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Custody and Visitation under Section 21 of DV Act.

IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE ­ SPECIAL. FAST TRACK
COURT : SOUTH EAST, SAKET COURTS: NEW DELHI.

In Crl. Revision No. 161/2017

1. Vikas Ahuja
S/o Sh. Swarn Lal Ahuja
A­4/182, Kalkaji Extension
New Delhi …… Petitioner

Versus

1. State (NCT of Delhi)

2. Aditi Sawhney
W/o Vikas Ahuja
R/o House no. B­3/704
Uni­World City, Sector­ 30, Gurgaon. ….. Respondents

ORDER :

1. This appeal u/s 29 of the Protection of Women From Domestic Violence Act, 2005 (DV Act) is directed against the order dated 27.03.2017 passed by the Ld. Metropolitan Magistrate (Mahila Court), South East District in the complaint case no. 635519/2016 titled as ‘Aditi Sawhney Vs. Vikas Ahuja’ whereby the application of the appellant u/s 23 and 25 of DV Act for seeking interim custody of the children was dismissed on the ground that the children are not willing to be in the company of the appellant and have clearly denied to accompany him and further it shall be against the interest of the children who are of a very tender age.

2. The facts relevant for disposal of the appeal are that the marriage between the parties was solemnized on 07.02.2002. After the marriage, they resided together as husband and wife and cohabited with each other. Two children were born namely Aryaman Ahuja (son) on 08.07.2005 and Mehr Ahuja (daughter) on 22.11.2007. They are now aged about 12 years and 9 years respectively. Presently, both the children are in the custody of the respondent. Their expenses relating to their education are being met by the appellant. The parties have been living separately since 15.10.2015.

3. On 28.09.2016, the respondent filed a complaint u/s 12 of the DV Act against the appellant. On 02.03.2017, the appellant filed an application u/s 23 and 25 of the Act praying inter alia:

that the respondent be directed to hand over the minor children to the appellant / father on every Friday of the week in the evening from the house of the respondent till Sunday evening of every week;

that the respondent be directed to hand over the custody of the children during break, summer holidays, Dussehra holidays, Diwali holidays and during winter vacation in 2017 in the interest and well being of the children; and that the appellant be allowed to attend the PTM / school functions of the children to meet the teachers and staff of the school to inquire about their studies and activities.

4. The respondent filed the reply to the said application and the Trial Court, after meeting the children and the parties and after hearing the arguments, dismissed the application vide impugned order.

5. The impugned order is assailed on the ground that it was passed in a mechanical manner without going through the detailed facts mentioned in the application and is against the principals of natural justice;

that the Trial Court did not consider the judgments filed by the appellant during the course of the arguments which clearly establish 2/14 that the right of the appellant to have visitation and interim custody of the minor children is well recognized not only by the High Courts but also by the Apex Court;

that the impugned order is against the interest and welfare of the children and the provisions of law laid down by the Apex Court as the visitation rights and interim custody of the children were denied merely on the ground that the children are not willing to meet the appellant;

that the Trial Court failed to appreciate that the minor children are being used as a tool into the litigation by the respondent in order to arm twist, harass and coerce the appellant to make him concede to her illegal demands and that the Trial Court failed to consider that the appellant had taken the minor children to various places including abroad and they had enjoyed the trips in the company of the appellant and they were comfortable.

6. It is stated that the wish of the children is not the sole criteria of denying the visitation rights and interim custody. It is a known fact that parties in whose custody the children are often known tutor the minor children and in the present case, the respondent has tutored the minors and petrified the children, so that they were scared to meet their father. No opinion was given by the Trial Court as to why the visits of the appellant are harmful to the interest of children.

7. In response to the said appeal, it is stated on behalf of the respondent that application u/s 23 and 25 of the DV Act seeking interim custody of the minor children is misconceived. The said two provisions do not relate to the relief sought by the appellant i.e. custody and visitation. In fact, the provision touching the subject matter is Section 21 of the Act which provides for passing of orders granting temporary custody of the children to the aggrieved party and under the Act, the aggrieved party is 3/14 the respondent in the present case. Reference is made of the case Varsha Kapoor Vs. UOI and Ors. 2010 SCC Online Del 2213: Girija Patel V. Vijay R. Rao, Criminal Revision Petition No. 1062/2014, decided on 10.02.2015 (MANU/KA/0360/2015) and Payal Agarwal Vs. Kunal Agarwal, decided on 28.04.2014 in S.B. Criminal Misc. Petition no. 1094/2014: MANU/RH/0927/2014. It is stated that the Trial Court interacted with both the minor children in the Chamber before passing the impugned order and clearly observed that both the children appeared to be completely averse to meeting the appellant. The said aversion clearly shows the neglecting attitude of the appellant towards the children. It is stated that children wishes are important consideration in the matter of custody and visitations and therefore can not be brushed aside. Reference is also made of the cases Shyamrao Maroti Korwate Vs. Deepak Kisanrao Tekam, (2010) 10 SCC 314; Bhagwan S/o Haribhau Rathod v. Ashok S/o Santram Pawar, 2012 SCC Online Bom 986 : It is stated that the prayers sought are highly unreasonable and averse to the interest of the minor children.

8. I have heard the arguments advanced by Ld. Counsel Ms. Shelly Rohatgi for the appellant and Sh. Jitender Priani for the respondent.

9. Ld. Counsel for the appellant submitted that for deciding an application for interim custody and visitation, the paramount consideration is the welfare of the children. The children in the present case have not met their father for the last nine months and if they do not meet their father, given their tender age, they will start to forget him. It is in their interest that he should be given interim custody and visitation. Ld. counsel further submitted that the children were having a good bond and connection with the father/Appellant, which is evident from the facts that the children were taken for local outings as well as holidays within and outside India without 4/14 the respondent during the period from 2012 to 2015. Ld. counsel placed on record some photographs showing that the children had gone on outings with the Appellant. Ld. counsel further submitted that the appellant had also taken the minor son to USA for more than a month on 22.05.2015. He also wanted to take the minor daughter but the respondent did not allow her to go with them. Ld. counsel also produced the video clips to show the intimacy and bonding between the appellant and his children.

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10. Ld. counsel submitted that the appellant has been working with a company. He has been living with his parents. He works five days a week. He can very well look after the children. He had been looking after their homework and attending all PTMs and meetings of the school till October, 2015 till the respondent instructed him not to go there. Ld counsel submitted that both the children are emotionally attached with the appellant. Even their grand­parents have spent considerable time with the minor children. Ld. counsel submitted that the minor children are being used as a tool by the respondent in order to harass and coerce the appellant to make him concede to her illegal demands. Ld. counsel submitted that the children are too young to form an intelligent preference and the Trial Court could not have dismissed the application merely on the wish of the children as they do not have a mature thinking. Reference was made of the case Thrity Hoshi Dolikuka versus Hoshiam Shavaksha Dolikuka AIR 1982 Supreme Court 1276 where it was held:

“A minor is not fit to form an intelligent preference which may be taken into consideration in deciding her welfare”. “Mature thinking is indeed necessary in such a situation to decide as to what will ensure to her benefit and welfare. Any child who is placed in such an unfortunate position can hardly have the capacity to express an intelligent preference which may require the court’s consideration to decide what should be the course to be adopted for the child’s welfare…”.
5/14 “A minor represents a class of person who by their age are regarded as having immature intellect and imperfect discretion, they on account of their tender age, immature intellect and imperfect discretion are unable to take care of themselves. Guardianship is a sacred trust and the father being the natural guardian is under an obligation to maintain his minor child during the minority provided he has not made himself unfit to be the guardian.”

11. Ld. counsel submitted that a child should not be deprived of the love and affection of both the parents as it would be against the interest of the child. It is the fundamental right of children to get love and affection from both parents. Visitation and interim custody is for the primary benefit of the child and cannot be viewed as a privilege to be exercised at the whim of either parent. Ld. Counsel further submitted that while dealing with custody cases, the courts are not strictly bound by the statutes. Ld. Counsel relied upon case titled “Shiwani Kabra versus Shaleen Kabra”(ILR 2011 Delhi 2754) to contend that a Court while dealing with custody cases, is neither bound by statues nor by strict rules of evidence or procedure nor by precedents and the paramount consideration should be the welfare and well being of the child.

12. Regarding maintainability of the application under Section 23 and 25, Ld. counsel submitted that the father has every right to the interim custody and visitation under section 21. The reliance is placed on the case titled as “Sandeep Kumar Thakur versus Madhubala”(2016 SCC online HP 3354).

13. Ld. counsel submitted that in the present case also, no other proceeding before any other forum is pending and the appellant cannot be forced to file any other petition in any other Family Court and he had the option of filing the application for custody and visitation before the Ld.M.M. under Section 23 & 25 of DV Act.

14. Per contra, Ld. Counsel for the respondent reiterated what has been stated in the reply filed to the appeal. Ld. Counsel submitted that the children are not interested in meeting their father/Appellant. In fact the application filed by the Appellant is an abuse of the process of law. Ld. Counsel submitted that the Trial Court has rightly held that allowing the appellant to meet the children would not be in the interest of the children. The children, especially the girl child have been the witness to the cruel and torturous acts of the appellant. The minor children have seen the appellant abuse, harass, and torture the respondent. The appellant has been extremely abusive towards the minor children as well. He has never shown any love or affection towards the minor children. If the appellant is given custody, it would have adverse impact on them. The respondent has never tutored the children or poisoned their mind against the appellant. The children are very scared to meet the appellant. The appellant has left and deserted them. There is a constant fear in the minds of the children with regard to the appellant and they cannot be left alone with the appellant. Ld. Counsel also referred the provisions of Section 23 and 25 of the Act and contended that the very title of the act itself indicates that the Act has been enacted for the protection of rights of women. U/s 2(a), ‘aggrieved person’ means any woman, who is or has been, in a domestic relationship with the respondent (appellant herein) and who alleges to have been subjected to any of the domestic violence by the respondent (appellant herein)” As per Section 2(q), ‘Respondent’ means any adult male who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act. Thus aggrieved person as per the Domestic Violence Act can be only the woman and the 7/14 respondent (appellant herein) as per the said Act is only the person against whom relief has been sought by the aggrieved person. The entire Act no where mentions ‘man’ as an ‘aggrieved person’, hence as per the Act, appellant can not seek any relief against the aggrieved person. Custody order u/s 2(d) means an order granted in terms of Section 21 which specifically states that the Magistrate may at any stage of hearing the application under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf. It further provides that if the Magistrate is of the opinion that any of visit of the appellant is harmful to the interest of the child or children, the Magistrate shall refuse to allow such visit. Ld. Counsel referred the cases of Mrs Girija Patel Vs. Mr. Vijay R Rao (Karnataka High Court) Criminal Revision Petition no. 1062/2014; Dennision Paulraj Vs the Union of India (Madras High Court) Writ Petition no. 28521 of 2008 Dated 03.04.2009 to contend that the appellant is not entitled to the custody and visitation of the children.

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15. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and have gone through the material placed on record and the case laws supra referred by the parties.

16. In the case of Smriti Madan Kansagra VS. Perry Kansagra, MAT Appl (FC) 67/2016, decided on 17.02.2017 (DHC), it was observed that the issue of custody, including interim custody and visitation rights of the parents to a child becomes a source of continous litigation when the litigating couple adopts hard postures. Often the innocent children are used as tools of vengeance by vindictive litigants who inflict severe emotional and psychological abuse on the child thereby seriously affecting the child in his / her later part of life. Depriving a child the love and affection of 8/14 both parents is not in the interest of the child. It is the fundamental right of the children to get love and affection from both parents. Visitation and interim custody is for the primary benefit of the child and can not be viewed as a privilege to be exercised at the whim of either parent. It is a responsibility that should be fulfilled as a necessary cause. The healthy emotional development of children depends upon their early experience of a continous, emotionally available care giving relationship, through which relationship, the child forms an organized attachment and develops human capabilities for thought and relationship building. A chid has a right to childhood of hopeful existence and free from neglect. A child needs consistent suppport system as also love, hope and encouragement. A child should be so nurtured that he / she is fully prepared to live life in a society, in the spirit of dignity, tolerance, freedom and solidarity.

17. In the case of Prabhat Kumar Vs. Ms. Himalini, CM (M) 373/2009 decided on 12.01.2010 (DHC), it was observed that the child ought to be permitted to grow with the mutual affection as is normal of both parents; the parents ought not to instigate the child against each other and / or to spite the other, ought not to attempt to show the other down in the presence of or through a reference before the child.

18. In the case of Prakash Chandra Jain VS. Smt. Chandrawati Jain AIR 1996 Rajasthan 162, it was held that the desire of the child of 9 years to form an intelligent preference is not proper. Minors represent a class of person, who, by their age, are regarded as having immature intellects and imperfect discretion. They, on account of their their tender age, immature intellects are unable to take care of themselves.

19. In the case of Shiwani Kabra Vs. Shaleen Kabra ILR (2011) Delhi II 754, the reference was made of the case Tara Chand Mavar Vs. Basabti Devi 1 (1989) DMC 402 wherein it was held that minor child of 7 years cannot form an intelligent opinion about his own welfare and to give preference in whose custody, the child wants to live.

20. In the case of Amit Kumar and Ors. Vs. Charu Makin Crl. MC 1755/2016 and Crl. MA no. 7418/2016 decided on 28.03.2017 (DHC), the respondent had filed a complaint case u/s 12 of the DV Act inter alia seeking restraint against the petitioner from approaching and visiting the house of respondent or her work place. The Magistrate passed a restraint order. The petitioner then filed an application for modification of order. As an interim measure, the parties agreed that the minor child shall go to the place of mother of respondent on every Saturday till the next day from 10:00 a.m. to 10:00 a.m. Sunday. The interim application u/s 23 of the Act was filed by the respondent. Vide order dated 09.11.2015, the Magistrate noting that the minor child was aged 6 years and was in the custody of the respondent restrained the petitioner from removing the minor child from the custody of the respondent and directed that the petitioner shall have visitation rights twice a week on every Saturday and Sunday between 5:00 p.m. to 9:00 p.m. at the place mutually decided by the parties. The petitioner then filed an application u/s 25 of the Act seeking modification of the order. The Magistrate extended the visitation rights from 10:00 a.m. to 5:00 p.m. The petitioner then filed an appeal before the Addl. Sessions Judge which was dismissed vide order dated 08.03.2016. The High Court referred the case of Payal Aggarwal Vs. Kunal Agarwal reported as 2014 LawSuit (Raj) 545 and observed that it is thus evident that notwithstanding anything contained in any other law as an interim measure in the best interest of the child and to avoid any harm to the interest of the child / 10/14 children, the Court u/s 21 of the DV Act can pass order granting temporary custody of the child / Children and / or make necessary arrangements for the visit of the child. However, DV Act is not a final remedy for the custody and guardianship issues of a minor child. Section 7 (g) of the Family Courts Act, 1984 vests jurisdiction in a family Court to decide suits or proceedings in relation to the guardianship of a person or the custody.

21. Section 21 of DV Act, 2005 states that “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 the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.

22. In the case of “Sandeep Kumar Thakur versus Madhubala”(2016 SCC online HP 3354), it was held:

“Section 21 starts with non obstante clause. It is evident from the plain language employed in Section 21 that the Court may, at any stage of hearing of the application for protection order or to any other relief under this Act, grant temporary custody of any child or children to the aggrieved person, i.e. mother 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 i.e. father can also be ordered. The proviso attached to Section 21 stipulates that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow 11/14 such visit…”

“In the instant case, custody of the child is already with her mother. The respondent has not asked for custody of the child for the simple reason that the child is already in her custody. It is the respondent, i.e. father, who has sought merely visitation rights to see his son, which right was granted to him by the learned Judicial Magistrate, 1st Class vide order dated 26.10.2015, that too, on limited days, i.e. 2nd and 4th Saturday of each month between 3.00 P.M. to 5.00 P.M. In case the visitation right is not given to the petitioner, minor child would be deprived of father’s love and affection. The paramount consideration is welfare of the child. The petitioner could not be forced to seek remedy either under Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956, as observed by the learned Sessions Judge because it would lead to multiplicity of litigation. The Act is a self­contained code. The endeavour of the Court should be to cut­short the litigation and to ensure that the child gets love and affection of both parents, i.e. mother and father. The approach of the Court should be practical to work out the modalities in a practical manner by evolving the process, whereby the child suffers minimum trauma. The interpretation of statute should be purposive…”

23. In the instant case, the appellant and the respondent admittedly have been living separately since 15.10.2015. The two minor children namely Aryaman Ahuja aged about 12 years and Mehr Ahuja aged about 9 years of age are in the custody of respondent. The respondent had filed the complaint u/s 12 of the DV Act for restraining the appellant from dispossessing the respondent from its property situated in Gurugram without the due process of law. Although the appellant sought interim custody as well as the visitation rights of the children but he has now pressed for the visitation of the children. He has not filed any other petition in Family Court for the custody of the children which is the exclusive Court to decide the custody. The respondent has admitted that the children are in her custody but stated that both the children are not willing to meet 12/14 their father. The children and the parties were also called, interviewed and got counseled in my chamber. The children initially did not talk to their father and avoided eye contact, but in subsequent meetings, the minor son spoke to his father. The appellant also handed over the passport to his minor son. The photographs and USB stick containing the videos show the children on various holidays with the appellant earlier. They are of a very tender age. They are not mature enough to form their own intelligent preference. In such a situation, if they are deprived of the love and affection of both the parents, it will leave a permanent scar on their minds. In my view, the children require the love and affection of their father and it will be appropriate that in their growing years they do get that love and affection.

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24. Looking into the facts and circumstances of the matter and following the observations made in the case of Sandeep Kumar Thakur Supra, I am also of the opinion that visitation is imperative for the well­ being of the children at this stage so that they be not deprived of the love and affection of both the parents. In the case of Mrs Girija Patel Supra, the interim custody of the child was sought by the husband of the aggrieved party. In the instant case, the appellant has only prayed for the visitation rights. Facts of the case of Shyamrao Maroti Korwae Vs. Deepak Kisanrao Tekam Supra are entirely different. In that case, the father of the child had not attempted to meet the child when he was in the custody of his maternal grand father. The child at that time was 8 years of age. It was observed that our anxiety is that after four years i.e. after attaining the age of 12 years whether the child would show any inclination to join with his father. In the case of Bhagwan Vs. Ashok Supra, the child had already been staying with his grand father. In the case of Dennision Paulraj Vs the Union of India 13/14 (Madras High Court) Supra, it was held that the domestic violence is a worldwide phenomenon and has been discussed in international fora. The United Nations Committee Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has recommended that states should act to protect women against violence of any kind, especially that occurring within the family. The argument that the Act is ultra virus the Constitution of India because it accords protection only to women and not to men, is therefore, wholly devoid of any merit.

25 In the light of above discussions and the case laws supra and keeping in mind the paramount interest and welfare of the children, to cutshort the litigation, to ensure that the children get love and affection of the both the parents i.e. mother and father and the practicability of the matter, I allow the appellant to have visitation with both the minor children on every 2nd and 4th Sunday of every month from 11:00 am to 4:00 pm at the place mutually agreed by the parties preferably the public place or the mall. The visitation shall begin from 12.11.2017. The respondent is directed to cooperate with the appellant for the said visitations. The appeal is disposed off accordingly. Copy of the order be given dasti to the parties for compliance. Copy fo the order be also sent to the Trial Court for information. File be consiged to record room.

Announced in the open court on 03.11.2017.
(Sanjiv Jain)

ASJ(Spl. FTC)
South East, Saket Court
New Delhi.

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