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Special Criminal Application
Spl. Crl.A. No. 1560 of 2010 - Dhaval Rajendrabhai Soni Vs. Bhavini Dhavalbhai Soni, 2012 (2) KLT SN 129 (C.No. 124)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1560 of 2010 For Approval and Signature:
HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= DHAVAL RAJENDRABHAI SONI - Applicant(s) Versus BHAVINI DHAVALBHAI SONI & 5 - Respondent(s) ========================================================= Head Note:- Protection of Women from Domestic Violence Act, 2005 - Sections 21 and 23 - Magistrate cannot pass order granting permanent custody of the child to the aggrieved person. =========================================================Appearance : MR NV SOLANKI for Applicant(s) : 1, RULE SERVED for Respondent(s) : 1 - 5. MR JA ADESHRA for Respondent(s) : 1, MR DC SEJPAL, APP for Respondent(s) : 6, =========================================================
Date : 04/02/2011
ORAL JUDGMENT 1. The petitioner is husband of respondent no.1. They got married in the year 2002. Out of the wedlock, wife gave birth to a son on 6.11.2004 named Mihir. Subsequently, however, disputes arose between husband and wife. It is stated that wife and husband reside separately since 17.5.2007. With respect to who is responsible for such separation, there are contradicting versions. It is not necessary for me to go into the same in the present proceedings. It is however, not in dispute that since separation, son is with the father. Here again wife's case is that despite best efforts the custody of the child is not given to her. Again with respect to this, also I propose to make no observations because proceedings for custody of child are pending before the Sessions Court. 2. In the present proceedings, husband has challenged an order dated 13.3.2009 passed by learned JMFC, Bhuj in Criminal Application No.481/2008 filed by wife under the Protection of Women from Domestic Violence Act(“the Act” for short). Said order was confirmed by the Sessions Court in Appeal by order dated 14.7.2010 passed in Criminal Appeal No.7/2009. 3. In the impugned order, learned Magistrate has on the application of wife passed several different orders which are to the following effect :
4. This order was confirmed by the Sessions Court in appeal. Husband therefore, has filed the present petition challenging the said order. 5. On 16.8.2010, while issuing notice, this Court had stayed the directions for handing over custody of the child. Interim order was confirmed while admitting the petition. 6. I have heard learned advocates for the parties for final hearing of the proceedings. 7. Counsel Shri N.V. Solanki for the petitioner contended that learned Magistrate could not have passed any order for custody of the child under the said Act since the Act empowers the Magistrate to pass only interim order. Since application of wife under Section 12 of the Act was being disposed of, no such order of interim custody of the child could have been passed. 7.1 He further contended that child is residing with the father. Father is looking after the child since May 2007 in absence of the mother. Particularly, when proceedings under the Guardians and Wards Act are pending, even otherwise on facts, learned Magistrate ought not to have directed handing over custody of the child to the mother. 7.2 Counsel further submitted that petitioner is employed in a shop run by his father. He therefore, has some financial difficulties but is duty bound to pay maintenance and other charges fixed by the learned Magistrate for which some time may be granted. 8. On the other hand, learned counsel Shri Adeshra opposed the petition contending inter-alia that the order of custody is to enure only till the proceedings under the Guardians and Wards Act are concluded. No interference is therefore, called for. 8.1 He further contended that husband has not paid maintenance and other charges as directed by learned Court though he has sufficient means to do so. 9. At the outset, I may notice that Section 12 of the said Act pertains to application to the Magistrate that the aggrieved person or the protection officer may file seeking various reliefs under the Act. The Act provides for various reliefs that an aggrieved person can seek from the Magistrate including right to reside in a shared household, protection orders, residence orders, monetary reliefs, compensation etc. Section 21 in particular, pertains to custody order and reads as follows :
Section 23 of the Act clarifies that the Magistrate has power to grant interim as well as ex-parte order as deemed just and proper. 10. Question is, in the proceedings under the said Act can a Magistrate pass custody order beyond the life of the proceedings before him. 11. On one hand, as already noted, counsel for the petitioner suggested that since Section 21 of the Act empowers learned Magistrate to pass only temporary custody orders, such order can have the effect only during the pendency of the proceedings before the Magistrate and not beyond. On the other hand, counsel for wife submitted that term used in Section 21 is temporary custody and not interim custody and that therefore, Magistrate can pass an order which can operate also beyond life of proceedings under Section 12 before him. 12. Said Act was enacted with following objects in mind:
13. From the preamble of the Act, it can be seen that to achieve the above object the said Act was enacted to provide for more effective protection of right for woman guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected thereof and incidental thereto. 14. With above objects, Legislature has provided number of reliefs that wife can claim under the said Act by filing application under Section 12. Magistrate is vested with wide powers not only for granting different orders, as already noted such as protection order, residence order etc., is also clothed with power to pass interim as well as ex-parte interim orders. 15. Viewed from this angle, the power of the Magistrate under Section 21 of the Act, becomes crucial which empowers learned Magistrate notwithstanding anything contained in any other law for the time being in force, to grant temporary custody of the child to the aggrieved person at any stage of hearing of the application for protection order or for any other reliefs under the Act. In essence, therefore, in any proceedings under the Act, Magistrate is empowered to grant temporary custody of the child to the aggrieved person. It can be easily appreciated that said power assumes significance when looked from angle of wife or any other woman approaching the Magistrate seeking protection against the domestic violence by husband, his family members or other relatives. A small child to a mother is extremely precious. If mother is separated from her child, her resistance is most likely to break down. It is in this regard that learned Magistrate is empowered to pass custody orders, notwithstanding anything contained in any other law for the time being in force. Such powers of Magistrate read with Section 23 of the Act would include power to pass interim as well as ex-parte orders. It is therefore, of great significance and importance that Magistrates while dealing with the application of an aggrieved person seeking custody of her child deal with the situation promptly and bearing in mind the objects and purpose of the Act and also bearing in mind that mother when separated from child is likely to agree to any terms and conditions, not to resist domestic violence from husband or other family members. 16. Significantly, the Legislature has therefore, used words temporary custody and not interim custody. This is important since by virtue of Section 23 of the Act in any case, learned Magistrate has power to pass interim order which he otherwise can pass finally. Term temporary custody in Section 21 is used in juxta position to the term interim order used elsewhere in Section 23 of the Act . It thus becomes clear that learned Magistrate can pass an order of custody in favour of an aggrieved person by way of temporary measure not necessarily in the nature of interim order which can have life only upto life of the proceedings before him. 17. Having said so, I cannot lose sight of the fact that nowhere under the Act learned Magistrate is permitted to pass final order of custody and any order that learned Magistrate can pass must have limited validity either in terms of time or happening of an event. Learned Magistrate cannot pass order granting permanent custody of the child to the aggrieved person. 18. With above clarity, if one reverts to the facts of the case, learned Magistrate has in context of the custody provided that child will remain with the mother till the proceedings under the Guardian and Wards Act are concluded. To that extent therefore, in my opinion, directions issued by the learned Magistrate do not suffer from lack of jurisdiction or power. 19. Question however, is in facts of the case was he justified in doing so? 20. As pointed out by the counsel for the petitioner, the child has remained with the father since his birth. Child has remained with father exclusively since separation of husband and wife in May 2007. Three and half years have passed since then. He is stated to be studying in school at Ahmedabad. Wife has already instituted proceedings before the Sessions Court under the Guardian and Wards Act. She is stated to have also prayed for interim custody in such proceedings. In such proceedings detailed inquiry will be conducted. Both sides will have liberty to led evidence. Therefore, bypassing these proceedings, particularly, when the child has been with the father since May 2007 exclusively, I am of the opinion that learned Magistrate committed an error in granting temporary custody of the child to the mother. This part of the order therefore, requires modification. 21. Counsel for the mother further stated that she is not being allowed to meet the child. I do not see any reason why mother should be deprived of even visitation rights of her own son. With respect to other directions, I see no reason to interfere. The petitioner is only son of his father who has Jewelery shop in a highly commercial area of Manek-chowk in city of Ahmedabad. Surely, he cannot avoid liability to maintain his wife. Amounts fixed by learned Magistrate are eminently just and reasonable. 22. Under the circumstances, petition is disposed of with following directions :
Rule made absolute to above extent. (Akil Kureshi,J.) (raghu) |
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