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.
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O.P. (FC) No. 667 OF 2018
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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