Punjab & Haryana HC: Appellate Court while exercising power under Section 29 of DV Act has power to pass interim order

The appellate court may or may not exercise power to pass interim order, however, if it is held that appellate court in terms of Section 29 has no power to pass interim order, it would amount to curtailing the powers of appellate court. It seems to be contrary to settled canons of law that appellate authority or court unless specifically barred can exercise all those powers which are vested in subordinate authority. It cannot be approved that Magistrate has power to pass interim order, however, appellate court has no power to pass interim order. Due to overburden, more often than not, appellate courts are unable to finally adjudicate appeal against interim order and if it is held that appellate court has no power to pass interim order, Magistrate may finally decide the issue and appeal would become infructuous.

In view of above-cited judgments and settled principles of law, this court is of the considered opinion that appellate court while exercising powers under Section 29 of DV Act has power to pass interim order.

21. In view of above facts and findings, it is hereby held:

i) Appeal under Section 29 of the DV Act is maintainable against interim order passed under Section 23 of the DV Act.

ii) Appellate Court while exercising power under Section 29 of DV Act has power to pass interim order.

 In the High Court of Punjab and Haryana at Chandigarh

(Before Jagmohan Bansal, J.)

Bhanu Kiran Vs Rahul Khosla and Others 

CRR-2485 of 2022 (O&M)

Decided on February 28, 2023

Citation: 2023 SCC OnLine P&H 7234,

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Supreme Court: The court must consider the issue of child's stability and continuity while deciding child custody matters

 Having bestowed our anxious consideration to the material on record and the observations made by the courts below, we are of the view that in the present case there is no ground to upset the judgment and order of the High Court. There is nothing on record to suggest that the welfare of the child is in any way in peril in the hands of the father. In our opinion, the stability and security of the child is also an essential ingredient for a full development of child's talent and personality. As noted above, the appellant is a teacher, now employed in a school at Panipat, where she had shifted from Chandigarh some time back. Earlier she was teaching in some school at Calcutta. Admittedly, she is living all alone. Except for a very short duration when he was with the appellant, Master Satyajeet has been living and studying in Allahabad in a good school and stated to have his small group of friends there. At Panipat, it would be an entirely new environment for him as compared to Allahabad. Having interviewed Satyajeet in our chambers for some time, we find it difficult to accept the stand of the appellant that the father does not have sufficient time or resources to look after the welfare of the child. We are convinced that the dislocation of Satyajeet, at this stage, from Allahabad, where he has grown up in sufficiently good surroundings, would not only impede his schooling, it may also cause emotional strain and depression on him. It is also significant to note that during the course of hearing on one of the dates, when we had not yet interviewed Satyajeet, we had suggested that it would be better if the child could stay with his mother for some more time. However, upon hearing us, he started crying and whining and, showed reluctance to go with the mother. Watching his reaction, we dropped the proposal. Under these circumstances and bearing in mind the paramount consideration of the welfare of the child, we are convinced that child's interest and welfare will be best served if he continues to be in the custody of the father. In our opinion, for the present, it is not desirable to disturb the custody of Master Satyajeet and, therefore, the order of the High Court giving his exclusive custody to the father with visitation rights to the mother deserves to be maintained. {Para 17}

Key Pillars of the Ratio:

• Welfare Over Legal Rights: Statutory provisions (such as Section 17 of the Guardians and Wards Act, 1890 or Section 13 of the Hindu Minority and Guardianship Act, 1956) cannot overrule what is best for the child's psychological and physical well-being. 
• Stability and Continuity: A child's stability and security are essential for the full development of their talent and personality. Dislocating a child from an established, healthy environment where they have grown up can cause emotional strain and impede their development. 
• Child's Preference: The preference of a mature minor who is old enough to form an intelligent opinion must be given due weight by the court. 
• Financial Position vs. Emotional Environment: While financial resources play a role, they cannot be the sole consideration. A better emotional, social, and educational environment overrides pure financial superiority.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3500 of 2008

Decided On: 12.05.2008

Mausami Moitra Ganguli Vs. Jayant Ganguli

Hon'ble Judges/Coram:

C.K. Thakker and Devinder Kumar Jain, JJ.

Author: Devinder Kumar Jain, J.

Citation: MANU/SC/7671/2008,(2008) 7 SCC 673.

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Bombay HC: What criteria the court should apply while deciding issue of temporary custody of child in domestic violence Act proceeding?

At present, there is nothing to suggest that the welfare of the child is at peril, if child lives with the father. The matter can also be viewed from the angle of stability and consistency of the living of the child. While dealing with the application for interim custody, generally the custody shall not be disturbed without adequate reasons. It is essential to see the impact of frequent change of custody from one person to another. One has to bear in mind that the child is living with father for the period more than 1 year. The record indicates that during pendency of this petition, child was interviewed by Dr. Mrs. R.S. Sirpurkar as a Mediator who in turn informed that the child dislikes her mother and her reaction towards mother is adverse. During pendency, limited custody access was given to the mother. The report of protection officer dated 02.05.2022 and 24.05.2022 indicates that the child showed reluctance to meet her mother during visitation hours.

13. The trauma that the child is likely to experience in the event of change of custody, pending proceeding, shall have to be necessarily borne in mind. I am conscious about tender age and gender of the child, but still, I feel that at this interim stage of the proceeding, it would not be appropriate to interfere in the existing state, especially on the background of prolonged residence of child with father.

14. The report of Mediator as well as Protection Officer prima facie assures that the child is comfortable with his father. Thus, considering the peculiar facts and especially the child is in custody of petitioner/father admittedly from 27.02.2021, change in custody in absence of cogent material that too at this interim stage would be against the welfare and mental set up of the child.

15. Having regard to the current situation, it is in the interest of minor to allow to prevail the situation for some time i.e. upto final adjudication of the proceeding by Magistrate. Considering the nature of dispute, I find it appropriate to direct the learned Magistrate to dispose of the petition for custody as expeditiously as possible and in any event within three months from the date of the receipt of this order.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition No. 52/2022

Decided On: 17.06.2022

Swapnil Bhajandas Kamble Vs. Manisha

Hon'ble Judges/Coram:

Vinay Joshi, J.

Citation: MANU/MH/1942/2022,2002 All M.R. (Cri) 2296

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Supreme Court: Whether defendant whose defence is struck off is entitled to get copy of amended plaint?

There is something further which must be noted. As can be seen from the record, the Plaintiffs moved an application on 2nd August, 2002 to amend the description of the suit property. The endorsement on the application records that 'the case is proceeding ex parte against the Defendants'. Therefore, a copy of the said application was not served upon the Defendants. As seen from the proceedings, the application was allowed on 2nd August, 2002. Thereafter, the suit was decreed on 24th August, 2002. It is true that before the application for amendment of the plaint was allowed, the Defendants' defence was already struck out. Even if the Defendants' defence was struck out, the Defendants were entitled to a copy of the amended plaint. What was struck out was the right to defend the suit as unamended. Whether the subsequent plaint will affect the earlier order of striking out the defence will depend upon the nature of the amendment. However, even a copy of the amended plaint was not served on the Defendants. {Para 6}

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2394/2023, 

Decided On: 12.09.2024

Ranjit Singh and Ors. Vs. State of Uttarakhand and Ors. 

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka, Ahsanuddin Amanullah and Augustine George Masih, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: 2024 INSC 724,MANU/SC/1052/2024

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