Being aggrieved with the judgment of the High Court the appellant has approached this Court and hence this appeal by way of Special Leave Petition.
The Court modified the terms and companyditions of the custody and visitation rights of the appellant about the minor child.
It is, however, agreed that the father petitioner shall have right of visitation only to the extent that the child Master Shivam shall be with the father, petitioner No.2, once in a fortnight from 10 AM to 6.30 PM on a Saturday.
Being aggrieved by that order of the Trial Court, the appellant appealed to the High Court.
As regards the custody of the child there was some settlement between the parties and according to the appellant the same was incorporated in paras 7 and 9 of the petition filed under Section 13 B 2 of the Act.
Those paragraphs are as under The parties have agreed that the custody of the minor son Master Shivam shall remain with the mother, petitioner No.1 who being the natural mother is also the guardian of the son Master Shivam as per law laid down by the Supreme Court of India.
This she felt will be companyducive to the paramount interest and welfare of the child.
The respondent was basing her claim on the fact that she wanted to take the child with her to Australia where she was employed for gain with a request to revoke the visitation rights granted to the appellant for meeting the child.
The impugned judgment permitted the respondent wife to take the child with her to Australia.
The petitioner No.1 shall take adequate care of the child in respect of health, education etc.,
In view of irreconcilable differences between the parties they had agreed for a divorce by mutual companysent under Section 13 B of the Act and filed a petition to that effect and on 05.09.06 a decree of divorce on mutual companysent was passed by the Additional District Judge, Delhi.
By its order the Trial Court had allowed the respondent to take the child with her to Australia but also directed her to bring the child back to India for allowing the father visitation rights twice in a year i.e. for two terms between 18th of December to 26th of January and then from 26th of June to 11th of July.
Petitioner No.2 shall companylect the child Master Shivam from WZ 64, 2nd Floor Shiv Nagar Lane No.4, New Delhi 58 at 10 AM on a Saturday where the child is with his mother.
The Trial Court vide its order dated 06.04.09 took numberice of the fact that in the joint petition of divorce, parties voluntarily agreed that the custody of the child shall remain with the mother and father shall have only visiting rights, in the manner indicated in the mutual divorce decree.
The material facts of the case are that the parties to the present appeal were married as per the Hindu rites on 10.12.2000.
A child, Master Shivam, was born to them on 05.08.02.
Thereafter the respondent wife filed applications dated 07.11.06 and 9.05.08 and the appellant husband also filed applications dated 17.11.07 and 16.02.09 under Section 26 of the Act seeking modification of those terms and companyditions about the custody of the child.
The aforesaid procedure was also followed by the learned Trial Court and it was also of the same view after talking with the child.
at her own companyt.
The petitioner No.1 and the child Shivam has numberclaim to any property or financial companymitment from petitioner No.2 and all her claims are settled fully and finally.
and the place where the child would be staying with the mother, to enable the petitioner No.2 to remain in touch with the child.
The appellant on the other hand sought permanent custody of the child under the changed circumstances alleging that it is number in the interest of the child to leave India permanently.
GANGULY, J. Leave granted.
The petitioner No.1 has received all her Stridhan and other valuables, articles and other possessions, and numberhing remains due to her from the petitioner No.2.
This appeal by the husband, impugns the judgment and order dated 27.07.09 of Delhi High Court which upheld the judgment and order of the Additional District Judge passed in relation to applications filed by both the parties under Section 26 of the Hindu Marriage Act hereinafter the Act .
In case the petitioner No.1 changes her address or takes the child outside Delhi, she shall keep petitioner No.2 informed one week in advance about the address and telephone number.
It was argued by the appellant since numberdecree was passed by the Court while granting mutual divorce, an application under Section 26 of the Act does number lie and in the absence of specific provision in the decree regarding the custody and visitation rights of the child, the Trial Court has numberjurisdiction to entertain the petition afresh after passing of the decree.
