{"id":2964,"date":"2012-01-23T15:04:53","date_gmt":"2012-01-23T09:34:53","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=2964"},"modified":"2012-01-23T15:04:54","modified_gmt":"2012-01-23T09:34:54","slug":"1560-2010","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/1560-2010\/","title":{"rendered":"Custody to Father"},"content":{"rendered":"

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD<\/strong><\/p>\n

SPECIAL CRIMINAL APPLICATION No. 1560 of 2010
\nFor Approval and Signature:
\nHONOURABLE MR.JUSTICE AKIL KURESHI<\/p>\n

1Whether Reporters of Local Papers may be allowed to see the judgment ?
\n2 To be referred to the Reporter or not ?
\n3Whether their Lordships wish to see the fair copy of the judgment ?
\n4Whether this case involves a substantial question of law as to the interpretation of the constitution of India,1950 or any order made thereunder ?
\n5 Whether it is to be circulated to the civil judge?<\/p>\n

DHAVAL RAJENDRABHAI SONI – Applicant(s)
\nVersus
\nBHAVINI DHAVALBHAI SONI & 5 – Respondent(s)<\/p>\n

Appearance :
\nMR NV SOLANKI for Applicant(s) : 1,
\nRULE SERVED for Respondent(s) : 1 – 5.
\nMR JA ADESHRA for Respondent(s) : 1,
\nMR DC SEJPAL, APP for Respondent(s) : 6,<\/p>\n

CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI
\nDate : 04\/02\/2011
\nORAL JUDGMENT<\/p>\n

The petitioner is husband of respondent no.1. They got married in the year 2002.
\nOut of the wedlock, wife gave birth to a son on 6.11.2004 named Mihir.
\nSubsequently, however, disputes arose between husband and wife. It is stated that
\nwife and husband reside separately since 17.5.2007. With respect to who is
\nresponsible for such separation, there are contradicting versions. It is not necessary
\nfor me to go into the same in the present proceedings. It is however, not in dispute
\nthat since separation, son is with the father. Here again wife’s case is that despite
\nbest efforts the custody of the child is not given to her. Again with respect to this,
\nalso I propose to make no observations because proceedings for custody of child
\nare pending before the Sessions Court.<\/p>\n

1.In the present proceedings, husband has challenged an order dated 13.3.2009
\npassed by learned JMFC, Bhuj in Criminal Application No.481\/2008 filed by wife
\nunder the Protection of Women from Domestic Violence Act(\u201cthe Act\u201d for short).
\nSaid order was confirmed by the Sessions Court in Appeal by order dated
\n14.7.2010 passed in Criminal Appeal No.7\/2009.<\/p>\n

2.In the impugned order, learned Magistrate has on the application of wife passed
\nseveral different orders which are to the following effect :
\nResistance Order
\nLearned 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.
\nFinancial Assistance
\nLearned Magistrate directed the husband to pay Rs.4000\/- per month to the wife by way of maintenance.
\nCustody 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.
\nProtection order Learned Magistrate directed the husband and family members not to commit any act of domestic violence against the wife.<\/p>\n

3.This order was confirmed by the Sessions Court in appeal. Husband therefore, has
\nfiled the present petition challenging the said order.<\/p>\n

4.On 16.8.2010, while issuing notice, this Court had stayed the directions for handing
\nover custody of the child. Interim order was confirmed while admitting the petition.<\/p>\n

5.I have heard learned advocates for the parties for final<\/p>\n

6. hearing of the proceedings.
\nCounsel Shri N.V. Solanki for the petitioner contended that learned Magistrate
\ncould not have passed any order for custody of the child under the said Act since
\nthe Act empowers the Magistrate to pass only interim order. Since application of
\nwife under Section 12 of the Act was being disposed of, no such order of interim
\ncustody of the child could have been passed.<\/p>\n

7.1 He further contended that child is residing with the father. Father is looking
\nafter the child since May 2007 in absence of the mother. Particularly, when
\nproceedings under the Guardians and Wards Act are pending, even otherwise on
\nfacts, learned Magistrate ought not to have directed handing over custody of the
\nchild to the mother.<\/p>\n

7.2 Counsel further submitted that petitioner is employed in a shop run by his
\nfather. He therefore, has some financial difficulties but is duty bound to pay
\nmaintenance and other charges fixed by the learned Magistrate for which some
\ntime may be granted.<\/p>\n

7.On the other hand, learned counsel Shri Adeshra opposed the petition contending
\ninter-alia that the order of custody is to enure only till the proceedings under the
\nGuardians and Wards Act are concluded. No interference is therefore, called for.<\/p>\n

8.1 He further contended that husband has not paid maintenance and other charges
\nas directed by learned Court though he has sufficient means to do so.<\/p>\n

8.At the outset, I may notice that Section 12 of the said Act pertains to application to
\nthe Magistrate that the aggrieved person or the protection officer may file seeking
\nvarious reliefs under the Act. The Act provides for various reliefs that an aggrieved
\nperson can seek from the Magistrate including right to reside in a shared
\nhousehold, protection orders, residence orders, monetary reliefs, compensation etc.
\nSection 21 in particular, pertains to custody order and reads as follows :
\n\u201cCustody Orders. Notwithstanding anything contained in any other law for the time
\nbeing in force, the Magistrate may, at any stage of hearing of the application for
\nprotection order or for any other relief under this Act grant temporary custody of
\nany child or children to the aggrieved person or the person making an application
\non her behalf and specify, if necessary, the arrangements for visit of such child or
\nchildren by the respondent.
\nProvided that if the Magistrate is of the opinion that any visit of the respondent<\/p>\n

9.may be harmful to the interests of the child or children, the Magistrate shall refuse
\nto allow such visit.\u201d
\nSection 23 of the Act clarifies that the Magistrate has power to grant interim as
\nwell as ex-parte order as deemed just and proper.
\nQuestion is, in the proceedings under the said Act can a Magistrate pass custody
\norder beyond the life of the proceedings before him.<\/p>\n

10.On one hand, as already noted, counsel for the petitioner suggested that since
\nSection 21 of the Act empowers learned Magistrate to pass only temporary custody
\norders, such order can have the effect only during the pendency of the proceedings
\nbefore the Magistrate and not beyond. On the other hand, counsel for wife
\nsubmitted that term used in Section 21 is temporary custody and not interim
\ncustody and that therefore, Magistrate can pass an order which can operate also
\nbeyond life of proceedings under Section 12 before him.<\/p>\n

11.Said Act was enacted with following objects in mind:
\n\u201c2. The phenomenon of domestic violence is widely prevalent but has remained
\nlargely invisible in the public domain. Presently, where a woman is subjected to
\ncruelty by her husband or his relatives, it is an offence under section 498A of the
\nIndian Penal Code. The civil law does not however address this phenomenon in its
\nentirety.
\n3. It is therefore, proposed to enact a law keeping in view the rights guaranteed
\nunder Articles 14,15 and 21 of the Constitution to provide for a remedy under the
\ncivil law which is intended to protect the woman from being victims of domestic
\nviolence and to prevent the occurrence of domestic violence in the society:-…\u201d<\/p>\n

12.From the preamble of the Act, it can be seen that to achieve the above object the
\nsaid Act was enacted to provide for more effective protection of right for woman
\nguaranteed under the Constitution who are victims of violence of any kind
\noccurring within the family and for matters connected thereof and incidental
\nthereto.<\/p>\n

13.With above objects, Legislature has provided number of reliefs that wife can claim
\nunder the said Act by filing application under Section 12. Magistrate is vested with
\nwide powers not only for granting different orders, as already noted such as
\nprotection order, residence order etc., is also clothed with power to pass interim as
\nwell as ex-parte interim orders.<\/p>\n

14.Viewed from this angle, the power of the Magistrate under Section 21 of the Act,
\nbecomes crucial which empowers learned Magistrate notwithstanding anything
\ncontained in any other law for the time being in force, to grant temporary custody
\nof the child to the aggrieved person at any stage of hearing of the application for<\/p>\n

15.protection order or for any other reliefs under the Act. In essence, therefore, in any
\nproceedings under the Act, Magistrate is empowered to grant temporary custody of
\nthe child to the aggrieved person. It can be easily appreciated that said power
\nassumes significance when looked from angle of wife or any other woman
\napproaching the Magistrate seeking protection against the domestic violence by
\nhusband, his family members or other relatives. A small child to a mother is
\nextremely precious. If mother is separated from her child, her resistance is most
\nlikely to break down. It is in this regard that learned Magistrate is empowered to
\npass custody orders, notwithstanding anything contained in any other law for the
\ntime being in force. Such powers of Magistrate read with Section 23 of the Act
\nwould include power to pass interim as well as ex-parte orders. It is therefore, of
\ngreat significance and importance that Magistrates while dealing with the
\napplication of an aggrieved person seeking custody of her child deal with the
\nsituation promptly and bearing in mind the objects and purpose of the Act and also
\nbearing in mind that mother when separated from child is likely to agree to any
\nterms and conditions, not to resist domestic violence from husband or other family
\nmembers.<\/p>\n

Significantly, the Legislature has therefore, used words temporary custody and not
\ninterim custody. This is important since by virtue of Section 23 of the Act in any
\ncase, learned Magistrate has power to pass interim order which he otherwise can
\npass finally. Term temporary custody in Section 21 is used in juxta position to the
\nterm interim order used elsewhere in Section 23 of the Act . It thus becomes clear
\nthat learned Magistrate can pass an order of custody in favour of an aggrieved
\nperson by way of temporary measure not necessarily in the nature of interim order
\nwhich can have life only upto life of the proceedings before him.<\/p>\n

16.Having said so, I cannot lose sight of the fact that nowhere under the Act learned
\nMagistrate is permitted to pass final order of custody and any order that learned
\nMagistrate can pass must have limited validity either in terms of time or happening
\nof an event. Learned Magistrate cannot pass order granting permanent custody of
\nthe child to the aggrieved person.<\/p>\n

17.With above clarity, if one reverts to the facts of the case, learned Magistrate has in
\ncontext of the custody provided that child will remain with the mother till the
\nproceedings under the Guardian and Wards Act are concluded. To that extent
\ntherefore, in my opinion, directions issued by the learned Magistrate do not suffer
\nfrom lack of jurisdiction or power.<\/p>\n

18.Question however, is in facts of the case<\/p>\n

19. was he justified in doing so?
\nAs pointed out by the counsel for the petitioner, the child has remained with the
\nfather since his birth. Child has remained with father exclusively since separation
\nof husband and wife in May 2007. Three and half years have passed since then. He
\nis stated to be studying in school at Ahmedabad. Wife has already instituted
\nproceedings before the Sessions Court under the Guardian and Wards Act. She is
\nstated to have also prayed for interim custody in such proceedings. In such
\nproceedings detailed inquiry will be conducted. Both sides will have liberty to led
\nevidence. Therefore, bypassing these proceedings, particularly, when the child has
\nbeen with the father since May 2007 exclusively, I am of the opinion that learned
\nMagistrate committed an error in granting temporary custody of the child to the
\nmother. This part of the order therefore, requires modification.<\/p>\n

20.Counsel for the mother further stated that she is not being allowed to meet the
\nchild. I do not see any reason why mother should be deprived of even visitation
\nrights of her own son. With respect to other directions, I see no reason to interfere.
\nThe petitioner is only son of his father who has Jewelery shop in a highly
\ncommercial area of Manek-chowk in city of Ahmedabad. Surely, he cannot avoid
\nliability to maintain his wife. Amounts fixed by learned Magistrate are eminently
\njust and reasonable.<\/p>\n

21.Under the circumstances, petition is disposed of with following directions :
\n1) Order for handing over custody of child temporarily to the mother is set aside.
\n2) Petitioners and other family members shall however, permit respondent no.1
\nwife to meet her son Mihir once every week between 10 to 12 on Sundays.
\nHowever, if she requires any change in time and date, she shall communicate
\nbefore hand to the petitioner and his family members.
\n3) It would be open for the mother after initially cultivating familiarity with the
\nchild, to take him out also.
\n4) Learned Sessions Court shall decide application i.e. C.M.A. No.160\/2008 of
\nwife for permanent custody expeditiously and unmindful of any observations made
\nin this order. Same may be disposed of preferably by 31.5.2011.
\n5) Petitioner shall continue to pay all other charges as fixed by learned Magistrate
\nin the impugned order.
\n6) 50% of arrears shall be cleared latest by 31.3.2011. Rest of the arrears shall be
\ncleared by 31.5.2011.<\/p>\n

22.Rule made absolute to above extent.
\n(Akil Kureshi,J.)
\n(raghu)<\/p>\n","protected":false},"excerpt":{"rendered":"

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