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Judgments of Supreme Court of India and High Courts

Harish Krishnan vs Dhanya Prakash on 14 December, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

FRIDAY ,THE 14TH DAY OF DECEMBER 2018 / 23RD AGRAHAYANA, 1940

OP (FC).No. 667 of 2018

AGAINST THE ORDER DATED 30-08-2018 IN I.A. No.2894/2016 IN
OP 1226/2014 of FAMILY COURT, ERNAKULAM

PETITIONER/PETITIONER:

HARISH KRISHNAN
AGED 41 YEARS, S/O. P.K. PANICKER,
25/F, BADE RAIPUR ROAD, JADAYPUR,
KOLKATTA – 700032.

BY ADVS.
SRI.PUSHPARAJAN KODOTH
SMT.VANDANA MENON
SRI.K.JAYESH MOHANKUMAR

RESPONDENT/RESPONDENT:

DHANYA PRAKASH
AGED 29 YEARS, D/O. JAYA PRAKASH,
RESIDING AT BL66, SYLVAN COUNTY,
MAHINDRA WORLD CITY, CHENNAI,
TAMIL NADU – 603002.

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
14.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OP (FC) No.667/2018 -2-

C.K. ABDUL REHIM, J.

T.V. ANILKUMAR, J.
————————————————-
O.P. (FC) No. 667 OF 2018
————————————————-
DATED THIS THE 14th DAY OF DECEMBER, 2018

JUDGMENT

Abdul Rehim, J:

In an original petition filed before the Family Court, Ernakulam

under Section 13 B of the Hindu Marriage Act seeking dissolution of

the marriage existing between the parties based on mutual consent,

that court had granted divorce through the judgment dated 17-08-

2015. In July 2016, the petitioner herein filed I.A. No.2894/2016 in

the disposed original petition, seeking direction against the

respondent to provide access to the petitioner to the minor child of

the parties, named Master Advaith Menon for a period of 7 days

during day time. The respondent filed counter affidavit in the said

interim application. The Family Court had dismissed the interim

application through Ext.P7 order passed on 30-08-2018, by finding

that the judgment in O.P. No.1226/2014 does not contain any clause

with respect to custody or visitation of the minor child. It was also

observed that, no compromise duly executed between the parties
OP (FC) No.667/2018 -3-

regarding custody is also produced. It was found that under such

circumstances if there is any violation of the alleged undertaking

made by the respondent, the only remedy available to the petitioner

is to file a proper application under the Guardian and Wards Act.

Therefore the interim application is dismissed as not maintainable. It

is challenging the said order, the above original petition is filed.

2. Learned counsel for the petitioner contended that, the

condition with respect to custody of the child was undertaken by the

respondent in the affidavit filed by her (Ext.P3) in O.P. No.1226/2014.

Therefore it is contended that, the Family Court was bound to issue

necessary directions to the respondent to comply with the said

undertaking. We are not persuaded to accept such a contention. Even

if any such undertaking is made in the pleadings, the same remains

not endorsed in the judgment through which the case was disposed

of. The court below does not get jurisdiction to enforce such

undertaking, if any after disposal of the original petition. It is

pertinent to note that, even if any such endorsement would have

been there in the judgment, the petitioner will get right only to

execute the same in a properly constituted execution petition. In the

case at hand, since the judgment does not contain any undertaking
OP (FC) No.667/2018 -4-

made by the respondent, the interim application filed before the

court below in the disposed original petition cannot be entertained.

3. Under the above mentioned circumstances we do not find

any illegality, error, impropriety or perversity in the order passed by

the Family Court which is impugned herein.

4. Consequently, the original petition fails and the same is

hereby dismissed. It is made clear that the above judgment will not

stand in the way of the petitioner seeking appropriate remedy if any

available under law, for getting custody or for having visitation on the

minor child.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

T.V.ANILKUMAR

JUDGE

AMG
OP (FC) No.667/2018 -5-

APPENDIX
PETITIONER’S EXHIBITS:

EXHIBIT P1 TUE COPY OF THE JOINT PETITION FILED BY PETITIONER AND
RESPONDENT U/S. 13B OF THE HINDU MARRIAGE ACT FOR
DISSOLUTION OF MARRIAGE BEFORE FAMILY COURT, ERNAKULAM
DISTRICT DATED 23/06/2014.

EXHIBIT P2 TRUE COPY OF AFFIDAVIT FILED BY PETITIONER DATED
12/08/2015 BEFORE THE FAMILY COURT, ERNAKULAM.

EXHIBIT P3 TRUE COPY OF AFFIDAVIT FILED BY RESPONDENT DATED
12/08/2015 BEFORE THE FAMILY COURT, ERNAKULAM.

EXHIBIT P4 TRUE COPY OF JUDGMENT IN OP 1226/15 DATED 17/08/2015 OF
FAMILY COURT, ERNAKULAM.

EXHIBIT P5 TRUE COPY OF IA 2894/16 IN OP 1226/14 FILED BY
PETITIONER BEFORE FAMILY COURT, ERNAKULAM DATED
19/07/16.

EXHIBIT P6 TRUE COPY OF COUNTER AFFIDAVIT FILED BY RESPONDENT IN IA
2894/2016 IN OP NO.1226/2014 ON THE FILE OF FAMILY
COURT, ERNAKULAM DATED 29/08/2018.

EXHIBIT P7 TRUE COPY OF ORDER OF FAMILY COURT, ERNAKULAM IN IA
2894/16 IN OP 1226/14 DATED 30/08/2018.

RESPONDENT’S EXHIBITS

NIL

AMG

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