RAJAN MENON Vs. BINDU U.

JUDGEMENT

(1.) Under challenge in this appeal preferred by the appellant who is the husband of the respondent is the order of the Family Court, Thrissur in I.A. No. 6580/2011 in O.P. No. 238/2005. The prayer in the above I.A. filed by the appellant was to modify that final Order dated 30-9-2005 passed by the Family Court in O.P. No. 238/2005 and to issue appropriate directions so as to enable the appellant to enjoy visitation right over the appellant's minor daughter by name Pooja who has been entrusted to the permanent custody of the respondent mother. The court below did not become inclined to allow the application mainly for two reasons. The first reason was that the final order in O.P. No. 238/2005 was passed by the court below on a joint petition filed by the parties under Section 13B of the Hindu Marriage Act and that the said order only dissolves the marriage between the parties by a decree of divorce. That order does not contain any direction regarding the custody of the child. Hence, according to the court below, "there is nothing to be modified by this court". Yet another reason, which weighed the court below, is that the child admittedly resides at Malappuram along with its mother, a place within the territorial limits of Family Court, Malappuram. Accordingly, the court below closed the I.A. giving liberty to the appellant to move the Family Court, Malappuram for getting appropriate directions regarding the custody of the child. Being aggrieved, the appellant has preferred this appeal on various grounds. Sri G.S. Raghunath, learned counsel for the appellant draw our attention to a judgment of another Bench of this Court in Jasmine v. Kunhumon, 2012 4 KerLT 817, to which one among us [PCK(J)] was party. It was submitted on the basis of that judgment that an application by any party in respect of custody of a minor in a finally disposed O.P. is maintainable in law. Learned counsel referred to Section 26 of the Act. According to the learned counsel this is a case where while passing the order in O.P. 238/05 the Family Court should have noticed paragraph 6 of the joint petition which is not in dispute at all and made a provision for visitation right for the petitioner.

(2.) The learned counsel for the respondent submitted that the impugned order does not suffer from any infirmity. He submitted that the child is presently ordinarily residing within the limits of Malappuram Family Court which means that the Thrissur Family Court which passed the impugned order does not have territorial jurisdiction to pass any order regarding the custody of the child. The petitioner cannot have any legitimate grievance about the impugned order as the petitioner has been permitted to initiate proceedings before the Malappuram Court.

(3.) In reply Sri Raghunath submitted that it is not open for the respondent to urge that the Thrissur Court does not have territorial jurisdiction to deal with custody matters. The Thrissur Court itself granted permanent custody of the child to the respondent knowing fully well that the child is ordinarily residing at Malappuram. The permanent custody was given exercising the power under Section 26. The power to exercise permanent custody will certainly include power to grant visitation rights.