Kerala High Court
Anoop Vijayakumar vs Rajeev S.R on 16 June, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 16TH DAY OF JUNE 2023 / 26TH JYAISHTA, 1945
R.P. NO. 538 OF 2023
AGAINST THE JUDGMENT DATED 10.04.2023 IN MAT.APPEAL
NO.282 OF 2019 OF HIGH COURT OF KERALA
REVIEW PETITIONER/APPELLANT:
ANOOP VIJAYAKUMAR
AGED 32 YEARS, S/O VIJAYAKUMAR,
ARCHANA HOUSE, KEETHI NAGAR, NADATHARA P.O,
THRISSUR, PIN - 680751.
BY ADVS.
RAJIT
ARJUN S.
RESPONDENTS/RESPONDENTS:
1 RAJEEV S.R.,
AGED 56 YEARS, S/O RAMAKRISHNAN NAIR,
SREERANGAM HOUSE, MADAPPALLY P.O,
CHANGANACHERRY TALUK, KOTTAYAM, PIN - 686546.
2 LALY RAJEEV,
AGED 54 YEARS, W/O RAJEEV, SREERANGAM HOUSE,
MADAPPALLY P.O, CHANGANACHERRY TALUK, KOTTAYAM,
PIN - 686546.
BY ADV SANIL JOSE
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 16.06.2023, ALONG WITH RP.542/2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
2
R.P.No.538 of 2023 in Mat.Appeal No.282 of 2019 and
R.P.No.542 of 2023 in Mat.Appeal No.25 of 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 16TH DAY OF JUNE 2023 / 26TH JYAISHTA, 1945
R.P. NO. 542 OF 2023
AGAINST THE JUDGMENT DATED 10.04.2023 IN MAT.APPEAL NO.25
OF 2019 OF THE HIGH COURT OF KERALA
REVIEW PETITIONER/APPELLANT:
ANOOP VIJAYAKUMAR,
AGED 32 YEARS, S/O VIJAYAKUMAR, ARCHANA HOUSE,
KEERTHI NAGAR, NADATHARA P.O, THRISSUR, PIN -
680751.
BY ADVS.
RAJIT
ARJUN S.
RESPONDENTS/RESPONDENTS:
1 RAJEEV S.R
AGED 56 YEARS, S/O RAMAKRISHNAN NAIR,
SREERANGAM HOUSE, MADAPPALLY P.O,
CHANGANACHERRY TALUK, KOTTAYAM, PIN - 686546.
2 LALY RAJEEV
AGED 52 YEARS, W/O RAJEEV.S.R, SREERAGAM HOUSE,
MADAPPALLY P.O, CHANGANACHERRY TALUK, KOTTAYAM,
PIN - 686546.
BY ADV SANIL JOSE
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 16.06.2023, ALONG WITH RP.538/2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
3
R.P.No.538 of 2023 in Mat.Appeal No.282 of 2019 and
R.P.No.542 of 2023 in Mat.Appeal No.25 of 2019
ORDER
P.G. Ajithkumar, J.
Mat.Appeal Nos.25 and 282 of 2019 were disposed of
as per the common judgment dated 10.04.2023. These
Review Petitions are filed by the appellant in the appeals on
common grounds invoking the provisions of Section 114
read with Order XLVII, Rule 1 of the Code of Civil
Procedure, 1908.
2. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondents.
3. More grounds than one are urged in the petitions
for the review. However, the main ground perused at the time
of hearing is that the observations in the judgment that the
petitioner, who is the father of a seven year old child, in
respect of the custody of whom are the appeals, has involved
in a criminal case is wrong and the same requires review and
correction.
4. An other ground urged is that the petitioner being
the father and the mother is no more, giving custody of the
R.P.No.538 of 2023 in Mat.Appeal No.282 of 2019 and
R.P.No.542 of 2023 in Mat.Appeal No.25 of 2019
child to the maternal grandparents in preference to the father,
who is the natural guardian, is wrong. As per the judgment
dated 10.04.2023 this Court confirmed the order of the Family
Court allowing permanent custody of the child to the
respondents, who are the maternal grandparents. The
petitioner is allowed periodical interim custody and the right
to make video/audio calls every day. That is a decision taken
after considering the entire evidence on record and also
interaction with the child, the petitioner (father) and the
maternal grandfather. Such a decision taken by this Court on
the merits of the matter cannot be altered in the exercise of
the powers under Order XLVII, Rule 1 of the Code. Any
correction or modification of the judgment as regards the
custody of the child on the basis of the reasons stated by the
petitioner would amount to sitting in appeal, which is
impermissible in review jurisdiction. Therefore, the said
ground is not liable to be considered.
5. In paragraph Nos.7 and 10 of the judgment, the
contentions raised by the respondent that the petitioner
meted out cruelty against his deceased wife has been
R.P.No.538 of 2023 in Mat.Appeal No.282 of 2019 and
R.P.No.542 of 2023 in Mat.Appeal No.25 of 2019
mentioned. Those are not findings of this Court. Of course, in
paragraph No.14 it is observed that ""Right or wrong, there is
an allegation that on account of the cruelty meted out by the
appellant, Smt.Remya committed suicide. The child, in all
probabilities, might be aware of such allegations." The
petitioner takes exception to the said observation. The learned
counsel appearing for the petitioner would submit that in the
final report filed by the police in regard to the death of the
petitioner's wife, he is not an accused and there is no
allegation against him. The grievance of the petitioner is that
despite the said fact, this Court observed as above in the
judgment, which is factually incorrect. Here again, there is no
finding that the petitioner meted out cruelty against his
deceased wife. However, since no instance of cruelty or
harassment of his deceased wife by the petitioner was
revealed in the police investigation, the aforementioned
observation in paragraph No.14 of the judgment could have
been avoided. In such circumstances, we are of the view that
these Review Petitions can be allowed to the extent of
avoiding the said observations from the judgment.
R.P.No.538 of 2023 in Mat.Appeal No.282 of 2019 and
R.P.No.542 of 2023 in Mat.Appeal No.25 of 2019
Accordingly, these petitions are allowed in part and the
observation in paragraph No.14 of the judgment that "Right or
wrong, there is an allegation that on account of the cruelty
meted out by the appellant, Smt.Remya committed suicide.
The child, in all probabilities, might be aware of such
allegations" is removed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
