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Custody to Father


For Approval and Signature:

1Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3Whether their Lordships wish to see the fair copy of the judgment ?
4Whether this case involves a substantial question of law as to the interpretation of the constitution of India,1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge?


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

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.

1.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.

2.In the impugned order, learned Magistrate has on the application of wife passed
several different orders which are to the following effect :
Resistance Order
Learned Magistrate directed the husband to provide one bed room premise in Ahmedabad to the wife for her residence or in lieu thereof to pay Rs.2000/- by way of rent to her.
Financial Assistance
Learned Magistrate directed the husband to pay Rs.4000/- per month to the wife by way of maintenance.
Custody Order Learned Magistrate further directed the husband to hand over the custody of the child Mihir to the wife till disposal of the proceedings under the Guardians and Wards Act and directed him to pay for his education and also permitted husband to visit son periodically.
Protection order Learned Magistrate directed the husband and family members not to commit any act of domestic violence against the wife.

3.This order was confirmed by the Sessions Court in appeal. Husband therefore, has
filed the present petition challenging the said order.

4.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.

5.I have heard learned advocates for the parties for final

6. hearing of the proceedings.
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.

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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.

7.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.

8.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 :
“Custody Orders. Notwithstanding anything contained in any other law for the time
being in force, the Magistrate may, at any stage of hearing of the application for
protection order or for any other relief under this Act grant temporary custody of
any child or children to the aggrieved person or the person making an application
on her behalf and specify, if necessary, the arrangements for visit of such child or
children by the respondent.
Provided that if the Magistrate is of the opinion that any visit of the respondent

9.may be harmful to the interests of the child or children, the Magistrate shall refuse
to allow such visit.”
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.
Question is, in the proceedings under the said Act can a Magistrate pass custody
order beyond the life of the proceedings before him.

10.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.

11.Said Act was enacted with following objects in mind:
“2. The phenomenon of domestic violence is widely prevalent but has remained
largely invisible in the public domain. Presently, where a woman is subjected to
cruelty by her husband or his relatives, it is an offence under section 498A of the
Indian Penal Code. The civil law does not however address this phenomenon in its
3. It is therefore, proposed to enact a law keeping in view the rights guaranteed
under Articles 14,15 and 21 of the Constitution to provide for a remedy under the
civil law which is intended to protect the woman from being victims of domestic
violence and to prevent the occurrence of domestic violence in the society:-…”

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12.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

13.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.

14.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 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

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.

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16.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.

17.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.

18.Question however, is in facts of the case

19. was he justified in doing so?
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.

20.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.

21.Under the circumstances, petition is disposed of with following directions :
1) Order for handing over custody of child temporarily to the mother is set aside.
2) Petitioners and other family members shall however, permit respondent no.1
wife to meet her son Mihir once every week between 10 to 12 on Sundays.
However, if she requires any change in time and date, she shall communicate
before hand to the petitioner and his family members.
3) It would be open for the mother after initially cultivating familiarity with the
child, to take him out also.
4) Learned Sessions Court shall decide application i.e. C.M.A. No.160/2008 of
wife for permanent custody expeditiously and unmindful of any observations made
in this order. Same may be disposed of preferably by 31.5.2011.
5) Petitioner shall continue to pay all other charges as fixed by learned Magistrate
in the impugned order.
6) 50% of arrears shall be cleared latest by 31.3.2011. Rest of the arrears shall be
cleared by 31.5.2011.

22.Rule made absolute to above extent.
(Akil Kureshi,J.)

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