referred to above, is the provision contained in the section 357 of the Principles of Mahomed an Law. 5. On perusal of the judgment and order dated 3.10.2002 it does not transpire that such provisions of law has not been considered at the time of hearing. Mr. Banerjee has strenuously submitted that the decision rendered by this court in an appeal not being in accordance with law and non-consideration of the fact, is liable to be reviewed, as the petitioner is entitled, under the law, to the custody of the children. Mr. Banerjee seeks to rely on the decision in the case of Reginald Danieal v. Sarojam and Another, AIR 1969 Mad. 365 wherein the learned Single Judge of the Madras High Court held that the welfare of the child would come into play for consideration, in case, it is found that the father is disentitled or unfit to be the guardian to get the custody of the children and the decision of the learned trial court was set aside in appeal by the High Court. Upon re-appreciation of the fact and materials available on record of the case, the fact of the aforesaid case is not similar in the instant case, more particularly, in the instant case the children are with the mother since their inception. The powers of the court to review its earlier judgment are settled, by now, by various decisions of the Apex Court. In the latest reported case, i.e., Haridas Das v. Smti Usha Rani Banik & Ors. AIR 2006 SOW 1771, over ruling the decision of this court reported in AIR 2005, Gau. 1, the Apex Court considering the earlier decision of the Apex Court reported in AIR 1964 SC 1372 , AIR 1995 SC 455 , AIR 1979 SC 1047 , AIR 1963 SC 1909 , AIR 1960 SC 137 , (1997) 8 SCC 715 and AIR 1966 SC 153 at para 13, held as follows : - "13. 1, the Apex Court considering the earlier decision of the Apex Court reported in AIR 1964 SC 1372 , AIR 1995 SC 455 , AIR 1979 SC 1047 , AIR 1963 SC 1909 , AIR 1960 SC 137 , (1997) 8 SCC 715 and AIR 1966 SC 153 at para 13, held as follows : - "13. In order to appreciate the scope of a review, section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may made such order thereon as it thinks fit". The parameters are prescribed in order XLVII of the CPC and for the purposes of this Us permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulates a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is empty evident from the explanation in rule 1 of the order XLVII which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appelable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. This court in MIs. Thungabhadra Industries Ltd., (in all the Appeals) v. The Government of Andra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, AIR 1964 SC 1372 held as follows: "There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent". A review is by no means an appeal in disguise whereby at erroneous decision is reheard and corrected, but les only for patient error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out." 6. The learned Judge, while deciding the appeal, duly and rightly considered the paramount welfare and security of the children, which is the prime consideration. In deciding the custodial matters relating to and affecting minor children, the right of the children, in the complex modern scenario of the present day society has assumed utmost importance amongst the courts. Welfare of minor in the society has also attracted attention of the social thinkers and activists. 7. In my considered opinion granting of custody of the children, the right of either of the parents is to be balanced and considered towards and in favour of the welfare of the children. Children are human beings and not chattels. They are the future of the society. In the instant case, the children are at the crossroad of their youth and are juvenile. Due to their tender and familial atmosphere age, they are to be dealt with very cautiously. Personal right of the petitioner, in the instant case, cannot be permitted to override the welfare of the children. Accordingly, with great respect to the learned Judge; I could not persuade myself to follow the valuable observations of the learned Single Judge of the Madras High Court appearing in the case of Reginald Danieal v. Sarojam and Another (supra) on which Mr. Banerjee heavily relied upon. 8. There is yet another aspect of the matter. If the impugned decision has been passed wrongly, on that count, a review petition could not lie as a wrong decision is not a ground for review and there is no res integra to this proposition. Considering the aforesaid facts and circumstances, I do not find any merit in this review petition and hence, it is rejected.