Bombay High court IN, Payal sudeep laad @payal Sharma v/s Sudeep Govind laad and another:
Section 21 of DV Act provision reads as follows:
“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 arrangement for visit of such child or children by the respondent :
Provided that if the Magistrate is of the opinion that any visit of the respondents may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.”
As such an application was made by the husband seeking for the custody of child. the wife has contended that the husband could have approached the Court under Section 26 of the Hindu Marriage Act seeking custody of the child.
The remedy lies before other forum and the application before the Trial Court in the present case was not maintainable. that the child was in custody of mother (applicant) from 2nd December 2017. In the complaint under the DV Act preferred on 17th July 2017, the same indicate that the applicant had preferred the said complaint u/s 18, 19, 20, 21, 22 and 23 of DV Act. The form/complaint reflects that the applicant had sought relief under the various provisions including Section 21 which relates to custody orders. It is the contention of the applicant that unless the applicant prefers any application under Section 21 for custody order, the access cannot be granted to the husband on an independent application preferred by him. It is contended that since section 21 does not provide any right to the husband to prefer such application, and since the legislature has not provided such right to the husband, except as stipulated in Section 21 of DV Act, the Court ought not to have entertained the application and granted relief as prayed by respondent no.1.that the wife had preferred an application under the Domestic Violence Act of 2005 for various reliefs against her husband and his family members. During the pendency of the aforesaid application, the husband filed an application under section 21 of the said Act praying that permanent custody of the minor child of the parties may be given to him and in the alternative it was prayed that visitation right may be granted to him to meet the minor child of the parties. A petition for grant of decree of divorce was also filed by the husband under Section 13 of the Hindu Marriage Act and the Family Court Jaipur with the consent of the parties passed an order regarding visiting rights of the Respondents to the effect that the petitioner will remain present along with the child on Second Saturday of every month and Respondent will be entitled to meet the child during that period. For the reasons stated herein above, I do not agree with the said decision and it was dealt in the peculiar facts and circumstances of the said case.
The application filed under Section 21 of the Domestic Violence Act seeking interim custody is maintainable before a Magistrate exercising jurisdiction in relation to area where family Court is established and the Magistrate has jurisdiction to decide such an application in accordance with law.
Thus the orders passed regarding custody of child under sec.21 of the DV act was allowed and thereby husband was given visiting rights and child custody for certain period of time in a month, under this provisions of the act.