Whether Magistrate can give custody of minor child to wife under Domestic violence Act?

As is clear that Section 21 of the Act postulates 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." That means, the Magistrate has vast power to order interim custody of minor child and the contrary contention of learned counsel for petitioner "stricto sensu" deserves to be and is hereby repelled under the present set of circumstances.

Punjab-Haryana High Court

Balwinder Singh vs Harpreet Kaur on 10 July, 2012

Date of decision:-10.7.2012

CORAM:  MR.JUSTICE MEHINDER SINGH SULLAR

Citation; 2014 ALLMR(cri) JOURNAL 131 (P&H)

filed a criminal complaint against her husband petitioner Balwinder Singh and his other relatives under Section 12 and 18 to 23 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter to be referred as "the Act"). She has also moved an application for interim custody of her minor girl Rupinder Kaur, aged 3 years. The Magistrate accepted her prayer, vide impugned order dated 12.12.2011, which, in substance is as under:-

"Accordingly, the request of the interim relief of the custody of the minor child Rupinder Kaur made by the petitioner is, hereby accepted. However, the respondent would be at liberty to meet the minor children Rupinder Kaur as per the terms & conditions to be imposed by this Court after hearing the parties. Now to come up on 20.12.2011 for appearance of the petitioner and respondent No.1 in person and for further directions regarding the terms & conditions of a handing over the custody of the child Rupinder Kaur to the petitioner by the respondent No.1 as well as regarding permissible visits of the respondent No.1 to the minor child Rupinder Kaur."

CRR No.879 of 2012 -2-

2. Instead of complying with the directions contained in the impugned order of Magistrate, the petitioner-husband filed the appeal, which was dismissed as well by the Additional Sessions Judge, by virtue of impugned judgment dated 15.2.2012.

3. The petitioner-husband did not feel satisfied with the impugned orders and preferred the present revision petition, invoking the provisions of Section 401 Cr.PC.

4. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the instant revision petition in this context.

5. Ex facie, the argument of learned counsel for petitioner-husband that since the Magistrate did not have the jurisdiction to grant interim custody of minor child to the respondent-wife, so, the impugned orders are illegal, is not only devoid of merit but misplaced as well.

6. As is clear that Section 21 of the Act postulates 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." That means, the Magistrate has vast power to order interim custody of minor child and the contrary contention of learned counsel for petitioner "stricto sensu" deserves to be and is hereby repelled under the present set of circumstances.

7. Moreover, it is not a matter of dispute that Rupinder Kaur is only girl child of three years and a minor of such tender age requires the love, affection, emotion, care and maintenance by the mother. The paramount consideration in such matters is the welfare of the child. The Courts below have categorically CRR No.879 of 2012 -3- recorded the finding that the welfare of Rupinder Kaur minor shall be best protected if her custody is given to her mother, where she would be able to have the company of her brother Satkar Singh. The learned counsel for petitioner did not point out any material/ground, muchless cogent, to indicate as to how and in what manner, a female child of three years would be better protected by the petitioner- husband than her mother, respondent-wife.

8. Meaning thereby, both the Courts below have rightly recorded the cogent grounds in the impugned orders. Such orders containing valid reasons cannot possibly be interfered with by this Court, in the exercise of limited revisional jurisdiction under Section 401 Cr.PC, unless and until, the same are illegal, perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, so, the impugned orders deserve to be and are hereby maintained in the obtaining circumstances of the case.

9. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

10. In the light of aforesaid reasons, as there is no merit, therefore, instant revision petition is hereby dismissed as such.