Anumala Somanadh vs The State Of Andhra Pradesh
2024 Latest Caselaw 9179 AP

Andhra Pradesh High Court - Amravati

Anumala Somanadh vs The State Of Andhra Pradesh on 4 October, 2024

Author: Ninala Jayasurya

Bench: Ninala Jayasurya

                                       1


 APHC010139822024

                     IN THE HIGH COURT OF ANDHRA PRADESH
                                   AT AMARAVATI                         [3479]

                            (Special Original Jurisdiction)

                    FRIDAY, THE FOURTH DAY OF OCTOBER
                     TWO THOUSAND AND TWENTY FOUR

                                 PRESENT

             THE HONOURABLE SRI JUSTICE NINALA JAYASURYA

            THE HONOURABLE SMT. JUSTICE SUMATHI JAGADAM

                            Rev.I.A.No.1 of 2024
                                     in
                       WRIT PETITION No.7184 of 2024


Between:-
Anumula Lakshmi Saranya @ Bhagya Lakshmi Saranya
                                                 .....Petitioner/4th respondent
                                      And

The State of Andhra Pradesh and others                .....   Respondents

Counsel for the Petitioner                   : Mr. Y. Koteswara Rao

Counsel for the Respondent
                Respondent/Writ Petitioner : Ms. Bandaru Radhika

                                      ****
This Court made the following:

ORDER:

The Present petition etition is filed seeking to review the order dated

16.07.2024 of a Division Bench, in which one of us (JS,J) is a member and

directions, inter alia, were issued to handover the custody of a minor girl

aged about 4 ½ years to her father.

2. For the sake of convenience the parties are referred to as they are

arrayed in the Writ Petition.

3. Briefly stated, the case of the writ petitioner is that his marriage was

solemnized with the 4th respondent / revision petitioner on 02.09.2010 and

they were blessed with a female child viz., Anumula Akshitha Sri on

10.04.2020, that the 4th respondent, who is having an extra marital

relationship with her neighbour deserted the writ petitioner. Cases filed

against each other, including the G.W.O.P.No.30 of 2023 filed by his wife for

custody of minor child, are pending and on 12.02.2024, in his absence, she

took away the minor baby child from his custody by beating his old aged

mother. He lodged a complaint and except registering a Crime vide FIR

No.135 of 2024 dated 16.02.2024, for the offence under Section 324 of IPC,

the police in collusion with the 4th respondent did not take further action.

4. On receipt of notice in the Writ Petition, the 4th respondent on

04.04.2024 appeared before the Court and submitted that she has no

financial capacity to engage an Advocate to contest the Writ Petition. As

such, the Member Secretary, High Court Legal Services Committee was

directed to appoint an Advocate to represent on her behalf. However, she

engaged a counsel on her own and filed a counter affidavit setting out her

case.

5. After appreciating the rival contentions and formulating the points for

consideration as to - (i) Whether a Writ of Habeas Corpus is maintainable or

not and (ii) Whether the father is entitled to custody of a minor ward, the

order under review was passed, the operative portion of which reads as

follows:

i) The 4th respondent is directed to hand over the custody of the minor girl, Anumala Akshita Sri, to the petitioner on or before 31.07.2024 between 10.00 a.m. and 11.00 a.m. at the house of the petitioner.

ii) The Principal District Judge at Ongole shall decide the question of custody of the minor daughter in G.W.O.P.No.30 of 2023 uninfluenced by the observations made hereinabove by this Court, taking into consideration the welfare and best interest of the minor daughter, within a period of six months from the date of receipt of a copy of this order.

iii) Till the decision of the custody petition, respondent No.4 shall be entitled to visit the minor daughter on every Sunday for two hours between 10.00 a.m. and 5.00 p.m. or through video conference, as desired by her, by conveying to the petitioner in advance.

6. The learned counsel for the 4th respondent-Review Petitioner, inter alia,

contends that the mother of the minor child was wrongfully deprived of the

custody. He submits that though at the time of examining the matter, the

Court felt it appropriate to consider as whether the minor child is in illegal

custody of the 4th respondent as alleged by the Writ Petitioner, without

recording any finding, much less discussion with reference to the same,

issued direction to handover the custody of the child to the petitioner / father.

He submits that in the absence of recording any finding that the custody of

the minor child with the mother is not lawful, no directions could have been

issued for handing over the custody and the order under review therefore

suffers from error apparent on the face of the record. He further contends

that the writ petitioner is not the biological father of the minor child, but only

husband of the 4th respondent and law is well settled that when the child is a

girl, the mother would be entitled for custody and that it would, in the best

interest of the girl child, to be in the custody of the mother. He submits that

as the order under review has been passed by overlooking the material

borne out by record and the legal aspects, the order dated 16.07.2024

needs to be reviewed. Accordingly, he seeks to allow the review petition as

prayed for.

7. On the other hand, learned counsel for the writ petitioner while

referring to the statements made in G.W.O.P.No.30 of 2023 filed by the 4 th

respondent and the complaints in FIR No.120 of 2023, dated 08.06.2023

and FIR No.135 of 2024 dated 16.02.2024 submits that the order under

review was passed after taking into consideration all the relevant aspects,

keeping in view the paramount interest of the minor child. It is also

submitted that despite the specific direction to the 4th respondent to

handover the custody of the minor child on or before 31.07.2024 to the writ

petitioner, the custody was given only after 14.08.2024, that there are no

grounds attracting review of the order and the petition is liable to be

dismissed.

8. Considered the submissions made and perused the material on

record.

9. Apropos the contention that the order under review passed without

recording a finding whether the minor child is in illegal custody of the 4 th

respondent constitutes an error apparent on the face of the record, it may be

pertinent to note that while answering Point No.2, the Court felt that the

welfare of the child is of the paramount consideration and appreciated the

matter from the said perspective also. It took into account the crucial aspect

of pendency of G.W.O.P.No.30 of 2023 seeking custody of the minor child

filed by the 4th respondent / mother. The relevant portion of the order in this

regard reads as follows:

"The 4th respondent filed G.W.O.P. for custody of the minor girl and the case is pending adjudication. Pending G.W.O.P. the 4th respondent brought back the minor girl to her fold. Till such time, the petitioner took care of the minor girl and admitted her to Munnangi High School at Guntur. Moreover, the 4th respondent has nowhere stated in the counter about her financial capacity and there is no whisper in the counter as to whether she admitted the child in a school or not. In such an event, sending the minor girl to the custody of the 4th respondent may lead to adverse consequences. The 4th respondent left the minor child in April, 2023 and filed G.W.O.P.No.30 of 2023 for custody of the minor child. She has not even filed any application seeking interim custody of the minor girl or the visitation rights of the child. Further, the petitioner's mother is staying with the petitioner and can look after the minor girl."

10. Though a direct finding with reference to the illegal custody by the 4th

respondent-mother is not recorded, in the light of the expressions referred to

above, the Court being satisfied that the minor child was in the lawful

custody of the father and it is the 4th respondent who brought back the minor

child to her fold without filing any application seeking interim custody in

G.W.O.P.No.30 of 2023 which is pending, answered Point No.2 in favour of

the writ petitioner. While taking into consideration the relevant aspects, it

has given utmost importance to the welfare of the child, which is of

paramount consideration. Therefore, the contention that the order under

review suffers from error apparent on the face of the record for want of

recording a finding, merits no acceptance. Further, whether the writ

petitioner is not a biological father and on that ground, is not entitled to the

custody of the minor child or the 4th respondent/mother is entitled to the

custody of minor girl etc., are matters, which are to be adjudicated in the

G.W.O.P. Be that as it may.

11. It is settled law that the scope of the Review is limited and it cannot be

an appeal in disguise.

12. The Hon'ble Supreme Court of India, while summarizing the principles

under Order 47 Rule 1 of CPC, in Parsion Devi v Sumitri Devi1 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 which is not self-evident and

(1997) 8 SCC 715

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; that a review petition has a

limited purpose and cannot be allowed to be "an appeal in disguise".

13. Referring to a catena of cases, in Shri Ram Sahu (Dead) through

Legal Representatives and others v Vinod Kumar Rawat and Others 2,

the Hon'ble Supreme Court of India reiterated the legal position that "an

order can be reviewed by a Court only on the prescribed grounds mentioned

in Order 47 Rule1 of CPC and that the application for review is more

restricted than that of an appeal and the Court of review has limited

jurisdiction".

14. In S. Murali Sundaram v Jothibai Kannan and Others 3 the Hon'ble

Supreme Court of India was dealing with the appeals filed against the orders

passed by the High Court of Judicature at Madras (Madurai Bench) allowing

the review applications filed against the original order. The Hon'ble Apex

Court referring to the decision in Perry Kansagra v Smriti Madan

Kansagra4 and the observations made therein that "while exercising review

jurisdiction in an application under Order 47 Rule 1 read with 114 of CPC,

the Review Court does not sit in appeal over its own order, that a rehearing

of the matter is impermissible in law and that the power of review can be

(2021) 13 SCC 1

2023 SCC OnLine SC 185

(2019) 20 SCC 753

exercised for corrections of mistake but not to substitute a view, set aside

the order holding that the High Court has decided to review the application

as if it was exercising the appellate jurisdiction and the same is wholly

impermissible while considering the review application under Order 47 Rule

1 read with 114 of CPC."

15. Considering the matter in its entirety, this Court is of the view that

there is no mistake or error apparent on the face of the record, much less

sufficient reason warranting the review of the order as sought for.

Accordingly, the Review Petition is dismissed. No costs.

                                                     ____________________
                                                     NINALA JAYASURYA, J


                                                     ____________________
                                                     SUMATHI JAGADAM, J
Date:     .10.2024
Ssv





      THE HONOURABLE SRI JUSTICE NINALA JAYASURYA

      THE HONOURABLE SMT. JUSTICE SUMATHI JAGADAM





                             in


                     DATE:04.10.2024
SSV