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whether the trial Court had power to grant permanent custody of the child to the father under the Protection of Women from Domestic Violence Act, 2005 (for short “the Act”). This was because it was specifically contended that the entrustment of custody to the father was not in tune with Section 21 of the Act. However, the appellate Court interfered with the order granting such custody on the ground that the custody of the child, aged below 5 years, should have been given only to the mother but not the father and did not go into the question of jurisdiction to grant or not to grant such an order.

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THE HON'BLE SRI JUSTICE G. BHAVANI PRASAD 
Criminal Petition No.4966 of 2009

26-08-2009 

Dr. Ambula Manoj 

Ambula Bhavana and another 

Counsel for the Petitioner: Sri K. Chidambaram

Counsel for 1st Respondent: Sri M. Rajasekhara Reddy 
Counsel for 2nd Respondent: Public Prosecutor 

:ORDER: 

Heard Sri K. Chidambaram, learned counsel for the petitioner, Sri M. Rajasekhara
Reddy, learned counsel for the 1st respondent and Sri A. Ramesh, learned counsel
representing the learned Public Prosecutor for the 2nd respondent.
In D.V.C. No.7 of 2008 on the file of the II Additional Chief Metropolitan
Magistrate-cum-Mahila Magistrate, Vijayawada, the petitioner herein filed
Criminal M.P. No.1140 of 2008 for the custody of Manaswini alias Vyshnavi, the
girl child, aged 5 years, born out of the conjugal relationship between the
petitioner and the 1st respondent. The learned Magistrate passed an order on
17-04-2008 after enquiring the child, directing the custody of the child to be
with the father/the petitioner as per the preference expressed by the child in
the Court. In Criminal Appeal No.110 of 2008 before the Sessions Judge, Mahila
Court, Vijayawada, the said order was challenged and the learned Judge by the
judgment, dated 29-06-2009 considered the question whether the trial Court had
power to grant permanent custody of the child to the father under the Protection
of Women from Domestic Violence Act, 2005 (for short "the Act"). This was
because it was specifically contended that the entrustment of custody to the
father was not in tune with Section 21 of the Act. However, the appellate Court
interfered with the order granting such custody on the ground that the custody
of the child, aged below 5 years, should have been given only to the mother but
not the father and did not go into the question of jurisdiction to grant or not
to grant such an order.
Against the direction of the appellate Court to hand over the custody of the
minor daughter to the 1st respondent within one day, the present criminal
petition has been filed contending that it was the welfare of the child as
elicited by the trial Court that should be the paramount consideration for
passing an appropriate order and in interfering with such an order in the
appeal, the appellate Court travelled beyond the scope of the appeal. The
petitioner further referred to some factual circumstances justifying the
continuance of custody of the child with him.
Pending the criminal petition, the operation of the judgment in Criminal Appeal
No.110 of 2008 was suspended to the extent of the direction to handover the
custody of the minor daughter by the petitioner to the 1st respondent herein.
Sri M. Rajasekhara Reddy, learned counsel for the 1st respondent brought to
notice of the Court the specific and unambiguous language of Section 21 of the
Act, which permitted grant of temporary custody of any child by the Magistrate
only to the aggrieved person or the person making an application on her behalf.
The Special Statute gave specific power to the Magistrate in respect of grant of
such temporary custody to the aggrieved person or any other person on her behalf
notwithstanding anything contained in any other law for the time being in force
and therefore, the considerations arising under personal law of the parties or
any other statutory provisions also may not matter to the extent of exercise of
jurisdiction by the Magistrate under Section 21 of the Act. While the
Magistrate has such jurisdiction to exercise in favour of the aggrieved person
or any person on behalf of the aggrieved person, any converse power to the
Magistrate to grant temporary custody of any child to the respondent cannot be
read from the said provision nor does it enable the Magistrate to entertain an
application from the respondent for such a purpose like the application in
question, which was entertained by the trial Court at the instance of the
petitioner herein. The Magistrate could not have travelled beyond the specific
and restricted power granted by Section 21 of the Act in ascertaining the wishes
of the child and directing entrustment of the custody of the child to the
petitioner, who is the respondent in the domestic violence case.
Sri K. Chidambaram, learned counsel for the petitioner referred to Mausami
Moitra Ganguli v. Jayanti Ganguli1 with reference to the principles of law in
relation to custody of a minor child and reiterated the emphasis given by the
Apex Court to the welfare of the child as the predominant consideration. The
Apex Court stated that in each case, the Court has to see primarily to the
welfare of the child in determining the question of his or her custody and it is
clear that a heavy duty is cast on the Court to exercise its judicial discretion
judiciously with the background of all relevant facts and circumstances bearing
in mind the welfare of the child as the paramount consideration. That was a
case arising under Hindu Minority and Guardianship Act and dealing with an
application under Sections 10 and 25 of the Guardians and Wards Act read with
the relevant provisions of Hindu Minority and Guardianship Act. Undoubtedly,
the considerations that govern the grant of permanent custody of a child on an
appropriate application under the relevant provisions of the relevant Statutes
are well settled, but the question herein is whether even on such
considerations, the Magistrate exercising jurisdiction under the Act can extend
the exercise of such jurisdiction to grant even temporary custody of the child
to the respondent. While there can be no doubt that such a Magistrate cannot
take recourse to the personal law of the parties or relevant Statutes like the
Guardians and Wards Act or Hindu Minority and Guardianship Act for exercising
his jurisdiction under the Special Statute, the Fora for exercising jurisdiction
under either the personal law or under the other Statutes are defined and
different and the Magistrate acting under the Act cannot encroach upon the
jurisdiction of those Fora or travel beyond the confines of Section 21 of the
Act in attempting to decide the right to custody of any child. What all the
Magistrate can grant under Section 21 of the Act is temporary custody only and
that too to the aggrieved person or a person making an application on her behalf
only. Therefore, the order of the learned Magistrate granting custody of the
child to the father in the present case is without jurisdiction and is null and
void.
However, a fait accompli is presented to the Court in so far as the present
custody of the child is concerned and Sri K. Chidambaram, learned counsel for
the petitioner submitted that the child, who herself opted to be with the
father, is studying her first standard under the loving care and custody of the
father, who may be given a reasonable opportunity to approach appropriate Forum
provided by law for continuance of such custody instead of abruptly terminating
such custody by a blunt dismissal of this criminal petition. Safeguarding the
interests of justice and the rights and interests of both parties, is the
ultimate object of any judicial proceeding and therefore, a reasonable
opportunity should be given to the petitioner in this regard.
Accordingly, the criminal petition is dismissed and the direction in the
judgment in Criminal Appeal No.110 of 2008 on the file of the Sessions Judge,
Mahila Court, Vijayawada, dated
29-06-2009 is confirmed to the extent of the direction to the petitioner to
handover the custody of the minor daughter-Vyshnavi, to the 1st respondent
herein, setting aside the order of the II Additional Chief Metropolitan
Magistrate-cum-Mahila Magistrate, Vijayawada in Criminal M.P. No.1140 of 2008 in
D.V.C. No.7 of 2008, dated 17-04-2008 to the contrary, but the petitioner is
granted twenty days time to handover the custody of the child to the 1st
respondent herein as per the judgment of the appellate Court subject to the
petitioner taking recourse to appropriate remedies available to him under law in
respect of the custody of the said child and getting any appropriate directions
from such appropriate Forum concerning the custody of the said child in the
meanwhile. It is necessary to make it clear that no part of this order is an
expression of opinion on merits of the right of the petitioner or the 1st
respondent to the custody of the child.?1 AIR 2008 SUPREME COURT 2262 


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