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
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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Andhra High Court
Dr. Ambula Manoj vs Ambula Bhavana And Another on 26 August, 2009
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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