Court under Section 7 subSections (1) and (2) as exclusive. But, this
exclusivity, as it emerges from the discussion made so far, would relate to
only those jurisdictions which are exercisable by a district Court or any
subordinate civil Court in respect of matters referred to in the
Explanation or by a criminal Court like the Court of Magistrate of the
First Class in respect of matters under chapter IX of the Cr.P.C. and
nothing more or nothing less. It is obvious that the exclusivity of the
jurisdiction under Section 8 of the Act, 1984 is extendable to only those
matters specifically referred to in subSection (1) and subsection (2) of
Section 7 of the Act 1984 and not to the jurisdiction of the Magistrate
under Section 21 of the DV Act. Thus, respectfully disagreeing with the
learned counsel for the petitioner, I find that Sections 7 and 8 of the Act,
1984 could not be interpreted and understood to mean that they confer
sole and exclusive jurisdiction upon the Family Court in respect of all
custody matters and, thus oust the jurisdiction of a Magistrate under
Section 21 of the DV Act. I would add here, there are certain custody
matters, like the one under Section 21 of the DV Act, which are beyond
the pale of dominance of Sections 7 and 8 of the Act, 1984.
17. No doubt, Section 20 of the Act 1984 accords provisions of
the said Act primacy over any other law for the time being in force due
to the overriding effect given to it. But, this overriding effect is only to
the extent of inconsistency of the provisions contained in any other law
in force with the provisions of the Act 1984. We have seen that
jurisdictions of the Family Courts under both parts of Section 7 do not
cover the jurisdiction exercisable by Judicial Magistrate, First Class in
respect of grant of interim custody under Section 21 of the DV Act and,
therefore, there is no question of jurisdiction of the Magistrate under
Section 21 of the DV Act being inconsistent with the provisions
conferring jurisdiction upon the Family Court and as such, the Act 1984
will not have any overriding effect upon the DV Act.
18. On the contrary, I must point out, the reliefs available under
Sections 18,19,20,21 and 22 of the DV Act are in the nature of a help,
which is extended to an aggrieved person in addition to the assistance
that the aggrieved person may have under any other law for the time
being in force whether civil or criminal. This is clear from the provision
of Section 26 of the DV Act which lays down that any reliefs available
under Sections 18,19,20,21 and 22 may also be sought in any legal
proceeding before the civil Court, family Court or a criminal Court. In
other words, the reliefs available under the DV Act are supplementary in
nature and do not exclude similar reliefs available under other laws.
This is further reaffirmed by the provision of Section 36 of the DV Act
prescribing that the provisions of this Act shall be in addition to and not
in derogation of provisions of any other law for the time being in force.
19. The above discussion would lead me to conclude that
application filed under Section 21 of the DV Act seeking interim custody
is maintainable before a Magistrate exercising jurisdiction in relation to
an area where Family Court is established and the Magistrate has
jurisdiction to decide such an application in accordance with law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.750 OF 2016
Dr. Parijat Vinod Kanetkar,
V
Mrs. Malika Parijat Kanetkar,
CORAM : S.B. SHUKRE, J.
DATE : 21 st DECEMBER, 2016.
Citation: 2017(2) MHLJ 218
1. This petition questioned the legality and correctness of the
portion of the order dated 8.10.2015 granting interim custody to the
respondent No.1 passed by the Judicial Magistrate, First Class, Amravati
in domestic violence proceedings being CC (DV) No.98/2015 and also
the order dated 31.8.2016 confirming the order of interim custody,
passed on 31st August, 2016 in Criminal Appeal No.175/2010 by
Additional Sessions Judge3, Amravati.
2. The petitioner No.1 is the husband of respondent No.1 and
petitioner Nos.2,3 and 4 are respectively the motherinlaw, fatherinlaw
and sisterinlaw of respondent No.1. The marriage of petitioner No.1
with respondent No.1 was solemnized at Amravati on 18.2.2014 as per
Hindu Rites and Customs and also under the Special Marriage Act, 1955.
After the marriage, the respondent No.1 started cohabiting with the
petitioner No.1, who was in joint residence with petitioner Nos.2 to 4 at
Mumbai. It appears that soon after the marriage, a discord developed
between petitioner No.1 and respondent No.1, for which, according to
the respondent No.1, even the petitioner Nos.2 to 4 were responsible.
The respondent No.1 alleged that she was tortured mentally by the
petitioners when she was residing in their house at Mumbai. The
respondent No.1, immediately after the marriage, carried pregnancy and
on 25.10.2014 gave birth to a son Ayaan, prematurely. It was in her 7th
moth of pregnancy. The respondent No.1 alleged that the petitioners, on
the excuse of the baby being prematurely born, did not allow her to
handle and take care of the baby. She alleged that after the baby was
brought back home in November 2014, the respondent No.1 was not
permitted to nurture and raise her child. She further alleged that she
was subjected by petitioners to mental harassment by hurling abuses and
critical comments. She further alleged that on 17.2.2015, when the child
was to be taken to the hospital for vaccination, the petitioners prevented
respondent No.1 from touching and handling her child charging that she
was incapable of rearing a child. This all created a disgusting situation
for respondent No.1 and as submitted by her, she could no longer bear
the mental torture and, therefore, she straightaway headed parental
home at Amravati from the hospital. The respondent No.1 further
maintained that after her mental condition was stabilized, she
approached the Court of Judicial Magistrate, First Class at Amravati by
filing application under the Protection of Women from Domestic Violence
Act, 2005 (in short, DV Act”) seeking various reliefs from that Court. It
was registered as CC (DV) case No.98/2015. In these proceedings, the
respondent No.1 also filed an application (Exh.5) for seeking interim
reliefs including the relief of grant of interim custody under Section 21 of
the DV Act.
3. The allegations and the claims made against the petitioners
were vehemently denied by them. They alleged that the respondent
No.1 was inhuman in treating her baby and utterly irresponsible in her
motherly duties. They contended that the respondent No.1 was never
mentally prepared for a pregnancy and was unable to breastfeed her
child due to lack of lactation. They also submitted that the respondent
No.1 did not take adequate care of the child as advised by the doctor.
They claimed that the respondent No.1 never wanted to marry with
petitioner No.1. They also submitted that it was in the interest and
welfare of the baby Ayaan,, who required love and affection as well as
proper treatment from expert doctors available in Mumbai, that his
custody was not handed over even by an interim order to respondent
No.1.
4. On merits of the case, the learned Judicial Magistrate, First
Class, Amravati found that it was in the interest and welfare of the child
that the custody was handed over to respondent No.1 and accordingly,
by her order passed on 8th October, 2015, granted the same to the
respondent No.1. This order was challenged in appeal under Section 29
of the DV Act filed by the petitioners which was registered as Criminal
Appeal No.175/2010. After hearing both sides, learned Additional
Sessions Judge3, Amravati by her judgment and order dated 31st August,
2016 dismissed the appeal thereby confirming the order of interim
custody of the child given to respondent No.1 by Judicial Magistrate,
First Class, Amravati. Not being satisfied with both these orders, the
petitioners are before this Court in the present criminal writ petition.
5. I have heard Shri Shyam Dewani, learned counsel for the
petitioners, Smt. R.S. Sirpurkar, learned counsel for the respondent No.1
and Shri N.R. Patil, learned Additional Public Prosecutor for the
respondent No.2.
6. Shri Shyam Dewani, learned counsel for the petitioners has
taken objection to the jurisdiction of the Court to pass an order of interim
custody under Section 21 of the DV Act on the ground that the Family
Court is available at Amravati, dispute between the parties is also
pending before the Family Court, Amravati and the Family Court is
already seized of the matrimonial dispute between petitioner No.1 and
respondent No.1, all of which fulfill the requirements of the provisions of
Sections 7(1)(g), 7(2)(8) and (20) of the Family Courts Act 1984 (in
short, “Act, 1984”) ousting the jurisdiction of the Judicial Magistrate to
grant interim custody under Section 21 of the DV Act. He also submits
that Section 21, DV Act deals with only interim or temporary custody and
unlike the Family Courts Act there is no provision made in the DV Act
conferring power upon the Magistrate Court to decide the question of
permanent custody and, therefore, when the Family Court is already
seized of the matter, the Court of Judicial Magistrate, First Class ought
not to have passed any order under Section 21 of the DV Act. He also
submits that Section 36 of the DV Act clarifies that the provisions of DV
Act are in addition to and not in derogation of the provisions of any other
law for the time being in force. Thus, according to him, a combined
reading of these provisions of law would lead to a conclusion that when
forum of Family Court is available for the parties to obtain appropriate
relief regarding custody, the remedy under Section 21 of the DV Act is
not available to the parties and, therefore, the impugned orders are a
nullity.
7. On merits of the case, learned counsel for the petitioners
submits that both the Courts below have committed grave error of facts
and law by not considering the relevant material available on record and
ignoring in the process the welfare of the infant Ayaan in this case.
8. Smt. R.S. Sirpurkar, learned counsel for the respondent No.1
submits that Section 26 of the DV Act makes it clear that the reliefs under
Sections 18,19,20,21 and 22 may also be sought in any legal proceedings
before a Civil Court or Family Court or a Criminal Court and this would
only show that the reliefs under the DV Act serve as additional and not
alternate measures and, therefore, there is no question of them being
barred or rendered unavailable by a remedy available under another Act
like the Act, 1984. She also submits that this is further affirmed by the
provision of Section 36 of the DV Act laying down that all the provisions
of DV Act are in addition to and not in derogation of the provisions of
any other law for the time being in force. Therefore, she submits that
the Family Court, Amravati will have no exclusive jurisdiction to decide
the kind of application which has been filed by the respondent No.1 in
the instant case, seeking interim custody of the child under Section 21 of
the DV Act.
9. On merits of the case, learned counsel for the respondent
No.1 submits that there have been concurrent orders granting interim
custody to the respondent No.1 and there being no perversity or
arbitrariness in these orders, there is no need to make any interference
with the same in exercise of writ jurisdiction of this Court.
10. Since objection to the jurisdiction of the Court of Magistrate
to decide an application filed under Section 21 of the DV Act in view of
the provisions of the Act, 1984 and availability of a Family court at
Amravati has been taken, it would be necessary for this Court to consider
and decide the same first. The objection revolves around interpretation
of Sections 7,8 and 20 of the Act 1984 and also Sections 21,26 and 36 of
the DV Act. This would also necessitate comprehending the legal
meaning of certain terms and expressions such as District Court and
Magistrate. It would be, therefore, useful for us to reproduce here
relevant provisions of law, the expanse and mandate of which is required
to be considered here. They are reproduced as below :
Family Courts Act, 1984 :
Section 2 : Definitions. – In this Act, unless the context
otherwise requires,
(e) all other words and expressions used
but not defined in this Act and defined in the Code of Civil Procedure,
1908 (5 of 1908) shall have the meanings respectively assigned to them
in that Code.
Section 7 : Jurisdiction. (1) Subject to the other provisions
of this Act, a Family Court shall
(a) have and exercise all the jurisdiction exercisable by any
district Court or any subordinate civil Court under any law for the time
being in force in respect of suits and proceedings of the nature referred to
in the Explanation; and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district Court or, as the case may be,
such subordinate civil Court for the area to which the jurisdiction of the
Family Court extends.
Explanation. The suits and proceedings referred to in this
subsection are suits and proceedings of the following nature, namely:
(a) a suit or proceeding between the parties to a marriage
for decree of nullity marriage (declaring the marriage to be null and void
or, as the case may be, annulling the marriage) or restitution of conjugal
rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of
a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage
with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in
circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy
of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the
person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall
also have and exercise;
(a) the jurisdiction exercisable by a Magistrate of the first
class under Chapter IX (relating to order for maintenance of wife,
children and parents) of the Code of Criminal Procedure, 1973 (2 of
1974); and
(b) such other jurisdiction as may be conferred on it by any
other enactment.
Section 8 : Exclusion of jurisdiction and pending
proceedings. Where a Family Court has been established for any area,
(a) no district Court or any subordinate civil Court referred
to in subsection (1) of Sec. 7 shall, in relation to such area, have or
exercise any jurisdiction in respect of any suit or proceeding of the nature
referred to in the Explanation to that subsection;
(b) no Magistrate shall, in relation to such area, have or
exercise any jurisdiction or powers under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to in the
Explanation to subsection (1) of section 7 and every proceeding under
Chapter IX of the Code of Criminal Procedure, 1973(2 of 1974)
( i ) which is pending immediately before the
establishment of such Family Court before any district Court or
subordinate Court referred to in that subsection or, as the case may be,
before any Magistrate under the said Code; and
( ii ) which would have been required to be
instituted or taken before or by such Family Court if, before the date on
which such suit or proceeding was instituted or taken, this Act had come
into force and such Family Court had been established,
shall stand transferred to such Family Court on the date on which it is
established;
Section 20 : Act to have overriding effect. The provisions
of this Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force or in any
instrument having effect by virtue of any law other than this Act.
Code of Civil Procedure :
Section 2. Definitions. In this Act, unless there is anything
repugnant in the subject or context,
(4) “district” means the local limits of the jurisdiction of a principal Civil
Court of original jurisdiction (hereinafter called a “District Court”), and
includes the local limits of the ordinary original civil jurisdiction of a
High Court;
Section 3. Subordinate of Courts. For the purposes of this
Code, the District Court is subordinate to the High Court, and every Civil
Court of a grade inferior to that of a District Court and every Court of
Small Causes is subordinate to the High Court and District Court.
Protection of Women from Domestic Violence Act, 2005 :
Section 2 : Definitions. – In this Act, unless context otherwise
requires,
(i) “Magistrate” means the Judicial Magistrate of the
first class, or as the case may be, the Metropolitan Magistrate, exercising
jurisdiction under the Code of Criminal Procedure, 1973(2 of 1974) in
the area where the aggrieved person resides temporarily or otherwise or
the respondent resides or the domestic violence is alleged to have taken
place;
Section 21. 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 may be harmful to the interests of the child or children, the
Magistrate shall refuse to allow such visit.
Section 26. Relief in other suits and legal proceedings.—
(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be
sought in any legal proceeding, before a civil court, family court or a
criminal court, affecting the aggrieved person and the respondent
whether such proceeding was initiated before or after the
commencement of this Act.
(2) Any relief referred to in subsection (1) may be sought for
in addition to and along with any other relief that the aggrieved person
may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved
person in any proceedings other than a proceeding under this Act, she
shall be bound to inform the Magistrate of the grant of such relief.
Section 36. Act not in derogation of any other law.— The
provisions of this Act shall be in addition to, and not in derogation of the
provisions of any other law, for the time being in force.
11. Upon perusal of Section 7 of the Act, 1984, it would be clear
that this provision is in two parts, first, under subSection (1), covers the
civil jurisdiction and the, second, under subSection (2), relates to
criminal jurisdiction. The civil jurisdiction that a Family Court can
exercise under Section 7(1) is the one exercisable by any district Court or
any subordinate civil Court and it is relating to those matters which are
enumerated in the Explanation to it. Clause (g) of the Explanation refers
to custody of minor, with which we are concerned in this petition. But,
this jurisdiction of a Family court to deal with custody matter, it has to be
borne in mind, is basically of a district court or any subordinate civil
Court, as is evident from the language employed in clauses (a) and (b) of
subSection (1) of Section 7 of the Act, 1984. A district court or for that
matter a subordinate civil Court, is different and distinct from the Court
of a Magistrate in terms of their nature of jurisdiction, powers and source
of their existence.
12. The expressions “district court” and “subordinate civil court”
have not been defined in the Act 1984, but Section 2(e) of the same Act
would direct us to the Code of Civil Procedure (in short, “CPC”) to
understand meaning of the same. Even in the CPC, the expressions
“district court” and the “subordinate civil court” have not been
specifically defined, but their meaning could be understood by referring
to Section 2(4) and Section 3 of the CPC. These Sections only emphasize
that a district court is nothing but a principal civil court of original
jurisdiction and every district court is subordinate to the High Court and
every civil court of a grade inferior to that of a district court is
subordinate to the High Court and the district court. A district court or a
subordinate civil court exercises jurisdiction in respect of only those
matters which are of civil nature as contemplated by Section 9 CPC and
not those which are of criminal nature as contemplated by provisions
contained in Chapter II of the Cr.P.C. Source of existence of district court
or subordinate civil court is the CPC and relevant State law, in
Maharashtra, it is Maharashtra Civil Courts Act as modified upto
30.1.2016, and that of a Magistrate's Court is the Code of Criminal
Procedure (for short, “Cr.P.C.”) Thus, jurisdiction over a custody matter
referred to in Section 7(1)(g) of the Act, 1984 is the one exercisable by a
civil court, which is different and distinguishable from a criminal court.
It would then follow that if any criminal court is invested with a parallel
power to grant interim custody, it would not be covered by the mandate
of Section 7(1)(g) of the Act, 1984.
13. Under Section 21 of the DV Act, power has been conferred
upon the Magistrate to grant temporary custody of any child to the
aggrieved person when he is seized of the application filed for grant of
protection order or any other relief under the DV Act. Under Section 2(i)
of the DV Act, Magistrate means the Judicial Magistrate of the First Class
or as the case may be, Metropolitan Magistrate, exercising jurisdiction
under the Code of Criminal Procedure, 1973. This jurisdiction of the
Magistrate under Section 21 of the DV Act, as could be seen from the
definition of the term “Magistrate”, is specific and exclusive to the
Judicial Magistrate, First Class or as the case may be, the Metropolitan
Magistrate exercising jurisdiction under the Cr.P.C. and, therefore,
would not be covered by the provisions of Section 7(1) of the Act, 1984
in particular, clause (g) thereof. It would also not be covered by the
second part under subsection (2) of Section 7 of the Act, 1984 as only a
small chunk of criminal jurisdiction of the Magistrate under the Cr.P.C.
has been earmarked and made over to the Family Court thereunder.
This portion of jurisdiction is confined to only the maintenance
proceedings initiated under Chapter IX of the Cr.P.C. before the
Magistrate of the First Class and nothing more. It is thus clear that
jurisdiction of the Magistrate to adjudicate upon the question of grant of
interim custody is parallel to and independent of the jurisdiction over
custody matters under Section 7 of the Act, 1984
14. Above interpretation, in my view, receives a seal of approval
in a way, when one considers the nonobstante clause contained in
Section 21 of the DV Act, the purpose that it seeks to achieve and the
nature of power it confers upon the Magistrate. The nonobstante clause
unbounds the Magistrate from similar powers of other courts in other
enactments and regardless of those powers, he can go about the issue of
interim custody on his own. The purpose that this Section seeks to
achieve is protection of the aggrieved person, for the time being from
domestic violence, which is discernible from the condition prescribed for
exercise of the interim custody power under Section 21 of the DV Act.
Pendency or filing of an application for protection order or any other
relief under the DV Act is must and in such proceeding the issue of
interim custody can be raised. The reason being that it is also an issue of
domestic violence as it harms the mental health of an aggrieved person
who maintains a perception and is capable of demonstrating at least in a
prima facie manner, that welfare of the child is being undermined. The
nature of the power is temporary and coterminous with the main
application filed for protection or any other relief. It begins with filing of
such main application and comes to an end with disposal of the main
application or may merge with the final decision rendered in the
proceeding. Such being the nature and purpose of power of the
Magistrate under Section 21 of the DV Act, it would have to be said that
it is separate and independent from and not covered by either of the
parts of Section 7 of the Act, 1984. If such interpretation is not given to
Section 21, DV Act power, the Section itself can be rendered otiose in a
given case and the Magistrate will be divested of his power to adjudicate
upon that species of domestic violence issue which arises from
jeopardising the welfare of the child. Such is, however, not the intention
of the legislature, rather, the interpretation made earlier is in consonance
with the intention of the legislature and object of the DV Act to protect
women from domestic violence.
15. The interpretation made regarding Section 21, DV Act power
would receive further confirmation from the fact that an application filed
under Section 21 of the DV Act does not come under the effulgence of
Section 8(b) of the Act, 1984 which bars specifically the jurisdiction of
the Magistrate, in relation to an area where a Family Court has been
established, only under Chapter IX of the Cr.P.C., and not under any
other law for the time being in force.
16. Section 8 of the Act 1984 makes jurisdiction of the Family
Court under Section 7 subSections (1) and (2) as exclusive. But, this
exclusivity, as it emerges from the discussion made so far, would relate to
only those jurisdictions which are exercisable by a district Court or any
subordinate civil Court in respect of matters referred to in the
Explanation or by a criminal Court like the Court of Magistrate of the
First Class in respect of matters under chapter IX of the Cr.P.C. and
nothing more or nothing less. It is obvious that the exclusivity of the
jurisdiction under Section 8 of the Act, 1984 is extendable to only those
matters specifically referred to in subSection (1) and subsection (2) of
Section 7 of the Act 1984 and not to the jurisdiction of the Magistrate
under Section 21 of the DV Act. Thus, respectfully disagreeing with the
learned counsel for the petitioner, I find that Sections 7 and 8 of the Act,
1984 could not be interpreted and understood to mean that they confer
sole and exclusive jurisdiction upon the Family Court in respect of all
custody matters and, thus oust the jurisdiction of a Magistrate under
Section 21 of the DV Act. I would add here, there are certain custody
matters, like the one under Section 21 of the DV Act, which are beyond
the pale of dominance of Sections 7 and 8 of the Act, 1984.
17. No doubt, Section 20 of the Act 1984 accords provisions of
the said Act primacy over any other law for the time being in force due
to the overriding effect given to it. But, this overriding effect is only to
the extent of inconsistency of the provisions contained in any other law
in force with the provisions of the Act 1984. We have seen that
jurisdictions of the Family Courts under both parts of Section 7 do not
cover the jurisdiction exercisable by Judicial Magistrate, First Class in
respect of grant of interim custody under Section 21 of the DV Act and,
therefore, there is no question of jurisdiction of the Magistrate under
Section 21 of the DV Act being inconsistent with the provisions
conferring jurisdiction upon the Family Court and as such, the Act 1984
will not have any overriding effect upon the DV Act.
18. On the contrary, I must point out, the reliefs available under
Sections 18,19,20,21 and 22 of the DV Act are in the nature of a help,
which is extended to an aggrieved person in addition to the assistance
that the aggrieved person may have under any other law for the time
being in force whether civil or criminal. This is clear from the provision
of Section 26 of the DV Act which lays down that any reliefs available
under Sections 18,19,20,21 and 22 may also be sought in any legal
proceeding before the civil Court, family Court or a criminal Court. In
other words, the reliefs available under the DV Act are supplementary in
nature and do not exclude similar reliefs available under other laws.
This is further reaffirmed by the provision of Section 36 of the DV Act
prescribing that the provisions of this Act shall be in addition to and not
in derogation of provisions of any other law for the time being in force.
19. The above discussion would lead me to conclude that
application filed under Section 21 of the DV Act seeking interim custody
is maintainable before a Magistrate exercising jurisdiction in relation to
an area where Family Court is established and the Magistrate has
jurisdiction to decide such an application in accordance with law.
Irresistible conclusion further would be that the application filed under
Section 21 of the DV Act before the Court of Judicial Magistrate, First
Class, Amravati in the instant case is tenable and the impugned orders
cannot be assailed on the ground of want of jurisdiction, they being a
nullity.
20. Shri Shyam Dewani, learned counsel for the petitioners has
placed his reliance upon the case of Harsh vs. Komal, reported in
2015(6) LRC 328 (Rajasthan), decided by learned Single Judge of
Rajasthan High Court, wherein the learned Single Judge has taken a view
that under Section 21 of the DV Act, no independent remedy has been
provided to seek custody of the minor child. Learned Single Judge
relying upon another decision of the learned Single Judge of the
Rajasthan High Court in the case Payal Agrawal vs. Kunal Agrawal,
reported in 2014 Cri. L.J. 4821, held that Section 21 of the DV Act does
not provide any independent remedy to seek custody of the minor child
and, therefore, in a case where the Family Court has been established for
an area in respect of which the Court of Judicial Magistrate, First Class
also exercises jurisdiction, the latter Courts jurisdiction under Section 21
of the DV Act would be ousted by the Family Court. It appears that in
these decisions, the nature of jurisdiction conferred by Section 7 of the
Act 1984 upon the Family Court was not brought to the notice of the
learned Single Judges of the High Court of Rajasthan and emphasis was
placed only upon Section 20 of the Act 1984. It also appears that the
effect of Section 36 of the DV Act over the jurisdiction of the Family
Court under Section 7 of the Act 1984 was not properly brought to the
notice of the High Court. Therefore, with due respect, I would say it is
not possible to agree with the view taken in these decisions.
21. Learned counsel for the petitioner has also invited my
attention to the observations of the Hon'ble Apex court in the case of
Shabana Bano vs. Imran Khan, reported in (2010) 1 SCC 666, wherein
in paragraph 13 the Hon'ble Apex Court has observed that Act 1984,
interalia seeks to exclusively provide within jurisdiction of the Family
Courts the matters relating to maintenance, including proceedings under
Chapter IX Cr.PC and that Section 20 of the Act, 1984 lays down that the
Act shall have overriding effect on other enactments. Learned counsel
for the petitioners has further placed reliance upon the case of Kiran
Singh and others vs. Chaman Paswan and others, reported in AIR
1954 SC 340, wherein the Hon'ble Apex Court has laid down that it is a
fundamental principle that a decree passed by a Court without
jurisdiction is a nullity and that its invalidity could be set up whenever
and wherever it is sought to be enforced or relied upon, even at the stage
of execution and even in colateral proceedings.
22. There can be no dispute about the principles of law which
emerge from the decisions of Shabana Bano (supra) and Kiran Singh
(supra). But, Shabana Bano's case would give no assistance to learned
counsel for the petitioners as it does not deal with Section 21 of the DV
Act and in the present case, overriding effect of Section 20 of the Act,
1984 has not been seen to be encasing jurisdiction of the Magistrate
under Section 21 of the DV Act. So far as the ratio of Kiran Singh is
concerned, I find, in the instant case no occasion has arisen for
implementing it for the reason that the order of interim custody passed
by the learned Magistrate, and the further order of the learned
Additional Sessions Judge confirming it, both, have been found by me to
be within jurisdiction, for the reasons stated in the earlier paragraphs.
23. Learned counsel for the respondent No.1 has placed her
reliance upon the case of Dhavai Rajendrabhai Soni vs. Dhavinl
Dhavalbhai Soni and others, reported in 2011 DGLS (Cri.) Soft 1123,
in support of her argument that a Magistrate does have the jurisdiction to
grant relief of interim custody under Section 21 of the DV Act. I do not
think that in a controversy like the present one wherein the issue of
ouster of jurisdiction of the Magistrate under Section 21 of the DV Act by
virtue of Sections 7,8 and 20 of the Act 1984 is involved, said decision
would render any useful assistance as similar issue was not involved in
that case.
24. On the point of need for retention of the custody of the child
by the petitioners, it has been argued that the welfare of the child being
of the paramount consideration, it would be in the best interest of the
child that the child continues to remain under the care and custody of the
petitioners so that his physical, mental psychological and medical needs
are adequately catered to. By taking me through the correspondence
between the parties, copies of which are forming part of the paper book,
learned counsel for the petitioners would submit that the respondent
No.1 has been indifferent and even callous to her son Ayaan, a
premature baby. He points out that respondent No.1 had disappeared
from the hospital on 17th February, 2015, leaving everybody including
Ayaan in lurch and thereafter did not inquire even once about the
welfare of Ayaan till around May 2015 when the application under
Section 12 of the DV Act was filed by respondent No.1. It is also
submitted that during interregnum, the respondent No.1 instead of being
concerned about the health of her prematurely born baby, was anxious
to get back her personal belongings, as is evident from emails that she
sent to petitioner No.1 and this would only demonstrate that the
respondent No.1 has no love and affection for Ayaan and it is further
submitted that the respondent No.1, as the medical papers would show
did not develop lactation, could not breastfeed the child and this
required expert guidance for providing proper nourishment to the child
which is being currently provided by the petitioners at Mumbai. Learned
counsel for the petitioners also took me through the medical papers
forming part of paper book and submitted that the child Ayaan is under
special medical treatment at Mumbai and there would be a break in this
special treatment if any change in custody occurs. He submits that this
treatment, it is feared by the petitioners, may not be available at
Amravati. He also submits that apart from petitioner No.1, petitioner
Nos.2,3 and 4 are completely attached to the child Ayaan and he is
growing well under their caring, attentive and affectionate shelter. He
further submits that all this would not be possible at Amravati and,
therefore, the petitioners deserve to be granted custody of the child.
25. In support of his argument regarding welfare being of
paramount consideration, learned counsel for the petitioners has placed
reliance upon the cases (a) R.V. Srinath Prasad vs. Nandamuri
Jayakrishna and others, reported in (2001) 4 SCC 71 and (b) Alkaben
Rajubhai Patel and another vs. Sejalben w/o. Late Nainesh
Natwarbhai Patel, Guardianship Petition No.26/2015, decided by
learned Single Judge of the Bombay High Court dated 23rd
September, 2016.
26. Smt. R.S. Sirpurkar, learned counsel for respondent No.1 has
submitted that all these aspects of the case have been properly
considered by the Courts below and the findings recorded by them being
based upon the record of the case and law applicable to the facts of this
case, could not be said to be against settled principles of law, perverse or
arbitrary and as such would not call for any interference by this Court in
exercise of its writ jurisdiction. She also submits that in custody matters,
not the right of the parents, but the welfare of the child, is of utmost
importance which must be borne in mind while adjudicating upon the
issue of proper custody of the child. In support she has placed reliance
upon these cases : (a) Manjita Naik Tuenkar vs. Soiroo @ Sarvesh C.
Naik Tuenkar and another, reported in 2013 DGLS (Cri.) Soft 1185,
(b) Captain Rattan Amol Singh vs. Smt. Kamaljit Kaur w/o. Captain
Rattan Amol Singh, reported in AIR 1961 PUNJAB 51, (c) Jai Prakash
Khadria and another vs. Shyam Sunder Agarwalla and another,
reported in 2000(3) ALL MR 667 (SC), (d) Arwa Taha Saifuddin vs.
Taha Mufaddal Saifuddin, reported in 2016(2) Mh.L.J. 322, (e) Nil
Ratan Kundu and another vs. Abhijit Kundu, reported in (2008) 9 SCC
413 and (f) Palmira w/o. Cruz Fernandes vs. Cruz Fernandes,
reported in 1992(2) Mh.L.J. 1048. Learned counsel has also placed
reliance on Civil Appeal No.1966/2015 Roxann Sharma vs. Arun
Sharma, with Civil Appeal No.1967/2015, decided by Hon'ble Supreme
Court on 17th February, 2015 which is on welfare of child being
important and the case of Shalu Ojha vs. Prashant Ojha, reported in
(2015) 2 SCC 99.
27. In the case of Shalu Ojha (supra) I must mention at the
outset that the Hon'ble Apex Court, instead of going into the issue as to
whether or not the Appellate Court can grant interim order staying
execution of the maintenance order passed by the Magistrate, directed
the Sessions Court to dispose of the appeal on merits. Such being the
direction, this case would render no assistance to us in the present case.
28. Now, reverting to the rival submissions, I find that learned
counsel for the respondent No.1 is right when she submits that in writ
jurisdiction the scope of interference does not go beyond examining the
impugned order from the view point of it being perverse, arbitrary or
going against well settled principles of law or statutory provisions or
exfacie illogical. When the impugned orders are examined from such a
perspective, I find that they do not contain any such illegality or
perversity as would warrant any interference with them. The Courts
below have considered all the points raised before them, which were
similar to those raised here and decided them by taking a view, which is
neither arbitrary nor illegal nor illogical nor of the nature as would cause
miscarriage of justice.
29. It is true that respondent No.1 suddenly disappeared from
the hospital on 7.2.2015 when her infant son Ayaan was being examined
by the doctor. The correspondence available on record at this stage,
however, shows that the respondent No.1 was then experiencing a
traumatic and distressed phase of her life due to what was happening
between her on the one hand and the petitioners on the other, the details
of which could be seen in the communications between the parties
trading allegations against each other. These emails and letters
constitute a word against word and it is difficult at this stage to give a
finding as to who is right and who is not, but the fact remains that
interse relations between the rival parties were stretched to the level of
severe bitterness pervading their minds over a prolonged period. This
may have left respondent No.1 frustrated with her own condition and
when, she also states so, she regained her mental equilibrium that she
started making entreaties with the petitioners to give her back her infant
son to shower her love and affection on him and nurture him, at a time
when the baby required it the most.
30. It is also true that there is one letter addressed as “To
whomsoever it may concern” signed by respondent No.1 taking all the
blame upon herself for all that mess that her marriage with the petitioner
No.1 has been pushed into. However, the way it has been written only
indicates that the words exhibit more of a tone of sarcasm rather than an
intention of confession and correction.
31. About deficiency of respondent No.1 in breastfeeding her
infant son, I find that there is no disputing this fact. But, as seen from
the medial papers, there appears to be a reason for it. It was probably
the premature birth of Ayaan, and for this, surely respondent No.1
cannot be lambasted. Even otherwise, if lactation is not established, the
mother cannot be blamed as that is something which is part of her body
metabolism and genetics over which she would never have any control.
One thing is certain, there is no nexus between lack of lactation and
motherly attachment to one's own baby. In the present case, by seeking
custody of the child, I think the respondent No.1 has shown that she is
concerned about the welfare of her child and desirous of giving him all
that care, love and affection which only a mother can give. If this is so,
any denial of interim custody to her would result in harming her mental
health and thus cause domestic violence to her. But, of course this would
not be the primary consideration for deciding custody of the child.
Welfare, of the child, as held in several cases, including those relied upon
by both sides, is of the paramount consideration. In the fact situation of
this case, I find that the baby is so small that his being with mother, who
is yearning for her reunion with her child, would only help him grow and
develop, physically, psychologically and mentally well, at least for the
present. The facts and circumstances of this case discussed earlier would
also show that the respondent No.1, for the time being, has established
herself to be a fit person to have the custody of the baby. Her conduct
for about two and half months during the period from 17.2.2015 till
about early May 2015 has also been found to be not showing indifference
or nonattachment towards Ayaan. All this would show that welfare of
Ayaan, for the present, will be well achieved, if his interim custody is
given to respondent No.1.
32. About the medical treatment that is being given to Ayaan at
Mumbai, I must say there is nothing available on record showing that
equally competent and professional medical treatment is not available at
Amravati. Learned counsel for the petitioners has filed on record a Pursis
along with documents including a medical report dated 23.8.2016 which
shows that Ayaan has been diagnosed to be suffering from mild Autism
and he is undergoing treatment for Speech and Behavioral Therapy,
Occupational Therapy, Hearing and Vision Assessment, Thyroid Profile
Assessment and Autism Assessment. As stated earlier, if at all this is true,
similar treatment could also be given to the child at Amravati and if
parties feel that this is not possible it would constitute a change of
circumstances justifying modification of the interim order of custody by
invoking power under Section 25(2) of the DV Act. That apart, from the
record it is seen that these documents were not available for
consideration before the Courts below and therefore, it would be unjust
to question the legality and correctness of the impugned orders by
considering these documents for the first time in exercise of writ
jurisdiction. For this reason also, the impugned orders cannot be faulted
with. All said and done, I may say that a custody order by it's very nature
being temporary is amenable to change or modification subsequently if it
is necessitated by the change of circumstances.
33. In the circumstances, I do not see any reason to reverse the
impugned orders and the writ petition deserves to be dismissed.
34. Writ Petition stands dismissed.
35. Custody of the child, Ayaan, shall be handed over to the
respondent No.1 within three weeks from the date of the order.
36. Rule is discharged.
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