‘Permanent’ Custody Of Children Can’t Be Ordered In Proceedings Under Domestic Violence Act

Sham Kumbhakarna vs Sau Yogita and anr

Bombay HC, Aurangabad Bench

03/07/2018

CRIMINAL REVISION APPLICATION NO.133 OF 2014

About/from the judgment:

‘It is only when an application for protection order or for any other relief under this Act is pending, at any stage of hearing of such application, the aggrieved person has been given right to seek temporary custody of the child or children.’

 

The High Court held that no ‘permanent custody’ orders can be made in proceedings under the Protection of Women from Domestic Violence Act, 2005.

 

The issue before the high court was whether the words “temporary custody” used in Section 21 of the Act, would refer to grant of custody of the children during pendency of the application filed under Section 12 of the Act or whether it could be granted permanently covering the period after disposal of that application as well.

 

The court, referring to the provisions of the Domestic Violence Act, observed that the custody of children under Section 21 of the Act is temporary and the order for custody can be passed during the pendency of the application under Section 12 of the Act before the magistrate.

 

“The learned Additional Sessions Judge has interpreted the expression “at any stage of hearing” to mean and include even the stage when the application is decided finally. According to him, the expression, “at any stage of hearing” cannot be given restricted meaning to limit it “during pendency of the application” and the Magistrate can grant temporary custody of child or children to the aggrieved person while deciding the main application,” the bench observed.

 

“In order to understand the intention of the Legislature in using the phrase “at any stage of hearing of the application for protection order or for any relief under this Act”, it would be useful to refer to Sections 19 and 20 of the Act relating to “Residence orders” and “Monetary reliefs” respectively, which commence with the expression, “While disposing of an application…..”, the Magistrate may pass such orders. As such, the Legislature has thoughtfully and consciously used different expressions in Sections 19 and 20 on one hand and in Section 21 on the other. Therefore, the expression “at any stage of hearing” used in Section 21 cannot be interpreted to mean “While disposing of an application…” as has been used in Sections 19 and 20 of the Act. The language used in Section 21 is clear and unambiguous. There is no reason to take resort to purposive and liberal interpretation of the expression used in Section 21 to extend the “interim stage” to “final” one as has been done by the learned Additional Sessions Judge,” the court said.

 

The court also observed that relief in respect of permanent arrangement for custody of child or children, which would have force even after disposal of the application for protection order or other reliefs, cannot be said to be contemplated by the Legislature, while framing Section 21 of the Act.

Read the Judgment

Knowledge and content of about almost all their respective descriptions are borrowed from law-related blogs and websites, we, therefore, wish to give proper credit to all the respective law-related blogs and websites like LiveLaw, Bar and Bench, LatestLaws, PathLegal, FirstLaw, Lawctopus, IndianKanoon, Manupatra, LegallyIndia etc.. Many of the judgments are also taken from them websites of Hon'ble Supreme Court and other respective Hon'ble High Courts!

Formats for use
Please reload

Talk to our volunteer on our #Helpline

8882-498-498

Single Helpline Number For Men In Distress In India

Join our mailing list!  Stay up-to-date on upcoming projects, offers & events.

  • Follow Daaman on Facebook
  • Follow Daaman on Twitter

© 2018 Daaman Welfare Society & Trust.

All rights reserved.

Beware, anyone can be a victim of gender bias in society and laws! 

Don't wait: Schedule a conversation with a trusted, experienced Men's Rights Activist to find out how only awareness is the key to fight and remove prevailing gender bias against men in society.